801 A.2d 938 | Del. Fm. Ct. | 2002
UPON A MOTION TO DISMISS PETITION FOR CUSTODY
Before the Court are a Motion to Dismiss filed by R.A.O. (hereinafter “Mother”) and the Response thereto. At issue is whether this Court should dismiss the Petition for Custody filed by C.G.O. (hereinafter “Father”), regarding the parties’ son, C.W.O. (d.o.b. 1/1/97), due to a lack of jurisdiction pursuant to the Uniform Child
SUMMARY OF FACTS
The parties are the biological parents of C.W.O., born on January 1, 1997. The parties agree that, from the time that C.W.O. was born until he was eighteen months old, they lived in Delaware. During part of this time, they lived on their own and, for the last few months in Delaware, they lived with Father’s parents. Thereafter, in June of 1998, the parties relocated to 118 Fitzgerald Street, Philadelphia, Pennsylvania. Over a year later, and after signing a second one year lease for their apartment in Philadelphia, the parties separated in August of 1999. C.W.O. also has an older sister, K. G., who is the biological child of Mother, but not Father. C.W.O. considers K. his sister and she often goes with him on visitations with Father.
Mother has worked in Philadelphia for seven years. She commuted to and from her job in Philadelphia when she lived in Delaware. Mother testified that she considers her time of residence in Delaware as only temporary, and has always considered herself a Pennsylvania resident as her family lives there and she works in Philadelphia. Her parents live fifteen minutes away from her, in the state of New Jersey. Mother testified that she votes in Pennsylvania, even though she received a voter registration notice at Father’s parent’s address for November 7, 2000. She testified that she never saw this notification, until Father presented it at trial. Mother admitted that she likes the child’s Delaware pediatrician and has brought the child to see him. Otherwise, she stated, that she comes to Delaware for “court” purposes only.
Although Mother maintains her bank account in Delaware, she testified that she uses a Philadelphia branch to conduct her financial business. Mother has a Pennsylvania driver’s license. Her vehicle is registered at her parent’s home in New Jersey because her parents bought her the vehicle. The parties were married in Ocean County, New Jersey.
The parties’ taxes were filed jointly in 1999 and 2000. Mother admits that she signed the 2000 tax forms, but she states that she never signed the 1999 Delaware tax return.
Father works in Chester, Pennsylvania. Conversely, he alleges that he lives in Delaware with his parents now and that he considered his time in Philadelphia as a temporary sojourn. Father still receives mail at the address in Philadelphia, which he shared with Mother previous to then-separation. His current girlfriend apparently has lived at another Philadelphia address at least since December 2000, and lives there now.
Father acknowledged in a verified pleading before the Court of Common Pleas, Philadelphia County, that he “is an adult residing at 714 South 18th Street, Philadelphia, Pennsylvania, 19147.” While Father indicated that he did not realize the legal significance of signing this form and that he was relying on his Pennsylvania attorney’s advice, the fact is that he signed a legal document stating that he was living
Under an Interim Stipulation & Order from the Delaware Family Court, dated December 2000, the parties have shared custody of their child “nearly”
FAMILY COURT CIVIL RULE 12
Father argues that, under Family Court Civil Rule 12(a), the opposing party must respond to a petition within twenty days.
Under Rule 12(h), however, only one of these two, the “defense of lack of jurisdiction over the person... is waived.. .if it is neither made by motion under this Rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course” (emphasis supplied). Thus, although subject matter jurisdiction is listed at subsection (b), it is not listed at subsection 12(h). In short, unlike in personam jurisdiction, subject matter jurisdiction is not waived if not asserted at the outset of the litigation.
Through her previous attorney, Mother argues that the Delaware Family Court was involved on December 7, 2000, but it issued an Interim Contact Order and not a permanent order. As noted in Mother’s motion, dated March 7, 2001, paragraph 7, “On December 8, 2000, the parties were scheduled to be heard on Father’s Motion for Interim Visitation [in Delaware]. Instead of appearing before the Court, the parties entered into a Stipulation and Order regarding visitation which became an Order of the Court on December 7, 2000. Since the Stipulation and Order did not address Custody, counsel for Mother signed the agreement for temporary visitation. Counsel then received a copy of Father’s Motion to Dismiss in which he acknowledged he resides in Pennsylvania.”
