Jurisdiction, Counsel Fees in Child Custody Revisited by Court

Obermayer Rebmann Maxwell & Hippel LLP

In November 2014, the Pennsylvania Superior Court case of T.A.M. v. S.L.M., 104 A.3d 30 (Pa. Super. 2014), addressed modification of a child custody order under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) where the parties and the child no longer reside in the state that issued the custody order. In September 2014, for the first time, the Superior Court analyzed the counsel fees section of the Child Custody Act enacted in 2011, in the case of Chen v. Saidi, 100 A.3d 587 (Pa. Super. 2014). The recent case of A.L.-S. v. B.S., 2015 PA Super 123 (May 27, 2015), addressed both issues again.

In my article on the T.A.M. case, "Court Analyzes Jurisdiction to Modify Custody Order Under UCCJEA," published Jan. 13 in The Legal, I highlighted that under the UCCJEA the primary focus is on the home state of the child regarding jurisdiction. The UCCJEA defines "home state" as: "the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." I further reiterated that in order to avoid forum-shopping and multiple states entering multiple custody orders, the UCCJEA also emphasizes exclusive continuing jurisdiction. In the T.A.M. case, a Tennessee court granted the maternal grandmother, a resident of Erie, custody of her grandchild. The maternal grandmother continued to reside with the grandchild in Pennsylvania. The father of the child then moved from Tennessee to Florida and the mother had been presumed no longer living. More than a year after the grandmother had custody of the grandchild in Pennsylvania, the father filed a custody action in Pennsylvania seeking custody of the child. The trial court in that case dismissed the matter, holding that Pennsylvania lacked jurisdiction to modify the Tennessee order because the Tennessee court did not relinquish jurisdiction. The Superior Court reversed the trial court's decision because it held that the child's home state was in Pennsylvania and no parent or person acting as a parent still resided in Tennessee. Because of this, under the UCCJEA, Pennsylvania had jurisdiction to modify the order of Tennessee.

In the recent case of A.L.-S., A.L.-S. (the mother) and B.S. (the father) had two children. A trial court in Ohio entered an order granting the father sole legal custody of the children, primary custody of one of the children and shared custody with the mother of the other child. Thereafter, both parties resided in Pennsylvania, along with the children, pursuant to the custody order. The mother filed a motion to register the Ohio order in Lawrence County. The mother's motion to register the order was granted. Simultaneously with the mother registering the order in Pennsylvania, the mother filed a motion to modify custody. In her motion, the mother claimed that Lawrence County was the proper venue for her to pursue her custody action, "as both parties currently live in Lawrence County." The father filed a motion to decline jurisdiction under the UCCJEA. The trial court granted the father's motion and declined jurisdiction, though the order remained registered in Lawrence County and enforceable as an order of the Lawrence County court. According to the opinion, "The Lawrence County court concluded it would not assume jurisdiction over the case until the [Ohio] court issued an order that relinquished jurisdiction."

Approximately a month later, the mother filed a petition for special relief based on her concerns regarding the child's noticeable limp and bruising and swelling on his foot and leg at a custody exchange. The father filed an answer to the mother's petition seeking counsel fees "based on mother's 'vexatious' conduct." According to the opinion, "Father averred: 'Mother's conduct is 'vexatious' because her petition for modification directly contradicts the June 4, 2014, order of court [which declined jurisdiction].'" The trial court denied the mother's petition and denied the father's request for counsel fees. Approximately four months later the mother filed another petition for special relief claiming that one of the children had returned to her home with bruises on his buttocks and thigh. "Mother also reiterated and requested the court exercise emergency jurisdiction pursuant to [the UCCJEA]," the opinion said. The father filed an answer to the mother's petition, as well as a petition for counsel fees alleging that the mother's motions were vexatious and repetitive. According to the opinion, the same day that the father filed his answer, the trial court entered an order denying the mother's petition and granted the father's request for counsel fees. In making its decision, the trial court held that "the facts and circumstances alleged in the petition do not rise to the level necessary for this court to exercise emergency jurisdiction, this court having previously on two occasions declined to accept jurisdiction under the UCCJEA, in that the Court of Common Pleas of Cuyahoga County, Ohio, has not relinquished jurisdiction to this court."

Thereafter, the mother appealed the trial court's decision and raised seven issues on appeal. Generally, the mother's issues on appeal pertained to two categories: (1) whether the trial court erred in failing to accept jurisdiction pursuant to the UCCJEA as both parties and the child reside in Pennsylvania, and the UCCJEA does not require the state of original jurisdiction to relinquish custody so long as the requirements for initial jurisdiction are met; and (2) whether the trial court erred in granting the father's petition for counsel fees.

In its opinion, the Superior Court went into great detail in analyzing the UCCJEA and reiterated similar reasoning that was contained in the T.A.M. case. It is clear by the facts in this case that the children's home state is Pennsylvania and that neither party nor the children remained in Ohio. The Superior Court emphasized that under the UCCJEA and the official comments thereunder, if an action is brought in the home state of the children after the children and the parties have vacated the jurisdiction that originally entered the order, the new home state may determine that the original state no longer has jurisdiction and may enter a new custody order. Therefore, the Superior Court reversed the trial court in the A.L.-S. case as it found that: "Ohio no longer has exclusive, continuing jurisdiction over this child custody matter pursuant to the UCCJEA and is no longer able to enter any custody orders in this case. Pennsylvania meets the criteria for jurisdiction and, therefore, we reverse and remand this case for a determination on the merits of the mother's motion for modification."

The Superior Court emphasized that the modification proceeding was commenced in Pennsylvania after the parties and the children no longer resided in Ohio, the state that originally entered the order. It is important to note that under the UCCJEA, if one of the parties returned to Ohio to reside, Ohio would not automatically regain jurisdiction of the case. Once a state loses exclusive continuing jurisdiction over a matter, it can only be re-established if the requirements for initial jurisdiction are met.

With regard to the counsel fees issue, "the trial court awarded father's counsel fees based on its conclusions that mother's filings were 'repetitive' within the meaning of Section 5339." As a reminder, the Chen case, referenced earlier in this article, was the first case to analyze attorney fees under the new custody statute. The analysis under the Chen case focused on the word "repetitive" contained in Section 5339 regarding counsel fees for conduct found to be obdurate, vexatious, repetitive or in bad faith. In the Chen case, the counsel fees award was reversed because the Superior Court found that each petition filed in that case sought distinct relief pertaining to a variety of legitimate issues that typically arise in a custody matter. In the A.L.-S. case, the mother's petitions were not found to be repetitive, in that each petition pertained to a separate issue. The Superior Court reiterated that a suit is vexatious "if it is brought without legal or factual grounds and if the actions serve the sole purposes of causing annoyance." The Superior Court held that "because the trial court's orders declining jurisdiction are in error, and those orders provided, in part, the basis of the court's order granting counsel fees, we find it necessary to reverse that order."

This case is important for family law practitioners and the bench. Being that this is the second reported Superior Court case in approximately six months pertaining to the issue of continuing jurisdiction under the UCCJEA when the parties and the child[ren] have vacated the jurisdiction that issued the custody order, confusion surrounding this issue clearly exists. This case appears to be the exclamation point reiterating the finer points of the UCCJEA regarding exclusive continuing jurisdiction. Further, this case is important for practitioners and the bench as it is only the second reported case pertaining to counsel fees under Section 5339. By reading the A.L.-S. case and the Chen case, it appears that numerous filings seeking distinct relief pertaining to a variety of legitimate issues that typically arise in custody matters will not warrant an award of attorney fees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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