J-A01015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.E.P.,                                          :     IN THE SUPERIOR COURT OF
                                                 :          PENNSYLVANIA
                                 Appellant       :
                                                 :
                 v.                              :
                                                 :
J.H.,                                            :
                                                 :
                                 Appellee        :
                                                 :     No. 1318 WDA 2016

                    Appeal from the Order Dated August 11, 2016
                 In the Court of Common Pleas of Allegheny County,
                      Family Court, at No(s): FD16-007048-008

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED: APRIL 10, 2017

        I agree with the learned Majority that the record supports the trial

court’s finding that jurisdiction lay properly in North Carolina, and I join the

Majority except as noted, infra.

        I write separately because I disagree with the Majority’s finding that

the     proper        standard    when   determining   jurisdiction   pursuant   to   the

maximum-significant-contacts test is an abuse of discretion. See Majority’s

Memorandum at 15 citing Wagner v. Wagner, 887 A.2d 282, 285 (Pa

Super. 2005).




* Retired Senior Judge assigned to the Superior Court.
J-A01015-17


      This Court’s examination of the applicable standards of review when

assessing issues arising under the UCCJEA in S.K.C. v. J.L.C., 94 A.3d 402

(Pa. Super. 2012) (Olson, J.), is instructive.

      [W]e begin with a discussion of the appropriate standard and
      scope of review when considering an appeal from a decision
      rendered under 23 Pa.C.S.A. § 5422, which establishes the trial
      court’s exclusive, continuing jurisdiction to make a child custody
      determination. It is hornbook law that “as a pure question of
      law, the standard of review in determining whether a [trial] court
      has subject matter jurisdiction is de novo and the scope of
      review is plenary.” However, when discussing our standard of
      review in other cases arising under section 5422, we have often
      stated that “this Court will not disturb a decision to exercise or
      decline jurisdiction absent an abuse of discretion by the trial
      court.”

             This language is accurate in that, 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. However,
      we have imprecisely quoted this language even when the
      question was not whether the trial court properly exercised (or
      declined to exercise) jurisdiction, but rather the question was
      whether the trial court actually possessed subject matter
      jurisdiction.

            The UCCJEA establishes subject matter jurisdiction before
      the courts of common pleas in child custody matters under
      various subsections of Title 23, including 23 Pa.C.S.A. §§ 5421
      and 5422. As the provision quoted below makes clear, section
      5421 identifies the circumstances under which a court of
      common pleas has jurisdiction to make an initial child custody
      determination. Pursuant to section 5421(b), section 5421(a) is
      the exclusive jurisdictional basis for making an initial child
      custody determination by a court of this Commonwealth.

             Section 5422(a) identifies the circumstances under which a
      court which has made a child custody determination under
      section 5421 or section 5423 retains exclusive, continuing
      jurisdiction over that order. Under section 5422(a), a court
      which has made a child custody determination under section

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J-A01015-17


     5421 or section 5423 retains exclusive, continuing jurisdiction
     over that determination until the elements of section 5422(a)(1)
     or section 5422(a)(2) have been satisfied. Section 5422(b)
     states that if the trial court has made a child custody
     determination, but no longer has exclusive, continuing
     jurisdiction under section 5422(a), it may modify that
     determination if it has jurisdiction to make an initial custody
     determination under section 5421. From our review of the
     statutory language, it is evident that a section 5422
     determination does not involve a trial court’s decision regarding
     whether to exercise jurisdiction that has been established.
     Rather, a section 5422 determination implicates the subject
     matter jurisdiction of the trial court.

Id. at 406-408 (citations and footnotes omitted).

     In light of the foregoing, I find the trial court’s determination under 23

Pa.C.S.A. §§ 5421(a)(2), maximum-significant-contacts, implicates a pure

question of law, and thus, the proper standard is de novo.




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