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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

A.M.W.,                                 :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :        No. 1261 MDA 2014
                                        :
N.P.                                    :


                 Appeal from the Order Entered July 16, 2014,
               in the Court of Common Pleas of Luzerne County
                       Civil Division at No. 2014-05853


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 12, 2015

       A.M.W. (“Mother”) appeals the order of the Court of Common Pleas of

Luzerne County entered on July 16, 2014, in which the court dismissed

Mother’s complaint in custody and determined the State of Wisconsin shall

have exclusive jurisdiction of this custody matter until March 1, 2015, which

represents the date agreed to by the parties. We reverse.

       Mother and N.P. (“Father”) were married in Pennsylvania on April 29,

2000, and subsequently moved to Wisconsin.         They are the parents of

six minor children (“the Children”) born between 2002 and 2009.      Divorce

proceedings were commenced in Wisconsin in 2010, and on March 1, 2013,

the Jefferson County, Wisconsin, Circuit Court entered Findings of Fact,

Conclusions of Law, and Judgment in Divorce. Also on March 1, 2013, the

parties entered into a partial marital settlement agreement on legal custody
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and physical placement.     For our purposes, the pertinent sections of the

agreement are as follows:

           6.    REVIEW OF PLACEMENT WITHIN 2 YEARS AND
                 VENUE

                 Neil shall notify Annie by April 30, 2013 if he
                 intends to move with the children prior to the
                 commencement of the 2013-2014 school year.
                 In the event Annie moves to the state where
                 the children reside within 2 years of entry of
                 this initial order for custody and placement,
                 the parties agree to review the physical
                 placement schedule in using the standard set
                 forth in Wis. Stats. §767.451(1)(b) thereby
                 waiving the higher standard set forth in Wis.
                 Stats. §767.451(1)(a).

                 The parties further agree to waive the
                 provisions of Wisc. Stats. sec. 822.22 and sec.
                 822.27 that would otherwise permit child
                 custody/placement jurisdiction to transfer to
                 Ohio or another state under the UCCJEA upon
                 Annie’s move to Ohio or another state. The
                 parties stipulate and agree that the
                 Jefferson County, WI Circuit Court shall
                 retain      continuing       and     exclusive
                 jurisdiction over the determination of all
                 child custody and physical placement
                 disputes until the youngest minor child of
                 the parties reached [sic] the age of 18.
                 The parties further stipulate and agree
                 that the Circuit Court of Jefferson County,
                 WI shall continue to be a convenient
                 forum to resolve all disputes between the
                 parties regarding the legal custody and
                 physical placement of their children
                 notwithstanding either party’s residence
                 in any state or country other than
                 Wisconsin.

R.R. at 40a (emphasis added).



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      Approximately 14 months prior to the above agreement, Father moved

from Wisconsin to Kenton, Ohio, with the Children.         Father moved to

Pennsylvania with the Children in July 2013 and currently resides in Luzerne

County.   Mother moved to Pennsylvania in September 2013 and currently

resides in Lackawanna County.

      On May 6, 2014, Mother filed a complaint for custody in Luzerne

County.   Father filed an emergency petition for special relief seeking to

dismiss Mother’s custody complaint on June 4, 2013. A hearing was held in

Luzerne County on June 17, 2014, before the Honorable Jennifer L. Rogers.

Judge William F. Hue of the Circuit Court of Jefferson County, Wisconsin,

participated by telephone. Judge Hue stated he was not aware of anything

currently open in his file. (Notes of testimony, 6/17/14 at 3.) After a short

discussion, and both judges agreeing that factually Luzerne County was the

more convenient forum, the issue was narrowed down to whether Wisconsin

continued to have continuing exclusive jurisdiction because the parties

stipulated to that in their judgment of divorce. (Id. at 7.) At the conclusion

of the hearing, it was decided that the parties would brief this issue, and

another hearing would take place.

      On July 15, 2014, a second hearing occurred at which Judge Hue again

participated by telephone. Judge Rogers stated she found Pennsylvania to

be the more convenient forum.       (Notes of testimony, 7/15/14 at 6-7.)




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Judge Hue stated that while Pennsylvania seems to be the more convenient

forum, he believed this case had a broader issue. He explained:

           What disturbs me broadly about this is we have a
           general repose statute in Wisconsin which is a 2-year
           cooling off period that we have before we start to
           relitigate cases concerning custody and placement.
           We’ve got a general understanding in Wisconsin that
           we follow the federal laws that pertain to the children
           moving, that there was some contemplation of the
           parties moving to a different state and an agreement
           here in Wisconsin that Wisconsin would have
           exclusive jurisdiction over these issues and that any
           matters concerning the children’s custody and
           placement would occur in Wisconsin even within that
           2-year period. So we’ve got sort of this public policy
           idea that we’ve got a period of repose that’s been
           superseded by the agreement of the parties at this
           time.     The agreement of the parties has been
           superseded by actions of a party to call into question
           custody and placement. There appears to be some
           presentations that a trade for that deviation of public
           policy is something that the Court could have
           ordered on its own in that the parties agreed that the
           Court in Wisconsin would have exclusive jurisdiction
           over those issues and if within two years, for
           example, the parties wanted to relitigate custody
           and placement they would come back to Wisconsin
           and do it.

Id. at 8-10.

