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HomeMy WebLinkAbout04-0256WILLIAM MCCOY, JR., Plaintiff, YVONNE D. THRESH, Defendant. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW 2004- 35t CIVIL TERM .. ._ : IN CUSTODY NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree in divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 717-249-3166 1-800-990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. WILLIAM MCCOY, JR., Plaintiff, YVONNE D. THRESH, Defendant. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA _. : CIVIL ACTION - LAW : : 2004 - CIVIL TERM : : IN CUSTODY ORDER OF COURT AND NOW, this day of , 2004, upon consideration of the attached Complaint, it is hereby directed that the parties and their respective counsel appear before Esquire, the conciliator, at , on the day of ,2004 at __. M. for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the Court and to enter into a temporary order. All children age five or older may also be present at the conference. Failure to appear at this conference may provide grounds for entry of a temporary or permanent order. FOR THE COURT, By: Custody Conciliator YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 1-800-990-9108 WILLIAM MCCOY, JR., Plaintiff, YVONNE D. THRESH, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2004- :::,9.,5(~ CIVIL TERM IN CUSTODY COMPLAINT IN CUSTODY AND NOW, comes the Plaintiff, William McCoy, Jr., by and through his attorneys, Irwin & McKnight, and files this Complaint in Custody against the Defendant, Yvonne D. Thresh, representing as follows: 1. The Plaintiff is William McCoy, Jr., an adult individual residing at 733 Sandbank Road, Mt. Holly Springs, Cumberland County, Pennsylvania 17065. 2. The Defendant is Yvonne D. Thresh, an adult individual currently residing at 3188 Carson Road, Placerville, California 95667. 3. The parties are the natural parents of one (1) child, named Casey W. McCoy, born May 14, 1996, age 7 years. 4. The parties had been residing in California with their minor child until approximately March 2003, when Plaintiff decided he would be permanently returning to Pennsylvania. 5. After the end of the school in California, the parties' minor child came to reside in Pennsylvania with the Plaintiff, on or about June 1, 2003. 6. The parties' minor child expressed his desire to remain in Pennsylvania, attend school in Pennsylvania, and not to return to California to live with Defendant. 7. Plaintiff informed Defendant of their son's intentions, enrolled him at Rice Elementary School in the South Middleton School District, Cumberland County, Pennsylvania, and ensured that Defendant and their son maintained regular telephone contact. 8. On November 13, 2003, Plaintiff received a call from his childcare provider informing him that Defendant had taken the parties' minor child, stating that she was returning to California with him. 9. Defendant had not informed either Plaintiff or their son that she would be coming to Pennsylvania, or that she was taking the parties' minor child. 10. It was only until several days later that Defendant was able to verify that the Plaintiff had in fact enrolled the minor child in school in California. 11. Both previously while still in California and subsequently in Pennsylvania, Plaintiff was the parent who consistently assisted the child in the preparation of his school projects, attended parent and teacher conferences, ensured that the child maintained his grade levels, and ensured that he attended school on a regular basis, whereas Defendant does not spend sufficient time with the minor child or ensure that he even attends school. 12. Since November 13, 2003, Plaintiff has attempted on numerous occasions to speak with the minor child by telephone. 13. Defendant has not returned messages to the Plaintiff and has refused and prevented telephone contact by Plaintiff with the child. 14. To date, the only telephone contact that Defendant has permitted between Plaintiff and his son is a telephone conversation on December 20, 2003, which was the Plaintiff's birthday. 15. Plaintiff desires primary physical custody and sole legal custody of the parties' minor child. 16. The removal of the child by Defendant to California is not in the best interest or welfare of the parties' minor child. 17. Defendant's removal of the minor child to California has severely disrupted the day-to-day life of the child, and has irreparably harmed Plaintiff and the minor child. 18. The best interests and permanent welfare of the child requires the Court grant the Plaintiff's request as set forth above. 19. Upon information and belief, Defendant may have commenced a custody action in California, but to date Plaintiff has not been served with any Complaint or other notice of any such proceeding. 20. Plaintiff has no other information of a custody proceeding concerning the child pending in a court of this Commonwealth or any other location.. 21. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the child and claims to have custody or visitation rights with respect to the child. WHEREFORE, the Plaintiff respectfully requests that an Order of Court be entered granting him primary physical custody and sole legal custody of the parties' minor child, Casey W. McCoy. Date: January ~0 . 2004 Respectfully submitted, IRWIN & McKNIGHT Douglas ~. Miller, Esqmre Supreme 12ourt I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. WILLIAM MCCOY, JR. Date: __J. am~nr~ 19, 200/* WILLIAM MCCOY, JR., Plaintiff/Petitioner YVONNE D. THRESH, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2004 -o~,~/:> CIVIL TERM IN CUSTODY JAN 2 ] 2/}{~4 ~ ORDER OF COURT AND NOW, this ~ ~ff~d~ay of ~~, 2004, upon consideration of the within Petition for Special Relief, it i.s hereby ordered and directed tha~ t.".e P.z~ ,~...1'.~.,~ .,Xu., &e Je WILLIAM MCCOY, JR., Plaintiff, YVONNE D. THRESH, Defendant. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA _. : CIVIL ACTION - LAW : : 2004 - CIVIL TERM : : IN CUSTODY ORDER OF COURT AND NOW, this __ day of , 2004, upon consideration of the within Petition for Special Relief, it is hereby ordered and directed that the Respondent return the parties' minor child, Casey W. McCoy, to the Commonwealth of Pennsylvania, and a hearing is scheduled for ., , at o'clock . m., in Courtroom # ~ Cumberland County Courthouse, Carlisle, Pennsylvania 17013. BYTHECOURT, Je WILLIAM MCCOY, JR., Plaintiff, YVONNE D. THRESH, Defendant· : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : 2004- o~'~:, CIVIL TERM : IN CUSTODY PETITION FOR SPECIAL RF,!,IF, I~ AND NOW, comes the Plaintiff, William McCoy, Jr., by and through his attorneys, Irwin & McKnight, and files this Complaint in Custody against the Defendant, Yvonne D. Thresh, representing as follows: 1. The Plaintiff is William McCoy, Jr., an adult individual residing at 733 Sandbank Road, Mt. Holly Springs, Cumberland County, Pennsylvania 17065. 2. The Defendant is Yvonne D. Thresh, an adult individual currently residing at 3188 Carson Road, Placerville, California 95667. 3. The parties are the natural parents of one (1) child, named Casey W. McCoy, bom May 14, 1996, age 7 years. 4. The parties had been residing in California with their minor child until approximately March 2003, when Plaintiff decided he would be permanently returning to Pennsylvania. 5. After the end of the school in California, the parties' minor child came to reside in Pennsylvania with the Plaintiff, on or about June 1, 2003. 6. The parties' minor child expressed his desire to remain in Pennsylvania, attend school in Pennsylvania, and not to return to California to live with Defendant. 7. Plaintiff informed Defendant of their son's intentions, enrolled him at Rice Elementary School in the South Middleton School District, Cumberland County, Pennsylvania, and ensured that Defendant and their son maintained regular telephone contact. 8. On November 13, 2003, Plaintiff received a call from his childcare provider informing him that Defendant had taken the parties' minor child, stating that she was retuming to Califomia with him. 9. Defendant had not informed either Plaintiff or their son that she would be coming to Pennsylvania, or that she was taking the parties' minor child. 10. It was only until several days later that Defendant was able to verify that the Plaintiff had in fact enrolled the minor child in school in California. 11. Both previously while still in California and subsequently in Pennsylvania, Plaintiff was the parent who consistently assisted the child in the preparation of his school projects, attended parent and teacher conferences, ensured that the child maintained his grade levels, and ensured that he attended school on a regular basis, whereas Defendant does not spend sufficient time with the minor child or ensure that he even attends school. 12. Since November 13, 2003, Plaintiff has attempted on numerous occasions to speak with the minor child by telephone. 13. Defendant has not returned messages to the Plaintiff and has refused and prevented telephone contact by Plaintiff with the child. 14. To date, the only telephone contact that Defendant has permitted between Plaintiff and his son is a telephone conversation on December 20, 2003, which was the Plaintiff's birthday. 15. Plaintiff desires primary physical custody and sole legal custody of the parties' minor child. 16. The removal of the child by Defendant to California is not in the best interest or welfare of the parties' minor child. 17. Since the child's birth, he has had a close and loving bond with Petitioner, and Petitioner has primarily assumed the role of caretaker for the minor child. 