J-A03024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIN PATRICIA TOKASH                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JEFFREY LAWRENCE TOKASH

                        Appellant                   No. 879 EDA 2015


                 Appeal from the Order February 24, 2015
              In the Court of Common Pleas of Bucks County
                Civil Division at No(s): A06-12-61573-D-36



BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY MUNDY, J.:                              FILED May 11, 2016

      Appellant, Jeffrey Lawrence Tokash (Husband), appeals from the

February 24, 2015 order finding him in contempt and imposing sanctions.

The order was in response to a motion filed by Appellee, Erin Patricia Tokash

(Wife), averring Husband was not in compliance with the trial court’s prior

orders respecting alimony pendent lite (APL). On appeal, Husband solely

challenges the trial court’s subject matter jurisdiction.      After careful

consideration, we affirm.

      The trial court summarized the procedural history of this case as

follows.

                 [The Parties] were married in 1998 in North
           Carolina, where they lived from 2002-2008.     In
           2008,    [Husband]   began   employment    as   a
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          commercial airline    pilot   in   Dubai,   United   Arab
          Emerites [sic]. …

                 On July 27, 2012, … [Wife] filed for divorce
          from [Husband].       …    In October 2013, current
          counsel entered his appearance for [Husband], for
          the “limited purpose” of addressing jurisdictional
          issues. On November 4, 2013, … [Husband] filed
          preliminary objections. At that time, [the trial court]
          comprehensively considered [Husband’s] preliminary
          objections in this divorce matter, which challenged
          [the trial court’s] subject matter jurisdiction and in
          personam jurisdiction over [Husband]. [The trial
          court’s] determination and Order of May 6, 2014
          denied and dismissed the preliminary objections,
          finding both subject matter jurisdiction and in
          personam jurisdiction were appropriate in Bucks
          County.     Following [the trial court’s] subsequent
          Order of May 30, 2014 denying [Husband’s] motion
          for reconsideration, [Husband] proceeded to file an
          appeal in the Pennsylvania Superior Court.
          Thereafter, Mr. Tokash sought to have the Superior
          Court re-style his appeal of our interlocutory order as
          Petition for Review. On June 24, 2014, the Superior
          Court denied [Husband’s] petition for permission to
          appeal (review) our Order, finding, in part, as
          follows:

                       [Husband] has not demonstrated that
                the underlying order implicates a controlling
                question of law as to which there is a
                substantial ground for difference of opinion or
                established that an immediate appeal may
                materially advance the ultimate termination of
                the     matter.    See    Commonwealth       v.
                McCurren, 945 A. 2d 194 (Pa, Super. 2008)
                (petition for Interlocutory review must, on its
                face, contain sufficient averments that would
                warrant review of interlocutory order by
                Superior Court); Borough of Mifflinburg .v.
                Heim, 705 A.2d 456 (Pa Super. 1997) (party
                filing petition for review should include all
                components required for permission to
                appeal).      Accordingly, [Husband] has not

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                 demonstrated that the trial court’s refusal to
                 amend the underlying order for interlocutory
                 appeal is “so egregious as to justify
                 prerogative appellate correction.”   Pa.R.A.P.
                 1311 Note[.]

                 Following the above ruling, on July 7, 2014,
           [Husband] filed a petition to withdraw and
           discontinue his appeal in Superior Court.

                  Thereafter, [Wife] filed several petitions for
           contempt, a motion to compel and a motion for
           sanctions, as well as a motion for a protective order
           in response to [Husband’s] motion to compel [Wife’s]
           deposition. A hearing before [the trial court] was
           scheduled for November 7, 2014. No evidentiary
           record was established on that date. Instead, the
           undersigned extensively conferenced with counsel,
           and in an effort to globally address the many
           pending motions, counsel for both parties agreed to
           jointly craft a case management order. Those efforts
           by counsel were ultimately unsuccessful.

                  Thereafter, [Wife] renewed her petition to the
           Court to be heard as to [Husband’s] continuous
           contemptuous conduct, as well as to create an
           evidentiary record. That petition resulted in the
           hearing of February 10, 2015. [Husband] continues
           to be represented by the same counsel, and our
           clear recollection of that hearing is that a proposed
           order was presented by [Wife’s] counsel. With [the
           trial court’s] assistance, counsel considered language
           (paragraph by paragraph) acceptable to the parties
           in finalizing such an order.

