Opinion
J-A07045-15 No. 1831 WDA 2014
08-28-2015
H.L.K. Appellee v. F.A.A. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 23, 2014
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD09-07348-009
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.:
Appellant, F.A.A. (Father) appeals from the October 23, 2014 order, concluding that the family court had jurisdiction to make an initial custody determination pursuant to Section 5421(a) of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 23 Pa.C.S.A. § 5401-5482. The order further declined to register the custody order issued in the Kingdom of Saudi Arabia pursuant to Section 5445(d)(1) and under principles of comity. After careful review, we affirm.
The relevant factual background, as gleaned from the certified record, follows. H.L.K. (Mother), a citizen of the United States, and Father, a citizen of Saudi Arabia, married in Allegheny County in 1994. Family Court Opinion, 10/23/14, at 2. That same year, the parties moved to Saudi Arabia, where their son, M.A.R., was born in October 1996, and their daughters, M.A.R. and M.A.R., were born in January 2000, and September 2001. Id. The three children are dual citizens of the United States and of Saudi Arabia. Id.
Mother and Father divorced in October 2012, and Mother returned alone to the United States. Family Court Opinion, 10/23/14, at 2. In June 2013, Father permitted the three children to visit Mother for the summer months in Allegheny County. Id. The parties' daughters have remained with Mother in Allegheny County since that time, but the parties' son returned to Saudi Arabia on August 18, 2013. Id. at 3.
The procedural history of this case may be summarized as follows. In August of 2013, Mother filed a pro se complaint for custody in Allegheny County, wherein she requested primary custody of the three children. Id. By order dated August 7, 2013, the family court granted Mother's custody request. On October 9, 2013, Father filed an emergency motion to vacate the order, wherein he alleged that he did not receive timely notice of the complaint, and that the family court lacked jurisdiction under the UCCJEA. Id. On November 7, 2013, the family court vacated the custody order and assumed interim emergency jurisdiction pending a hearing on jurisdiction, which occurred on March 26, 2014. Id. at 3-4. By order dated April 2, 2014, the family court found that it did not have jurisdiction over the custody action. Id. at 4; Order, 4/2/14.
Thereafter, on April 17, 2014, Father initiated a custody action in Saudi Arabia, wherein he sought custody of the three children. Family Court Opinion, 10/23/14, at 4. On May 23, 2014, Mother filed a second custody complaint in Allegheny County, wherein she sought primary physical and shared legal custody of the parties' daughters. Id.; Complaint for Custody, 5/23/14. On May 27, 2014, the family court issued a rule to show cause upon Mother to show why her second complaint should not be dismissed for lack of jurisdiction. Family Court Opinion, 10/23/14, at 4.
Mother did not request custody of the parties' son, who is now eighteen years old and living in Saudi Arabia. As such, he is not a subject of this appeal.
On July 17, 2014, a Saudi Arabian court issued a custody order that granted Father sole custody of the parties' daughters. Family Court Order, 7/17/14. On July 25, 2014, Father filed in Allegheny County a request for registration of the child custody order in Saudi Arabia. On August 11, 2014, Mother filed an objection to the registration and enforcement of the foreign custody order.
The family court held a hearing on both the jurisdictional and registration issues on October 9, 2014, during which Mother testified. The family court found, in part, that it has jurisdiction over Mother's second custody complaint, and that the order "entered in the Kingdom of Saudi Arabia dated July 17, 2014 shall not be registered and is not entitled to enforcement in this Commonwealth[.]" Family Court Order, 10/23/14, at ¶ 3.
On November 5, 2014, Father 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). By order dated November 12, 2014, the family court stated that the reasons for the subject order "already appear of record in [the family court's] Memorandum dated October 23, 2014...." Order, 11/12/14.
On appeal, Father raises the following issues for our review.
[1.] Is Pennsylvania the home state of the minor children?Father's Brief at vi.
[2.] Did the temporary absence exception to the home state rule apply?
[3.] Did Mother engage in unjustifiable conduct when retaining the children?
[4.] Should the [family] court have proceeded when there was a custody action pending in Saudi Arabia?
[5.] Should the Saudi Custody Order be registered with the [family] court?
Our standard of review for decisions involving jurisdiction is as follows.
