Jaslow, N. v. Timins, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NOAH JASLOW : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CLAIRE LOUISE TIMINS : No. 1899 EDA 2022
Appeal from the Order Entered July 18, 2022
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-00422
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 24, 2023
Noah Jaslow (“Father”) appeals from the order issued July 18, 2022,
denying cross petitions for contempt of a custody order filed by Father and
Claire Louise Timins (“Mother”). In addition to denying the contempt
petitions, the court sua sponte transferred the custody action to Ocean
County, New Jersey. On appeal, Father claims that (1) the trial court erred by
sua sponte relinquishing jurisdiction of this custody case to New Jersey despite
Father and the children having a significant connection to Pennsylvania; (2)
the trial court erred by not performing a forum non conveniens analysis and
ignoring the parties’ prior forum selection clause; and (3) the trial court erred
by issuing an unclear order as to the disposition of the contempt petitions.
Mother has not filed a brief on appeal. We agree with Father’s first two claims
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and hereby vacate and remand respectively. We disagree with Father’s last
claim and therefore affirm.
Mother and Father were in a relationship for ten years but never
married. They are the natural parents of two children, one born in 2008 and
the other in 2011. Mother moved out of Father’s residence in Montgomery
County at the end of 2012. Mother and Father filed cross-complaints for
custody of their children in the Montgomery County Court of Common Pleas.
Protracted custody litigation ensued, resulting in a September 8, 2016
custody order that provided for joint legal and physical custody of the children.
At the time, both parents still lived in Montgomery County. The custody order
directed that jurisdiction would remain in Montgomery County.
In 2021, the trial court granted, over Father’s objections, Mother’s
request to move to Ocean County, New Jersey. The modified custody order
provided for all custodial exchanges to occur at the Plymouth Meeting,
Pennsylvania Whole Foods location, “or other Whole Foods location close to
Father’s residence, as chosen by Father.” Amended Custody Order,
7/21/2021, at ¶ 4.f. The order further provided that Mother and Father “have
agreed that venue and jurisdiction of this matter exists and shall remain in
Montgomery County, Pennsylvania, until the youngest of the Children reaches
the age of eighteen (18).” Id., at ¶ 2. Father was awarded partial physical
custody of the children “on alternate weekends from Friday at 7:00 p.m. until
Sunday at 7:00 p.m.” Id., at ¶ 4.b.
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In January 2022, Mother filed a petition seeking to have the court find
Father in contempt of the custody order after he moved to another location in
Montgomery County. Mother alleged that Father’s move significantly impaired
her custody rights because Father now requested that custody exchanges take
place at either the Whole Foods in Allentown or at a WaWa in Quakertown.
According to Mother, these locations nearly doubled the time required to
transport the children to the exchange.
Father filed an answer and counter-petition for contempt. While
admitting he had moved, he denied that his move significantly impacted
Mother’s custodial rights, as the WaWa location only added 19 minutes to
Mother’s trip. Among other allegations not relevant here, Father alleged that
Mother’s refusal to use the alternate exchange locations he selected
constituted willful disobedience of the custody order and requested that
Mother be found in contempt.
On July 18, 2022, the trial court entered the order under appeal, denying
both parties’ petitions for contempt. The order also directed the parties “to file
any future custody modification petitions in Ocean County, New Jersey …”
Neither party requested a transfer. Father filed this timely appeal.
On appeal, Father first claims the trial court erred by sua sponte
transferring jurisdiction of this custody case to New Jersey. Normally, a trial
court's decision to exercise or decline jurisdiction “will not be disturbed absent
an abuse of that discretion.” J.K. v. W.L.K., 102 A.3d 511, 513 (Pa Super.
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2014)(citations omitted).1 However, the trial court here concluded it did not
have jurisdiction pursuant to section 5422 of the Uniform Child Custody
Jurisdiction and Enforcement Act (the “UCCJEA”). See Trial Court Opinion,
8/22/2022, at 8-9. “[A] section 5422 determination does not involve a trial
court’s decision regarding whether to exercise jurisdiction that has been
established. Rather, a section 5422 determination implicates the subject
matter jurisdiction of the trial court.” S.K.C. v. J.L.C., 94 A.3d 402, 408 (Pa.
Super. 2014). Therefore, our proper standard of review here is de novo and
our scope of review is plenary. See id.Section 5422 of the UCCJEA, as adopted in Pennsylvania, sets forth the
following test to determine whether a trial court retains “exclusive, continuing
jurisdiction” over its initial child custody order:
(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:
(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
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1 We note that the trial court’s order does not simply refuse to exercise
jurisdiction. Instead, it transferred jurisdiction to New Jersey. If the court did
not have exclusive, continuing jurisdiction over this custody dispute, it did not
have jurisdiction to direct the parties to pursue their custody action in New
Jersey. See B.J.D. v. D.L.C., 19 A.3d 1081, 1083-84 (Pa. Super. 2011). Given
our resolution of this appeal, we need not reach this issue.
