Hirsch, B. v. McGinniss, S.

• Court: Superior Court of Pennsylvania
• Decided: November 27, 2018
• Docket: 975 EDA 2018
• Status: Unpublished

Opinion

J-A25033-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRIAN HIRSCH, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : SHANNAN MCGINNISS : No. 975 EDA 2018

Appeal from the Order Entered, February 26, 2018, in the Court of Common Pleas of Bucks County Domestic Relations at No(s): A06-16-60222-C-37.

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 27, 2018

In this pro se appeal, Appellant, Brian Hirsch (Father), contests the trial

court’s jurisdiction to conduct a custody hearing in Pennsylvania; the trial

court awarded Appellee, Shannan McGinniss (Mother), primary physical

custody of the parties’ two-year-old daughter, G.M. After careful

consideration, we are constrained to affirm.

Mother and Father lived together in New Jersey at the time of the child’s

birth in July 2015. Approximately five months later, Mother left with the child

to Pennsylvania. Mother alleged that she fled Father’s abuse. Father denied

the abuse, and alleged Mother’s departure was only supposed to be

temporary. Both parties filed for custody – Mother in Pennsylvania in February

2016, and Father in New Jersey in March 2016. The simultaneous proceedings J-A25033-18

necessitated an interstate jurisdiction determination under the Uniform Child

Custody and Enforcement Act (UCCJEA, 23 Pa.C.S.A. §5401, et seq.).1, 2

On August 9, 2016, a trial court in Monmouth County, New Jersey

conducted a jurisdiction hearing pursuant to 23 Pa.C.S.A. § 5421 (“Initial Child

Custody Jurisdiction”). Because custody proceedings had begun in

Pennsylvania, the New Jersey trial court also conferred with the trial court in

Bucks County, Pennsylvania. Communication between courts is required

when there are simultaneous proceedings. See 23 Pa.C.S.A. § 5410

(“Communication between courts”).

At this hearing, the New Jersey court heard argument with the

Pennsylvania court present by telephone. After argument, the New Jersey

court excused the parties from the courtroom, but kept the Pennsylvania court

on the phone to discuss the matter. A continuous transcript of both the

argument and the discussion between the judges was created; thus, a

“record” was formed pursuant to § 5410(d). The New Jersey court ultimately

determined that even though New Jersey was the child’s “home state,”

Pennsylvania should exercise jurisdiction, because it was a more convenient

forum, pursuant to § 5427 (“Inconvenient Forum”). During the conference,

the Pennsylvania court voiced its agreement. Shockingly, the New Jersey ____________________________________________

1Both states’ iterations of the UCCJEA are virtually identical. See N.J.S.A. 2A: 34-53 to 95. This memorandum will use only the Pennsylvania citation.

2Father cites to both the UCCJEA and the Uniform Child Custody Jurisdiction Act (UCCJA) without realizing that the UCCJEA replaced the UCCJA.

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court did not allow Father to testify or submit any information at the hearing.

See § 5427(b); § 5410 (b). Rather, the court limited his input to argument.

In the record before us, no official New Jersey order denying jurisdiction

exists. No Pennsylvania order accepting jurisdiction exists, either. We can

infer that a New Jersey order exists, because the New Jersey court indicated

in the transcript of the jurisdiction hearing that an order would be mailed

imminently. And on August 16, 2016, one week after the New Jersey hearing,

Father petitioned the Pennsylvania court to modify custody. The reason

Father did not file a custody complaint is because an interim custody order

already existed in Pennsylvania, pursuant to § 5424 (“Temporary Emergency

Jurisdiction”).

For reasons unknown, the custody case lingered for 18 months until it

came to a final resolution by way of the February 26, 2018 custody order –

the order from which Husband now appeals.3

At the outset, we address which of Father’s issues are properly before

us. Although Father raised both jurisdictional and substantive custody issues

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3 The record, which spans the two years between Mother’s petition for temporary emergency custody in February 2016 to the final custody order in February 2018, contains various orders. Some of these orders, e.g., the May 23, 2017 contempt order, address custody matters, but none appears to be the result of a final custody hearing.

