A.K. v. W.K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
v. :
:
W.K. :
:
Appellee : No. 1642 WDA 2019
Appeal from the Order Entered October 23, 2019
in the Court of Common Pleas of Allegheny County
Family Court at No(s): Case No. FD19-004076-008
BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 09, 2020
A.K. (Mother) appeals following the trial court’s award of temporary
primary physical custody of her son G.K. (Child) (born October 2010), to
Child’s father, W.K. (Father), and order permitting Father to take Child to
Colorado. Because the issues presented in this appeal are moot, we dismiss
this appeal.
The trial court provided the following background of this case in its
Pa.R.A.P. 1925 opinion.
Mother, Father, and Child lived as an intact family in
Pennsylvania from May of 2011 until June of 2019, when they
moved, still as an intact family, to Windsor, Colorado. This move
was made in agreement and was meant to be permanent as
evidenced by the fact that the parties purchased a house,
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* Retired Senior Judge assigned to the Superior Court.
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obtained new Colorado drivers’ licenses, and enrolled Child in
school.
On or about September 13, 2019[,] there was an
argument between [] Mother and [paternal] grandmother. This
argument led to some sort of altercation, the facts of which are
disputed. On September 16, 2019, Mother took Child from
school and fled to Pennsylvania without Father’s agreement, and
apparently without Father’s knowledge. Mother did not inform
Father of Child’s whereabouts.1
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1 Mother requested a Protection from Abuse order [against
Father from] an Allegheny County Magisterial District Judge[,]
which was denied. Father attempted to obtain Mother’s address
from the Magisterial District Judge, but was unable to do so.
On September 24, 2019, Mother filed an action for support
[in the Allegheny County Court of Common Pleas]. It was
through service of that filing upon him in Colorado that Father
learned of the whereabouts of Mother and Child. The instant
case was then commenced when Father filed a motion entitled
“Emergency Petition for Return of Custody[,]” which came before
[the trial court] on October 9, 2019. Father requested Child’s
return to Colorado “pending any custody action.”
Trial Court Opinion, 12/9/2019, at 2-3.
The trial court scheduled a judicial conciliation for the following day
and entered an order requiring Mother or Father to file a custody complaint
within five days. The order also declared Pennsylvania to be Child’s home
state,1 but indicated that the trial court would consider returning Child to
Colorado. Trial Court Order, 10/10/2019, at 1.
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1 Interstate custody disputes are governed by the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), 23 Pa.C.S. §§ 5401-5482. “The
purpose of the UCCJEA is to avoid jurisdictional competition, promote
cooperation between courts, deter the abduction of children, avoid
(Footnote Continued Next Page)
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Both parties participated in the judicial conciliation on October 10,
2019. Only the second portion of the conciliation was on the record, which
included the trial court’s in camera interview of Child. At the end of the
conciliation, the trial court informed the parties that it was declining
jurisdiction because Pennsylvania was not Child’s home state after all, and it
did not have a significant connection because Child was brought here under
“subterfuge.” N.T., 10/10/2019, at 46. The Court indicated that it was
going to order Child to be returned to Colorado, and one of the parties
should file a complaint for custody in Colorado. Id. at 46-47. Father
requested that he be permitted to retrieve Child immediately, but, at
(Footnote Continued) _______________________
relitigating custody decisions of other states, and facilitate the enforcement
of custody orders of other states.” A.L.-S. v. B.S., 117 A.3d 352, 356 (Pa.
Super. 2015). The UCCJEA was also enacted to conform state law with the
Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. § 1738A, which is
a federal law requiring “that states give full faith and credit to another
jurisdiction’s child custody determination made in compliance with the
provisions of the PKPA.” R.M. v. J.S., 20 A.3d 496, 502-03 (Pa. Super.
2011).
Although the UCCJEA provides for several methods to establish
jurisdiction in a particular state, “our case law provides that the home state
is the preferred basis for jurisdiction.” J.M.R. v. J.M., 1 A.3d 902, 909 (Pa.
Super. 2010). The UCCJEA defines home state as “[t]he state in which a
child lived with a parent … for at least six consecutive months immediately
before the commencement of a child custody proceeding.” 23 Pa.C.S. §
5402. When “there is no home state ... there must be a determination
under 23 Pa.C.S.[] § 5421(a)(2) as to which state is the more appropriate
forum based on where there are the most significant connections.”
Bouzos–Reilly v. Reilly, 980 A.2d 643, 646 (Pa. Super. 2009).
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Mother’s request, the trial court gave Mother a seven-day period to arrange
for Child to be returned. Id. at 52-57.
