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Harcar v. Harcar

October 21, 2009

TIJEN HARCAR, APPELLEE
v.
DOGAN TALHA HARCAR, APPELLANT



Appeal from the Order Entered October 9, 2008, Court of Common Pleas, Beaver County, Domestic Relations Division, at No. 10639 of 2006.

The opinion of the court was delivered by: Shogan, J.

BEFORE: MUSMANNO, DONOHUE and SHOGAN, JJ.

OPINION

¶ 1 Appellant, Dogan Talha Harcar ("Father"), appeals from the order dated October 7, 2008, and entered October 9, 2008, finding Appellee, Tijen Harcar ("Mother"), in contempt of the trial court's orders entered on June 2, 2006 and September 5, 2006 by remaining in the Republic of Turkey with the parties' son, Taha Murat Harcar ("Child"). The trial court declined to impose any sanctions on Mother. The trial court also ruled that Beaver County was an inconvenient forum under 23 Pa.C.S.A. § 5427, and directed that any further child custody proceedings should be instituted in the Republic of Turkey. After careful review, we affirm to the extent that the trial court held Mother in contempt. To the extent that it refused to impose any sanction, we reverse and remand. To the extent that the trial court declined to exercise jurisdiction in the future, we vacate.

¶ 2 Father and Mother were both natives of the Republic of Turkey who initially immigrated to Canada. Child was born in Canada in September of 1999. Father and Mother then moved to Beaver County, Pennsylvania, where both held teaching positions at The Pennsylvania State University, Beaver Campus. During the nine-month school year, the parties resided in Monaca, Beaver County, Pennsylvania but, in the summer, they lived in the Republic of Turkey.

¶ 3 In March of 2006, Mother filed a complaint in custody in the Court of Common Pleas of Beaver County, seeking custody of Child. On March 29, 2006, the trial court issued an order awarding Mother temporary custody of Child pending the conciliation conference at Juvenile Services. On May 1, 2006, the trial court entered a proposed order, awarding Mother primary physical custody of Child and Father partial physical custody. Neither party was permitted to remove Child from the United States without written and verbal consent of the other party. The order further provided that if "a party with primary physical custody or shared physical custody desires to relocate outside of Beaver County, that party must [obtain approval in the trial court] unless the other party consents to the relocation in writing." See Proposed Order, 5/1/06, at III, 4. Although the parties had the right to file exceptions, neither filed exceptions.

¶ 4 On June 2, 2006, Mother filed a motion for special relief, requesting permission to take Child to the Republic of Turkey for summer vacation. On June 2, 2006, the trial court in Beaver County entered an order providing that Mother could take Child to the Republic of Turkey on June 12, 2006 but that she must return Child to Beaver County on August 18, 2006. On June 12, 2006, Mother took Child to Turkey. Subsequently, Mother sought a divorce and custody of Child in Turkey in June of 2006. On June 27, 2006, Mother also filed a petition in the trial court in Beaver County seeking to relocate to Turkey with Child. Father did not file a response.

¶ 5 On August 29, 2006, Father filed a petition for civil contempt in the trial court in Beaver County, seeking to hold Mother in contempt of the June 2, 2006 order for failing to return Child to Beaver County on August 18, 2006. Also on August 29, 2006, the trial court issued a rule returnable upon Mother, directing Mother to show cause why she was not in contempt, and set a hearing date for September 1, 2006. Mother did not file any responsive pleading to Father's petition for civil contempt. Instead, on August 30, 2006, she filed in the trial court in Beaver County a motion to withdraw her relocation petition. Mother asserted that, on June 28, 2006, the trial court in Turkey, by Judge Ali Sadik Tastepe, had assumed jurisdiction over the child custody matter and had ordered that Child should remain in Turkey with Mother. Father did not file a response to Mother's motion to withdraw her relocation petition. On August 30, 2006, the trial court in Beaver County entered an order granting Mother's motion and stating that the hearing on Father's contempt petition, scheduled for September 1, 2006, was not cancelled. However, the record reflects the trial court in Beaver County did not hold a hearing on that date.

