J-A29043-14
2014 PA Super 255
T.A.M., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
S.L.M. and D.M.S., :
:
Appellees : No. 844 WDA 2014
Appeal from the Order Entered April 21, 2014
in the Court of Common Pleas of Erie County
Civil Division at No(s): 13476-2013
BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED NOVEMBER 07, 2014
T.A.M. (Father) appeals from the order entered by the trial court
dismissing his complaint for custody after the trial court concluded that
Pennsylvania lacks jurisdiction to modify a custody determination. Upon
review, we vacate the order of the trial court and reinstate Father’s
complaint for custody.
S.L.M. (Mother) and Father are the natural parents of Child, who was
born in September of 2004. Mother and Father, both of whom lived in
Tennessee, were separated, and the two shared custody pursuant to an
order entered in Tennessee. It is undisputed that on February 28, 2011,
Mother dropped Child off at Father’s residence, and Mother has not been
seen since. Furthermore, it is undisputed that police are actively
* Retired Senior Judge assigned to the Superior Court.
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investigating Mother’s disappearance as a homicide, and Father is
considered a person of interest in the case. D.M.S. (Maternal Grandmother),
a resident of Erie County, Pennsylvania, initiated a custody action, shortly
thereafter, in Tennessee to obtain custody of Child. After a trial, the
Tennessee court granted Maternal Grandmother custody of Child, and Child
was permitted to relocate to Maternal Grandmother’s residence in Erie
County, Pennsylvania. Child has lived there since that time.
Father was permitted to have supervised visits with Child under the
supervision of his parents (Paternal Grandparents). On October 11, 2012,
Maternal Grandmother filed an emergency motion to suspend Father’s
visitation. In that motion, Maternal Grandmother alleged that Father and
Paternal Grandmother urged Child to burn down Maternal Grandmother’s
home and provided matches to assist Child in doing so. A hearing was
conducted in Tennessee; the trial court found Child’s testimony about the
incident credible and suspended visitation.
On December 6, 2013, Father filed a complaint for custody of Child
against Mother and Maternal Grandmother in Erie County, Pennsylvania. In
the complaint, Father alleged that Pennsylvania should assume jurisdiction
of this case because he has resided in Palm City, Florida since June of 2013,
Maternal Grandmother and Child have resided in Pennsylvania since 2011,
and Mother’s whereabouts are unknown.
A custody trial was scheduled for March 10, 2014. On
March 6, 2014, Maternal Grandmother filed an Amended Pre-
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Trial Narrative Statement indicating a challenge to jurisdiction
and attaching a Motion to Review Visitation and Child Support
filed in the Tennessee Court. The Motion was scheduled for
hearing on April 10, 2014 in Tennessee. On the morning of
March 7, 2014, [the Erie County trial court] received from Judge
Lee Russell, Circuit Judge for the Seventeenth Judicial District of
Tennessee, correspondence which indicated that, along with the
Motion to Review Visitation and Child support, Judge Russell
received a copy of Father’s Complaint for Custody filed in
Pennsylvania. In his correspondence, Judge Russell explained
that Father’s representation to [the trial court] of the Tennessee
court’s “willingness to defer jurisdiction to Pennsylvania” was a
misrepresentation. As a result, [the trial court] entered a March
7, 2014 Order staying the Custody Trial in order to give the
Tennessee Court the opportunity to address its continuing
jurisdiction at the April 10, 2014 hearing.
Subsequent to the April 10, 2014 hearing date, [the trial
court] contacted the Tennessee Court and confirmed that the
April 10, 2014 hearing went forward as scheduled and that no
order was entered to relinquish jurisdiction of custody.
On April 21, 2014, [the trial court] issued its Order
dismissing Father’s Complaint for Custody. As detailed in the
April 21st Order, the Tennessee Court has not relinquished
jurisdiction and [the trial court] lacks jurisdiction to modify the
Tennessee Court’s child custody determination.
Trial Court Opinion, 6/4/2014, at 2 (footnote omitted; citations omitted).
Father timely filed a notice of appeal, along with a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). On
appeal, Father presents two issues for our review.
1. Did the [trial court] misapply the law in dismissing a
Custody Complaint filed by [Father] in the location defined by
law as the Home State of [Child] merely because the former
home state judge declined to “relinquish jurisdiction?”
2. Did the [trial court] err in not recognizing Pennsylvania
as the most appropriate jurisdiction to adjudicate custody of
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[Child] regardless of the Home State issue and the existing
Tennessee custody action?
Father’s Brief at 4 (suggested answers omitted).
We are guided by the following standard of review.
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) (quoting Lucas
v. Lucas, 882 A.2d 523, 527 (Pa. Super. 2005) (citation omitted)).
It is undisputed that this matter is governed by the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), 23 Pa.C.S. §§ 5401-
5482. Specifically, the issue of interstate jurisdiction to modify a custody
determination is governed by section 5423, which provides the following.
