J-A24003-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
N.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
V.S.
Appellant No. 793 EDA 2014
Appeal from the Order Entered February 11, 2014
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): OC-10-00775
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 29, 2014
County. We affirm.
history of this case as follows:
[A]fter the birth of the child [in October 2008], Mother and
Father lived in Montgomery County for two to three
months, after which time Mother returned to Philadelphia.
Father has continued to reside in Montgomery County and
all periods of partial custody with the child have occurred
and continue to occur in Montgomery County, except for
the brief period of supervised partial physical custody at
the court nursery in Philadelphia in February, 2012.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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partial physical custody has occurred since September,
partial custody when required, testified at the May 15,
2013 hearing. They reside in Montgomery County, and
among other activities they enjoy with the child is taking
-grandmother also lives in
Montgomery County, where Father resides when he does
not have periods of custody. On the same street as
ll as two
years old. In addition to the numerous family members
are also friends of the child, and come to play at the park
across from the home of paternal great-grandmother.
Other play areas are located on the street where paternal
grandparents live.
Mother lived with the child in Philadelphia since 2010. She
testified at the hearing on May 15, 2013, that she intended
to move to Chester County to live in the home recently
purchased by her boyfriend, for which settlement was
scheduled on May 16, 2013.
* * *
The first filing in the custody matter occurred on April 27,
2010, when Father filed a Complaint for Custody. An
Order was entered on September 20, 2010, pursuant to
which Mother retained primary physical custody and Father
was to have partial physical custody every weekend from
Saturday morning to Monday morning, plus every
Thursday afternoon, at the home of paternal grandmother
or paternal great-grandmother in Montgomery County.
Legal custody was shared between the parties. On
February 22, 2011, another Stipulation was entered
providing holiday custody time for Father at Christmas,
On November 3, 2011, Mother filed a Petition for
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partial physical custody on account of allegations of sexual
abuse of the child, resulting in an interim modified order
on February 7, 2012, for supervised partial physical
custody for Father at the court nursery on alternating
Sundays.
The parties entered into an agreement on February 23,
2012, for the appointment of an evaluator concerning the
allegations of abuse. On March 21, 2012, an interim order
was entered for Father to have supervised partial physical
custody on three Tuesday afternoons each month for two
(2) hours each at the home of paternal great-
grandmother. On September 18, 2012, another interim
order was entered pending a full hearing, providing for
supervised partial physical custody for Father on
alternating weekends at the home of paternal great-
grandmother or paternal grandmother, from Friday to
Sunday, and every Tuesday overnight to Wednesday
morning. A holiday schedule was also included.
Mother served Father Notice of Relocation to Coatesville,
Pennsylvania, in Chester County, sometime in early 2013,
to which Father filed a Counter-Affidavit objecting to same
on March 4, 2013. The relocation matter was consolidated
for a hearing with the outstanding custody petition on May
14, 2013.
After the hearing on May 14, 2013, an interim order was
entered, pending receipt of proposals for vacation and
holiday time, continuing the above partial physical custody
schedule for Father, unsupervised. On June 27, 2013 a
final order was entered providing that the parties share
legal custody, Mother retained primary physical custody,
and Father had partial physical custody on alternating
weekends, plus one weekday overnight every other week.
afternoon to Tuesday morning and his weekday custody
was set for alternating weeks from 8:00 a.m. Monday
morning to 3:00 pm. Tuesday afternoon. A week of
vacation and an extended holiday schedule were also
included.
The custody evaluator had concluded that the allegations
concerning sexual abuse were unfounded. In addition, the
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court concluded that Section 5337 of the custody code
concerning relocation did not apply because there was no
significant increase in the distance or travel time between
* * *
Father filed a [Petition] to Transfer Venue to Montgomery
County on August [9], 2013, after a final order was
entered in the underlying custody matter on June 27,
2013. Mother filed a responsive pleading on September
20, 2013, opposing the [Petition] to Transfer to
Montgomery County and requesting that the matter be
transferred to Chester County to which county Mother
reportedly moved in late May, 2013.
(Trial Court Opinion, filed March 27, 2014, at 1-4) (footnotes and citations to
the record omitted). The court conducted a hearing on January 15, 2014, on
and transferred the custody action to Montgomery County. On March 11,
2014, Mother filed a timely notice of appeal, and a voluntary concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Mother raises the following issues for our review:
DID THE [TRIAL] COURT ABUSE ITS DISCRETION BY
REFUSING TO TRANSFER THE ACTION TO CHESTER
HOME COUNTY UNDER [PA.R.C.P.]
