J-A22010-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.R.                                            IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                      v.

E.S.C., SR. AND J.C.C.

                            Appellants               No. 612 EDA 2017


               Appeal from the Order Entered January 10, 2017
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2014-28814


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED OCTOBER 02, 2017

       E.S.C., Sr. (“Father”) and J.C.C. (“Mother”), (collectively “Parents”),

appeal from the January 10, 2017 order denying their petition to relinquish

jurisdiction, which requested that the Court of Common Pleas of Montgomery

County relinquish jurisdiction and transfer this matter to the State of

Connecticut.1 We affirm.


____________________________________________


1
 We note that, pursuant to Pa.R.A.P. 311(b), an order sustaining venue is
appealable as of right only if:

    (1)   the plaintiff, petitioner, or other party benefiting from the
          order files of record within ten days after the entry of the
          order an election that the order shall be deemed final; or

(Footnote Continued Next Page)

* Retired Senior Judge specially assigned to the Superior Court.
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      We set forth the salient factual and procedural history as follows:

            This case concerns C.C., born on December 17, 2010. The
      child lived in Montgomery County, Pennsylvania, as did his
      mother and father. The child’s father died on July 10, 2012[,]
      and the child’s mother had her parental rights terminated on
      October 22, 2013. The child’s paternal grandparents adopted
      the child on August 20, 2014, and they are now his mother and
      father. On September 1, 2014, mother and child moved from
      Souderton, Pennsylvania to Norwich, Connecticut, while father
      stayed behind in Pennsylvania because of his employment
      schedule. Father commuted from Souderton, Pennsylvania to
      his job at Pfizer, Inc., in West Trenton, New Jersey during the
      week. Father would commute to Connecticut on weekends.

            On October 27, 2014, shortly after mother and child
      relocated to Connecticut, the child’s maternal grandmother
      [(“Grandmother”)], as plaintiff, commenced this custody action
      against the parents, as defendants, seeking shared legal and
      partial custody of the child. . . . On April 8, 2015, the parties
      appeared before the [trial court] and presented evidence during
      a full-day hearing on grandmother’s custody complaint. The
      parties on that date reached an agreement by which
      grandmother would have partial physical custody, and that
      agreement was recited on the record and made an order of this
      court. That agreed order was amended, by agreement of the
      parties, by the “Stipulated Order to Clarify Order” filed on
      December 9, 2015. The result was an agreed custody order by
                       _______________________
(Footnote Continued)

   (2)    the court states in the order that a substantial issue of venue
          or jurisdiction is presented.


Pa.R.A.P. 311(b). Neither of these requirements has been met herein.
Nevertheless, this Court has allowed an appeal from an order denying a
petition to change venue when there were no other claims pending before
the trial court. See Galgon v. Martnick, 653 A.2d 44, 46 n.1 (Pa.Super.
1995) (finding order denying petition to transfer venue was final where all
that remained before court was pending support order). As there are no
other outstanding matters pending before the trial court, this appeal is
properly before us.



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     which grandmother would have physical custody of the child one
     weekend every month (three overnights), with an extra day or
     days appended during the three summer months and some
     holidays.

           On October 4, 2016, the parents commenced an action
     against grandmother in Connecticut. It was an action for an
     order of protection, which is Connecticut’s version of
     Pennsylvania’s Protection from Abuse. Parents sought relief
     from the Connecticut court based on their claim that the child’s
     seven year old cousin had committed an act of sexual abuse
     upon him while both children were in grandmother’s care in
     Pennsylvania. Temporary relief was denied as final relief.

            On November 7, 2016, the parents filed to the Superior
     Court, Judicial District of New London at Norwich, Connecticut, a
     “Post-Judgment Motion to Modify, Suspend and/or Provide
     Supervised Access.” By that motion, the parents asserted that
     “it is no longer in the child’s best interest to have unsupervised
     contact with the plaintiff.” The parents asked Connecticut to
     terminate grandmother’s right to partial custody[.]

            In support of their request made to the Connecticut court,
     the parents leveled two charges against grandmother. The first
     was that the child was being exposed to knowledge of the
     existence of his biological mother while in grandmother’s care.
     The second was that the child was being physically endangered
     while in grandmother’s care. More specifically, the parents
     accused grandmother of: (1) failing to “adequately supervise”
     the child while in her care; (2) permitting the child to be “in the
     presence” of the biological mother; (3) permitting the other
     children in grandmother’s custody to “mak[e] statements to the
     [child] about his adoption”; (4) failing to “provide adequate
     arrangements” for the child; (5) having on display in
     grandmother’s home “prominent pictures” of biological mother;
     and (6) permitting all children in grandmother’s custody “to go
     to a local park without an adult.”

           ....

            On December 9, 2016, per the [trial court’s] directive, the
     parents filed with this court a prayer for relief styled as a
     “Petition to Relinquish Jurisdiction.”   By their petition, the

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      parents asked this court to “relinquish jurisdiction and transfer
      jurisdiction to the State of Connecticut.”

