HomeMy WebLinkAbout2004-256 CivilWILLIAM C. MCCOY, JR.
V.
YVONNE D. THRESH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., JULY ,2004
The plaintiff filed a custody complaint on January 20, 2004. At a hearing
scheduled before us on March 25, 2004 we declined to exercise jurisdiction. Plaintiff has
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.~ 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.
: 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.
~ 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 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 about it,
and she was reluctant. She didn't really 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).
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Plaintiff testified that defendant came to Pennsylvania, 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.?
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 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. 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 remove the child pursuant to the
California court order.
s See Custody Complaint, paragraph 19.
6 The California action was dismissed on January 16, 2004, because "there was no proof of service filed by
petitioner." See Plaintiff' s Exhibit # 1.
7 See conciliator's report dated February 16, 2004.
8 See conciliator's report dated February 16, 2004.
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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
declined to exercise jurisdiction.
At the conclusion of testimony we
DISCUSSION
Proper service of original process is a prerequisite to our acquisition of personal
jurisdiction over a defendant. Ramsay v. Pierce, 822 A.2d 85 (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 concerning 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
learns 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
part:
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;
(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.
9 23 Pa. C.S.A. § 5341 et seq.
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Rule 405. Return of Service
(a) When service of original process has been made the sheriff or
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 within 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 Jurisdiction Act "subject matter jurisdiction
may be premised upon three major grounds, "home state", significant connections or
l0 It was signed by a "Jeff Polk."
~ 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 shall be given in a manner reasonably
calculated to give actual notice and may be:
(3) by any form of mail addressed to the person to be served and
requesting a receipt;
(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.
(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 return
receipts were signed by "Jeff Polk." Nevertheless, it is clear that defendant had actual notice of the
proceedings.
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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 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
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 lA months. ~2 Aside from those 5 lA months, he had spent
his entire life in California. However, neither did California qualify as the child's "home
~2 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.
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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. ~3 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 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 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
~ 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.
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has noted "the test is one of maximum rather than minimum significant contacts."
Zimbicki v. Zimbicki, 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 the Act, we were satisfied that 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 plaintiff' s refusal to return the
child at the conclusion of the agreed upon visitation period.TM 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. ~5
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.
14 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 retrieval had not been accomplished under color of the California
order dated November 19, 2003.
is Prior to dismissal of the defendant's action, California would have been in the position to exercise
jurisdiction under the preferred "home state" provisions of the UCCJA.
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Douglas G. Miller, Esquire
60 West Pomfret Street
Carlisle, Pa. 17013
Yvonne D. Thresh
3188 Carson Road
Placerville, CA 95667
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