Tarn, J. v. Baker, K. ( 2022 )

J-A15044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JESSICA E. TARN N/K/A JESSICA E. : IN THE SUPERIOR COURT OF
NOVAK : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 115 WDA 2022
KENNETH BAKER :
Appeal from the Order Entered December 22, 2021
In the Court of Common Pleas of Westmoreland County Domestic
Relations at No(s): No. 1103 of 2010-D
BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: October 20, 2022
Jessica E. Tarn, n/k/a Jessica E. Novak (“Mother”), appeals from the
trial court’s order which relinquished jurisdiction of this child custody action to
a Missouri court, where Kenneth Baker (“Father”) now resides. We affirm.
Mother and Father are the parents of B.B. (“Child”), a son who was born
in Pennsylvania in August 2007. See N.T., 12/22/21, at 7. In 2010, Mother
and Father, who never married, stopped living together. See id. at 46.
Mother obtained a Protection from Abuse (“PFA”) order against Father and
filed a custody complaint. See id. at 34. Mother and Father entered into a
consent order that granted Mother primary physical custody of Child. See
Trial Court Order, 10/4/10. Mother and Father later reconciled and despite
the custody order lived together with Child on and off at Mother’s parents’
(“Maternal Grandparents’”) residence. See N.T., 12/22/21, at 6-7.
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Mother and Father separated again in 2016. See id. at 8. Father filed
a motion to modify the consent order. See Father’s Petition to Modify Custody
Order, 12/22/15. Following conciliation, the trial court entered an order (“the
custody order”) maintaining Mother’s primary physical custody of Child during
the school year and Father’s partial physical custody of Child on most
weekends and other agreed-upon periods. During the summer, Mother and
Father shared custody in alternating week-long blocks. The custody order
prohibited either parent from relocating with Child without the agreement of
the other or approval of the trial court, but permitted them to agree upon
different periods of custody or parenting arrangements. See Custody Order,
2/10/16, at 3-4.
After the entry of the custody order, the parties reconciled and lived
with Maternal Grandparents. See N.T., 12/22/21, at 9. Mother and Father
dispute what occurred next. Mother claimed that Father took Child to his
parents’ (“Paternal Grandparents’”) residence for a week in June 2019, as the
custody order permitted, but refused to return Child when the week ended.
See id. at 10. Father claimed that he moved out of Mother’s parents’ home
in June 2019, due to Mother’s drug abuse,1 and volatility between him and
Maternal Grandfather, and between Mother and Maternal Grandmother. See
id. at 57-58, 69, 73-76, 82. He said that when he told Maternal Grandmother
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1Mother testified that she and Father were both heroin users. See N.T.,
12/22/21, at 19.
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he was leaving, Child insisted upon leaving with him, and they moved to live
with Paternal Grandparents. See id. at 57-58, 74-75. Regardless which
version of events was more accurate, the parties agree that Mother has not
seen Child since Father took Child from the home in June 2019. See id. at
22, 61.
Mother and Father blamed each other for Mother’s lack of contact with
Child. Mother admitted that she did not call Father, Child, or Paternal
Grandparents after Child left, see id. at 25, but asserted she was afraid of
Father and has been since she obtained a PFA order against him in 2010. See
id. at 13. To avoid dealing with Father, Mother testified that she messaged
Child on Facebook, but never got a response. See id.2 Father claimed that
Mother was on drugs at the time,3 changed cell phones frequently, making her
difficult to contact, and she made no attempts to contact him or Child. See
id. at 57-58, 69, 73-76, 82.
In July 2019, Maternal Grandmother drove to Paternal Grandparents’
residence and attempted to pick Child up to take him to an eye doctor’s
appointment. She testified that Father prevented Child from leaving with her.
See id. at 40-41. Father testified that when Maternal Grandmother came in
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2Father testified that Child does not have a Facebook account. See N.T.,
12/22/21, at 63.
3Mother testified that she had been sober for seven months at the time of the
hearing, i.e., since approximately May 2021. See N.T., 12/22/21, at 19.
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July 2019 to take Child to the eye doctor, Child said he did not want to go
because he was afraid Maternal Grandmother would not return him to Father.
See id. at 80.
Father testified that Child called Mother multiple times to try to visit her
after they moved out but Mother did not answer. See id. at 60, 75. Father
asserted that he also tried to call Mother several times, but she did not answer,
nor did she attempt to call him or Child by phone or reach out to Father on
his Facebook account. See id. at 60-62, 75-76.
