Opinion
J-A21035-17 No. 353 WDA 2017
10-16-2017
J.D. Appellant v. N.T. (N.K.A. T.)
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered March 2, 2017
In the Court of Common Pleas of Allegheny County
Family Court at No: FD 06-9214-002 BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ. MEMORANDUM BY STABILE, J.:
J.D. ("Father") appeals from the March 2, 2017 order in the Court of Common Pleas of Allegheny County that granted, in part, the petition of N.T. (N.K.A. T.) ("Mother"), to enforce the child custody order issued in the Kobe Family Court, Japan, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), 23 Pa.C.S. § 5401, et seq., with respect to the parties' son, L.N.D. In addition, the March 2, 2017 order vacated the prior orders entered in the Allegheny County Court of Common Pleas awarding custody to Father. Upon careful review, we affirm.
L.N.D. was born in November of 2001. At the time of the subject proceedings, L.N.D. was fifteen years old.
For a recitation of the complete factual and procedural history of this case, we refer the reader to the trial court's comprehensive opinion pursuant to Pa.R.A.P. 1925(a), which the testimonial and documentary evidence supports. See Trial Court Opinion, 4/11/17, at 1-14. As such, we adopt it herein. Id.
By way of background, Father, who was born in Allegheny County, Pennsylvania, and Mother, who was born in Japan, were married in 1994. Trial Court Opinion, 4/11/17, at 1. Their children, L.N.D., and his older brother, J.L.D., were born in Japan. Id. L.N.D. lived in Japan all of his life, but he traveled to Allegheny County at times with Father to visit his paternal relatives, inter alia. Id .
J.L.D., who was born in August of 1998, is an adult, and is not a subject of this appeal. As such, the trial court did not include J.L.D. in its recitation of the procedural history of this case.
In 2005, Mother and Father obtained a divorce decree in Japan. Id. at 2. In February of 2005, they entered into a legally binding custody agreement in Japan whereby they shared physical custody of L.N.D., and Mother had "parental authority" over L.N.D. Id. In January of 2007, Mother and Father participated in a Japanese custody mediation, which resulted in an agreement that Father would have "parental authority" over L.N.D., and that the parties would continue to share physical custody. Id. at 4.
With respect to their 2005 Japanese custody agreement, and the subsequent Japanese child custody orders, infra, the parties agree that "parental authority" relates to the concept of legal custody in Pennsylvania child custody law. See Father's Brief at 3-4; Mother's Brief at 3, n. 1; Father's reply brief at 4-5.
On November 3, 2006, Father initiated a custody action in the Allegheny County Court of Common Pleas ("trial court"). Father alleged, in part, pursuant to the 2005 Japanese custody agreement, that L.N.D. was in his care and custody for greater than one-half of the time. Id. at 2; Petition to Confirm Custody, 11/3/06, at ¶ 10. Specifically, Father alleged that L.N.D. was in his custody in Allegheny County from July 25, 2006, through November 3, 2006, the date Father filed the custody complaint. Trial Court Opinion, 4/11/17, at 3. Father requested primary physical and legal custody based on L.N.D. having "lived throughout [his] li[fe] in Pennsylvania." Id. The trial court explained, "Mother did not appear to contest" Father's custody complaint, and the trial court granted his request by order dated November 3, 2006. Id. Importantly, Father never sought to enforce the trial court's order in Japan, where he and L.N.D. had subsequently returned. Id. at 4.
On September 26, 2012, Mother filed a custody action in the Kobe Family Court, Japan, wherein she requested "parental authority" and custody of L.N.D. Id. at 5. Father filed his own petitions in Japan, wherein he requested, inter alia, enforcement of his "parental authority" and full custody. Id. In fact, Father alleged that Mother sexually abused L.N.D., which caused L.N.D. to develop dissociative identity disorder. See Kobe Family Court Decision and Order, 3/20/15, at 12.
By order dated March 20, 2015, the Kobe Family Court granted Mother's request for "parental authority" and for physical custody of L.N.D. Trial Court Opinion, 4/11/17, at 9. The Kobe Family Court found, inter alia, after full investigation, that Mother did not sexually abuse L.N.D. See Kobe Family Court Decision and Order, 3/20/15, at 14. Further, the Kobe Family Court found that L.N.D. does not suffer from dissociative identity disorder or any other mental disorder. Id. Father appealed the custody order to the Osaka High Court, Tenth Civil Division, Japan, which affirmed the order on August 20, 2015. See Osaka High Court, Tenth Civil Division, Decision and Order, 8/20/15. Thereafter, Father filed an appeal to the Second Petty Bench, Supreme Court, Japan, which, by unanimous opinion, dismissed the appeal by order dated December 16, 2015. See Second Petty Bench, Supreme Court, Order, 12/16/15.
