166 A.3d 395
Pa. Super. Ct.2017Background
- Parents (Mother B.A.B. and Father J.J.B.) have litigated custody of three sons since 2006; initial Lebanon County custody order awarded Mother primary physical custody and shared legal custody.
- Multiple contempt findings against Mother and incidents (including a 2012 assault-related incident and PFA) led to subsequent custody modification proceedings; Father ultimately obtained primary legal custody in 2014 after remand.
- In 2016 Mother filed petitions in York County seeking modification and transfer of venue; York County also commenced dependency/truancy proceedings regarding the youngest child, C.M.B., and placed him in a Lebanon County residential program.
- Mother filed a petition in Lebanon County to transfer jurisdiction and venue to York County; Lebanon County judge (who had presided over the case for years) held a venue hearing and denied the transfer, citing UCCJEA inconvenient-forum analysis (23 Pa.C.S. §5427) and familiarity with the case.
- Mother appealed, arguing misapplication of UCCJEA (claiming York’s dependency gave it priority under §5426), insufficient evidence for denying transfer, improper reliance on her prior 2014 recusal request, and prejudice from allowing a telephonic witness.
- The Superior Court affirmed: waived the §5426 objection, held Lebanon County properly applied §5427 factors, found no abuse of discretion as to evidentiary weight or recusal consideration, and found telephonic testimony permissible under Pa.R.C.P. 1930.3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether York County had jurisdictional priority under UCCJEA §5426 because a dependency was pending | Mother: York dependency is a custody proceeding; York was "first in time" so Lebanon could not exercise jurisdiction | Father/Lebanon: Lebanon had existing continuing jurisdiction from prior custody determination; transfer analysis should follow §5427 | Waived and inapplicable; Lebanon retained continuing jurisdiction and correctly assessed inconvenient-forum factors under §5427 |
| Whether the trial court’s denial of venue transfer was supported by sufficient evidence / abuse of discretion | Mother: record and testimony were limited; York had handled many recent related matters and should be more convenient | Lebanon: court has long familiarity (many prior hearings), relevant witnesses in both counties, technology can mitigate inconvenience; Mother engaged in forum-shopping | No abuse of discretion; court reasonably weighed §5427 factors and emphasized its extensive familiarity with the case |
| Whether the court improperly considered Mother’s prior recusal request when denying transfer | Mother: using prior recusal request was manifestly unreasonable and prejudicial | Lebanon: recusal request evidenced change in attitude and supported finding of forum-shopping; relevant to whether parties agreed on jurisdiction (§5427 factor) | Permissible; court properly considered prior recusal as evidence bearing on forum-shopping and §5427(b)(5) |
| Whether permitting telephonic testimony prejudiced Mother | Mother: late request deprived her of time to prepare and limited cross-examination | Lebanon/Father: good cause shown (agency policy); telephonic testimony routinely allowed and cross-examination occurred | No abuse of discretion; telephonic testimony allowed under Pa.R.C.P.1930.3 and did not deny fair opportunity to cross-examine |
Key Cases Cited
- J.K. v. W.L.K., 102 A.3d 511 (Pa. Super. 2014) (abuse-of-discretion standard for forum/jurisdiction decisions and application of UCCJEA principles)
- Lucas v. Lucas, 882 A.2d 523 (Pa. Super. 2005) (standards on abuse of discretion review)
- A.D. v. M.A.B., 989 A.2d 32 (Pa. Super. 2010) (deference to trial court on credibility and weight in custody cases)
- S.K.C. v. J.L.C., 94 A.3d 402 (Pa. Super. 2014) (significant-connection analysis and credibility findings re: venue transfers)
- K.W.B. v. E.A.B., 698 A.2d 609 (Pa. Super. 1997) (detriment of transferring custody matters among different judges/fora)
- In re W.H., 25 A.3d 330 (Pa. Super. 2011) (appealability and procedural considerations for venue/jurisdiction orders)
- Galgon v. Martnick, 653 A.2d 44 (Pa. Super. 1995) (permitting appeal from order denying change of venue when no other matters pending)