J.J. v. S.G.G.

• Court: Superior Court of Pennsylvania
• Decided: July 10, 2018
• Docket: 3825 EDA 2017
• Status: Unpublished

Opinion

J-A12004-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.J. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : S.G.G. : : Appellant : No. 3825 EDA 2017

Appeal from the Order Entered October 31, 2017 In the Court of Common Pleas of Northampton County Civil Division at No(s): C-48-CV-2017-3205

BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED JULY 10, 2018

S.G.G. (“Father”) appeals from the order entered October 31, 2017,

awarding primary physical custody of the parties’ son, S.G.G., to J.J.

(“Mother”). We affirm.

Mother and Father met while attending college in Hampton County,

Virginia and S.G.G. was born in Pennsylvania in August 2009. Five months

later, Mother returned to Virginia to live with Father. Their relationship

deteriorated approximately one year after her return. During 2013, Father

moved to Brooklyn, New York, where he remains. Mother stayed in Virginia,

and commenced child custody proceedings against Father. Those proceedings

culminated in a series of custody orders awarding Mother primary physical

custody of their son. The most recent custody order was entered on August

16, 2015. J-A12004-18

In March 2016, Mother moved from Virginia to Pennsylvania. Although

neither party remained in Virginia at that time, on May 4, 2016, Father filed

in Virginia a pro se motion to amend the August 10, 2015 custody order. On

November 3, 2016, Virginia’s Hampton Juvenile and Domestic Relations

District Court entered an order that modified the custody arrangement

slightly, but maintained primary physical custody of S.G.G. with Mother. That

order included a provision relinquishing jurisdiction over the matter because

neither party continued to reside in Virginia.1 Father appealed the domestic

relations court’s order for de novo review in the Hampton Circuit Court. At

the conclusion of the ensuing evidentiary hearing, the Hampton Circuit Court

issued an oral ruling that awarded Mother primary physical custody of S.G.G.

Consistent with local practice in Hampton County, Virginia, on July 11,

2017, the attorneys for Mother and Father appeared before the Hampton

Circuit Court so that it would sign a written order memorializing the oral ruling

that was issued on April 21, 2017. The Hampton Circuit Court immediately

entered an order that reflected its decision to grant Mother primary physical

custody of S.G.G., and remanded jurisdiction of the custody dispute to

Pennsylvania. However, upon review of Father’s intervening motion for ____________________________________________

1 On April 13, 2017, Mother sent a letter to the Northampton County Court of Common Pleas, asking “to have this case/order transferred to Northampton County, Pennsylvania where we now reside.” Letter, 4/13/2017. The trial court registered the November 3, 2016 order in Pennsylvania, but took no further action.

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reconsideration of the court’s oral order, which assailed Mother for moving the

child a short distance within Pennsylvania without notice, the Hampton Circuit

Court reversed the order entered minutes earlier. Without considering any

additional evidence, that court issued an oral directive that awarded primary

physical custody of S.G.G. to Father.2

Mother filed a pro se motion for reconsideration of the Hampton Circuit

Court’s oral ruling, asserting that she did not receive proper notice of the July

11, 2017 proceeding. Father countered with a motion to show cause, which

revived his prior claim that Mother’s move was improper. On August 31, 2017,

the Hampton Circuit Court entered the written order that formally awarded

____________________________________________

2 During the subsequent custody proceedings in Pennsylvania, the trial court indicated that the Pennsylvania custody master called the Hampton Circuit Court and inquired about the volte-face. N.T., 9/19/17, at 91. The trial court reported the Virginia court’s response as follows:

Th[e Virginia] judge sat on th[e] Order for a long time, and the lawyers down there started complaining to his office about it. So he sent it around to get a signature, and then he was going to enter the Order. And then he directed the lawyers to come into his office on July 11th, and then he filed this Order on July 11th. And then without notice to [Mother], he made a record with those other lawyers, and then he changed his mind with this, and he entered a new Order without taking any additional testimony or having the child in front of him[.] [A] child that he recognized in all his Orders belongs in Pennsylvania. And he entered an Order taking that child from [Mother], and had directed [Mother] to come down, with no prior warning that when she got down there, he was going to take that child from her. That’s what he did.

Id.

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Father primary physical custody of S.G.G., and it dismissed Father’s motion

to show cause. Again, as it had in its previous orders, the Hampton Circuit

Court relinquished jurisdiction of the case to Pennsylvania.3 Specifically, the

court “ORDERED, that all issues dealing with Custody, Visitation or Support of

this child are hereby remanded to the appropriate court in Easton,

Pennsylvania.” Emergency Motion for Special Relief, 8/31/17, Exhibit B

(unnumbered at 4).