In August 2020, Father, Child, and Paternal Grandparents moved to
Pulaski County, Missouri without notifying Mother or notifying the trial court
as required by the consent order4 (although Father said he tried to call her).
See id. at 57, 65-66, 71, 76-77. Father testified that Child has since attended
eighth grade and part of ninth grade in Missouri, where he has an eye doctor,
friends, and many relatives with whom he is close. See id. at 47-50, 54-55,
61-62, 85. Father testified that Child does not want to return to Pennsylvania
and has threatened to run away if forced to return. See id. at 60-62, 65-66,
75-76. Father testified that Mother did not attempt to contact him between
the time he moved out with Child in June 2019 and the time he moved to
Missouri in August 2020. See id. at 62.
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4The consent order required a party proposing relocation to comply with 23
Pa.C.S.A. § 5337(c)(1), (2)(i), which requires notification of relocation to
every other individual who has custody rights to a child by written notice sent
by certified mail, return receipt requested.
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In September 2020, Maternal Grandmother saw a notice in the
newspaper that Paternal Grandparents sold their house in Pennsylvania. See
id. at 39. She told Mother about the notice in late December 2020. See id.
at 22. With research help from family members, Mother learned in August
2021, that Father and Child had moved to Missouri. See id. at 15, 26, 39.
As of December 2021, neither Mother nor Maternal Grandparents had
seen Child since he and Father left the shared family home in June 2019, other
than the time Maternal Grandmother attempted to take Child to a doctor’s
appointment. See id. at 21-22, 42, 61, 81. Mother testified that Child called
her sometime after he left Paternal Grandparents’ home, but Father
interrupted the call and screamed at her.5 See id. at 13-14. Mother did not
call Father, Child, or Paternal Grandparents after Child left in June 2019, and
did not go to see Child at the karate studio where she knew he studied. See
id. at 21-22, 25, 30-31.
On October 27, 2021, Mother filed an “Emergency Petition for Special
Relief for Custody/Motion for Contempt” (“Emergency Petition”), stating that
Father took Child to Missouri without her consent or court approval in violation
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5 Mother stated she “tried to visit” but Paternal Grandmother “would not let
[her] on [their] property” and “would threaten [her] many times” and “[i]f
[Mother] even went near their house they would call the police on [Mother].”
N.T., 12/22/21, at 17. Mother acknowledges that she had assaulted Paternal
Grandmother sometime prior to the parties’ breakup in June 2019, resulting
in pending charges. Id. at 31.
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of the custody agreement. See Emergency Petition, 10/27/21, at 3
(unnumbered). The trial court issued an order directing that Child be returned
to Mother’s custody, and also scheduled a hearing on Mother’s petition. Father
did not return Child to Pennsylvania, but instead filed a petition for special
relief objecting to the trial court’s exercise of jurisdiction over Mother’s petition
and requesting permission to testify from out of state by telephone. The trial
court scheduled a telephone hearing on the competing petitions and did not
order that Child be returned to Pennsylvania in advance of the hearing.
On December 22, 2021, the trial court convened a telephone hearing.
On December 27, 2021, the trial court dismissed Mother’s Emergency Petition
and vacated its October 27, 2021, order requiring Child’s return to Mother’s
custody. The trial court granted Father’s petition and relinquished jurisdiction
to Pulaski County, Missouri, based upon its finding under 23 Pa.C.S.A. § 5422
of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”),6
that Pennsylvania no longer had exclusive, continuing jurisdiction over the
custody determination. See Memorandum and Order of Court, 12/27/21, at
1-3 (unnumbered). Mother timely filed a notice of appeal and she and the
trial court complied with Pa.R.A.P. 1925.
Mother presents the following issues on appeal:
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6 See 23 Pa.C.S.A. §§ 5401-5482.
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I. Whether the trial court erred in finding that it lacked
exclusive, continuing jurisdiction pursuant to 23 Pa.C.S.A.
[§] 5422?
II. Whether the trial court erred in transferring custody
jurisdiction of this [c]ase from Westmoreland County,
Pennsylvania to Pulaski County[], Missouri?
III. Whether the trial court erred in granting Father’s Petition for
Special Relief?
