J. S28002/14

                               2014 PA Super 231

J.K.                                     :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
W.L.K.,                                  :         No. 3244 EDA 2013
                                         :
                         Appellant       :


               Appeal from the Order Entered October 25, 2013,
               in the Court of Common Pleas of Chester County
                      Civil Division at No. 2011-01265-CU


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ.


OPINION BY FORD ELLIOTT, P.J.E.:FILED OCTOBER 14, 2014

       Appellant, W.L.K. (“Father”), appeals from the order that denied his

petition to transfer jurisdiction from Chester County, Pennsylvania, to

Montgomery County, Pennsylvania. Upon review, we reverse.

       Father and J.K. (“Mother”) are the natural parents of N.P.K., born in

2005, and G.W.K., born in 2009 (“the Children”).       On February 3, 2011,

Mother filed for divorce from Father and sought custody of the Children. At

the time, Mother and Father were residing in Chester County where Mother

filed her divorce complaint.    The parties entered into a stipulated custody

order on March 10, 2011, whereby Mother obtained primary physical custody

of the Children subject to Father’s periods of partial physical custody.

Shortly thereafter, Mother and Father separately relocated to Montgomery

County and have been residing there for over two years with the Children.



* Retired Senior Judge assigned to the Superior Court.
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(Notes of testimony, 10/16/13 at 3, 7.)             The parties currently reside

approximately one mile from each other.

         On September 16, 2013, Father filed a petition to transfer jurisdiction

to Montgomery County. Mother filed an answer contesting Father’s petition.

A hearing was held on October 16, 2013. An order denying Father’s petition

was issued on October 25, 2013, and docketed on October 30, 2013. Father

filed a concise statement of errors complained of on appeal concurrently with

his notice of appeal. See Pa.R.A.P. 904(f).1 Father raises two issues for this

court’s consideration:

         a.     Did the trial court err as a matter of law and abuse
                its discretion in continuing to exercise jurisdiction
                over the custody matter in light of the Uniform Child
                Custody      Jurisdiction  and   Enforcement     Act,
                23 Pa.C.S.A. § 5401 et seq.?

         b.     Did the trial court err as a matter of law and abuse
                its discretion when it found that Chester County was
                not an inconvenient forum under Pennsylvania Rule
                of Civil Procedure 1915.2?

Father’s brief at 4.2

         In addressing Father’s first issue, we apply the following standard of

review:

         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

1
 We note this case is labeled a children’s fast track appeal; however, the only issue
before us concerns the transfer of venue/jurisdiction. There is no custody petition
or modification petition pending.
2
    Mother has not filed a brief in this matter.


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     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.

Lucas v. Lucas, 882 A.2d 523, 527 (Pa.Super. 2005).

     Father contends the trial court erred when it failed to apply the

Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”),

23 Pa.C.S.A. §§ 5401-5484, to this matter. Instead, the trial court applied

Pennsylvania Rule of Civil Procedure 1915.2(c), 42 Pa.C.S.A., and denied

transfer of the case to Montgomery County.     The trial court ruled Father

failed to show that that Chester County was an inconvenient forum.

     Our supreme court explained jurisdiction and venue as follows:

     Frequently, the terms jurisdiction and venue are used
     interchangeably although in fact they represent distinctly
     different concepts. Subject matter jurisdiction refers to the
     competency of a given court to determine controversies of a
     particular class or kind to which the case presented for its
     consideration belongs. Venue is the place in which a particular
     action is to be brought and determined, and is a matter for the
     convenience of the litigants. Jurisdiction denotes the power of
     the court whereas venue considers the practicalities to
     determine the appropriate forum.

In re R.L.L.’s Estate, 409 A.2d 321, 322 n.3 (Pa. 1979) (internal citations

omitted); Commonwealth v. Bethea, 828 A.2d 1066, 1075 (Pa. 2003)

(the terms, subject matter jurisdiction and venue, must exist simultaneously

in order for a court to properly exercise its power to resolve a particular

controversy).



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      Pennsylvania adopted the UCCJEA in 2004.3           The purpose of the

UCCJEA is to avoid jurisdictional competition, promote cooperation between

courts, deter the abduction of children, avoid relitigation of custody decisions

of other states, and facilitate the enforcement of custody orders of other

states. 23 Pa.C.S.A. § 5401, Uniform Law Comment. While the UCCJEA is

applicable to interstate proceedings, our Legislature has determined that its

provisions “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.

