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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.A.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
V.A. : No. 1687 WDA 2017
Appeal from the Order Dated October 12, 2017
In the Court of Common Pleas of Westmoreland County Civil Division at
No(s): 2180 of 2013-D
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 08, 2018
M.A.A. (“Mother”) appeals from the order entered October 12, 2017,
which found that Pennsylvania retains exclusive, continuing jurisdiction over
her child custody case with V.A. (“Father”), and that Pennsylvania is not an
inconvenient forum. We affirm.
H.A. was born during July 2005 of the parties’ marriage. Mother
commenced this action by filing a complaint in divorce on October 23, 2013,
which included a count for custody. At the time, both parties resided in
Westmoreland County, Pennsylvania. On December 3, 2013, the trial court
entered a custody consent order. The order awarded Mother sole legal and
primary physical custody of H.A., and awarded Father partial physical custody
“as the parties shall agree.” Custody Consent Order of Court, 12/3/13, at ¶
2b. The order also provided that jurisdiction over the case would “remain with
the Court of Common Pleas of Westmoreland County, Pennsylvania until
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further Order of Court or upon consent of the parties.” Id. at ¶ 7. The court
entered a divorce decree on February 14, 2014.
In August 2016, Mother and H.A. relocated to Coeur d’Alene, Idaho, with
Father’s approval. H.A. now attends school in Idaho. She attends a church,
participates in violin lessons, and receives care from a variety of medical
providers, including a pediatrician, dentist, orthodontist, optometrist, and
chiropractor. Since the relocation, H.A. has returned to Pennsylvania twice to
visit family. H.A.’s maternal grandmother resides in Pennsylvania, as do two
of her maternal aunts and two cousins. H.A. returned to Pennsylvania for
Christmas in 2016, and again in June 2017, in order to attend her cousin’s
graduation party.
On August 9, 2017, Father filed a petition for modification of custody.
In his petition, Father averred that Mother was only rarely allowing him to
exercise custody of H.A. Father requested eight weeks of physical custody
during the summer and one week during H.A.’s Christmas vacation. The trial
court scheduled a custody conciliation conference for September 28, 2017.
On September 14, 2017, Mother responded by filing an answer and
counter-petitions to dismiss and transfer/stay the petitions. She denied the
averments contained in Father’s petition for modification of custody. In
addition, Mother argued that the trial court lacked exclusive, continuing
jurisdiction over the case pursuant to the Uniform Child Custody Jurisdiction
and Enforcement Act (“UCCJEA”). Mother requested that the court dismiss
Father’s petition and transfer the case to Idaho. In the alternative, Mother
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requested that the court stay the matter and cancel the custody conciliation
conference on the basis that Pennsylvania is an inconvenient forum.
The trial court conducted an evidentiary hearing on Mother’s counter
petitions on September 25, 2017. Following the hearing, on September 27,
2017, the court entered an order continuing the parties’ custody conciliation
conference generally. On October 12, 2017, the court entered the order
complained of on appeal, finding that Pennsylvania retains exclusive,
continuing jurisdiction over this case and that it is not an inconvenient forum.
Therefore, the court denied Mother’s counter-petitions. The custody
conciliation conference was rescheduled for December 5, 2017.1
Mother filed a motion for reconsideration on October 26, 2017, and a
motion for recusal on November 2, 2017. Mother timely filed a notice of
appeal and concise statement of errors complained of on appeal on November
3, 2017, before the trial court ruled on either motion. 2 On November 9, 2017,
the court certified that the October 12, 2017 order involved a substantial issue
of jurisdiction, rendering it appealable as of right pursuant to Pa.R.A.P.
311(b)(2).
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1 The trial court continued the custody conciliation conference for a second
time on December 5, 2017, pending the outcome of Mother’s appeal. The
court directed that either party could request that it reschedule the custody
conciliation conference if this Court rules that Pennsylvania retains
jurisdiction.
2The trial court subsequently denied Mother’s motions for reconsideration and
recusal on November 22, 2017.
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Mother now raises the following questions for our review:
I. Did the trial court commit an abuse of discretion when it ruled
that Pennsylvania has jurisdiction over a child custody
modification proceeding based upon 23 Pa.C.S.[] [§] 5422(a)(1)
of the UCCJEA, where the child and one parent have not lived in
Pennsylvania in over a year, have no significant connection with
Pennsylvania, and substantial evidence is no longer available in
this Commonwealth concerning the child’s care, protection,
training, and personal relationships?
II. Did the trial court commit an abuse of discretion when it ruled
that Pennsylvania is the more convenient forum to hear the child
custody modification matter based upon 23 Pa.C.S.[] [§] 5427 of
the UCCJEA based upon the evidence of record?
Mother’s brief at 5.