A court's decision to exercise or decline jurisdiction is subject to an abuse of discretion standard of review and will not be disturbed absent an abuse of discretion. Under Pennsylvania law an abuse of discretion occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court's findings. An abuse of discretion requires clear and convincing evidence that the [family] court misapplied the law or failed to follow proper legal procedures.Wagner v. Wagner , 887 A.2d 282, 285 (Pa. Super. 2005) (citation omitted).
Instantly, the family court concluded that it had jurisdiction to make an initial custody determination pursuant to Section 5421(a) of the UCCJEA, which provides as follows.
In this case, the family court treated the Kingdom of Saudi Arabia as a state of the United States pursuant to the following provision.
§ 5405. International application of chapter.23 Pa.C.S.A. § 5405.
(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.
§ 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;
23 Pa.C.S.A. § 5421(a). The UCCJEA defines "home state" as "[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period." 23 Pa.C.S.A. § 5402.
(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).
The family court found that, at the time Mother filed her second custody complaint, the parties' daughters had been living with Mother in Allegheny County for more than six months. Therefore, pursuant to Section 5421(a)(1), the family court concluded that it had "'home state' jurisdiction to make the initial child custody determination." Family Court Opinion, 10/23/14, at 8.
In his first and second issues on appeal, Father argues Pennsylvania is not the "home state" because the parties intended that their daughters' stay in Pennsylvania would be temporary, lasting only for the summer of 2013. Father's Brief at 10. As such, Father implies that Saudi Arabia is the "home state" of the parties' daughters, and that their "period of temporary absence" should be "treated as if [they] never left" Saudi Arabia pursuant to Section 5402. Id. at 8.
Upon careful review, we discern no abuse of discretion by the family court. We adopt the family court's cogent opinion as dispositive of Father's first and second issues on appeal. See Family Court Opinion, 10/23/14, at 5-8 (finding that, "by at least August 18, 2014, when the parties' son returned to Saudi Arabia without the parties' daughters, Father became aware that the daughters would not be returning to Saudi Arabia and that Mother intended the daughters to reside permanently with her in Pennsylvania. Consequently, when Father initially became aware of Mother's intent to keep the daughters here in Pennsylvania, the absence from Saudi Arabia was no longer considered 'temporary.'" Id. at 8, citing M.E.V. v. R.D.V., 57 A.3d 126, 133 (Pa. Super. 2012)).,
The family court concluded that, "in order to preserve the 'home state' status in Saudi Arabia, Father should have initiated simultaneous custody proceedings in Saudi Arabia within six months of learning that his daughters were not returning. Nothing prevented him from doing so." Family Court Opinion, 10/23/14, at 15 n.8.
In the argument section of his brief, Father asserts that the family court erred in failing to dismiss Mother's second custody complaint because she filed it "within two month[s] of the initial determination [declining to exercise jurisdiction over Mother's first custody complaint] and the children's stay was extended because of the lengthy time it took to schedule the initial jurisdiction hearing." Father's Brief at 12. We observe that Father did not assert this error in his concise statement of errors complained of on appeal. In addition, Father did not raise this issue in the Statement of Questions Involved in his brief. Therefore, we conclude that Father's claim is waived. See Dietrich v. Dietrich , 923 A.2d 461, 463 (Pa. Super. 2007) (stating that when an appellant filed a Rule 1925(b) statement, any issues not raised in that statement are waived on appeal); accord Pa.R.A.P. 1925(b)(4)(vii).
In his third issue, Father argues that Mother engaged in unjustifiable conduct when she retained the parties' daughters in the United States. Father's Brief at 12. Father asserts the family court should have declined jurisdiction pursuant to Section 5428(a), which provides as follows.
§ 5428. Jurisdiction declined by reason of conduct.
(a) General rule. --Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction) or by other laws of this Commonwealth, if a court of this Commonwealth has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
23 Pa.C.S.A. § 5428(a).(1) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(2) a court of the state otherwise having jurisdiction under sections 5421 (relating to initial child custody jurisdiction) through 5423 (relating to jurisdiction to modify determination) determines that this Commonwealth is a more appropriate forum under section 5427 (relating to inconvenient forum); or
(3) no court of any other state would have jurisdiction under the criteria specified in sections 5421 through 5423.
