J-S11029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


*
    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


____________________________________________


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.
____________________________________________


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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