Trial Court Opinion, 5/13/15, at 2-5 (footnotes omitted).

     On February 24, 2015, the trial court entered an order that, inter alia,

appointed a receiver, issued a bench warrant against Husband, ordered any

tax refund due Husband be intercepted, ordered judgment be entered

against Husband for APL arrears, ordered suspension of Husband’s driver’s

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license, and awarded counsel fees to Wife. Trial Court Order, 2/24/15, at 1-

3. On March 20, 2015, Husband filed a timely notice of appeal.1

       On appeal, Husband raises the following issue for our review.

              Where neither party resided in Pennsylvania since
              2003, and neither party was in the military at any
              time relevant to these proceedings, did the trial
              court commit an error of law and/or an abuse of
              discretion in determining that it has subject matter
              jurisdiction, in refusing to revisit that issue and in
              entering the February 24, 2015 contempt and
              sanctions order and the predicate August 4, 2014
              and October 2, 2014 APL orders?

Husband’s Brief at 23.2

       We    first   address   Wife’s    claims   that   Husband   has   waived   the

jurisdictional issue he raises on appeal.3 Wife advances three arguments in

____________________________________________
1
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
2
   We restate Husband’s issue as framed in the argument section of his brief.
Husband lists seven, albeit overlapping, issues in the “Statement of
Questions Presented” section of his brief, which correspond to the issues
listed in his Rule 1925(b) statement. See Husband’s Brief at 7-8; Concise
Statement of Errors Complained of on Appeal, 4/16/15, at 1-2. Contrary to
Pennsylvania Rule of Appellate Procedure 2119, Husband has not divided his
argument “into as many parts as there are questions to be argued.” See
Pa.R.A.P. 2119(a), 2116(a). Husband states, “[i]t is unnecessary to set [the
questions presented] forth in the body of this brief, and discuss them
separately, because they are all interrelated and are subsumed under the
single question presented above.” Husband’s Brief at 23. Because the
consolidated issue, as argued, is fairly suggested by the issues stated in
Husband’s Rule 1925(b) concise statement and has been addressed by the
trial court we do not deem our review impaired. See Pa.R.A.P. 2116(a).
3
 On September 15, 2015, during the pendency of this appeal, Wife filed a
motion to quash Husband’s appeal, citing several grounds. See Application
(Footnote Continued Next Page)

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support of her contention that Husband’s appeal should be quashed or

dismissed.     Wife first avers that because “the Order appealed from

addresses the obstreperous conduct of [Husband], it is those facts of record

leading to that conclusion by Judge Gilman that [Husband] must challenge in

the instant appeal, because he is basing his alleged errors on that Order.”

Wife’s Brief at 16 (emphasis in original).              Because Husband raises no

argument as to the merits of the February 24, 2015 contempt order, Wife

contends his appeal should be quashed.            Id.   However, Husband’s central

claim is that the trial court lacks subject matter jurisdiction over the parties

divorce action and consequently lacks jurisdiction to entertain Wife’s

contempt petition, rendering the February 24, 2015 contempt order void.

Husband’s Brief at 24.

             As with any issue going to the subject matter
             jurisdiction of a court … to act in a matter, this is an
             issue that cannot be waived by the parties nor can
             the parties confer subject matter on a court or
             tribunal by agreement or stipulation. Since an issue
             of subject matter jurisdiction is not waivable, it may
             be raised at any stage of a proceeding by a party, or
             sua sponte by the court or agency.

Blackwell v. Com., State Ethics Com'n, 567 A.2d 630, 636 (Pa. 1989).

The fact that Husband limits his appeal to the threshold jurisdictional issue,

is not a basis to dismiss his appeal.
                       _______________________
(Footnote Continued)
for Relief, 9/15/15, at 5-6 ¶¶ 25-29. This Court denied the motion without
prejudice to Wife to raise her issues before the merits panel. See Per
Curium Order, 11/4/15, at 1. Wife has re-raised the issues in her appellee
brief. See Wife’s Brief at 16-20.


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      Wife also urges dismissal based on the following.

            The issue of subject matter jurisdiction that
            [Husband] has placed before this Court has already
            been raised and ruled upon by [the trial court], as
            well as, by this Honorable Court. Therefore, these
            facts of record render this appeal moot under
            Pa.R.A.P. 1972(a)(4) [(authorizing a party to move
            for dismissal of an appeal on the ground of
            mootness)], as well as under the principles of
            collateral estoppel, and consequently should be
            dismissed because Husband is asking this Court to,
            in effect, “reverse” its prior ruling.

