A.M.W. v. N.P. ( 2015 )

J. A34002/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
A.M.W., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1261 MDA 2014
:
N.P. :
Appeal from the Order Entered July 16, 2014,
in the Court of Common Pleas of Luzerne County
Civil Division at No. 2014-05853
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 12, 2015
A.M.W. (“Mother”) appeals the order of the Court of Common Pleas of
Luzerne County entered on July 16, 2014, in which the court dismissed
Mother’s complaint in custody and determined the State of Wisconsin shall
have exclusive jurisdiction of this custody matter until March 1, 2015, which
represents the date agreed to by the parties. We reverse.
Mother and N.P. (“Father”) were married in Pennsylvania on April 29,
2000, and subsequently moved to Wisconsin. They are the parents of
six minor children (“the Children”) born between 2002 and 2009. Divorce
proceedings were commenced in Wisconsin in 2010, and on March 1, 2013,
the Jefferson County, Wisconsin, Circuit Court entered Findings of Fact,
Conclusions of Law, and Judgment in Divorce. Also on March 1, 2013, the
parties entered into a partial marital settlement agreement on legal custody
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and physical placement. For our purposes, the pertinent sections of the
agreement are as follows:
6. REVIEW OF PLACEMENT WITHIN 2 YEARS AND
VENUE
Neil shall notify Annie by April 30, 2013 if he
intends to move with the children prior to the
commencement of the 2013-2014 school year.
In the event Annie moves to the state where
the children reside within 2 years of entry of
this initial order for custody and placement,
the parties agree to review the physical
placement schedule in using the standard set
forth in Wis. Stats. §767.451(1)(b) thereby
waiving the higher standard set forth in Wis.
Stats. §767.451(1)(a).
The parties further agree to waive the
provisions of Wisc. Stats. sec. 822.22 and sec.
822.27 that would otherwise permit child
custody/placement jurisdiction to transfer to
Ohio or another state under the UCCJEA upon
Annie’s move to Ohio or another state. The
parties stipulate and agree that the
Jefferson County, WI Circuit Court shall
retain continuing and exclusive
jurisdiction over the determination of all
child custody and physical placement
disputes until the youngest minor child of
the parties reached [sic] the age of 18.
The parties further stipulate and agree
that the Circuit Court of Jefferson County,
WI shall continue to be a convenient
forum to resolve all disputes between the
parties regarding the legal custody and
physical placement of their children
notwithstanding either party’s residence
in any state or country other than
Wisconsin.
R.R. at 40a (emphasis added).
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Approximately 14 months prior to the above agreement, Father moved
from Wisconsin to Kenton, Ohio, with the Children. Father moved to
Pennsylvania with the Children in July 2013 and currently resides in Luzerne
County. Mother moved to Pennsylvania in September 2013 and currently
resides in Lackawanna County.
On May 6, 2014, Mother filed a complaint for custody in Luzerne
County. Father filed an emergency petition for special relief seeking to
dismiss Mother’s custody complaint on June 4, 2013. A hearing was held in
Luzerne County on June 17, 2014, before the Honorable Jennifer L. Rogers.
Judge William F. Hue of the Circuit Court of Jefferson County, Wisconsin,
participated by telephone. Judge Hue stated he was not aware of anything
currently open in his file. (Notes of testimony, 6/17/14 at 3.) After a short
discussion, and both judges agreeing that factually Luzerne County was the
more convenient forum, the issue was narrowed down to whether Wisconsin
continued to have continuing exclusive jurisdiction because the parties
stipulated to that in their judgment of divorce. (Id. at 7.) At the conclusion
of the hearing, it was decided that the parties would brief this issue, and
another hearing would take place.
On July 15, 2014, a second hearing occurred at which Judge Hue again
participated by telephone. Judge Rogers stated she found Pennsylvania to
be the more convenient forum. (Notes of testimony, 7/15/14 at 6-7.)
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Judge Hue stated that while Pennsylvania seems to be the more convenient
forum, he believed this case had a broader issue. He explained:
What disturbs me broadly about this is we have a
general repose statute in Wisconsin which is a 2-year
cooling off period that we have before we start to
relitigate cases concerning custody and placement.
We’ve got a general understanding in Wisconsin that
we follow the federal laws that pertain to the children
moving, that there was some contemplation of the
parties moving to a different state and an agreement
here in Wisconsin that Wisconsin would have
exclusive jurisdiction over these issues and that any
matters concerning the children’s custody and
placement would occur in Wisconsin even within that
2-year period. So we’ve got sort of this public policy
idea that we’ve got a period of repose that’s been
superseded by the agreement of the parties at this
time. The agreement of the parties has been
superseded by actions of a party to call into question
custody and placement. There appears to be some
presentations that a trade for that deviation of public
policy is something that the Court could have
ordered on its own in that the parties agreed that the
Court in Wisconsin would have exclusive jurisdiction
over those issues and if within two years, for
example, the parties wanted to relitigate custody
and placement they would come back to Wisconsin
and do it.
Id. at 8-10.
At the conclusion of the hearing, the judges agreed that the two-year
cooling off period would be recognized, and Wisconsin would be the
appropriate forum up to March 2015 without prejudice to any party filing in
another state after that date. An order was entered dismissing Mother’s
custody complaint and finding Wisconsin had exclusive jurisdiction of this
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custody matter until March 1, 2015.1 Mother filed this timely appeal and
raises the following issue:
Whether the lower court erred by relinquishing
jurisdiction to the state of Wisconsin in violation of
the UCCJEA, 23 Pa. C.S.A. §5401 et seq., as
Pennsylvania is the more convenient forum for
current and future custody litigation and the parties’
agreement is merely one of eight factors to be
considered in determining the more convenient
forum pursuant to 23 Pa. C.S.A. §5427?