In her first issue, Mother challenges the trial court’s finding that it
retains subject matter jurisdiction over this custody case. This issue presents
a pure question of law. S.K.C. v. J.L.C., 94 A.3d 402, 408 (Pa.Super. 2014)
(“we hold that a trial court's decision that it possesses subject matter
jurisdiction under section 5422 is purely a question of law”). Therefore, our
standard of review is de novo and our scope is review is plenary. Id.
Mother concedes that the trial court had jurisdiction to render an initial
child custody determination at the time it entered the December 3, 2013
custody consent order. Mother’s brief at 10. However, she contends that the
court lost exclusive, continuing jurisdiction after H.A. moved to Idaho. Id. at
10-12.
The UCCJEA provides as follows:
(a) General rule.--Except as otherwise provided in section 5424
(relating to temporary emergency jurisdiction), a court of this
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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. § 5422.
Mother focuses her challenge on the significant contact language in §
5422(a)(1). She contends that H.A. no longer maintains a significant
connection to Pennsylvania and that there is no evidence here concerning her
care, protection, training, or personal relationships “aside from a couple of
friends, a grandmother, and Father/Appellee.” Id. Mother emphasizes that
many important aspects of H.A.’s life, including her school, extracurricular
activities, and medical care providers are now located in Idaho, and that H.A.
has visited Pennsylvania only twice since moving away. Id. at 12-15.
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In its opinion, the trial court found that Pennsylvania retains exclusive,
continuing jurisdiction. The court reasoned as follows:
While the child may not have as close a relationship with her
father as other children, it should be noted that she was less than
one year removed from twice-weekly contact with him when the
modification petition was filed. Since the relocation, they have
seen each other during her visits to Pennsylvania. [Mother] and
her daughter also have meaningful relationships with [Mother’s]
mother and sisters, who they have seen twice since the move and
who they intend to visit at least once per year. The child has a
number of friends in Pennsylvania who are intimate enough that
visits with them are scheduled when they return. There is also
evidence in Pennsylvania regarding [H.A.’s] health, schooling,
religion, and extracurricular activities. Given the recency of the
move, this evidence would likely be relevant.
Trial Court Opinion, 12/4/2017, at 8-9.
In considering the propriety of the trial court’s determination, we find
instructive this Court’s decision in Rennie v. Rosenthol, 995 A.2d 1217
(Pa.Super. 2010). In that case, an unmarried couple adopted a child in 1998
while residing in Pennsylvania. Id. at 1218. They separated five months
later, and in 2003, the mother relocated with the child to Minnesota. Id. at
1218-19, 1222. The father remained in Pennsylvania and the parties
continued to litigate custody in the Philadelphia County Court of Common
Pleas. Id. at 1219. After the father filed a petition for modification of custody
in 2008, the mother requested that the trial court relinquish jurisdiction to
Minnesota pursuant to § 5422(a)(1). Id. at 1219. The court denied the
mother’s request. Id.
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On appeal, this Court affirmed the trial court’s decision. After reviewing
the plain language of the UCCJEA, we concluded that both the child and the
father maintained a significant connection to Pennsylvania. Id. at 1222. We
explained that a significant connection exists “as long as the child and at least
one parent have an important or meaningful relationship to the
Commonwealth.”3 Id. at 1221. Applying that definition to the facts of the
case, we emphasized that the child lived in Pennsylvania for five years after
her adoption. Id. at 1222. The parties continued to live in Pennsylvania
following their divorce and entered into an agreement providing that
Pennsylvania would retain jurisdiction. Id. We further emphasized that the
father maintained a strong relationship with the child and exercised custody
of her in Pennsylvania, and the child maintained relationships with members
of her extended family and with several friends in the state. Id.
Similarly, our review of the record in this case confirms that both H.A.
and Father maintain a significant connection to Pennsylvania. H.A. lived in
Pennsylvania from the time she was born until she was eleven years old.4
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3 We later restated this definition as follows: “As indicated in clear language
in the statute, a ‘significant connection’ will be found where one parent resides
and exercises parenting time in the state and maintains a meaningful
relationship with the child.” Rennie v. Rosenthol, 995 A.2d 1217, 1222
(Pa.Super. 2010).
4Specifically, Mother averred in her 2013 divorce complaint that H.A. resided
at the parties’ marital residence in Westmoreland County from birth until the
present. Complaint in Divorce, 10/23/2013, at ¶ 19.
