Judges Opinions, — November 21, 2012 10:00 — 0 Comments

Pinero vs. Kohr No. 2008-20639

PINERO vs. KOHR No. 2008-20639

Civil Action – Custody – Subject Matter Jurisdiction – Due Process – Notice – Waiver – Merits – Appeal.

  1. Subject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented.  Jurisdiction is a matter of substantive law.
  2. As a general rule, a court in Pennsylvania which has made a child custody determination has exclusive, continuing jurisdiction over the determination.
  3. A Court of Common Pleas has the jurisdiction to enter initial child custody orders and to modify child custody orders in accordance with the provisions stated in the Uniform Child Custody Jurisdiction and Enforcement Act.  Also, the Court has the jurisdiction to hear contempt proceedings based on violation of child custody orders.
  4. An objection to the lack of subject matter jurisdiction can never be waived, it may be raised at any stage of a case, even on the appellate level, by the parties or by a court on its own motion.
  5. If the issue is whether an Appellant’s due process rights were violated and whether she received the requisite notice, the question of notice must be raised at the first reasonable opportunity or it is waived.
  6.  After reviewing the record, the Court found that Appellant waived the issue of notice since she did not raise it at the first reasonable opportunity.
  7. Upon reviewing the merits of the case, the Court noted that the Appellee, in his Contempt Petition, had requested, inter alia, any other remedy deemed appropriate by the Court and that the conduct and actions of Appellant in disobeying the previous Court Order gave it no other choice but to award Appellee primary physical custody and to restrict her visitation to be supervised to assure she would not abscond with the child in the future.

Notice of Appeal and Concise Statement of Errors.  C.P. of Lebanon County, Civil Action-Law, No. 2008-20639.

Richard Ducote, Esquire, for Plaintiff

Keith Kilgore, Esquire, for Defendant

Mary A. Graybill, Esquire, for Superior Court

 

ORDER

 

And now, to wit, this 7th day of August, 2012, upon consideration of the Appellant’s Notice of Appeal and Concise Statement of Errors Complained of on Appeal, we hereby affirm our Order dated June 12, 2012 and filed on June 20, 2012, and we affirm our Amended Order filed on June 22, 2012 in the above-captioned case.

The Prothonotary of the Court of Common Pleas of Lebanon County is hereby directed to transmit the record, including this Order and attached Opinion, in the above-captioned case to the Superior Court of Pennsylvania, pursuant to the requirements of Pa.R.A.P. 1931 and the Appellate Court Children’s Fast-Track Rules IMMEDIATELY.

 

KLINE, J., AUGUST 7, 2012

Before the Court is Appellant’s Concise Statement of Errors Complained of on Appeal.  For the reasons set forth herein, we find the alleged error lacks merit, as specified below.

We note that this Opinion is being authored in an expedited fashion to comply with the Appellate Court Fast Track Rules.  We are required to have the Opinion to the Superior Court within 30 days of the Notice of Appeal pursuant to Pa.R.C.P. 1931(a)(2).

FACTS AND PROCEDURAL HISTORY

          This case commenced on January 20, 2009, when Appellant filed a Complaint for Custody of the parties’ child.  On February 12, 2009, a conference was held before a custody conciliator.  The Appellant did not appear at this conference despite filing the Custody Complaint.  The custody conciliator recommended, among other things, that the parties share both legal and physical custody of the child.  On February 17, 2009, the custody conciliator’s recommendation was made an Interim Order of Custody.  At Appellant’s request, a custody hearing was scheduled for May 4, 2009 before

the custody conciliator.

On March 13, 2009, Appellee filed a Petition for Contempt, claiming that Appellant was failing to comply with a provision in the current Custody Order.  A hearing was held on the Petition for Contempt on April 2, 2009.  After hearing, the Petition for Contempt was continued and the parties were urged to comply with the Custody Order.

After the custody hearing was held on May 4, 2009, the custody conciliator recommended again, among other things, that the parties share legal and physical custody of the child.  The recommendation was made an Interim Order of Custody on May 7, 2009.  At Appellant’s request, a de novo custody hearing was scheduled for  July 1, 2009.  Thereafter, the de novo custody hearing was discontinued at Appellant’s request.

On October 6, 2009, Appellant filed a Petition for Modification of the Custody Order, whereby Appellant sought Appellee to have limited contact with the child.  After a conference was held before the custody conciliator, the conciliator recommended that the May 7, 2009 Order remain in effect. The recommendations were adopted as an Interim Custody Order on November 23, 2009.  A custody hearing was scheduled before the conciliator on February 10, 2010, but was continued until April 14, 2010.  Appellant sought to cancel the custody hearing again, and the hearing was discontinued.  On April 14, 2010, the May 7, 2009 Order as well as the terms in the November 2009 Interim Order became a Final Order.

