J-A24002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    E.M.F.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
        v.                                     :
                                               :
                                               :
    C.A.F.                                     :
                                               :
                                               :   No. 749 MDA 2018

                  Appeal from the Order Entered April 19, 2018
                  In the Court of Common Pleas of York County
                    Civil Division at No(s): 2013-FC-2259-03


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 13, 2018

        Appellant, C.A.F. (“Father”), appeals pro se from the order entered on

April 19, 2018, in the Court of Common Pleas of York County (“trial court”),

“relinquishing venue of this case forthwith and as soon as something is filed

in some other county of Pennsylvania, presumably a county in which the child

resides.” Upon careful review, we affirm.

        The trial court set forth the following factual and procedural history.

        Father and [E.M.F.,] Mother[,] are the [natural parents] of three
        minor children, N.F., A.F., and E.F.[1] The parties have litigated
        matters stemming from the dissolution of their marriage, including
        the custody of their children since December of 2013, in York
        County. The operative custody order is a stipulated order dated

____________________________________________


1N.F., A.F., and E.F. were born in May of 2009, September of 2010, and
August of 2012, respectively.
J-A24002-18



       March 22, 2016.[2] With Father’s approval, Mother relocated to
       Dauphin County in June of 2015. Father resides in York Haven,
       York County. Despite the relocation in 2015, venue for the
       custody and all related actions remained in York County. On
       March 6, 2018, Mother filed her Motion for Inconvenient Forum
       and Motion to Change Jurisdiction to Dauphin County,
       Pennsylvania. . . .

       Father[, acting pro se,] filed a Motion to Dismiss on March 12,
       2018. The next day, the [c]ourt issued an [o]rder [s]cheduling
       [h]earing for March 23, 2018. On the morning of the 23rd, Father[,
       acting pro se,] filed Preliminary Objections as well as an Answer
       to Motion for Inconvenient Forum and Motion to Change
       Jurisdiction to Dauphin County, Pennsylvania. A hearing was held
       that same day; both parties were given ample opportunity to
       testify and to present witnesses and evidence. A full and accurate
       record was produced. Following the hearing, the [c]ourt issued
       an order granting the petition to change venue. . . .

Trial Court Opinion, 6/6/18, at 2-3. Specifically, by order issued on March 23,

2018, and entered on April 19, 2018, the trial court directed:

       In this matter, we have in front of us a petition to change
       jurisdiction, and it really means venue, from York County to
       Dauphin County. We grant that Petition and hereby order that
       York County, Pennsylvania, will relinquish venue of this case
       forthwith and as soon as something is filed in some other county
       of Pennsylvania, presumably a county in which the child resides.

Order, 4/19/18.




____________________________________________


2 The existing custody order granted the parties shared legal custody, Mother
primary physical custody, and Father partial physical custody on alternating
weekends from Friday after school or 12:00 p.m. during summer vacation or
breaks from school until 9:00 p.m. on Sunday. Order, 3/22/16, at 7. Further,
the order granted Father “liberal rights of partial custody during the week as
agreed upon by the parties,” not including overnights unless the parties
specifically agree. Order, 3/22/16, at 7. The order also included a holiday
custody schedule.

                                           -2-
J-A24002-18



      Father, acting pro se, filed a notice of appeal on April 26, 2018. Father

did not concurrently file a concise statement of errors complained of on appeal

as required by Pa.R.A.P. 1925(a)(i)(2) and (b). On May 23, 2018, this Court

issued an order directing Father to file a concise statement by May 30, 2018,

and Father timely complied.     See In re K.T.E.L., 983 A.2d 745, 747 (Pa.

Super. 2009) (holding that, in a children’s fast track case, the failure to file a

concise statement along with the notice of appeal will result in a defective

notice of appeal, to be decided on a case-by-case basis); cf. J.M.R. v. J.M.,

1 A.3d 902, 907 (Pa. Super. 2010) (holding that an appellant’s failure to

comply with an order from this Court to file a concise statement will result in

the waiver of the issues on appeal). The trial court filed an opinion pursuant

to Rule 1925(a) on May 10, 2018, and June 6, 2018.

      On appeal, Father presents the following issues for our review, which

we have re-ordered for ease of disposition:

      1.    Did the trial court have subject matter jurisdiction to
      entertain a motion for transfer of jurisdiction when no petition for
      modification had been filed anywhere, in any county?