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in his Pa.R.A.P. 1925(b) statement, he has chosen – inadvertently or not – to

proceed only with the jurisdictional challenge.4

Preliminarily, we observe that Father initially failed to comply with

Pa.R.A.P. 1925 when he neglected to file contemporaneously his concise

statement with his notice of appeal and serve the same upon the trial court.

However, we decline the trial court’s invitation to quash the appeal.

Application of a bright-line application of the waiver rule would not be in

accordance with appellate procedure when children’s issues are concerned.

See J.M.R. v. J.M., 1 A.3d 902, 906 (Pa. Super. 2010). In children’s fast

track appeals, the failure to provide notice will result in a defective appeal,

but the issue will not necessarily be waived; instead, the matter will be decided

on a case-by-case basis. In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super.

2009); but see Greater Erie Indus. Development Corp. v. Presque Isle

Downs, Inc., 88 A.3d 222 (Pa. Super. 2014)(in non-children’s fast track

appeals, the failure to comply with Pa.R.A.P. 1925(b) will result in automatic

waiver of the issues raised).

4 The Appellate Rules of Procedure provide, “[n]o question will be considered unless it is stated in the statement of questions involved [section of the brief] or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Father has neither included a custody challenge in his statement of questions involved section, nor has he briefed the subject.

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We also observe that Father initially failed to obtain the transcript,

pursuant to Pa.R.A.P. 1911(a). By the time of oral argument, however, Father

apparently remedied this defect by paying for the transcript and making it a

part of the record.5 We similarly decline to quash on this basis.

We now proceed to address his issues on appeal. Father presents the

following questions for review, all of which concern the initial custody

jurisdiction determination:

1. Did the trial court err by granting Mother jurisdiction in the state of Pennsylvania?

2. Did the trial court err by not allowing Father to call witnesses regarding the matter of jurisdiction in Pennsylvania?

3. Did the trial court err by not allowing Father to submit evidence regarding the matter of jurisdiction in Pennsylvania?

4. Did the trial court fail to enforce kidnapping laws regarding Mother taking child from her home state of New Jersey and fleeing to the state of Pennsylvania for no apparent logical reason?

5. Did the trial court fail to enforce, or even address, the jurisdictional issue of “forum shopping” by Mother?

Father’s Brief, at 4.

5 Had Father chosen to proceed with his custody challenge, we would have remanded to allow the trial court to issue a supplemental opinion, so that it could conduct a sufficient custody analysis pursuant to 23 Pa.C.S.A. § 5323(d) (“Reasons for award”). No supplemental opinion is necessary, as the jurisdiction issue is purely a legal question and enough facts are in the record to allow for a proper examination. See S.K.C. v. J.L.C., infra, 94 A.3d 402, 408 (Pa. Super. 2014).

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Although jurisdiction was not raised at the instant custody modification

hearing, the issue is not waived. Generally, this Court will not address issues

not properly raised before the trial court. See Pa.R.A.P. 302(a) (stating that

issues not raised in the trial court will be deemed waived on appeal).

However, in the realm of subject matter jurisdiction, a court always has the

authority to determine whether it has jurisdiction to decide a case. See J.M.R.

v. J.M., 1 A.3d 902, 908 (Pa. Super. 2010) (citations omitted) (affirming the

trial court’s jurisdiction under the UCCJEA even though jurisdiction was not

raised during the relocation trial). In its Rule 1925(a) opinion, the trial court

states that Father acquiesced to jurisdiction when he filed for custody

modification in Pennsylvania following the jurisdiction hearing. However, an

individual’s “action or inaction cannot bestow subject matter jurisdiction upon

a court that otherwise lacks it.” See Pa.R.C.P. 1032(2). Our rules of procedure

provide that either the parties, or the court sua sponte, may raise the issue

of subject matter jurisdiction at any time. J.M.R., 1 A.3d at 908. Thus, the

issue is properly before us.

This Court’s standard of review when reviewing a trial court’s application

of the UCCJEA is as follows:

A court's decision to exercise or decline jurisdiction [per the UCCJEA] is subject to an abuse of discretion standard of review and will not be disturbed absent an abuse of discretion. Under Pennsylvania law an abuse of discretion occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court's findings. An abuse of discretion requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures.

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Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005) (citation omitted).