Except as otherwise provided in section 5424 (relating to
temporary emergency jurisdiction), a court of this
Commonwealth may not modify a child custody determination
made by a court of another state unless a court of this
Commonwealth has jurisdiction to make an initial determination
under section 5421 (a)(1) or (2)[1] (relating to initial child
custody jurisdiction) and:
1
This statute provides the following.
(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:
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(1) the court of the other state determines it no
longer has exclusive, continuing jurisdiction under
section 5422 (relating to exclusive, continuing
jurisdiction) or that a court of this Commonwealth
would be a more convenient forum under section
5427 (relating to inconvenient forum); or
(2) a court of this Commonwealth or a court of
the other state determines that the child, the
child’s parents and any person acting as a
(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;
23 Pa.C.S. §5421(a)(1) and (2).
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parent do not presently reside in the other
state.
23 Pa.C.S. § 5423 (emphasis added; footnote added).
The trial court analyzed these statutes as follows.
[The trial court] is prohibited from modifying Tennessee’s
custody determination unless Pennsylvania has initial child
custody jurisdiction and either (1) Tennessee determines that it
no longer has exclusive, continuing jurisdiction or that
Pennsylvania would be a more convenient forum; or (2)
Pennsylvania determines that all parties have moved away from
the initial decree state.
Considering Judge Russell’s March 6, 2014 correspondence
in conjunction with his decision to proceed with the Motion to
Review Visitation and Child Support filed in the Tennessee Court,
it is clear beyond argument that Tennessee has not relinquished
jurisdiction of the case. More specifically, the Tennessee Court
has not determined either that it no longer has exclusive,
continuing jurisdiction or that Pennsylvania would be a more
convenient forum.
It is further clear that [the trial court] cannot make a
finding that all parties have moved away from Tennessee…. [The
trial court] is incapable of entering a finding that Mother does
not presently reside in Tennessee.
Trial Court Opinion, 6/4/2014, at 4.
We hold that the trial court abused its discretion in concluding that it
cannot make the determination that “Mother does not presently reside in
Tennessee.” Id. As Father points out, Mother’s
missing status and, as the Tennessee court asserted, the
likelihood of her demise, was the only basis for [Maternal
Grandmother] to have any standing to obtain custody. [Mother]
is not an actual party in either proceeding, and the prospect that
she may still be alive and in Tennessee cannot be the basis to
maintain that state’s jurisdiction, as a parent who has been
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missing for 3 years does not have “a significant connection” to
that state[.]
Father’s Brief at 11.
The comment to the section 5423 makes clear,
[t]he modification state is not authorized to determine that the
original decree state has lost its jurisdiction. The only
exception is when the child, the child’s parents, and any
person acting as a parent do not presently reside in the
other state. In other words, a court of the modification state
can determine that all parties have moved away from the
original state.
23 Pa.C.S. § 5423 (Comment) (emphasis added).
This important exception to section 5423 is consistent with the
UCCJEA’s effort to prioritize a child’s home state as being the preferred basis
for jurisdiction. See R.M. v. J.S., 20 A.3d 496 (Pa. Super. 2011). The
UCCJEA defines “home state” as:
The state in which a child lived with a parent or a person acting
as a parent for at least six consecutive months immediately
before the commencement of a child custody proceeding. In the
case of a child six months of age or younger, the term means
the state in which the child lived from birth with any of the
persons mentioned. A period of temporary absence of any of the
mentioned persons is part of the period.
23 Pa.C.S.A. § 5402.
Instantly, there is no question that Pennsylvania is Child’s home state.
She has been living with Maternal Grandmother in Pennsylvania for three
years. At this point, all evidence related to Child’s well-being is in
Pennsylvania. Moreover, based on the sad circumstances of this case, it is
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likely that Mother currently does not reside in Tennessee, or possibly any
state at all.
Thus, Pennsylvania is the home state pursuant to section 5421. No
parent or person acting as a parent still resides in Tennessee (Maternal
Grandmother resides in Erie, Father resides in Florida, and Mother has not
been heard from since February 28, 2011 and may well be dead).
Therefore, under section 5423, a Pennsylvania court has jurisdiction to
modify the order of the Tennessee court.2 See J.K. v. W.L.K., __ A.3d __,
2014 WL 5040279 (Pa. Super. filed October 14, 2014).
Order vacated. Father’s complaint for custody reinstated. Case
remanded for proceedings consistent with this opinion. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2014
2
Maternal Grandmother asserts that Father is judge-shopping, willing to
play an away game in the home court of Maternal Grandmother, just to get
away from Judge Lee Russell, the Tennessee judge who has found Father to
be a despicable individual. The judge-shopping charge may well be true, but
it is irrelevant to the jurisdictional issue. Moreover, we have no doubt that
the courts of this Commonwealth are fully capable of discerning the facts
applicable to Child’s best interests.
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