R.M. v. J.S.

• Decision Date: 06 May 2011
• Citation: 20 A.3d 496,2011 PA Super 98
• Parties: R.M., Appelleev.J.S., Appellantv.J.S., Appellee.
• Court: Pennsylvania Superior Court

20 A.3d 496

2011 PA Super 98

R.M., Appellee

v.J.S., Appellant

v.J.S., Appellee.

Superior Court of Pennsylvania.

Argued Feb. 15, 2011.Filed May 6, 2011.

Barbara B. Ernsberger, Pittsburgh, for appellant.Carol S. Mills–McCarthy, Pittsburgh, for R.M., appellee.BEFORE: BOWES, DONOHUE and SHOGAN, JJ.OPINION BY DONOHUE, J.:

J.S. (“Father”) appeals from the order entered on September 7, 2010 by the Allegheny County Court of Common Pleas, which dismissed his preliminary objections in a custody dispute. We vacate the order of the trial court and remand for further proceedings consistent with this Opinion.

Father and J.S. (“Mother”) married in May of 2000 and had one child, G.S. (“Child”), age 3. Throughout the marriage, Mother has suffered from mental illness and has been both voluntarily and involuntarily hospitalized for her condition.

In 2007, the family moved from Pennsylvania to Florida. In February of 2008, Mother moved out of the marital home and into her own apartment. In October of 2008, following a brief period of hospitalization, Mother informed Father that she wanted to visit her family in Pennsylvania. From October of 2008 through March of 2009, Mother and Child resided in Pennsylvania at the home of Child's maternal grandmother, R.M. (“Maternal Grandmother”). In March of 2009, Father drove Mother and Child back to Florida from Pennsylvania. The family lived together in Florida until August 22, 2009, when Mother desired to return to Pennsylvania.

On August 22, 2009, Father drove Mother and Child to Pennsylvania. Mother and Child stayed with either Maternal Grandmother or a friend of Mother's until September 14, 2009. At that time, Mother and Child moved into an apartment. In October of 2009, Father visited Mother and Child to celebrate Child's birthday in Pennsylvania. Father returned to Florida after his short visit. Over the course of the next several months, it appears that Mother suffered from mental health issues that required Maternal Grandmother to care for Child. According to information contained in Mother's and Maternal Grandmother's complaints for custody, Child lived with Maternal Grandmother from December 9, 2009 through December 24, 2009, and again from January 14, 2010 through March 5, 2010.

On January 31, 2010, Maternal Grandmother took Child to see Mother, at which time Mother had a “mental episode,” and would not let Maternal Grandmother leave the house with Child. CYF Dependency Petition, 2/25/10, at 1. Maternal Grandmother called the police, who in turn called Allegheny County Office of Children, Youth and Families (“CYF”). CYF obtained emergency custody of Child. A shelter hearing was held on February 5, 2010, at which time the trial court placed Child in Maternal Grandmother's home. Neither parent was in attendance—Father was not notified of the hearing, and Mother's whereabouts were unknown, as she left Forbes Regional Hospital against medical advice.

On February 27, 2010, Father received notice from CYF regarding a dependency hearing. In the dependency petition, CYF reported that it “had minimal information in regards to [Father] besides him moving to Florida 3 years ago,” and that Father “has not had any contact with [Child].” Id. at 2. At the dependency hearing, the juvenile court found Child not to be a dependent child and returned custody of Child to Father. Father and Child went home to Florida on March 5, 2010.

According to Father, on March 12, 2010, he received a complaint in support filed by Mother, which he stated was his first indication that she did not intend to return to their marriage. On April 8, 2010, Mother filed a complaint for custody of Child. On April 29, 2010, Maternal Grandmother filed a petition for standing to file a complaint for custody of Child, along with a complaint for custody of Child. That same day, the trial court issued an order granting Maternal Grandmother standing to file her complaint. On May 12, 2010, Father filed preliminary objections to Mother's complaint, challenging the jurisdiction of the trial court over the custody dispute. Father filed preliminary objections to Maternal Grandmother's complaint on May 17, 2010, again raising jurisdictional arguments and further arguing that Maternal Grandmother does not have standing to file a custody complaint. Subsequent to Mother and Maternal Grandmother filing their complaints for custody in Pennsylvania, Father filed for divorce from Mother and for custody of Child in Florida. That action was stayed pending the outcome of the matter in Pennsylvania.

On August 12, 2010, the trial court entered its order denying Father's preliminary objections without a hearing. The trial court entered an amended order on September 7, 2010, clarifying that the matter raises a substantial issue of jurisdiction, making the matter appealable as a matter of right pursuant to Pa.R.A.P. 311(b)(2).¹

On September 8, 2010, Father filed a timely appeal from the trial court's order, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2). In his brief on appeal, Father presents the following issues for review:

I. Whether the [trial court] erred when it denied the preliminary objections of [Father], as to the court's jurisdiction in both the custody action of [Mother] and the custody action of [Maternal Grandmother], and found the Commonwealth of Pennsylvania is the child's home state as defined in 23 Pa.C.S.A. § 5402.

II. Whether the [trial court] erred when it denied the preliminary objections of [Father] and, therefore, failed to decline to exercise jurisdiction of the court by reason of the unjustifiable conduct of both [Maternal Grandmother and Mother], pursuant to 23 Pa.C.S.A. § 5428(a)(2).

III. Whether the [trial court] erred when it did not conduct a hearing to receive evidence regarding the jurisdiction of the court where the preliminary objections of [Father] raised objections to both Mother [sic] and Maternal Grandmother's complaint for custody asserting that the State of Florida is the child's home state and, therefore, there were disputed facts as to the child's home state.

IV. Whether the [trial court] erred in denying the preliminary objections of [Father] which raised objections to Maternal Grandmother's standing to bring a custody action pursuant to 23 Pa.C.S.A. § 5312 and/or 23 Pa.C.S.A. § 5313 and granting Maternal Grandmother standing to bring an action for custody when there was a factual dispute as to the date of separation of the parents.

Father's Brief at 4–5.²

I. Home State

In his first issue on appeal, Father asserts that the trial court erred in dismissing his preliminary objections and concluding that Pennsylvania is Child's home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S.A. §§ 5401–5482. Father's Brief at 20–28. Father argues that, at the very least, a hearing was required as there are contested issues of fact regarding the trial court's jurisdiction to hear the custody matter. Id.

“Our standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law.” Stanley–Laman Group, Ltd. v. Hyldahl, 939 A.2d 378, 382 (Pa.Super.2007) (citation omitted). “In ruling on whether preliminary objections should have been granted, an appellate court must determine whether it is clear from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief.” R.M. v. Baxter ex rel. T.M., 565 Pa. 619, 624, 777 A.2d 446, 449 (2001) (citation omitted). Our standard of review for questions involving jurisdiction is as follows:

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.

Wagner v. Wagner, 887 A.2d 282, 285 (Pa.Super.2005).

The determination of jurisdiction in a custody dispute is governed by the UCCJEA, which provides, in relevant part:

§ 5421. Initial child custody jurisdiction

(a) General Rule.—Except as otherwise provided in section 5424 (relating to

temporary emergency jurisdiction), a court of 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) and:

(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and

(ii) substantial evidence is available in this Commonwealth concerning the child's care, protection, training and personal relationships.

(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or

(4) no court of any other...