RULE 1915.2 (A)(1)?
DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN
MISAPPLYING THE BENCHMARK FOR EVIDENCE UNDER
[PA.R.C.P.] RULE 1915.2(A)(2), THEREBY IGNORING THE
CONNECTIONS TO THE C
HOME COUNTY?
In her issues combined, Mother argues the custody matter should not
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have been transferred to Montgomery County because Chester County has
court erred when it used the date Father filed his petition to transfer venue,
Montgomery County. Mother alleges the court refused to consider that the
petition. Mother claims the court also ignored that Chester County is where
the child lives seventy-four (74) percent of the time, goes to school and the
doctor, and spends time with family and friends. Mother maintains
mery County was
impermissible under Pa.R.C.P. 1915.2. Mother concludes this Court should
reverse and remand for the case to be transferred to Chester County, or, in
circumstances and determine whether she has significant connections to
Chester County. We disagree.
Our review of this case implicates Rule 1915.2 of the Pennsylvania
Rules of Civil Procedure, which provides in relevant part:
Rule 1915.2. Venue
(a) An action may be brought in any county
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(1)(i) which is the home county of the child at the
time of commencement of the proceeding, or
(ii)
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
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
relationships[.]
* * *
(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
* * *
EXPLANATORY COMMENT 2008
Subdivision (a) of Rule 1915.2 incorporates the
categories of jurisdiction for initial custody
determinations and temporary emergency
proceedings in the Uniform Child Custody Jurisdiction
as the venue provisions for these rules, restating
them in rule form without change in substance.
Subdivision (a) follows the policy of § 5471 of the
[UCCJEA], which provides that the provisions of the
among courts of different states shall also allocate
jurisdiction and functions between and among courts
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Pa.R.C.P. 1915.2(a)(1)-(2), (c), and explanatory comment. Rule 1915.1
[T]he county in which the child immediately preceding the
person acting as parent, or in an institution, for at least six
consecutive months
the child from the physical custody of the parent,
institution, or person acting as parent shall not affect the
six-month or other period[.]
Pa.R.C.P. 1915.1.
Similarly, Section 5421 of 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)
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
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(ii) substantial evidence is available in this
protection, training and personal
relationships[.]
23 Pa.C.S.A. § 5421(a)(1)-
The state in which a 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
of any of the mentioned persons is part of the period.
23 Pa.C.S.A. § 5402 (emphasis added). Moreover, Section 5471 of the
UCCJEA provides for intrastate transfers as follows:
§ 5471. Intrastate application
The provisions of this chapter 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.
23 Pa.C.S.A. § 5471. See also Moffitt v. Moffitt, 514 A.2d 184, 186
a provision which allocates jurisdiction between and among courts of
common pleas in the same manner in which the Act itself confers jurisdiction
Weingartner v. Weingartner, 40 Pa. D. & C.4th 564, 567 (Pa.Com.Pl.
1995).
Additionally, Sectio
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filing of the first pleading
the six- by the
Zellat v. Zellat, 506 A.2d 946,
949 (Pa.Super. 1986). See R.M. v. J.S., 20 A.3d 496 (Pa.Super. 2011)
1
Our standard of review for decisions regarding application of the these
jurisdictional criteria is as follows:
subject to an abuse of discretion standard of review and
will not be disturbed absent an abuse of discretion. Under
Pennsylvania law an abuse of discretion occurs when the
court has overridden or misapplied the law, when its
judgment is manifestly unreasonable, or when there is
findings. An abuse of discretion requires clear and
convincing evidence that the trial court misapplied the law
or failed to follow proper legal procedures.
Wagner v. Wagner, 887 A.2d 282, 285 (Pa.Super. 2005) (internal citations
omitted).
Instantly, the trial court addressed Mo
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1
C.R.F. v. S.E.F.
evidentiary proceeding commences on or after the effective date of the [new
Child Custody Act], the provisions of the [new Child Custody Act] apply even
dealing with a jurisdictional issue that involves Rule 1915.2, which tracks the
venue rules of UCCJEA, rather than the actual merits of the custody dispute
under the new Child Custody Act.
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unknown, but if settlement occurred on May 16, 2013,
May, 2013. Therefore, she would have been living in
Chester County for only slightly more than two (2) months
as of August 9, 2013, which does not satisfy the time
s that
However, case law shows that the filing date, not the
hearing date, is determinative for establishing
* * *
Since the child lived in Montgomery County only for a few
months and lived with Mother in Philadelphia County for
several years until two and one-half months prior to the
filing of the Motion to Transfer Venue, neither Montgomery
County nor Chester County met the definition of home
county as of August 9, 2013. Hence, neither county
satisfies the requirements for venue under subdivision
(a)(1) of Rule 1915.2.
