J-S35031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN T. AND SHIRLEY A. OLESKI : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES HATHAWAY : : Appellant : No. 894 MDA 2021
Appeal from the Order Entered June 3, 2021 In the Court of Common Pleas of York County Civil Division at No(s): 2014-FC-001854-03
JOHN T. AND SHIRLEY A. OLESKI : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES HATHAWAY : : Appellant : No. 1022 MDA 2021
Appeal from the Order Entered June 29, 2021 In the Court of Common Pleas of York County Civil Division at No(s): 2014-FC-001854-03
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: DECEMBER 17, 2021
These consolidated appeals arise from the order of the Court of
Common Pleas of York County (trial court) resolving a custody dispute in
favor of John T. and Shirley A. Oleski, the maternal grandparents of the
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* Retired Senior Judge assigned to the Superior Court. J-S35031-21
minor child, H.H. The father of the child, Charles Hathaway (Father) argues
that the order must be vacated because the trial court had no jurisdiction
over the case; the trial court deprived him of the chance to make his
jurisdictional argument; and the custody terms imposed infringe on his
parental rights. For the reasons that follow, the appeal docketed at case
number 894 MDA 2021 is quashed as interlocutory, and the appeal docketed
at case number 1022 MDA 2021 is affirmed.
I.
The procedural history of this case is somewhat convoluted. Father is
the natural father of the child, H.H., who was born in 2009. The mother of
H.H. was married to Father at the time the child was born. The mother
passed away in 2013, but she was survived by the child’s maternal
grandparents, John T. Oleski and Shirley A. Oleski (grandparents).
Since 2014, Father and grandparents have been engaged in a custody
dispute over the child. On October 18, 2016, Father and grandparents
reached a stipulated agreement that grandparents would be granted partial
physical custody and Father would be granted primary physical custody and
sole legal custody. However, grandparents subsequently filed a petition for
custody and contempt, alleging that Father was not complying with the
earlier stipulations.
The trial court held a custody trial and granted grandparents’ petition.
On July 17, 2018, the trial court entered a custody order awarding
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grandparents partial physical custody of the child every other Saturday
during the school year, Christmas Eve, and four other days each summer.
The order provided that grandparents were responsible for the child’s
transportation to and from all visits. Father appealed on constitutional
grounds and this Court affirmed the order in J. & S.O. v. C.H., 206 A.3d
1171 (Pa. Super. 2019).
In August 2020, Father and the child moved from Pennsylvania to
Maryland. Father’s Maryland home was about an hour’s drive from
grandparents’ residence. To avoid having to drive a total of four hours for
each visit, grandparents petitioned for a modification of the July 17, 2018
order so that transportation responsibilities would be evenly split between
themselves and Father.
However, on December 9, 2020, due to the outbreak of COVID-19 and
resulting travel restrictions, the petition to modify the transportation
provision was held in abeyance. Instead, the trial court entered on that date
an order modifying the July 17, 2018 order to temporarily award
grandparents remote video visits in lieu of in-person partial custody. This
order precluded in-person visits only in the event that “a scheduled visit for
the Grandparents with the minor child is not able to occur in person due to
restrictions related to the ongoing COVID 19 pandemic[.]” The parties were
advised on several other occasions that in-person visits would resume once
the travel restrictions related to COVID-19 were lifted.
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A few months later, on March 3, 2021, the trial court held a hearing on
grandparents’ petition to modify the transportation provisions of the custody
order. Testimony was taken from the child and on March 4, 2021, the trial
court granted grandparents’ petition. An order was entered the next day
directing the parties to split transportation responsibilities as to previously
awarded visits outlined in the July 17, 2018 order.