      In order to effectuate this legislative mandate, our supreme court has

promulgated specific rules for applying the provisions of the UCCJEA to

intrastate custody disputes. The rules recognize that all counties within the

Commonwealth maintain subject matter jurisdiction of custody disputes.

However, Pennsylvania Rule of Civil Procedure 1915.2 governing venue of

custody matters defines how and what county may properly exercise that

jurisdiction. The rule provides:




3
  The UCCJEA was promulgated by the National Conference of Commissioners on
Uniform State Laws in 1997 and became effective in Pennsylvania in 2004. The
UCCJEA replaced the Uniform Child Custody Jurisdiction Act (“UCCJA”),
23 Pa.C.S.A. §§ 5341-5366, repealed. The UCCJEA re-enacts many provisions of
the UCCJA.


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     Rule 1915.2. Venue

     (a) An action may be brought in any county

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

            (ii) which had been the child’s home county within
                 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
             venue under subdivision (1), and the child and the
             child’s 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    the    child’s,
             protection, training and personal relationships; or

         (3) when all counties in which venue is proper pursuant
             to subdivisions (1) and (2) have found that the court
             before which the action is pending is the more
             appropriate forum to determine the custody of the
             child; or

         (4) when it appears that venue would not be proper in
             any other county under prerequisites substantially in
             accordance with paragraphs (1), (2) or (3); or

         (5) when the child is present in the county and has been
             abandoned or it is necessary in an emergency to
             protect the child because the child or a sibling or
             parent of the child is subjected to or threatened with
             mistreatment or abuse.

     (b) Physical presence of the child or a party, while desirable, is
         not necessary or sufficient to make a child custody
         determination except as provided in subdivision (a)(5)
         above.




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      (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
          appropriate forum. It shall be the duty of the prothonotary
          of the court in which the action is pending to forward to the
          prothonotary of the county to which the action is transferred
          certified copies of the docket entries, process, pleadings and
          other papers filed in the action. The costs and fees of the
          petition for transfer and the removal of the record shall be
          paid by the petitioner in the first instance to be taxable as
          costs in the case.

Pa.R.C.P. 1915.2, 42 Pa.C.S.A.

      The Note and Explanatory Comment to Rule 1915.2 reference the

accommodation to the UCCJEA, restating the jurisdictional provisions of

Section 5421 of the UCCJEA in rule form without change in substance. To

the extent the provisions of the UCCJEA apply to intrastate custody disputes,

the proper county venue for an action is defined by the rule as set forth

above.   Because of the necessary interplay in our discussion between the

UCCJEA and the rule, references to jurisdiction under the UCCJEA and venue

under the rule may, at times, be confusing in analyzing the issue in this

case. However, as explained recently by the Pennsylvania Supreme Court,

“Rules of venue recognize the propriety of imposing geographic limitations

on the exercise of jurisdiction.” Commonwealth v. Gross,               A.3d   ,

2014 WL 4745569, at *4 (Pa. September 24, 2014) (citation omitted). For

purposes of clarity, we will analyze Father’s issues in venue terms.




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      Instantly, Father does not dispute that Chester County was the proper

venue to make the initial custody determination in 2011 when the parties

entered into the original custody stipulation.       However, Father argues

Chester County no longer has continuing, exclusive venue because none of

the parties currently reside there.

      As set forth above in Rule 1915.2(a)(1), an action may be brought

(i) in any county in which the child resides or (ii) was the home county

within six months before commencement of the proceeding and a parent

continues to live in the county. Pursuant to 1915.2(2), if no other county

has venue under subdivision (1) and the child or parent has a significant

connection to a county, the significant connection county, as defined under

the rule, may assume venue.       These subsections substantially mirror the

requirements of Section 5421.4


4
      § 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


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      In the present case, it is clear that Chester County is no longer the

home county for the Children.           Additionally, 1915.2(a)(2) cannot apply

because another county; specifically, Montgomery County, now meets the

provisions of 1915.2(a)(1).

