Opinion
431 WDA 2021
01-28-2022
KRISTA J. BAXTER v. ELIYAHOU WENICK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 4, 2021 In the Court of Common Pleas of Warren County Civil Division at No(s): A.D. 76 of 2021
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J. [*]
MEMORANDUM
PELLEGRINI, J.
Eliyahou Wenick (Wenick) appeals an order of the Court of Common Pleas of Warren County (trial court) granting Krista J. Baxter's (Baxter) petition for a protection of abuse (PFA) order. We affirm.
Wenick and Baxter are former romantic partners who had a child together (G.B.) in 2019. On February 17, 2021, Baxter petitioned for a PFA order, seeking to limit Wenick's contact with her and G.B. A temporary PFA order was entered to that effect on February 19, 2021, following an ex parte hearing.
At the hearing on the final PFA, Baxter testified to a series of interactions with Wenick which she claimed put her in reasonable fear of imminent harm, justifying a PFA order. First, she testified that in early 2019, when she and Wenick were still residing as a couple in Arizona, Wenick choked her while she was pregnant with G.H. This violent act prompted Baxter to move back to Warren County, Pennsylvania, where her parents reside.
Baxter next described an incident in late 2019 when Wenick visited her and G.H. at her parents' home. Wenick, at one point, tightly grabbed Baxter's wrists and told her that he would "kill her in court." After the incident, Baxter testified that she sought counselling and reported what happened to the police.
A third incident took place that same year, as Baxter was backing her car out of her parents' driveway. Wenick was sitting in the back seat with G.H. and discussing their respective living arrangements. Baxter testified that when the conversation between Wenick and she grew heated, he reacted by grabbing the back of Baxter's seat and shaking it violently. As he did so, Wenick directed several profanities at Baxter, and when she asked if he intended to strike her, Wenick said, "I would, but . . . you are worthless." See Trial Court Opinion, 5/11/2021, at 7.
Finally, Baxter testified concerning the incident which precipitated her petition for a PFA order on February 17, 2021. By that time, the custody proceedings had begun, and the trial court had ordered Wenick not to directly contact Baxter or G.H. Instead, Wenick had to communicate with Wenick through a secure online application called Our Family Wizard. Nevertheless, on the above date, Wenick appeared without advance notice at Baxter's place of work in Jamestown, New York, and called her cellular phone. He also left voice messages which Baxter did not respond to. When Baxter began her drive home that night, someone in an unknown vehicle drove past her while repeatedly flashing the headlights and honking the car horn.
Baxter and Wenick stipulated to a custody order in December 2020 which afforded Wenick the right of unsupervised custody, but this right was contingent on Wenick using the mandated channels to make the necessary arrangements with Baxter.
Later that evening, Baxter contacted Wenick through Our Family Wizard. Baxter learned that Wenick had been the motorist who had accosted her, and that he had been attempting to schedule a visit with G.H. Baxter testified that Wenick's conduct had greatly alarmed her because he had flouted the terms of the custody order as to how and when he could contact her and make visitation arrangements.
Wenick gave a very different account as to the nature of his interactions with Baxter. He testified that he did not grab Baxter's wrists in 2019 as she had alleged, and that he had only tried to warn Baxter against the stress of custody proceedings by pointing out figuratively that, "people kill each other in court." Evidentiary Hearing Transcript, 3/3/2021, at pp. 72-73. He also denied that the other episodes in 2019 ever took place.
As to the Jamestown incident on February 17, 2021, Wenick claimed that he was living in California at the time, and that he and Baxter had communicated extensively about scheduling a visit with G.H. in Pennsylvania. When Wenick arrived in Pennsylvania as planned, he was unable to get in touch with Baxter, so he rented a car and drove to Jamestown, New York, where Baxter worked. According to Wenick, he was upset about having incurred the expense of his trip and the risk of a Covid-19 infection, insisting that the incident in Jamestown only occurred because he was desperate to see his child.
Largely finding Wenick's testimony not credible, the trial court entered a final PFA order restricting Wenick's contact with Baxter for a period of three years. However, the trial court denied the portion of Baxter's petition seeking additional contact restrictions between Wenick and G.H. because the child had never been harmed or in danger from harm during the subject incidents.
Baxter does not appeal the scope of the final PFA order, and the partial denial of her petition is not now at issue.
Wenick timely appealed, and in his appellate brief, he raises two issues for our consideration:
1. Whether the [trial] court erred in granting [the final PFA order] against [Wenick] although he did not cause physical injury or
place [Baxter] in reasonable fear of serious bodily injury or sexual assault?
