J.K. v. W.L.K.

102 A.3d 511, 2014 Pa. Super. 231, 2014 Pa. Super. LEXIS 3438
Superior Court of Pennsylvania·Decided October 14, 2014·Published·Cited by 25 cases

Opinion

OPINION BY

FORD ELLIOTT, P.J.E.:

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 8, 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. (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 [513] 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 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, 487 Pa. 223, 409 A.2d 321, 322 n. 3 (1979) (internal citations omitted); Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 1066, 1075 (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).

Pennsylvania adopted the UC-CJEA in 2004.3 The purpose of the UC-CJEA is to avoid jurisdictional competition, promote cooperation between courts, deter the abduction of children, avoid relit-igation 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 [514] 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:

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 timé 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.

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J.K. v. W.L.K., 102 A.3d 511, 2014 Pa. Super. 231, 2014 Pa. Super. LEXIS 3438 (Pa. Ct. App. 2014).

102 A.3d 511 (J.K. v. W.L.K.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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