Painter, W. v. Leakway, T.

CourtSuperior Court of Pennsylvania
DecidedOctober 8, 2021
Docket246 MDA 2021
StatusUnpublished

This text of Painter, W. v. Leakway, T. (Painter, W. v. Leakway, T.) 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
Painter, W. v. Leakway, T., (Pa. Ct. App. 2021).

Opinion

J-S20040-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM A.L. PAINTER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIFFANY M. LEAKWAY F/K/A TIFFANY : M. LEAKWAY-PAINTER : : No. 246 MDA 2021 Appellant :

Appeal from the Order Entered January 22, 2021 In the Court of Common Pleas of York County Civil Division at No(s): 2014-FC-000582-03

BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: OCTOBER 8, 2021

Tiffany M. Leakway f/k/a Tiffany M. Leakway-Painter (“Mother”) appeals

from the Order granting the Motion filed by William A.L. Painter (“Father”)1 to

relinquish jurisdiction in this custody matter to the Commonwealth of Virginia,

where Father and the parties’ female child, M.P. (“Child”) (born in April 2007),

have lived since 2017, pursuant to the Uniform Child Custody Jurisdiction and

Enforcement Act (“UCCJEA”).2 We affirm.

____________________________________________

1 We note that the trial court used the parties’ full names in the caption, and

no party has applied for the use of initials on appeal. See Pa.R.A.P. 904(b) (stating that “[i]n an appeal of a custody action where the trial court has used the full name of the parties in the caption, upon application of a party and for cause shown, an appellate court may exercise its discretion to use the initials of the parties in the caption based upon the sensitive nature of the facts included in the case record and the best interest of the child.”).

2 See 23 Pa.C.S.A. §§ 5401-5482. J-S20040-21

Mother and Father are the natural parents of Child. The parties

separated in 2012. Father initially filed a Custody Complaint, in Pennsylvania,

in March 2014, when the parties were sharing custody of Child. Following

additional proceedings not relevant to the instant appeal, Father sent Mother

a Notice of his proposed relocation with Child to Virginia. Mother filed a

Counter-Affidavit opposing both the relocation and modification of custody.

The trial court entered a Final Custody Order on December 2, 2016, awarding

Father sole legal custody and primary physical custody, and awarding Mother

supervised custody. The trial court also granted Father permission to relocate

with Child following the 2016-2017 academic year.3 Further, the Final Custody

Order permitted Mother to exercise periods of unsupervised custody, on a

fixed schedule, so long as she complied with various requirements (i.e.,

completion of drug and alcohol counseling, completion of a threat and harm

evaluation and compliance with recommendations).

On December 9, 2020, Mother filed a Petition for Contempt and

Modification, arguing that Father had restricted her access to Child, and

seeking shared legal and physical custody. Father did not directly respond to

Mother’s Petition, but filed a Motion for Transfer of Venue on December 31,

2020.

3 Mother continues to reside in Pennsylvania.

-2- J-S20040-21

Following a conciliation conference on January 5, 2021, the trial court

filed an Interim Order for Custody, pending trial.4 The Interim Order directed

the parties to confer and try to agree on a counselor for family counseling.

The trial court conducted a hearing on the Motion to Transfer on January

21, 2021. The testimony at the hearing established that Father and Child

moved to Virginia in 2017. N.T., 1/21/21, at 4, 5. Father testified that Child

attends school in Virginia, is involved in sports and volunteer work, and has

friends there. Id. at 6. According to Father, the parties had not been to court

in Pennsylvania since 2016. Id. at 9; see also id. at 35 (wherein Mother

acknowledged that the parties had not been in court for this matter between

2017 and 2019). Additionally, Mother agreed that she could participate in

another jurisdiction’s proceedings via Zoom. Id. at 37. At the close of the

hearing, the trial court stated as follows:

The [trial c]ourt has before it Father’s [M]otion to [T]ransfer jurisdiction and/or venue. More precisely, Father wants the [trial c]ourt to relinquish jurisdiction, presumably, for Virginia to resume jurisdiction in this matter.

It is the Order of [c]ourt in this matter that this [c]ourt does relinquish jurisdiction of this matter to Virginia and/or any other state that may qualify as a home state under the UCCJEA. The [trial court] does this under Section 5422, which is titled Exclusive, Continuing Jurisdiction.

This [c]ourt finds as a matter of law and fact that neither the Child, nor the parent, nor a person acting as a parent, have a significant connection with [Pennsylvania]. And, further, the [c]ourt finds that substantial evidence is no longer available in ____________________________________________

4 The Interim Order was not entered on the docket until February 16, 2021.

-3- J-S20040-21

[Pennsylvania] concerning the Child’s care, protection, training, and personal relationships.

Id. at 41; Trial Court Order, 1/22/21, at 1-2.5

Mother filed a timely Notice of Appeal, along with a Concise Statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and

(b).

On appeal, Mother raises the following issues:

I. [Whether] the trial court erred as a matter of law in determining that it did not have subject matter jurisdiction pursuant to 23 Pa.C.S.[A.] § 5422[?]

II [Whether] the trial court erred as a matter of law in failing to analyze whether the trial court would otherwise have subject matter jurisdiction under 23 Pa.C.S.[A.] § 5421[?]

III. [Whether] the trial court committed an abuse of discretion in immediately relinquishing jurisdiction without communicating with the receiving court to determine whether its willness [sic] to accept jurisdiction upon consideration of 23 Pa.C.S.[A.] § 5428/VA Code [] § 20-146.19[?]

IV. [Whether] the trial court erred as a matter of law by determining that it could decline to exercise subject matter jurisdiction pursuant to [23] Pa.C.S.[A.] § 5427 without first finding that the trial court had subject matter jurisdiction[?]

V. [Whether] the trial court erred in determining that Father successfully challenged subject matter jurisdiction without complete analysis[?]

Mother’s Brief at 7.

5 The Order was memorialized in writing and entered on the docket on January

22, 2021.

-4- J-S20040-21

In each of her issues, which we will address together, Mother challenges

whether the trial court erred as a matter of law in determining that it lacked

subject matter jurisdiction pursuant to 23 Pa.C.S.A. §§ 5421, 5422, 5427, and

5428. First, Mother argues that the trial court erred in determining that it

lacked subject matter jurisdiction pursuant to section 5422 of the UCCJEA.

Brief for Appellant at 19. Mother claims that the trial court improperly ignored

the impact of Father’s contemptuous behavior on her inability to parent Child.

Id. at 20-22. According to Mother, she completed the requirements to receive

unsupervised visits with Child, but Father failed to respond to her or “discuss

expansion of custody.” Id. at 23. Mother asserts that the trial court did not

address whether “substantial evidence” exists in Pennsylvania. Id. at 24.

Mother next argues that the trial court erred in failing to analyze whether

it would otherwise have subject matter jurisdiction under section 5421. Id.

at 25. Mother acknowledges that Pennsylvania does not qualify as Child’s

“home state” within the 6 months preceding this action. Id. at 25-26.

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Bluebook (online)
Painter, W. v. Leakway, T., Counsel Stack Legal Research, https://law.counselstack.com/opinion/painter-w-v-leakway-t-pasuperct-2021.