      As it relates to intrastate determinations, Section 5422 of the UCCJEA

defines the exercise of exclusive, continuing venue to determine whether the

court with initial custody venue, in this case Chester County, maintains

venue in subsequent proceedings. Section 5422, as adapted to fit intrastate

custody venue requirements, provides:




                 appropriate forum under section 5427 (relating to
                 inconvenient forum) or 5428 (relating to jurisdiction
                 declined by reason of conduct) and:

                 (i)    the child and the child’s parents, or the 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

                 (ii)   substantial evidence is available in this
                        Commonwealth concerning the child’s care,
                        protection, training and personal relationships;

      (b) Exclusive jurisdictional basis.--Subsection (a) is the exclusive
          jurisdictional basis for making a child custody determination by a
          court of this Commonwealth.

      (c) Physical presence and personal jurisdiction unnecessary.--
          Physical presence of or personal jurisdiction over a party or a
          child is not necessary or sufficient to make a child custody
          determination.

23 Pa. C.S.A. § 5421.


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      § 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 [the county which made the initial custody
              order] 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
              [its county] and that substantial evidence is no
              longer available in [its county] concerning the child’s
              care, protection, training and personal relationships;
              or

          (2) a court of [the county which made the initial custody
              order] or a court of another [county] determines that
              the child, the child’s parents and any person acting
              as a parent do not presently reside in this [county
              which made the initial custody order].

      (b) Modification where court does not have exclusive,
          continuing jurisdiction.--A court of [a county] which has
          made a child custody determination and does not have
          exclusive, continuing jurisdiction under this section may
          modify that determination only if it has jurisdiction to make
          an initial determination under section 5421.

23 Pa.C.S.A. § 5422.

      As indicated above, a trial court vested with initial custody venue

maintains the exclusive continuing ability to exercise its venue until a court

determines that significant connections no longer exist in, or determines that

the child and the parties are no longer residents of, the initial county.

Clearly, Chester County does not meet the requirements of Section 5422(a)



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or (b). Even if we were to apply a significant connections test and allow that

Chester     County      maintains      continuing       venue        by   way      of

Subsection 5422(a)(1),     nowhere     does    the   trial   court   determine   that

substantial evidence regarding the Children’s protection, training, and

personal relationships exists more in Chester County than in Montgomery

County.    As neither the parents nor the Children have lived in Chester

County since March or April of 2011, exclusive, continuing venue cannot be

found under Subsection 5422(a)(2). Thus, under Section 5422, the Chester

County Court of Common Pleas has lost the exclusive, continuing authority

to exercise its venue over this matter.5

      Although not essential to our holding today, in his second issue, Father

argues the trial court erred when it determined Chester County was not an

inconvenient forum under Pa.R.C.P. 1915.2.               As previously set forth,

transfer of venue in custody matters is governed by Pa.R.C.P. 1915.2(c),

which provides that “[t]he court at any time may transfer an action to an

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

appropriate forum.” Id. The Notes to the rule provide that this subsection




5
  We note Section 5422(b) addresses modification of a custody determination.
Instantly, Father sought to transfer jurisdiction. See B.J.D. v. D.L.C., 19 A.3d
1081, 1084 n.2 (Pa.Super. 2011) (“An order to transfer custody jurisdiction is not a
modification of a custody order pursuant to 23 Pa.C.S. § 5422(b).”).


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is governed by the factors set forth in 23 Pa.C.S.A. § 5427,6 and address the



6
      § 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 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.


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same     considerations      which    are    subsumed       in      case   law       interpreting

Pennsylvania    Rule    of    Civil   Procedure       1006,      venue     in    civil       actions,

establishing a proper forum for the convenience of the parties and

witnesses.    Bratic v. Rubendall,                   A.3d     , 2014 WL 4064028 (Pa.

2014).

       In concluding Chester County was not an inconvenient forum, the trial

court noted the        commuting time          between the Chester County and

Montgomery County seats, the actions of Father in filing and withdrawing

petitions,   and   pending       support      litigation,     all    speak      to       a    forum

non conveniens analysis. However, in order for Rule 1915.2(c) to apply,

as with Section 5427, the court determining inconvenient forum must have

venue in the first instance, and we have already determined Chester County

has lost the authority to exercise venue over this case.                              Therefore,

convenience issues are no longer relevant. Accordingly, we are compelled to

reverse the order of the trial court and grant Father’s petition to transfer to

Montgomery County.

       Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2014



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