Mother immediately filed a counseled emergency petition for special

relief in Pennsylvania, in which she averred that Father signed S.G.G. out of

school on August 28, 2017, and absconded with him.4 At the same time,

Mother filed a petition for modification of custody, requesting changes to the

Virginia custody order. The Pennsylvania trial court conducted an emergency

hearing on September 1, 2017. Following the hearing, on September 5, 2017,

the trial court entered an order concluding that Virginia lacked jurisdiction to

award primary physical custody of S.G.G. to Father, and vacating the August

31, 2017 order. The trial court directed that Father return S.G.G. to

Pennsylvania immediately, and awarded primary physical custody to Mother.

3 On September 28, 2017, the Hampton Circuit Court entered a revised custody order retroactive to August 31, 2017, that corrected a typographical error in the prior order. On the same date, the court denied Mother’s motion for reconsideration, and, again, remanded jurisdiction of the case to Pennsylvania.

4 Mother attached a signed copy of the August 31, 2017 order to her Pennsylvania court filings.

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The trial court conducted a full evidentiary hearing on September 19,

2017, and October 11, 2017, during which Mother, Father, and S.G.G.

testified. On October 31, 2017, the trial court entered the order that is the

genesis of this appeal. That order concluded once again that Virginia lacked

jurisdiction over the parties’ custody dispute, and awarded primary physical

custody of S.G.G. to Mother during the school year. Father was awarded

periods of partial physical custody on alternating weekends from Friday at

6:00 p.m. until Sunday at 6:00 p.m. During the summer months, the parties

alternate custodial periods with Father exercising three consecutive weeks

custody, followed by Mother’s two weeks of custody. They share legal

custody.

Father timely filed a notice of appeal and complied with the trial court’s

order directing him to file a concise statement of errors complained of on

appeal within twenty-one days.5 Father presents two issues claims for our

review:

A. Did the [trial c]ourt abuse its discretion in vacating the Virginia Order and failing to afford it full faith and credit?

B. Did the [trial c]ourt err in substituting its judgment for the judgment of the Virginia Court?

5 Father violated 1925(a)(2)(i) by failing to file a concise statement at the same time as his notice of appeal. However, since he complied with the trial court’s subsequent Rule 1925(b) order, we decline to find waiver due to the technical misstep. See In re K.T.E.L., 983 A.2d 745, 748 (Pa.Super. 2009) (holding that appellant’s failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver of her claims because there was no prejudice to any party).

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Father’s brief at 9.

Both of Father’s claims challenge the Pennsylvania trial court’s

conclusion that Virginia lacked jurisdiction to enter the August 31, 2017 order,

and its ability to vacate that order in favor of its own assessment of S.G.G.’s

best interests. As these claims present a pure question of law, our standard

of review is de novo and our scope of review is plenary. S.K.C. v. J.L.C., 94

A.3d 402, 408 (Pa.Super. 2014).

The Uniform Child Custody Jurisdiction and Enforcement Act

(“UCCJEA”), 23 Pa.C.S. § 5401 et seq., governs jurisdictional questions in

interstate child custody disputes.6 The UCCJEA’s purpose is to “avoid

jurisdictional competition, promote cooperation between courts, deter the

abduction of children, avoid relitigating custody decisions of other states, and

facilitate the enforcement of custody orders of other states.” A.L.-S. v. B.S.,

117 A.3d 352, 356 (Pa.Super. 2015).

In this case, the parties and the trial court agree that Virginia retained

jurisdiction to enter a custody order while Mother and S.G.G. continued to

reside there. However, Father asserts that the trial court erred by concluding

that Virginia lost jurisdiction after Mother and S.G.G. moved back to

Pennsylvania. We focus our attention on § 5423 of the UCCJEA, which governs

6Pennsylvania and Virginia have both adopted the UCCJEA. See VA. Code § 20-146.1 et seq.

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when a Pennsylvania trial court may modify a child custody order entered in

a different state:

Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth may not modify a child custody determination made by a court of another state unless a court of this Commonwealth has jurisdiction to make an initial determination under section 5421 (a)(1) or (2) (relating to initial child custody jurisdiction) and:

(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 5422 (relating to exclusive, continuing jurisdiction) or that a court of this Commonwealth would be a more convenient forum under section 5427 (relating to inconvenient forum); or

(2) a court of this Commonwealth or a court of the other state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the other state.

23 Pa.C.S. § 5423.

As the plain language of § 5423 demonstrates, a trial court in

Pennsylvania may modify a custody order entered by a court of a different

state if it determines that it has jurisdiction to render an initial child custody

determination pursuant to § 5421(a)(1) or (2), and that the requirements of

§ 5423(1) or (2) are met. The UCCJEA provides, in relevant part, that a court

may make an initial child custody determination under the following

circumstances:

(a) General rule.--Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:

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(1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;

(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) and:

(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and

(ii) substantial evidence is available in this Commonwealth concerning the child’s care, protection, training and personal relationships;

23 Pa.C.S. § 5421(a)(1)-(2).7

7 The UCCJEA defines a child’s “home state” as follows:

“Home state.” The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child six months of age or younger, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

23 Pa.C.S. § 5402.

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Upon review, it is clear that Pennsylvania became S.G.G.’s home state

during September 2016, after he and Mother lived in the state for six months.