18. Defendant's removal of the minor child to California has severely disrupted the day-to-day life of the child, and has irreparably harmed Plaintiff and the minor child. 19. The best interests and permanent welfare of the child requires the Court grant the Plaintiff's request as set forth above. 20. Upon information and belief, Defendant may have commenced a custody action in California, but to date Plaintiff has not been served with any Complaint or other notice of any such proceeding. 21. Plaintiff has no other information of a custody proceeding concerning the child pending in a court of this Commonwealth or any other location. 22. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the child and claims to have custody or visitation rights with respect to the child. WHEREFORE, the Plaintiff respectfully requests that an Order of Court be entered granting him primary physical custody and sole legal custody of the parties' minor child, Casey W. McCoy. Date: January 0~00 , 2004 Respectfully submitted, IRWIN & McKNIGHT Dougias(~. Mille'r, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 3 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements heroin made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. Date: January 19~ 2004 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by Certified Mail, Restricted Delivery, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Yvonne D. Thresh 3188 Carson Road Placerville, CA 95667 IRWIN & McKNIGHT Date: January o,90 , 2004 By: Douglas ~. NYliller, Es~tuire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 24%2353 Attorney for Plaintiff/Petitioner, William McCoy, Jr. WILLIAM MCCOY, JR. PLAINTIFF YVONNE D. THRESH DEFENDANT : iN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 04-256 CIVIL ACTION LAW : : IN CUSTODY ORDER OF COURT AND NOW, Friday, January 23, 2004 , upon consideration of the attached Complaint, it is hereby directed that parties and their respective counsel appear before Hubert X. Gilroy, Esq. , the conciliator, at 4th Floor, Cumberland County Courthouse, Carlisle on Thursday, February 12, 2004 at 9:30 AM for a Pre-Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary order. All chikh-en are five or older may also be present at the conference. Failure to a!o!oear at the conference may provide grounds for entry of a temporary or permanent order. The court hereby directs the parties to furnish any and all existing Protection from Abuse orders, St~eciai Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing. FOR THE COURT, By: /s/ Hubert X. Gilroy, Esq. Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business befbre the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT HAVE AN ATTORNEY OR CANNOT AFFORD ONE, GO 'FO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 WILLIAM MCCOY, JR., Plaintiff/Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : 2004 -256 CIVIL TERM YVONNE D. THRESH, : Defendant/Respondent : IN CUSTODY AFFIDAVIT OF SERVICE OF COMPLAINT COMMONWEALTH OF PENNSYLVANIA : : SS: COUNTY OF CUMBERLAND : NOW, Douglas Miller, Esquire, being duly sworn according to law, does depose and state: 1. That he is a competent adult and attorney for the Plaintiff in the captioned action. 2. That a certified copy of the Custody Complaint and Petition for Special Relief were served upon the Defendant, Yvonne D. Thresh, on January 27, 2004 by regular and certified mail, restricted delivery, return receipt requested, addressed to Yvonne D. Thresh, 3188 Carson Road, Placerville, CA 95667, with return receipt number 7002 0860 0000 1074 2793. 3. That the said receipt for certified mail is signed and attached hereto and made a part hereof. 4. Defendant also contacted the of£~ces of the undersigned acknowledging receipt of the f'tled documents. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. IRWIN & McKNIGHT Douglas~. Nttller, ~ q Supreme Court Id # 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiff William McCoy, Jr. · Complete items 1,2, and 3. Also complete ~m 4 if Restricted Delivery is desired. · Pdnt your name and addicts oll the i~verse so,that we can tatum the cerd ~ Y°u'._,_~ · At,ch this card to the back of me manpmv~, o'~the fTOnt if space permits. 3].88 CAI~O[~ ROAD pL~CEItV~LLE, CA 95667 ~3 Ao~t Sen,'~e T¥~ r'l ~ Mall I~ C~tlfled Mall ~ Return ~ f~ M~ ~ tn~ M~I ~ C.O.D. 4. R~t~ ~W~? ~ F~) ~ Y~ 2. ~l~N~n~,~ 7002 0860 0000 1074 2793 PS Fon'n 3811, August 2001 DomeStic Return ReCeipt Poetm~ WILLLIAM MCCOY, JR., Plaintiff V YVONNE D. THRESH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 04-256 : CIVIL IN CUSTODY CO~TO~ER AND NOW, this ~ ~'~lay of February, 2004, upon consideration of the attached Custody Conciliation report, it is ordered and directed as follows: 1. n hearing is scheduled in this case on the ~ day of t~t~x' ,2004 in Courtroom 5 of the Cumberland County Courthouse at ],'~/0.~ ~ At this hearing, the father shall be the moving party and shall proceed initially with testimony. Counsel for the parties shall file with the court and opposing counsel memorandums setting forth the history of custody in this case, the issues currently before the court, a summary of the testimony that will be presented by each party and each party's position relative to a final custody order. This memorandum shall be filed at least 5 days prior to the mentioned hearing date. 2. Pending the hearing set forth above, it is directed that the mother, Yvonne D. Thresh, shah provide the father, William McCoy, Jr., with liberal telephone contact with the minor child Casey W. McCoy, born May 14, 1996. Father's ability to talk to the child shall be for at least 2 times per week, with father initiating the call and mother insuring that father has the ability to talk with the child. Mother shall communicate with the father and advise him of appropriate times when the child will be available to speak with him. 3. Upon mother retaining legal counsel in Pennsylvania and in the event mother's attorney feels that this case can be expedited or resolved by the Conciliator for any reason relating to the merits of the case or jurisdictional issues, legal counsel for the parties may contact the Conciliator again to attempt to address procedural issues on jurisdiction or venue. Judge Edward E. Guido CC: Douglas G. Miller, Esquire Yvonne D. Thresh FEB '1 7 21]~ ~ WILLIAM MCCOY, JR., Plaintiff V YVONNE D. THRESH, Defendant Prior Judge: Edward E. Guido IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-256 CIVIL IN CUSTODY CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 1915.3-8(b), the undersigned Custody Conciliator submits the following report: The pertinent information pertaining to the child who is the subject of this litigation is as follows: Casey W. McCoy, born May 14, 1996. A Conciliation Conference was held on February 12, 2004, with the following individuals in attendance: The father, William McCoy, Jr., and his attorney, Douglas G. Miller, Esquire. The mother did not appear. However, the mother contacted the Conciliator's office via phone and indicated that she was in California with the minor child and she could not attend the Conciliation Conference. She indicated she was making efforts to obtain legal counsel in Pennsylvania. There may be an issue with respect to where this case should be litigated. The child was residing in California with the mother and father from 1996 to 2003. The child then came to Pennsylvania in June of 2003 and resided with the father through November 2003, after which the mother took the child back to California. However, the mother has not taken any affirmative action to raise issues of jurisdiction or venue at this particular time. Accordingly, the Conciliator feels this case should proceed through the system in Cumberland County with the scheduling of a hearing. Father suggests that mother is refusing him any type of contact with the minor child. At a minimum, the Conciliator recommends the court issue an order providing father with liberal telephone contact with the minor child pending any resolution of the custody issue by this court or any other court. 5. The Conciliator recommends an Order and the form is attached. DATE Hubert X. G~oy, Esquire Custody Co/Kciliator WILLIAM MCCOY, JR., Plaintiff/Petitioner YVONNE D. THRESH, Defendant/Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : 2004 -256 CIVIL TERM : : IN CUSTODY _AFFIDAVIT OF SERVICE OF ORDER OF COURT COMMONWEALTH OF PENNSYLVANIA : : SS: COUNTY OF CUMBERLAND : NOW, Douglas Miller, Esquire, being duly sworn according to law, does depose and state: 1. That he is a competent adult and attorney for the Plaintiff in the captioned action. 2. That a copy of the Order of Court dated February 19, 2004 and Concihation Conference Summary Report were served upon the Defendant, Yvonne D. Thresh, on February 27, 2004 by regular and certified mail, restricted delivery, mmm receipt requested, addressed to Yvonne D. Thresh, 3188 Carson Road, Placerville, CA 95667, with return receipt number 7002 0860 0000 1074 2823. 3. That the said receipt for cerdfied mail is signed and attached hereto and made a part hereof. I verify that the statements made in this affidavit are tree and correct. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: IRWIN & McKNIGHT Do~gglas (~-l~Iiller, Esquire - Supreme Court Id # 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiff William McCoy, .Ir. · Complete items t, 2, and 3. Also coml~lete item 4 if Restricted Delivery is desired. · Print your name end addre~ on the reverse · o that we can return the card to you. · Attach this card to the beck of the mailplece, or on the front if space permits. 