Wife’s Brief at 19 (citations omitted).

      Wife misconstrues the prior actions of this Court.     As noted in the

foregoing recitation of the procedural history of this case, Husband

challenged the subject matter jurisdiction of the trial court to preside over

the parties’ divorce case based on the alleged lack of requisite residency or

domicile.   On May 6, 2014, the trial court denied Husband’s preliminary

objections on the issue, determining it had subject matter jurisdiction. The

trial court’s order was interlocutory, and not immediately appealable.

Husband, nevertheless, sought an interlocutory appeal by permission. See

Pa.R.A.P. 312, 1311. This Court determined Husband did not meet the facial

threshold requirement to permit an interlocutory appeal under Rule 1311.

Per Curiam Order, 6/24/14, at 1, 73 EDM 2014 (Pa. Super 2014).

Importantly, we did not reach the merits of Husband’s claims or make any

determination as to whether the trial court’s exercise of jurisdiction in this

case is proper.


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       The instant appeal is from an order in a contempt proceeding collateral

to the divorce action.        Because the order finding Husband in contempt

imposes sanctions, it is a final appealable order. See Rhoades v. Pryce,

874 A.2d 148, 151 (Pa. Super. 2005) (stating, “[g]enerally, an order finding

a party in contempt is interlocutory and not appealable unless it imposes

sanctions”) (citation omitted), appeal denied, 899 A.2d 1124 (Pa. 2006).

        Because the question of the trial court’s subject matter jurisdiction

over the contempt proceeding is identical to the question of its jurisdiction

over the divorce action, the issue is properly raised in the instant appeal.

Accordingly, the issue of the trial court’s subject matter jurisdiction is not

moot or barred by collateral estoppel.4          We, therefore, decline to dismiss

Husband’s appeal.

       Proceeding to the merits of Husband’s claims, we first note the

following    principle   guiding    our    review.   “Generally,   subject   matter

jurisdiction has been defined as the court’s power to hear cases of the class

to which the case at issue belongs.” Verholek v. Verholek, 741 A.2d 792,
____________________________________________
4
  Wife also claims that Husband’s failure to insure a transcript of the
February 10, 2015 contempt hearing requires dismissal of his appeal. Wife’s
Brief at 18. However, as Husband clarifies, the trial court had previously
ruled on Husband’s jurisdictional challenge and did not reconsider the issue
during the contempt proceeding. Rather it is the trial court’s May 30, 2014
order denying Husband’s preliminary objections and its May 30, 2014 order
denying reconsideration that is relevant to the issue on appeal. Accordingly,
the absence of the February 10, 2015 transcript does not inhibit our ability
to address the issue presented. Finally, Wife urges dismissal of the appeal
for briefing irregularities by Husband. We addressed those concerns in
footnote 2, supra.


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798 (Pa. Super. 1999) (citation omitted), appeal denied, 759 A.2d 388 (Pa.

2000).      “When a party raises preliminary objections challenging subject

matter jurisdiction, the trial court’s function is to determine whether the law

will bar recovery because of the lack of such jurisdiction.”      Bernhard v.

Bernhard, 668 A.2d 546, 548 (Pa. Super. 1995).

      “It is quite clear that the trial court has jurisdiction over the parties’

divorce as a matter of Pennsylvania domestic law.          Jurisdiction over a

divorce is a function of the domicile of the individuals involved in the

divorce.”    Sinha v. Sinha, 834 A.2d 600, 603 (Pa. Super. 2003), appeal

denied, 847 A.2d 1288 (Pa. 2004).

              § 3104. Bases of jurisdiction

                                       …

              (b) Residence and domicile of parties.--No
              spouse is entitled to commence an action for divorce
              or annulment under this part unless at least one of
              the parties has been a bona fide resident in this
              Commonwealth for at least six months immediately
              previous to the commencement of the action. Both
              parties shall be competent witnesses to prove their
              respective residence, and proof of actual residence
              within this Commonwealth for six months shall
              create a presumption of domicile within this
              Commonwealth.