Following the conciliation, the trial court vacated the portion of its
October 10, 2019 order determining that Pennsylvania was Child’s home
state, as well as the portion of the order mandating that a complaint be
filed. It found that Pennsylvania was not Child’s home state because he had
not been in Pennsylvania for six months prior to the commencement of the
action. The trial court ordered Child to be returned to Colorado within seven
days, and entered the order “without prejudice to either party’s rights in
custody.” Trial Court Order, 10/11/2019, at 2-3.
Although “Mother appeared to acquiesce to this decision at the
conciliation, and, in fact, the seven-day provision in the order was provided
at Mother’s request to have time to ready [] Child for travel,” Trial Court
Opinion, 12/9/2019, at 3; N.T., 10/10/2019, at 52-57, Mother did not return
Child as ordered. Instead, Mother filed a motion for reconsideration.2
In the motion for reconsideration, Mother argued the trial court did not
have jurisdiction to enter the October 11, 2019 order because Father had
not filed a custody complaint prior to filing his emergency petition.
Furthermore, she claimed the order to return to Colorado contradicted
Colorado law and should not have been issued because the trial court had
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2 Per the docket, the motion was presented on October 16, 2019, but not
filed until November 8, 2019.
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refused to accept jurisdiction in Pennsylvania. Mother requested that the
trial court vacate the October 10 and 11, 2019 orders, and “that the parties
be permitted to pursue this custody action properly through the Colorado
legal system.” Emergency Motion for Reconsideration, 11/8/2019, at ¶ 31.
Additionally,
[i]n her [m]otion [for reconsideration], Mother brought to [the
trial court’s attention, for the first time, that Father had filed for
Dissolution of Marriage as well as a Motion for Abduction
Prevention in the Colorado courts in September of 2019. The
Colorado court had declined to hear the [a]bduction petition due
to jurisdictional concerns, stating it had those concerns because
“based on the petition alone, the [c]ourt may not have initial
subject matter jurisdiction over [issues related to custody of
Child].”3 (emphasis added). Upon learning of Mother’s location
[in Pennsylvania], Father withdrew both Colorado petitions.
Those petitions were withdrawn by Father prior to the first
conciliation in [the Allegheny County Court of Common Pleas].
Trial Court Opinion, 12/9/2019, at 4.
The trial court took the motion for reconsideration under advisement
until it could consult with the Honorable J. House of Colorado.4 The trial
court scheduled the conference on the earliest date Judge House was
available, which was October 22, 2019. Trial Court Opinion, 12/9/2019, at
4.
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3 No citation was provided by the trial court, but presumably the trial court is
quoting an order from Colorado. This order does not appear in the certified
record.
4This ruling does not appear in the certified record, but both the trial court
and Appellant agree on this aspect of the procedural history. Id.; Mother’s
Brief at 12.
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Meanwhile, Mother did not arrange for Child to return to Colorado, and
in an order dated October 18, 2019, and entered on October 21, 2019, the
trial court permitted Father to retrieve Child from Pittsburgh with the
assistance of local law enforcement. The trial court also specified that
Father “shall maintain primary physical custody until otherwise determined.”
Trial Court Order, 10/21/2019, at 1. In its Rule 1925 opinion, the trial court
explained that it issued this order based upon its belief that it had temporary
emergency jurisdiction pursuant to 23 Pa.C.S. § 5424,5 and “because Mother
herself [had] stated [in her motion for reconsideration] that Colorado was
the proper jurisdiction for the instant custody matter.” Trial Court Opinion,
12/9/2019, at 4 (emphasis removed).
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5 This provision in the UCCJEA provides as follows.
(a) General rule.--A court of this Commonwealth has temporary
emergency jurisdiction if the child is present in this
Commonwealth and the child has been abandoned or it is
necessary in an emergency to protect the child because the child
or a sibling or parent of the child is subjected to or threatened
with mistreatment or abuse.
(b) No previous custody determination or proceeding.--If there is
no previous child custody determination that is entitled to be
enforced under this chapter and a child custody proceeding has
not been commenced in a court of a state having jurisdiction
under sections 5421 (relating to initial child custody jurisdiction)
through 5423 (relating to jurisdiction to modify determination), a
child custody determination made under this section remains in
effect until an order is obtained from a court of a state having
jurisdiction under sections 5421 through 5423. …
23 Pa.C.S. § 5424(a), (b).
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On October 22, 2019, the trial court conferred with Judge House from
Colorado.6 Following that conference, the trial court entered an order
indicating that both judges agreed that (1) neither Pennsylvania nor
Colorado has home state jurisdiction pursuant to the UCCJEA because Child
did not reside in either state for the requisite six months prior to the
commencement of the action; and (2) the parties had significant contacts
with Colorado based upon Mother and Father’s acts of purchasing a home,
acquiring driver’s licenses, and enrolling Child in school in Colorado by
agreement in June 2019. Trial Court Order, 10/23/2019, at 1. The order
further noted that Child was currently in Colorado with Father pursuant to
the October 21, 2019 order in Pennsylvania and that both parties had filed
custody actions in Colorado, which were pending as of the date of the
interstate judicial conference. Id.