¶ 6 Thereafter, Father filed a petition for special relief, alleging that Mother failed to return Child to Beaver County on August 18, 2006, in accordance with the order entered on June 2, 2006. Father alleged that Mother had filed for divorce in Turkey, and that she did not intend to return to Beaver County. Mother filed a response to Father's petition for special relief, asserting that she did not return Child to Beaver County because she did not want to violate the order issued by the trial court in Turkey on June 28, 2006. On September 5, 2006, the trial court in Beaver County entered an Order directing Mother to return Child to Beaver County. Mother failed to comply. On July 31, 2007, the 4th Family Court of Izmir reversed the order entered in the trial court in Turkey in June of 2006. Mother filed an appeal from that order in Turkey.*fn1

¶ 7 On March 4, 2008, Father filed another civil contempt petition, requesting the trial court in Beaver County to hold Mother in contempt for failure to comply with the trial court's June 2, 2006 and September 5, 2006 orders by failing to return Child to Beaver County. The trial court in Beaver County issued a rule returnable on Mother, directing her to show cause why she was not in contempt of the trial court's June 2, 2006 and September 5, 2006 orders. Further, the trial court scheduled a hearing for May 13, 2008, and directed Mother to appear in person.

¶ 8 On March 14, 2008, Attorney Robert Banks filed a motion in the trial court in Beaver County requesting Mother's then counsel, Attorney Rebecca James, be granted permission to withdraw. On April 18, 2008, the trial court denied the request. On April 28, 2008, the trial court granted Mother permission to testify via telephone at the hearing. On May 1, 2008, the trial court entered an order permitting Mother to participate in and testify by telephone with regard to the contempt hearing scheduled to occur on May 13, 2008. In this order, the trial court provided notice to Mother of her right to counsel and the potential consequences of being held in contempt.

¶ 9 On May 13, 2008 and August 11, 2008, the trial court in Beaver County held hearings on Father's contempt petition. During the first hearing, Mother advised the trial court that she wished to proceed pro se. The trial court appointed Attorney Banks to serve as stand-by counsel. At the hearing on Father's contempt petition held on May 13, 2008, Father testified in person, and Mother testified via telephone. Mother continued her testimony by telephone on August 11, 2008.

¶ 10 In an order dated October 7, 2008, and entered October 9, 2008, the trial court in Beaver County found Mother in contempt of the trial court's June 2, 2006 and September 5, 2006 orders, but did not impose any sanction. The trial court observed that, as almost two years had passed since Mother went to Turkey, much of the evidence regarding the best interests of Child was now located in Turkey. The trial court further stated that Father was then living in Turkey on an educational sabbatical for approximately one year, with the possibility of going to the State of Georgia in the former USSR. The trial court reasoned that it would not be in Child's best interests to impose as a sanction on Mother that she should have to return Child to Beaver County when Father was not living in Beaver County at that time. The trial court acknowledged that the 4th Family Court of Izmir had issued a decision at the end of July of 2007, in which it reversed the order entered by Judge Ali Sadik Tastepe in the trial court in Turkey. However, the Pennsylvania trial court determined that Beaver County had become an inconvenient forum under 23 Pa.C.S.A. 5427 and directed that any further custody proceedings should occur in the Republic of Turkey, as the significant evidence of what is in the best interests of Child was located in the Republic of Turkey.

¶ 11 Father filed a notice of appeal on November 6, 2008. On November 12, 2008, the trial court entered an order directing Father to file a Concise Statement of Errors Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b), within twenty-one days. The trial court's docket reflects that the trial court issued notice of this Rule 1925(b) order, pursuant to Pa.R.C.P. 236, on November 13, 2008. Father timely filed his Rule 1925(b) Statement on December 1, 2008.*fn2

¶ 12 On appeal, Father raises the following three issues:

I. Did the trial court abuse its discretion and commit an error of law when, presented only with a petition for contempt and no request for modification was made, it sua sponte modified the controlling court orders?

II. Did the trial court committ [sic] an error of law and abuse its discretion when[,] after finding [Mother] in contempt of the Beaver County trial court's orders of June 2, 2006 and September 5, 2006[, it] imposed no sanctions upon her; but rather rewarded her ongoing contempt by permitting the minor child to remain in the Republic of Turkey even though neither of [the] Pennsylvania court orders had been modified or vacated and the Supreme Court of the Republic of Turkey refused to exercise jurisdiction over this case?

III. Did the trial court commit an error of law and abuse its discretion by failing to exercise either the subject matter jurisdiction or exclusive continuing jurisdiction over this case once the Supreme Court of ...


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