              (c) Powers of court.--The court has authority to
              entertain an action under this part notwithstanding
              the fact that the marriage of the parties and the
              cause for divorce occurred outside of this
              Commonwealth and that both parties were at the
              time of the occurrence domiciled outside this
              Commonwealth. The court also has the power to
              annul void or voidable marriages celebrated outside

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            this Commonwealth at a time when neither party
            was domiciled within this Commonwealth.

                                      …

23 Pa.C.S.A. § 3104(a), (b).

            “Bona fide residence” means domicile; i.e., actual
            residence coupled with the intention to remain there
            permanently or indefinitely. Mere absence from a
            domicile, however long continued, cannot effect a
            change of domicile; there must be an animus to
            change the prior domicile for another. Furthermore,
            there is a presumption that the original domicile
            continues and a person asserting a change of
            domicile must demonstrate such change by clear and
            convincing proof.

Zinn v. Zinn, 475 A.2d 132, 133 (Pa. Super. 1984) (citations omitted).

“Such an absence from one’s domicile because of employment is not

sufficient to defeat the establishment of a true, fixed, permanent home and

principal establishment.”   Bell v. Bell, 473 A.2d 1069, 1077 (Pa. Super.

1984) (internal quotation marks and citations omitted).

            Thus, it seems that a person’s domicile is
            increasingly being determined by close scrutiny of
            his subjective intentions or state of mind as to
            whether or not he considers a particular place to be
            his home.       Therefore, [i]ntent, being purely
            subjective, must to a large extent be determined by
            the acts which are manifestations of the intent.

Bernhard, supra at 550 (internal quotation marks and citations omitted).

“Because [i]ntention is a thought known only to the person who has it[,

w]ith our limited ability to extract the thoughts of another against his will,

we must rely upon what he says his thoughts are and what his acts indicate


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his thoughts to be.”   Bell, supra at 1075-1076 (internal quotation marks

and citations omitted). “Because the issue of domicile is a mixed question of

law and fact, it is reviewable by our appellate courts.” Bernhard, supra at

549-550 (citation omitted). “It is hornbook law that as a pure question of

law, the standard of review in determining whether a [trial] court has

subject matter jurisdiction is de novo and the scope of review is plenary.

S.K.C. v. J.L.C., 94 A.3d 402, 406 (Pa. Super. 2014) (internal quotation

marks and citation omitted).

      Husband claims that neither he nor Wife was a bona fide resident of

Pennsylvania at the time of the filing of the divorce or for the six months

immediately prior thereto.     Husband’s Brief at 24.   Accordingly, Husband

avers the trial court erred in its determination to the contrary, and in its

conclusion that it had subject matter jurisdiction over the divorce case

initiated by Wife.   Id. at 20-21.    Specifically, Husband asserts that the

definition of “bona fide resident” includes actual residence, and that “[t]he

terms domicile and residence are not interchangeable; whereas residence is

a physical fact, domicile is a matter of intention.” Id. 25-26, quoting

Bernhard, supra at 550 (emphasis added by Husband). Husband argues

that the trial court’s finding that the parties were bona fide residents of

Pennsylvania during the six months prior to the filing date of the complaint

is based in part on certain factors that are not part of the record. Id. at 30-




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J-A03024-16


33. Husband also argues that the trial court misstates the legal significance

of other circumstances. Id.

         In her divorce complaint, Wife asserted Pennsylvania residency for

both parties.

              1. Plaintiff is Erin Patricia Tokash, an adult individual
              who currently resides at 19907 Shearwater Point,
              Cornelius, North Carolina.

              2. Defendant is Jeffrey Lawrence Tokash, an adult
              individual who currently resides at 869 Breckenridge
              Court, New Hope, Bucks County, Pennsylvania.

              3. The Plaintiff has been a bona fide resident in the
              Commonwealth of Pennsylvania for a period of at
              least six (6) months immediately previous to the
              filing of this Complaint.

Divorce Complaint, 7/27/12, at 1.

         In his preliminary objections, Husband asserted these averments were

false.

              6. The Complaint alleges in paragraph #3 that
              “Plaintiff has been a bona fide resident in the
              Commonwealth of Pennsylvania for a period of at
              least six (6) months immediately previous to the
              filing of this Complaint” but that averment is not
              true.

              7. Neither Plaintiff nor Defendant had been bona fide
              residents of Pennsylvania within six months prior to
              the filing of the Complaint.

Preliminary Objections, 11/4/13, at 2.

