J-A24045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.W., JR.,                                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

A.A.,

                            Appellee                 No. 1313 EDA 2014


                 Appeal from the Order Entered March 19, 2014
                in the Court of Common Pleas of Monroe County
             Domestic Relations at No.: 182 DR 2013, 1710 CV 2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 10, 2014

        T.W., Jr., (Father), appeals the order of the Court of Common Pleas of

Monroe County, entered March 19, 2014, in which the court determined that

the Supreme Court of New York, in the County of New York, is the more

convenient forum, and by which it transferred jurisdiction to that court

pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act

(UCCJEA), 23 Pa.C.S.A. § 5427(a). We affirm.

        On February 14, 2013, Father, on behalf of T.E.W., III (Child), filed a

Protection from Abuse (PFA) Petition in which he sought an order for

protection for Child against Child’s mother, A.A. (Mother), as well as a

temporary order of custody of Child pending a hearing.         The trial court
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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scheduled a hearing on Father’s petition for February 19, 2013, but

continued the hearing at Mother’s request.1

       Mother filed a divorce complaint in the Supreme Court of New York on

February 25, 2013, and, on February 28, 2013, filed an affidavit in support

of an order to show cause that was filed seeking an order of protection as

well as temporary custody of Child. In response, the Supreme Court of New

York entered an ex parte temporary order of protection on March 1, 2013,

that prohibited Father from having any contact with Mother and awarded

Mother custody of Child.

       The trial court entered a final PFA order against Mother when she

failed to appear for the PFA hearing on March 4, 2013. On March 14, 2013,

Mother filed an expedited motion to vacate that PFA order and to dismiss the

temporary award of custody for lack of jurisdiction. At a hearing on March

25, 2013, the trial court, after determining that Mother was not served

properly with notice of the re-scheduled PFA hearing, dismissed the March 4,

2013, PFA without prejudice.

       At the same March 25, 2013 hearing, the trial court also addressed

jurisdiction under the UCCJEA and issued an order on March 27, 2013, in

____________________________________________


1
  At hearing on March 25, 2013, Mother represented that she contacted the
Victim/Witness Advocate who requested, on Mother’s behalf, that the matter
be continued. The February 19, 2013 PFA hearing was re-scheduled for
March 4, 2013.




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which it determined that Pennsylvania was Child’s home state. In response,

Mother filed an action in the Supreme Court of New York requesting court-

to-court communication pursuant to the UCCJEA.        The trial court and the

Supreme Court of New York conferred and agreed that a joint hearing was

appropriate.     As a result, the two courts held full evidentiary hearings on

November 21, 2013, February 21, 2014, and March 10, 2014.

     After these joint hearings, on March 19, 2014, the trial court entered

an order declining jurisdiction in Pennsylvania as an inconvenient forum

pursuant to 23 Pa.C.S.A. § 5427(b), determining that the Supreme Court of

New York was a more appropriate forum, and directing that all future

proceedings be filed and heard in that court. Father filed a notice of appeal

on April 15, 2014, and an amended notice of appeal on April 16, 2014, which

included his statement of errors complained of on appeal.       See Pa.R.A.P.

1925(a)(2)(i).      The court filed an opinion on May 6, 2014 and a

supplemental opinion on May 9, 2014. See Pa.R.A.P. 1925(a)(2)(ii).

     Father presents the following questions for our review:

     1. Did the [trial court] erred [sic] in determining that New York
     is the more convenient forum and in transferring jurisdiction in
     this matter to the Superior Court of New York, County of New
     York[,] pursuant to 23 Pa.C.S. Section 4527(a) where, as here:

        (a) [t]he [trial c]ourt had previously determined, following
        [h]earing, that jurisdiction was appropriate in Monroe County,
        Pennsylvania and that Pennsylvania was the home county [sic]
        of [Child];




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       (b) [Mother’s] appeal from the aforesaid decision establishing
       Pennsylvania as the home county [sic] of [Child] was
       voluntarily withdrawn;