Trial Court Opinion, 4/13/17, at 1-4 (internal citations omitted).

      Following a hearing on the matter, the trial court denied Parents’

petition.   Parents filed a timely notice of appeal and complied with the

court’s order to file a Rule 1925(b) concise statement of errors complained

of on appeal.   The court authored a Rule 1925(a) opinion.      This matter is

now ready for our review.

      Parents raise three questions for our consideration:

      (1)   Where the child and the parents do not have a significant
            connection with this Commonwealth and substantial
            evidence is no longer available in this Commonwealth
            regarding the child’s care, protection, training, and
            personal relationships, under 23 Pa.C.S.A. § 5422,
            including because (a) [Parents] and the child now live in
            Connecticut and neither of the parents reside and exercise
            parenting time with the child in Pennsylvania, and
            accordingly, there is no basis to find that a significant
            connection with Pennsylvania exists; and (b) the parents
            and the child all live in Norwich, Connecticut, where the
            child’s teachers, counselor, school, and healthcare
            providers are located, as well as all other witnesses
            regarding the child’s care, protection and training, and
            accordingly there is no basis to find that substantial
            evidence relating to the child’s care, protection, training,
            and personal relationships remains present within
            Pennsylvania;

      (2)   Where the child and his parents do not presently reside in
            this Commonwealth, under 23 Pa.C.S.A. § 5422, including
            because: (a) the child and his parents do not presently
            reside in Pennsylvania and instead have lived in
            Connecticut for over two years; (b) parent E.S.C.’s merely
            sleeping overnight in Pennsylvania at most three times per
            week when he is working in New Jersey does not constitute

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            residing in Pennsylvania under 5422 (a)(3), per Section
            5422, Uniform Law Comment, paragraph 2; (c) the child’s
            maternal grandmother’s status as a Pennsylvania resident
            and visitation claimant does not provide a basis for
            conferring exclusive, continuing jurisdiction on this
            Commonwealth, per Section 5422, Uniform Law Comment,
            paragraph 2; and (d) in construing and applying Section
            5422, the trial court properly should have considered the
            above referenced official comments to the Uniform Child
            Custody     Jurisdiction and    Enforcement   Act   when
            interpreting that statute which was adopted by
            Pennsylvania several years after the comments were
            published; and

      (3)   Because this Commonwealth is an inconvenient forum,
            including because (a) the child and parents have lived in
            Connecticut for over two years; (b) all witness including
            the child’s counselor, teachers and healthcare providers,
            and the parents and the child, are located in the State of
            Connecticut; (c) the State of Connecticut has already
            started proceedings regarding the pertinent issues relating
            to maternal grandmother’s visitation with the child, and it
            is the more convenient forum in accordance with the
            applicable statute; (d) Connecticut is the child’s home
            state, and as a general rule, the home state of the child is
            the preferred forum; and (e) since a hearing/proceeding is
            being held in Connecticut, the Connecticut court can make
            a determination that the child no longer resides in the
            Commonwealth of Pennsylvania?

Appellants’ brief at 4-6.

      Parents’   first   and   second    issues   challenge   the   trial   court’s

determination that it has subject matter jurisdiction over their custody

dispute. As we observed in B.L. v. T.B., 152 A.3d 1014 (Pa. Super. 2016),

“[w]hether a court has subject matter jurisdiction is a question of law, for

which our standard of review is de novo and our scope of review is plenary.”




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Id. at 1016 (Pa. Super. 2016) (citing S.K.C. v. J.L.C., 94 A.3d 402, 408

(Pa.Super. 2014)).

      The Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”)

reads in pertinent part:

      (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 the Commonwealth and that
                substantial evidence is no longer available in this
                Commonwealth concerning the 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.

23 Pa.C.S. § 5422(a).

      Parents first contend that the trial court no longer has exclusive,

continuing jurisdiction over their custody matter.       They argue that a

significant connection with Pennsylvania “no longer exists in the present

matter.” Appellants’ brief at 15. Parents note that they and the child live in

Connecticut, and that neither parent resides or exercises parenting time with

the child in Pennsylvania.   Further, Parents specifically dispute that Father

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resides in Pennsylvania, asserting that he merely sleeps in the state three

nights a week in order to commute to work in New Jersey.

      In order to undermine the import of Grandmother’s status as a

Pennsylvania resident, Parents emphasize the official comments to § 5422,

which note that “a remaining grandparent or other third party who claims a

right to visitation, should not suffice to confer exclusive, continuing

jurisdiction on the state that made the original custody determination after

the departure of the child, the parents and any person acting as a parent.”

Appellants’ brief at 16 (citing 23 Pa.C.S. § 5422, comment). Parents claim

that this comment prohibited the trial court from relying on Grandmother’s

residency or contacts with the child to support ongoing jurisdiction. Finally,

Parents assert that substantial evidence relating to the child’s care,

protection,   training,   and   personal   relationships   does   not   exist   in

Pennsylvania, as this proof is available only in Connecticut where he

currently lives.

