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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
W.P.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.S.L. :
:
Appellant : No. 1280 WDA 2016
Appeal from the Order Entered August 18, 2016
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 08-1745-005
BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 11, 2017
A.S.L. (“Mother”) appeals from the order entered August 18, 2016, in
the Court of Common Pleas of Allegheny County, which dismissed Mother’s
petition for change of venue. We affirm.
The relevant facts and procedural history underlying Mother’s appeal
are as follows:
The parties have been litigating their divorce and related matters
before this [c]ourt since 2008. It is undisputed that at that time,
Pennsylvania was the “home state” of the parties and of their
minor child, M.L. (d.o.b. 06/2007) [hereinafter, the “Child”].
Preliminary custody and relocation issues were resolved by
Orders of Court dated November 3, 2010, May 12, 2011, June
18, 2012, and May 15, 2013, respectively; notwithstanding the
initial objections of Father, the effect of those Orders was to
permit Mother to relocate with the Child to California and to
schedule summer visits with Father in Pennsylvania.
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*
Former Justice specially assigned to the Superior Court.
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Currently, Mother and the Child reside in California; Father
resides in Pennsylvania, and spends a significant amount of time
with his paramour in Florida. By Petition for Change of Venue,
Mother asks this [c]ourt to relinquish jurisdiction in favor of the
courts of her new residence in California. The [c]ourt conducted
a full-day evidentiary hearing on this matter on July 6, 2016,
during which it heard extensive testimony from both Mother and
Father. It is undisputed that analysis of Mother’s petition is
controlled by the provisions of the Uniform Child Custody
Jurisdiction and Enforcement Act, 23 Pa.C.S. § 5422[.]
Trial Court Opinion, 10/26/16, at 1-2.
On August 18, 2016, the trial court entered an order dismissing
Mother’s petition, finding that Mother failed to meet the statutory
requirements of 23 Pa.C.S. § 5422. On August 26, 2016, Mother’s counsel
timely filed a notice of appeal, and on August 31, 2016, counsel filed a
statement pursuant to Pa.R.A.P. 1925(b).
Mother raises the following issues on appeal:
I. Did the [t]rial [c]ourt abuse its discretion in finding that
Child has a “significant connection” with Pennsylvania, and
that there is “substantial evidence” relating to his care,
protection, training and personal relationships in
Pennsylvania, 23 Pa. C.S.A. §5422?
II. Did the [t]rial [c]ourt abuse its discretion in analyzing the
err factors [sic] relating to whether Pennsylvania is an
inconvenient forum under 23 Pa. C.S.A. §5427?
Appellant’s Brief at 4.
Mother argues that she and the Child have established significant
contacts in California, and the trial court should have relinquished
jurisdiction pursuant to sections 5422 and 5427 of the Uniform Child
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Custody Jurisdiction and Enforcement Act (UCCJEA). (See Mother’s Brief, at
5-18). We disagree.
“[A] trial court’s decision that it possesses subject matter jurisdiction
under section 5422 is purely a question of law. As such, our standard of
review is de novo and our scope of review is plenary.” S.K.C. v. J.L.C., 94
A.3d 402, 408 (Pa. Super. 2014).
However, Mother challenges the court’s discretion in exercising that
jurisdiction:
A court’s decision to exercise or decline jurisdiction is
subject to an abuse of discretion standard of review and
will not be disturbed absent an abuse of that 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
insufficient evidence of record to support the court’s
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)
(citation omitted).1
In her first issue, Mother asserts that the trial court abused its
discretion in finding that Child had a significant connection with
Pennsylvania. In matters of child custody jurisdiction, section 5422 of the
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1
The trial court possessed subject matter jurisdiction pursuant to S.K.C. as
it heard the initial custody order. It is within the trial court’s discretion to
retain jurisdiction after Mother’s move, such a decision will not be disturbed
absent an abuse of that discretion. See Wagner v. Wagner, 887 A.2d 282.
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UCCJEA is controlling for a court of this Commonwealth that has properly
assumed jurisdiction to determine whether it maintains jurisdiction. See
S.J.C. v. J.L.C., 94 A.3d 402, 405-408 (Pa. Super. 2014).
Section 5422 of the UCCJEA sets forth the following test to determine
whether a trial court retains “exclusive, continuing jurisdiction” over its initial
child custody order:
§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 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.
This Court’s has held that “jurisdiction is defeated where a significant
connection with Pennsylvania no longer exists and substantial evidence
relating to the child’s care, protection, training, and personal relationships is
no longer available within the Commonwealth. S.K.C. v. J.L.C., 94 A.3d
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402, 413 (Pa. super. 2014) (emphasis in original). Thus, a significant
connection and substantial evidence must both be absent from the
Commonwealth for jurisdiction to be relinquished.
Mother relies on Billhime v. Billhime, 952 A.2d 1174 (Pa. Super.
2008),2 arguing that the facts in the cases are similar, and as such, the trial
court in the instant matter erred in determining the Child had a significant
connection with Pennsylvania. However, the Billhime Court determined
that the trial court had erred in its analysis of significant contacts by
focusing on Father’s contacts with Pennsylvania rather than the children’s
connection to the state. Id. at 1177. Unlike in Billhime, the trial court in
the instant case, clearly enumerated the Child’s connection to Pennsylvania:
Father and the Child belong to a church and occasionally
participate in religious activities while in Pennsylvania.
The Child has attended baseball camp, golf camp, and
engaged in other activities in Pennsylvania during Father’s
custodial time in the Summers.
The Child has relatives on both sides of the family,
including Father, paternal grandparents, a maternal
grandmother and several cousins, who continue to reside
in Pennsylvania and with whom the Child remains in
contact.