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longer available in this Commonwealth concerning the
child's care, protection, training and personal
relationships[.]
23 Pa. C.S.A. § 5422.
Under Section 5422, a Pennsylvania court that made the initial custody
determination has exclusive, continuing jurisdiction until both a significant
connection to Pennsylvania and substantial evidence are lacking:
Under the plain meaning of section 5422(a)(1), a court that makes
an initial custody determination retains exclusive, continuing
jurisdiction until neither the child nor the child and one parent or
a person acting as a parent have a significant connection with
Pennsylvania and substantial evidence concerning the child's care,
protection, training, and personal relationships is no longer
available here. The use of the term "and" requires that exclusive
jurisdiction continues in Pennsylvania until both a significant
connection to Pennsylvania and the requisite substantial evidence
are lacking. In other words, Pennsylvania will retain jurisdiction as
long as a significant connection with Pennsylvania exists or
substantial evidence is present.
Rennie v. Rosenthol, 995 A.2d 1217, 1220-1221 (Pa. Super. 2010)
(emphasis in original; footnotes omitted). For purposes of 5422, a significant
connection with the Commonwealth means “an important or meaningful
relationship to the Commonwealth” which is determined by the “nature and
quality of the child’s contacts with the parent living in the Commonwealth.”
Id. at 1221-1222. This determination must be “based upon the factual
circumstances as they existed at the time the petition is filed.” S.K.C. v.
J.L.C., 94 A.3d 402, 412 (Pa. Super. 2014).
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We begin our review by noting that the underlying contempt
proceedings addressed only the parties’ disparate interpretations of the
custody order’s requirements for the location of exchange of custody. As such,
the court did not hear evidence regarding the children’s connection to
Pennsylvania. See Trial Court Opinion, 8/22/2022, at 7-8. Instead, the court
focused exclusively on the fact that Mother exercised her primary physical
custody of the children in New Jersey. See id. at 10. As a result, the court did
not perform any assessment of the nature and quality of the children’s
contacts with the parent living in the Commonwealth as of the date of Mother’s
petition for contempt. The record before us is woefully inadequate to support
any conclusion whatsoever on the nature and quality of the children’s contacts
with Pennsylvania. And since neither party was notified that a transfer of
jurisdiction under section 5422 was at issue, we cannot conclude that any
party bore the burden of presenting evidence on this issue. Accordingly, the
court’s sua sponte transfer of jurisdiction constitutes an error of law and must
be vacated.
In his second issue, Father claims that the trial court erred by
transferring the venue of this case to New Jersey. Here, the trial court denies
it transferred venue because it believes it did not have jurisdiction under
section 5422. See Trial Court Opinion, 8/22/2022, at 11. We therefore
conclude this issue is moot, as the court denied any intent to transfer venue
or finding that Montgomery County is an inconvenient forum.
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Lastly, Father claims the trial court erred by issuing an unclear order as
to the disposition of the contempt petitions. We disagree. The order denies
both contempt petitions, but directed that “[t]he parties are to comply with
Paragraph 4(f) of [the] July 21, 2021 Amended Custody Order of the
Honorable Melissa S. Sterling regarding custody exchanges of the minor
children.” Court Order, 7/18/22. Paragraph 4(f) of the July 21, 2021
amended custody order requires that “[a]ll custodial exchanges shall take
place at the Plymouth Meeting, PA Whole Foods location or other Whole Foods
location close to Father’s residence, as chosen by Father.”
Father contends that, logically, the court was required to resolve the
parties’ dispute over whether the amended custody order required Mother to
drive to the Allentown Whole Foods or Quakertown WaWa at Father’s request.
Our review of the record reveals that the court addressed this issue by
directing the parties to comply with paragraph 4(f) of the custody order. This
direction indicates that Mother was wrong in claiming she could reject Father’s
choice of a Whole Foods location closer to his residence. Importantly, it also
rejected Father’s argument that he could force Mother to drive to the
Quakertown WaWa for the custody exchange.
Further, Father’s argument goes too far in assuming the trial court was
required to find one party or the other in contempt. To the contrary, the trial
court was entitled to deny Father’s contempt petition, even in the face of a
finding that Mother had violated the amended custody order, if it also found
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that Mother had not acted with wrongful intent. See Epstein v. Saul Ewing
LLP, 7 A.3d 303, 318 (Pa. Super. 2010).
To summarize, we conclude the trial court erred in ordering this custody
matter be transferred to Ocean County, New Jersey. We therefore vacate that
part of the July 18, 2022 order. In contrast, we find no merit in Father’s claim
that the order is too vague, and therefore affirm the rest of the order.
Order is vacated in part, remanded in part, and affirmed in part.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2023
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