J-A02006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.J.Z.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    J.A.J.                                     :
                                               :
                      Appellant                :   No. 2488 EDA 2016

                       Appeal from the Order July 6, 2016
              In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): No. 2014-21138

BEFORE: OTT, RANSOM, and FITZGERALD*, JJ.

MEMORANDUM BY OTT, J.:                               FILED FEBRUARY 28, 2017

         J.A.J. (“Mother”) appeals from the order entered July 6, 2016, in the

Court of Common Pleas of Montgomery County, which dismissed Mother’s

emergency petition for special relief on the basis that the Montgomery

County trial court is without jurisdiction to address Mother’s child custody

claims. After careful review, we vacate and remand.

         The relevant facts and procedural history underlying Mother’s appeal

are as follows. On June 28, 2016, Mother filed, in Montgomery County, a

petition entitled “Emergency Petition for Special Relief Re: Custody.” In her

petition, Mother averred that she is the mother of A.J.Z. (“Child”), a female

born in February 2010.           See Emergency Petition for Special Relief Re:

Custody, 6/28/2016, at ¶ 3.          Mother further averred that she and Child’s

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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father, A.J.Z. (“Father”) are subject to child custody orders entered on

October 26, 2015, and April 5, 2016, in the Court of Common Pleas of

Philadelphia County, pursuant to which she maintains primary physical

custody of Child, and Father maintains partial physical custody. Id. at ¶ 2,

4, 8, 18, 21.       Mother averred she moved from Philadelphia County to

Montgomery County in 2013, and that Father only “temporarily resided in

Philadelphia several months per year from 2010 to 2012,” and now resides

in North Carolina.      Id. at ¶ 5-6.      Based on her relocation to Montgomery

County, Mother averred Philadelphia County no longer has jurisdiction over

this custody case pursuant to the Uniform Child Custody Jurisdiction and

Enforcement Act (“UCCJEA”), 23 Pa.C.S.A. §§ 5401–5482, and requested

that Montgomery County assume jurisdiction.1           Id. at ¶ 8, 12, 15, 19-20.

Finally, Mother averred she petitioned the Philadelphia trial court to transfer

this case to Montgomery County in 2013 and 2015, but that the court

refused. Id. at ¶ 6-7.

       On July 6, 2016, the Montgomery County trial court entered an order

dismissing Mother’s petition, on the basis that Philadelphia County maintains

exclusive, continuing jurisdiction over the parties’ custody dispute pursuant


____________________________________________


1
  In addition, Mother averred Child would be spending most of the summer
in Father’s physical custody in North Carolina. See Emergency Petition for
Special Relief Re: Custody, 6/28/2016, at ¶ 24. Mother requested Father’s
summer custodial period with Child be suspended, as residing with Father
was causing Child “significant distress[.]” Id. at ¶ 31.



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to the UCCJEA.       The court explained, “the Philadelphia [County] Court of

Common Pleas is the sole determinant of whether it retains exclusive,

continuing jurisdiction in this case. Until that court decides that it does not,

this Court lacks jurisdiction to act in the parties’ custody litigation.” Order,

7/8/2016, at 1 n.1.        The court further directed the Montgomery County

Prothonotary to mark the case as “closed.” Id. at 2. Mother filed a motion

for reconsideration on July 18, 2016, which the court denied by order

entered August 3, 2016. Mother timely filed a notice of appeal on August 5,

2016, along with a concise statement of errors complained of on appeal.2

       Before reaching the merits of Mother’s appeal, we acknowledge that,

on August 26, 2016, the Montgomery County trial court filed a letter in this

Court requesting that this matter “be reviewed for entry of an order

quashing the appeal.”         Letter, 8/26/2016, at 1.   In its letter, the court

explained the trial court in Philadelphia County issued a sua sponte order

dated June 30, 2016, indicating that it intended to retain exclusive,

continuing jurisdiction over the parties’ custody dispute. Id. at 2. Mother

then filed an appeal from that order, which this Court quashed by way of a

per curiam order entered August 15, 2016.                Id.   According to the

Montgomery County trial court, this Court “specifically state[d] in its own
____________________________________________


2
  We conclude the July 6, 2016 order is an appealable, final order, as the
trial court disposed of all claims and all parties by concluding that it lacks
jurisdiction and refusing to address Mother’s request to modify the parties’
summer custody schedule. See Pa.R.A.P. 341(b)(1).



