J-A24003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

N.W.                                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

V.S.

                          Appellant                  No. 793 EDA 2014


              Appeal from the Order Entered February 11, 2014
            In the Court of Common Pleas of Philadelphia County
                 Domestic Relations at No(s): OC-10-00775


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

MEMORANDUM BY GANTMAN, P.J.:                  FILED SEPTEMBER 29, 2014




County. We affirm.



history of this case as follows:

         [A]fter the birth of the child [in October 2008], Mother and
         Father lived in Montgomery County for two to three
         months, after which time Mother returned to Philadelphia.
         Father has continued to reside in Montgomery County and
         all periods of partial custody with the child have occurred
         and continue to occur in Montgomery County, except for
         the brief period of supervised partial physical custody at
         the court nursery in Philadelphia in February, 2012.



_____________________________

*Retired Senior Judge assigned to the Superior Court.
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       partial physical custody has occurred since September,

       partial custody when required, testified at the May 15,
       2013 hearing. They reside in Montgomery County, and
       among other activities they enjoy with the child is taking

                                 -grandmother also lives in
       Montgomery County, where Father resides when he does
       not have periods of custody. On the same street as


                                                               ll as two

       years old.   In addition to the numerous family members

       are also friends of the child, and come to play at the park
       across from the home of paternal great-grandmother.
       Other play areas are located on the street where paternal
       grandparents live.

       Mother lived with the child in Philadelphia since 2010. She
       testified at the hearing on May 15, 2013, that she intended
       to move to Chester County to live in the home recently
       purchased by her boyfriend, for which settlement was
       scheduled on May 16, 2013.

                                *      *    *

       The first filing in the custody matter occurred on April 27,
       2010, when Father filed a Complaint for Custody. An
       Order was entered on September 20, 2010, pursuant to
       which Mother retained primary physical custody and Father
       was to have partial physical custody every weekend from
       Saturday morning to Monday morning, plus every
       Thursday afternoon, at the home of paternal grandmother
       or paternal great-grandmother in Montgomery County.
       Legal custody was shared between the parties.            On
       February 22, 2011, another Stipulation was entered
       providing holiday custody time for Father at Christmas,


       On     November   3,   2011,   Mother    filed   a   Petition   for


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       partial physical custody on account of allegations of sexual
       abuse of the child, resulting in an interim modified order
       on February 7, 2012, for supervised partial physical
       custody for Father at the court nursery on alternating
       Sundays.

       The parties entered into an agreement on February 23,
       2012, for the appointment of an evaluator concerning the
       allegations of abuse. On March 21, 2012, an interim order
       was entered for Father to have supervised partial physical
       custody on three Tuesday afternoons each month for two
       (2) hours each at the home of paternal great-
       grandmother. On September 18, 2012, another interim
       order was entered pending a full hearing, providing for
       supervised partial physical custody for Father on
       alternating weekends at the home of paternal great-
       grandmother or paternal grandmother, from Friday to
       Sunday, and every Tuesday overnight to Wednesday
       morning. A holiday schedule was also included.

       Mother served Father Notice of Relocation to Coatesville,
       Pennsylvania, in Chester County, sometime in early 2013,
       to which Father filed a Counter-Affidavit objecting to same
       on March 4, 2013. The relocation matter was consolidated
       for a hearing with the outstanding custody petition on May
       14, 2013.

       After the hearing on May 14, 2013, an interim order was
       entered, pending receipt of proposals for vacation and
       holiday time, continuing the above partial physical custody
       schedule for Father, unsupervised. On June 27, 2013 a
       final order was entered providing that the parties share
       legal custody, Mother retained primary physical custody,
       and Father had partial physical custody on alternating
       weekends, plus one weekday overnight every other week.

       afternoon to Tuesday morning and his weekday custody
       was set for alternating weeks from 8:00 a.m. Monday
       morning to 3:00 pm. Tuesday afternoon.    A week of
       vacation and an extended holiday schedule were also
       included.