In fact, subject matter jurisdiction may be raised at any time prior to the entry of a final judgment.
SUBJECT MATTER JURISDICTION
THE UNIFORM CHILD CUSTODY JURISDICTION ACT (UCCJA)
The statute, 13 Del. C. § 1903(1)—(4), in relevant part, reads:
A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This State:
a. Is the home state of the child at the time of the commencement of the proceeding; or
b. Had been the child’s home state within 6 months before commencement of the proceedings and the child is absent from this State because of his or her removal or retention by a person claiming his or her custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2) It is in the best interests of the child that a court of this State assume jurisdiction because:
a. The child and his or her parents, or the child and at least 1 contestant, have a significant connection with this State; and
b. There is available in this State substantial evidence concerning the child’s present or future care, protection, training and personal relationships; or
(3) The child is physically present in this State and:
a. The child has been abandoned; or
b. It is necessary in an emergency to protect the child because he or she has been subjected or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (1), (2) and (3) of this section, or another state has declined to*943 exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and it is in the best interests of the child that this court assume jurisdiction.
Except as otherwise specifically stated in this section, the physical presence in this State of the child, or of the child and 1 of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his or her custody (emphasis added).
Thus, there are four possible bases for a court to accept jurisdiction over an interstate custody controversy. Subsection (3) is not applicable in this case, as the child has not been abandoned and it is not an emergency situation.
HOME STATE
IS DelC. § 190S(l)(a)
The first basis of jurisdiction is the home state, which is defined as the state in which the child lived for at least six months immediately preceding the commencement of the action. Thus, in order for Delaware to be C.W.O.’s home state at the time of the commencement of this proceeding, he must have lived in Delaware for six months immediately preceding the commencement of this action.
Father argues that C.W.O. spent the majority of his time in Delaware during the six-month period previous to the date of commencement of the proceeding and, thus, Delaware has jurisdiction as his home state. Mother argues that she and Father each had C.W.O. for approximately one half of the time and that C.W.O.’s residence is with her in Philadelphia. According to her, C.W.O. has resided continuously in Pennsylvania with Mother for the last three years. His sister, daycare providers, and his friends are in Pennsylvania.
Father’s use of the word “temporary” is interesting. In his Memorandum to the Court regarding jurisdiction dated February 11, 2002, paragraph 2, he states that, “[sjince June 30, 1998, to the present, Mother has kept a temporary residence in Philadelphia.” He also alleges that the fourteen months that he and Mother lived in Philadelphia were temporary. Mother, however, provided a lease agreement and clearly established that she resides, works, conducts business and votes in Philadelphia. Conversely, Father also states that he sometimes “sojourns” at his girlfriend’s residence in Philadelphia in his Response to Mother’s Motion to Dismiss Petition for Custody, dated March 15, 2001. Given that Father considers the parties’ joint fourteen months in Philadelphia temporary and that, although Mother has spent most of her life in Philadelphia, Father states that she only resides there temporarily; one is led to question Father’s definition of “sojourns.” In addition to his sworn admission to Pennsylvania residency, Father’s disingenuousness here belies his assertion that he only visits his girl-
Mother also states that, by presenting documentation as to the precise number of hours C.W.O. spent in visitation with his Father during the six months in question, along with insisting that the car insurance not be transferred from Delaware, Father’s family has played a significant and controlling role in this custody battle which they have orchestrated for a long time. Moreover, Mother argues, counting the number of hours that C.W.O. has spent in each state does not, in itself, serve the best interests of the child.
In short, Father has not met his burden of proof that he resides in Delaware, which is a prerequisite for subject matter jurisdiction under 13 Del C. § 1903(l)(a)-(b).
BEST INTEREST OF THE CHILD
13 DelC. § 1903(2)
Because concurrent jurisdiction is permissible under the UCCJA, the Court can determine whether the child has a significant connection to Delaware and, if so, whether it is in the child’s best interests to litigate the matter in Delaware. The phrase “significant connection” is described as meaning maximum, and not just minimum, contact with the state, thus intended to limit jurisdiction rather than to expand it.
