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S.K.C. v. J.L.C.

Superior Court of Pennsylvania

June 19, 2014

S.K.C., Appellee
v.
J.L.C., Appellant

Argued April 1, 2014

Page 403

Appeal from the Order of the Court of Common Pleas, Mercer County, Civil Division, No(s): 2011-4008. Before DOBSON, J.

Bradley G. Olson, Jr., Ellwood City, for appellant.

Joann M. Jofery, Sharon, for appellee.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

OPINION

Page 404

OLSON, J.

J.L.C. (" Father" ) appeals from the order of the Court of Common Pleas of Mercer County (" trial court" ) entered on December 5, 2012. The trial court concluded that it retained exclusive, continuing jurisdiction over a dispute between Father and S.K.C. (" Mother" ) regarding the custody of K.L.C. (" Child" ). The trial court also determined that Mercer County was not an inconvenient forum for the child custody dispute. We affirm.

The factual background of this case is as follows. Child was born in May of 2000. From her birth until May 2012, Child's primary residence was in Mercer County. During the later portion of that time, however, Father, Mother, and Child spent several months during each year in Moffet, Canada (in the province of Quebec) where Father and Mother managed a hunting lodge. From May 2012 to the present,

Page 405

Child has resided in Moffet with Father. Father is currently employed while Mother is unemployed and resides in Mercer County. Moffet is approximately a ten hour drive from Mercer County.

Child attended first through fourth grades in the Commodore Perry School District in Mercer County. She attended Pennsylvania Cyber Charter School for fifth and sixth grades. In or around August 2012, the Pennsylvania Cyber Charter School determined that Child was no longer residing in Pennsylvania and did not permit her to re-enroll for seventh grade. Child has since been attending school in Quebec.

The procedural history of this case is as follows. On November 30, 2011, Mother filed a complaint in divorce which included a complaint for custody. At all relevant times, the divorce proceeding was still ongoing in Mercer County and there was no custody or divorce proceeding pending in any other court, either in the United States or Canada. On June 14, 2012, the trial court entered a consent custody order that was drafted by counsel for Father. The consent order granted Father primary physical custody of Child and gave Mother physical custody the first week of each month and certain holidays. The order also included a forum selection clause that chose the trial court as the proper venue for any further custody dispute.

On October 22, 2012, Mother filed a petition to modify the stipulated child custody order. On October 31, 2012, Father filed a motion requesting that the trial court relinquish jurisdiction of the parties' custody dispute. Father sought to have the case heard in the courts of Quebec.[1] The trial court denied the motion on December 5, 2012. Father filed a notice of appeal from that order which this Court quashed as premature. S.K.C. v. J.L.C., 15 WDA 2013 (Feb. 7, 2013) ( per curiam ). On November 7, 2013, the trial court amended its order of December 5, 2012 and certified that a substantial issue of venue or jurisdiction is present. See Pa.R.A.P. 311(b)(2). This timely appeal followed.[2]

Father presents two issues for our review:[3]

1. Whether the trial court abused its discretion and committed [an] error of law when it denied [Father's] [m]otion to [r]elinquish [j]urisdiction pursuant to 23 Pa.C.S.A. § 5422?
2. Whether the trial court abused its discretion and committed [an] error of law when it denied [Father's] [m]otion to [r]elinquish [j]urisdiction pursuant to 23 Pa.C.S.A. § 5427?

Father's Brief at 3.

Both of Father's issues require us to interpret a statute, the Uniform Child Custody Jurisdiction and Enforcement Act (" UCCJEA" ).[4] As such, we are

Page 406

guided by the Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq. See Commonwealth v. Raban, 85 A.3d 467, 475 (Pa. 2014). " [O]ur paramount interpretative task is to give effect to the intent of our General Assembly in enacting the" UCCJEA. Commonwealth v. Warren, 2014 PA Super 12, 84 A.3d 1092, 1095 (Pa. Super. 2014) (citation omitted). When interpreting a statute, " [o]fficial comments may be consulted in the construction of the original provisions of the statute if the comment was published or generally available prior to the consideration of the statute by the legislature." Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961, 966 (Pa. Super. 1994), appeal denied, 541 Pa. 632, 663 A.2d 685 (Pa. 1995). " Statutes uniform with those of other states shall be interpreted and construed to effect their general purpose to make uniform the laws of those states which enact them." Co. Image Knitware, Ltd. v. Mothers Work, Inc., 2006 PA Super. 272, 909 A.2d 324, 333 n.9 (Pa. Super. 2006), appeal denied, 593 Pa. 733, 929 A.2d 645 (Pa. 2007), quoting 1 Pa.C.S.A. § 1927.