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Mother and Father remained in Pennsylvania for nearly three years after
Mother commenced divorce proceedings and entered into the agreement
providing that Pennsylvania would retain jurisdiction until further order of
court or upon consent of the parties. Father continues to reside in
Pennsylvania and exercises custody of H.A. in the state. N.T., 9/25/17, at 29-
32. Father testified that he spent approximately forty hours with H.A. during
her two return trips to Pennsylvania. Id. H.A. also continues to have several
friends in Pennsylvania with whom she stays in contact and visits during these
trips. Id. at 41-42. Moreover, Mother testified that H.A.’s maternal
grandmother lives in Pennsylvania, as do two of her maternal aunts and two
cousins. Id. at 17. Mother intends to continue to return to Pennsylvania with
H.A. at least once every year for Christmas. Id. In light of this evidence, it
is clear that Pennsylvania retains exclusive continuing jurisdiction pursuant to
§ 5422(a)(1).5
In her second issue, Mother challenges the trial court’s finding that
Pennsylvania is not an inconvenient forum. We review this issue pursuant to
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5 Since we conclude that Father and H.A. maintain a significant connection to
Pennsylvania, we need not consider whether substantial evidence is available
here concerning H.A.’s care, protection, training and personal relationships.
Rennie v. Rosenthol, 995 A.2d 1217, 1223 (Pa.Super. 2010). “[E]xclusive
jurisdiction continues in Pennsylvania until both a significant connection to
Pennsylvania and the requisite substantial evidence are lacking. In other
words, Pennsylvania will retain jurisdiction as long as a significant connection
with Pennsylvania exists or substantial evidence is present.” Id. at 1221
(emphasis in original).
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an abuse of discretion standard of review. S.K.C., supra at 406, 414
(explaining, “when a trial court possesses subject matter jurisdiction over a
child custody dispute, a trial court's decision to exercise that jurisdiction is
subject to an abuse of discretion standard of review”). “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.” M.E.V. v.
R.D.V., 57 A.3d 126, 129 (Pa.Super. 2012) (quoting Wagner v. Wagner,
887 A.2d 282, 285 (Pa.Super. 2005)).
The UCCJEA provides that a trial court with exclusive, continuing
jurisdiction over a child custody matter may decline to exercise that
jurisdiction and transfer the case to another state if it concludes that
Pennsylvania is an inconvenient forum:
(a) General rule.--A court of this Commonwealth which has
jurisdiction under this chapter to make a child custody
determination may decline to exercise its jurisdiction at any time
if it determines that it is an inconvenient forum under the
circumstances and that a court of another state is a more
appropriate forum. The issue of inconvenient forum may be raised
upon motion of a party, the court's own motion or request of
another court.
(b) Factors.--Before determining whether it is an inconvenient
forum, a court of this Commonwealth shall consider whether it is
appropriate for a court of another state to exercise jurisdiction.
For this purpose, the court shall allow the parties to submit
information and shall consider all relevant factors, including:
(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;
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(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.
(c) Stay.--If a court of this Commonwealth determines that it is
an inconvenient forum and that a court of another state is a more
appropriate forum, it shall stay the proceedings upon condition
that a child custody proceeding be promptly commenced in
another designated state and may impose any other condition the
court considers just and proper.
(d) Jurisdiction declined.--A court of this Commonwealth may
decline to exercise its jurisdiction under this chapter if a child
custody determination is incidental to an action for divorce or
another proceeding while still retaining jurisdiction over the
divorce or other proceeding.
23 Pa.C.S. § 5427.
Mother argues that the Pennsylvania trial court is no more familiar with
this matter than a court in Idaho would be, because the parties never tried
the case on its facts. Mother’s brief 18-19. Mother acknowledges that the
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December 3, 2013 consent order includes a provision stating that
Pennsylvania will retain jurisdiction, but insists that this provision “is not
dispositive of the issue and was contained in an order that was 4 years old
and was written at a time well before any decision to move out of state was
even being contemplated.” Id. at 19. Mother maintains that keeping this
case in Pennsylvania would require her to present the testimony of “10 or 12
witnesses” via deposition, which would be manifestly unreasonable. Id. at
19-20. She contends that Father’s income “is certainly not at a poverty level”
and castigates him for not paying child support. Id.
The trial court found as follows:
A review of the above factors indicates neither that
Pennsylvania is an inconvenient forum nor that Idaho is a more
appropriate forum. At the September 25, 2017 hearing, there was
no evidence of any domestic violence. As previously stated,
[Mother] and the minor child had been living in Idaho for less than
a year when the modification petition was filed. Witnesses and
evidence are located in both Pennsylvania and Idaho. However,
[Father] is asking for only limited partial physical custody, when
the minor child is not in school. Therefore, the educational
information becomes less important. From a familial standpoint,
there are more witnesses in Pennsylvania, with [Father], the
maternal grandmother, and the two maternal aunts located in
Pennsylvania and [Mother] and child located in Idaho. The child
has friends in both areas, and it could be argued that the
testimony of those located in Pennsylvania [is] more important,
given that H.A. will see her friends in Idaho during the school year
regardless of the result of [Father’s] Petition. There are witnesses
in both states who can testify about H.A.’s religious and musical
study.