Father relies on Giordano
In Giordano the Court considered the whole background of the case, pointing out that the last marital domicile was in Delaware. This, the lack of continuing contact with the home state,
On the question of the child’s “present or future care, protection, training and personal relationships”
Despite the medical ties to Delaware, the Pennsylvania ties are stronger, especially since the most recent marital home was in Pennsylvania, he resides in Pennsylvania with Mother, attends daycare in Pennsylvania, has both a sister and friends in Pennsylvania and his maternal grandparents, with whom he is close, are fifteen minutes away from his Pennsylvania home. Father argues that he was never consulted when Mother enrolled C.W.O. in a Philadelphia daycare center, and rather than seek an emergency hearing, Father requested an expedited review of the custody matter.
The Court finds that Father’s testimony that he lives with his parents is not credible. Delaware is not C.W.O.’s home state and, while he has a significant connection to Delaware, such connection also exists with Pennsylvania. Moreover, as noted previously, this Court is not required to assume jurisdiction merely because of the Delaware connection.
NO OTHER STATE WOULD HAVE JURISDICTION
13 DelC. § 1903(1)
Although the State of Pennsylvania has declined jurisdiction, the matter was left open by the following language:
Delaware is free to decline subject matter jurisdiction based on the facts of this case. Given C.W.O.’s close connection to Pennsylvania, it is in his best interest that Pennsylvania retain jurisdiction.
FORUM NON CONVENIENS
As stated in Yost v. Johnson,
Arguably, however, subject matter jurisdiction is still possible under 13 Del. C. § 1903(2)(b) based on the significant connection and substantial evidence standards of the UCCJA. Therefore, the Court reviews again the child’s best interests pursuant to 13 Del. C. § 1907 which provides:
.... (c) In determining if it is an inconvenient forum, the court shall consider whether or not it is in the best interests of the child that another state- assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) If another state is or recently was the child’s home state;
(2) If another state has a closer connection with the child and his or her family or with the child and 1 or more of the contestants;
(3) If substantial evidence concerning the child’s present or future care, pro*947 tection, training and personal relationships is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate; and
(5) If the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in § 1901 of this title.
(e) If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings or it may stay the proceedings upon the condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his or her consent and submission to the jurisdiction of another forum.
“1) If another state is or recently was the child’s home state;” Here, it appears that, if a choice is to be made between the two states, Pennsylvania is the child’s home state given the Court’s finding that Father is not credible in his assertion that he resides in Delaware. Moreover, since June 30, 1998, Philadelphia, specifically 118 Fitzgerald Street, has been C.W.O.’s domicile and he continues to reside there with Mother.
“2) If another state has a closer connection with the child and his family or with the child and 1 or more of the contestants;” Pennsylvania has a closer connection with C.W.O., because he also attends day care, and has friends and a sister in Pennsylvania. He has pediatricians in both states. His connection to the State of Delaware appears to be primarily through the paternal grandparents, and not the Father, as he works in Pennsylvania and “sojourns” at his girlfriend’s house in Pennsylvania.
“3) If substantial evidence concerning the child’s present or future care, protection, training and personal relationships is more readily available in another state;” Again, C.W.O. has pediatricians in both states. Moreover, both locations are geographically close. Thus, if medical testimony is necessary, his pediatrician from Pennsylvania may testify and his Delaware pediatrician is not that far away. C.W.O. also attends nursery school in Pennsylvania.
(If) If the parties have agreed on another forum which is no less appropriate; and
This factor is not applicable.
“5) If the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in § 1901 of this title. ”
§ 1901 Purposes of chapter; construction of provisions.
(a) The general purposes of this chapter are to:
(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on the wellbeing of such children;
(2) Promote cooperation with the courts of other states to the end that a custody decree will be rendered in that state which can best decide the case in the interest of the child;
(3) Assure that litigation concerning the custody of the child takes place ordinarily in the state with which the child and his or her family have the closest connection and where significant evidence concerning his or her care, protection, training and personal relationships is*948 most readily available, and that the courts of this State decline the exercise of jurisdiction when the child and his or her family have a closer connection with another state which has enacted the Uniform Child Custody Jurisdiction Act;
(4) Discourage continuing controversies over child custody in the interests of greater stability of home environment and of secure family relationships for the child;
(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;
(6) Avoid the relitigation of custody decisions of other states in this State insofar as it is feasible;
(7) Facilitate the enforcement of custody decrees of other states;
(8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this State and those of other states concerned with the same child; and
(9)Make uniform the law of those states which enact child custody jurisdiction legislation.
