J-A07030-15

2015 PA Super 125

A.L.-S. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

V.

B.S.

Appellee No. 1808 WDA 2014

Appeal from the Order October 20, 2014

In the Court of Common Pleas of Lawrence County

Civil Division at No(s): 10487 OF 2014, C.A.

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

OPINION BY LAZARUS, J.: FILED MAY 27, 2015

A.L.-S. (“Mother”) appeals from the October 20, 2014 order, entered 

in the Court of Common Pleas of Lawrence County, denying her petition for 

special relief and granting B.S.’s (“Father”) request for counsel fees. In her 

petition, Mother requested the Lawrence County Court exercise jurisdiction 

in this custody matter. After our review, we reverse and remand.

Mother and Father are the parents of two minor children, W.S., born in 

January 2007, and C.S., born in June 2008. On November 1, 2013, the 

Cuyahoga County Court of Common Pleas in Ohio entered an order granting 

Father sole legal custody of the children. The Ohio court’s order awarded 

the parties shared physical custody of W.S., and it awarded Father primary 

physical custody of C.S., subject to Mother’s partial custody rights.1 The 

____________________________________________

1 The Ohio court’s order was not appealed.
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older child, W.S., is non-verbal/autistic, has moderate to severe disabilities, 

and requires constant supervision. Both parents are physicians. Father is 

an orthopedic surgeon, and Mother is an OB/GYN.

The parties had resided in Cleveland, Ohio. When they separated, 

Father moved to Pennsylvania to live with his parents. The parties were 

divorced in 2012, and Mother moved to Pennsylvania in July 2013, as 

contemplated by their Shared Parenting Plan.2 Mother filed a motion to 

register the foreign custody order in Lawrence County, Pennsylvania, and on 

May 8, 2014, the trial court granted that motion.3 See 23 Pa.C.S.A. § 5445. 

Mother simultaneously filed a motion to modify custody, claiming the Ohio 

court inappropriately granted Father sole legal custody of the children and 

inappropriately granted the parties shared physical custody of W.S. Mother 

claimed the Lawrence County Court was the proper venue for her to pursue 

____________________________________________

2 The Shared Parenting Plan contemplated that Mother would ultimately 

move to Pennsylvania to be within 35 miles of Father’s residence so that the 

parties could co-parent. 

3 The Honorable John W. Hodge entered the following order: 

AND NOW, this 8th day of May, 2014, upon consideration of the 

Motion to Register Custody Order filed by the Plaintiff, it is 

hereby ORDERED that the Order of Court issued by the 

Honorable Judge Diane M. Palos of the Court of Common Pleas of 

Cuyahoga County, Ohio, at Case No. DR 11338008 shall be

registered with the Office of the Prothonotary of Lawrence 

County, Pennsylvania at the above term and number [Case No. 

10487 of 2014]. 
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custody as both parties currently live in Lawrence County. See Motion to 

Modify Custody, 5/9/14. 

Father opposed this motion, filing a Motion to Decline Jurisdiction 

under the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”), 

23 Pa.C.S.A. § 5423,4on June 4, 2014.

The trial court entered an order declining jurisdiction and directing that 

the order of the Cuyahoga County Court in Ohio remain registered in 

Lawrence County and enforceable as an order of the Lawrence County Court. 

The Lawrence County Court concluded it would not assume jurisdiction over 

the case until the Cuyahoga County Court issued an order that relinquished 

jurisdiction.5 See Order, 6/4/14.

On June 24, 2014, Mother filed a petition for special relief. Mother 

averred that a custody exchange had occurred between the parties’ nannies, 

and that Mother’s nanny observed W.S. limping and, after examining his 

foot, noticed swelling and bruising on his foot as well as his leg. Subsequent 

____________________________________________

4 The National Conference of Commissioners on Uniform State Laws 

promulgated the UCCJEA, 23 Pa.C.S.A. §§ 5401-5482, in 1997, and became 

effective in Pennsylvania in 2004. The UCCJEA replaced the Uniform Child 

Custody Jurisdiction Act (UCCJA), 23 Pa.C.SA. §§ 5341-5366 (repealed 

2004). The UCCJEA reenacts many provisions of the UCCJA. 

5 Mother avers that she has filed a petition with the Cuyahoga County Court 

of Common Pleas requesting it relinquish jurisdiction of the custody action. 

At present, there is no indication of a disposition of that petition. See

Petition for Special Relief, 10/21/14, at ¶ 23. 
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x-rays revealed a fracture to the child’s foot, which required casting. See

Petition for Special Relief, 6/24/14, at ¶¶ 6-11. Mother sought primary 

custody pending a full hearing on custody. Id. at ¶¶ 17.6

Father filed an answer and petition for special relief, seeking counsel 

fees based on Mother’s “vexatious” conduct. Specifically, Father averred: 

“Mother’s conduct is ‘vexatious’ because her Petition for Modification directly 

contradicts the June 4, 2014 Order of Court [which declined jurisdiction].” 

The trial court denied Mother’s motion to modify custody, denied 

Mother’s petition for special relief, and denied Father’s request for counsel 

fees. See Order, 6/24/14. 