Based upon our careful review, we conclude that the family court has ably addressed Father's third issue. Therefore, we likewise adopt the family court's well-reasoned opinion as dispositive of Father's arguments related to this issue. See Family Court Opinion, 10/23/14, at 8-13 (finding: (1) "when Mother chose to keep the parties' daughters in Allegheny County in August of 2013 instead of sending them back to Saudi Arabia with the parties' son, her conduct was justified"; (2) "Assuming arguendo that Mother's conduct in retaining the parties' daughters in Pennsylvania is considered unjustified, this Court still declines to apply the general rule stated in Section 5428(a), because of the exceptions contained in 23 Pa.C.S.A. § 5428(a)(1) and (3)").
In his fourth issue, Father argues that the family court erred in exercising jurisdiction over Mother's second custody complaint filed on May 23, 2014, when Father's custody action in Saudi Arabia, filed on April 17, 2014, was pending, of which Mother was served with notice on May 20, 2014. The following provision of the UCCJEA is applicable.
§ 5426. Simultaneous proceedings.23 Pa.C.S.A. § 5426(a) (emphasis added).
(a) General rule. --Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter unless the proceeding has been terminated or is stayed by the court of the other state because a court of this Commonwealth is a more convenient forum under section 5427 (relating to inconvenient forum).
Upon review, we discern no abuse of discretion by the family court. We adopt the family court's cogent opinion as also dispositive of Father's fourth issue on appeal. See Family Court Opinion, 10/23/14, at 13 (finding that "Saudi Arabia no longer had jurisdiction under the UCCJEA at the time Father initiated proceedings there on April 17, 2014. Therefore, because a child custody proceeding had not been commenced in another state 'having jurisdiction substantially in conformity with (the UCCJEA,)' this Court finds that ... Section 5426[(a)] does not apply").
In his fifth and final issue, Father argues that the family court erred in failing to register the custody order issued in Saudi Arabia on July 17, 2014, granting Father sole custody of the parties' daughters. The following provision of the UCCJEA is applicable.
§ 5445. Registration of child custody determination.
...
(d) Contest over validity of registered order. --A person seeking to contest the validity of a registered order must request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
23 Pa.C.S.A. § 5445(d).(1) the issuing court did not have jurisdiction under Subchapter B (relating to jurisdiction);
(2) the child custody determination sought to be registered has been vacated, stayed or modified by a court having jurisdiction to do so under Subchapter B; or
(3) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of section 5408 (relating to notice to persons outside Commonwealth), in the proceedings before the
court that issued the order for which registration is sought.
The family court concluded that, "the Saudi Order is not entitled to registration because Saudi Arabia did not have jurisdiction to enter the initial child custody determination when Father initiated proceedings there on April 17, 2014." Family Court Opinion, 10/23/14, at 16. Father contends on appeal that he waited to initiate a custody action in Saudi Arabia until the conclusion of the family court's decision regarding jurisdiction over Mother's first custody complaint so as "to avoid simultaneous proceedings." Father's Brief at 17. Further, Father argues there was "[a] breakdown in the court system [that] caused [the] jurisdiction hearing to be delayed five months from the date it was requested." Id. He asserts that, "[h]ad the court scheduled the jurisdiction hearing in a timely manner," he would have filed the custody action in Saudi Arabia sooner. Id.
We discern no abuse of discretion by the court in declining to register the custody order issued in Saudi Arabia pursuant to Section 5445(d)(1). The family court recognized that "there was a lengthy delay in deciding whether it had jurisdiction over Mother's [f]irst [c]omplaint." Family Court Opinion, 10/23/14, at 15, n. 8. Nevertheless, we conclude the family court properly determined that, Father "should have initiated simultaneous custody proceedings in Saudi Arabia within six months of learning that his daughters were not returning. Nothing prevented him from doing so." Id.
Based on the foregoing, we conclude that all of Father's issues on appeal are devoid of merit. Accordingly, the family court's October 23, 2014 order is affirmed.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
In the alternative, the family court declined to register the July 17, 2014 custody order issued in Saudi Arabia under principles of comity, finding that the order violated the public policy of Pennsylvania. Because we conclude that the family court did not abuse its discretion in declining to register the foreign custody order pursuant to Section 5445(d)(1), we need not decide whether the Saudi court's order is contrary to public policy.
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