Thus, as of that date, the Pennsylvania trial court had jurisdiction to make an

initial child custody determination pursuant to § 5421(a)(1). Likewise, the

procedural posture of this case satisfies the concomitant requirements of

subsections 5423(1) and (2) relating to authority to modify a custody order

entered in a different state. In relation to subsection (1), the Virginia court

expressly remanded the case to Pennsylvania, i.e., the Virginia court

determined that “it no longer ha[d] exclusive, continuing jurisdiction.” 23

Pa.C.S. § 5423(1). Similarly, the case satisfies the alternative condition

pursuant to § 5423(2) because the certified record supports the Pennsylvania

court’s determination that neither Mother, Father, nor S.G.G., continued to

reside in Virginia. See 23 Pa.C.S. § 5423(2) (condition satisfied when “a court

of this Commonwealth . . . determines that the child, the child’s parents and

any person acting as a parent do not presently reside in the other state”).

Therefore, for all of these reasons, the Pennsylvania trial court had jurisdiction

pursuant to § 5423, to modify the existing Virginia custody order.

Father does not confront the UCCJEA’s controlling statutory provisions.

Instead, he contends that Mother waived any challenge to Virginia’s

jurisdiction by requesting relief from the Virginia court and by participating in

the custody proceedings in that jurisdiction without objection. See Father’s

brief at 17, 22-24, 27-28. Father further contends that Virginia had proper

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jurisdiction at the time the custody proceedings commenced during 2014, and

that jurisdiction remained in Virginia because the court did not enter a final

order until August 31, 2017. Id. at 17-19. Father insists that the Virginia

court’s August 31, 2017 order was entitled to full faith and credit, and that

the trial court in Pennsylvania erred by substituting its own judgment for the

judgment of the Virginia court. Id. at 17, 28-29.

Father’s arguments do not lead us to reach a contrary result. Our case

law is clear that Mother could not waive her jurisdictional challenge by

requesting relief from the Virginia court, or by participating in the custody

proceedings there without objection. The UCCJEA governs a court’s subject

matter jurisdiction to enter a child custody order, and it is well established

that issues of subject matter jurisdiction are not susceptible to waiver.

Grimm v. Grimm, 149 A.3d 77, 83 (Pa.Super. 2016).

Father’s insistence that Virginia retained jurisdiction because it did not

enter a final order until August 31, 2017, is equally undeserving of relief.

Father is correct that courts must determine jurisdiction under the UCCJEA at

the time a child custody proceeding commences, and that a court with proper

jurisdiction at the time a proceeding commences will retain that jurisdiction

until the proceeding concludes. See 23 Pa.C.S. § 5422, Uniform Law

Comment (“Jurisdiction attaches at the commencement of a proceeding. If

state A had jurisdiction under this section at the time a modification

proceeding was commenced there, it would not be lost by all parties moving

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out of the state prior to the conclusion of proceeding.”). Thus, Father’s

statement of the law is accurate insofar as jurisdiction remained in Virginia at

the time he filed his May 4, 2016 motion to amend the then-prevailing custody

order entered on August 10, 2015, because S.G.G. had not yet resided in

Pennsylvania for six months. Stated plainly, at that juncture, Pennsylvania

was not S.G.G.’s home state, and the remaining requirements of § 5423 had

not been met.

However, on August 31, 2017, when Mother filed her petition in

Pennsylvania to modify the final custody order entered in Virginia earlier that

day, the Virginia custody proceedings had concluded. Thus, the UCCJEA

required the Pennsylvania trial court to assess whether it had jurisdiction as

of the time Mother commenced this new proceeding in Pennsylvania. It is

clear from our foregoing analysis of the UCCJEA’s statutory framework that

jurisdiction rested in Pennsylvania as of August 31, 2017. Indeed, as we

previously noted, the Virginia courts expressly relinquished jurisdiction to

Pennsylvania in several custody orders, including the August 31, 2017 order

that Mother sought to modify in Pennsylvania.

Based on the foregoing, we conclude that Pennsylvania possessed

jurisdiction over the parties’ child custody dispute, which permitted the trial

court to modify the Hampton Circuit Court’s August 31, 2017 custody order

and perform an independent assessment of S.G.G.’s best interests pursuant

to §§ 5338(a) and 5328(a), relating to the modification of an existing custody

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order and the factors to consider when awarding any form of custody,

respectively. Therefore, we affirm the trial court’s October 31, 2017 order

awarding Mother primary physical custody of S.G.G.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/10/18

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