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[U] T.C.S. v. A.S.

Superior Court of Pennsylvania

March 6, 2014

T.C.S. Appellant
v.
A.S. Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered October 14, 2013 In the Court of Common Pleas of Lebanon County Civil Division at No(s): 2013-20150

BEFORE: GANTMAN, P.J., OTT, J., and MUSMANNO, J.

MEMORANDUM

GANTMAN, P.J.

Appellant, T.C.S. ("Father") appeals from the order entered in the Lebanon County Court of Common Pleas, which sustained the preliminary objection of Appellee, A.S. ("Mother"), to the trial court's jurisdiction to determine custody as to one of the parties' two minor children. We affirm.

The relevant facts and procedural history of this appeal are as follows. Mother and Father are the parents of two minor children. Their first child, B.S., was born in Pennsylvania in 2007, and the parties married in 2008. In December 2012, when Mother was approximately three months' pregnant with the parties' second child, E.S., Father asked for a divorce. Shortly thereafter, Mother moved from Pennsylvania to her parents' home in California, taking B.S. with her. On February 28, 2013, Father filed a complaint for custody of B.S. On May 9, 2013, the trial court entered a temporary custody order for shared legal custody, primary physical custody to Mother, partial physical custody to Father, and physical custody of B.S. from June 25, 2013 to August 27, 2013, to Father.[1]

In June 2013, the parties' second child, E.S., was born in California. Father then filed an amended complaint in the Lebanon County Court of Common Pleas, for physical and legal custody of E.S. in addition to B.S. Mother filed preliminary objections, asserting the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act to make a custody determination with respect to E.S. Father asserted the trial court has and should exercise jurisdiction under the doctrine of forum non conveniens. The trial court sustained Mother's preliminary objections on October 21, 2013, dismissed Father's amended custody complaint, reinstated the original custody complaint solely as to B.S., and retained jurisdiction over that complaint.

Father timely filed a notice of appeal on October 28, 2013, but failed to file a contemporaneous statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On October 30, 2013, Father filed his Rule 1925 statement.

On appeal, Father presents the following issue for our review:

WHETHER [THE] TRIAL COURT ERRED WHEN IT [SUSTAINED] [MOTHER'S] PRELIMINARY OBJECTIONS AND DISMISSED [FATHER'S] AMENDED COMPLAINT?

(Father's Brief at 4).

In Father's sole issue, he argues Pennsylvania is a more convenient forum to determine custody with respect to both children, because the Lebanon County Court of Common Pleas has already commenced a custody action with respect to B.S.; the court's failure to exercise jurisdiction over E.S. goes against the interests of justice. Specifically, Father contends Lebanon County is the more appropriate forum, as contrasted with California, because of the existing custody action regarding B.S. Father asserts the idea of simultaneous proceedings in two courts goes against the interest of substantial justice. (Father's Brief at 12). He twice argues that Mother drafted "Preliminary Objects" solely to evade the interests of justice and to frustrate Father's ability to contact B.S. and E.S. Father avers that both parties agree custody should be determined by a single court but submits Lebanon County is the more logically convenient forum. Father concludes that this Court should remand for further review. We cannot agree.

This custody matter implicates jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). See 23 Pa.C.S.A. § 5401-5482. Our standard of review for decisions regarding application of the UCCJEA jurisdictional criteria is as follows:

A court's decision to exercise or decline jurisdiction [per the UCCJEA] 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.

Wagner v. Wagner, 887 A.2d 282, 285 (Pa.Super. 2005) (citation omitted).

Section 5421 of the UCCJEA provides, in pertinent part:
§ 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[2] 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 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;
(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or
(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).
(b) Exclusive jurisdictional basis.-Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth.

23 Pa.C.S.A. § 5421.[3]

Instantly, on appeal Father does not argue any jurisdictional basis in Section 5421 for a Pennsylvania court to enter a custody order with respect to E.S. Thus, Father waived any objection to the trial court's conclusion that it lacked statutory jurisdiction regarding E.S.

Moreover, E.S. was born in California and has lived there since birth. Under the UCCJEA, the home state of E.S. is California. See 23 Pa.C.S.A. § 5402. See also Cal. Fam. Code § 3402(g) (providing identical definition of "home state"). Father conceded at the hearing that, under the UCCJEA, California is E.S.' home state. (See N.T., 10/14/13, at 52.) Because Pennsylvania is not E.S.' home state, the trial court had no jurisdiction to make an initial child custody determination as to E.S. under the first of the four bases of jurisdiction provided by Section 5421(a). See 23 Pa.C.S.A. § 5421(a)(1).

Next, there is no suggestion in the record that either Mother or Father has filed a custody action in California. Consequently, no California court has declined to exercise jurisdiction as to E.S. Because a court of another state would have "home state" jurisdiction, and because no court of that state has declined to exercise jurisdiction, neither the second nor the third basis provided by Section 5421 applies; both grounds are contingent upon the court of the home state declining to exercise jurisdiction. See 23 Pa.C.S.A. § 5421(a)(2-3).

Section 5421(a)(4) confers jurisdiction only in the event that no court of any other state would have jurisdiction under any of the first three bases. Here, California is the home state for E.S. A court of that state would have jurisdiction to make an initial child custody determination. See Cal. Fam. Code § 3421(a)(1). As a result, the fourth basis for jurisdiction does not apply. In sum, no provision of Section 5421 is met, and the trial court correctly concluded that it had no jurisdiction to enter an initial child custody determination with respect to E.S.

Turning to Father's specific contentions on appeal, regarding the inconvenience of a custody action in California, Father appears to be under the impression that the trial court determined California is the more convenient forum for this action. That question, however, was not before the trial court. The only question before the trial court was Mother's preliminary objection on jurisdictional grounds: Whether the trial court has jurisdiction to make a child custody determination as to E.S.?

Nevertheless, in arguing that Pennsylvania is the appropriate forum for the amended custody action, Father relies on Section 5427 of the UCCJEA, which provides in pertinent part:

§ 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.

23 Pa.C.S.A. § 5427. The operation of the UCCJEA (both in Pennsylvania and in California), however, provides that, at this point, only a California court has jurisdiction to make a child custody determination as to E.S. For the same reasons, only a Pennsylvania court initially had jurisdiction to make a child custody determination as to B.S. The UCCJEA is designed to consolidate simultaneous proceedings in multiple jurisdictions and provides that courts may communicate with one another concerning parallel custody matters. See 23 Pa.C.S.A. § 5410. Section 5426 of the Pennsylvania UCCJEA and Section 3426 of the California UCCJEA, in fact, require courts to communicate with one another in the event of simultaneous proceedings in another jurisdiction. See 23 Pa.C.S.A. § 5426; Cal. Fam. Code § 3426.

If Mother or Father files a custody action in California, either a California court or the Pennsylvania court may then decline to exercise jurisdiction. See 23 Pa.C.S.A. § 5427; Cal Fam. Code § 3427. In doing so, the court declining jurisdiction can permit the other court to proceed in a single custody action concerning both B.S. and E.S. See 23 Pa.C.S.A. § 3421(a)(2). Here, Father's dispute as to Section 5427, concerning inconvenient forum, will not arise until an action is filed in a second forum. Father's contention is, at best, premature. Accordingly, for these reasons, we affirm the trial court's order.

Order affirmed.

Judgment Entered.


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