Rebekah Wintersohl, v. Shawn McCaslin

Rebekah Wintersohl, v. Shawn McCaslin

Civil Action-Family Law-Custody-Subject Matter Jurisdiction-Venue-Preliminary Objections-Pa.R.C.P. rule 1915.5-Custody Action Previously Litigated in Another County-Waiver-Dismissal of Custody Complaint

Rebekah Wintersohl (“Mother”) filed a Complaint against Shawn McCaslin (“Father”) seeking custody of the parties’ two (2) children.  Mother asserted in her Complaint that she had not participated as a party or witness in other litigation concerning custody of the children in this or another court.  Father filed Preliminary Objects seeking dismissal of the Complaint on the basis that a custody action between the parties with regard to the children already was pending with the York County Court of Common Pleas.

1.  The purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) are to avoid jurisdictional competition, to promote cooperation between courts, to deter the abduction of children, to avoid re-litigation of custody decisions of other states and to facilitate the enforcement of custody orders of other states. 

2.  All counties in the Commonwealth of Pennsylvania maintain subject matter jurisdiction over child custody disputes. 

3.  Although an objection to subject matter jurisdiction may be raised at any time during a judicial proceeding, questions of personal jurisdiction, venue and notice must be raised at the first reasonable opportunity or are waived.

4.  Pa.R.C.P. Rule 1915.5(a) requires that a party in a custody proceeding challenge improper venue by preliminary objection.

5.  While venue of the custody action would have been appropriate and perhaps preferrable in Lebanon County since Mother and the children have been residing in Lebanon County since November of 2023 and the children attend school and counseling services in Lebanon County, Mother failed to object to proceedings in York County and actively participated in those proceedings since the filing of her Complaint in Lebanon County, thereby waiving any objection to venue of the custody action in York County. 

L.C.C.C.P. No. 2024-FM-0124, Opinion by Donna Long Brightbill, August 27, 2024.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                CIVIL ACTION – FAMILY DIVISION

REBEKAH WINTERSOHL,                        :           NO. 2024-FM-0124

                        Plaintiff                                   :

                                                                        :

            v.                                                         :

                                                                        :

SHAWN MCCASLIN,                                  :

                        Defendant                               :

                                                            ORDER OF COURT

            AND NOW, this 27th day of August, 2024, upon consideration of Defendant’s Preliminary Objections to Plaintiff’s Complaint, the evidence adduced at the hearing conducted on July 1, 2024, and the record of this matter, it is hereby Ordered that the Preliminary Objections are SUSTAINED.  The Complaint for Custody filed by Plaintiff Rebekah Wintersohl is hereby DISMISSED.

                                                                        BY THE COURT:

                                                                        ______________________________, J.

                                                                        DONNA LONG BRIGHTBILL

DLB/jah

Cc:  Wiley Parker, Esquire

        Rebekah Wintersohl/1136 Lehman Street/Lebanon, PA  17046

        Court Administration

         Lisa Halsell/Judges Chambers

         Judith Huber, Esquire/Law Clerk

                        IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                CIVIL ACTION – FAMILY DIVISION

REBEKAH WINTERSOHL,                        :           NO. 2024-FM-0124

                        Plaintiff                                   :

                                                                        :

            v.                                                         :

                                                                        :

SHAWN MCCASLIN,                                  :

                        Defendant                               :

APPEARANCES:

REBEKAH WINTERSOHL                                               SRL

WILEY PARKER, ESQUIRE                                            FOR SHAWN MCCASLIN

HENRY & BEAVER LLP

OPINION, LONG BRIGHTBILL, AUGUST 27, 2024.

            Plaintiff Rebekah Wintersohl (“Mother”) filed a Complaint seeking custody of the parties’ two minor children on April 15, 2024.  (Exhibit “4”)  At that time, the children were residing with the parties on a week-on/week-off basis at Mother’s residence in Lebanon and with Defendant Shawn McCaslin (“Father”) at his York residence.  Paragraph 6 of Mother’s Complaint provides:

6.  Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the children in this or another court.

