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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



                                      -2-
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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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