      2.     Did the trial court err when it relinquished continuing,
      exclusive jurisdiction, “. . . to some other county in Pennsylvania,
      presumabl[y] a county where the children reside” absent a
      petition for modification and absent an open docket in another
      county to receive the instant custody case, abdicating it into
      limbo, even while the children maintained significant connections
      and a residence in the home [county]?

      3.    Did the trial court err in the matters of law when it ignored
      [Father’s] Motion to Dismiss and [Father’s] Memorandum of Law
      in Support of Preliminary Objections?


                                      -3-
J-A24002-18




      4.    Did the trial court err in matters of law by heavily weighing
      the location of primary custody and miscalculating overnights in
      custody as the determining factors for relinquishing jurisdiction in
      the custody matter?

      5.    Did the trial court abuse its discretion in weighing the factors
      in § 5427 and subsequently relinquishing jurisdiction?

      6.    Did the trial court abuse its discretion in allowing [Mother]
      to plead forum non conveniens for her own selected forum and
      without substantial change in circumstances?

      7.    Did the trial court abuse its discretion when it adjudged
      York County is a forum non conveniens without a scintilla of
      evidence and adjudging York County as inconvenient to a litigant
      who resides a mere 10 miles outside of York County in the
      southwestern edge of neighboring Dauphin County?

Father’s brief at 9-10 (italics added).

      Initially, we observe that the trial court properly found that Mother’s

request was to change the venue, not jurisdiction, of this custody action. Our

Supreme Court has explained the distinction between subject matter

jurisdiction and venue, as follows:

      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).   Based on these distinctions, “[v]enue assumes the existence of

jurisdiction.” See Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa.

2003).

                                      -4-
J-A24002-18



        Further, the trial court properly found that the Uniform Child Custody

Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. §§ 5401-5482, is

applicable. See 23 Pa.C.S. § 5471 (“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 courts of common

pleas of this Commonwealth.”). In J.K. v. W.L.K., 102 A.3d 511 (Pa. Super.

2014), this Court explained:

        In order to effectuate [the Section 5471] 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.[3]

____________________________________________


3   The Rule provides, in relevant part:

        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



                                           -5-
J-A24002-18




Id. at 514 (emphasis added). Instantly, we analyze Father’s issues in terms

of venue.

        Father does not dispute that the trial court had exclusive, continuing

venue of this custody action pursuant to Section 5422.4 Although the trial


____________________________________________


        presence and there is available within the county substantial
        evidence concerning the child’s protection, training and personal
        relationships; or

                                           ...

        (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(a)(1), (2), (c).

4   Section 5422 provides, in relevant part:

        § 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



                                           -6-
J-A24002-18



court had the authority to exercise its venue, it declined to do so pursuant to

Rule 1915.2(c), supra, which follows the inconvenient forum provision of 23

Pa.C.S. § 5427. See Pa.R.C.P. 1915.2 (Explanatory Comment). As such, the

trial court granted Mother’s petition to change venue based upon its

application of the factors set forth in Section 5427(b).5



____________________________________________


        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 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).

5   Section 5427 provides, in relevant part:

        § 5427. Inconvenient forum.

                                           ...

        (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:




                                           -7-
J-A24002-18



       We review a court’s decision to exercise or decline venue according to

an abuse of discretion standard. See M.E.V. v. R.D.V., 57 A.3d 126 (Pa.

Super. 2012). As we have explained, “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.” Id. at 129 (citation omitted).


____________________________________________


           (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. § 5427(b).



                                           -8-
J-A24002-18



       In his first and second issues on appeal, Father asserts that the trial

court erred in applying Section 5427 without a petition to modify the existing

custody order pending in the trial court or in the Dauphin County Court of

Common Pleas. Relying on our decision in S.K.C. v. J.L.C., 94 A.3d 402 (Pa.

Super. 2014), he asserts that, “there can be no hypothetical determination of

inconvenient forum as it might exist at some point in the future.” Father’s

brief at 24.

       In S.K.C., this Court affirmed the order of the Court of Common Pleas

of Mercer County that denied the father’s motion to transfer the custody case

to Québec, Canada. The father filed the motion following the mother’s petition

to modify the existing custody order. The father argued that the trial court

did not have exclusive, continuing jurisdiction under Section 5422(a)(1),

supra, because a significant connection did not exist between the child and

this Commonwealth.6 This Court stated:

       Neither this Court nor our Supreme Court has expressly
       determined at what time the trial court must evaluate the
       circumstances to determine if there exists a substantial
       connection between a child and this Commonwealth. Three
       possibilities appear to us: at the time the modification petition is
       filed; at the time the modification hearing is held; and at the time
       the trial court makes a final determination.