       (c) [t]he significant lapse in time between the [trial court’s]
       initial determination regarding jurisdiction and its ultimate
       decision to transfer jurisdiction pursuant to the Order of March
       19, 2014 was due solely and exclusively to the conduct of
       [Mother] and to errors and omissions on the part of the [t]rial
       [c]ourt and/or its administrative offices as opposed to any
       actions or inactions of [Father]; and,

       (d) [a]ny ‘significant connections’ between [Child] and/or the
       facts and circumstances in this matter and the State of New
       York were artificially created by [Mother] who removed [Child]
       to the State of New York following the initiation of the
       underlying Pennsylvania custody action and who’s [sic]
       conduct was assisted by the aforesaid errors and omissions on
       the part of the [t]rial [c]ourt and/or its administrative
       offices[?]

     2. Did the [trial court] erred [sic] in determining that New York
     is the more convenient forum and in transferring jurisdiction in
     this matter to the [Supreme] Court of New York, County of New
     York[,] pursuant to 23 Pa.C.S. Section 4527(a) where, as here:

       (a) [t]he [trial court] ignored and overlooked material facts
       relating to the issue of ‘domestic violence’ including, but not
       limited to, its prior Order granting [Mother] exclusive
       possession of the marital residence in Pennsylvania;

       (b) [t]he evidence clearly establishes Pennsylvania as the
       more convenient forum for the instant custody action pursuant
       to the factors set forth in 23 Pa.C.S. Section 4527(b)(3) & (4);
       and[,]

       (c) [t]here is neither a legal and/or factual basis to support
       the [trial court’s] finding that New York has ‘equal familiarity’
       with the facts of this case thus rending [sic] it the more
       convenient forum?

     3. Did the [trial court] violate 23 Pa.C.S. Section 5410(d) by
     failing to create a record of its telephonic communications with


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      the New York Court following the conclusion of the last day of
      hearing on the issue of inconvenient forum?

(Father’s Brief, at 4-5).

      Our standard of review for decisions involving jurisdiction is as follows:

      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).

      Our scope and standard of review in custody matters is as follows:

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion.          We must accept
      findings of the trial court that are supported by competent
      evidence of record, as our role does not include making
      independent factual determinations. In addition, with regard to
      issues of credibility and weight of the evidence, we must defer to
      the presiding trial judge who viewed and assessed the witnesses
      first-hand. However, we are not bound by the trial court’s
      deductions or inferences from its factual findings. Ultimately,
      the test is whether the trial court’s conclusions are unreasonable
      as shown by the evidence of record.            We may reject the
      conclusions of the trial court only if they involve an error of law,
      or are unreasonable in light of the sustainable findings of the
      trial court.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

      We have stated,

         [T]he discretion that a trial court employs in custody
         matters should be accorded the utmost respect, given the

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            special nature of the proceeding and the lasting impact the
            result will have on the lives of the parties concerned.
            Indeed, the knowledge gained by a trial court in observing
            witnesses in a custody proceeding cannot adequately be
            imparted to an appellate court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

         The primary concern in any custody case is the best interests of the

child.     “The best interests standard, decided on a case-by-case basis,

considers all factors which legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being.”     Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d

674, 677 (Pa. Super. 2004)).

         We must accept the trial court’s findings that are supported by

competent evidence of record, and we defer to the trial court on issues of

credibility and weight of the evidence. If competent evidence supports the

trial court’s findings, we will affirm even if the record could also support the

opposite result.     See In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.

Super. 2003).

         We begin by noting that Mother has not filed a brief in this matter.

         Father’s first and second questions present the same issue: whether

the trial court erred in determining, pursuant to 23 Pa.C.S.A. § 4527(a), that

New York was the more convenient forum in which to litigate the custody of

Child? (Father’s Brief, at 4-5).


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        Father first argues that the trial court’s finding that “there are no

significant contacts in Pennsylvania regarding the care, protection, training

and personal relationships of [the c]hild” was only possible because

“[Mother] was permitted, by not only her own actions but, more importantly,

by the [] actions and inactions of the [t]rial [c]ourt to remove [Child] to the

State of New York for a period of almost a year[.]” (Father’s Brief, at 17)

(quoting (Trial Court Opinion, 5/06/14, at unnumbered page 4)).