1, ,Ntlcle Addrs~ssd to: ~OI~N]~ D. ~/'i{RESH 3188 ~ON ROAI) PLACERVILT.E, CA 95667 Signature ReCeived b if YES, enter delivery address below: ~. ~ Agent F'I No Service Type ~ Certified Mall r-I Registered 2. Article Number (Transfer from sen/ice label) PS Form 381 1, August 2001 7002 Postage 1::3 Certified Fee Return Receipt Fe~ ..B (Fu3domement Required ru T~tal Peerage & Fee~ L ~ SentTo · treet, Apt. NO,~ ........................................ *--T*''''''~ .................... ~ ........ }~'~/)4;.'~ ............................................ ~.r~t'~.-"r;'---~ .......... /'~P~ce~'~illel, CJx 95667 WILLIAM MCCOY, JR., Plaintiff V. YVONNE D. THRESH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW 04-0256 CIVIL TEP~M CIVIL - CUSTODY hearing, we under 23 Pa. C.S.A. Consequently, this IN RE: CUSTODY ORDER OF COURT AND NOW, this 25th day ef March, 2004, after are satisfied that the jurisdictional threshold 5341 et. seq. has not been met. action is dismissed. By the Court, Edward E. Guido, J. ~Douglas G. Miller, Esquire 60 West Pomfret Street Carlisle, PA 17013 For the Plaintiff ~vonne D. Thresh 3188 Carson Road Placerville, CA 95667 :mae A~V±ONOHIOW~ 3H1 ~0 WILLIAM MCCOY, JR., Plaintiff/Petitioner YVONNE D. THRESH, Defendant/Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : 2004 -256 CIVIL TERM : : IN CUSTODY NOTICE OF APPEAL Notice is hereby given that William McCoy, Jr., Plaintiff in the above-captioned matter, hereby appeals to the Superior Court of Pennsylvania from the: Order entered in this matter on the 25th day of March, 2004. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Dated: April 26, 2004 Respectfully Submitted, By: IRWIN & McKNIGHT ~-~ougla~3. Mili'er, E'squire Suprem6 Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249--2353 Attorney for Plaintiff William McCoy, Jr. WILLIAM MCCOY, JR., Plaintiff/Petitioner YVONNE D. THRESH, Defendant/Respondent : IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : 2004 -256 CIVIL TERM : : IN CUSTODY REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Dated: April 26, 2004 Respectfully Submitted, By: IRWIN & McKNIGHT Dou~as GtMfller,~Es6uire ' Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff William McCoy, Jr. WILLIAM MCCOY, JR., : Plaintiff : V. : YVONNE D. THRESH, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 04-0256 CIVIL TERM CIVIL - CUSTODY hearing, we under 23 Pa. Consequently, IN RE: CUSTODY ORDER OF COURT AND NOW, this 25th day of March, 2004, after are satisfied that the jurisdictional threshold C.S.A. 5341 et. seq. has not been met. this action is dismissed. By the Court, Edward E. Guido, J. Dou~tas G. Miller, Esquire 6~j~West Pomfret Street -~'Carlisle, PA 17013 For the Plaintiff Yvonne D. Thresh 3188 Carson Road Placerville, CA 95667 :mae iRWIN & McKN OHT PYS510 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2004-00256 MCCOY WILLIAM JR (rs) THRESH YVONNE D Reference No..: Ca~e Type ..... : COMPLAINT070CUSTODY Juagmenn ..... ~ . Judge Assignea: Disposed Desc.: ............ Case Comments ............. Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date. Higher Crt 1.: Higher Crt 2.: 1/2o/2oo4 3:48 o/oo/oooo o/oo/oooo General Index Attorney Info MCCOY WILLIAM JR PLAINTIFF 733 SANDBANK ROAD MT HOLLY SPRINGS PA 17065 THRESH YVONNE D DEFENDANT 3188 CARSON ROAD PLACERVILLE CA 95667 * Date Entries * ............. FIRST ENTRY ............ 1/20/2004 COMPLAINT - CUSTODY 1/23/2004 ORDER OF COURT - DATED 1/23/04 - IN RE PETITION FOR SPECIAL RELIEF - IT IS HEREBY DIRECTED THAT THE MOTHER BER REFERRED TO CONCILIATION IT APPEARS TO THE COURT }{TAT IT HAS BEEN MORE THAN 2 MONTHS SINCE THE CHILD HAS BEEN IN THE CUSTODY OF HIS MOTHER AN HE HAS BEEN ENROLLED IN SCHOOL THE ENTIRE TIME - THEREFORE THIS MATTER SHOULD BE NONE APPROPROATELY H3~NDLED AS A NORMAN CUSTODY PETITION FOR SPECIAL RELIEF - BY THE COURT EDWARD E GUIDO J COPIES MAILED 1/26/2oo4 .... FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE PA ON 2/12/04 AT 9;30 AM - FOR THE COURT HUBERT X GILROY ESQ CUSTODY COPIES MAILED 2/os/2oo4 DATED 2/19/04 - HEARING IS SCHEDULED IN THIS CASE ON 3/25/04 IN CR 5 OF THE CUMBERLAND COURTHOUSE AT 1:30 PM BY THE COURT EDWARD E GUIDO J COPIES MAILED 3/09/2004 .............. LAST ENTRY .............. * Escrow Information * Fees & Debits Beg Bal Pymts/Adj End Bal CUSTODY AGMT TAX ON AGMT SETTLEMENT AUTOMATION FEE JCP FEE CUSTODY FEE CUSTODY FEE-CO SPEC RELIEF CUS 85.00 .50 5.00 5.00 10.00 4.00 1.00 50.00 85.00 .00 .50 00 5.00 00 5.00 00 10.00 00 4.00 00 1.00 00 50.00 00 160.50 160.50 .00 * End of Case Informal_ion . m Te~lmo~y wrmmef, I here Umo set my ~ WILLIAM MCCOY, JR., Plaintiff/Petitioner YVONNE D. THRESH, Defendant/Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .. : CIVIL ACTION - LAW _. : 2004 -256 CIVIL TERM : : IN CUSTODY CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Yvonne D. Thresh 3188 Carson Road Placerville, CA 95667 The Honorable Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Pam Sheaffer, Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Date: April 26, 2004 IRWIN & McKNIGHT Dou~s C~ Mdler, Esqmre Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Plaintiff William McCoy,. Jr. WILLIAM MCCOY, .IR. V. YVONNE D. THRESH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-0256 CIVIL CIV1L ACTION - CUSTODY ORDER OF COURT AND NOW, this 30TM day of APRIL, 2004, counsel for the plaintiff is directed to file a concise statement of matters complained of on appeal along with a brief in connection therewith within fourteen (14) days of todays date in accordance with Rule of Appellate Procedure 1925(b). Edward E. Guido, J. Douglas G. Miller, Esquire For the Plaintiff William McCoy, Jr. :sld WILLIAM MCCOY, JR., Plaintiff V. YVONNE D. THRESH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2004-256 CIVIL TERM IN CUSTODY IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on March 25, 2004, in Courtroom Number Five. APPEARANCES: Douglas G. Miller, Esquire For the Plaintiff INDEX TO WITNESSES FOR THE PLAINTIFF William C. McCoy, Jr. DIRECT CROSS REDIRECT RECROSS INDEX TO EXHIBITS FOR THE PLAINTIFF IDENTIFIED Ex. No. 1 court order Ex. No. 2 school papers Ex. No. 3 report card 7 12 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. MILLER: case of McCoy versus Thresh, first witness, Mr. Miller? MR. MILLER: the stand. Good afternoon. Good afternoon. and do you want This is the to call your Yes. We call William McCoy to Whereupon, WILLIAM C. MCCOY, JR. having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. MILLER: Q Can you state your full name for the record? A Yes. It's William Charles McCoy, Jr. Q And what is your current address? A It is 230 Mountain View Drive, Mt. Holly Springs. Q And where are you currently employed? A I am employed at Merrick & Fair Performance. Q And how long have you been employed there, and what do you do? A I'm training to be a salesman, and I do vehicle maintenance also. THE COURT: Actually, since the other side is not here, and it appears that there is a significant question with regard to jurisdiction, maybe we ought to 3 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 establish those MR. Your Honor. BY MR. MILLER: Q facts for the record first. MILLER: I was going to get into that, THE COURT: Okay. When did you return to Pennsylvania? THE COURT: Well, first of all, what's the name and date of birth of the child that we're dealing with? THE WITNESS: It's Casey Wyatt McCoy. His May 14th, 1996. birth date is BY THE COURT: Q Okay. And give me the residences and persons with whom he lived from his date of birth forward. A Okay. Well, we moved -- when I was still with his mother and him, latest address was 3188 California. Q states, we moved a few times, but the Carson Road in Placerville, Okay. And how long had you lived there? A Approximately 2 months. Q Start with his date of birth, and give me the at least, that he lived in. A Okay. From the time he was born he has lived with me and his mother in California until May 30th of this -- of 2003, when he came to Pennsylvania with me. Q Okay. The petition indicates that he came 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to you in Pennsylvania -- okay, June 1. So you're saying it was May 30th? A Yeah. I arrived in California on May 30th to pick him up and bring him to Pennsylvania. Q Okay. When did you separate from his mother? April BY MR. A of 2002. MILLER: Q It was approximately a year. Probably around THE COURT: Okay. Okay. And when you separated, were you California. Okay. And when did you living in California or A Q Pennsylvania? A BY THE COURT: Q live? A Q 2003, obviously, California? A Q first come back to I came back for good in March of 2003. When you separated, with whom did the child We shared him. Okay. And when you came back in March of the child was still with his mother in Correct. Okay. And then on May 30th of 2003, the 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 child came to live with you? A Correct. Q Was that by agreement with his mother? A Yes. Q Was there any court order? A No. Q To establish that? A No, Your Honor. Q Okay. And do I understand that the mother then came and retrieved the child in Nove~er of 2003? That's correct. Q When in November? A If I'm not mistaken, or 14th, if I'm not mistaken. A Q I think it was the 13th And she took the child back to California? Yes. And that's where they're living now? Yes. Do you know the address? Yes. What is that address? It's 3188 Carson Road. Okay. In Placerville, So that's P-l-a-c-e -- the same address that he was living 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in whenever you separated? A Yes. Q Okay. Your attorney indicates that there may have been a custody action filed in California? A Yes. Q Do you know anything about that? MR. MILLER: Your Honor, if I can interject. We actually just today received a copy of the Order of Court from out there dismissing that action for lack of service. I have a copy of that if you want to see it. THE COURT: Okay. MR. MILLER: His brother and sister-in-law -- or sister and brother-in-law? THE WITNESS: My brother and sister-in-law. MR. MILLER: Brother and sister-in-law live out there. They hired an attorney to enter a special appearance on his behalf. THE COURT: Okay. Are ,we going to mark this then as Plaintiff's Exhibit Number 17 MR. MILLER: THE COURT: (Whereupon, Yes. And that will be admitted. Plaintiff's Exhibit No. 1 was marked for identification and admitted into evidence.) THE COURT: Okay. Any other questions you want to ask on the issue of custody? 