As recent as June 2015, Mother sought an Order of Court
requiring Father to permit the Child to visit with maternal
grandmother in Pennsylvania while in Father’s custody.
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2
In Billhime, this Court held that a significant connection did not exist
where, despite a father’s connection to Pennsylvania, the subject children
had only minimal contact with the Commonwealth. Billhime, 952 A.2d at
1177.
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Findings of Fact and Conclusions of Law, 8/22/16, at 2.
Furthermore, we have held that “a significant connection [exists]
where one parent resides and exercises parenting time in the state and
maintains a meaningful relationship with the child.” Rennie, 995 A.2d at
1222 (internal quotation marks omitted). It is evident that Father exercised
parenting time with Child in Pennsylvania during Child’s scheduled visitation.
As such, Child had a significant connection with this Commonwealth. See
Rennie, 995 A.2d at 1222.
Thus, unlike Billhime there is sufficient evidence establishing a
connection between Child and the Commonwealth and Mother’s reliance on
Billhime is misplaced. Because we have concluded that there is a
significant connection to Pennsylvania, Mother has failed to satisfy the
requirements of section 5422(a)(1). Therefore, it is unnecessary to consider
whether Mother’s claim satisfies the substantial evidence prong of section
5422(a)(1) as both prongs must be lacking in order to relinquish jurisdiction.
Mother next asserts that the trial court erred in its analysis of Mother’s
inconvenient forum claim. Under section 5427, a trial court may decline to
exercise jurisdiction over a child custody dispute if it determines that it is an
inconvenient forum. S.K.C. v. J.L.C., 94 A.3d 402, 414 (Pa. Super. 2014).
We review a trial court’s section 5427 determination for an abuse of
discretion. Id. (citation omitted). Under section 5427 a trial court must
consider the following eight factors when determining if it is an inconvenient
forum:
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1. whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the
parties and the child;
2. the length of time the child has resided outside this
Commonwealth;
3. the distance between the court in this Commonwealth and the
court in the state that would assume jurisdiction;
4. the relative financial circumstances of the parties;
5. any agreement of the parties as to which state should assume
jurisdiction;
6. the nature and location of the evidence required to resolve
the pending litigation, including testimony of the child;
7. the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and
8. the familiarity of the court of each state with the facts and
issues in the pending litigation.
23 Pa.C.S.A. §5427(b)(1-8).
While the court erroneously determined that Mother’s second issue is
moot, in an abundance of caution the trial court addressed the eight factors
for determining if a forum is inconvenient. See Findings of Fact and
Conclusions of Law, 8/22/16 at 1-5.
As to the first factor, domestic violence, the trial court found that
domestic violence was not a relevant factor, and to the extent that it is a
factor, it weighs equally against the parties.
Regarding the second factor, the length of time the Child has resided
outside the Commonwealth, the court found that “the minor child has
resided primarily in California since 2010, and the [c]ourt does deem this to
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be a significant, but not dispositive, factor in its analysis.” Findings of Fact,
8/18/16 at 4. Mother contends that Child has lived outside of Pennsylvania
since he was three years old, and based on the Child’s limited time in
Pennsylvania, he lacks a significant connection to the state. The trial court
considered the length of time outside the state significant but not dispositive
in its analysis.
As to the third factor, the distance between the available forums, the
trial court notes that Pennsylvania is inconvenient for both Mother, who lives
in California, and Father who spends a significant amount of time in Florida.
Both Mother and Father have ready access to accommodations in
Pennsylvania and that the cost of travel to and from Pennsylvania does not
place a disproportionate burden on either party. However, California is an
inconvenient forum for Father who has no extended family or friends to stay
with if the court relinquishes jurisdiction. Findings of Fact, 8/18/16 at 4.
As to the fourth fact, the relative financial circumstances of the
parties, the trial court heard testimony regarding Mother and Father’s
incomes. The court found that Mother and Father generally make an equal
number of cross-country custodial transfer trips every year and that there
was no evidence presented that transportation cost imposed a burden on
one party over the other. Trial Court Opinion, 10/26/16, at 5.
Regarding the fifth factor, the existence of a forum selection clause,
the record does not reflect that the parties entered into an agreement as to
which state would assume jurisdiction.
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The sixth factor, the location of necessary evidence, the trial court
found that, in the past, testimony from witnesses has been unnecessary.
Id. If such testimony is needed in the future, the trial court found that
depositions or electronic testimony would satisfy future evidentiary needs.
Id.
Regarding the seventh factor, the ability of various courts to
expeditiously resolve the matter, this Court has held:
[I]t only requires common sense for a trial court to conclude that
an issue will be resolved more expeditiously in a forum where
proceedings have already commenced and where the trial court
has held hearings on the child custody dispute than a forum
where proceedings have not commenced and the trial court
would have to learn the case anew.
S.K.C., 94 A.3d at 417. Therefore, trial court did not err in concluding that
this factor weighed in favor of exercising jurisdiction in this matter.
As to the eighth factor, the familiarity of the court with the facts and
issues, the trial court has maintained jurisdiction since the inception of this
case in 2008. During the eight years the trial court presided over this
matter the court has become familiar with the facts and issues of the
parties.
None of the eight enumerated factors weighs in favor of the trial court
relinquishing jurisdiction. Thus, the trial court did not abuse its discretion in
determining that Pennsylvania is not an inconvenient forum pursuant to
section 5427.
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The trial court did not abuse its discretion in denying Mother’s motion
to relinquish jurisdiction of the instant custody matter.
Order affirmed.
PJE Stevens joins.
Judge Olson concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
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W.P.L. v. A.S.L.
Combined Opinion