____________________________________________


6 We have stated that a “significant connection” exists “where one parent
resides and exercises his parenting time in the state and maintains a
meaningful relationship with the child.” S.K.C., supra at 412 (quotation
omitted).


                                           -9-
J-A24002-18



      We conclude that the determination must be made based upon
      the factual circumstances as they existed at the time the
      modification petition was filed.

S.K.C., supra at 411 (footnote omitted). We explained, “If we permitted the

determination to be made at any other point in time, it would give no effect

to [the] comment [to Section 5422].” Id. The comment provides, in pertinent

part, “‘Jurisdiction attaches at the commencement of the proceeding. If state

A had jurisdiction under this section at the time a modification proceeding was

commenced there, it would not be lost by all parties moving out of the state

prior to the conclusion of [the] proceeding.’” Id. (citing 23 Pa.C.S. § 5422

comment). Further, we explained,

      [A]llowing the determination at any other point in time would be
      problematic. Allowing the determination to be made at the time
      the hearing is held on the modification petition would provide an
      incentive for parents not residing within this Commonwealth to
      delay the proceedings to reduce any connection that the child
      would have with this Commonwealth. Moreover, allowing the
      decision to be made based upon the factual circumstances as they
      exist at the time the trial court makes its determination would
      encourage the trial court to make factual findings regarding
      changed circumstances since the modification hearing occurred.

Id. at 411-412.     In that case, we held that the child had a significant

connection to this Commonwealth at the time that the mother filed the

modification petition.

      Father argues that the foregoing conclusion in S.K.C. supports his

contention that the trial court erred in applying Section 5427 without a custody

modification pending in either county. He contends, “Absent a modification

petition, the trial court cannot determine hypotheticals related to inconvenient

                                     - 10 -
J-A24002-18



forum for a hypothetical . . . counsel and hypothetical unnamed witnesses and

an unfiled, future modification based on hypothetical evidence.” Father’s brief

at 27.

         In contrast to S.K.C., Father acknowledges that the trial court had

exclusive, continuing venue under Section 5422. Indeed, there is no dispute

that the children have a significant connection with York County pursuant to

Section 5422(a)(1). Therefore, we conclude that Father’s reliance on S.K.C.

is misplaced, and it does not control here.

         In addition, Father asserts that determining the proper forum without a

petition for modification pending is problematic because if Mother decides “not

to file a modification [petition] and relocate[s] once again, Dauphin County

would be left with ownership of a case which was never prosecuted in its

judicial district.” Father’s brief at 26. Further, he asserts that if Mother never

files a modification petition, then he “would be unduly inconvenienced by

traveling to a jurisdiction which never heard the case to . . . file a modification

or contempt petition.” Id.

         Finally, Father asserts that the plain language of Section 5427(b)(6)-

(8), supra, indicates that the trial court erred by entertaining Mother’s motion

to change venue without a pending custody modification petition. See Section

5427(b)(6)-(8) (emphasis added) (Before determining whether it is an

inconvenient forum, a court shall consider “(6) the nature and location of the

evidence required to resolve the pending litigation, including testimony of the


                                      - 11 -
J-A24002-18



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.”).

       Father’s assertions are flawed. The subject order provides that the trial

court “will relinquish venue of this case forthwith and as soon as something is

filed in some other county of Pennsylvania, presumably a county in which the

child resides.” Order, 4/19/18 (emphasis added). As such, the order reveals

that the trial court will not relinquish its venue if and until a custody filing

occurs in another county in Pennsylvania.7 We conclude that the trial court,

in effect, implemented a stay in accordance with Section 5427(c), which

provides:

       (c) Stay. — If a court of this Commonwealth determines that it
       is an inconvenient forum and that a court of another state is a
       more appropriate forum, it shall stay the proceedings upon
       condition that a child custody proceeding be promptly commenced
       in another designated state and may impose any other condition
       the court considers just and proper.

23 Pa.C.S. § 5427(c) (emphasis added).             Thus, to the extent Father’s

assertions are based on the belief that the trial court relinquished venue to

Dauphin County before Mother commenced a custody proceeding in that

county, they fail. Further, we conclude that Section 5427(c) clearly permits a

trial court to determine that it is an inconvenient forum and that another

____________________________________________


7 Mother testified that she has obtained new counsel in Dauphin County, who
is prepared to file a petition to modify the existing custody order in Dauphin
County. N.T., 3/23/18, at 16-17.