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August 15, 2016 Order that Philadelphia continues to have exclusive

jurisdiction,” and this matter “should have been deemed moot.” Trial Court

Opinion, 9/30/2016, at 4 n.4.

     After   review, we     conclude   the   Montgomery County   trial    court

misconstrued our per curiam order of August 15, 2016.      The order, which

was filed at Docket No. 2386 EDA 2016, and addressed Mother’s appeal from

the June 30, 2016, order of the Philadelphia Court of Common Pleas,

provided as follows:

            Appellant, [Mother], has filed an appeal from the
     Philadelphia County Court of Common Pleas order of June 30,
     2016 that requested that Montgomery County Court of Common
     Pleas refrain from exercising jurisdiction over emergency petition
     for special relief regarding custody matter filed in Montgomery
     County by [Mother].       The June 30th [order] references an
     October 26, 2015 order that established a final custody order
     and directed that Philadelphia Court of Common Pleas have
     exclusive continuing jurisdiction over the parties’ custody matter
     until further order of court. The June 30th order notes that the
     October 26th order was not appealed and that the trial court in
     Philadelphia continues to have exclusive jurisdiction over the
     parties’ custody matter.

           Pa.R.A.P. 341(b)(1) states: “A final order is any order that
     disposes of all claims and of all parties.”

         Accordingly, the appeal at No. 2386 EDA 2016 is hereby
     QUASHED.

Order, 8/15/2016.      By quoting the language of the Philadelphia Common

Pleas court, we did not affirm its request that Philadelphia County retain

jurisdiction of this custody matter. Rather, we quashed Mother’s appeal on

the basis that the June 30, 2016, order was not a final order pursuant to

Pa.R.A.P. 341(b)(1).      Id.   Because we conclude the July 6, 2016,

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Montgomery County order dismissing Mother’s petition for special relief is

final,3 we decline the request of the Montgomery County trial court to quash

this appeal.

       On appeal, Mother raises two issues for our review.

       A. Whether the trial court erred as a matter of law and/or
          committed an abuse of discretion when it dismissed Mother’s
          Emergency Petition for Special Relief for lack of jurisdiction
          and directed Court Administration to close the miscellaneous
          custody docket established as a result of a properly
          registered foreign custody order on the grounds that the
          Philadelphia Court of Common Pleas was the sole
          determinant of whether it had continuing and exclusive
          jurisdiction under the [UCCJEA], especially when 23
          Pa[.]C.S.A. § 5422(a)(1)-(2) specifically authorizes a Court
          of this Commonwealth or the Court of another state to make
          a determination that the child and neither parent continue to
          reside in the Commonwealth for purposes of continuing and
          exclusive jurisdiction?

       B. Whether the trial court erred and/or committed an abuse of
          discretion when it dismissed Mother’s Emergency Petition for
          Special Relief for lack of jurisdiction and directed Court
          Administration to close the miscellaneous custody docket
          established as a result of a properly registered foreign
          custody order, without making a determination of whether
          Mother, Father or the child reside in Philadelphia?

Mother’s Brief at 5.

       We begin with our well-settled standard of review.

       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
____________________________________________


3
    See supra n.2.



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        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.

J.K. v. W.L.K., 102 A.3d 511, 513 (Pa. Super. 2014), quoting Lucas v.

Lucas, 882 A.2d 523, 527 (Pa. Super. 2005).

        In her first issue, Mother argues the trial court erred or abused its

discretion by refusing to assume jurisdiction over the parties’ custody case

pursuant to the UCCJEA. Specifically, Mother contends Philadelphia County

no longer has exclusive, continuing jurisdiction over this matter, and the

Montgomery County trial court incorrectly concluded that it needed the

approval of the Philadelphia County trial court in order to address Mother’s

petition for special relief. See Mother’s Brief at 13-25.

        At the outset, we must address the applicability of the UCCJEA to this

case.

                Pennsylvania adopted the UCCJEA in 2004. The purpose of
        the UCCJEA is to avoid jurisdictional competition, promote
        cooperation between courts, deter the abduction of children,
        avoid relitigation of custody decisions of other states, and
        facilitate the enforcement of custody orders of other states. 23
        Pa.C.S.A. § 5401, Uniform Law Comment. While the UCCJEA is
        applicable to interstate proceedings, our Legislature has
        determined that its provisions “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.