On May 17, 2021, grandparents filed a petition seeking to enforce their
in-person visitation rights. By that time, both Pennsylvania and Maryland
had lifted their respective transportation restrictions. Moreover, it is
undisputed that grandparents have been vaccinated against COVID-19.1
Father filed preliminary objections on May 28, 2021, arguing that the
trial court no longer had jurisdiction over the case because the child had
been residing in Maryland for the past nine months. The trial court issued
an order on June 3, 2021, enforcing grandparents’ in-person visitation rights
and recognizing that the prior temporary orders were given effect only so
long as COVID-19 travel restrictions were in place. The trial court further
ordered that Father’s preliminary objections would be heard on August 11,
2021.
1 The title of the petition indicated that grandparents sought “special relief and modification of custody.” However, in substance, grandparents were clearly seeking to have the trial court enforce their established right to in- person custody because the COVID-19 travel restrictions had eased.
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Father moved for reconsideration of the trial court’s June 3, 2021
order, reiterating his argument that the trial court lacked jurisdiction.
Grandparents filed a response to Father’s preliminary objections, and while a
ruling was still pending on the preliminary objections and the motion for
reconsideration, Father appealed the June 3, 2021 order. This interlocutory
appeal was docketed at case number 894 MDA 2021.2
Subsequently, grandparents filed an amended petition for contempt
and enforcement of the underlying custody order on June 17, 2021. They
asserted that this amendment made Fathers’ preliminary objections to the
original petition moot. On June 29, 2021, the trial court dismissed Father’s
preliminary objections, finding that they were rendered moot by the filing of
grandparents’ amended petition and because Father had not timely filed a
notice of presentment, as was required by York County Rules of Procedure
208.3(a) and 1915.5 to have the preliminary objections heard by the trial
court.3 The trial court reasoned that no objections were pending on June 29,
2021, because by that time, Father had still not cured his procedural error.
2 Father moved for reconsideration of the June 3, 2021 order and the motion was denied on June 29, 2021, the same date on which the trial court dismissed Father’s preliminary objections to grandparents’ petition.
3 To clarify, Father’s preliminary objections logically could not have been rendered moot by grandparents’ amended petition. The trial court found that grandparents’ amended petition was itself moot, and the scheduled hearing on Father’s preliminary objections had not yet taken place. See Trial Court Order, 6/29/2021 at Paragraphs 1-2. Moreover, the trial court (Footnote Continued Next Page)
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Grandparents’ amended petition was also dismissed as the trial court
determined that the relief sought had already been granted pursuant to the
June 3, 2021 order. These dismissals were entered on June 29, 2021, a
date within the 20-day window in which Father could file preliminary
objections to grandparents’ amended petition.
Father appealed the June 29, 2021 order and the appeal was docketed
at case number 1022 MDA 2021. Both of Father’s two related appeals were
consolidated for purposes of briefing and disposition.4 The latter of the two
appealed orders, dated June 29, 2021, is the final order adjudicating the
parties’ respective custody rights.
Father now argues in his appellate brief that the orders on review must
be vacated for four related grounds, all of which concern the scope of the
trial court’s authority in the subject custody proceedings:
1. Whether the [trial] court committed an error of law in granting [grandparents’] request for modification when it lacked exclusive ongoing jurisdiction under 23 Pa.C.S. § 5422?
2. Whether the [trial] court committed an error of law in modifying the status quo custody order without affording (Footnote Continued) _______________________
dismissed grandparents’ amended petition before the time had expired for Father to file new preliminary objections to the amended petition. Ostensibly, the trial court eliminated the procedural vehicles in which Father could file preliminary objections. 4 As to Father’s appeal in case number 1022 MDA 2021, the trial court
ordered Father to clarify his statement of issues and an amended statement was filed. The trial court then filed a 1925(a) opinion outlining the reasons for its ruling. See 1925(a) Opinion, 8/4/2021.
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[Father] his constitutional procedural due process of notice and opportunity to be heard?
3. Whether the [trial] court committed an error of law in overriding [Father’s] fundamental rights as a parent with sole legal custody to determine the appropriateness of physical contact with his minor child and other relatives during a global pandemic?