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MILLER: THE COURT: MR. MILLER: THE COURT: MR. MILLER: BY MR. MILLER: Q Mr. paperwork that was A Just a couple. I'm sorry. Jurisdiction. Jurisdiction, that's correct. Just a couple, Your Honor. McCoy, had you ever been served with any filed by your wife in California? No, I haven't. Have you ever been served with any paperwork that she's filed anywhere? A No, I haven't. Q What conversations did you have with her about Casey remaining in Pennsylvania in the fall of 2003? A I allowed Casey and his mother to speak weekly, and occasionally I would call her. I would get on the phone with her and ask her how she feels she was reluctant. honest. She said, said, well, I would like him to try school here for a year and then we'll go from there, and she didn't say one way or the other yes or no after that. Q Did you make sure Casey had regular contact with her? about it, and She didn't really want him here, to be I would like to have him back here, and I A Yes. Yes, absolutely. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 THE COURT: I want to focus on the issue of jurisdiction because I think we may have a problem, as I read the act. So right now let's focus on the important things under jurisdiction, and thatTs establishing a nexus with this state. Either establishing it as a home state or that there's jurisdiction for some other reason. MR. MILLER: Well, and I think significant contacts is the other prong of jurisdiction, Your Honor. I don't want to go too far down that patH, but I think we need to establish some of those contacts and. some of what was happening. I did mention that in my pretrial memo. I donTt know if you had a chance to look at that or not. THE COURT: Yeah, I've reviewed your pretrial memo. Go ahead. Establish your jurisdiction. BY MR. MILLER: Q Did you have any conversations with Miss Thresh about her coming to Pennsylvania and taking Casey back to California? A No. Not at all. Q Were you aware that she was contemplating doing that? A No, I wasn't. Q Do you know if she had any conversations with Casey about her intent to do that? A I don't know. I never questioned Casey on 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the matter because I had no idea, you know, what she had planned. I had no idea. Q Going back a little bit in time to when you were out in California. What -- how did you divide the role of caretaker for Casey after you had separated? A Well, we worked it casually sort of. We didn't have anything written or drawn up in court. I would be responsible for his sports. She would attempt to get him to school. I would leave before his school started so I depended on her to get him to school.. I two, three days a week and on the weekends. baseball out there. I coached his ball team, spent about three-quarters of the time with him. Q What about parent teacher conferences and things like that? Who would attend those? A I was the one actually that went to the parent teacher conferences. THE COURT: This testir~ony that you're giving me establishes a nexus in California. would have him He played and so we -- I MR. MILLER: THE COURT: establishing a nexus here in get into Pennsylvania? MR. MILLER: BY MR. MILLER: Right. The problem you have Pennsylvania. Yes. Yes. is Can we please 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q When you came back to Pennsylvania, what did you undertake as far as the care and custody of Casey? A Well, I was the total caretaker. I took him to school. I went to his parent teacher conference, as I did in California. I basically resumed the same role, with no help, I mean as far as, you know, raising him. Q Did Miss Thresh ever request any documents or updates from you as far as what was happening in school or his activities? A No. Q What other activities or events did you enroll Casey in? A I got him going to the church that I attend, and the church has -- it's called the Tweeners. It's for kindergarten through fifth grade. They have it on Wednesday evenings. And then like the certain events that we would always help out at, and he liked to spend a lot of time up at my grandparents. We went up there a lot, and he would bring a couple of his friends up there to run around. There's a lot of play space. California? THE COURT: THE WITNESS: THE COURT: What grade was Casey in? Second, Yeur Honor. So he had spent first grade in THE WITNESS: Yes. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MILLER: Q were you aware of any problems that he was experiencing out in California during his first grade? A Yes. I had received a letter. after I had separated from his mother. letter from the school about his truanoy, problem with unexcused tardies, et cetera, recommended that one of the parents come to the school to discuss it, and I went to discuss it with the school. (Whereupon, Plaintiff's Exhibit No. 2 was identification.) marked for BY MR. MILLER: Q This is I had received a and that he had a and they I'm going to show you what's been marked as Plaintiff's Exhibit Number 2. Can you identify that document for the Court? A Yes. This is the -- these are the papers that I got from the first grade school that he attended. Q And, particularly, on pages 2 and 3 of that document, what did that tell you? A It told me that when I depended on her to get him to school, that I guess she wasn't fulfilling that obligation, not getting him to school on time or getting to school at all. Q And during your conversation with school officials, what did they tell you as far as their concerns 12 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 related to this document? A Well, they had told me that if this continues, that he would be kicked out of school basically. He would not be able to attend there anymore. Q When you enrolled him here in Pennsylvania, did he have a problem with truancy? A Absolutely not. He didn't miss one day. He wasn't one minute late. (Whereupon, Plaintiff's Exhibit No. 3 was marked for identification.) BY MR. MILLER: Q I'm going to show you what's been marked as Plaintiff's Exhibit Number 3. Do you recognize that document? A Yes, I do. Q What is it? A It's his report card from his first semester here in the South Middleton School. Q And is there any notation on there as to how many days he had missed or how many day's he was late? A days absent, Q conferences A Yes. In the top right-hand corner it has no excused or unexcused, and no tardies. Okay. Do you know how many parent teacher you had had in South Middleton before? I had -- I only had one for the first 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 semester. It was the day before he was taken. Q And were there any concerns raised as far as his academic or social progress? A No. I was kind of worried about that. So I discussed that with his teacher, if she could tell if he was any distracted from not having, you know, his mother also, you know, living in the same household or sharing him, and she said, no, that he gets along wonderfully with the rest of the children. He's active in everything, and he was doing very well. Q And just briefly, what were your reasons for deciding to move back to Pennsylvania? A Well, I initially left his mother because of a drug problem, and I came to Pennsylvania actually -- I came to visit for Christmas, and I discussed it with my family, what was going on, that I wanted to move back. Q How much family do you ?lave living here? A Well, my whole family is here except for my half brother in California. I have my grandparents, my father, my brother. My mother's deceased, but -- and they told me that, if you want to come back, come back, and then we'll work on getting Casey, and so I c[iscussed it with his mom. I said, I would like to have Casey, and then come back here for a year and try that out, and that's where we were, in the middle of that, and she came in November and took 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him. questions, Your Honor. I follow-up. THE COURT: MR. MILLER: I don't have any further don't know if you have any No, I do not. Your Affidavit of Service on the by certified mail, MR. boyfriend. complaint, I notice, says that it was served restricted delivery. MILLER: Yes. And it was signed by her THE WITNESS: MR. MILLER: THE COURT: No, it was her brother. Her brother. I'm sorry. Well, restrictive delivery wouldn't have been signed by her brother. MR. MILLER: Yes. That does periodically happen, Your Honor. We had sent it restricted delivery. It