V.L.S. v. S.C.

Opinion

J-A21023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

V.L.S. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

S.C.

Appellee No. 661 EDA 2014

Appeal from the Order Entered January 30, 2014 In the Court of Common Pleas of Delaware County Civil Division at No(s): 2009-11738 -------------------------------------------------------------------------------------

Appellee No. 662 EDA 2014

Appeal from the Order Entered January 30, 2014 In the Court of Common Pleas of Delaware County Civil Division at No(s): 2011-10287

BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED NOVEMBER 12, 2014

V.L.S. (“Father”) appeals from the custody order in the Court of

Common Pleas of Delaware County entered on January 30, 2014, that ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A21023-14

denied his de novo appeal from the findings of the Master dated April 9,

2013, and denied his petition to vacate the Master’s recommended custody

order dated October 18, 2011. After careful review, we affirm.

In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth

the factual and procedural history in this case, which the testimonial and

documentary evidence supports. As such, we adopt it herein. See Trial

Court Opinion, 3/24/14, at 2–4.

We summarize the relevant background, as follows. On June 16,

2011,1 Mother filed an emergency complaint in custody with respect to the

parties’ children, L.T.S., a male, born in May of 1997, and C.M.S., a female,

born in June of 1998. At the time, a custody proceeding between the parties

was pending in the Richland County Court of Common Pleas in South

Carolina, where Father then resided, and where the parties, in 2003, had

obtained a divorce decree that incorporated a custody agreement. See Trial

Court Opinion, 3/24/14, at 2. By order dated June 17, 2011, the trial court

deemed Mother’s emergency complaint a petition to modify the existing

custody order and listed it with the Custody Master. Id. Following

communication between the respective trial courts regarding subject matter

jurisdiction, the Richland County Court of Common Pleas issued an order on ____________________________________________

1 The trial court’s Rule 1925(a) opinion contains a typographical error, stating that Mother filed the emergency complaint in custody on June 6, 2011.

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August 22, 2011,2 relinquishing jurisdiction and transferring the matter to

the Delaware County Court of Common Pleas (“transfer order”). Id. at 3.

On October 18, 2011, the Master held a hearing on Mother’s petition and

and issued a recommended custody order awarding Mother sole legal and

physical custody. See Temporary Custody Order, 10/18/11. The trial court

adopted the Master’s recommended order on October 20, 2011. Trial Court

Opinion, supra, at 3-4. The transfer order was registered in the Delaware

County Court of Common Pleas on May 14, 2012. Id. at 3.

On February 25, 2013, Father filed a petition to vacate the Master’s

recommended custody order of October 18, 2011. Father alleged that

Pennsylvania did not have jurisdiction to hold a hearing on any pleading filed

by Mother prior to the date of the transfer order. See Petition to Vacate, at

¶ 11. As such, Father requested that the Master’s recommended order

dated October 18, 2011 be vacated. On April 9, 2013, following a hearing,

the Master denied Father’s petition.

On April 17, 2013, Father requested a hearing de novo. The trial court

held a hearing on January 2, 2014, during which Father represented himself

pro se, and Mother was represented by counsel. By order dated January 21,

2014, and entered on January 30, 2014, the trial court denied Father’s de

____________________________________________

2 The order, a copy of which is included in the certified record, is dated August 22, 2011, and time-stamped August 23, 2011.

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novo appeal from the findings of the Master dated April 9, 2013, and denied

his petition to vacate the Master’s recommended order dated October 18,

2011. Father filed timely notices of appeal and concise statements of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).3

On appeal, Father presents the following issues for our review:

Whether the Trial Court Erred and Committed an Abuse of Discretion When it Entered its Order dated June 17, 2011 Denying Mother’s Emergency Petition, and Treating It Instead as a Petition to Modify Custody When It Lacked Jurisdiction to do so Under the UCCJEA and as such, the Resulting October 18, 2011 Order of Custody was Invalid[?]

Whether the Trial Court Erred and/or Committed an Abuse of Discretion when it Found that the August 22, 2011 South Carolina Order Transferring Jurisdiction was Effective Prior to the Date that it was Registered as a Foreign Custody Order on May 14, 2012[?]

