Lucas v. Lucas

• Citation: 882 A.2d 523
• Parties: Janet Cottone LUCAS, Appellant, v. Curt LUCAS, Appellee.
• Decision Date: 23 August 2005
• Court: Superior Court of Pennsylvania

882 A.2d 523

Janet Cottone LUCAS, Appellant, v. Curt LUCAS, Appellee.

Superior Court of Pennsylvania.

Submitted May 2, 2005.

Filed August 23, 2005.

Brian J. Cali, Dunmore, for appellant.

Jan Kuha, Dickson City, for appellee.

Before: MUSMANNO, BOWES and TAMILIA, JJ.

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 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 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 (UCCJA)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 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. An abuse of discretion requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures.

McCoy v. Thresh, 862 A.2d 109, 112 (Pa.Super.2004) (citations omitted).

¶ 5 The parties do not dispute the trial court's finding that the UCCJA is applicable to this case. We agree with this conclusion. UCCJA Section 5344, Jurisdiction, provided, in pertinent part:

(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) this Commonwealth:

(i) is the home state of the child at the time of commencement of the proceeding; or

(ii) had been the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;

(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:

(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and

(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child;

(3) the child is physically present in this Commonwealth and:

(i) the child has been abandoned; or

(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; ...

23 Pa.C.S.A. § 5344(a). The clear language of the statute indicates that the bases for jurisdiction thereunder are alternative. Jurisdiction under the Act may be based on "home state jurisdiction," "significant contacts,"⁵ or "parens patriae" jurisdiction for those emergency situations where a child is abandoned, abused, or dependent. Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056, 1059 (1983); see also Shaw v. Shaw, 719 A.2d 359, 360 (Pa.Super.1998); 23 Pa.C.S.A. § 5344. The "home state" is the preferred basis for jurisdiction pursuant to the UCCJA. McCoy, supra, at 113, citing Dincer v. Dincer, 549 Pa. 309, 701 A.2d 210 (1997). Section 5343 defined "home state" in relevant part as: "The state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent, or in an institution, for at least six consecutive months...." 23 Pa. C.S.A. § 5343. There can be no question that the "home state" here is Ohio. The children had lived in Ohio for their entire lives and had resided in Pennsylvania for approximately one week when this action was filed in...