                                          - 12 -
J-A24002-18



venue is more appropriate prior to the commencement of a custody

proceeding in the other venue. Based on the foregoing, we reject Father’s

first and second claims on appeal.             See J.K., supra (reversing order that

denied the father’s petition to transfer venue from Chester County to

Montgomery County, when a petition to modify the existing custody order had

not been filed in either county, because Chester County no longer had

exclusive, continuing venue over the case).

       In his third issue, Father asserts that the trial court erred by ignoring

his motion to dismiss and his preliminary objections. In his motion to dismiss,

Father raised four assertions.8 The trial court responded as follows in its Rule

1925(a) opinion:

       Th[e] [trial] [c]ourt held oral argument to hear Father’s [m]otion
       [to dismiss], as well as Mother’s motion [to change venue].
       Perhaps Father expected a more pronounced segmenting of the
       proceedings into discreet, labeled portions. Father had ample
       chance to present his case, and in granting Mother’s motion[,] we
       denied Father’s [motion to dismiss].


____________________________________________


8 Father’s first assertion was that the trial court did not have subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(6). Father’s
second assertion was that the UCCJEA is inapplicable to “intrastate transfer of
jurisdiction between counties” because “all Pennsylvania counties have
jurisdiction over custody matters for children residing in the Commonwealth.”
Memorandum of Law in support of motion to dismiss, 3/12/18, ¶ 2. Father’s
third assertion was that Mother’s counsel committed fraud by stating to the
motions court that he attempted to confer with all interested parties pursuant
to a York County local rule. Father’s fourth assertion was Mother’s counsel
violated additional York County local rules involving failure to include a
proposed order and a certificate of concurrence with the motion to change
venue.

                                          - 13 -
J-A24002-18



Trial Court Opinion, 6/6/18, at 11. The record supports the court’s findings.

        On March 12, 2018, the trial court held an oral argument on the subject

motion to change the venue. Because Father did not agree to change the

venue, the court scheduled an evidentiary hearing for March 23, 2018. In

doing so, the court stated on the record in open court that it would decide

Father’s motion to dismiss during the same proceeding. N.T., 3/12/18, at 6.

Father, who acted pro se, testified during the evidentiary hearing on his own

behalf.    With respect to Father’s first assertion set forth in his motion to

dismiss, the trial court properly found that Father did not raise it during the

evidentiary hearing, and so it was waived.           With respect to his second

assertion, the trial court disposed of it during the hearing by explaining that

Section 5471 extends the provisions of the UCCJEA to intrastate custody

matters. With respect to his third assertion, the trial court stated that Mother’s

attorney made an offer of proof that he did not commit a fraud upon the

motions court, and Father stipulated to the offer of proof.9 With respect to his


____________________________________________


9   The following colloquy occurred on the record in open court:

        [MOTHER’S COUNSEL]: [I]n the motion[] that ha[s] been filed by
        [Father], it indicated my failure to follow the local rules in
        conferring and seeking concurrence in the notice of presentment.

        I have a staff member here to testify . . . [that] I conferred and
        sought concurrence. . . . I make you an offer of proof and ask if
        we can stipulate to that, if [Father] is willing to stipulate to that.




                                          - 14 -
J-A24002-18



final assertion, the trial court properly found that Father failed to raise it during

the hearing, and so it was waived.

       Regarding Father’s preliminary objections, the trial court explained as

follows.

       [Said] objections were not ruled upon because they were
       improperly filed. Preliminary Objections are governed by multiple
       York County Rules. Specifically, York County Rule 208.3(b)
       requires that Preliminary Objections be filed for disposition by
       one-judge, and requires that the moving or pleading party file a
       Praecipe for one-judge disposition.

                                           ...

       The procedures for preliminary objections were not followed, and
       no praecipe for disposition was ever filed.

Trial Court Opinion 6/6/18, at 11. We discern no abuse of discretion. Father’s

third issue fails.

       In his fourth issue, Father asserts that the trial court erred in reasoning,

“while the locations of the children and the party holding primary physical

custody is not dispositive, it can be a relevant factor. Here, [Mother] enjoys

primary physical custody. [Father’s] physical custody consists of every-other

weekend, for a total of 52 overnights per year. This imbalance suggests that


____________________________________________


       THE COURT: Are you willing to stipulate to that? . . .

       [FATHER]: Fair enough, Your Honor. . . .

N.T., 3/23/18, at 4-5.