After the January 2007 Japanese custody mediation agreement, as well as during the pendency of the child custody litigation commenced by Mother in Japan in September 2012, Father filed multiple custody petitions in the trial court. Father omitted material facts in his petitions. Specifically, Father did not aver "anything about the parties' 2007 Japanese mediation . . . agreement regarding shared physical custody, Mother's initiation of Japanese legal proceedings in 2012, Father's own and subsequent initiation of Japanese legal proceedings, that the parties had undergone multiple Japanese custody mediations, or that the Japanese legal proceedings were ongoing." Trial Court Opinion, 4/11/17, at 6.
In March of 2009, and again in June of 2013, Father requested clarification of the 2006 custody order, initially seeking primary legal and physical custody of L.N.D., and then seeking sole legal and physical custody of L.N.D. Trial Court Opinion, 4/11/17, at 4, 6. On May 24, 2013, and July 5, 2013, Father filed petitions for contempt against Mother. Id. at 5, 7. In December of 2013, Father filed a protection from abuse ("PFA") petition against Mother, wherein he alleged that Mother was sexually assaulting L.N.D. Id. at 7. The trial court entered orders granting all of Father's requested relief.
During the pendency of Father's appeals of the custody order in Japan, Father continued to present motions to the trial court seeking relief "without mentioning the Japanese legal proceedings or that Mother had actually been awarded parental authority and physical custody of [L.N.D.] in Japan." Id. at 9 (citation to record omitted).
Finally, in July of 2016, Father presented an ex parte emergency motion in the trial court, wherein he alleged, inter alia, that L.N.D. would be traveling with Mother in Canada in August of 2016. Id. at 10. Father requested that the trial court issue an order directing the Canadian authorities to, in part, transfer L.N.D. from Mother's custody to his physical custody, which the trial court granted. Id. at 10-11. As such, in August of 2016, Father obtained custody of L.N.D. in Canada, and they came to Pennsylvania. Id. at 11.
In September of 2016, Mother filed the subject petition in the trial court, wherein she requested that it (1) enforce the Japanese custody order; (2) vacate the trial court's previous custody orders; and (3) obtain sanctions against Father for failure to disclose the Japanese proceedings to the court. The trial court held an evidentiary hearing on October 14, 2016, November 18, 2016, January 27 and 30, 2017, February 3, 7, and 9, 2017. The trial court summarized the parties' arguments as follows.
Mother contends she is entitled to enforcement of the Japanese order pursuant to the [UCCJEA], specifically 23 Pa.C.S. §§ 5405 [(International application of chapter)], 5448 [(Expedited enforcement of child custody determination)], and 5453 [(Duty to enforce)]. Mother further argues that Father's custody orders entered in [the trial] [c]ourt should be afforded no weight or merit as (i) [the trial] [c]ourt did not have jurisdiction to enter them under the UCCJEA, see 23 Pa.C.S. § 5421(a) [(Initial child custody determination)]; (ii) even if [the trial] [c]ourt had jurisdiction to enter them, it no longer has such jurisdiction, see 23 Pa.C.S. § 5424 [(Temporary emergency jurisdiction)]; and (iii) should the foregoing two positions fail, jurisdiction should nevertheless be declined pursuant to 23 Pa.C.S. § 5427 [(Inconvenient forum)].Order, 3/2/17, at 7.
Father rejects Mother's arguments, contending, among other things, that (i) [the trial] [c]ourt had jurisdiction to initially enter the November 2006 custody order; (ii) [the trial] [c]ourt has never lost jurisdiction; (iii) the Japanese courts, accordingly, never had jurisdiction to enter the custody order made final in 2015 since jurisdiction has always resided in [the trial] [c]ourt; (iv) the Japanese legal process and system denied Father[,] and will continue to deny Father[,] important legal and human rights, including the right to cross-examine Mother and to have joint custody of [L.N.D.]; and (v) [the trial] [c]ourt may invoke emergency jurisdiction under the UCCJEA should the foregoing arguments lack merit.
By order dated March 2, 2017, the trial court granted Mother's petition, in part, as follows:
1) Mother's Petition is granted in the following respects: the Japanese custody order made final on December 16, 2015 shall be enforced, and [the trial court's] orders awarding custody of [L.N.D.] to Father are hereby vacated due to the lack of initial, continuing, or emergency jurisdiction.Order, 3/2/17, at 8.
2) The Japanese legal proceedings did not deprive Father of notice or the opportunity to be heard.
3) The Japanese child custody laws do not violate fundamental principles of human rights.
4) The parties' claims concerning sanctions and attorneys' fees are preserved for future proceedings.
Father timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed its Rule 1925(a) opinion on April 11, 2017.