On July 7, 2010, Appellee filed a Petition for Contempt alleging that Appellant denied him custodial time on or about July 4, 2010.  A hearing was scheduled on the Contempt Petition on July 29, 2010.  Appellee filed another Petition on July 20, 2010 asking the Court to enter an Order prohibiting Appellant from removing the child from the jurisdiction of the Court.  On July 21, 2010, Appellant was ordered to have the child present for the July 29, 2010 hearing.  Further, Appellant was prohibited from removing the child from Lebanon County pending further Court Order.

On July 29, 2010, the hearing was held.  Appellant did not attend the hearing nor did she have the child present.  Appellant’s counsel at the time, Christine Pfau Laney, Esq., was present at the hearing.  At the conclusion of said hearing, this Court found Appellant in contempt of court with regard to the custody order entered in this matter.  Further, we directed that primary physical and legal custody of the child was immediately to be awarded to the Appellee, and Appellant was to have supervised visitation.

On October 22, 2010, Appellant filed a Petition for Modification of Custody Order.  A custody conference was scheduled for January 12, 2011.  On January 13, 2011, the custody conciliator recommended that the July 29, 2010 Order remain in full effect pending a hearing.  A custody hearing was scheduled before the Court on May 4, 2011 but was continued until June 16, 2012.  On May 20, 2011, Appellant’s counsel at the time, Shawn Dorward, Esq., filed a Petition to Withdraw from Representation.  On June 13, 2011, Attorney Dorward’s Petition to Withdraw was granted.  The custody hearing was held on June 16, 2011, and Appellant did not even attend the custody hearing. The Petition for Modification was dismissed.

On January 23, 2012, Appellant filed her document titled, “Plaintiff’s Motion to Vacate July 29, 2010, Order Granting Defendant Primary Physical and Legal Custody, and Restricting Plaintiff’s Visitation” (hereinafter “Motion to Vacate”), which is the subject of this appeal.  In the Motion to Vacate, Appellant asks the Court to vacate the July 29, 2010 Order because Appellant alleges that the Order is void as a matter of law as this Court lacked subject matter jurisdiction to enter the Order.  Appellant claims that she was not provided with notice that custody would be at issue at the July 29, 2010 hearing; therefore, she was denied due process, and we did not have subject matter jurisdiction.

On February 9, 2012, Appellee filed his Answer and New Matter to the Motion to Vacate.  On March 8, 2012, Appellant filed a Petition for Emergency Custody.  Appellee filed his Answer and New Matter to the Petition for Emergency Custody on March 23, 2012.  Appellee filed another Petition for Contempt on April 2, 2012.

A hearing on the Motion to Vacate and Petition for Contempt was held on June 12, 2012.  At the conclusion of the hearing, we denied the Motion to Vacate.  The Order was entered on the docket on June 20, 2012 and an Amended Order, which corrected a typographical error, was entered on the docket on June 22, 2012.

Appellant filed her Notice of Appeal and Concise Statement of Errors Complained of on Appeal on July 20, 2012.  Appellant raises one alleged error for our review.  Appellant argues the following,

The Court erred as a matter of law and abused its discretion in denying the Plaintiff’s Motion to Vacate the July 29, 2010 Order granting Defendant primary physical and legal custody and restricting Plaintiff’s visitation as the July 29, 2010 Order modifying custody and restricting visitation is void as a matter of law, as the Court lacked subject matter jurisdiction to enter the Order because a Court cannot modify custody on the basis of contempt proceeding, when there is no notice to the party that custody is at issue, as such is a violation of constitutional due process guarantees.

 

The case is thus before us and ripe for disposition.

 

 

DISCUSSION

Waiver

          The Appellant argues that this Court did not have subject matter

jurisdiction to enter our July 29, 2010 Order; however, the Appellant also argues that the entry of the Order “is a violation of constitutional due process guarantees.”  We find that the Appellant has mischaracterized this issue as a question of subject matter jurisdiction.

“Subject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented.  Jurisdiction is a matter of substantive law.” Schultz v. MMI Products, Inc., 30 A.3d 1224, 1226-1227

(Pa. Super. 2011). As a general rule, a court in Pennsylvania which has made a child custody determination has exclusive, continuing jurisdiction over the determination. 23 Pa.C.S.A. §5422.  It is clear that this Court has the jurisdiction to enter initial child custody orders and to modify child custody orders in accordance with the provisions stated in the Uniform Child Custody Jurisdiction and Enforcement Act.  Also, we have the jurisdiction to hear contempt proceedings based on violation of child custody orders.

Furthermore, Appellant’s argument has been characterized as a due process issue by the Superior Court in Langendorfer v. Spearman, 797 A.2d 303 (Pa. Super. 2002, which case will subsequently be discussed, and in Choplosky v. Choplosky, 584 A.2d 340 (Pa. Super. 1990).

