J-S45026-18


    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    R.S.M.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    L.K.M.                                     :   No. 319 MDA 2018

                Appeal from the Order Entered January 17, 2018
              in the Court of Common Pleas of Cumberland County
                       Civil Division at No(s): 2017-6957


BEFORE:      PANELLA, J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 21, 2018

        R.S.M. (“Father”) appeals from the order entered on January 17, 2018,

in the Court of Common Pleas of Cumberland County, granting the preliminary

objections filed by L.K.M. (“Mother”) and relinquishing jurisdiction of the child

custody litigation to King County, Washington. Upon review, we affirm.

        The trial court set forth the relevant procedural history, as follows.

        This case began in the State of Washington on June 2, 2017, when
        [Mother] filed a complaint for divorce, along with a claim for
        custody of her two children with [Father].[1] On June 27, 2017,
        Father then filed a complaint for divorce and custody in
        Cumberland County, Pennsylvania. Following that filing, and the
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 N.S.M. and E.S.M., both males, were born to the parties during their
marriage. They were five years old and sixteen months old, respectively, at
the time of the subject proceedings.
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        court being unaware that there was already a pending matter in
        Washington, a conciliation conference was held on August 23,
        2017, resulting in a Court Order of August 30, 2017.[2] Mother
        was not represented [by counsel] at this time.

        On November 3, 2017, Father filed a petition for contempt,
        seeking to return the children to Pennsylvania. Mother then hired
        counsel, who filed preliminary objections to the original complaint
        on November 27, 2017, challenging this [c]ourt’s jurisdiction, as
        well as claiming pendency of a prior action. Father’s counsel
        answered the preliminary objections on December 13, 2017, and
        a hearing was held on January 5, 2018.

Trial Court Opinion, 2/14/18, at 1.

        The testimonial evidence revealed that Father and Mother were married

in the State of Washington in 2014.            N.T., 1/5/18, at 9.   The older child,

N.S.M., was born in Pennsylvania. The younger child, E.S.M., was born in

Washington. Trial Court Opinion, 2/14/18, at 2. The trial court found that the

family presented as “very nomadic.” Id. at 3. The family lived in Washington

from March 2016 through October 2016.                Id.   The court found, “From

approximately October 2016 through April 2017, the family lived in Father’s

home in Carlisle, Pennsylvania[.]”3 Id. They returned to Washington in April

2017. N.T., 1/5/18, at 31. The court made the following factual findings

regarding the family’s connection to Washington:

        Mother has a teenage daughter who lives with her biological
        [f]ather in Washington. Mother and Father own four vehicles, at
        least two of which were bought and registered in Washington.
____________________________________________


2The parties agreed to the August 30, 2017 order, which granted them shared
physical and legal custody. Trial Court Opinion, 3/19/18, at 1.

3   Father purchased the home in 2004. N.T., 1/5/18, at 11.

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      Mother’s mother, Mother’s two brothers, her aforementioned
      teenage daughter, and an older son all live in Washington. Mother
      has been a resident of Washington since her birth in 1972.

      . . . The children’s doctor, a naturopath, is located in Washington.
      In 2016, all four members of the family had health insurance from
      Washington; Mother and the two children still have Washington
      health insurance. The Carlisle[, Pennsylvania] house, owned in
      Father’s name only, in which the family resided when they stayed
      in Pennsylvania, was placed for sale for approximately four
      months in 2016; Father testified that he removed the listing when
      he determined that it was overpriced and was not going to sell.
      At the time that the house was listed for sale, the family had
      discussed living in Washington for the next three years until
      Mother’s daughter graduated from high school. At the time of this
      discussion in March 2016, the family had moved many of their
      personal belongings out of the Pennsylvania house, driving it
      across the country to Washington.

      Father owns his own business . . . that was started in California,
      but then transferred to Wyoming. However, for the last several
      years, the business has been headquartered and registered in the
      State of Washington. The family and the business receive mail in
      Washington, although Father had the mail forwarded to
      Pennsylvania when the family was here. Father has his business
      bank account and one personal bank account in Washington, and
      two other personal bank accounts in Pennsylvania. Both Mother
      and Father have Washington driver’s licenses, though Father
      testified that he also has a Pennsylvania license.