With regard to health care providers, Pennsylvania law
allows their trial testimony to be provided by deposition. In fact,
arguably any witness from Idaho could provide testimony by
deposition under Pennsylvania’s rules, given their distance of
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greater than one hundred miles from the Westmoreland County
Courthouse. If a party wanted to offer witnesses to testify by
telephone they could request court approval and would be allowed
to do so upon good cause shown. In fact, [Mother] testified by
telephone at the evidentiary hearing. Finally, in Pennsylvania, any
expert can testify by videotape deposition, regardless of his or her
location.
The Pennsylvania court is marginally more familiar than the
Idaho court with the facts and issues of this custody case based
on the litigation that has occurred to date. This is not, however,
a major factor.
The Court takes judicial notice that Coeur D’Alene, Idaho is
located over 2,200 miles from Greensburg, Pennsylvania and that
it would take approximately thirty-three (33) hours to drive there.
From the evidence presented, it would appear that [Mother] is in
a better financial position than [Father] to make that journey.
[Father] is retired with an adverse medical condition, rents an
apartment, and lives on a low monthly pension. While there was
not a great deal of evidence adduced regarding [Mother’s]
financial condition, it was uncontroverted that [Mother] has
already made the trip to Pennsylvania from Idaho twice and plans
to return again over Christmas, 2017 and every Christmas
thereafter. Additionally, while [Father], who has no friends or
relatives in Idaho, would have to pay for lodging there, [Mother]
would presumably stay with friends or family in Pennsylvania.
Finally, this Court must take into account the jurisdictional
agreement between the parties, set forth in the custody order
from November 25, 2014. The plain language of the agreement
indicates not that jurisdiction was to always remain in
Westmoreland County but that it would remain there until the
parties agreed, or the Court decided otherwise. It was another
way of saying that the parties were barred from filing the next
pleading or motion in some state other than Pennsylvania. It
certainly cannot be assumed that the parties agreed that if either
filed a future modification petition, the litigation surrounding it
would occur in Pennsylvania. By the same token, there was
unquestionably no agreement that future litigation was to occur in
Idaho.
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Trial Court Opinion, 12/4/17, at 11-14 (footnotes and citations to the record
omitted) (emphasis in original).
Once again, we conclude that Mother is not entitled to relief. As the trial
court found, Pennsylvania is marginally more familiar with the facts of this
case than Idaho. The case originated here in 2013, and the court has at least
some knowledge of the parties, H.A., and the circumstances of their lives. If
a trial court in Idaho were to hear this case, it would be starting from scratch.
More importantly, the record supports the trial court’s finding that
Mother is more financially capable of traveling back and forth between Idaho
and Pennsylvania than Father. Father is sixty-one years old. N.T., 9/25/17,
at 27. Father testified that he retired after suffering an aortic aneurism and
that his only source of income is a $1,700 per month pension he receives for
his service in the Marine Corps. Id. at 28-29. The record does not indicate
that Father has any family or knows anyone in Idaho other than Mother and
H.A. In contrast, Mother is employed full-time as a teacher. Id. at 16. Mother
testified that she has already returned to Pennsylvania twice in the thirteen
months since she moved away and plans to continue returning at least once
per year. Id. at 17. Mother has family in Pennsylvania, and presumably can
travel here without having to stay at a hotel.
Moreover, there is simply no reason to believe that Mother would need
the testimony of “10 or 12 witnesses” in order to litigate this custody case.
Father is requesting partial physical custody of H.A. during her breaks from
school and H.A. does not suffer from any significant medical problems. Under
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the circumstances, the testimony of teachers, doctors, and other witnesses
from Idaho would be of little relevance. Even if this testimony were to become
significant in the future, the trial court has indicated that it would be willing to
accommodate Mother by allowing her to present witnesses via telephone or
deposition. Accordingly, the record supports the trial court’s finding that
Pennsylvania is not an inconvenient forum pursuant to § 5427.6
Based on the foregoing, we conclude that the trial court did not err or
abuse its discretion by denying Mother’s counter petitions to dismiss and
transfer/stay. Therefore, we affirm the court’s October 12, 2017 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2018
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6 Concerning the provision in the December 3, 2013 custody consent order
providing that jurisdiction would remain in Pennsylvania, the trial court
interpreted this provision in a manner favorable to Mother. The court analyzed
the plain language of the provision and concluded that the parties did not
intend to bar any future litigation from occurring outside of the state. We
agree with the court’s assessment of this issue. It is clear that the court gave
this provision little weight and its analysis does not provide a basis to disturb
the court’s order.
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