Boback v. Pershing

311 A.3d 1126

Trenten J. BOBACK

v.Christina M. PERSHING

v.Michele L. Boback and Jeffrey R. Boback, Appellants

No. 855 WDA 2023

Superior Court of Pennsylvania.

Submitted December 18, 2023

Filed February 21, 2024

Appeal from the Order Entered June 30, 2023, In the Court of Common Pleas of Cambria County, Civil Division, at No(s): No. 2014-177, Linda R. Fleming, J.

Lauren Darbouze, Johnstown, for appellants.

Randi J. Silverman, Johnstown, for appellee.

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

OPINION BY DUBOW, J.:

Appellants, Michele L. Boback and Jeffrey R. Boback ("Paternal Grandmother" and "Paternal Grandfather"; collectively, "Paternal Grandparents"), appeal from the June 30, 2023 order entered in the Cambria County Court of Common Pleas that found that the Commonwealth of Pennsylvania no longer possesses exclusive, continuing jurisdiction of the custody proceedings involving now-twelve-year-old J.M.B. ("Child") under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") and ordered the prothonota- ry to transfer the case to the Circuit Court, Family Court, Bullitt County, Kentucky, where both Child and her father, Trenten J. Boback ("Father"), live. Upon review, we affirm.

This case has a long history of custody litigation with which the parties are familiar, so we need not repeat it in detail here. Relevant to this appeal, Father and Christina M. Pershing ("Mother") (collectively, "Parents") are parents to Child. Parents were in a relationship when Child was born in November 2011, but Parents never married. Paternal Grandparents played a significant role in caring for Child for the first eight years of her life due to Father’s young age and military assignments,¹ as well as Mother’s work schedule. On July 17, 2018, via a consent order, Parents consented to Paternal Grandparents intervening in their custody matter.

On February 5, 2020, the trial court entered a custody order granting shared legal custody to Father and Mother, primary physical custody to Father, and partial physical custody to Mother and Paternal Grandparents. On December 9, 2020, Father filed a petition for contempt and special relief alleging that Paternal Grandmother was inappropriately disparaging Parents to Child during her custodial time. In response, Paternal Grandparents filed a petition for modification of custody and a motion for contempt.

On February 10, 2022, after a hearing, the court restricted Paternal Grandparents’ custodial time to supervised physical custody during the summer and holidays, at Parents’ discretion. This Court affirmed both custody orders. See T.B. v. C.M.W., 240 A.3d 934 (Pa. Super. 2020) (non-precedential decision); Boback v. Pershing, 285 A.3d 932 (Pa. Super. 2022) (non-precedential decision).

Notably, at the time that the court entered the February 10, 2022 custody order, Mother lived in Indiana, Father and Child lived in South Carolina,² and Paternal Grandparents lived in Pennsylvania. Parents were both married to other people, had additional children, and were co-parenting Child amicably. On March 7, 2023, Father and Child moved to Kentucky in compliance with transfer orders received from the United States Army.

On April 27, 2023, Paternal Grandparents filed another petition to modify custody requesting primary physical custody of Child. In response, on May 15, 2023, Father field preliminary objections challenging Paternal Grandparents’ standing to pursue custody. On May 22, 2023, the trial court sua sponte issued a Rule to Show Cause to all parties to show (1) why the Cambria County Court of Common Pleas has not lost exclusive, continuing jurisdiction under the UCCJEA, and (2) why this case should not be transferred to the county and state where Father resides. Paternal Grandparents filed a timely response, while Father filed an untimely response.

On June 30, 2023, the trial court ordered that Pennsylvania no longer possesses exclusive, continuing jurisdiction under the UCCJEA because neither parent, nor a person acting as a parent, resides in Pennsylvania. Order, 7/30/23. The court further ordered that jurisdiction properly belongs in Kentucky in the county where Father and Child reside and ordered the Cambria County prothonotary to transfer to case to the Circuit Court, Family Court, Bullitt County, Kentucky, within 31 days. Id.

Paternal Grandparents timely appealed. Both Paternal Grandparents and the trial court complied with Pa.R.A.P. 1925.