Mother timely filed a notice of appeal on November 6, 2019. Both
Mother and the trial court complied with Pa.R.A.P. 1925. On appeal, Mother
raises the following issues:
I. Whether the trial court erred by holding a judicial
conciliation on October 10, 2019, without there first being
an underlying action commenced in Allegheny County in
accordance with 23 Pa.C.S. § 1915.3, and without first
holding a hearing and invoking emergency jurisdiction in
accordance with Pa.C.S. § 5424.
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6 The trial court’s October 23, 2019 order indicated that the conference was
on the record, but no transcript appears in the record and Mother did not
request any such transcript alongside her notice of appeal.
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II. Whether the trial court erred by ordering that Child be
returned to the state of Colorado without proper child
custody jurisdiction to do so, after finding that Allegheny
County is not Child’s “home state” in accordance with 23
Pa.C.S. § 5421, thereby explicitly denying to exercise
subject matter jurisdiction over the child custody issue.
III. Whether, assuming arguendo that the trial court was
correct in providing relief and making child custody
determinations without exercising child custody
jurisdiction, the trial court erred by awarding primary
physical custody to Father through the order dated
October 18, 2019, without first holding a hearing providing
Mother with her due process rights, and by failing to weigh
each custody factor in accordance with 23 Pa.C.S. § 5328.
IV. Whether the trial court erred by awarding primary physical
custody to Father through the order, dated October 18,
2019, prior to first conferring with the appropriate tribunal
in the state of Colorado, after being provided with notice
that Father had an active divorce and custody action filed
in the state of Colorado.
Mother’s Brief at 5-6 (capitalization, party designations, and citations
altered).
Before we consider the merits of the issues Mother presents on appeal,
we must address preliminarily whether these issues are mooted by Child’s
return to Colorado and the pending custody actions in Colorado. Mother
does not address the mootness doctrine in her brief despite the contention of
the trial court that the issues she presents are moot, and she did not file a
reply brief after Father argued the same in his brief. Trial Court Opinion,
12/9/2017, at 5-7; Father’s Brief at 6 (numbering supplied). They
emphasize that Mother does not challenge the trial court’s declination to
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exercise jurisdiction in Pennsylvania or its determination that Colorado is the
state with significant contacts. Instead, the issues Mother presents are
based upon alleged procedural irregularities leading up to that decision.
This Court “generally cannot decide moot or abstract questions, nor
can we enter a judgment or decree to which effect cannot be given.” E.B. v.
D.B., 209 A.3d 451, 461 (Pa. Super. 2019) (citation omitted).
As a general rule, an actual case or controversy must exist at all
stages of the judicial process, or a case will be dismissed as
moot. An issue can become moot during the pendency of an
appeal due to an intervening change in the facts of the case or
due to an intervening change in the applicable law. In that case,
an opinion of this Court is rendered advisory in nature. An issue
before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.
In re J.A., 107 A.3d 799, 811-12 (Pa. Super. 2015) (citing In re D.A., 801
A.2d 614, 616 (Pa. Super. 2002) (en banc)).
We agree with the trial court and Father that all of the issues Mother
presents are moot. Mother challenges (1) the holding of a judicial
conciliation without the filing of a custody complaint to initiate the custody
action and without a hearing invoking emergency jurisdiction; (2) the trial
court’s orders requiring Child to be returned to Colorado despite its
determination that Pennsylvania is not Child’s home state; and (3) the trial
court’s award of primary physical custody to Father on an interim basis (a)
without a hearing to protect Mother’s due process rights, (b) without
weighing the 16 custody factors set forth in Pennsylvania’s Child Custody
Act, and (c) prior to the interstate judicial conference with Judge House.
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However, she does not challenge the trial court’s decision that Pennsylvania
is not Child’s home state and that Colorado has more significant connection
with Child, such that any custody action should proceed there. In fact,
Mother expressly agrees that the custody action should proceed in Colorado
instead of Pennsylvania. Mother’s Brief at 42.
At this point, no one disputes that Colorado is the state with
jurisdiction, Child is no longer in the state of Pennsylvania, and actions for
his custody are pending in Colorado. To the extent Mother takes issue with
the initial judicial conciliation – one that proceeded without any indication in
the record that Mother had an objection until after it occurred and the trial
court issued a decision she did not like – that conference has already
occurred. To the extent Mother takes issue with Child’s return to Colorado
and the trial court’s award of temporary custody to Father, Child has already
been returned, custody was awarded only on an interim basis without
prejudice, and Mother does not contend that Pennsylvania has jurisdiction
over Child. Therefore, there is no longer any pending case or controversy.
Accordingly, we dismiss Mother’s appeal as moot.
Appeal dismissed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2020
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