       The custody evaluator had concluded that the allegations
       concerning sexual abuse were unfounded. In addition, the

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         court concluded that Section 5337 of the custody code
         concerning relocation did not apply because there was no
         significant increase in the distance or travel time between


                                  *    *    *

         Father filed a [Petition] to Transfer Venue to Montgomery
         County on August [9], 2013, after a final order was
         entered in the underlying custody matter on June 27,
         2013. Mother filed a responsive pleading on September
         20, 2013, opposing the [Petition] to Transfer to
         Montgomery County and requesting that the matter be
         transferred to Chester County to which county Mother
         reportedly moved in late May, 2013.

(Trial Court Opinion, filed March 27, 2014, at 1-4) (footnotes and citations to

the record omitted). The court conducted a hearing on January 15, 2014, on



and transferred the custody action to Montgomery County.        On March 11,

2014, Mother filed a timely notice of appeal, and a voluntary concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Mother raises the following issues for our review:

         DID THE [TRIAL] COURT ABUSE ITS DISCRETION BY
         REFUSING TO TRANSFER THE ACTION TO CHESTER
                             HOME COUNTY UNDER [PA.R.C.P.]
         RULE 1915.2 (A)(1)?

         DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN
         MISAPPLYING THE BENCHMARK FOR EVIDENCE UNDER
         [PA.R.C.P.] RULE 1915.2(A)(2), THEREBY IGNORING THE
                               CONNECTIONS TO THE C
         HOME COUNTY?



      In her issues combined, Mother argues the custody matter should not

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have been transferred to Montgomery County because Chester County has



court erred when it used the date Father filed his petition to transfer venue,




Montgomery County. Mother alleges the court refused to consider that the




petition. Mother claims the court also ignored that Chester County is where

the child lives seventy-four (74) percent of the time, goes to school and the

doctor, and spends time with family and friends.             Mother maintains



                                                             mery County was

impermissible under Pa.R.C.P. 1915.2. Mother concludes this Court should

reverse and remand for the case to be transferred to Chester County, or, in



circumstances and determine whether she has significant connections to

Chester County. We disagree.

      Our review of this case implicates Rule 1915.2 of the Pennsylvania

Rules of Civil Procedure, which provides in relevant part:

         Rule 1915.2. Venue

         (a)   An action may be brought in any county


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

          (ii)
          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

       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

       relationships[.]

                               *    *    *

       (c)   The court at any time may transfer an action to the
       appropriate court of any other county where the action
       could originally have been brought or could be brought if it
       determines that it is an inconvenient forum under the
       circumstances and the court of another county is the more


                               *    *    *

       EXPLANATORY COMMENT 2008
         Subdivision (a) of Rule 1915.2 incorporates the
         categories of jurisdiction for initial custody
         determinations     and     temporary     emergency
         proceedings in the Uniform Child Custody Jurisdiction

          as the venue provisions for these rules, restating
          them in rule form without change in substance.
          Subdivision (a) follows the policy of § 5471 of the
          [UCCJEA], which provides that the provisions of the

          among courts of different states shall also allocate
          jurisdiction and functions between and among courts




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Pa.R.C.P. 1915.2(a)(1)-(2), (c), and explanatory comment.          Rule 1915.1



        [T]he county in which the child immediately preceding the

        person acting as parent, or in an institution, for at least six
        consecutive months
        the child from the physical custody of the parent,
        institution, or person acting as parent shall not affect the
        six-month or other period[.]

Pa.R.C.P. 1915.1.