                                          - 15 -
J-A24002-18



Dauphin, and not York, is the proper place of venue. . . .” Father’s brief at 40

(citing Trial Court Opinion, 5/10/18, at 8-9).10 Father asserts that the venue

of the parent with primary physical custody is not included in the Section

5427(b) factors. In addition, Father asserts that the court miscalculated the

number of overnights that he exercises in York County, which he asserts is

more than 52 per year.

       The trial court agreed with Father in its subsequent Rule 1925(a)

opinion. The court stated as follows.

       The children . . . maintain significant connections to York County,
       including exercising significant partial custody time with Father
       who has resided in York County since before the children’s birth.
       . . . The statute offers no equation for the number of nights spent
       in the county to determine proper venue. The [c]ourt erred . . .
       by ruling the children did not maintain significant connections in
       York County. . . .

       The proper measure is not whether the children have significant
       connection to York County. . . . Rather, the proper measure is an
       analysis of the eight factors listed in 23 Pa.C.S.A. § 5427, and any
       other relevant factors. We refer to our original 1925(a) [o]pinion
       for analysis of those factors and our finding that York County . . .
       is no longer a convenient forum for this custody case.

Trial Court Opinion, 6/6/18, at 7-8.

       As the trial court acknowledged, we agree that it erred in determining

that the children did not have a significant connection to York County pursuant

to Section 5422(a)(1), supra.         Nevertheless, we deem this error harmless


____________________________________________


10The trial court reasoned so in the Rule 1925(a) opinion that it issued before
Father filed his concise statement.

                                          - 16 -
J-A24002-18



insofar as the trial court applied the Section 5427(b) factors in concluding that

it is an inconvenient forum and that Dauphin County is a more appropriate

forum. Therefore, Father’s fourth issue fails.

         Turning to the Section 5427(b) factors, supra, Father argues in his fifth

issue that the trial court abused its discretion in basing its decision on Section

5427(b)(2) and (3). Specifically, he asserts, “Since the children reside in both

counties[,] and the distance between York and Harrisburg is inconsequential,

the court abused its discretion. . . .” Father’s brief at 45. We disagree.

         The court weighed the following factors in favor of York County being an

inconvenient forum, and that it is appropriate for Dauphin County to exercise

venue: Section 5427(b)(2), the length of time the children have resided

outside this venue; Section 5427(b)(3), the distance between the York and

Dauphin County courthouses; Section 5427(b)(6), the nature and location of

the evidence required to resolve the pending litigation.

         The testimonial evidence supports the following findings by that trial

court.     With respect to Section 5427(b)(2), the court found that Mother

relocated with the children to Dauphin County in June of 2015. With respect

to Section 5427(b)(3), the court found that the distance between the

courthouses is 25 miles, and that Father lives “‘about halfway between’” them.

Trial Court Opinion, 5/10/18, at 7. However, the court found that Mother and

the children “are much closer to the Dauphin County venue. . . .” Id. With

respect to Section 5427(b)(6), the court found as follows.


                                       - 17 -
J-A24002-18



      [Mother] testified that she and the children are located in Dauphin
      County. She also testified that the children’s school, doctor,
      dentist, orthodontist, church and child care center are all located
      in Dauphin County. Thus, it seems that the bulk of the evidence
      relevant to a custody dispute is located in Dauphin. [Father]
      testified that the children attended piano lessons in York County,
      and there was some dispute as to which county the children’s
      primary soccer field was in. We do not find this relevant as to the
      location of evidence, although we do recognize that it may be of
      some relevance in the larger context of a . . . custody case. . . .

Id. at 7-8 (citation to record omitted).

      The court weighed Section 5427(b)(8), the familiarity of the courts of

each venue with the facts and issues in the pending litigation, “only slightly”

in favor of York County as the appropriate venue. The court stated:

      [Mother] testified that the parties had been to [custody]
      conciliation, which occurred in York County, in 2016.       The
      operative custody order, as stated, was a stipulated order. . . .
      However, actual court involvement was slight.

Id. at 8. Indeed, the trial court took judicial notice on the record in open

court that the parties’ custody case in York County “has never been to trial.”

N.T., 3/23/18, at 12.

      The court found the following factors neutral insofar as neither party

presented relevant evidence: Section 5427(b)(4), the relative financial

circumstances of the parties; and Section 5427(b)(7), the ability of the court

of each venue to decide the issue expeditiously and the procedures necessary

to present the evidence. Finally, the court found Section 5427(b)(1), whether

domestic violence has occurred, and Section 5427(b)(5), any agreement of

the parties to the venue, not relevant in this case.