4. Whether the [trial] court committed an error of law by dismissing an amended petition for contempt and enforcement, prior to expiration of the time allotted under Pa.R.C.P. 1028(f) to file other objections?
Appellant’s Brief, at 8 (suggested answers and some punctuation omitted).
II.
As a preliminary matter, we note that Father properly appealed the
trial court’s June 29, 2021 order, which was final and appealable because it
resolved all the claims of the parties and concluded the proceedings in the
case. See Pa.R.A.P. 341 (b)(1). Conversely, Father’s earlier appeal of the
trial court’s June 3, 2021 custody order was non-final and not immediately
appealable. See id.; see also G.B. v. M.M.B., 670 A.2d 714 (Pa. Super.
1996). The appeal docketed at case number 894 MDA 2021 is, therefore,
quashed.
Moving to the merits, Father’s first appellate issue concerns whether
the trial court had authority to grant grandparents’ petition. He argues that
the trial court lacked subject matter jurisdiction because the child resided in
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Maryland and not Pennsylvania at the time the most recent custody order
was entered.5
We find that Father’s jurisdictional argument has no merit. The
Uniform Child Custody and Jurisdiction Enforcement Act provides in pertinent
part that a Pennsylvania trial court which has made an initial custody
determination will retain jurisdiction to modify and enforce its order until:
a court of this Commonwealth 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 this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child's care, protection, training and personal relationships[.]
23 Pa.C.S. § 5422(a)(1) (emphasis added).
In the present case, the child resided in York County, Pennsylvania
until August 2020. This case has been litigated in that forum since 2014,
and the parties agree that the trial court had jurisdiction at the inception of
the case. See 23 Pa.C.S. § 5422, Uniform Law Comment (“Jurisdiction
attaches at the commencement of a proceeding.”). Father and grandparents ____________________________________________
5 “It is hornbook law that ‘as a pure question of law, the standard of review in determining whether a [trial] court has subject matter jurisdiction is de novo and the scope of review is plenary.’” S.K.C. v. J.L.C., 94 A.3d 402, 406 (Pa. Super. 2014) (quoting Beneficial Consumer Disc. Co. v. Vukman, 77 A.3d 547, 550 (Pa. 2013)) (citation omitted). “[W]hen discussing our standard of review in other cases arising under [23 Pa.C.S. § 5422], we have often stated that ‘this Court will not disturb a decision to exercise or decline jurisdiction absent an abuse of discretion by the trial court.’” S.K.C., 94 A.3d at 406 (quoting Billhime v. Billhime, 952 A.2d 1174, 1176 (Pa. Super. 2008)) (citation omitted).
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were bound by the stipulated terms of the custody order entered by the trial
court on July 17, 2018.
On December 11, 2020, grandparents’ in-person custody rights were
temporary suspended only so long as the travel restrictions relating to
COVID-19 remained in effect. See Trial Court Order, 12/11/2020, at 2-3.
On June 3, 2021, and June 29, 2021 (after those interstate travel
restrictions were halted), the trial court enforced the July 17, 2018 custody
order as the subsequent interim orders restricting in-person visits had
effectively lapsed. This judicial action merely removed temporary
restrictions on grandparents’ custody rights, giving full effect to the custody
order of July 17, 2018.
Although neither Father nor H.H. reside in Pennsylvania, the record is
abundantly clear that there is substantial evidence available in this
Commonwealth concerning the child’s care, protection, training and personal
relationships. Father has not disputed this point, as his jurisdictional
argument hinges solely on the fact that he and the child no longer reside in
Pennsylvania. The plain language of 23 Pa.C.S. § 5422(a)(1) affords
continuing exclusive jurisdiction to the trial court with original jurisdiction
unless the residency and substantial evidence prongs are both satisfied.
See generally Rennie v. Rosenthol, 995 A.2d 1217, 1220-21 (Pa. Super.
2010).
