McCoy v. Thresh

• Decision Date: 12 November 2004
• Citation: 862 A.2d 109
• Parties: William McCOY, Jr., Appellant, v. Yvonne D. THRESH, Appellee.
• Court: Pennsylvania Superior Court

862 A.2d 109

William McCOY, Jr., Appellant, v. Yvonne D. THRESH, Appellee.

Superior Court of Pennsylvania.

Submitted October 12, 2004.

Filed November 12, 2004.

Douglas G. Miller, Carlisle, for appellant.

Yvonne Thresh, appellee, Pro Se.

BEFORE: HUDOCK, GANTMAN, and BECK, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, William McCoy, Jr. ("Father"), asks us to determine whether the Cumberland County Court of Common Pleas erred when it declined to exercise jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act ("UCCJA")¹ and dismissed Father's custody complaint. We hold the court properly declined jurisdiction over the custody proceedings. Accordingly, we affirm.

¶ 2 The trial court has fully and correctly set forth the relevant facts and procedural history of this case as follows:

The parties are the parents of [C.W.M.], born May 14, 1996. From the time of birth until they separated in April of 2002, the parties lived with the child in California. The parties shared custody of the child in California from the date of separation until [Father] moved to Pennsylvania in March of 2003. By agreement of the parties, the child came to live with [Father] for the summer beginning on June 1, 2003. Rather than return the child at the end of the summer, [Father] enrolled him in school. [Father] testified that [Mother] came to Pennsylvania, removed the child from school, and returned with him to California on November 13 or 14, 2003. On November 19, 2003 [Mother] obtained an emergency order from the Superior Court of El Dorado County, California which granted her temporary custody. [Father] did not file the instant action until January 20, 2004 at which time he alleged:

Upon information and belief, [Mother] may have commenced a custody action in California, but to date [Father] has not been served with any complaint or other notice of any such proceeding.

[See Complaint, filed 1/20/04, at ¶ 19]. In point of fact, not only did [Father] have actual knowledge of the California action, he had retained California counsel to enter a special appearance to challenge the jurisdiction of the California courts.

A conciliation conference in the case at bar was scheduled for February 16, 2004. Mother contacted the conciliator from her home in California to advise that she could not attend. She further advised that she was attempting to retain counsel in Pennsylvania. The conference was held and the conciliator noted:

There may be an issue with respect to where this case should be litigated.... However, Mother has not taken any affirmative action to raise issues of jurisdiction or venue at this particular time. Accordingly, the conciliator feels this case should proceed through the system in Cumberland County with the scheduling of a hearing.

[See Conciliator's Report, filed 2/19/04, at 1].

After receiving the conciliator's report, [the trial court] scheduled a hearing for March 25, 2004. Only [Father] and his counsel appeared. At the hearing, [the trial court] had two major concerns with regard to jurisdiction: 1) whether valid service had been effectuated upon [Mother]; and 2) whether [the trial court's] exercise of jurisdiction was appropriate under the terms of the [UCCJA]. At the conclusion of testimony [the trial court] declined to exercise jurisdiction.

(Trial Court Opinion, dated July 9, 2004, at 1-3). This timely appeal followed.

¶ 3 Father raises the following two issues for our review:

WHERE NO CUSTODY ORDER IS IN EXISTENCE IN ANY JURISDICTION AND [FATHER] AND THE MINOR CHILD WERE RESIDING IN PENNSYLVANIA, DID THE [TRIAL] COURT COMMIT AN ERROR OF LAW OR ABUSE OF DISCRETION IN DENYING JURISDICTION?

A. SPECIFICALLY, WHERE THE MINOR CHILD WAS UNILATERALLY REMOVED FROM PENNSYLVANIA BY

[MOTHER] JUST PRIOR TO THE PASSING OF SIX MONTHS RESIDENCY, IS PENNSYLVANIA THE "HOME STATE" OF THE CHILD?

B. IN THE ALTERNATIVE, ARE THERE "SIGNIFICANT CONTACTS" FOR JURISDICTION IN PENNSYLVANIA WHERE THE CHILD WAS ENROLLED IN SCHOOL, ATTENDING CHURCH, AND RECEIVING MEDICAL CARE IN PENNSYLVANIA AND LIVING WITH [FATHER], WHO HAD RETURNED TO THE STATE TO LIVE AND WORK?

DID THE [TRIAL] COURT COMMIT AN ERROR OF LAW OR ABUSE OF DISCRETION IN DENYING [FATHER'S] COMPLAINT WHEN [MOTHER] FAILED TO APPEAR FOR THE HEARING AND REFUSES TO PROVIDE ACCESS FOR REGULAR CONTACT WITH THE MINOR CHILD?

(Father's Brief at 2).

¶ 4 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. See generally Zimbicki v. Zimbicki, 810 A.2d 168, 170 (Pa.Super.2002)

; Van Dyke v. Van Dyke, 722 A.2d 725 (Pa.Super.1998); Merman v. Merman, 412 Pa.Super. 247, 603 A.2d 201 (1992). 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. Favacchia v. Favacchia, 769 A.2d 531, 537 (Pa.Super.2001). An abuse of discretion requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures. Cohenour v. Cohenour, 696 A.2d 201 (Pa.Super.1997); Paulone v. Paulone, 437 Pa.Super. 130, 649 A.2d 691 (1994).

¶ 5 In his first issue, Father claims he offered substantial uncontested evidence that Pennsylvania was the child's "home state" under the UCCJA. Specifically, Father contends C.W.M. would have lived in Pennsylvania for the statutorily prescribed six-month period, but for Mother's "unilateral actions" of removing him from the jurisdiction and returning him to California. Father believes Mother's unilateral actions were intended to defeat Father's efforts and establish a forum beneficial to her, something that should not be condoned by this Court.

¶ 6 In the alternative, Father argues "significant contacts" with Pennsylvania justify the court's exercise of jurisdiction in the best interests of C.W.M. According to Father, C.W.M. attended school and church in Pennsylvania, has family members here, and desires to live in Pennsylvania. Although of shorter duration, Father contends the numerous contacts and relationships established in Pennsylvania are more beneficial to the child than those established in California. Father concludes the trial court erred in declining to exercise jurisdiction under either the "home state" or the "significant contacts" prong of the UCCJA and insists this case must be remanded for further proceedings. We cannot agree.

¶ 7 The issue of jurisdiction in this matter is governed by the UCCJA, which provides:

§ 5344. Jurisdiction

(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;

(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and

(ii) it is in the best interest of the child that the court assume jurisdiction; or

(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.

(b) Physical presence insufficient. — Except under subsection (a)(3) and (4), physical presence in this Commonwealth of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this Commonwealth to make a child custody determination.

(c) Physical presence unnecessary. — Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

23 Pa.C.S.A. § 5344(a)-(c). Section 5343 defines "home state" in relevant part as:

"Home state." 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. The home state is the preferred basis for jurisdiction pursuant to the UCCJA. Dincer v. Dincer, 549 Pa. 309, 701 A.2d 210 (1997).

¶ 8 Pennsylvania courts will not assume jurisdiction under the "significant contacts" principle unless it appears that no other state can assume jurisdiction under statutory prerequisites substantially similar to Pennsylvania law. Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056, 1060-61 (1983). A petitioner seeking jurisdiction under the less favored "significant contacts" principle has the burden of proving the asserted bases for jurisdiction, which can be a heavy burden "especially if he approaches the matter...