Paternal Grandparents raise the following issues for our review:

1. Did the trial court err in findings that the Court of Common Pleas of Cambria County, Pennsylvania, had lost exclusive and continuing jurisdiction under the UCCJEA after failing to give appropriate weight and consideration to Paternal Grandparent’s in loco parentis status to the child?

2. Did the trial court fail to consider the child’s significant ties to Pennsylvania in determining jurisdiction of the matter no longer appears in Pennsylvania?

3. Did the trial court fail to consider the significant ties of the case to Pennsylvania in determining jurisdiction of the matter no longer appears in Pennsylvania?

Paternal Grandparents’ Br. at 4.

A.

[1, 2] A trial court’s decision that it retains or relinquishes exclusive, continuing jurisdiction over a custody determination pursuant to Section 5422 of the UCCJEA implicates the court’s subject matter jurisdiction and is purely a question of law. S.K.C. v. J.L.C., 94 A.3d 402, 408 (Pa. Super. 2014). Accordingly, this Court’s standard of review is de novo and our scope of review is plenary. Id. Moreover, "[i]t is well-settled that the question of subject matter jurisdiction may be raised at any time, by any party, or by the court sua sponte." B.J.D. v. D.L.C., 19 A,3d 1081, 1082 (Pa. Super. 2011) (citation omitted).

This Court has explained, "[t]he purpose of the UCCJEA 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) (citation omitted). Section 5422 provides, in relevant part, that a court that has made an initial child custody 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; or

(2) a court of this Commonwealth or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this Commonwealth.

[3] 23 Pa.C.S. § 5422(a)(l-2) (emphasis added). Notably, "Section 5422 is written in the disjunctive, and, therefore, [ ] the trial court [i]s required only to determine whether the child[ ] fail[s] one of the jurisdictional tests set forth in Section 5422(a)[.]" T.D. v. M.H., 219 A.3d 1190, 1195 (Pa. Super. 2019) (emphasis added).

Instantly, the trial court determined that Pennsylvania no longer possesses exclusive, continuing jurisdiction pursuant to Section 5422(a)(2) and, therefore, we will concentrate our analysis on this subsection. The comment to Section 5422 explains that "[c]ontinuing jurisdiction is lost when the child, the child’s parents, and any per- son acting as a parent no longer reside in the original decree state." 23 Pa.C.S. § 5422 cmt. Section 5402 of the UCCJEA defines "person acting as a parent" as "[a] person, other than a parent, who:

(1) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and

(2) has been awarded legal custody by a court or claims a right to legal custody under the laws of this Commonwealth.

23 Pa.C.S. § 5402 (emphasis added). The UCCJEA further defines "physical custody" as "[t]he physical care and supervision of a child." Id.

[4] Notably, "a remaining grandparent or other third party who claims a right to visitation, should not suffice to confer exclusive, continuing jurisdiction on the state that made the original custody determination after the departure of the child, the parents and any person acting as a parent." Id. at § 5422 cmt. Moreover, "when making a determination under [S]ection 5422, the trial court must rely upon the factual circumstances as they existed when the modification petition was filed." T.D., 219 A.3d at 1197 (citation omitted). Finally, the comments to Section 5402 of the UCCJEA direct a court to determine the issue of whether someone is " ‘a person acting as a parent’ under its own law." 23 Pa.C.S. § 5402 cmt.

In their first issue, Paternal Grandparents aver that the trial court erred when it failed to consider their in loco parentis status. Paternal Grandparents’ Br. at 4. Paternal Grandparents concede that Child and Parents do not live in Pennsylvania. Id. at 13. However, they argue that they qualify as a "person acting as a parent" under Section 5422(a)(2) and, therefore, Pennsylvania should retain exclusive, continuing jurisdiction. Id. at 14. They further argue that they meet the Section 5402 definition of "person acting as a parent" because they (1) were awarded periods of supervised physical custody with Child and (2) claim a right to legal custody of Child in their April 27, 2023 petition for modification of custody where they request primary physical and shared legal custody. Id. at 16. Paternal Grandparents essentially contend that the trial court’s award of supervised physical custody of Child to them qualifies them as having "physical custody of the child" under Section 5402 and satisfies the definition of "person acting as a...