Mother’s brief at 2.
Our standard of review for decisions involving jurisdiction is as follows:
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.
Wagner v. Wagner, 887 A.2d 282, 285 (Pa.Super. 2005) (citation
omitted).
1
In its statement in lieu of a Rule 1925(a) opinion filed August 5, 2014, the
trial court found Mother’s appeal interlocutory and suggested quashal. We
disagree as the trial court’s order dismissing Mother’s complaint for custody
effectively ended litigation; thus, it was a final order. See Parker v.
MacDonald, 496 A.2d 1244, 1247 (Pa.Super. 1985) (a final order has been
defined as one which effectively ends litigation or disposes of the entire
case).
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There is no question that the Uniform Child Custody Jurisdiction
Enforcement Act (“UCCJEA”) is applicable to this matter. Both Pennsylvania
and Wisconsin have adopted it. There is no dispute that the parties and
Children have resided in Pennsylvania for more than six months prior to
Mother filing her complaint in custody. Having determined that Pennsylvania
has subject matter jurisdiction, we turn to Section 5427 of the UCCJEA. A
trial court may decline to exercise jurisdiction over a child custody dispute if
it determines it is an inconvenient forum. Under Section 5427, a trial court
must consider the following when determining if it is an inconvenient forum:
§ 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.
(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
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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.A. § 5427. Wisconsin has adopted the identical provision of the
UCCJEA at Wisc.Stat.Sec. 822.27 with the exception of the insertion of the
word “state” in place of the word “Commonwealth.”
The record indicates that both courts agreed that the relevant issue
was whether the parties, by stipulation, could confer exclusive jurisdiction
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for future custody disputes on Wisconsin to the exclusion of any other
jurisdiction where the parties and the Children were located. The only factor
above that favors Wisconsin is factor number 5. An analysis of the other
factors follows.
The first factor concerns domestic violence and which state could best
protect the parties and Children. We are not aware that domestic violence
was an issue in this matter. As both parties and Children now reside in
Pennsylvania, it would appear the courts of Pennsylvania would be called
upon to protect against domestic violence. Factor two concerns the length
of time the Children have resided outside this Commonwealth. Father and
Children have been living in Pennsylvania since July 2013. They previously
resided in Ohio and before that in Wisconsin. Factor three concerns the
distance between courts. That factor favors Pennsylvania, as the distance
between Wisconsin and the eastern part of Pennsylvania is substantial.
Factor four concerns the financial circumstances of the parties. The only
evidence in the record relating to factor four is Mother pays Father $1,000
per month for child support. (Findings of fact, etc. at 7; RR(a) at 29.)
Regarding factor six, the nature and location of evidence required to resolve
pending litigation, including the testimony of the Children, favor
Pennsylvania. The seventh factor favors Pennsylvania because all parties
reside in the Commonwealth, and Pennsylvania courts will possess the ability
to decide any issues expeditiously. Factor eight concerns the familiarity of
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the court of each state with the facts and issues in the pending litigation.
While Wisconsin initially dealt with this matter, the fact that all parties
currently reside in Pennsylvania favors Pennsylvania.
Based on the above, we believe the parties’ forum selection clause is
outweighed by the other forum factors that favor Pennsylvania. See A.D. v.
M.A.B., 989 A.2d 32, 37-38 (Pa.Super. 2010) (the parties’ forum selection
clause choosing Pennsylvania was outweighed by an evaluation of each
Section 5427 factor which favored the State of Michigan). Recently, in
S.K.C. v. J.L.C., 94 A.3d 402, 409-410 (Pa.Super. 2014), this court
discussed forum selection clauses and Section 5427:
Although in adopting section 5427 the General
Assembly has declared that a forum selection clause
is one of eight factors to be considered when
determining if a forum is inconvenient, we discern no
basis within the legislative scheme of the UCCJEA
upon which we could conclude that a forum selection
clause may be regarded as dispositive in establishing
jurisdiction under section 5422. Our conclusion is
also consistent with the law of this Commonwealth
that an “agreement of the parties will [not] confer
jurisdiction where it otherwise would not exist.” In
re Estate of Cantor, 424 Pa.Super. 24, 621 A.2d
1021, 1022 (1993) (citation omitted); Transp.
Servs., Inc. v. Underground Storage Tank
Indemnification Bd., 67 A.3d 142, 152 n. 15
(Pa.Cmwlth.2013) (citation omitted).
Allowing parents to confer subject matter jurisdiction
on the courts of this Commonwealth in child custody
disputes via a forum selection clause would be
antithetical to the purposes of the UCCJEA. The
UCCJEA has been adopted by every state in this
country, other than Massachusetts, in order to
permit the best situated court to exercise jurisdiction
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in child custody matters. Under the trial court’s
view, the child and one parent could be residing in
Alaska while the other parent could be residing in
Florida and only Pennsylvania courts would have
exclusive, continuing jurisdiction if they had entered
into a forum selection clause which so stipulated.
Our review of the UCCJEA’s eight forum factors convinces us that
Wisconsin is an inconvenient forum, and the factors favor Pennsylvania as
the convenient forum. The trial court’s reliance on the Wisconsin two-year
cooling off period was in error.
Accordingly, we reverse the order of the trial court and reinstate
Mother’s complaint in custody. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2015
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