Trial Court Opinion, 2/14/18, at 2-3.

      Following the testimonial evidence, the trial court consulted with the

Washington court. Id. at 1. By order dated January 16, 2018, and entered

on January 17, 2018, the trial court granted Mother’s preliminary objections

and “transferred jurisdiction back to Washington.” Id.




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       On January 22, 2018, Father filed a motion for reconsideration, which

the trial court denied.4 Father timely filed a notice of appeal on February 16,

2018. By order dated February 21, 2018, the trial court directed Father to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b) within 21 days, and he timely complied.5         The trial court filed its

opinion pursuant to Rule 1925(a) on March 19, 2018, wherein it incorporated

its opinion dated February 14, 2018.

       Father presents the following issues on appeal:

       1.   Whether Pennsylvania had jurisdiction in this case after the
       entry of the August 30, 2017 Cumberland County Custody
       Order[?]


____________________________________________


4  The trial court did not expressly grant reconsideration within 30 days of its
January 17, 2018 order as required by Pa.R.A.P. 1701(b)(3)(ii). However, the
court accepted Mother’s response to Father’s motion for reconsideration and
issued an order and opinion dated February 14, 2018, denying Father’s
motion. Nevertheless, Father timely filed a notice of appeal from the
underlying order. See Schoff v. Richter, 562 A.2d 912 (Pa. Super. 1989)
(trial court must expressly grant reconsideration within the time allowed for
filing an appeal in order to toll time for taking an appeal).

5 Father’s notice of appeal was defective because he failed to file his concise
statement of errors complained of on appeal contemporaneously as required
by Pa.R.A.P. 1925(a)(2)(i). See In re K.T.E.L., 983 A.2d 745, 747 (Pa.
Super. 2009) (holding that the failure to file a concise statement of errors
complained of on appeal with the notice of appeal will result in a defective
notice of appeal, to be disposed of on a case by case basis). However, Father
timely complied with the trial court’s order to file the concise statement. In
addition, no party has claimed that they were prejudiced as a result of Father’s
procedural misstep, and we are unaware of any prejudice. Therefore, we
conclude that Father’s error was harmless. Cf. J.P. v. S.P., 991 A.2d 904
(Pa. Super. 2010) (appellant waived all issues by failing to timely comply with
the trial court’s direct order to file a concise statement).


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      2.     Whether Mother’s Preliminary Objections should have been
      overruled as untimely after she had agreed to the entry of a
      Cumberland County Custody Order over three months prior to the
      filing of Preliminary Objections[?]

Father’s brief at 3-4.

      “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.” R.M. v. J.S., 20 A.3d 496, 500 (Pa. Super. 2011).

We review a court’s decision to exercise or decline jurisdiction according to an

abuse of discretion standard. See M.E.V. v. R.D.V., 57 A.3d 126 (Pa. Super.

2012). As we have explained, “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.” Id. at 129 (citation omitted).

      In his first issue, Father acknowledges that, pursuant to Section 5426

of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23

Pa.C.S. §§ 5401-5482, the trial court “should have reviewed the pleadings [at

the commencement of the custody action] to see that a child custody

proceeding had been commenced by Mother in the [Washington] [c]ourt, and

therefore stayed the [trial court] proceedings in order to allow the

[Washington] [c]ourt filing to proceed.”    Father’s brief at 13.   The statute

provides:

      § 5426. Simultaneous proceedings.




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       (a) General rule. — Except as otherwise provided in section
       5424 (relating to temporary emergency jurisdiction), a court of
       this Commonwealth may not exercise its jurisdiction under this
       subchapter if, at the time of the commencement of the
       proceeding, a proceeding concerning the custody of the child has
       been commenced in a court of another state having jurisdiction
       substantially in conformity with this chapter unless the proceeding
       has been terminated or is stayed by the court of the other state
       because a court of this Commonwealth is a more convenient forum
       under section 5427 (relating to inconvenient forum).