was not signed by her. I was concerned about that until prior to the our office. conciliator, custody conciliation she had actually contacted THE COURT: It doesn't matter. MR. MILLER: She had also contacted the and I believe that's in his report, indicating that she had -- she knew there was a proceeding going on. She wasn't going to be at the conciliation. She was attempting to obtain Pennsylvania counsel. THE COURT: Well, I think you've got a 15 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 couple of different problems here, Mr. Miller, not the least of which is service. Even service aside, jurisdiction is a real problem. I've got a child that's going to be 8 years old next month who has lived his entire life, all but 5 1/2 months, in California. He doesn't come in -- we don't get jurisdiction under the home state because clearly we are not the home state as defined by the act. MR. MILLER: Well, except that the act does provide if one parent removes the child unilaterally, there does not have to be that 6 month time frame. THE COURT: ex parte side of this. MR. MILLER: Honor, but -- THE COURT: Except I've only heard an Well, I understand that, Your I haven't heard her side of this. I don't know how he got the child here. MR. MILLER: Well, except by his testimony. I understand the predicament, but -- THE COURT: It's a real predicament. Explain to me why this case couldn't have been brought in California, which clearly has jurisdiction. For the entire 8 years of this boy's life, this man lived in California with the child. If there had been a court order, he couldn't have moved from California without having a relocation case. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MILLER: Correct. And that's actually, I think, helpful in our case, Your Honcr, because there was not a prior order. This is not a relocation or a modification of an existing order out of state. There is, in fact, no order anywhere that's ever been -- that's ever been upheld, and that's ever had precedence in this case. So in effect no state at jurisdiction. THE COURT: MR. MILLER: case law, you know, there this point has exercised Okay. And I think, in looking at the is a lower burden when -- I mean we're not asking to modify here an order that's been entered in California. THE COURT: What you are doing is asking me to enter, in effect, an ex parte order without hearing anything from the other side, who has all of her life lived in California with the child, all of his life, except for a period of 5 months, and I don't feel comfortable doing that. MR. MILLER: Your Honor, I'm not asking you to enter an ex parte order. By virtue of her not taking any steps whatsoever to show up and represent herself either at the conciliation or at this hearing, slhe's put you in that position, but -- THE COURT: Well, you know, she filed -- by Exhibit Number 1, she filed a custody complaint in 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 California before -- about a month before you filed a custody complaint here. MR. MILLER: And never served it, and it was dismissed for lack of service. THE COURT: Okay. I understand that. MR. MILLER: I mean I guess I understand your predicament, but I think the predicament has been caused by, one, her unilaterally removing him from California -- or from Pennsylvania. THE COURT: I certainly don't approve of that. MR. MILLER: And then not really taking any efforts to -- even to have an attorney here, enter a special appearance, just to deal with jurisdiction. THE COURT: Well, jurisdiction is something that the Court must raise sua sponte. MR. MILLER: I understand that, Your Honor, and I think it's appropriate to be discussing it, but I mean the conciliator in his order even put in there that if, as she had indicated, she would hire was willing to discuss that issue and attempt a resolution of it. Pennsylvania counsel, he even prior to today to try She's undertaken no efforts, that I've seen, to try and -- to try and accomplish that, and she has been served with tha'5 order. THE COURT: Okay. I understand the 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 predicament that you are in, sir, and, however, in fairness, a full blown hearing can be held in California. There's no question about jurisdiction there, and I'm going to decline to accept jurisdiction and enter an ex parte order. So I'll enter the following order: AND NOW, this 25th day of March, 2004, hearing, we under 23 Pa. Consequently, after are satisfied that the jurisdictional threshold C.S.A. 5341 et. seq. has not been met. this action is dismissed.. MR. MILLER: And just so I'm clear, Your find Honor, you're talking about both prongs? You don't jurisdiction under either prong? THE COURT: I don't think there was anything I do not find jurisdiction unclear about that, Mr. Miller. in this Court. MR. MILLER: THE COURT: Ail right. I regret that. However, He's retained attorney Court's the proceedings concluded at 2:04 p.m.) jurisdiction is certainly had in California. an attorney in California. I think that the should file a custody action forthwith out there. adjourned. (Whereupon, 19 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date Ninth Judicial District 2O WILLIAM MCCOY, JR., Plaintiff/Appellant YVONNE D. THRESH, Defendant/Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : 2004 -256 CIVIL TERM : : IN CUSTODY STATEMENT OF MATTERS COMPLAINED OF ON APPEAL AND NOW, this 13th day of May, 2004, comes the Appellant, William McCoy, Jr., by and through his legal counsel, Irwin & McKnight, and respec, tfully files the following concise statement of matters complained of on the appeal in the abow: matter, pursuant to the direction issued to Appellant by the Honorable Edward E. Guido pursuant to Pa.R.A.P. 1925(b): 1. Where no custody order is in existence in any jurisdiction and Appellant and the minor child were residing in Pennsylvania, did the lower Court commit an error of law or abuse of discretion in denying jurisdiction? A. Specifically, where the minor child was unilaterally removed from Pennsylvania by Appellee just prior to the passing of six (6) months residency, is Pennsylvania the "home state" of the child? B. In the alternative, are there "significant contacts" for jurisdiction in Pennsylvania where the child was enrolled in school, attending church, and receiving medical care in Pennsylvania and living with Appellant, who had returned to the state to live and work? 2. Did the lower court commit an error of law or abuse of discretion in denying Appellants's Complaint when Appellee failed to appear for the hearing and refuses to provide access for regular contact with the minor child. Date: May 13, 2004 Respectfullty Submitted, IRWIN & McKNIGHT Douglas ql Miller, Esquire- - Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Appellant, William C. McCoy, Jr. CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a tree and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Yvonne D. Thresh 3188 Carson Road Placerville, CA 95667 Date: May 13, 2004 IRWIN& McKNIGHT Douglas I0. Milier, Esquir~ - -- Supreme Court I.I). No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Appellant William C. McCoy, Jr. WILLIAM C. MCCOY, JR. V. YVONNE D. THRESH : IN THE COURT O17 COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2004 - 0256 C!WIL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., JULY ~ ,2004 The plaintiff filed a custody complaint on January 2;0, 2004. At a hearing scheduled before us on March 25, 2004 we declined to exercise jurisdiction. Plaintiffhas filed this timely appeal. FACTUAL BACKGROUND The parties are the parents of Casey Wyatt McCoy, born May 14, 1996. From the time of his birth until they separated in April of 2002, the parties lived with the child in California.1 The parties shared custody of the child in California from the date of separation until plaintiff moved to Pennsylvania in March of 2003.2 By agreement of the parties, the child came to live with plaintiff for the summer beginning on June 1, 2003.3 Rather than return the child at the end of the summer, plaintiff enrolled him in school. ~ Defendant continues to live in the same residence the parties shared at the time of separation. 2 The shared custody arrangement as well as the circumstances under which the child came to and remained in Pennsylvania were related to us by Plaintiff who was the only witness at the proceedings. We formed the distinct impression that he shaded his testimony to paint the circumstances in the light most favorable to his position. 