        In making this argument, Father ignores Mother’s testimony that she

has lived at a specific address in New York City “on and off since 2005.”

(N.T. Hearing, 11/21/13, at 15). Mother testified that she owns an eighty

percent interest in that residence.            (See id. at 16).   Mother also testified

that her driver’s license and her immigration “green card” bear that

address.2 (See id. at 20-23). In addition, Mother testified that Child’s only

pediatrician is the one he sees in New York.                 (See id. at 37).     This

unrebutted testimony by Mother is sufficient evidence to permit the trial

court to determine, in the absence of any contrary evidence, that Child has

significant contacts to the State and City of New York.

        We are also persuaded by the trial court’s statement in response to

Father’s claim:

              Father raises the issue of the time lapse for the evidentiary
        hearing in this matter which permitted the Child to reside
____________________________________________


2
    Mother is a permanent resident. (See N.T. Hearing, 11/21/13, at 22).



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      outside of the Commonwealth. We do not believe that this is the
      case, especially in light of the voluminous evidence of Mother’s
      connection and ties to New York and Father’s own testimony that
      Mother and Child lived, at least part time, in New York since his
      birth. We are not persuaded by Father’s argument that Mother
      artificially created contacts in New York to avoid the
      Pennsylvania forum.

(Trial Ct. Op., 5/06/14, at unnumbered page 6).

      Father also argues that the trial court abused its discretion in finding

that Child has significant contacts with New York because that finding

contradicts the trial court’s finding, in its order of March 27, 2013, that

Pennsylvania is Child’s home state. (Father’s Brief, at 15-17). We find no

abuse of discretion where this change in the trial court’s finding occurred

after three days of evidentiary hearings. Our review of the record reveals

that sufficient evidence was presented during those hearings to support the

trial court’s new finding.

      In his second issue, Father claims that the trial court misapplied six of

the eight factors a trial court must consider when deciding the question of

forum non-convenience. (Father’s Brief, at 18). The eight factors are:

      (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;


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      (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).

      Father claims that the trial court abused its discretion in determining

that factors 1, 2, 3, 6, 7, and 8 weighed in favor of Mother. (Father’s Brief,

at 18).   Father supports this claim, however, by examining the evidence

presented and asking us to reach a conclusion different from that reached by

the trial court. (Father’s Brief, at 18-24). This we may not do. We must

accept the trial court’s findings that are supported by competent evidence of

record, and we defer to the trial court on issues of credibility and weight of

the evidence. If competent evidence supports the trial court’s findings, we

will affirm even if the record could also support the opposite result. See In

re Adoption of T.B.B., supra at 394.

      The parties cannot dictate the amount of weight the trial court
      places on evidence. Rather, the paramount concern of the trial
      court is the best interest of the child. Appellate interference is
      unwarranted if the trial court’s consideration of the best interest
      of the child was careful and thorough, and we are unable to find
      any abuse of discretion.




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S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002) (quoting Robinson v.

Robinson, 645 A.2d 836, 838 (Pa. 1994)).

      That said, we quote the trial court’s findings regarding the eight

factors, with approval.    Our review reveals that the record supports the

findings set forth here:

             We begin with the domestic violence which has occurred in
      this case. Father initially filed a PFA petition, however at the PFA
      hearing held on April 29, 2013, Father withdrew his PFA and
      Father did not object to the entry of a PFA against him in favor
      of Mother. At that hearing[,] Mother testified that charges
      against Father were bound over for the Court of Common Pleas
      on charges of aggravated assault. The assault was allegedly
      committed by Father against Mother. We are familiar with
      criminal charges pending against Father in this [c]ourt at docket
      953 CR 2013, which remain unresolved. In New York, a request
      for an Order of Protection petition was filed by Mother against
      Father for violence against Mother at her New York apartment.
      We believe that this violence may continue to occur in the
      future.

             In regards to the second factor, the Child has resided in
      Pennsylvania and New York. Mother testified credibly that the
      Child has always resided with her in New York, albeit many
      weekends were spent in her Pennsylvania home. The Child
      attends school in and all of his medical providers are located in
      New York.        Child’s care and personal relationships are
      established in New York. Although Mother owns a residence in
      Pennsylvania, there are no significant contacts in Pennsylvania
      regarding the care, protection, training and personal
      relationships of Child.

