Lucas v. Lucas

882 A.2d 523, 2005 Pa. Super. 301, 2005 Pa. Super. LEXIS 2947
CourtSuperior Court of Pennsylvania
DecidedAugust 23, 2005
StatusPublished
Cited by34 cases

This text of 882 A.2d 523 (Lucas v. Lucas) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lucas v. Lucas, 882 A.2d 523, 2005 Pa. Super. 301, 2005 Pa. Super. LEXIS 2947 (Pa. Ct. App. 2005).

Opinion

OPINION BY

TAMILIA, J.:

¶ 1 Janet Lucas appeals the October 25, 2004 Order granting appellee Curt Lucas’ motion to strike the special relief Order of July 26, 2004. The special relief Order granted to appellant custody of the parties’ two minor children, prohibited appellee’s removal of the children from the Commonwealth of Pennsylvania without further Order of court, and held that a hearing on the matter would be conducted on August 17, 2004.

¶ 2 On August 9, 2004, appellee filed the motion to strike the July 26, 2004 special relief Order. The motion indicated that on July 19, 2004, appellee filed a complaint in divorce in the Court of Common Pleas, Domestic Relations Division, Summit County, Ohio, and, on that same date, that court entered a mutual restraining Order *525 in connection with the proceeding. The restraining Order indicated that a local rule of Summit County, Ohio, prohibited either party from changing or establishing a new residence for the minor children without the written consent of the other party or permission of the court. 1 Appellant received a copy of the Order after the special relief Order had been granted.

¶ 3 On September 14, 2004, a hearing was held on appellee’s motion to strike. Appellee did not appear at the hearing, but he was represented by counsel. The court found that credible evidence established the following:

On or about January 10, 2004, Curt Lucas moved out of his family residence and for all intents and purposes abandoned his wife and children and moved into another residence with his paramour. Thereafter, he provided his wife, Janet Cottone Lucas, with no support for herself or her children. The family residence was sold and the equity placed in escrow pending the resolution of a marital settlement distribution. Janet Cottone Lucas was without funds and following the sale of the house, without residence, took the parties’ two children, Amanda Caroline who was born June 2, 2000, and Rebecca Helen who was born June 19, 2002, to Scranton, Pennsylvania were all of the relatives of the Plaintiff and the Defendant reside. The credible testimony reflected that she moved to Scranton with the children because of her inability to reside and support them in Ohio and because of the presence of members of the Defendant’s family who helped her financially as well as members of her own family who helped her financially in Scranton, Pennsylvania. On July 6, 2004, she entered into a Lease Agreement with relatives for an apartment that included three bedrooms for herself and her children and has resided therein with her two children since accepting financial gifts and advances from members of both of the parties’ families because of the Defendant’s refusal to provide her with any support. This conduct by the Defendant in causing the marital residence to be sold out from under the Plaintiff herein, coupled with his refusal to provide any support for the children or his wife, Janet Cottone Lucas, is somewhat startling considering the conduct of h[im] and/or his lawyers in connection with the custody proceeding that was instituted in this Court and is particularly alarming considering that credible testimony reflected that Curt Lucas and his paramour vacationed in Mexico during the period of time when Janet Cottone Lucas was receiving no support from him and was essentially living on monies provided by family members. This Court was provided with no explanation for such conduct.
This Court finds as a fact based on the credible evidence that the reason for the mother, Janet Cottone Lucas, bringing the children to Scranton, Pennsylvania was to be able to live and have residence of their own rather than a shelter and to be in a position to secure the financial help needed to purchase food, clothing and other necessities. There is nothing whatsoever in the record to suggest that Janet Cottone Lucas moved back to their hometown to gain any type of legal advantage. She was simply attempting to survive with her two children in view of the conduct of their father and her husband in refusing to provide her with any money or with a *526 place to live after the sale of the parties’ home in September of 2004.

Trial Court Opinion, O’Malley, J., 10/25/04, at 2-4. 2 The court then went on to conclude the following:

Despite the fact that all of the equities in this matter would suggest the appropriate jurisdiction to concern itself with custody would be Lackawanna County, Pennsylvania, the Commonwealth of Pennsylvania is a party to the Uniform Child Custody Jurisdiction Act (UC-CJA) 3 and under the mandates of that Act the Court of Common Pleas of Summit County, Ohio appears to be the appropriate Court. The Defendant herein instituted a divorce action on July 19, 2004, one week before the Petition for Custody was filed in Lackawanna County, Pennsylvania. Significantly, a Restraining Order was entered against the parties on July 19, 2004 that concerned itself with establishing residences for the parties’ minor children.
For the reasons set forth in this Memorandum, the Motion To Strike Special Relief Order will be granted.

Id., at 4-5. 4

¶ 4 This timely appeal followed in which appellant raises the following issue for our review:

Whether the evidence before the trial court was such to justify the trial court striking and vacating its Special Relief Order of July 26, 2004, and declining jurisdiction despite the trial court finding that the minor children were physically present in the Commonwealth and the minor children were abandoned by their father in Ohio?

Appellant’s brief at 6. Appellant argues that she changed her residence to Pennsylvania on July 6, 2004 and husband filed the divorce action in Ohio on July 19, 2004. Therefore, she did not violate the July 19, 2004 restraining Order which prohibited either party from changing residences without the written consent of the other party or permission of court. She also *527 contends that the criteria for jurisdiction set forth in UCCJA § 5344 are met since (1)the record establishes that, pursuant to UCCJA § 5344(a)(2), mother and children have a significant connection with this Commonwealth and therefore it is in the children’s best interest for the Commonwealth to assume jurisdiction, and substantial evidence is available in this Commonwealth as to the children’s care, protection, training, and personal relationships; and because (2) the children were abandoned by father pursuant to UCCJA § 5344(a)(3).

A court’s decision to exercise or decline jurisdiction is subject to an abuse of discretion standard of review and will not be disturbed absent an abuse of that 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.

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Bluebook (online)
882 A.2d 523, 2005 Pa. Super. 301, 2005 Pa. Super. LEXIS 2947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucas-v-lucas-pasuperct-2005.