     At the conclusion of the hearing, the judges agreed that the two-year

cooling off period would be recognized, and Wisconsin would be the

appropriate forum up to March 2015 without prejudice to any party filing in

another state after that date.   An order was entered dismissing Mother’s

custody complaint and finding Wisconsin had exclusive jurisdiction of this




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custody matter until March 1, 2015.1      Mother filed this timely appeal and

raises the following issue:

            Whether the lower court erred by relinquishing
            jurisdiction to the state of Wisconsin in violation of
            the UCCJEA, 23 Pa. C.S.A. §5401 et seq., as
            Pennsylvania is the more convenient forum for
            current and future custody litigation and the parties’
            agreement is merely one of eight factors to be
            considered in determining the more convenient
            forum pursuant to 23 Pa. C.S.A. §5427?

Mother’s brief at 2.

      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).




1
  In its statement in lieu of a Rule 1925(a) opinion filed August 5, 2014, the
trial court found Mother’s appeal interlocutory and suggested quashal. We
disagree as the trial court’s order dismissing Mother’s complaint for custody
effectively ended litigation; thus, it was a final order. See Parker v.
MacDonald, 496 A.2d 1244, 1247 (Pa.Super. 1985) (a final order has been
defined as one which effectively ends litigation or disposes of the entire
case).


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      There is no question that the Uniform Child Custody Jurisdiction

Enforcement Act (“UCCJEA”) is applicable to this matter. Both Pennsylvania

and Wisconsin have adopted it.      There is no dispute that the parties and

Children have resided in Pennsylvania for more than six months prior to

Mother filing her complaint in custody. Having determined that Pennsylvania

has subject matter jurisdiction, we turn to Section 5427 of the UCCJEA. A

trial court may decline to exercise jurisdiction over a child custody dispute if

it determines it is an inconvenient forum. Under Section 5427, a trial court

must consider the following when determining if it is an inconvenient forum:

            § 5427. 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



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                       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. Wisconsin has adopted the identical provision of the

UCCJEA at Wisc.Stat.Sec. 822.27 with the exception of the insertion of the

word “state” in place of the word “Commonwealth.”

     The record indicates that both courts agreed that the relevant issue

was whether the parties, by stipulation, could confer exclusive jurisdiction



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for future custody disputes on Wisconsin to the exclusion of any other

jurisdiction where the parties and the Children were located. The only factor

above that favors Wisconsin is factor number 5.         An analysis of the other

factors follows.

      The first factor concerns domestic violence and which state could best

protect the parties and Children. We are not aware that domestic violence

was an issue in this matter.        As both parties and Children now reside in

Pennsylvania, it would appear the courts of Pennsylvania would be called

upon to protect against domestic violence. Factor two concerns the length

of time the Children have resided outside this Commonwealth. Father and

Children have been living in Pennsylvania since July 2013. They previously

resided in Ohio and before that in Wisconsin.          Factor three concerns the

distance between courts.      That factor favors Pennsylvania, as the distance

between Wisconsin and the eastern part of Pennsylvania is substantial.

Factor four concerns the financial circumstances of the parties.         The only

evidence in the record relating to factor four is Mother pays Father $1,000

per month for child support.        (Findings of fact, etc. at 7; RR(a) at 29.)

Regarding factor six, the nature and location of evidence required to resolve

pending   litigation,   including    the   testimony   of   the   Children,   favor

Pennsylvania.      The seventh factor favors Pennsylvania because all parties

reside in the Commonwealth, and Pennsylvania courts will possess the ability

to decide any issues expeditiously. Factor eight concerns the familiarity of



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the court of each state with the facts and issues in the pending litigation.

While Wisconsin initially dealt with this matter, the fact that all parties

currently reside in Pennsylvania favors Pennsylvania.

     Based on the above, we believe the parties’ forum selection clause is

outweighed by the other forum factors that favor Pennsylvania. See A.D. v.

M.A.B., 989 A.2d 32, 37-38 (Pa.Super. 2010) (the parties’ forum selection

clause choosing Pennsylvania was outweighed by an evaluation of each

Section 5427 factor which favored the State of Michigan).        Recently, in

S.K.C. v. J.L.C., 94 A.3d 402, 409-410 (Pa.Super. 2014), this court

discussed forum selection clauses and Section 5427:

           Although in adopting section 5427 the General
           Assembly has declared that a forum selection clause
           is one of eight factors to be considered when
           determining if a forum is inconvenient, we discern no
           basis within the legislative scheme of the UCCJEA
           upon which we could conclude that a forum selection
           clause may be regarded as dispositive in establishing
           jurisdiction under section 5422. Our conclusion is
           also consistent with the law of this Commonwealth
           that an “agreement of the parties will [not] confer
           jurisdiction where it otherwise would not exist.” In
           re Estate of Cantor, 424 Pa.Super. 24, 621 A.2d
           1021, 1022 (1993) (citation omitted); Transp.
           Servs., Inc. v. Underground Storage Tank
           Indemnification Bd., 67 A.3d 142, 152 n. 15
           (Pa.Cmwlth.2013) (citation omitted).

           Allowing parents to confer subject matter jurisdiction
           on the courts of this Commonwealth in child custody
           disputes via a forum selection clause would be
           antithetical to the purposes of the UCCJEA. The
           UCCJEA has been adopted by every state in this
           country, other than Massachusetts, in order to
           permit the best situated court to exercise jurisdiction


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            in child custody matters. Under the trial court’s
            view, the child and one parent could be residing in
            Alaska while the other parent could be residing in
            Florida and only Pennsylvania courts would have
            exclusive, continuing jurisdiction if they had entered
            into a forum selection clause which so stipulated.

      Our review of the UCCJEA’s eight forum factors convinces us that

Wisconsin is an inconvenient forum, and the factors favor Pennsylvania as

the convenient forum. The trial court’s reliance on the Wisconsin two-year

cooling off period was in error.

      Accordingly, we reverse the order of the trial court and reinstate

Mother’s complaint in custody. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/12/2015




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