Wagner v. Wagner

• Decision Date: 07 November 2005
• Citation: 887 A.2d 282
• Parties: Mark T. WAGNER, Appellee, v. Erin M. WAGNER, Appellant.
• Court: Pennsylvania Supreme Court

887 A.2d 282

Mark T. WAGNER, Appellee, v. Erin M. WAGNER, Appellant.

Superior Court of Pennsylvania.

Argued September 20, 2005.

Filed November 7, 2005.

John E. Calior, Hermitage, for appellant.

John K. Whalen, Mercer, for appellee.

Before: McCAFFERY, POPOVICH and JOHNSON, JJ.

OPINION BY POPOVICH, J.:

¶ 1 Erin M. O'Donnell, formerly Erin M. Wagner, (Mother) appeals the orders entered on December 28, 2004, in the Court of Common Pleas of Mercer County, that awarded temporary custody of her minor children to the children's father, Mark T. Wagner (Father), while she is on military duty in Iraq, denied her petition to stay the matter, and denied her petition to transfer the matter to her home state of Florida. Upon review, we reverse.

¶ 2 The relevant facts and procedural history of this case are as follows: Mother and Father are the parents of Mark Wagner, Jr. (DOB 5/28/1995), and Ariel Wagner (DOB 7/22/1997). Mother and Father were divorced by the Mercer County Court of Common Pleas. On March 11, 2002, following the parties' divorce, Mother obtained primary physical custody of the parties' two minor children. Mother and Father have shared legal custody of the minor children. After the divorce, Mother, a member of the United States Army Reserve, resided in Greensburg, Pennsylvania, with her children. Mother is domiciled in the state of Florida, and she retains a mailing address, drivers' license, and voter registration in that state. In November, 2004, Mother moved from Greensburg, to her new duty station in Fort Dix, New Jersey, and she moved the children to the state of Florida to stay with her stepmother. The United States Army assigned Mother to Fort Dix to undergo training for an impending duty assignment in Iraq.

¶ 3 Father, a resident of Warren, Ohio, commenced this action on November 19, 2004, in the Mercer County Court of Common Pleas by filing an emergency petition that sought the return of the children from the state of Florida to Pennsylvania and an award of temporary primary physical custody of the children during Mother's deployment overseas. On that same day, the trial court entered an ex parte order that directed Mother to refrain from removing the children from this Commonwealth or to return the children if she had, in fact, removed them from the Commonwealth. The order also granted temporary primary physical custody to Father in the event that Mother would be deployed for an extended period outside the Commonwealth. Lastly, the order issued a rule to show cause upon Mother why Father should not be granted primary physical custody while Mother was deployed overseas. The trial court made the rule returnable at a hearing to be held on December 1, 2004.

¶ 4 On November 29, 2004, Mother filed a "motion to vacate" the trial court's November 19, 2004 order. In the motion, Mother asserted that she was already on active duty with the United States Army and that she was stationed in Fort Dix while she trained for deployment to Iraq. Mother's motion requested that the trial court stay the proceedings pursuant to the Servicemembers' Civil Relief Act, 50 U.S.C. Appx. § 501, et seq. Rather than rule on the motion immediately, the trial court withheld judgment on the motion until the hearing scheduled for December 1, 2004.

¶ 5 Neither party was present at the December 1, 2004 hearing, but they were represented by counsel. During the hearing, the trial court learned that Mother, in fact, had access to video conferencing equipment at Fort Dix and, therefore, could participate at a hearing on Father's emergency petition. Consequently, the trial court granted a temporary stay of the proceedings until conclusion of the hearing, and it scheduled a hearing for December 20, 2004, whereupon the trial court would adjudicate both Mother's and Father's motions.

¶ 6 Prior to the December 20, 2004 hearing, Mother filed a motion to transfer the case to the state of Florida. Mother's motion asserted, inter alia, that the trial court lacked jurisdiction over the parties because the parties (and the children) did not reside in Pennsylvania. The trial court also withheld adjudication of this motion until the December 20, 2004 hearing.