Father presents the following issues for our review:
a. Whether the trial court erred by finding that there was not Emergency Jurisdiction under the UCCJEA[?]
b. Whether the trial court erred by finding that it did not have subject matter jurisdiction and/or finding that subject matter jurisdiction was lost[?]
c. Whether the trial court erred by vacating any protection from abuse orders[?]
d. Whether the trial court erred in failing to find that [M]other waived her challenge to subject matter jurisdiction[?]
e. Whether the trial court erred by denying [F]ather the right to call witnesses, such as Dr. Bruce Chambers and Annette Tierney as applied to emergency jurisdiction[?]Father's Brief at 2.
f. Whether the trial court erred by failing to admit certain evidence and testimony of the child's abuse[?]
g. Whether the trial court erred by not finding that the Japanese court lacked subject matter jurisdiction[?]
h. Whether the trial court erred by finding that the Japanese custody law does not violate fundamental principles of human rights[?]
i. Whether the trial court erred by finding that the Japanese custody law does not violate due process[?]
On June 16, 2017, Father filed a motion to strike Appellee's Brief due to her failure to comply with Pa.R.A.P. 2117(a)(4) (Statement of the Case) and 2119(c) (Argument). Specifically, Father avers that Mother's brief does not include any citations to the reproduced record or the certified record in support of her recitation of the relevant facts in the case. Further, Father avers that this Court should strike Mother's appellee brief because her counsel did not provide his counsel with a hardcopy of the brief in violation of Pa.R.A.P. 2187(a)(3) (providing, "each party shall serve 2 copies of its definitive brief and reproduced record on every other party separately represented"). However, Father asserts that he received an electronic copy of Mother's brief on the date she filed it in this Court's PACfile system. Upon review, Father does not allege that he suffered any prejudice due to Mother's noncompliance with the foregoing rules, nor are we aware of any. Indeed, the parties are well acquainted with the facts of this case, and Mother served Father with her appellee brief. Accordingly, we deny Father's motion.
In reviewing Father's issues on appeal, we apply the following standard:
[W]here [t]he issue for review centers on the question of subject matter jurisdiction....this question is purely one of law, our
standard of review is de novo, and our scope of review is plenary.B.J.D. v. D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011) (quotations and citations omitted).
In S.K.C. v. J.L.C., 94 A.3d 402 (Pa. Super. 2014), this Court differentiated between an appeal from an order to exercise or decline jurisdiction, which would be subject to an abuse of discretion standard. We explained:
This language is accurate in that, when a trial court possesses subject matter jurisdiction over a child custody dispute, a trial court's decision to exercise that jurisdiction is subject to an abuse of discretion standard of review. However, we have imprecisely quoted this language even when the question was not whether the trial court properly exercised (or declined to exercise) jurisdiction, but rather the question was whether the trial court actually possessed subject matter jurisdiction.
Initially, the UCCJEA applies to child custody determinations issued in foreign countries, as follows:
§ 5405. International application of chapter.
(a) Foreign country treated as state. — A court of this Commonwealth shall treat a foreign country as if it were a state of the United States for the purpose of applying Subchapter B (relating to jurisdiction) and this subchapter.
(b) Foreign custody determinations. — Except as otherwise provided in subsection (c), a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under Subchapter C (relating to enforcement).
(c) Violation of human rights. — A court of this Commonwealth need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.23 Pa.C.S. § 5405.
Pennsylvania has jurisdiction to make an initial child custody determination as follows, in relevant part:
§ 5421. Initial child custody jurisdiction.
(a) General rule. — Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:
(1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;
(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) and:
(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and
(ii) substantial evidence is available in this Commonwealth concerning the child's care, protection, training and personal relationships;
(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to
determine the custody of the child under section 5427 or 5428; or
(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).
23 Pa.C.S. § 5421(a), (b).
(b) Exclusive jurisdictional basis. — Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth.
. . .
We also observe Section 5425 (Notice; opportunity to be heard; joinder) which provides, in part, that the UCCJEA "does not govern the enforceability of a child custody determination made without notice or any opportunity to be heard." 23 Pa.C.S. § 5425(b).
Finally, Section 5424 (Temporary emergency jurisdiction) provides in relevant part:
A court of this Commonwealth has temporary emergency jurisdiction if the child is present in this Commonwealth and the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.23 Pa.C.S. § 5424(a).
Father first argues, with respect to issue "h," that the trial court erred in failing to find that Japan's child custody laws violate fundamental human rights. Father also argues, with respect to issue "i," that the trial court erred in failing to find that the Japanese courts violated his guarantee of due process. Therefore, Father argues that the trial court erred by enforcing the Japanese custody order pursuant to Section 5405(c) (International application of chapter) and 5425(b) (Notice; opportunity to be heard; joinder). Next, regarding issue "a," Father argues that the trial court erred in concluding that it did not have emergency jurisdiction under Section 5424 (Temporary emergency jurisdiction); namely, to protect L.N.D. from alleged sexual abuse by Mother. Father argues that it follows, with respect to issues "e" and "f," the trial court erred by prohibiting him from presenting witnesses and documentary evidence with respect to Mother's alleged sexual abuse of L.N.D. With respect to issues "b" and "g," Father argues that the trial court erred in finding that it did not have subject matter jurisdiction under Section 5421 (Initial child custody jurisdiction). Regarding issue "c," Father argues that the trial court erred by vacating the protection from abuse orders entered against Mother. Finally, regarding issue "d," Father argues that the trial court erred in failing to find that Mother waived her argument that the trial court did not have subject matter jurisdiction.