       (b) Stay; communication with other court. — Except as
       otherwise provided in section 5424, a court of this
       Commonwealth, before hearing a child custody proceeding, shall
       examine the court documents and other information supplied by
       the parties pursuant to section 5429 (relating to information to be
       submitted to court). If the court determines that a child custody
       proceeding has been commenced in a court in another state
       having jurisdiction substantially in accordance with this chapter,
       the court of this Commonwealth shall stay its proceeding and
       communicate with the court of the other state. If the court of the
       state having jurisdiction substantially in accordance with this
       chapter does not determine that the court of this Commonwealth
       is a more appropriate forum, the court of this Commonwealth shall
       dismiss the proceeding.

       ...

23 Pa.C.S. § 5426.6


____________________________________________


6 Father’s custody complaint, filed on the same date as his divorce action,
alleged, in part, “[Mother] filed a ‘Petition for Divorce (Dissolution)’ in King
County, Washington on June 2, 2017, docketed as Case No. 17-3-03364-6
SEA.” Complaint in Custody, 6/27/17, at ¶ 11. Father also alleged that Mother
has filed an “‘Immediate Restraining Order (Ex Parte)” in King County,
Washington on June 5, 2017, docketed under the Divorce filing.” Id. at ¶ 12.
Father then alleged that, “jurisdiction and venue are proper in the Court of
Common Pleas of Cumberland County. . . .” Id. at ¶ 13. To the extent that
Father asserts the parties supplied other information to the trial court
indicating that Mother had commenced a custody action in Washington, the
certified record does not include any additional information.


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        Although Father acknowledges that the trial court should not have

exercised its jurisdiction at the time he commenced the custody action “in

order to allow the [Washington] [c]ourt filing to proceed,” he contends that

Mother submitted to its jurisdiction by participating in the custody conciliation

conference and agreeing to the August 30, 2017 custody order. Specifically,

Father asserts in his first issue that Mother’s consent to the August 30, 2017

custody order conferred jurisdiction on the trial court pursuant to Section

5406.7

        We find it significant that, at the time of the custody conciliation

conference, Mother acted pro se, and Father was aware that she had

commenced the custody action in Washington on June 2, 2017. The trial court

emphasized that Mother hired counsel after Father filed the petition for

contempt in November 2017.               Mother’s counsel then filed the subject


____________________________________________


7   Section 5406 provides:

        § 5406. Effect of child custody determination.

        A child custody determination made by a court of this
        Commonwealth that had jurisdiction under this chapter binds all
        persons who have been served in accordance with the laws of this
        Commonwealth or notified in accordance with section 5408
        (relating to notice to persons outside Commonwealth) or who
        have submitted to the jurisdiction of the court and who have been
        given an opportunity to be heard. As to those persons, the
        determination is conclusive as to all decided issues of law and fact
        except to the extent the determination is modified.

23 Pa.C.S. § 5406.


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preliminary objections challenging the trial court’s jurisdiction, “as well as

claiming pendency of the prior action.” Trial Court Opinion, 2/14/18, at 1.

      In his second issue, assuming that Mother’s consent to the custody order

conferred jurisdiction on the trial court, Father asserts that the trial court

abused its discretion by not dismissing Mother’s preliminary objections as

untimely pursuant to Pa.R.C.P. 1915.5(a), which provides:

      (a) A party must raise any question of jurisdiction of the person
      or venue, and may raise any question of standing, by preliminary
      objection filed within twenty days of service of the pleading to
      which objection is made or at the time of hearing, whichever first
      occurs. No other pleading shall be required, but if one is filed it
      shall not delay the hearing.

         Note: The court may raise at any time a question of (1)
         jurisdiction over the subject matter of the action or (2) the
         exercise of its jurisdiction pursuant to § 5426 of the
         Uniform Child Custody Jurisdiction and Enforcement
         Act, relating to simultaneous proceedings in other
         courts, § 5427, relating to inconvenient forum, and §
         5428, relating to jurisdiction declined by reason of
         conduct. The Uniform Child Custody Jurisdiction and
         Enforcement Act, 23 Pa.C.S. § 5407, provides that, upon
         request of a party, an action in which a question of the
         existence or exercise of jurisdiction is raised shall be given
         calendar priority and handled expeditiously.

