Tokash, E. v. Tokash, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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,
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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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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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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
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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2016
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