(Complaint for Custody, Para. 6) 

Father has filed Preliminary Objections to the Complaint because a custody action between the parties was already pending in the York County Court of Common Pleas at the time Mother filed her Complaint.  He contends that, contrary to her representations in the Complaint, Mother has participated in the ongoing York County custody action, No. 2023-FC-00646-03, York County – Family Division.  Father contends that York County has exclusive, continuing jurisdiction of this custody matter pursuant to 32 Pa.C.S.A. §§5422 and 5471, that Mother’s filing of this action is a violation of 23 Pa.C.S.A. §5426 and 5471 due to the existence of the simultaneous proceeding, and that venue is improper in Lebanon County.  We conducted a hearing on Father’s Preliminary Objections on July 1, 2024 and the matter is now before us for disposition.

            The evidence adduced at the hearing indicated that the parties and the children had lived in Ephrata during 2022.  At some point, Father moved to his mother’s home in York County and filed a Complaint for custody there in early 2023.  Father is represented by Charles J. Hobbs, Esquire, in the York County action.  A Conciliation Scheduling Order in that action was entered on May 4, 2023 which indicated that a Conciliation Conference would be conducted on May 30, 2023. (Exhibit “1”)  On June 15, 2023, the York County Court entered an Interim Order for Custody Pending Trial which adopted the Conciliator’s recommendation that awarded the parties shared legal and physical custody.  An Order setting a Pre-Trial Custody Conference for August 10, 2023 was also entered on June 15, 2023.  (Exhibit “5”) At that time, it appears that Mother was still residing in Ephrata and had participated in the conciliation conference. 

After the York County Interim Order was entered, the parties reconciled and Father moved back to live with Mother and the children in Ephrata.  The family moved to Lebanon in November of 2023.   Mother testified that once the parties had reconciled, she believed there was no need for any further proceedings in the York County action. 

Father obtained a Temporary Protection From Abuse (“PFA”) Order against Mother in Lebanon County on April 4, 2024.  Father moved out of the family home and back to his mother’s home in York County on that date.  A final PFA was entered on April 30, 2024, effective for three years.  Pursuant to the final PFA Order, the parties were to have 50/50 legal custody with Mother having partial physical custody/visitation rights subject to any Order entered in a custody matter initiated by the parties. 

Mother filed her Custody Complaint in Lebanon County on April 15, 2024.  (Exhibit “4”)  By Order of April 23, 2024, this Court appointed a Custody Conciliator pursuant to Mother’s Complaint.  (Exhibit “4”)

On May 15, 2024, Father filed a Petition for Special Relief in the York County action.  On June 24, 2024, the York County Court conducted a hearing on the Petition and entered an Order granting, in part, the relief requested by Father.  (Exhibit “3”)  That Order indicated that Mother had appeared before the York County Court and participated in that proceeding as a self-represented litigant.  On May 16, 2024, Father filed his Preliminary Objections in this action contending that York County had continuing jurisdiction of this matter and that venue was improper in Lebanon County. 

At the hearing conducted by this Court on July 1, 2024, Mother testified that the children had been attending school at Southwest Elementary School and were receiving services through Pennsylvania Counseling in Lebanon.  Mother and the children continued to reside in the home where they had lived since moving to Lebanon in November 2023.  Upon consideration of the testimony and the exhibits presented by the parties, we will sustain Father’s Preliminary Objections.

            The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is to avoid jurisdictional competition, promote cooperation between courts, deter the abduction of children, avoid relitigation of custody decisions of other states, and facilitate the enforcement of custody orders of other states.  J.K. v. W.L.K., 102 A.3d 511, 513 (Pa. Super. 2014), citing 23 Pa.C.S.A. § 5401 – Uniform Law Comment. While the UCCJEA is applicable to interstate proceedings, the legislature has determined that its provisions “allocating jurisdiction and functions between and among courts of different states shall also allocate jurisdiction and functions between and among the courts of common pleas of this Commonwealth.” Id. at 513-514, citing 23 Pa.C.S.A. § 5471.