* * *
The question then arises as to the definition of the
turn to case law. In Rennie v. Rosenthal, 995 A.2d 1217
(Pa.Super. 2010), the court discussed the meaning of
Primary Custody filed in Philadelphia concerning a child
who had been living in Minnesota for five years. Custody
proceedings had occurred in Philadelphia both before and
and the issue before the court was whether Philadelphia
* * *
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in Rennie
of the phrase
and at least one parent have an important or meaningful
Id. at 1221-1222.
* * *
In Rennie, the child spent three periods of 2-3
consecutive weeks of custody with father each year, and
spent time with grandparents, who took her on vacation,
and with other family members and continued to have
friendships in Philadelphia. Id. at 1222. The child also
had connections to her step-mother and step-sisters in
Philadelphia. Id. Rennie found that these facts, which
are not as strong as the facts in the within case, were
Pennsylvania.
In the instant matter, beginning on September 24, 2010,
Father has had custody of the child every weekend plus
one weekday overnight for one and [a half] years, then
following a seven month period of restricted time, had
alternating weekends and one weekday night. Then, since
September, 2012, Father has had custody on alternating
weekends and one weekday overnight on alternating
weeks, as well as vacation and holiday time. The child has
numerous relatives, including children close to her age, as
well as friends in Montgomery County, as noted above.
The close relationship between the child and paternal
grandparents, in particular, is evidenced by their having
partial custody, periods of partial custody continue in their
home, and they continue to take her to services every
Sunday when Father has custody. Even cousin Alexa and
strict supervised partial custody.
e
good attributes towards for her to love him the way she
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Hence, it can be concluded that under criteria set in
Rennie, Father and the child have significant connections
to Montgomery County.
What must then be explored is whether, within the county,
protection, training and personal relationships.
During the prior custody hearings, the vast majority of
evidence concerning the child pertained to her time with
Father in Montgomery County how she was cared for by
Father and his family members, and relationships with
family members and friends, as summarized above. While
the child will not be attending school in Montgomery
County, ample evide
educational and cultural environment in Montgomery
County.
In addition, the child support matter has been transferred
to Montgomery County. Anecdotally, this court notes that,
on occasion, evidence concerning child support matters
[is] relevant to custody issues and vice versa. Hence,
proceedings concerning the
occur in Montgomery County as a result of the support
litigation which will occur there.
Thus, as of August [9] 2013, the child had a significant
connection only with Montgomery County (as opposed to
Chester County) and substantial evidence pertaining to the
benchmark for significant connection and substantial
evidence, like the benchmark for jurisdiction, is the date of
commencement of the action. The Superior Court stated:
that appellant and the children have settled into life in
Pennsylvania since moving, and therefore have since
whether, at the time wife commenced this action in
Pennsylvania. Lucas v. Lucas, 882 A.2d 523, 528
(Pa.Super. 2005) (citations omitted).
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* * *
It must also be noted that the evidence in this custody
litigation has focused on Father and, in all likelihood, will
continue to do so in the future. Father has never filed for,
nor requested primary physical custody of the child and
While the child will, presumably, develop friendships in
Chester County as time progresses, and will attend school
there, there are no family members in Chester County and
closer to his work in the state of Delaware.
Hence, the evidence shows that the criteria in Rule 1915.2
(a)(2) pertaining to venue have been satisfied in
Montgomery County.
* * *
Since subdivision (2) of Rule 1915.2(a) applies, subsection
(c) allows a transfer from Philadelphia County, to
Montgomery County where the action
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
Philadelphia County properly transferred the matter to
Montgomery County since the custody action could have
been brought in Montgomery County on August 9, 2013,
as discussed above, when Philadelphia County no longer
qualified as the home county.
* * *
not meet the requirements of a home county as of the
date Father filed his Motion to Transfer Venue and there
was neither a significant connection with Chester County,
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nor substantial evidence concerning the child in Chester
County as of that date. On the other hand, Father and the
child had a significant connection with Montgomery County
as of August, 2013, where there is available substantial
personal relationships. Hence, the transfer of venue to
Montgomery County was appropriate under Pa.R.[C].P.
1915.2.
(Trial Court Opinion at 5-12) (footnotes and citations to the record omitted).
no reason to disturb it. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2014
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