         Husband’s central issue is his contention that “[e]xcept in the

circumstances of military service, there are two prongs which a plaintiff must


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J-A03024-16


satisfy to establish bona fide residency—domicile and actual physical

residency.” Husband’s Brief at 25 (emphasis in original).               He avers, “as a

matter of clear fact, neither party satisfies the actual residency requirement

of Section 3104(b).”        Id. at 24.    Husband’s focus, however, is on the six

months immediately preceding the filing of the divorce complaint. Id. at 25.

While residency must be maintained during that period, the initial physical

residency need not have occurred then. Husband concedes that Wife stayed

physically at 869 Breckinridge Court in New Hope, Pennsylvania, for a brief

time prior to joining him in Dubai.5 Id. at 17. He contends, however, that

this stay was without any intent to establish the address as the parties’

residence. Id. at 30.

       In their respective pleadings, memoranda of law and arguments to the

trial court in support or opposition to Husband’s preliminary objections, the

parties attached various exhibits and recounted various actions taken by

them in the course of their relocation to Dubai and afterward. They argue

these shed light on their intent with respect to domicile.                  These exhibits

include   the    parties’   tax   returns,     driver’s    licenses,   passports,    voter

registrations,    employment       documentation,         and   financial    data.    See

Memorandum of Law in Opposition to Preliminary Objections, 12/12/13, at

exhibits D-G.     The trial court examined the various actions taken by the
____________________________________________
5
  The New Hope property was at the time, and remains currently, owned by
Husband’s sister and brother-in-law. The trial court considered this fact but
did not deem it dispositive to the issue of the parties intended residency.


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parties in connection with their physical move from North Carolina to Dubai

and concluded their intent was to establish 869 Breckinridge Court as their

actual domicile while Husband remained employed in the United Arab

Emirates. Trial Court Opinion, 5/13/15, at 9.

            Such changes included updating their driver’s
            licenses, voter registrations, and the filing of tax
            returns using the Pennsylvania address. [Husband’s]
            employment information, despite his suggestion that
            Dubai is now his home, indicates that New Hope,
            Bucks County is his permanent address. These facts
            were established as of 2008 through the present,
            and most importantly, pertain to the six (6) months
            preceding [Wife’s] filing of the divorce complaint.

Id.

      Husband reviews the factors relied on by the trial court and argues

that each is consistent with an explanation of an intent to establish Dubai as

the parties’ residence.

            There is also no dispute by [Husband] that he has
            used his sister and brother-in-law’s 869 Breckinridge
            Court, New Hope address for bills, other mail, federal
            tax filing, voting and driver’s license purposes. This
            was done as a matter of expediency and certainly
            does not establish the address as either party’s
            actual physical residence.

Husband’s Brief at 30-31. “Moreover, from the standpoint of subject matter

jurisdiction, the use of a Pennsylvania address for voting, tax or driver’s

license purposes is, at most, only a factor on the issue of domicile, but on

the issue of actual Physical residence it is meaningless.”   Id. at 31.




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      We conclude the trial court’s factual determinations of the uncontested

choices and circumstances surrounding the parties’ move to Dubai are

supported in the record.     We additionally conclude those circumstances

support the trial court’s conclusion that the parties maintained the

domiciliary intent to establish Pennsylvania as their residence despite their

immediate physical relocation to Dubai. We conclude Wife’s physical stay at

the Bucks County home, albeit brief, coupled with the parties establishing

that address for tax, voting, driver’s license, employment and financial

purposes was sufficient to create residency with domiciliary intent in

Pennsylvania at the time of the parties’ move to Dubai.       See, Bernhard

supra.   Therefore, it became Husband’s burden to show, by clear and

convincing evidence, any change in residence. See, Zinn supra. We agree

with the trial court that he has not done so. As noted above, “an absence

from one’s domicile because of employment is not sufficient to defeat the

establishment of a true, fixed, permanent home.” Bell, supra.

      For the foregoing reasons, we conclude the trial court has subject

matter jurisdiction over the parties’ divorce action. Consequently, it also has

jurisdiction to hear Wife’s contempt petition respecting Husband’s non-

compliance with the trial court’s APL orders.    Because Husband raises no

challenge to the merits of the contempt order, we affirm the trial court’s

February 24, 2015 order.

      Order affirmed.


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J-A03024-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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