We have reviewed the subject March 2, 2017 custody order in light of the parties' briefs, the certified record, the trial court's Rule 1925(a) opinion, and the relevant UCCJEA provisions. It is important to note the trial court's credibility determinations against Father as follows, which the record evidence supports.
[M]ultiple pleadings from Father omit[ed] material information and, at times, contain[ed] outright falsehoods. Father, the [trial] [c]ourt believes, sought to dupe [the] [c]ourt throughout this process. Father argued facts in [the] [trial] [c]ourt which
were completely contrary to concessions he freely made in the Japanese Court, i.e., that his travels to [Allegheny County] were for vacation, that Father wanted Japan to be the "home base" of [L.N.D.], and that [L.N.D.] lived in Japan.Trial Court Opinion, 4/11/17, at 22.
The trial court concluded that it never had initial child custody jurisdiction under Section 5421, supra. We agree. The trial court aptly explained:
[L.N.D.] lived in Japan. Mother lived in Japan. Father lived in Japan. Travel to [Allegheny County] was temporary, and [L.N.D.] and Father always intended to return to Japan, until Father -- under false pretenses; after having lost custody litigation in Japan; and after Japan determined, following an investigation, that Mother did not sexually abuse [L.N.D.] -- took custody of [L.N.D.] in Canada last year. Japan was and always has been [L.N.D.]'s home state; jurisdiction was and has always been appropriate there. No litigable threat or danger to [L.N.D.] from Mother in Japan exists for the [trial] [c]ourt to legitimately conclude otherwise.Id. at 23 (emphasis in original; footnote omitted).
Likewise, we agree that the trial court properly refused to exercise temporary emergency jurisdiction under Section 5424, supra. The trial court explained that Father argued it should invoke emergency jurisdiction to protect L.N.D. "from threatened sexual abuse. . . . See Father's Supplemental Trial Memo at 9-10." Id. at 21. The trial court reasoned:
[A]llegations of sexual abuse by Mother against [L.N.D.] were investigated in Japan. [L.N.D.], his brother, Mother, her current husband, among others, were interviewed. Ultimately, Mother was awarded parental authority and custody of [L.N.D.] in Japan, it was determined that Mother did not sexually abuse [L.N.D.], and no criminal charges were filed by the Japanese authorities.
. . . [The trial] [c]ourt, accordingly, declined (i) to assert emergency jurisdiction pursuant to previously litigated and baseless claims and (ii) to permit Father another "bite at the apple" by re-litigating said claims here. . . .Id.
Upon careful review, we conclude that the thorough opinion by the Honorable Susan Evashavik DiLucente, filed on April 11, 2017, pursuant to Pa.R.A.P. 1925(a), addresses all of the issues raised by Father and supports the reasons for the trial court's decision to grant Mother's request to enforce the Japanese custody order and vacate the trial court's previous orders awarding Father custody of L.N.D. We conclude that the trial court did not commit an error of law. Accordingly, we adopt the trial court's April 11, 2017 opinion as our own.
On August 14, 2017, Father filed a motion to supplement wherein he requested permission to supplement the certified record before this Court with an "affidavit of translation," which he attached to the motion as Exhibit A. The affidavit translates Mother's July 31, 2017 response to Father's petition filed against her in the Kobe Family Court, Japan, to change the person with "parental authority" over L.N.D. In said response, Mother requested that Father's petition be dismissed on the basis that she no longer had "parental authority" over L.N.D. Rather, Mother avers that L.N.D.'s maternal grandfather has "parental authority" over him. Mother averred that the maternal grandfather gained "parental authority" by legally adopting L.N.D. in Japan on July 7, 2017. On August 25, 2017, Mother filed an answer to the motion to supplement, and Father filed a reply on August 30, 2017. In her answer, Mother avers that Father "attempts to supplement the certified record without providing Mother the ability to confront Father's factual allegations. . . ." Answer, 8/25/17, at 4. Moreover, Mother avers that Father does not provide an applicable Pennsylvania appellate rule or case law that supports his request that this Court open the certified record to consider new evidence. We agree. Accordingly, we deny Father's motion to supplement. --------
Order affirmed. Motion to strike Appellee's brief denied. Motion to supplement denied. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/16/2017
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Id. at 406-407.