All of Father’s issues relate to the dubious conduct of the New Jersey

trial court. Throughout the hearing, the New Jersey court barred Father from

providing any testimony or witnesses, even though Father disputed relevant

facts. See § 5427(b). Although a record was made of the communication

between the courts, Father was not given an opportunity to present facts. See

§ 5410(b). These facts, if proven, might have been an appropriate basis for

Pennsylvania to decline jurisdiction (or New Jersey to retain jurisdiction) by

reason of Mother’s conduct. See § 5428.

Similarly, the transcript of the jurisdictional hearing from New Jersey

indicates that the New Jersey court declined jurisdiction because Pennsylvania

was the more convenient forum. But it also appears, at least from the

transcript, that New Jersey court never conducted the requisite factual

analysis pursuant to § 5427(b) (Inconvenient Forum – Factors). And again,

the court prevented Father from submitting information to support his

argument that New Jersey should retain jurisdiction. Moreover, the focus on

the family’s ties to Pennsylvania apparently ignored the fact that, although

the parties filed for custody in February and March 2016 respectively, a simple

jurisdictional hearing was not conducted for six months – an eon in UCCJEA

years.

Even though the Pennsylvania trial court agreed that the facts were not

in dispute, the decision to prevent Father a meaningful opportunity to be heard

rested solely with the New Jersey court. Likewise, the decision not to retain

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jurisdiction in New Jersey (the child’s original home state) was ultimately the

New Jersey trial court’s decision. The uniform nature of the UCCJEA

notwithstanding, if Father was denied due process in New Jersey, he had to

seek redress in the New Jersey appellate court. See, e.g., Brewer v. Carter,

218 160 Cal. Rptr. 3d 853 (Cal. App. 4th 2013) (Father appealed to California

Court of Appeal when California trial court erroneously determined Illinois to

be the more convenient forum under the UCCJEA). In other words, we may

not determine whether New Jersey’s decision was erroneous; rather, we can

only determine whether the Pennsylvania trial court’s actions constituted an

abuse of discretion.

The summation of the Pennsylvania trial court’s actions is as follows: A

Pennsylvania trial court initially exercised jurisdiction over the custody case

on a temporary, emergency basis.6 The Pennsylvania court then conferred

with the New Jersey court once simultaneous proceedings were discovered.7

Only after the New Jersey court declined did the Pennsylvania court assume

jurisdiction. The Pennsylvania court then exercised that jurisdiction when

Father filed for custody modification.8 All of these actions were proper.

6Pursuant to 23 Pa.C.S.A. § 5424, the trial court entered a temporary emergency custody order.

7 Pursuant to 23 Pa.C.S.A. § 5410.

8 Section 5421(a)(3) provides that the Pennsylvania court has jurisdiction if all courts having jurisdiction, i.e. the New Jersey court, declined to exercise jurisdiction on the ground that the Pennsylvania court is the more appropriate forum to determine the custody of the child.

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Thus, Father’s appeal essentially challenges whether the Pennsylvania

trial court still had exclusive, continuing jurisdiction to proceed with the instant

custody trial. We find that it did. The relevant UCCJEA provision is § 5422.

A trial court’s decision that it possesses exclusive, continuing jurisdiction

under § 5422 is purely a question of law. S.K.C. v. J.L.C., 94 A.3d 402, 408

(Pa. Super. 2014). On this question, our standard of review is de novo and

our scope of review is plenary. Id.

Because the New Jersey court refused, the Pennsylvania court opted to

exercise jurisdiction. Under § 5422, the Pennsylvania court retains jurisdiction

until either:

1. The Pennsylvania court determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with Pennsylvania and that substantial evidence is no longer available in Pennsylvania concerning the child’s care, protection, training and personal relationships; or

2. The Pennsylvania court or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in Pennsylvania.

See 23 Pa.C.S.A. § 5422(a)(1)-(2). Neither of those criteria has been met.

Therefore, the Pennsylvania trial court had exclusive continuing jurisdiction

over the custody case when it conducted the instant modification hearing in

February 2018.

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Based on our thorough review of the certified record and relevant law,

we find that jurisdiction properly lies within Pennsylvania. Accordingly, we

affirm the order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/27/18

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