     Similarly, Section 5421 of the UCCJEA provides:

        § 5421. Initial child custody jurisdiction

        (a) General rule. Except as otherwise provided in
        section    5424     (relating   to  temporary    emergency
        jurisdiction), a court of this Commonwealth has jurisdiction
        to make an initial child custody determination only if:

           (1) this Commonwealth is the home state of the
           child on the date of the commencement of the
           proceeding or was the home state of the child within
           six months before the commencement of the
           proceeding and the child is absent from this
           Commonwealth but a parent or person acting as a
           parent continues to live in this Commonwealth;

           (2) a court of another state does not have
           jurisdiction under paragraph (1) or a court of the
           home state of the child has declined to exercise
           jurisdiction on the ground that this Commonwealth is
           the more appropriate forum under section 5427
           (relating to inconvenient forum) or 5428 (relating to
           jurisdiction declined by reason of conduct) and:

              (i)
              child and at least one parent or a person acting
              as a parent, have a significant connection with
              this Commonwealth other than mere physical
              presence; and

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               (ii) substantial evidence is available in this

               protection,      training     and       personal
               relationships[.]

23 Pa.C.S.A. § 5421(a)(1)-



         The state in which a child lived with a parent or a person
         acting as a parent for at least six consecutive months
         immediately before the commencement of a child
         custody proceeding
         of any of the mentioned persons is part of the period.

23 Pa.C.S.A. § 5402 (emphasis added).        Moreover, Section 5471 of the

UCCJEA provides for intrastate transfers as follows:

         § 5471. Intrastate application

         The provisions of this chapter 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.     See also Moffitt v. Moffitt, 514 A.2d 184, 186



a provision which allocates jurisdiction between and among courts of

common pleas in the same manner in which the Act itself confers jurisdiction




Weingartner v. Weingartner, 40 Pa. D. & C.4th 564, 567 (Pa.Com.Pl.

1995).

      Additionally, Sectio

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filing of the first pleading



the six-                                                                 by the

                                                 Zellat v. Zellat, 506 A.2d 946,

949 (Pa.Super. 1986).         See R.M. v. J.S., 20 A.3d 496 (Pa.Super. 2011)
                                                                              1



       Our standard of review for decisions regarding application of the these

jurisdictional criteria is as follows:


           subject to an abuse of discretion standard of review and
           will not be disturbed absent an abuse of 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

           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) (internal citations

omitted).

       Instantly, the trial court addressed Mo

____________________________________________


1

C.R.F. v. S.E.F.
evidentiary proceeding commences on or after the effective date of the [new
Child Custody Act], the provisions of the [new Child Custody Act] apply even

dealing with a jurisdictional issue that involves Rule 1915.2, which tracks the
venue rules of UCCJEA, rather than the actual merits of the custody dispute
under the new Child Custody Act.



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J-A24003-14



       unknown, but if settlement occurred on May 16, 2013,

       May, 2013. Therefore, she would have been living in
       Chester County for only slightly more than two (2) months
       as of August 9, 2013, which does not satisfy the time



                                                           s that

       However, case law shows that the filing date, not the
       hearing  date,   is  determinative   for  establishing


                              *     *      *

       Since the child lived in Montgomery County only for a few
       months and lived with Mother in Philadelphia County for
       several years until two and one-half months prior to the
       filing of the Motion to Transfer Venue, neither Montgomery
       County nor Chester County met the definition of home
       county as of August 9, 2013. Hence, neither county
       satisfies the requirements for venue under subdivision
       (a)(1) of Rule 1915.2.

                              *     *      *

       The question then arises as to the definition of the


       turn to case law. In Rennie v. Rosenthal, 995 A.2d 1217
       (Pa.Super. 2010), the court discussed the meaning of

       Primary Custody filed in Philadelphia concerning a child
       who had been living in Minnesota for five years. Custody
       proceedings had occurred in Philadelphia both before and

       and the issue before the court was whether Philadelphia


                              *     *      *




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J-A24003-14




       in Rennie
       of the phrase
       and at least one parent have an important or meaningful
                                         Id. at 1221-1222.

                                *     *      *

       In Rennie, the child spent three periods of 2-3
       consecutive weeks of custody with father each year, and
       spent time with grandparents, who took her on vacation,
       and with other family members and continued to have
       friendships in Philadelphia. Id. at 1222. The child also
       had connections to her step-mother and step-sisters in
       Philadelphia. Id. Rennie found that these facts, which
       are not as strong as the facts in the within case, were

       Pennsylvania.

