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HomeMy WebLinkAbout94-4887 Civil Law THOMAS JUDE BILGER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : MICHELE M. BILGER, : Defendant : NO. 94-4887 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTION TO VENUE BEFORE OLER, J. ORDER OF COURT AND NOW, this ~O~ day of March, 1995, upon careful consideration of Defendant's Preliminary Objection raising the issue of venue, and based upon the stipulation of the parties, along with the briefs presented on the matter, Defendant's Preliminary Objection is GRANTED. It is hereby ORDERED that the action be transferred to the Court of Common Pleas of Schuylkill County. BY THE COURT, J!~'e~ley O1~, 'Jr., Deborah K. Spertzel, Esquire 20 S. Market Street Mechanicsburg, PA 17055 Attorney for Plaintiff Joan Carey, Esquire Legal Services, Inc. 8 Irvine Row Carlisle, PA 17013 Attorney for Defendant :re THOMAS JUDE BILGER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : MICHELE M. BILGER, : Defendant : NO. 94-4887 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTION TO VENUE BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. This case is presently before the court for disposition of a preliminary objection challenging venue filed by Michele M. Bilger (Defendant), in response to a petition to modify custody filed by Thomas Jude Bilger (Plaintiff). Defendant's preliminary objection is made pursuant to Pennsylvania Rule of Civil Procedure 1915.5. Statement of Facts The defendant, Michele M. Bilger, hereinafter referred to as the mother, is an adult individual who currently resides at 30 Fritz-Reed Avenue, Schuylkill Haven, Schuylkill County, Pennsylvania. The plaintiff, Thomas Jude Bilger, hereinafter referred to as the father, is an adult individual who currently resides at 1008 East Simpson Street, Mechanicsburg, Cumberland County, Pennsylvania. The parties are the parents of Zachary T. Bilger, hereinafter referred to as the child. NO. 94-4887 CIVIL TERM On August 30, 1994, the father filed in the Court of Common Pleas of Cumberland County a petition for modification of a Dauphin County custody order of September 11, 1987,~ granting primary physical custody of the child to the mother, and of a temporary custody emergency order, entered ex parte in Dauphin County on August 24, 1994, granting temporary physical custody of the child to the father. A Pre-Hearing Custody Conference was held on October 10, 1994. At the Pre-Hearing Custody Conference, the parties and their respective counsel stipulated to the following facts regarding venue in this action: 1. Since 1987 the subject child, Zachary Bilger, has resided in the primary custody of his mother in Schuylkill County. During that time he has also resided in a household with his two half-brothers, Eric Ward, now age 6, and Trevor Ward, now age 3. 2. The father obtained physical custody of Zachary on or about August 18, 1994, through the intervention of Montgomery County Children Services following an episode at the Valley Forge Military Park where the mother was temporarily incapacitated. The child has resided at the father's home in Mechanicsburg since that time. 3. The mother was hospitalized as a result of her incapacity from August 19, 1994, through 1 September 1994. Since that time she has returned to reside in her home in Schuylkill ~ Subsequent to the entry of the Dauphin County order, the mother moved to Schuylkill County and the father moved to Cumberland County. 2 NO. 94-4887 CIVIL TERM County where her two sons, Eric Ward and Trevor Ward, now reside with her. The mother had held employment at a factory Mondays through Fridays since September 15, 1995 [sic]. 4. The child is currently enrolled in the third grade at the Filbert Street Elementary School in Mechanicsburg. He was enrolled there in early September, 1994. Prior to September of 1994, he attended kindergarten, first grade, and second grade in Schuylkill County. 5. The parties agree that it was not the mother's intention on August 18, 1994, to give the father permanent or long-term custody of the child, but that she intended only to allow the father to have temporary custody at this time. 6. Both parties now desire to have primary physical custody of Zachary.2 As a result of the Pre-Hearing Custody Conference, an interim order was entered pursuant to an agreement of the parties directing that the parties would have shared legal custody of the child, that primary physical custody would remain in the father, and that the mother would have partial physical custody every other weekend. The issue to be determined at this time is whether the case should be transferred to Schuylkill County for determination of a permanent custody order. Statement of Law Initially, it should be noted that venue in custody cases is 2 Conciliator Conference Summary Report, November 9, 1994, Statement of Stipulated Facts Regarding Venue. 3 NO. 94-4887 CIVIL TERM governed by Pennsylvania Rule of Civil Procedure 1915.2.3 This rule provides, in pertinent part, as follows: (a) An action may be brought in any county (1)(i) which is the home county of the child at the time of commencement of the proceeding, or (ii) which had been the child's home county within six months before commencement of the proceeding and the child is absent from the county because of the child's removal or retention by a person claiming the child's custody or for other reasons and a parent or person acting as parent continues to live in the county; or (2) in which it is in the best interest of the child that the court decide the matter because the child and the child's parents, or the child and at least one party, have a significant connection with the county and there is available within the county substantial evidence concerning the child's present or future care, protection, training and personal relationships; or (3) in which the child is physically present and the child has been abandoned or 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 .... As defined in Pennsylvania Rule of Civil Procedure 1915.1(b), "home county" means the county in which the child immediately preceding the time involved lived with the child's parents...