3 We deduced the existence of the agreement based upon the following testimony by Plaintiff: Q. What conversations did you have with her about Casey remaining in Pennsylvania in the fall of 20037 A. I allowed Casey and his mother to speak weekly, and occasionally I would call her. I would get on the phone with her amd ask her how she feels about it, and she was reluctant. She didn't reaily want him here, to be honest. She said, I would like to have him back here, and I said, well, I would like him to try school here for a year and then we'll go from there, and she didn't say one way or the other yes or no after that. See Transcript of Proceedings, March 25, 2004, p. 8 (emphasis added). NO. 2004 - 0256 CIVIL TERM Plaintiff testified that defendant came to Permsylvania, removed the child from school, and returned with him to California on November 13 or 14, 2003. On November 19, 2003 defendant obtained an emergency order from the Superior Court of E1 Dorado County, California which granted her temporary custody.4 Plaintiff did not file the instant action until January 20, 2004 at which time he alleged: Upon information and belief, Defendant may have commenced a custody action in California, but to date Plaintiff has not been served with any Complaint or other notice of any such proceeding.5 In point of fact, not only did plaintiff have actual knowledge of the California action, he had retained California counsel to enter a special appearance to challenge the jurisdiction of the California Courts.6 A conciliation conference in the case at bar was scheduled for February 16, 2004. Mother contacted the conciliator from her home in California to advise that she could not attend. She further advised that she was attempting to retain counsel in Pennsylvania.7 The conference was held and the conciliator noted: There may be an issue with respect to where this case should be litigated .... However, the mother has not taken any affirmative action to raise issues of jurisdiction or w~'nue at this particular time. Accordingly, the Conciliator feels this case should proceed through the system in Cumberland County with the scheduling of a hearing.8 After receiving the conciliator's report, we scheduled a hearing for March 25, 4 See Plaintiff's Exhibit 1. Since Plaintiff was unsure of the dates and offered no corroborating evidence from school officials, we were not convinced that defendant did not re:move the child pursuant to the California court order. ~ See Custody Complaint, paragraph 19. 6 The California action was dismissed on January 16, 2004, because "there was no proof of service filed by ~etitioner." See Plaintiff's Exhibit # 1. See conciliator's report dated February 16, 2004. ~ See conciliator's report dated February 16, 2004. 2 NO. 2004 - 0256 CIVIL TERM 2004. Only plaintiff and his counsel appeared. At the hearing we had two major concerns with regard to jurisdiction, 1) whether valid service had been effectuated upon defendant and 2) whether our exercise of jurisdiction was appropriate under the terms of the Uniform Child Custody jurisdiction Act.9 At the conclusion of testimony we declined to exercise jurisdiction. DISCUSSION Proper service of original process is a prerequisite to our acquisition of personal jurisdiction over a defendant. Ramsay v. Pierce, 822 A.2d 8.5 (Pa. Super. 2003). As our Supreme Court has noted: Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore,, the rules conceming service of process must be strictly followed. Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently leams of the action against him or her. Cintas Corp. v. Lee's Cleaning Services, Inc., 549 Pa. 84, 91,700 A.2d 915, 917-918 (1997) (citations omitted). In the instant case, the plaintiff did not comply with the Pennsylvania Rules of Civil Procedure in effectuating service of the complaint. Rule 404 provides in relevant Rule 404. Service Outside the Commonwealth Original process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereofi (2) by mail in the manner provided by Rule 403; (emphasis added). Rule 405 makes it clear that if original process is served by mail it must be actually delivered to the party upon whom service is being made. 923 Pa. C.S.A. § 5341 et seq. 3 NO. 2004 - 0256 CIVIL TERM Rule 405. Return of Service (a) When service of original process has been made the shefiffor other person making service shall make a return of service forthwith .... (c) Proof of service by mail under Rule 403 shall include a return receipt signed by the defendant or, if the defendant has refused to accept mail service and the plaintiff thereafter has served the defendant by ordinary mail, (1) the returned letter with the notation that the defendant refused to accept delivery, and (2) an affidavit that the letter was mailed by ordinary mail and was not returned withi[n fifteen days after mailing. (emphasis added). The return receipt on the "Affidavit of Service of Complaint" was not signed by the defendant as required by Rule 405(c).~° Therefore, we questioned whether we had personal jurisdiction over the defendant.~ In any event, we determined that California would be the more appropriate forum to exercise jurisdiction under the Uniform Child Custody Jurisdiction Act. Under the Uniform Child Custody Junsdtct~on Act subject matter junsd~ctlon may be premised upon three major grounds, "home state", significant connections or ~0 It was signed by a "JeffPolk." ii We are still uncomfortable with the service. However, reading Rule 405(c) in conjunction with Section 5436 of the Uniform Child Custody Jurisdiction Act we are satisfied that we had personal jurisdiction over the defendant. That section provides, in relevant part, as follows: § 5346. Notice to persons outside this Commonwealth; submission to jurisdiction (a) General rule. - Notice required for the exercise of jurisdiction over a person outside this Commonwealth sh*tll be given in a manner reasonably calculated to give actnnl notice and rrmy be: (3) by any form of mail addressed to the person to be served and requesting a receipt; (c) Proof of serviee.-Proof of service outside this Commonwealth may be made by affidavit of the individual who made the service, or in the manner prescribed by the law of this Commonwealth, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery to the addressee. (emphasis added). Both the complaint and the order setting the hearing for March 25, 2004 were addressed to defendant by certified mail, return receipt requested and restricted delivery. However, both remm receipts were signed by "JeffPolk." Nevertheless, it is clear that defendant had actual notice of the proceedings. NO. 2004 - 0256 CIVIL TERM parens patriae." Shaw v. Shaw, 719 A.2d 359, 360 (Pa. Super. 1998). In this case only the first two grounds are at issue. Of them, "(t)he home state is the preferred basis for jurisdiction pursuant to the UCCJA." Dincer v. Dincer, 549 Pa. 309, 316, 701 A.2d 210 213 (1997). The home state jurisdiction provisions are contained within Section 5344 of the Act which provides: § 5344. Jurisdiction (a) General rule.-A court of this Cormnonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination, by initial or modification decree if: (1) this Commonwealth: (i) is the home state of the child at the time of commencement of the proceeding; or (ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth; 23 Pa. C.S.A. § 5344(a)(1)(i) and (ii). The Act goes on to define home state as follows: "Home state." The state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent,.., for at least six consecutive months, 23 Pa. C.S.A. § 5343. We were satisfied that neither Pennsylvania nor California qualified as the child's "home state." Pennsylvania did not qualify because the child had lived in this Commonwealth a total of only 5 ½ months.12 Aside from those 5 ½ months, he had spent his entire life in California. However, neither did California qualify as the child's "home ~z We note that the last 2 ½ months resulted from the plaintiff's unilateral decision not to return the child at the end of the summer visitation. NO. 2004 - 0256 CIVIL TERM state" under Section 5344(a)(1). Since he had not lived in California for six consecutive months "immediately preceding" the commencement of this action, it did not meet the definition of home state under Section 5343. Therefore, Subsection (i) of 5344(a)(1) did not apply. Likewise, because the child was not "absent" from California when the action was filed, subsection (ii) was not applicable,u Therefore, if we had jurisdiction, it was pursuant to the "significant contacts" provisions of the Act. The significant contacts provisions are contained in Section 5344(a) 2 which authorizes the exercise of jurisdiction if: (2) it is in the best interest of the child that a court of this Commonwealth assume judsdictinn because: (i) the child and his paxents, or the child and at least one contestant, have a significant connection with this Commonwealth; and (ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child; We were not persuaded that the child had sufficient significant contacts with this Commonwealth to confer jurisdiction. He had lived here only a few months and had attended school for less than two months. Further, he was enrolled in school over the objection of his mother and in contravention of the agreement between the parties that he would be returned home to defendant at the end of the summer. On the other hand, the child had spent the entire eight years of his life in California prior to coming to Pennsylvania for the first time in June. The majority of the witnesses with information relevant to his best interests (doctors, teachers, child care providers, and those familiar with the parenting abilities of the parties) are located in California. As the Superior Court ~3 California did qualify as the home state under this subsection at the time defendant filed her action in November. However, plaintiff did not file the instant action until the California action had been dismissed. NO. 2004 - 0256 CIVIL TERM has noted "the test is one of maximum rather than minimum .significant contacts." Zitnbicki v. Zirnbicki, 810 A.2d 168, 171 (Pa. Super. 2002). California is clearly the jurisdiction with the maximum significant contacts. Even if we erred in our determination that we did not have jurisdiction under the significant contacts section of thc Act, we were satisfied thal our decision not to address the merits was appropriate. The Uniform Child Custody Jurisdiction Act authorizes us to decline jurisdiction if we find that the plaintiff''wrongfully.., engaged in conduct intending to benefit his position in a custody hearing" (23 Pa. C.S.A. § 5349). We found that such conduct existed in the instant case. It included plaintiffs refusal to return the child at the conclusion of the agreed upon visitation period.