¶ 7 The trial court conducted the hearing on December 20, 2004. The trial court conducted an additional hearing on December 23, 2004. Father was present for both hearings, and Mother participated in the hearings via two-way video conference. On December 28, 2004, following the hearings, the trial court denied Mother's motion to stay the proceedings and her motion to transfer the case to the state of Florida. The trial court granted Father temporary primary physical custody of the children while Mother was deployed for military duty overseas.

¶ 8 Mother filed a timely notice of appeal to this Court on January 19, 2005. The trial court ordered Mother to file a concise statement of matters complained of on appeal, and she complied. Thereafter, the trial court authored an opinion that addressed the issues presented in Mother's concise statement.

¶ 9 Mother presents the following issues for our review:

1. Whether the [trial court] had jurisdiction to hear the case?

2. Whether the [trial court] should have granted a permanent stay under the Servicemembers' Civil Relief Act?

Mother's brief, at 4.

¶ 10 Before we analyze Mother's issues, we must first consider whether the trial court's "temporary" custody order of December 28, 2004, was a final, appealable order. See Mensch v. Mensch, 713 A.2d 690, 691 (Pa.Super.1998) (Superior Court may assess its jurisdiction to hear an appeal sua sponte). Generally, a custody order will be considered final and appealable only if it is both: (1) entered after the court has completed its hearings on the merits; and (2) intended by the court to constitute a complete resolution of the custody claims pending between the parties. See G.B. v. M.M.B., 448 Pa.Super. 133, 670 A.2d 714, 720 (1996).

¶ 11 In the present case, the trial court issued its order at the completion of the initial hearings, but its December 28, 2004 order stated "in the event [Mother] is not returned or assigned by the military to Greensburg, Pennsylvania, then there shall be a hearing held at [Mother's] request to address where she will be residing[...]." Thus, the possibility exists that further hearings in this case will occur and, therefore, that the custody order is not final. See, e.g., G.B., 670 A.2d at 720. Nevertheless, in Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244, 1247 (1985), we held that a custody order that anticipates future hearings that could take place on application of one of the parties is a final, appealable order. The language of the order in this case indicates that the trial court concluded its review of the issues and that it was advising Mother that she could seek review and modification of the order after her return from deployment in Iraq. Consequently, it is clear that the order merely anticipates future custody hearings that could take place via Mother's application. Accordingly, the order is final, and we will proceed to a review of the merits of Mother's issues. See Parker, 496 A.2d at 1247.

¶ 12 Mother contends first that the trial court did not have jurisdiction over this case because the trial court did not meet the jurisdictional criteria set forth in the Uniform Child Custody Jurisdiction and Enforcement Act, 23 Pa.C.S.A. §§ 5401-5482 (UCCJEA). Our standard of review for this issue 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.

Lucas v. Lucas, 2005 PA Super 301, 4, 882 A.2d 523 (citation omitted).

¶ 13 We note that this case presents this Court with an appeal from a modification of a child custody order. All parties agree that the trial court possessed jurisdiction to enter the initial child custody order of March 11, 2002. In cases involving modification of child custody orders within the ambit of the UCCJEA, a court must first determine whether it has "exclusive, continuing jurisdiction" over the child custody order. See 23 Pa.C.S.A. § 5422(a). Section 5422 of the UCCJEA sets forth the following test to determine whether a trial court retains "exclusive, continuing jurisdiction" over its initial child custody order:

(a) GENERAL RULE.—Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) or 5423 (relating to jurisdiction to modify determination) has exclusive, continuing jurisdiction over the determination until:

(1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent¹ have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child's care, protection, training and personal relationships; or

(2) a court of this Commonwealth or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this Commonwealth.

(b) MODIFICATION WHERE COURT DOES NOT HAVE EXCLUSIVE, CONTINUING JURISDICTION. — A court of this Commonwealth which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to...