            With regard to jurisdiction of custody matters, the UCCJEA provides:

            § 5421. Initial child custody jurisdiction

(a) General rule.–Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:

(1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;

(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) and:

(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and

(ii) substantial evidence is available in this Commonwealth concerning the child’s care, protection, training and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or

(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).

(b) Exclusive jurisdictional basis.–Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth.

(c) Physical presence and personal jurisdiction unnecessary.–Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.

23 Pa.C.S.A. §5421. 

§ 5422. Exclusive, continuing jurisdiction

(a) General rule.–Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) or 5423 (relating to jurisdiction to modify determination) has exclusive, continuing jurisdiction over the determination until:

(1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning the child’s care, protection, training and personal relationships; or

(2) a court of this Commonwealth or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this Commonwealth.

(b) Modification where court does not have exclusive, continuing jurisdiction.–A court of this Commonwealth which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 5421.

23 Pa.C.S.A. §5422.

§ 5426. Simultaneous proceedings

• General rule.–Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter unless the proceeding has been terminated or is stayed by the court of the other state because a court of this Commonwealth is a more convenient forum under section 5427 (relating to inconvenient forum).

23 Pa.C.S.A. §5426.

All counties within the Commonwealth maintain subject matter jurisdiction of child custody disputes. B.A.B. v. J.J.B., 166 A.3d 395 (Pa. Super. 2017).   However, Pennsylvania Rule of Civil Procedure 1915.2, governing venue of custody matters, defines how and what county may properly exercise that jurisdiction. J.K. v. W.L.K., 102 A.3d at 514.  The rule provides:

Rule 1915.2. Venue

(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 but a parent or person acting as parent continues to live in the county; or

(2) when the court of another county does not have venue under subdivision (1), and the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with the county other than mere physical presence and there is available within the county substantial evidence concerning the child’s, protection, training and personal relationships; or

(3) when all counties in which venue is proper pursuant to subdivisions (1) and (2) have found that the court before which the action is pending is the more appropriate forum to determine the custody of the child; or

(4) when it appears that venue would not be proper in any other county under prerequisites substantially in accordance with paragraphs (1), (2) or (3); or

(5) when the child is present in the county and has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.

(b) Physical presence of the child or a party, while desirable, is not necessary or sufficient to make a child custody determination except as provided in subdivision (a)(5) above.

(c) The court at any time may transfer an action to the appropriate court of any other county where the action could originally have been brought or could be brought if it determines that it is an inconvenient forum under the circumstances and the court of another county is the more appropriate forum.

Pa.R.C.P. No. 1915.2. 

Although an objection to subject matter jurisdiction may be raised at any time during a judicial proceeding, questions of personal jurisdiction, venue and notice which relate to the method by which a court having the power to adjudicate the matter first obtained superintendence of the cause of action, must be raised at the first reasonable opportunity or they are waived.  B.A.B. v. J.J.B., supra.  Rule 1915.5 requires a party to raise improper venue by preliminary objection.  Pa.R.C.P. No. 1915.5(a). 

Both York and Lebanon Counties would have subject matter jurisdiction of this custody dispute.  Venue would have been appropriate, and perhaps preferable, in Lebanon County since Mother and the children have been residing here since November 2023 and the children have been attending school and receiving counseling services here. 

Mother failed to object to the proceedings in York County and has actively participated in those proceedings, even since the filing of her own Complaint in this County.  Thus, she has waived any objection to the York County action.  She has made no claim that York County is an inconvenient forum.  See 23 Pa.C.S.A. §5427.  For these reasons, we will dismiss Mother’s Custody Complaint.