~4 It also included his waiting to file the instant action for two months after the child had returned to California, but within a week after the California custody action had been dismissed for lack of service.15 We were convinced that his actions were aimed at allowing him to litigate this matter in Pennsylvania to the great disadvantage of defendant. DATE Edward E. Guido, J. ~ We do not condone defendant's use of self help to retrieve her child, if it did in fact occur. However, as noted above we were not certain that the relxieval had not been accon~plished under color of the California order dated November 19, 2003. ~5 Prior to dismissal of the defendant's action, California would have heen in the position to exercise jurisdiction under the preferred "home state" provisions of the UCCJA. Ai?'iC',',IO,~.LOL~d ~HI ~0 NO. 2004 - 0256 CIVIL TERM Douglas G. Miller, Esquire 60 West Pomfret Street Carlisle, Pa. 17013 Yvonne D. Thresh 3188 Carson Road Placerville, CA 95667 :sld J.S66021/04 2004 PA Super 429 WILLIAM MCCOY, JR., Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA vs. ~4- c25-Z ~ YVONNE D. THRESH, Appellee No. 670 MDA 2004 Appeal from the Order entered March 25, 2004 In the Court of Common Pleas of Cumberland County Civil, No. 2004-256 Civil Term BEFORE: HUDOCK, GANTMAN, AND BECK, JJ. OPINION BY GANTMAN, J.: Filed: November 12, 2004 111 Appellant, William McCoy, Jr. ("Father"), asks us to determine whether the Cumberland County Court of Common Pleas erred when it declined to exercise jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act ("UCCJA")l and dismissed Father's custody complaint. We hold the court properly declined jurisdiction over the custody proceedings. Accordingly, we affirm. 11 2 The trial court has fully and correctly set forth the relevant facts and procedural history of this case as follows: The parties are the parents of [C.W.M.], born May 14, 1996. From the time of birth until they separated in April of 2002, the parties lived with the child in California. The parties shared custody of the child in California from the date of separation until [Father] moved to Pennsylvania in 1 23 Pa.C.S.A. SS 5341-5366. . J.S66021/04 March of 2003. By agreement of the parties, the child came to live with [Father] for the summer beginning on June 1, 2003. Rather than return the child at the end of the summer, [Father] enrolled him in school. [Father] testified that [Mother] came to Pennsylvania, removed the child from school, and returned with him to California on November 13 or 14, 2003. On November 19, 2003 [Mother] obtained an emergency order from the Superior Court of EI Dorado County, California which granted her temporary custody. [Father] did not file the instant action until January 20, 2004 at which time he alleged: Upon information and belief, [Mother] may have commenced a custody action in California, but to date [Father] has not been served with any complaint or other notice of any such proceeding. [See Complaint, filed 1/20/04 , at ~ 19]. In point of fact, not only did [Father] have actual knowledge of the California action, he had retained California counsel to enter a special appearance to challenge the jurisdiction of the California courts. A conciliation conference in the case at bar was scheduled for February 16, 2004. Mother contacted the conciliator from her home in California to advise that she could not attend. She further advised that she was attempting to retain counsel in Pennsylvania. The conference was held and the conciliator noted: There may be an issue with respect to where this case should be litigated.... However, Mother has not taken any affirmative action to raise issues of jurisdiction or venue at this particular time. Accordingly, the conciliator feels this case should proceed through the system in Cumberland County with the scheduling of a hearing. [See Conciliator's Report, filed 2/19/04, at 1]. After receiving the conciliator's report, [the trial court] - 2 - J.S66021/04 scheduled a hearing for March 25, 2004. Only [Father] and his counsel appeared. At the hearing, [the trial court] had two major concerns with regard to jurisdiction: 1) whether valid service had been effectuated upon [Mother]; and 2) whether [the trial court's] exercise of jurisdiction was appropriate under the terms of the [UCCJA]. At the conclusion of testimony [the trial court] declined to exercise jurisdiction. (Trial Court Opinion, dated July 9, 2004, at Jl-3). This timely appeal followed. 11 3 Father raises the following two issues for our review: WHERE NO CUSTODY ORDER IS IN EXISTENCE IN ANY JURISDICTION AND [FATHER] AND THE MINOR CHILD WERE RESIDING IN PENNSYLVANIA, DID THE [TRIAL] COURT COMMIT AN ERROR OF LAW OR ABUSE OF DISCRETION IN DENYING JURISDICTION? A. SPECIFICALLY, WHERE THE MINOR CHILD WAS UNILATERALLY REMOVED FROM PENNSYLVANIA BY [MOTHER] JUST PRIOR TO THE PASSING OF SIX MONTHS RESIDENCY, IS PENNSYLVANIA THE "HOME STATE" OF THE CHILD? B. IN THE ALTERNATIVE, ARE THERE "SIGNIFICANT CONTACTS" FOR JURISDICTION 11\1 PENNSYLVANIA WHERE THE CHILD WAS ENROLLED IN SCHOOL, ATTENDING CHURCH, AND RECEIVING MEDICAL CARE IN PENNSYLVANIA AND LIVING WITH [FATHER], WHO HAD RETURNED TO THE STATE TO LIVE AND WORK? DID THE [TRIAL] COURT COMMIT AN ERROR OF LAW OR ABUSE OF DISCRETION IN DENYING [FATHER'S] COMPLAINT WHEN [MOTHER] FAILED TO APPEAR FOR THE HEARING AND REFUSES TO PROVIDE ACCESS FOR REGULAR CONTACT WITH THE MINOR CHILD? (Father's Brief at 2). - 3 - J.S66021/04 11 4 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 that discretion. See generally Zimbicki v. Zimbicki, 810 A.2d 168, 170 CPa.Super. 2002); Van Dyke v. Vim Dyke, 722 A.2d 725 CPa.Super. 1998); Merman v. Merman, 603 A.2d 201 CPa.Super. 1992)). 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. Favacchia v. Favacchia, 769 A.2d 531, 537 CPa.Super. 2001). An abuse of discretion requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures. Cohenour v. Cohenour, 696 A.2d 201 CPa.Super. 1997); Paulone v. Paulone, 649 A.2d 691 CPa.Super. 1994). 11 5 In his first issue, Father claims he offered substantial uncontested evidence that Pennsylvania was the child's "home state" under the UCCJA. Specifically, Father contends C.W.M. would have lived in Pennsylvania for the statutorily prescribed six-month period, but for Mother's "unilateral actions" of removing him from the jurisdiction and returning him to California. Father believes Mother's unilateral actions were intended to defeat Father's efforts and establish a forum beneficial to her, something that should not be condoned by this Court. - 4 - J.566021/04 ~ 6 In the alternative, Father argues "significant contacts" with Pennsylvania justify the court's exercise of jurisdiction in the best interests of C.W.M. According to Father, C.W.M. attended school and church in Pennsylvania, has family members here, and desires to live in Pennsylvania. Although of shorter duration, Father contends the numerous contacts and relationships established in Pennsylvania are more beneficial to the child than those established in California. Father concludes the trial court erred in declining to exercise jurisdiction under either the "home state" or the "significant contacts" prong of the UCCJA and insists this case must be remanded for further proceedings. We cannot agree. ~ 7 The issue of jurisdiction in this matter is governed by the UCCJA, which provides: ~ 5344. Jurisdiction (a) General rule.-A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (1) this Commonwealth: (i) is the home state of the child at the time of commencement of the proceeding; or (ii) had been the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth; - 5 - J.566021/04 (2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because: (i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and (ii) there is available in this Commonwealth substantial evidence concernin9 the present or future care, protection, training and personal relationships of the child; (3) the child is physically present in this Commonwealth, and: (i) the child has been abandoned; or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; (4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and (ii) it is in the best interest of the child that the court assume jurisdiction; or (5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child. (b) Physical presence insufficient:.-Except under subsection (a)(3) and (4), physical presence in this Commonwealth of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this Commonwealth to make a child custody determination. - 6 - J.S66021/04 (c) Physical presence unnec:essary.-Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody. 23 Pa.C.S.A. 9 5344(a)-(c). Section 5343 defines "home state" in relevant part as: "Home state." The state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent, or in an institution, for at least six consecutive months.... 23 Pa.C.S.A. 9 5343. The home state is the preferred basis for jurisdiction pursuant to the UCCJA. Dincer v. Dincer, 549 Pa. 309, 701 A.2d 210 (1997). ~ 8 Pennsylvania courts will not assume jurisdiction under the "significant contacts" principle unless it appears that no other state can assume jurisdiction under statutory prerequisites substantially similar to Pennsylvania law. Tettis v. Boyum, 463 A.2d 1.056, 1060-61 (Pa.Super. 