Pa.R.C.P. 1915.5(a) (emphasis added).

      Father provides no statutory or case law to support his argument that

Mother’s consent to the August 30, 2017 custody order conferred jurisdiction

on the trial court, nor are we aware of any. He asserts that M.E.V., supra,

“most closely resembles the facts of the instant case. . . .” Father’s brief at

19. In that case, this Court reversed the trial court’s order that overruled the


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father’s preliminary objections to a custody complaint filed by the mother.

The issue there was whether the trial court abused its discretion by failing to

contact the New Jersey court in accordance with Section 5426(b) due to

finding that the father did not commence a custody proceeding in New Jersey

as contemplated by Section 5426.      Specifically, the trial court found that

custody proceedings in New Jersey were neither scheduled nor pending, and

no initial child custody determination had been made. We reminded the trial

court that the UCCJEA defines “commencement” as “[t]he filing of the first

pleading in a proceeding.” 23 Pa.C.S. § 5402. Because the father in that case

had filed a custody pleading in New Jersey before the mother had filed a

custody pleading in Pennsylvania, we held that the trial court abused its

discretion under Section 5426 by exercising its jurisdiction and failing to

contact the New Jersey court.

      Father, however, distinguishes M.E.V. by baldly stating that the father

in that case “did not consent to the entry of a Pennsylvania Order, as Mother

did in the instant case.” Father’s brief at 20. We are unpersuaded. In fact,

we conclude that M.E.V. is controlling insofar as it held, pursuant to Section

5426, “a trial court MUST not exercise jurisdiction when another state has

jurisdiction[al] priority.” M.E.V., 57 A.3d at 129 (emphasis in original); see

also C.L. v. Z.M.F.H., 18 A.3d 1175, 1181-1182 (Pa. Super. 2011) (holding

that, where the trial court declined jurisdiction pursuant to Section 5426,

“whether or not [the] [m]other submitted to personal jurisdiction in the


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Commonwealth is irrelevant, as the controlling issue in this case challenges

whether subject matter jurisdiction exists in the trial court.”) (citing 23 Pa.C.S.

§ 5421(c) (“Physical presence of or personal jurisdiction over a party or a child

is not necessary or sufficient to make a child custody determination.”)).

      Likewise, we reject Father’s assertion that the trial court erred by not

dismissing Mother’s preliminary objections as untimely. Father alleges in his

brief that he served his custody complaint on Mother on July 20, 2017. She

filed preliminary objections on November 27, 2017.          Mother’s preliminary

objections were untimely. However, the trial court recognized, pursuant to

the note to Rule 1915.5, that it may raise at any time a question of the

exercise of its jurisdiction under Section 5426. Therefore, the trial court found

that the timeliness of Mother’s preliminary objections was irrelevant.        Trial

Court Opinion, 3/19/18, at 2. We agree.

      Even if Mother’s consent did not confer jurisdiction, Father argues that

the trial court, not the Washington court, had jurisdiction “substantially in

conformity with this chapter.”    See 23 Pa.C.S. § 5426(a) (“a court of this

Commonwealth may not exercise its jurisdiction under this subchapter if, at

the time of the commencement of the proceeding, a proceeding concerning

the custody of the child has been commenced in a court of another state

having jurisdiction substantially in conformity with this chapter. . . .”)

(emphasis added). Specifically, Father asserts that the trial court had initial

child custody jurisdiction at the commencement of his action pursuant to


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Section 5421(a)(1).8 Father contends the trial court had exclusive, continuing

jurisdiction under Section 5422 after it entered the August 30, 2017 order

either by Mother conferring jurisdiction by her consent or by the trial court

having initial child custody jurisdiction.9 As such, Father claims that the trial

court abused its discretion in transferring jurisdiction to the Washington court.