              In order to effectuate this legislative mandate, our
        supreme court has promulgated specific rules for applying the
        provisions of the UCCJEA to intrastate custody disputes. The
        rules recognize that all counties within the Commonwealth
        maintain subject matter jurisdiction of custody disputes.
        However, Pennsylvania Rule of Civil Procedure 1915.2 governing


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      venue of custody matters defines how and what county may
      properly exercise that jurisdiction. The rule provides:

        Rule 1915.2. Venue

        (a) An action may be brought in any county

        (1)(i) which is the home county of the child at the time of
        commencement of the proceeding, or

           (ii) which had been the child’s home county within
           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 venue
        under subdivision (1), and the child and the child's
        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
        the     child’s,  protection,   training    and    personal
        relationships[.]


J.K., supra, 102 A.3d at 513–514.

      The facts of J.K. are nearly identical to the instant matter.   In that

case, Father and Mother entered into a stipulated child custody order in

Chester County. Id. at 512. Both parties resided in Chester County at that

time, but later relocated to Montgomery County. Id. After the parties had

been living in Montgomery County for approximately two years, Father filed

a petition in Chester County to transfer the parties’ custody case to

Montgomery County. Id. The Chester County trial court denied the petition.

Id.




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      On appeal, a panel of this Court characterized Father’s request to

transfer the parties’ custody case as a request to transfer venue rather than

jurisdiction.    Id. at 515.   The panel observed that the terms “venue” and

“jurisdiction” are often used interchangeably, but in reality represent distinct

concepts.       Id. at 513.    While subject matter jurisdiction refers to “the

competency of a given court to determine controversies of a particular class

or kind,” venue refers to “the place in which a particular action is to be

brought and determined, and is a matter for the convenience of the

litigants.” Id., quoting In re R.L.L.'s Estate, 409 A.2d 321, 322 n.3 (Pa.

1979).    The panel further stated that all counties in Pennsylvania have

subject matter jurisdiction to address child custody cases.        Id. at 514.

However, a county is only permitted to exercise that jurisdiction if it has

proper venue. Id.

      With regard to the particular facts before it, the J.K. Court determined

Montgomery County was the appropriate venue for the parties’ custody

dispute pursuant to Pa.R.C.P. 1915.2(a)(1), as it was the “home county” of

the parties’ children. Id. at 515. Additionally, the panel concluded Chester

County did not meet the requirements for proper venue under either

Pa.R.C.P. 1915.2(a)(1) or (2), reasoning “it is clear that Chester County is

no longer the home county for the Children [and Rule] 1915.2(a)(2) cannot

apply because another county[,] specifically, Montgomery County, now

meets the provisions of [Rule] 1915.2(a)(1).” Id.




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      The J.K. Court then proceeded to address whether Chester County

maintained “exclusive, continuing venue” over the dispute pursuant to

Section 5422 of the UCCJEA. Id. at 515-516. The panel explained, “As it

relates to intrastate determinations, Section 5422 of the UCCJEA defines

the exercise of exclusive, continuing venue to determine whether the court

with initial custody venue, in this case Chester County, maintains venue in

subsequent proceedings.” Id. (emphasis supplied).

      The panel adapted the language of Section 5422 to apply to intrastate

disputes as follows:

      § 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 [the county which made the initial custody
         order] 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 [its county] and that
         substantial evidence is no longer available in [its county]
         concerning the child's care, protection, training and
         personal relationships; or

         (2) a court of [the county which made the initial custody
         order] or a court of another [county] determines that the
         child, the child’s parents and any person acting as a parent
         do not presently reside in this [county which made the
         initial custody order].

      (b) Modification where court does not have exclusive,
      continuing jurisdiction.—A court of [a county] which has
      made a child custody determination and does not have

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     exclusive, continuing jurisdiction under this section may modify
     that determination only if it has jurisdiction to make an initial
     determination under section 5421.

Id. at 516, quoting 23 Pa.C.S. § 5422.

     Pursuant to the dictates of Section 5422, the panel concluded Chester

County “ha[d] lost the exclusive, continuing authority to exercise its venue

over [the] matter,” as neither the parties’ nor their children had resided in

Chester County since March or April of 2011.        J.K., 102 A.3d at 516

(footnote omitted).   The J.K. Court therefore reversed the order of the

Chester County trial court and granted Father’s request to transfer the

custody proceedings to Montgomery County. Id. at 517.