(b) This chapter shall be construed to promote the general purposes stated in this section.
In this case, the dismissal of this Petition for lack of subject matter jurisdiction does not contravene the purposes of the statute. In fact, it promotes them. Although the Court of Common Pleas, Philadelphia County declined jurisdiction to permit Delaware time to act, it left open the possibility that the case would return to Pennsylvania.
This Court declines to exercise jurisdiction. The case is hereby forwarded to the Court of Common Pleas, Philadelphia County, Pennsylvania.
IT IS SO ORDERED.
. This exhibit indicates that the parties paid a Pennsylvania tax on line 10.
. See Father's Motion for Interim Visitation at paragraph 3.
. See Father’s February 11, 2002, letter Memorandum, paragraph 4.
.On December 11, 2000, Mother filed a Complaint for Confirmation of Custody in the
. Mother also mentions, at paragraph 9 of her March 7, 2001 Motion, that Delaware has no subject matter jurisdiction.
. See Father’s admission at the bottom of page 5 of his February 11, 2002 letter Memorandum. Father admits that Mother's "vol-untaiy appearance is a submission to the in personam jurisdiction of the Court.” Father’s letter memorandum, however does not address the question of subject matter jurisdiction which is dispositive.
. See Bruno v. Western Pacific R.R. Co., Del. Ch., 498 A.2d 171, 172 (1985) (stating, "[t]he parties to an action may not confer subject matter jurisdiction by agreement.” citing Maxwell v. Vetter, Del.Supr., 311 A.2d 864, 866 (1973)).
. See Shearin v. Church, Del.Supr., 755 A.2d 390, at 390 (2000).
. The period of tíme upon which the statute focuses our attention is the six months prior to commencement of this proceeding, November 17, 2000, or, from May 17, 2000 through November 17, 2000.
. While 13 Del. C. § 1902(5) defines "home state” as "the” state where the child has lived for the preceding six months, this child has not lived in only one state during that time. Given the child’s alleged presence in Pennsylvania slightly less than 50% of the time and in Delaware marginally over 50% of the time, the designation of one state over the other as "the home state” is misleading.
. Moreover, 13 Del. C. 1903(4) states, "[e]x-cept as otherwise specifically stated in this section, the physical presence in this State of the child, or of the child and 1 of the contestants, is not alone sufficient to confer jurisdiction on a court of this State....” (emphasis added.)
. Although this is not a removal case, it is noteworthy that 13 Del. C. § 1903(l)(b) focuses on the child “and a parent” (emphasis added). In this case, Father, not his parents, is the party seeking custody and the claim of Delaware being the home state revolves around Father's, not his parent's residence in this state. See also, 13 Del. C. 1903(2)(a) which also stresses a child and his or her parents.
. Giordano v. Giordano, Del.Fam., File No. CN94-4046, Keil, J., 1995 WL 788144 (June 30, 1995).
. See Giordano at *1 where the Court begins with, "Respondent's Motion to Dismiss Petition for Custody for Lack of Subject Matter Jurisdiction” (emphasis added).
. Id. at *4.
. Id.
. The children in Giordano were in the home state for nine months, including the time of the filing of the petition, but neither of the parties, nor the children, resided there any longer.
. 13 Del. C. § 1903(2)(b).
. Mother also argues that it would be inconvenient and cost-prohibitive to decide the case in Delaware, as this would necessitate obtaining the physical presence of the daycare providers, friends, and doctors so that the Court can determine C.W.O.’s best interests. However, the reverse is true if the case is litigated in Pennsylvania. Moreover, the child’s Philadelphia and Wilmington residences are not that distant from each other geographically.
.Father was not consulted regarding C.W.O.'s enrollment in nursery school and, despite this,. Father has, to his credit, shared the expense of C.W.O.’s attendance there.
. Mother asserts that Pennsylvania court put it on inactive status or on the suspension docket.
. There is no such provision in the UCCJA.
. Yost v. Johnson, Del.Supr., 591 A.2d 178, 182-3 (1991).