____________________________________________


8   Section 5421(a)(1) provides:

        § 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;

23 Pa.C.S. § 5421(a).

9   Section 5422 provides, in relevant part:

        § 5422. Exclusive, continuing jurisdiction.

        (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:




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        Regarding whether the trial court had initial child custody jurisdiction

pursuant to Section 5421(a)(1), we observe that Section 5402 defines “home

state” as “[t]he 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. . . . A period of temporary

absence of any of the mentioned persons is part of the period.” 23 Pa.C.S. §

5402.

        In this case, Mother and Father testified that they lived in Washington

from March 2016, until October 2016, at which time they returned to

Pennsylvania.      They remained in Pennsylvania until April 2017.         They

purchased round-trip airfare tickets to Washington, where they arrived at the

end of April 2017, with the intention of returning to Pennsylvania.        N.T.,

1/5/18, at 31. Mother unilaterally decided to stay in Washington with the

children and, on June 2, 2017, she initiated a divorce and custody action in



____________________________________________


        (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 parent 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.

23 Pa.C.S. § 5422(a).


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Washington. Id. at 31. Mother explained, “I realized that if I did not take a

step in the state where I believe we should be, where my [older] daughter is,

where I have family and friends and support, that I would be in this controlling,

abusive situation with my boys, and I took a step.” Id. at 31.

      The trial court concluded that Pennsylvania is not the “home state” of

the children. Trial Court Opinion, 2/14/18, at 6. Rather, it concluded that

Washington was the children’s “home state . . . interspersed with long

vacations to Pennsylvania.”    Id. at 6.      The court stated that because the

children “were not yet school-aged, these long vacations out-of-state were

still feasible.” Id. at n. 1. The court reasoned:

      Furthermore, the credible testimony of Mother clearly established
      that Washington was the Children’s “home”; it is where [the
      children] have friends, where they have a doctor, where they
      attend social activities, and where they spend significant time with
      family. Washington was also the “home” of Father’s business,
      including bank accounts and mail; this conclusion is clearly
      supported by Father’s testimony that he is in the process of
      moving the business, including its registration, from Washington
      to Pennsylvania. This [c]ourt finds that Washington was the home
      [s]tate of the children, interspersed with long vacations to
      Pennsylvania. This finding is further supported by the fact that
      the Pennsylvania house was placed for sale for several months in
      2016, and only removed due to the fact that Father determined
      that it was overpriced and would not sell. Clearly, the family,
      including Father, believed Washington State to be the family’s
      home.

Id. at 6 (footnote omitted).

      Significantly, Mother testified on direct examination that, since 2015,

Father has had a mailbox address in Redmond Fall City, Washington, and she

received mail at that address. N.T., 1/5/18, at 7-8. She testified that Father

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still receives mail there. Id. at 8. On redirect examination, Mother testified

that when they lived in Pennsylvania from October 2016 to April 2017, they

continued to receive mail at that Washington address.        Id. at 41-42.   In

addition, Mother testified that she maintained her Washington driver’s license;

her vehicle remained registered and insured in Washington; and she and the

children continued to have health insurance in Washington. Id. at 42. Based

on the totality of the record evidence, we discern no abuse of discretion by

the trial court in concluding that Washington was the “home state” of the

children interspersed with long but temporary absences in Pennsylvania.

Therefore, we reject Father’s assertion that the trial court had initial child

custody jurisdiction pursuant to Section 5421(a)(1).

      The trial court stated that its communication with the Washington court

“revealed that a child custody action had been commenced by Mother in

Washington, prior to the commencement of this Pennsylvania action by

Father.” Trial Court Opinion, 2/14/18, at 6. Further, because the Washington

court did not decline to exercise jurisdiction, and Pennsylvania is not the home

state of the children under Section 5421(a)(1), the trial court granted Mother’s

preliminary objections and relinquished jurisdiction to Washington.          We

discern no abuse of discretion or error of law pursuant to Section 5426.

Accordingly, we affirm the order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/21/2018




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