                                     - 18 -
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      Based on our careful review, we conclude that the testimonial evidence

supports the court’s findings with respect to the Section 5427(b) factors, and

its decision in light of those findings is reasonable. Therefore, Father’s fifth

issue fails.

      In his sixth issue, Father asserts that the trial court abused its discretion

in allowing Mother to plead forum non conveniens without a substantial

change in circumstances. Specifically, Father asserts that, in January of 2016,

while she resided in Dauphin County, Mother had filed in York County a

petition to modify the custody order, which resulted in the existing order. He

argues, “To approach the court two years later and plead forum non

conveniens, without a substantial change in circumstances, is tantamount to

frivolous litigation and smacks of vexatiousness against [Father.]” Father’s

brief at 48 (italics added). Father cites as applicable Pennsylvania Rule of Civil

Procedure 1006(d)(1), which provides:

      Rule 1006. Venue. Change of Venue

          (d)(1) For the convenience of parties and witnesses the court
          upon petition of any party may transfer an action to the
          appropriate court of any other county where the action could
          originally have been brought.

Pa.R.C.P. 1006(d)(1).

      Upon review, Father failed to raise this claim in his concise statement of

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

Father’s sixth issue is waived on appeal. See Dietrich v. Dietrich, 923 A.2d

461, 463 (Pa. Super. 2007) (stating that when an appellant filed a Rule

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1925(b) statement, any issues not raised in that statement are waived on

appeal).

       In his final issue, Father asserts that the trial court abused its discretion

in finding that it was a forum non conveniens pursuant to Pa.R.C.P.

1006(d)(1), supra. Specifically, he argues that Mother did not demonstrate

that York County is “oppressive or vexatious,” including the distance of 25

miles from her residence in Dauphin County to the York County courthouse.

       Father relies upon Cheeseman v. Lethal Exterminator, Inc., 701

A.2d 156 (Pa. 1997), wherein our Supreme Court concluded that the trial court

abused its discretion in transferring the civil litigation matters from

Philadelphia County to Bucks County, pursuant to Pa.R.C.P. 1006(d)(1),

supra.11 The Court concluded, “The trial court failed to hold the defendants

to their proper burdens of establishing, through detailed information in the

____________________________________________


11The Court discussed case precedent establishing that the plaintiff should
not be deprived of his original choice of forum:

       unless the defendant clearly adduces facts that ‘either (1)
       establish such oppressiveness and vexation to a defendant as to
       be out of all proportion to plaintiff’s convenience. . . or (2) make
       trial in the chosen forum inappropriate because of considerations
       affecting the court’s own private and public interest factors’ [but]
       unless the balance is strongly in favor of the defendant, the
       plaintiff’s choice of forum should rarely be disturbed.

Cheeseman, supra at 160 (emphasis in original) (citations and quotation

marks omitted).



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J-A24002-18



record, that the plaintiffs’ choice of forum is oppressive or vexatious to the

defendant.” Id. at 162. The Court explained:

      [T]he defendant may meet its burden of showing that the
      plaintiff’s choice of forum is vexatious to him by establishing with
      facts on the record that the plaintiff’s choice of forum was
      designed to harass the defendant, even at some inconvenience to
      the plaintiff himself. Alternatively, the defendant may meet his
      burden by establishing on the record that trial in the chosen forum
      is oppressive to him; for instance, that trial in another county
      would provide easier access to witnesses or other sources of proof,
      or to the ability to conduct a view of premises involved in the
      dispute. But, we stress that the defendant must show more than
      that the chosen forum is merely inconvenient to him.

Id. (citations omitted).

      Instantly, the trial court concluded in its Rule 1925(a) opinion:

      While [the oppressive or vexatious test] is appropriate when a
      defendant challenges a plaintiff’s chosen forum in civil litigation,
      our legislature has seen fit to codify a court’s analysis of
      inconvenient forum in child custody matters. As stated above,
      [the trial court] performed this analysis in compliance with 23
      Pa.C.S.A. § 5427.

Trial Court Opinion, 6/6/18, at 9. We agree. Indeed, Father has confused the

standard for transferring venue at the request of the defendant at the

beginning of a civil litigation action with the standard for transferring venue in

a child custody action. As such, Father’s reliance on Pa.R.C.P. 1006(d)(1), as

interpreted by our Supreme Court in Cheeseman, supra, is misplaced.

Father’s final issue fails. Because we discern no abuse of discretion by the

trial court in its application of 23 Pa.C.S. § 5427 in this case, we affirm the

subject order.



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J-A24002-18



     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2018




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