[or] a parent ... for at least six consecutive months A period of temporary absence of the c~i~ 3 The Uniform Child Custody Jurisdiction Act, Act of December 19, 1990, P.L. 1240, §2, 23 Pa. c.a.A. ~5341 et. seq., contains provisions similar to those of Pennsylvania Rule of Civil Procedure 1915.2. NO. 94-4887 CIVIL TERM from the physical custody of the parent ... shall not affect the six-month...period. Furthermore, the term "at the time of commencement of the proceeding" has been construed to encompass proceedings to modify existing orders as well as original proceedings. Diffenbach v. Diffenbach, 14 D. & C.3d 254, 258 (Dauphin Co. 1980). With regard to the burden of proof in such cases, "[t]he burden is on the petitioner who wants jurisdiction in a forum other than the 'home'; the only justifications for a court's assumption of the possible, but less favored, jurisdictions under the 'significant contacts' or 'emergency' provisions are justice and propriety under Sec. 5349(a) [of the Uniform Child Custody Jurisdiction Act] and physical or emotional harm under Sec. 5349(b) [of the Act]. In light of the stated purposes of the Act, the Commissioners'4 Comments, and prior case law ... the burden on the petitioner who wishes to establish an alternative jurisdiction is very heavy indeed .... " Warman v. Warman, 294 Pa. Super. 285, 302, 439 A.2d 1203, 1211-12 (1982) (citations omitted). "As a general rule, the home [county] of the child is the preferred forum." Joselit v. Joselit, 375 Pa. Super. 203, 209, 544 A.2d 59, 61 (1988). With regard to "significant contacts" jurisdiction, the 4 The reference to the Commissioners is to the National Conference of Commissioners on Uniform State Laws. 5 NO. 94-4887 CIVIL TERM Pennsylvania Superior Court has held that a period of five years which a child had spent in California in the primary custody of his mother made California the appropriate forum for custody actions concerning the child, and that a Pennsylvania court properly declined to exercise jurisdiction, even though the child also had connections with Pennsylvania, by reason of extensive summer visitation with his father in Pennsylvania, and even though substantial evidence concerning his present or future care, protection, training and personal relationships could be found in both states. Warman v. Warman, 294 Pa. Super. 285, 439 A.2d 1203 (1982). With regard to "emergency" jurisdiction, the Pennsylvania Superior Court has stated that "parens patriae" jurisdiction is inappropriate in a child custody case where no finding of abandonment has been made by the court. Aldridge v. Aldridge, 326 Pa. Super..49, 55 n.4, 473 A.2d 602, 605 n.4 (1984). This conclusion remains intact even if the children have been placed in the custody of a county children's bureau. Id. In Aldridge, the court noted that "[j]urisdiction exists only if it is in the child's interest .... The interest of the child is served when the forum has optimum access to relevant evidence about the child and family." Id. at 56, 473 A.2d at 605. With regard to the doctrine of forum non conveniens in custody cases, the Pennsylvania legislature has set forth the following 6 NO. 94-4887 CIVIL TERM guidelines-. (a) General rule· -- a Court which has jurisdiction under [the Uniform Child Custody Jurisdiction Act] to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another [county] is a more appropriate forum. (c) Factors to be considered· - In determining it if is an inconvenient forum, the court shall consider if it is in the interest of the child that another [county] assume jurisdiction· For this purpose, it may take into account the following factors, among others: (1) If another [county] is or recently was the home [county] of the child. (2) If another [county] has a closer connection with the child and his family or with the school and one or more of the contestants. (3) If substantial evidence concerning the present or future care, protection, training and personal relationships of the child is more readily available in another [county]· (5) If the exercise of jurisdiction by a court of [this county] would contravene any of the purposes stated in section 5342 5 s Act of December 19, 1990, P.L. 1240, ~2, 23 Pa. C.S.A. §5348. 7 NO. 94-4887 CIVIL TERM Application of Law to Facts Applying the foregoing principles of law to the present case, the court is of the opinion that this action should be transferred to Schuylkill County. It appears that Schuylkill County is the home county of the child, that Schuylkill County has a closer connection than Cumberland County with the child and his family, and that Schuylkill County is the site of substantial evidence that is readily available concerning the present or future care, protection, training and personal relationships of the child. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ~Q~ day of March, 1995, upon careful consideration of Defendant's Preliminary Objection raising the issue of venue, and based upon the stipulation of the parties, along with the briefs presented on the matter, Defendant's Preliminary Objection is GRANTED. It is hereby ORDERED that the action be transferred to the Court of Common Pleas of Schuylkill County. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 8 NO. 94-4887 CIVIL TERM Deborah K. Spertzel, Esquire 20 S. Market Street Mechanicsburg, PA 17055 Attorney for Plaintiff Joan Carey, Esquire Legal Services, Inc. 8 Irvine Row Carlisle, PA 17013 Attorney for Defendant : rc