      After reviewing the certified record and the parties’ briefs, we affirm

on the basis of the trial court’s opinion. See Trial Court Opinion, 4/13/17, at

10-11 (concluding that the child, C.C., maintained a significant connection

with Pennsylvania and that substantive evidence regarding his care,

protection, training and personal relationships necessarily exists in this

Commonwealth since Parents raised claims that Grandmother’s care of the

child within the state was deficient).         As noted by the trial court,

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Grandmother exercises custody over C.C. three nights a week, once every

month, with extra days during the summer and during holidays. Id. at 2, 6.

While staying with Grandmother, C.C. lives with four cousins and a half-

sister, and regularly spends time with other family members living in the

area. Id. at 6. Moreover, Parents raised claims implicating Grandmother’s

care of the child while he lives in Pennsylvania, and those allegations will be

resolved by examining evidence obtained from his time within the

Commonwealth. Thus, we find the court did not err in this regard.

        Second, Parents argue that the trial court lacks jurisdiction over this

matter since Parents and child moved to Connecticut. Parents again rely on

the commentary to § 5422, which, in this regard, states, “when the child,

the parents, and all persons acting as parents physically leave the state to

live elsewhere, the exclusive, continuing jurisdiction ceases.”       Appellants’

brief at 19 (citing 23 Pa.C.S. § 5422, comment) (emphasis omitted).

Parents maintain that they do not physically live in Pennsylvania, and that

Father only sleeps in Pennsylvania three nights a week due to his

occupation.

        Again, we affirm on the basis of the trial court’s opinion.       See Trial

Court    Opinion,   4/13/17,   at   11-12   (concluding   that   Father    lives   in

Pennsylvania for three overnights a week, and therefore § 5422(a)(2) does

not divest the Commonwealth of jurisdiction). The trial court found and the

record reveals that Parents own a house in Souderton, Montgomery County,

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which Father uses three days a week. Id. at 5.         Although Father lives in

Connecticut a portion of the week, he also physically resides, for the

purposes of § 5422(a)(2), in Pennsylvania for the remainder of the week.

No relief is due.

      Finally, Parents contend, in the alternative, that the trial court erred in

failing to grant their petition to relinquish jurisdiction since Pennsylvania is

an inconvenient forum. The UCCJEA reads, in pertinent part:

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

23 Pa.C.S. § 5427(a) and (b).           Since this argument assumes the

Commonwealth has jurisdiction over the matter, we apply a discretionary

standard of review.    S.K.C., supra, at 406 (noting, “when a trial court

possesses subject matter jurisdiction over a child custody dispute, a trial

court’s decision to exercise that jurisdiction is subject to an abuse of

discretion standard of review.”).

      Parents do not set forth the relevant factors delineated in § 5427.

Rather, they simply argue that they commenced proceedings against

Grandmother in Connecticut, and Pennsylvania is otherwise inconvenient

since they have lived in Connecticut for more than two years. They maintain

that many of the witnesses they would call on their behalf dwell in

Connecticut, including C.C.’s counselor, teachers, and healthcare providers.

Finally, Parents aver that Grandmother only works part-time, and, as such,

Connecticut would be a less-inconvenient forum for her.

      Upon review of the certified record, we affirm this issue on the basis of

the trial court opinion.     See Trial Court Opinion, 4/13/17, at 12-15

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(concluding that the § 5427 factors militate in favor of Pennsylvania

retaining jurisdiction over this matter). The trial court evaluated the § 5427

factors in light of the facts of this case and found that factors 3, 4, 5, 6, and

8 were relevant to this proceeding and weighed in favor of Pennsylvania

retaining jurisdiction. We agree with that assessment. The court found that

factor five slightly favored Pennsylvania since, although the parties had not

entered into a forum selection clause, they had agreed on April 8, 2015, that

any future custody proceedings would occur in Pennsylvania.               Similarly,

factor eight slightly favored Pennsylvania since the trial court had been

involved from the early stages of the proceeding. Nevertheless, it observed

that, although its involvement had not been extensive, it had been far more

involved than the court in Connecticut.

      In addition, the trial court concluded that factors three and four

strongly favored Pennsylvania, noting the financial disparity between the

parties, and the burden Grandmother would endure traveling to Connecticut.

The court highlighted that Parents retain ownership of a house in the

Commonwealth. Finally, the trial court determined that factor six was nearly

dispositive in favor of Pennsylvania, observing that the evidence required to

resolve the litigation is almost entirely in this state since this matter involves

Grandmother’s care of C.C. while exercising her visitation rights in

Pennsylvania.     We    find   that   the   record   supports   the   trial   court’s




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determination, and thus, it did not abuse its discretion in denying Parents’

petition to relinquish jurisdiction.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2017




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