IV. Whether the lower court erred in vacating the order dated
October 27th, 2021, requiring the immediate return of the
child to Pennsylvania?
V. Whether the trial court erred in its dismissal of Mother’s
Emergency Petition . . .?
Mother’s Brief at 5 (reordered for clarity).7
Mother’s first three issues are intertwined, so we address them together.
Mother contends that Pennsylvania has exclusive, continuing jurisdiction over
the custody determination, and the trial court should not have ceded custody
to Missouri. See Mother’s Brief at 11-14. Mother stresses that Child has a
significant connection to Pennsylvania, having lived in Pennsylvania for twelve
years as compared to only fifteen months in Missouri. See id. at 13. She
also argues Father should not be rewarded for unilaterally taking Child to
Missouri in violation of the custody order, thereby interfering with her primary
custody. See id. at 13-14.
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7 Father did not file a brief in this case.
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Mother’s claim challenges the trial court’s determination that it did not
have exclusive, continuing jurisdiction over the custody matter in this case. A
trial court’s decision of whether it possesses exclusive, continuing jurisdiction
under section 5422 is a pure question of law and therefore subject to de novo
review under a plenary standard. See S.K.C. v. J.L.C., 94 A.3d 402, 406 (Pa.
Super. 2014). See also B.J.D. v. J.L.C., 19 A.3d 1081, 1082 n.1 (Pa. Super.
2011)) (stating that a trial court’s decision about whether it possesses subject
matter jurisdiction under Section 5422 is purely a question of law).
There is no dispute that the trial court’s initial exercise of jurisdiction
over the parties’ custody matter in 2010 and 2016 was valid. Therefore,
pursuant to subsection 5422(a) of the UCCJEA, Pennsylvania had exclusive,
continuing jurisdiction over the custody determination unless and until it was
divested of jurisdiction. See 23 Pa.C.S.A. § 5422(a). Accordingly, the only
jurisdictional question before us is whether Pennsylvania retained exclusive,
continuing jurisdiction after Father and Child moved to Missouri in August
2020.8
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8 The operative date to determine jurisdiction was October 27, 2021, which
was the date Mother filed her Emergency Petition. See T.D. v. M.H., 219
A.3d 1190, 1198 (Pa. Super. 2019) (directing the court to examine the
parents’ and child’s relationship to Pennsylvania for jurisdictional purposes as
of the date a party files a motion to modify custody in Pennsylvania).
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The relevant provision of the UCCJEA provides as follows:9
§ 5422. Exclusive, continuing jurisdiction
(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 longer available in this
Commonwealth concerning the child’s care,
protection, training and personal relationships[.]
23 Pa.C.S.A. § 5422(a)(1).10
This Court has observed that subsection “5422(a)(1) contains two
prongs, a ‘significant connection’ prong and a ‘substantial evidence’ prong,
both of which must be satisfied in order for Pennsylvania to lose exclusive,
continuing jurisdiction.” J.S. v. R.S.S., 231 A.3d 942, 948 (Pa. Super. 2020)
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9Subsection 5422(a)(2) involves a scenario where neither the parent nor the
child presently lives in the Commonwealth. See 23 Pa.C.S.A. § 5422(a)(2).
Subsection 5422(a)(2) is not applicable because Mother lives in Pennsylvania.
10 The UCCJEA governs interstate custody disputes. The statute’s purpose “is
to avoid jurisdictional competition, promote cooperation between courts, deter
the abduction of children, avoid 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) (internal citation omitted).
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(internal citation omitted). Stated another way, “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, 1221
(Pa. Super. 2010) (footnote and emphasis omitted). This is true even if the
child acquires a new home state. See 23 Pa.C.S.A. § 5422, cmt.
Although the UCCJEA does not define the term “significant connection,”
this Court has interpreted “the clear language” of the statute as including a
scenario where “one parent resides and exercises parenting time in the state
and maintains a meaningful relationship with the child.” Rennie, 995 A.2d at
1222. The comments to the UCCJEA support this interpretation, indicating
that “[i]f the relationship between the child and the person remaining in the
state with exclusive, continuing jurisdiction becomes so attenuated that the
court could no longer find significant connections and substantial evidence,
jurisdiction would no longer exist.” 23 Pa.C.S.A. § 5422, cmt. 1.