Whether the Trial Court Erred and/or Committed an Abuse of Discretion When it Failed to Find That Mother and Her Counsel Committed Fraud Upon The Court When They Failed to Advise The Court In Their Emergency Petition For Custody Filed On June 16, 2011, that South Carolina Was Exercising Continuing and Exclusive Jurisdiction of the Custody Matter Under The Uniform Child Custody Jurisdiction and Enforcement Act (“The UCCJEA”)[?]

Whether the Trial Court Erred and/or Committed an Abuse of Discretion When it Denied Father’s De Novo Appeal of the October 18, 2011 Order[?]

3 The record reveals that the underlying custody matter has two separate docket numbers, which are not duplicative, and that the subject order was filed under both docket numbers. Father filed notices of appeal under both docket numbers, which this Court consolidated sua sponte.

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Father’s Brief, at 4.

In this appeal, Father challenges the trial court’s determinations

upholding the Master’s October 18, 2011, recommended custody order.

Specifically, Father contends that Pennsylvania did not have subject matter

jurisdiction until May 14, 2012, when the trial court registered the South

Carolina court’s order of August 22, 2011, relinquishing jurisdiction.

We begin with the appropriate standard of review, which is as follows:

[W]here [t]he issue for review centers on the question of subject matter jurisdiction....this question is purely one of law, our standard of review is de novo, and our scope of review is plenary.

B.J.D. v. D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011) (quotations and

citations omitted).4

4 We note that this appeal does not involve an appeal from an order exercising or declining to exercise jurisdiction. In such a case, we review for an abuse of discretion. See id. at 1082 n.1, citing Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005) (“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.”).

The confusion regarding the correct standard of review for an appeal is common where a party raises a question of law concerning jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). See S.K.C. v. J.L.C., 94 A.3d 402, 406–407 (Pa. Super. 2014) (“[W]e have imprecisely quoted this language [regarding an abuse of discretion standard] even when the question was not whether the trial court properly exercised (or declined to exercise) jurisdiction, but rather the question was whether the trial court actually possessed subject matter jurisdiction.”).

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Here, Father is claiming the trial court lacked jurisdiction under the

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 23

Pa.C.S. §§ 5401–5482. In making these arguments, Father cites 23 Pa.C.S.

§ 5423, which provides jurisdiction for a trial court to modify a child custody

determination made by a tribunal in a different state.5 See Father’s Brief at

13–14. Section 5423, in turn, references 23 Pa.C.S. § 5421, which

establishes subject matter jurisdiction before the courts of common pleas in

child custody matters.6 As such, Father’s challenge implicates the subject

5 Section 5423 provides, in pertinent part:

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) ….

23 Pa.C.S. § 5423(1). 6 Section 5421 provides, in pertinent part:

(a) General rule. --Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of (Footnote Continued Next Page)

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matter jurisdiction of the trial court. See S.K.C. v. J.L.C., 94 A.3d 402,

406-407 (Pa. Super. 2014) (footnotes omitted) (“The UCCJEA establishes

subject matter jurisdiction before the courts of common pleas in child

custody matters under various subsections of Title 23, including 23 Pa.C.S.A.

§ 5421 and 5422.”). Accordingly, we apply a de novo standard of review.

B.J.D. v. D.L.C., supra.

Turning to Father’s substantive arguments, Father argues that South

Carolina had exclusive and continuing jurisdiction over the parties’ custody

matter on June 17, 2011, when the trial court entered its order that treated

Mother’s emergency complaint as a petition to modify custody. Father _______________________ (Footnote Continued)

this Commonwealth has jurisdiction to make an initial child custody determination only if:

(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) ….

23 Pa.C.S. § 5421(a)(1), (a)(2).

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maintains the resulting October 18, 2011 recommended custody order of the

Master was therefore invalid. See Father’s Brief at 16. In his second,

related issue, Father argues the August 22, 2011 South Carolina transfer

order did not become a valid Pennsylvania order until May 14, 2012, when it

was registered in the trial court, and, therefore, the Master’s October 18,

2011 recommended custody order should have been vacated by the trial

court. See Father’s Brief at 20.

