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A.L.-S. v. B.S.

Superior Court of Pennsylvania

May 27, 2015

A.L.-S., Appellant
v.
B.S., Appellee

Argued,  February 25, 2015

Page 353

Appeal from the Order of the Court of Common Pleas, Lawrence County, Civil Division, No(s): 10487 of 2014, C.A. Before HODGE, J.

Bradley G. Olson, Jr., New Castle, for appellant.

Todd Begg, Pittsburgh, for appellee.

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

OPINION

Page 354

LAZARUS, J.

A.L.-S. (" Mother" ) appeals from the October 20, 2014 order, entered in the Court of Common Pleas of Lawrence County, denying her petition for special relief and granting B.S.'s (" Father" ) request for counsel fees. In her petition, Mother requested the Lawrence County Court exercise jurisdiction in this custody matter. After our review, we reverse and remand.

Mother and Father are the parents of two minor children, W.S., born in January 2007, and C.S., born in June 2008. On November 1, 2013, the Cuyahoga County Court of Common Pleas in Ohio entered an order granting Father sole legal custody of the children. The Ohio court's order awarded the parties shared physical custody of W.S., and it awarded Father primary physical custody of C.S., subject to Mother's partial custody rights.[1] The older child, W.S., is non-verbal/autistic, has moderate to severe disabilities, and requires constant supervision. Both parents are physicians. Father is an orthopedic surgeon, and Mother is an OB/GYN.

The parties had resided in Cleveland, Ohio. When they separated, Father moved to Pennsylvania to live with his parents. The parties were divorced in 2012, and Mother moved to Pennsylvania in July 2013, as contemplated by their Shared Parenting Plan.[2] Mother filed a motion to register the foreign custody order in Lawrence County, Pennsylvania, and on May 8, 2014, the trial court granted that motion.[3] See 23 Pa.C.S.A. § 5445. Mother simultaneously filed a motion to modify custody, claiming the Ohio court inappropriately granted Father sole legal custody of the children and inappropriately granted the parties shared physical custody of W.S. Mother claimed the Lawrence County Court was the proper venue for her to pursue custody as both parties currently live in Lawrence County. See Motion to Modify Custody, 5/9/14.

Father opposed this motion, filing a Motion to Decline Jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (" UCCJEA" ), 23 Pa.C.S.A. § 5423,[4] on June 4, 2014.

The trial court entered an order declining jurisdiction and directing that the order of the Cuyahoga County Court in Ohio remain registered in Lawrence County and enforceable as an order of the Lawrence County Court. The Lawrence County Court concluded it would not assume jurisdiction over the case until the Cuyahoga County Court issued an order that relinquished jurisdiction.[5] See Order, 6/4/14.

Page 355

On June 24, 2014, Mother filed a petition for special relief. Mother averred that a custody exchange had occurred between the parties' nannies, and that Mother's nanny observed W.S. limping and, after examining his foot, noticed swelling and bruising on his foot as well as his leg. Subsequent x-rays revealed a fracture to the child's foot, which required casting. See Petition for Special Relief, 6/24/14, at ¶ ¶ 6-11. Mother sought primary custody pending a full hearing on custody. Id. at ¶ ¶ 17.[6]

Father filed an answer and petition for special relief, seeking counsel fees based on Mother's " vexatious" conduct. Specifically, Father averred: " Mother's conduct is 'vexatious' because her Petition for Modification directly contradicts the June 4, 2014 Order of Court [which declined jurisdiction]."

The trial court denied Mother's motion to modify custody, denied Mother's petition for special relief, and denied Father's request for counsel fees. See Order, 6/24/14.

On October 21, 2014, Mother filed another petition for special relief, claiming W.S. had returned home to her with bruises on his buttocks and thigh. Mother also reiterated and requested the court exercise emergency jurisdiction pursuant to 23 Pa.C.S.A. § 5424.[7]

Father filed an answer to Mother's petition, as well as a petition for counsel fees. Father alleged Mother's motions were both vexatious and repetitive. See Answer, 10/21/14, at ¶ ¶ 24-46. That same day, the trial court entered an order denying Mother's petition and granting Father's request for counsel fees. See 23 Pa.C.S.A. § 5339; cf. Chen v. Saidi, 2014 PA Super 190, 100 A.3d 587 (Pa. Super. 2014). The order stated that

the facts and circumstances alleged in the petition do not rise to the level necessary for this court to exercise emergency jurisdiction pursuant to 23 Pa.C.S.A § 5424, this court having previously on two occasions declined to accept jurisdiction under the UCCJEA, in that the Court of Common Pleas of Cuyahoga County, Ohio, has not relinquished jurisdiction to this Court.

Trial Court Order, 10/20/14.

Mother appealed. She raises the following issues for our review:

1. Whether the trial court committed reversible error by failing to accept jurisdiction pursuant to 23 Pa.C.S. § 5423 as the Lawrence County Court of Common Pleas has jurisdiction to make an initial determination under section 5421 and there is no dispute that the parties reside in Lawrence County, Pennsylvania, and not in Ohio?
2. Whether the court committed reversible error and abused its discretion by failing to accept jurisdiction pursuant to section 5423 on the grounds that the Court of Common Pleas of Cuyahoga County, Ohio, has

Page 356

not relinquished jurisdiction as the UCCJEA does not require the state of original jurisdiction to relinquish custody [sic] before the courts of this Commonwealth can accept jurisdiction so ...

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