             Factor three requires this [c]ourt to consider the distance
      between this [c]ourt and the New York Supreme Court. Mother
      testified that it is a two[-]hour car ride which we do not consider
      to[o] burdensome. Father has had several visits with Child in a
      supervised setting in both New York and Pennsylvania. Father
      has not objected to traveling to New York for these visits. Given
      the nature and location of the evidence in New York and


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     considering the Child’s best interest, we believe that New York is
     the more convenient forum.

            We are also required to consider the relative financial
     circumstances of the parties.      Although we found that the
     relative financial circumstance of Mother exceeds that of Father,
     we believe that the pending criminal charges and history of
     domestic violence outweighs any advantage for Father under this
     factor. This is the only factor which we believe may weigh in
     favor of Father. Nevertheless, we conclude that the weight of
     this factor is greatly outweighed by the other relevant factors
     which we must consider.

            Factor five is not relevant and we find that factor six
     weighs in favor of the New York forum. The testimony at the
     joint hearings revealed that Mother has significant ties to New
     York. Mother produced evidence that she has been a resident of
     New York for several years. Mother testified credibly that she
     has an ownership interest in an apartment on West Broadway,
     New York, NY, as well as a home in Monroe County. She stated
     that she lives primarily in New York, however until this litigation
     commenced, she spent many weekends at her Pennsylvania
     home. Mother maintains a New York driver’s license and attends
     Fashion Institute of Technology in New York. There was no
     evidence that the Child had any medical providers in
     Pennsylvania, except on an emergency basis. There was no
     evidence of any caregivers, day care providers or other
     significant connections of the Child with Pennsylvania with the
     exception that Mother owns a home in Monroe County and she
     was granted exclusive possession of that residence.

            In regards to factors seven and eight, we believe that both
     [c]ourts have equal familiarity with the facts and issues present
     in this matter; and that each [c]ourt has the ability to decide the
     issue expeditiously to resolve the pending litigation.

(Trial Ct. Op., 5/06/14, at unnumbered pages 4-6).

     In his third issue, Father complains that the trial court violated the

provisions of 23 Pa.C.S.A. § 5410 in that the two courts conferred off the

record and the trial court entered the order complained of without informing


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the parties of the substance of the discussion between the two courts.

(Father’s Brief, at 24-26). Section 5410 of the UCCJEA provides in pertinent

part:

        (a)   General rule.–A court of this Commonwealth may
              communicate with a court in another state concerning a
              proceeding arising under this chapter.

        (b)   Participation of parties.–The court may allow the parties
              to participate in the communication. If the parties are not
              able to participate in the communication, they must be
              given the opportunity to present facts and legal arguments
              before a decision on jurisdiction is made.

        (c)   Matters     of    cooperation      between    courts.–
              Communication between courts on schedules, calendars,
              court records and similar matters may occur without
              informing the parties. A record need not be made of the
              communication.

        (d)   Record.–Except as otherwise provided in subsection (c),
              a record must be made of a communication under this
              section. The parties must be informed promptly of the
              communication and granted access to the record.

23 Pa.C.S.A. § 5410(a)-(d).

        In response to Father’s complaint, the trial court stated:

        After the hearings in this matter, the only communication
        involved this [c]ourt advising the New York Court of our
        intention to decline jurisdiction as an inconvenient forum
        pursuant to 23 Pa. C.S.A. §5427, and to inquire whether New
        York would assume jurisdiction, of which there was no record.
        We considered this matter to fall squarely within the confines of
        23 Pa. C.S.A.§5410(c).

(Trial Court Supplemental Opinion, 5/09/14, at unnumbered pages 1-2).

        We agree with the trial court that the post-hearing conduct of the two

courts falls squarely within the exception of subsection (c). The trial court

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did not violate section 5410 of the UCCJEA when it failed to make a record of

its post-trial communication with the New York court.

     Accordingly, for the reasons stated, we affirm the order of the trial

court entered March 19, 2014.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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