Upon careful review, we discern no basis upon which to disturb the

determination of the trial court that the Delaware County Court of Common

Pleas had subject matter jurisdiction when the Master entered the October

18, 2011, recommended custody order. We conclude that the trial court

applied the proper legal analysis to Father’s claims regarding subject matter

jurisdiction under the UCCJEA, and we therefore adopt the trial court’s

cogent Rule 1925(a) opinion as dispositive of Father’s first and second

issues. See Trial Court Opinion, 3/24/14, at 7–9, (concluding: “[E]ven

though the [August 22, 2011] South Carolina transfer Order was not

docketed in Delaware County, Pennsylvania until May 14, 2012,

Pennsylvania had jurisdiction through the UCCJEA effective the date that

South Carolina relinquished jurisdiction which was prior to the Master’s

October 2011 hearing date. Delaware County, Pennsylvania, therefore, had

jurisdiction to enter the Master’s Recommendations dated October 18, 2011

as an Order of Court on October 20, 2011.” Id. at 9).

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Next, we turn to Father’s third and fourth issues raised on appeal. In

Father’s third issue, he argues that the trial court erred and abused its

discretion by failing to find that Mother and her counsel committed fraud

upon the court by not including in the emergency complaint a provision

concerning the pending custody action in the Richland County Court of

Common Pleas. In this regard, Father also argues that the trial court erred

in refusing to admit a private journal entry authored by Mother in 2000.

In his fourth issue, Father argues that the trial court erred in denying

his de novo appeal of the findings of the Master dated April 9, 2013, because

he was denied a full and fair hearing de novo. Father admits that he “was

permitted to introduce evidence on January 2, 2014, in support of his

petition to vacate and demand for a de novo hearing,” but complains that

“Mother never testified,” and “[w]ithout Mother’s testimony or Father’s

ability to cross-examine Mother on the issue of the filing of her Emergency

Complaint for Custody, it was impossible for Father to prove his case with

respect to fraud.” Father’s Brief at 29.

The legal principles that guide our review of these issues are as

follows: First,

[w]ith regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand.

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Johns v. Cioci, 865 A.2d 931, 936 (Pa. Super. 2004) (citation omitted),

cited with approval in C.L. v. Z.M.F.H., 18 A.3d 1175, 1180 (Pa. Super.

2011). Moreover,

[q]uestions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.

In Re Adoption of D.M.H., 682 A.2d 315, 321 (Pa. Super. 1996) (citation

omitted), appeal denied, 690 A.2d 237 (Pa. 1997).

Finally, among the requirements of due process are notice, and an

opportunity to present evidence and to cross-examine opposing witnesses.

See generally, RESPA of Pa., Inc. v. Skillman, 768 A.2d 335, 339–340

(Pa. Super. 2001).

Based upon our review, we conclude the trial court has ably addressed

the third and fourth issues raised by Father. Therefore, we likewise adopt

the trial court’s well-reasoned Rule 1925(a) opinion as dispositive of the

arguments advanced by Father in support of the third and fourth issues

raised in this appeal. See Trial Court Opinion, 3/24/14, at 9–14, (Sections

B; C and subpart (b); and D) (opining: (1) Mother “did not ‘purposefully

conceal’ the jurisdictional issue, which was a matter of record apparent from

prior custody proceedings”7; (2) “a [private] journal entry authored by

7 Trial Court Opinion, 3/24/2014, at 10.

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[Mother] eleven years earlier whereby she remorsefully recounts how she

lies and needs to ‘cut out this cancerous growth’” 8 was too far removed in

time to be considered relevant and was properly excluded; and (3) Father

“had a full and fair de novo hearing on January 2, 2014, on his petition to

vacate,”9 following the findings of the Master dated April 9, 2013, on

Father’s Petition to Vacate).

Accordingly, we affirm.

Order affirmed.10

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/12/2014

8 Id. at 12. 9 Id. at 13. 10 In the event of further proceedings, the parties are directed to attach a copy of the trial court’s Rule 1925(a) opinion, dated March 24, 2014.

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