Therefore, the question is not whether we had jurisdiction over the subject matter because it is clear that we did.  Had this actually been a question of subject matter jurisdiction, then the issue would not be waived.  “An objection to the lack of subject matter jurisdiction can never be waived; it may be raised at any stage of a case, even on the appellate level, by the parties or by a court on its own motion.” Com., Dept. of Transp., Bureau of

Traffic Safety v. Forte, 371 A.2d 526, 527 (Pa. Cmwlth. 1977).  However, that

is not the case.

The issue is whether the Appellant’s due process rights were violated and whether she received the requisite notice.  The question of notice must be raised at the first reasonable opportunity or it is waived.  City of Philadelphia v. Silverman, 497 A.2d 689 (Pa. Cmwlth. 1985).  At the July 29, 2010 hearing, Appellant’s counsel at the time, Christine Pfau Laney, Esq., did object on the record that she did not believe that primary physical custody could be changed. (N.T. 13).  However, Appellant did not appeal this Order.

Thereafter, Appellant retained new counsel, Shawn Dorward, Esq.  A Petition to Modify Custody Order was filed on October 22, 2010.  The Petition sought modification of the July 29, 2010, but it did not raise the notice issue.  After a custody conference was held on January 12, 2011, the custody conciliator recommended that the July 29, 2010 Order remain in effect pending a hearing.  On June 13, 2011, Attorney Dorward’s Petition to Withdraw from Representation was granted.  A custody hearing was scheduled for June 16, 2011, and Appellant did not even attend the custody hearing. The Petition was dismissed, and Appellant did not appeal this Order.

Finally on January 23, 2012, the Appellant, represented by new counsel, raised her notice argument challenging the July 29, 2010 Order for the first time.  This notice argument was raised approximately 18 months later from when she could have raised it.  We find that Appellant’s issue is waived since she did not raise it at the first reasonable opportunity.

Although we find that Appellant waived her issue with regard to notice,

we will analyze the case on the merits in the event the Superior Court

determines that the issue is not waived.

Merits of the Case

In Langendorfer, supra., the Superior Court determined that a father’s due process rights were violated when a trial court ordered, as a sanction for father’s contempt of a child custody order, that the legal and primary physical custody of child be changed from father to mother, where the father had no notice that custody would be at issue in the contempt proceedings.  The Superior Court also ruled that a court may not permanently modify a custody order without having a petition for modification before it.  We find that the facts of that case are distinguishable from the case before us.[1]

In Langendorfer, the contempt petition requested the court to find the following:

(a) Father is in Contempt of Court for failure to comply with the Custody Order dated May 5, 1998; and

 

(b) Father is ordered to timely comply with all aspects of the Court’s May 5, 1998 Order, including the following[:]

 

(1) Father is ordered to apprise Mother of the whereabouts of Sidney;

 

(2) Father is ordered to provide Mother with an address and phone number at which Sidney may be reached;

 

(3) Father is ordered to refrain from interfering with Mother’s and Mother’s family members’ attempts to contact Sidney;

 

(4) Father is ordered to refrain from interfering with Mother’s right to partial physical custody of Sidney; and

 

(5) Father is ordered to split the cost of Sidney’s travel in order to effectuate Mother’s partial physical custody rights.

 

Id. at 305-306.

Upon review of Appellee’s Petition for Contempt filed on July 7, 2010, Appellee requested, among other relief, “any other remedy deemed appropriate by your Honorable Court.”  This relief was not requested in the petition in Langendorfer.

Also, the Court Order dated July 21, 2010 ordered Appellant to make sure the child was present at the July 29, 2010 hearing.  It further prohibited her from removing the child from Lebanon County, Pennsylvania until further Order of Court.  Instead of complying with this Order, Appellant blatantly disregarded the Order, and she absconded with the child to Florida.

This Court found after the June 12, 2012 hearing that the time, date, place and notice of the hearing was afforded to the Appellant.  On July 8, 2010, the Appellant received notice of the contempt hearing.  Although this notice did not state that custody of the child was at issue, the Appellant was aware that she was directed to have the child present at the hearing and to not remove the child from Lebanon County by Court Order dated July 21, 2010.  The Appellant was also aware that the Court could order any and all relief we deemed reasonable in this case as that was part of the relief requested in the Petition for Contempt.  We found that the conduct and actions of Appellant in disobeying the previous Court Order gave us no other choice but to award Appellee primary physical custody and to restrict her visitation to be supervised to assure she would not abscond with the child in the future.  We now turn this case over to the Superior Court for its review.  We will enter an Order consistent with the foregoing.



[1] We note that the Superior Court also stated in Choplosky, supra., that a trial court may temporarily modify a custody order despite lack of a petition to modify, where the temporary modification of custody will preserve the well being of the children involved while the parties prepare to resolve more permanently the question of where or with whom the children should remain.

About the author

Ben has written 966 articles for Lebanon County Legal Journal

Search