Father first contends that the trial court lacked subject matter jurisdiction because it did not have " exclusive, continuing jurisdiction" to consider the custody matter. See Father's Brief at 9-15. Before we address the merits of Father's claims, we begin with a discussion of the appropriate standard and scope of review when considering an appeal from a decision rendered under 23 Pa.C.S.A. § 5422, which establishes the trial court's exclusive, continuing jurisdiction to make a child custody determination. It is hornbook law that " as a pure question of law, the standard of review in determining whether a [trial] court has subject matter jurisdiction is de novo and the scope of review is plenary." Beneficial Consumer Disc. Co. v. Vukman, 77 A.3d 547, 550 (Pa. 2013) (citation omitted). However, when discussing our standard of review in other cases arising under section 5422, we have often stated that " this Court will not disturb a decision to exercise or decline jurisdiction absent an abuse of discretion by the trial court." Billhime v. Billhime, 2008 PA Super. 121, 952 A.2d 1174, 1176 (Pa. Super. 2008) (citation omitted).

This language is accurate in that, 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. However, we have imprecisely quoted this language even when the question was not whether the trial court properly exercised (or declined to exercise) jurisdiction, but rather the question was whether the trial court

Page 407

actually possessed subject matter jurisdiction.

The UCCJEA establishes subject matter jurisdiction before the courts of common pleas in child custody matters under various subsections of Title 23, including 23 Pa.C.S.A. § § 5421 [5] and 5422.[6] As the provision quoted below makes clear, section 5421 identifies the circumstances under which a court of common pleas has jurisdiction to make an initial child custody determination. Pursuant to section 5421(b), section 5421(a) is the exclusive jurisdictional basis for making an initial child custody determination by a court of this Commonwealth.

Section 5422(a) identifies the circumstances under which a court which has

Page 408

made a child custody determination under section 5421 or section 5423 [7] retains exclusive, continuing jurisdiction over that order. Under section 5422(a), a court which has made a child custody determination under section 5421 or section 5423 retains exclusive, continuing jurisdiction over that determination until the elements of section 5422(a)(1) or section 5422(a)(2) have been satisfied. Section 5422(b) states that if the trial court has made a child custody determination, but no longer has exclusive, continuing jurisdiction under section 5422(a), it may modify that determination if it has jurisdiction to make an initial custody determination under section 5421. From our review of the statutory language, it is evident that a section 5422 determination does not involve a trial court's decision regarding whether to exercise jurisdiction that has been established. Rather, a section 5422 determination implicates the subject matter jurisdiction of the trial court.

We recognized this distinction previously in B.J.D. v. D.L.C., 2011 PA Super. 74, 19 A.3d 1081 (Pa. Super. 2011). In B.J.D., we applied a de novo standard of review when examining an order to stay custody proceedings in Pennsylvania. Id. at 1082. In B.J.D., the trial court stayed custody litigation in Pennsylvania after the child and both parents relocated outside the Commonwealth and further directed the parties to pursue their custody action in Oklahoma. We held that the trial court did not have exclusive, continuing jurisdiction under section 5422. Therefore, it could not direct the parties to litigate their custody dispute in Oklahoma. We stated that it was " an appeal from an order to transfer custody jurisdiction, not an appeal from an order to exercise or decline jurisdiction, which would be subject to an abuse of discretion standard." Id. at 1082 n.1 (citation omitted). Because in this case Father challenges the trial court's jurisdiction under section 5422, we agree with the standard and scope of review as set forth in B.J.D. Therefore, we hold that a trial court's decision that it possesses subject matter jurisdiction under section 5422 is purely a question of law. As such, our standard of review is de novo and our scope of review is plenary.

Turning to the merits of Father's first issue, Father contends that intervening changes such as his and Child's relocation to Canada and Child's enrollment in a Canadian school divested the trial court of exclusive, continuing jurisdiction under section 5422(a)(1). He argues that Child's presence in Canada made her connection with this Commonwealth insignificant. He further argues that substantial evidence relating to the child custody proceedings no longer exists in this Commonwealth. The trial court denied relief and held, relying upon our decision in A.D. v. M.A.B., ...


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