K.R. v. E.S.C., Sr. ( 2017 )


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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Docket Number: 612 EDA 2017

Filed Date: 10/2/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024