1.983). A petitioner seeking jurisdiction under the less favored "significant contacts" principle has the burden of proving the asserted bases for jurisdiction, which can be a heavy burden "especially if he approaches the matter with unclean hands." Warman v. Warmim, 439 A.2d 1203, 1212 (Pa.Super. 1982) (citing 23 Pa.C.S.A. 9 5349). In that respect, Section 5349 of the UCCJA authorizes the court to decline jurisdiction under the following circumstances: - 7 - J.S66021/04 !i 5349 Jurisdiction declined by reason of conduct (a) General Rule.-If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in conduct intending to benefit his position in a custody hearing, the court may decline to exercise jurisdiction if this is just and proper under the circumstances. 23 Pa.C.S.A. 9 5349(a). ~ 9 "Even in cases where jurisdiction lies in Pennsylvania and another forum, our courts have recognized the UCCJA's 'policy of circumscribing jurisdiction in custody cases rather than proliferating it.'" Dincer, supra at 320-21, 701 A.2d at 216 (quoting Goodman v. Goodman, 556 A.2d 1379, 1385 (Pa.Super. 1989), appeal denied, 523 Pa. 642, 565 A.2d 1167 (1989)). Only after the Commonwealth determines it has jurisdiction can it then "measure its claim against another forum also having jurisdiction." Dincer, supra at 320, 701 A.2d at 216. ~ 10 Following a thorough review of the record, Father's brief, the applicable law, and the well-reasoned opinion of the Honorable Edward E. Guido, we conclude Father's first issue merits no relief on appeal. Judge Guido's opinion succinctly discusses and properly disposes of this issue as follows: We were satisfied that neither Pennsylvania nor California qualified as the child's "home state." Pennsylvania did not qualify because the child had lived in this Commonwealth a total of only five and one-half months. Aside from those five and one-half months, he had spent his entire life in California. However, neither did California qualify as the - 8 - J.S66021/04 child's "home state" under Section 5344(a)(1). Since he had not lived in California for six consecutive months "immediately preceding" the commencement of this action, it did not meet the definition of home state under Section 5343. Therefore, Subsection (i) of 5344(a)(1) did not apply. Likewise, because the child was not "absent" from California when the action was filed, Subsection (ii) was not applicable. Therefore, if we had jurisdiction, it was pursuant to the "significant contacts" provisions of the [UCCJA] . The significant contacts provisions are contained in Section 5344(a)(2).... * * * We were not persuaded that the child had sufficient contacts with this Commonwealth to confer jurisdiction. He had lived here only a few months and had attended school for less than two months. Further, he was enrolled in school over the objection oLMother and in contravention of the agreement between the parties that he would be returned home to [Mother] at the end of the summer. On the other hand, the chiil:J had spent the entire eight years of his life in California prior to coming to Pennsylvania for the first time in June. The majority of the witnesses with information relevant to his best interests (doctors, teachers, child care providers, and those familiar with the parenting abilities of the parties) are located in California. As the Superior Court has noted, "the test is one of maximum rather than minimum significant contacts." [Zimbicki, supra at 171]. California is clearly the jurisdiction with the maximum significant contacts. Even if we erred in our determination that we did not have jurisdiction under the significant contacts section of the [UCCJA], we were satisfied that our decision not to address the merits was appropriate. The [UCCJA] authorizes us to decline jurisdiction if we find that [Father] "wrongfully...engaged in conduct intending to benefit his position in a custody hearing." 23 Pa.C.S.A. S 5349. We found such conduct existed in this case. It included [Father's] refusal to return the child at the conclusion of - 9 - J.S66021/04 the agreed upon visitation period. It also included his waiting to file the instant action for two months after the child had returned to California, but within a week after the California custody action had been Ijismissed for lack of service. We were convinced that his actions were aimed at allowing him to litigate this matter il1 Pennsylvania to the great disadvantage of [Mother]. (Trial Court Opinion at 5-7). We agree with the trial court that Pennsylvania does not have jurisdiction under either the "home state" or the "significant contacts" provision of the UCCJA. See Dincer" supra. In light of the court's reasoning and its credibility findings, we see no reason to disturb its decision. See Zimbicki, supra; Favacchia, supra. ~ 11 Next, Father alleges the court's concern about the proceedings being held "ex parte" is without basis, where Mother was aware of the court- ordered conciliation conference on February 16, 2004, and elected not to appear either personally or through legal counsel. Although Mother did not personally sign the certified mail return receipt for the custody complaint, Father urges this procedural defect is not enough to invalidate service. Father insists Mother simply chose not to appear. Father concludes the trial court abused its discretion in questioning service and should have exercised jurisdiction in this matter. We disagree. ~ 12 "Proper service is a prerequisite to a court acquiring personal jurisdiction over a defendant." Education Resources Institute, Inc. v. Cole, 827 A.2d 493, 502 (Pa.Super. 2003), appeal denied, 577 Pa. 721, 847 - 10 - J.566021/04 A.2d 1286 (2004). With respect to notice of proceedings to persons outside the Commonwealth, the UCCJA in relevant part provides: ~ 5346. Notice to persons outside this Commonwealth; submission 1to jurisdiction (a) General rule.-Notice required for the exercise of jurisdiction over a person outside this Commonwealth shall be given in a manner reasonably calculated to give actual notice, and may be: (1) by personal delivery outside this Commonwealth in the manner prescribed for service of process within this Commonwealth; (2) in the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction; (3) by any form of mail addressed to the person to be served and requesting a receipt; or (4) as directed by the court, including publication, if other means of notification are ineffective. * * * (c) Proof of service.-Proof of service outside this Commonwealth may be made by affidavit of the individual who made the service, or in the manner prescribed by the law of this Commonwealth, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery to the addressee. * * * 23 Pa.C.5.A. 9 5346(a), (c). The statute is consistent with the Pennsylvania Rules of Civil Procedure which also provide: - 11 - J.S66021/04 Rule 403. Service by Mail If a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent. Service is complete upon delivery of the mail. Pa.R.C.P.403. Rule 404 governs service outside the Commonwealth: Rule 404. Service Outside the Commonwealth Original process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof: * * * (2) by mail in the manner provided by Rule 403; (3) in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction * * * Pa.R.C.P. 404. Further, Rule 405 states: Rule 405. Return of Service * * * (c) Proof of service by mail under Rule 403 shall include a return receipt signed by the defendant or, if the defendant has refused to accept mail service and the plaintiff thereafter has served the defendant by ordinary mail, (1) the returned letter with the notation that the defendant refused to accept delivery, and - 12 - J.S66021/04 (2) an affidavit that the letter was mailed by ordinary mail and was not returned within fifteen days after mailing. Pa.R.C.P. 405(c)(1)-(2) (emphasis added). Rule 403 notes the United States Postal Service provides for restricted delivery by mail, which can only be delivered to the addressee or authorized agent. Pa.R.C.P. 403 Note. ~ 13 Instantly, Father attempted service of the custody complaint on Mother in California via certified mail. The original return receipt found in the certified record indicates the complaint was addressed to Mother, and the United State Postal Service delivered the complaint to Mother's correct address on January 27, 2004. However, Mother's signature is not on this receipt, in contravention of the service rules. The trial court recognized these deficiencies: [Father] did not comply with the Pennsylvania Rules of Civil Procedure in effectuating service of the complaint. * * * Rule 405 makes it clear that if original process is served by mail it must be actually delivered to the party upon whom service is being made. * * * The return receipt on the "Affidavit of Service of Complaint" was not signed by the defendant as required by Rule 405(c). (Trial Court Opinion at 3-4). Although the trial court was "uncomfortable with the service," it was satisfied that Mother had actual notice of the proceedings, see 23 Pa.C.S.A. 5346(a), and the court had personal - 13 - J.566021/04 jurisdiction over her. (See Trial Court Opinion at 4 n.ll.) Thus, the court demonstrated it did not rest its decision on service or personal jurisdiction grounds. ~ 14 Based upon the foregoing, we hold the recol"d as a whole supports the court's resolution to decline jurisdiction under the UCCJA over the custody proceedings. Accordingly, we affirm. ~ 15 Order affirmed. Date: - 14 - ~ C} i"'-.' :::; ?"n () -n --< ::T PI c_ ::-';" :,..-~ .- r:J ['-0 r:.? ,. n C~ "' -