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Because the conditions required to divest the trial court of jurisdiction
were not established, much less disputed as to the substantial evidence
prong, the trial court did not err in finding that it had retained continuing,
exclusive jurisdiction to enforce or modify its previous custody order. See
S.K.C. v J.L.C., 94 A.3d 402, 411 (Pa. Super. 2014) (quoting Rennie v.
Rosenthol, 995 A.2d 1217, 1220-21 (Pa. Super. 2010) (“Pennsylvania will
retain jurisdiction as long as a significant connection with Pennsylvania
exists or substantial evidence is present.”)); Favacchia v. Favacchia, 769
A.2d 531 (Pa. Super. 2001) (same).
III.
Father’s second argument is that the trial court violated his due
process rights by entering the June 29, 2021 order without giving Father a
prior opportunity to assert his jurisdictional challenge, which was the sole
ground in his preliminary objections to grandparents’ petition.6 We find that
this claim has no merit.
On May 28, 2021, Father filed preliminary objections to grandparents’
petition for modification and contempt. The trial court recognized and
reaffirmed grandparents’ right to in-person visitation on June 3, 2021, but
grandparents filed an amended petition on June 17, 2021, well before
6Father has proffered no additional preliminary objections he would have made to grandparents’ amended petition.
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August 11, 2021, the scheduled date on which Father’s preliminary
objections would be heard. Grandparents’ amended petition, along with
Father’s preliminary objections and motion for reconsideration, were
dismissed on June 29, 2021. The August 11, 2021 hearing was cancelled.
While we agree with Father that his preliminary objections should not
have been treated as moot, the trial court’s finding of mootness did not
deprive Father of due process or an opportunity to be heard. The only
ground asserted in Father’s preliminary objections was that the trial court
lacked jurisdiction, and the trial court considered the merits of that
argument in its 1925(a) opinion. See Trial Court Opinion, 8/4/2021, at 4-8.
Father had raised the same jurisdictional issue in his motion for
reconsideration of the June 3, 2021 order, and the trial court found no merit
to the claim.
Additionally, we have also considered the merits of that issue in the
previous section above and found that the trial court did not err. It is
irrelevant that the trial court ruled before holding the August 11, 2021
hearing because, in an enforcement action like the one here, a hearing or an
express ruling on jurisdiction is not required; the trial court only has to
determine as a matter of law “whether the [custody] decree was valid when
entered and never modified [in another forum].” See Shaw v. Shaw, 719
A.2d 359, 360 (Pa. Super. 1998) (quoting Taylor v. Taylor, 480 A.2d 1188,
1190 (Pa. Super. 1984)). Thus, while the trial court may have erred in the
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manner that it dismissed Father’s jurisdictional challenge, any such error
was harmless.7
IV.
Father’s third argument is that the trial court’s June 29, 2021 order
deprived him of his statutorily protected right to make medical decisions on
behalf of the child. According to Father, it is his right to unilaterally preclude
grandparents’ in-person visits, regardless of the terms of the trial court’s
custody orders, because he is entitled to make such medical decisions on
behalf of the child.
We find that this claim is not preserved for purposes of appeal. Father
did not raise it in his preliminary objections or in his motion for
reconsideration. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court
are waived and cannot be raised for the first time on appeal.”). The novel ____________________________________________
7 Father seems to argue in his brief that the trial court had to hold an evidentiary hearing on his jurisdictional claim because the July 17, 2018 custody order was being modified and not simply enforced. See Shaw v. Shaw, 719 A.2d 359, 360 (Pa. Super. 1998) (distinguishing “modification jurisdiction,” which requires consideration of evidence, and “enforcement jurisdiction,” which does not). Yet the record does not support this interpretation. Grandparents were petitioning the trial court to enforce the visitation terms of prior custody orders from 2018. Father does not dispute that grandparents’ right to in-person custody was only temporarily limited for as long as COVID-19 restrictions were in place. These restrictions were lifted at the time the trial court entered its orders on June 3, 2021, and June 29, 2021. Since this appeal concerns the trial court’s jurisdiction to enforce its custody orders and there was no issue of fact calling for the presentation of evidence, a hearing on the trial court’s enforcement jurisdiction was not needed. See id.