     Applying J.K. to the facts sub judice, we conclude the Montgomery

County court misapplied Section 5422 when it dismissed Mother’s petition

for special relief without conducting a hearing.   As noted above, Mother

averred in her petition that she has resided in Montgomery County since

2013, and that she maintains primary physical custody of Child. Moreover,

she further averred Father has not resided in Philadelphia County since 2012

and currently resides in North Carolina.    Father does not dispute these

averments.    Accordingly, if these averments are true, pursuant to the

dictates of Section 5422 and Rule 1915.2, Montgomery County would be

Child’s “home county,” and the appropriate venue for the parties’ custody

dispute.   Further, Philadelphia County would no longer possesses the

“exclusive, continuing authority to exercise its venue over this matter”

pursuant to Section 5422.


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      In reaching this conclusion, we reject the Montgomery County trial

court’s conclusion that only a court in Philadelphia County is empowered to

render a determination as to exclusive, continuing venue.        Indeed, the

Montgomery County court relied on the comment to Section 5422, which

provides, in relevant part:   “The use of the phrase ‘a court of this state’

under subsection (a)(1) makes it clear that the original decree state is the

sole determinant of whether jurisdiction continues.”     Trial Court Opinion,

9/30/2016, at 7, quoting 23 Pa.C.S. § 5422, Comment.         While the court

correctly found it would not be permitted to assume venue over this matter

pursuant to Section 5422(a)(1), the court failed to consider the applicability

of Section 5422(a)(2).    As the panel stated in J.K., Section 5422(a)(2)

provides that exclusive, continuing venue ends if “a court of [the county

which made the initial custody order] or a court of another [county]

determines that the child, the child’s parents and any person acting as a

parent do not presently reside in this [county which made the initial

custody order].” J.K., supra, 102 A.3d at 516, quoting 23 Pa.C.S.A. § 5422

(emphasis added). See also 23 Pa.C.S. § 5422, Comment (“If the child, the

parents, and all persons acting as parents have all left the state which made

the custody determination prior to the commencement of the modification

proceeding, considerations of waste of resources dictate that a court in state




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B, as well as a court in state A, can decide that state A has lost exclusive,

continuing jurisdiction.”).4

       Based on the foregoing, we conclude the trial court abused its

discretion by dismissing Mother’s emergency petition for special relief. We

therefore vacate the order dismissing Mother’s petition, and remand this

matter to the Montgomery County trial court to hold a hearing on the

petition within thirty days of the date of this Memorandum.5, 6


____________________________________________


4
  This Court addressed a similar situation in A.L.-S. v. B.S., 117 A.3d 352
(Pa. Super. 2015). In that case, both Mother and Father moved to Lawrence
County, Pennsylvania, from Cuyahoga County, Ohio, where they were
subject to a previously-entered child custody order. Id. at 354. Thereafter,
Mother filed a petition for special relief in Lawrence County, and the
Lawrence County trial court denied her petition on the basis that the
Cuyahoga County court had not issued an order relinquishing jurisdiction.
Id. at 355. A panel of this Court reversed on appeal, concluding that the
Lawrence County court was empowered to assume jurisdiction regardless of
whether or not the Cuyahoga County court had relinquished jurisdiction. Id.
at 360.
5
  In her second issue, Mother argues the trial court improperly directed the
Montgomery County Prothonotary to mark this case as “closed.” Mother’s
Brief at 26-27. She asserts that, even if the trial court did not abuse its
discretion or err by dismissing her petition for special relief, she properly
registered a Philadelphia County custody order in Montgomery County, which
the Montgomery County trial court has the authority to enforce.           Id.
Because we conclude Mother’s first issue is dispositive of this appeal, we
need not address the merits of this alternative argument.
6
  On November 21, 2016, this Court received a letter from Father, in which
he indicated that he did not intend to file a brief in this matter. Letter,
11/21/2016. However, Father asserted that Mother “is abusing the system
in [sic] a means of harassing [F]ather and I request the courts to sanction
the petitioner’s attorney and caution her against future frivolous filings.” Id.
(Footnote Continued Next Page)


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      Order vacated. Case remanded for reinstatement of Mother’s petition

for special relief, and proceedings consistent with this Memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2017




                       _______________________
(Footnote Continued)

Given our conclusion that Mother’s appeal is meritorious, we see no basis
upon which to sanction or caution Mother’s attorney.



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