The trial court found that Pennsylvania no longer has exclusive,
continuing jurisdiction in this case because Child does not have a significant
connection to Pennsylvania, and virtually all the evidence and witnesses that
would be needed for trial are in Missouri. See Memorandum and Order of
Court, 12/27/21, at 2-3. In support of its no “significant connection”
determination, the trial court found that Mother has exercised no custody time
with Child for more than two years, including the fourteen months before
Father and Child left Pennsylvania in August 2020, and more than one year
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thereafter; Child lived exclusively in Missouri for the fifteen months preceding
Mother’s Emergency Petition; Child has attended school in Missouri since the
beginning of the 2020-21 school year; and Child’s medical providers are in
Missouri. See id. at 3 (unnumbered). Concerning the “substantial evidence”
prong, the court found that virtually all of the evidence and witnesses that
would be needed for trial are in Missouri. See id.11
Based on these facts, we uphold the trial court’s assessment that Child’s
prior connection to Pennsylvania became attenuated over time. Mother and
Child did not have a meaningful relationship at the time Mother filed her
Emergency Petition. Although some witnesses and evidence exist in
Pennsylvania regarding Child’s history, the evidence concerning his current
best interests is in Missouri. Accordingly, we find no error of law in the trial
court’s conclusion that Child no longer had a significant connection to
Pennsylvania and substantial evidence concerning Child’s care, protection,
training, and personal relationships is no longer available in Pennsylvania.
See Rennie, 995 A.2d at 1222; 23 Pa.C.S.A. § 5422, cmt.12
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11 The trial court recognized that Father did not give notice of his relocation to
Missouri but emphasized that Mother failed to take any action to maintain a
relationship with Child for more than two years. See Memorandum and Order
12/27/21, at 3.
12We note that other courts interpreting the UCCJEA’s “significant connection”
provision also focus on whether parenting time has been exercised in the
state. See, e.g., Griffith v. Tressel, 925 A.2d 702, 712-13 (N.J. Super.
2007) (collecting cases that assess “significant connection” by examining
(Footnote Continued Next Page)
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Mother cites S.K.C for the proposition that the trial court’s transfer of
jurisdiction to Missouri rewards Father for his behavior by unilaterally
relocating and by withholding Child from Mother. We acknowledge that this
Court has considered the conduct of the parent outside Pennsylvania and
“refuse[d] to incentivize contemptuous behavior on the part of a litigant.”
S.K.C., 94 A.3d at 412-13. However, we find S.K.C. distinguishable.
In S.K.C., a father took his child from Pennsylvania, where he, the
mother, and their child resided, to Canada and then refused for five months
to comply with a custody order that required him to allow the mother to bring
the child to Pennsylvania once per month. This Court affirmed the trial court’s
determination that Pennsylvania maintained exclusive, continuing jurisdiction.
We refused to transfer jurisdiction to Canada which would in effect reward the
father for interfering with the mother’s active attempts to visit with her child
in Pennsylvania. See S.K.C., 94 A.3d at 412-14.
Mother here knew in June 2019, that Child was with Father and did not
make any attempt to retrieve him from Father or file an emergency petition
alleging violation of the custody order. She took no legal action for more than
two years, which included a span of nearly one year after Maternal
Grandmother told her in December 2020, that Father’s parents, with whom
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whether parenting time was exercised in the state asserted to have exclusive,
continuing jurisdiction).
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he and Child resided, had sold their house. As the trial court stated, Mother
here “failed to take any action to maintain a relationship with her son for over
two years.” See Trial Court Opinion, 2/16/22, at 3. For these reasons, S.K.C.
does not support Mother’s claim.
The trial court declined to hold Father in contempt for willfully violating
the custody order. Mother and Father had separated and reconciled multiple
times, and largely disregarded the custody order (and its predecessor) in
practice. See Trial Court Opinion, 2/16/22, at 9. The record supports the
court’s decision. The court credited Father’s testimony that Mother did not
answer or return his call or Child’s after they left and attempted to contact her
prior to moving to Missouri. See id. at 8-9. Additionally, even by Mother’s
own testimony, she did almost nothing to contact Child or attempt to regain
custody of him. See id. at 7-10. Further, Mother abused drugs for the first
year and one half after Child left, and failed to engage Child when Father was
not around. See id. Under the circumstances, we agree that it was “plausible
for Father to believe that Mother abandoned her child and did not wish to
continue exercising custody of the child, as she hadn’t done so in over two
years.” Trial Court Opinion, 2/16/22, at 9.