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issue was raised for the first time in Father’s 1925(b) statement, by which
time the issue had long been waived.
V.
Father’s final argument is that the trial court abused its discretion by
prematurely dismissing grandparents’ amended petition before Father’s time
to make preliminary objections had expired. He claims that had he been
given the full amount of time afforded by the procedural rules, he would
have filed preliminary objections to grandparents’ amended petition and
challenged the trial court’s jurisdiction.
Father correctly notes that under Pa.R.C.P. 1028(c)(1), he had 20
days from the date that grandparents filed their amended petition to submit
new preliminary objections. By operation of that rule, the filing of the
amended petition rendered moot Father’s preliminary objection to the
original petition. See Pa.R.C.P. 1028(c)(1) (“If a party has filed an amended
pleading as of course, the preliminary objections to the original pleading
shall be deemed moot.”).
Here, the trial court erred by depriving Father of an opportunity to
assert preliminary objections to grandparents’ original petition and amended
petition. Father’s preliminary objections were found moot after
grandparents filed an amended petition, but Father was not then given 20
days to file new preliminary objections to the amended petition. The trial
court attempted to defend its ruling by pointing to local procedural rules
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concerning presentment, reasoning that Father failed to schedule a hearing
or file a notice as to when the hearing would be heard at the court’s motions
calendar.
The trial court appears to overlook that at the time the disputed
dismissals were entered, Father’s original preliminary objections had been
scheduled to be heard on August 11, 2021. York County Rule of Procedure
208.3(a) requires a party to give the trial court and other parties notice of a
hearing at least five days prior to its scheduled date. The trial court
dismissed Father’s preliminary objections weeks before the hearing was to
take place, so the time in which Father had to comply with the presentment
rule had not yet elapsed. Nevertheless, despite the trial court’s procedural
error, we find that no relief is due.
It is critical that Father’s only complaint on appeal is that the timing of
the trial court’s rulings deprived him of the chance to assert a jurisdictional
challenge. Regardless of that questionable timing, Father’s jurisdictional
argument was considered – and rejected – by the trial court, which
explained in its 1925(a) opinion that, as a matter of law, it had retained
jurisdiction to enforce its earlier custody orders in the case. See Trial Court
Opinion, 8/4/2021, at 4-8.8
8 Pa.R.C.P. 1028(c)(2) requires the trial court to consider evidence when ruling on a preliminary objection that raises an issue of fact. However, Father has not raised any specific issues of facts as to the substantial (Footnote Continued Next Page)
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After reviewing that discrete legal issue, we likewise conclude that the
trial court did not abuse its discretion in this regard. As discussed above,
this appeal arises from an enforcement action, which does not require an
evidentiary hearing. Moreover, Father did not dispute that substantial
evidence is available in this Commonwealth concerning the child’s care,
protection, training and personal relationships, affording the trial court
continuing, exclusive jurisdiction under 23 Pa.C.S. § 5422. Accordingly,
because Father cannot articulate how the trial court’s procedural error
caused him prejudice, the error was harmless and the trial court’s custody
order must stand. See Century Nat. Bank & Tr. Co. v. Gillin, 534 A.2d
518, 520 (Pa. Super. 1987) (“In this case we find the action of the trial court
to have been premature. This procedural error was not prejudicial to the
interests of appellant and was, therefore, harmless.”).
(Footnote Continued) _______________________
evidence prong of 23 Pa.C.S. § 5422(a)(1), thereby waiving objection to the continuing, exclusive jurisdiction of the trial court to enforce its custody order. See generally Rennie v. Rosenthol, 995 A.2d 1217, 1220-21 (Pa. Super. 2010).
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Appeal quashed at docket number 894 MDA 2021. Order affirmed at
docket number 1022 MDA 2021.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/17/2021
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