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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.M.H., : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
:
v. :
:
J.K., M.K., JR., J.E. AND P.E. :
:
:
: No. 951 MDA 2016
Appeal from the Order Entered May 12, 2016
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2014-00115
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY DUBOW, J.: FILED JANUARY 31, 2017
Appellant, A.M.H. (“Appellant”), appeals from the May 12, 2016 Order
denying her Petition to Modify Custody and Petition for Special Relief with
respect to her daughter, five-year-old A.K. (“Child”). We vacate the Order
and remand.
Child’s biological parents are both deceased; and Appellant is Child’s
biological paternal aunt who later adopted Child. On May 1, 2014, prior to
Appellant adopting Child, Appellant, Child’s paternal grandparents, J.K. and
M.K., Jr. (“Paternal Grandparents”), and Child’s maternal grandparents, J.E.
and P.E. (“Maternal Grandparents”) entered into a custody agreement. On
*
Retired Senior Judge assigned to the Superior Court.
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May 14, 2014, by stipulation of all parties, the custody agreement was made
an Order of court.1
In December of 2014, Appellant and her husband, J.H., adopted Child.
N.T., 9/21/15, at 17. On July 21, 2015, Appellant filed a Petition to Modify
Custody Order, in which she sought to eliminate Maternal Grandparents’
partial physical custody or, in the alternative, to allow them to exercise
partial physical custody on a supervised basis only. On the same day,
Appellant also filed a Petition for Special Relief, in which she requested that
Maternal Grandparents’ partial physical custody be immediately ended
pending further order of the court.
On September 21, 2015, following an evidentiary hearing, the trial
court denied Appellant’s petitions and instructed the parties to comply with
the prior Custody Order of May 14, 2014. Appellant filed a timely notice of
appeal and complied with Pa.R.A.P. 1925. On April 18, 2016, this Court
vacated the September 21, 2015 Custody Order and remanded the case with
instructions for the trial court to consider the custody factors provided in 23
Pa.C.S. § 5328(a). A.M.H. v. J.K. et al., 1842 MDA 2015 (Pa. Super. filed
Apr. 18, 2016). In a Supplemental Opinion and Order filed May 12, 2016,
the trial court addressed the custody factors in Section 5328 and reaffirmed
its September 21, 2015 Custody Order.
1
The Order granted Appellant primary physical custody and sole legal
custody of Child. The Order granted both Maternal Grandparents and
Paternal Grandparents periods of partial physical custody.
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Appellant timely appealed and complied with Pa.R.A.P. 1925, raising
six issues, including the following threshold issue:
Whether the trial court committed an abuse of discretion and
erred as matter of law by failing to [o]rder that the
indispensable party [J.H.], adoptive father of the minor child,
be joined in the proceedings below?
Appellant’s Brief at 3.
On November 9, 2016, we remanded this case for the trial court to
determine whether J.H. is Child’s adoptive father. On December 19, 2016,
Appellant and Maternal Grandparents’ stipulated that J.H. is Child’s adoptive
father.
We now address whether the trial court abused its discretion when it
failed to order that J.H. be joined in the custody proceedings. Appellant’s
Brief at 3.
An indispensable party is one who has rights so directly connected with
and affected by the litigation that he must be a party to protect such rights.
Columbia Gas Transmission Corporation v. Diamond Fuel Company,
346 A.2d 788, 379 (Pa. 1975). His or her “absence renders any order or
decree of court null and void for want of jurisdiction.” Id. The issue of lack
of subject matter jurisdiction may be raised at any time, even for the first
time on appeal. In re Patterson's Estate, 19 A.2d 165, 166 (Pa. 1941).
Our rules of civil procedure provide, in relevant part, that “[i]f the
court learns from the pleadings or any other source that a parent . . . is not
a party to the action, it shall order that the person be joined as a party.”
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Pa.R.C.P. 1915.6(a)(1). The explanatory comment clarifies that “[t]he
position taken by the rules is that a person in physical custody of the child
and a parent . . . are necessary parties to a custody determination.”
Pa.R.C.P. 1915.6 cmt.
J.H. is Child’s adoptive father and, therefore, he is a necessary party
to this custody proceeding pursuant to Pa.R.C.P. 1915.6. Because J.H. was
not joined in the custody proceeding, the trial court lacked jurisdiction and
the Order is null and void. See Columbia Gas Transmission
Corporation, supra; Pennsylvania Fish Comm’n v. Pleasant Twp., 388
A.2d 756, 759 (Pa. Cmwlth. 1978). As such, we are vacating the May 12,
2016 Order, remanding this case, and ordering the trial court to join J.H. as
a necessary party prior to conducting additional proceedings. In light of our
disposition, we decline to address Appellant’s other issues.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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