In her fourth issue, Mother asserts that the trial court erred by vacating
the order of October 27, 2021, requiring the immediate return of Child to
Pennsylvania. However, Mother’s argument about the order of October 27,
2021, is confined to one sentence in which she disagrees with the trial court’s
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assessment that Mother had omitted facts in her Emergency Petition and that
no emergency ever existed. See Trial Court Opinion, 2/16/22, at 7-8 (stating
that Mother had no contact with Child for more than two years prior to the
filing of the Emergency Motion, and for a substantial period was unable to
provide a drug-free environment for Child).
Accordingly, Mother waived her fourth issue by failing to provide any
discussion of the claim with citation to relevant authority. See B.S.G. v.
D.M.C., 255 A.3d 528, 535 (Pa. Super. 2021); see also Pa.R.A.P. 2119(a).13
Mother’s fifth and final issue asserts in a single sentence that the trial
court erred in dismissing her Emergency Petition and incorporates her fourth
argument by reference, a practice we do not endorse. Mother disagrees with
the trial court’s assessment that Father’s violation of the order was not willful,
emphasizes that Father does not dispute that he moved to Missouri with Child
without filing a petition for relocation in the trial court, and contends she did
not abandon Child but feared Father, as demonstrated by her receipt of a PFA
order against him in 2010. See Mother’s Brief at 15-16.
Mother fails to develop her claim by omitting any discussion of
supporting case law regarding contempt orders and neglecting to discuss the
law in relation to her claim. Accordingly, she has waived her issue. See
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13 Even were Mother’s claim reviewable, given our determination that
Pennsylvania does not have exclusive and continuing jurisdiction over the
custody determination, we would not find that the trial court erred in vacating
its order requiring Child’s immediate return to Pennsylvania.
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B.S.G., 255 A.3d at 535 (holding that an appellant waives a claim by failing
to provide any discussion of the claim with citation to relevant legal authority);
Pa.R.A.P. 2119(a).14
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14 Even if we were to address Mother’s argument concerning contempt, it
would not merit relief. Our review of contempt orders is limited to determining
whether the trial court abused its discretion in declining to make a finding of
contempt. See E.B. v. D.B., 209 A.3d 451, 469 (Pa. Super. 2019). Although
Pennsylvania lost its jurisdiction under the UCCJEA, it retained its jurisdiction
to enforce the 2016 order through civil contempt. See Com. ex rel. Taylor
by and Through Taylor v. Taylor, 480 A.2d 1188, 1189 (Pa. Super. 1984)
(holding, under prior version of UCCJEA, that the trial court may enforce its
prior custody order if validly entered and not modified by a court in another
jurisdiction, even if it lost jurisdiction to enter a new order or modify the
order).
We discern no abuse of discretion in the trial court’s conclusion that
Father did not willfully violate the custody order based upon his belief that
moving to Missouri would not disrupt Mother’s custody of Child because she
had made no attempts to exercise that custody for more than one year before
the move to Missouri. Additionally, although Father did not file a notice of
relocation in the trial court, the Custody Act, 23 Pa.C.S.A. §§ 5321-5340, does
not require the trial court to find a parent in contempt upon a failure to provide
reasonable notice of a proposed relocation. See 23 Pa.C.S.A. § 5337(j)(5)
(providing that a court “may consider a failure to provide reasonable notice
of a proposed relocation as . . . a ground for contempt and the imposition of
sanctions against the party proposing the relocation[.]”) (emphasis added).
The trial court found that it was not Father’s actions that caused Mother’s lack
of continuing involvement with Child, and that the parties had not previously
abided by the custody order that is the focus of Mother’s assertion of
contempt. Thus, we do not find that the trial court abused its discretion in
dismissing Mother’s contempt petition.
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Based on the foregoing, we affirm the trial court’s December 27, 2021,
order relinquishing jurisdiction over the custody case to the court of Pulaski
County, Missouri.15
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2022
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15 We emphasize that our decision affirms the decision of the trial court to
transfer jurisdiction over this custody matter to Missouri. Nothing in our
decision precludes Mother from pursuing custody in the Missouri court; we
simply affirm the trial court’s decision that Pennsylvania no longer retains
exclusive, continuing jurisdiction over this custody matter.
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