Kriebel v. Kriebel

• Decision Date: 19 December 2002
• Citation: 812 A.2d 579,571 Pa. 356
• Parties: Cynthia L. KRIEBEL, Now Cynthia L. Lundeen, Appellee, v. Gary A. KRIEBEL, Appellant.
• Court: Pennsylvania Supreme Court

812 A.2d 579

571 Pa. 356

Cynthia L. KRIEBEL, Now Cynthia L. Lundeen, Appellee, v. Gary A. KRIEBEL, Appellant.

Supreme Court of Pennsylvania.

Argued March 5, 2002.

Decided December 19, 2002.

Joanne Ross Wilder, Elisabeth K. Pride, Pittsburgh, for Gary A. Kriebel.

Serena Michele Newsom, Gary G. Gentile, Pittsburgh, for Cynthia L. Kriebel, now Cynthia L. Lundeen.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION

Justice NEWMAN.

The issue presented in this case is whether the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (PKPA), is the controlling authority in determining if Pennsylvania has continuing jurisdiction of a custody matter where Pennsylvania courts had initial jurisdiction, but the custodial parent has moved the children to another state and the non-custodial parent remains in Pennsylvania.

Facts and Procedural History

Appellee, Cynthia L. Kriebel (Mother) and Appellant, Gary A. Kriebel (Father) were married on July 5, 1980 and separated in May of 1993. They were divorced on July 18, 1997. The parties have three children: Nicholas, born March 3, 1983, Christian, born June 14, 1985, and Caitlin, born October 9, 1989. Approximately one year after separation, on May 12, 1994, Mother filed a Complaint in Divorce in the Court of Common Pleas of Clarion County (trial court) seeking spousal and child support, equitable distribution and custody. In October of 1994, Mother indicated her desire to move to North Carolina with the three children. The parties entered into a stipulation in which, inter alia, Father agreed to the move and to pay directly to Wife $6,000 per month in child support. The stipulation became an Order of Court on October 26, 1994. Mother and the children moved to North Carolina shortly thereafter, and Father remained in Clarion County.

In May of 1997, Father filed a Motion for a Custody Conciliation Conference based on the custody count in Mother's divorce complaint.¹ On May 16, 1997, the trial court scheduled a custody conciliation for June 19, 1997. One week before the scheduled conciliation, Mother filed a Complaint for Custody in Orange County, North Carolina. On June 13, 1997, she also filed preliminary objections in Clarion County, asserting that Pennsylvania lacked jurisdiction regarding custody. However, on July 10, 1997, the parties reached an interim agreement regarding physical custody of the children that they entered with the Pennsylvania and North Carolina courts. The agreement provided that it did not constitute a wavier of either party's right to challenge jurisdiction in the Pennsylvania or North Carolina custody proceedings.² On May 13, 1998, Father filed a Petition for Special Relief with the trial court in which he sought partial physical custody of the children. Mother then requested briefing and argument on the preliminary objections that she filed in June of 1997. On June 5, 1998, the trial judge held a telephone conference with the North Carolina judge. They agreed that the Pennsylvania hearing on Father's request for custody would go forward that day without deciding the issue of jurisdiction. The trial court entered a partial custody order at the June 5, 1998 hearing, and then entertained argument on jurisdiction. By Opinion and Order filed June 12, 1998, the trial court determined that Pennsylvania retained jurisdiction. The court noted that pursuant to the Pennsylvania Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. §§ 5341-5366 (UCCJA), North Carolina is the home state of the children. However, it held that "it is in the best interest of the children that the Commonwealth of Pennsylvania retain continuing jurisdiction in this custody action because father and the children have significant contacts with Pennsylvania, and more significantly, Clarion County provides the optimum access to the relevant evidence concerning the issue at [sic] father's partial custody." Trial Court Opinion dated June 12,1998 at 2.

Mother then filed a Motion to Modify Custody in North Carolina. On July 20, 1998, the North Carolina District Court (trial court) issued an Order refusing to consider the motion because it determined that the Pennsylvania Order of June 5, 1998 was entitled to full faith and credit. Mother appealed this decision to the North Carolina Court of Appeals (an intermediate appellate court). While the appeal was pending, Father filed a Motion for Custody Hearing in Pennsylvania, and the matter was scheduled for June 29, 1999. On June 1, 1999, the North Carolina Court of Appeals vacated the July 20, 1998 Order and remanded the matter to the District Court in light of its decision in Potter v. Potter, 131 N.C.App. 1, 505 S.E.2d 147 (1998), in which it construed the PKPA and the Uniform Child Custody Jurisdiction Act (UCCJA). Mother then sought an immediate continuance of the June 29, 1999 Pennsylvania hearing. Four days before that hearing, on June 25, 1999, the North Carolina District Court entered an Order confirming that it had "jurisdiction over all questions of child custody and visitation in this matter." Counsel for Mother appeared at the June 29, 1999 hearing in Pennsylvania to argue Mother's Motion for Continuance. Following argument, the trial court determined that Pennsylvania continued to have jurisdiction. Once the court made this decision, counsel for Mother excused herself from the courtroom. The trial court then issued an Order consistent with the parties' previous custody agreement.

Mother filed an appeal to the Superior Court, which reversed the Order of the trial court. The Superior Court did not engage in an analysis based on the PKPA. However, it held that the children did not have sufficient contacts with Pennsylvania for this Commonwealth to assert continuing jurisdiction of the instant custody matter. On appeal to this Court, the sole issue raised by Father is whether the PKPA is the controlling authority in determining whether Pennsylvania retains jurisdiction.

Discussion

This Court has noted that we rely upon the PKPA and UCCJA when reviewing the jurisdiction of courts to render custody determinations. In re N.M.B., 564 Pa. 117, 764 A.2d 1042 (2000). The PKPA provides in relevant part:

Full faith and credit given to child custody determinations

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of this section, any custody determination or visitation determination made consistently with the provisions of this section by a court of another State.

...

(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if—

(1) such court has jurisdiction under the law of such State; and

(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;

(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

(d) The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

(e) Before a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.

(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—

(1) it has jurisdiction to make such a child custody determination; and

(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.

(h) A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to

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