       In the instant matter, beginning on September 24, 2010,
       Father has had custody of the child every weekend plus
       one weekday overnight for one and [a half] years, then
       following a seven month period of restricted time, had
       alternating weekends and one weekday night. Then, since
       September, 2012, Father has had custody on alternating
       weekends and one weekday overnight on alternating
       weeks, as well as vacation and holiday time. The child has
       numerous relatives, including children close to her age, as
       well as friends in Montgomery County, as noted above.
       The close relationship between the child and paternal
       grandparents, in particular, is evidenced by their having

       partial custody, periods of partial custody continue in their
       home, and they continue to take her to services every
       Sunday when Father has custody. Even cousin Alexa and

       strict supervised partial custody.


                                                             e
       good attributes towards for her to love him the way she




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       Hence, it can be concluded that under criteria set in
       Rennie, Father and the child have significant connections
       to Montgomery County.

       What must then be explored is whether, within the county,

       protection, training and personal relationships.

       During the prior custody hearings, the vast majority of
       evidence concerning the child pertained to her time with
       Father in Montgomery County how she was cared for by
       Father and his family members, and relationships with
       family members and friends, as summarized above. While
       the child will not be attending school in Montgomery
       County, ample evide

       educational   and   cultural    environment   in   Montgomery
       County.

       In addition, the child support matter has been transferred
       to Montgomery County. Anecdotally, this court notes that,
       on occasion, evidence concerning child support matters
       [is] relevant to custody issues and vice versa. Hence,
       proceedings concerning the
       occur in Montgomery County as a result of the support
       litigation which will occur there.

       Thus, as of August [9] 2013, the child had a significant
       connection only with Montgomery County (as opposed to
       Chester County) and substantial evidence pertaining to the

       benchmark for significant connection and substantial
       evidence, like the benchmark for jurisdiction, is the date of
       commencement of the action. The Superior Court stated:


       that appellant and the children have settled into life in
       Pennsylvania since moving, and therefore have since


       whether, at the time wife commenced this action in

       Pennsylvania.   Lucas v. Lucas, 882 A.2d 523, 528
       (Pa.Super. 2005) (citations omitted).

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                               *     *      *

       It must also be noted that the evidence in this custody
       litigation has focused on Father and, in all likelihood, will
       continue to do so in the future. Father has never filed for,
       nor requested primary physical custody of the child and


       While the child will, presumably, develop friendships in
       Chester County as time progresses, and will attend school
       there, there are no family members in Chester County and


       closer to his work in the state of Delaware.

       Hence, the evidence shows that the criteria in Rule 1915.2
       (a)(2) pertaining to venue have been satisfied in
       Montgomery County.

                               *     *      *

       Since subdivision (2) of Rule 1915.2(a) applies, subsection
       (c) allows a transfer from Philadelphia County, to
       Montgomery County where the action


       an action to the appropriate court of any other county
       where the action could originally have been brought or
       could be brought if it determines that it is an inconvenient
       forum under the circumstances and the court of another

       Philadelphia County properly transferred the matter to
       Montgomery County since the custody action could have
       been brought in Montgomery County on August 9, 2013,
       as discussed above, when Philadelphia County no longer
       qualified as the home county.

                               *     *      *


       not meet the requirements of a home county as of the
       date Father filed his Motion to Transfer Venue and there
       was neither a significant connection with Chester County,

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J-A24003-14


         nor substantial evidence concerning the child in Chester
         County as of that date. On the other hand, Father and the
         child had a significant connection with Montgomery County
         as of August, 2013, where there is available substantial

         personal relationships. Hence, the transfer of venue to
         Montgomery County was appropriate under Pa.R.[C].P.
         1915.2.

(Trial Court Opinion at 5-12) (footnotes and citations to the record omitted).



no reason to disturb it. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2014




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