2. Whether the [trial] court erred in granting a protection from abuse order when it lacked jurisdiction over the matter?Appellant's Brief, at 7 (suggested answers omitted).
After a thorough review of the record, the briefs of the parties, the applicable case law, and the well-reasoned opinion of the trial court, which comprehensively discusses and properly disposes of the questions presented, we find that the trial court did not err in granting the final PFA order.
Wenick's second appellate issue is that the trial court lacked jurisdiction. He argues in his brief that the trial court had no authority to enter the final PFA order because he resides in another state, not all the incidents giving rise to the order occurred in Pennsylvania, and the order does not relate to the underlying custody dispute that was the initial basis for the trial court's jurisdiction.
However, a trial court in this Commonwealth "may exercise personal jurisdiction over a person who acts directly . . . as to a cause of action or other matter arising from such person causing harm or tortious injury by an act or omission in this Commonwealth." 42 Pa.C.S. § 5322(a)(3). "Exclusive, continuing jurisdiction over child custody matters is conferred by 23 Pa.C.S. § 5422(a) on the court which has made an initial custody determination and endures until the child's connection with the Commonwealth is severed." B.T.W. ex rel T.L. v. P.J.L., 956 A.2d 1014, 1016 (Pa. Super. 2008). "[A]n action for protection from abuse may be brought in a county in which (1) the plaintiff resides, either temporarily or permanently, or is employed, or (2) that defendant may be served, or (3) the abuse occurred." 231 Pa. Code Rule 1901.1(a).
A child custody proceeding is defined as "a proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear." 23 Pa.C.S. § 5402.
In this case, the initial custody order as to G.B. was entered in 2020 by stipulation of the parties in Warren County, Pennsylvania. The alleged instances of abuse were related to those custody proceedings. Accordingly, the trial court properly exercised jurisdiction over the parties at the outset, and thereafter retained jurisdiction because the connection between G.H. and the Commonwealth had not been severed. See 42 Pa.C.S. §§ 5322(a)(3), 5422(a).
The temporary PFA order identified the child as a protected party, and the final PFA order directed that all communication between Wenick and the child would have to made via the online application, Our Family Wizard. The PFA proceedings were, therefore, related to the underlying custody proceedings.
Additionally, because several of the alleged incidents prompting the final PFA order occurred in Pennsylvania and Baxter has resided in Warren County, Pennsylvania, at all relevant times, her action for protection from abuse was properly brought in that forum. See 231 Pa. Code Rule 1901.1(a).
As to the merits, Wenick contends that there was an insufficient factual basis for the final PFA order because Baxter was not subject to "abuse" for the purposes of the Protection From Abuse Act, 23 Pa.C.S. §§ 6101-6122. The term is defined in pertinent part as follows:
(1)Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury, serious bodily, injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault, or incest with or without a deadly weapon.
(2)Placing another in reasonable fear of imminent serious bodily injury.
* * * *
(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority, under circumstances which place the person in reasonable fear of bodily injury.23 Pa.C.S. §6102(a).
In its opinion, the trial court fully detailed four incidents which could have reasonably put Baxter in fear of serious bodily injury. See Trial Court Opinion, 5/11/2021, at 6-9. She was at various times choked, grabbed, verbally threatened and harassed by Wenick. Even if Baxter did not sustain serious physical injury due to those interactions, they were certainly enough to put her in fear of serious bodily injury.
Wenick contends Baxter's allegations against him are fabricated, misinterpreted or simply exaggerated versions of what really transpired. Yet, to the extent that Wenick's own testimony differed from that of Baxter, we are bound by the trial court's determination that Baxter's account was the more credible of the two. Thus, the trial court did not abuse its discretion in finding that the final PFA order was warranted.
The purpose of the PFA Act is to protect victims of domestic violence from those who perpetuate such abuse, with the primary goal being the prevention of physical and sexual abuse. Buchhalter v. Buchhalter, 959 A.2d. 1260, 1262 (Pa. Super. 2008); see also 23 Pa.C.S. § 6108 (enumerating forms of relief availing under the Act). "A PFA order may be justified if the trial court finds that it is supported by a preponderance of evidence." K.B. v. Tinsley, 208 A.3d.123, 128 (Pa. Super. 2019). The trial court's exclusive role as the finder of fact is to assess the demeanor and credibility of witness testimony. See C.H.L. v. W.D.L., 214 A.3d 1272, 1276-77 (Pa. Super. 2019). When reviewing the propriety of a PFA order, an appellate court applies an abuse of discretion standard and must defer to the trial court's credibility determinations. Id. All record evidence must be viewed in the light most favorable to the party for whom a PFA order was granted. Id.
Order affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.