On October 21, 2014, Mother filed another petition for special relief, 

claiming W.S. had returned home to her with bruises on his buttocks and 

thigh. Mother also reiterated and requested the court exercise emergency 

jurisdiction pursuant to 23 Pa.C.S.A. § 5424.7

____________________________________________

6 Mother alleged that W.S.’s inability to explain how he was hurt, as well as 

the fact that Father, an orthopedic specialist, did not recognize that his son 

had a fractured foot, heightened her concerns. 

 

7 23 Pa.C.S.A. 5424 provides, in part: 

(a) General rule.--A court of this Commonwealth has 

temporary emergency jurisdiction if the child is present in this 

Commonwealth and the child 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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Father filed an answer to Mother’s petition, as well as a petition for 

counsel fees. Father alleged Mother’s motions were both vexatious and 

repetitive. See Answer, 10/21/14, at ¶¶ 24-46. That same day, the trial 

court entered an order denying Mother’s petition and granting Father’s 

request for counsel fees. See 23 Pa.C.S.A. § 5339; cf. Chen v. Saidi, 100 

A.3d 587 (Pa. Super. 2014). The order stated that 

the facts and circumstances alleged in the petition do not 

rise to the level necessary for this court to exercise 

emergency jurisdiction pursuant to 23 Pa.C.S.A § 5424, 

this court having previously on two occasions declined to 

accept jurisdiction under the UCCJEA, in that the Court of 

Common Pleas of Cuyahoga County, Ohio, has not 

relinquished jurisdiction to this Court.

Trial Court Order, 10/20/14. 

Mother appealed. She raises the following issues for our review: 

1. Whether the trial court committed reversible error by 

failing to accept jurisdiction pursuant to 23 Pa.C.S. § 

5423 as the Lawrence County Court of Common Pleas 

has jurisdiction to make an initial determination under 

section 5421 and there is no dispute that the parties 

reside in Lawrence County, Pennsylvania, and not in 

Ohio? 

2. Whether the court committed reversible error and 

abused its discretion by failing to accept jurisdiction 

pursuant to section 5423 on the grounds that the Court 

of Common Pleas of Cuyahoga County, Ohio, has not 

relinquished jurisdiction as the UCCJEA does not require 

the state of original jurisdiction to relinquish custody 

[sic] before the courts of this Commonwealth can 

accept jurisdiction so long as the requirements of 

section 5423 are met. 

3. Whether the trial court committed reversible error and 

abused its discretion by summarily declining to exercise 

emergency jurisdiction pursuant to section 5424, as 
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requested within Mother’s petition for special relief, 

without conducting a hearing on the matter and 

evaluating the merits of the petition? 

4. Whether the trial court committed reversible error by 

simply concluding that “the facts and circumstances 

alleged in [Mother’s] Petition [for Special Relief] do not 

rise to the level necessary for this court to exercise 

emergency jurisdiction pursuant to section 5424” 

without addressing the claims of potential neglect or 

abuse that were contained within Mother’s petition and 

explaining why such circumstances do not meet the 

requirements for emergency jurisdiction? 

5. Whether the trial court committed reversible error and 

abused its discretion by granting Father’s petition for 

counsel fees when the presentation of Father’s request 

for such fees was in violation of the Lawrence County 

local rules of procedure, L208.3(a)(7), which requires 

litigants to provide the opposing party with at least two 

(2) days advance notice of their intent to present a 

motion and Father failed to provide any advance notice 

to Mother of his intent to present such request and 

allow Mother a meaningful opportunity to respond? 

6. Whether the trial court committed reversible error and 

abused its discretion by granting Father’s petition for 

counsel fees by declaring that Mother engaged in 

repetitive filings pursuant to section 5339 when the 

facts and circumstances demonstrate that Mother’s 

filings were not repetitive but instead based upon 

separate and distinct issues relative to the safety of the 

minor child in question?

7. Whether the trial court erred or abused its discretion by 

granting Father’s petition for counsel fees pursuant to 

section 5339, which is a provision established under the 

Child Custody Act and not any provision of the UCCJEA, 

thereby selectively accepting jurisdiction and enforcing 

certain provisions of the Child Custody Act while 

declining to accept and enforce the remainder of its 

provisions?
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In evaluating whether a court of this Commonwealth may modify a 

custody determination made by a court of another state, we look to the 

UCCJEA. The purpose of the UCCJEA is to avoid jurisdictional competition, 

promote cooperation between courts, deter the abduction of children, avoid 

relitigating custody decisions of other states, and facilitate the enforcement 

of custody orders of other states. J.K. v. W.L.K., 102 A.3d 511 (Pa. Super. 

2014). 

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) (citation omitted). 

See also J.K., supra; J.M.R. v. J.M., 1 A.3d 902, 908 (Pa. Super. 2010). 

Based on our careful review of the record, we conclude that the trial court 

erred and that its decision to grant Father’s motion to decline jurisdiction 

must be reversed. Additionally, we conclude the court’s order granting 

Father’s request for counsel fees must also be reversed. 

Mother argues in her first issue that the trial court erred in refusing to 

exercise jurisdiction over the instant custody dispute. The trial court 

engaged in the following analysis: 

In evaluating whether a court of this Commonwealth may modify 

a custody determination made by a court of another state, the 

UCCJEA provides the following relevant provision:
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§ 5423. Jurisdiction to modify determination 

Except as otherwise provided in section 5424 (relating to 

temporary emergency jurisdiction), a court of this 

Commonwealth may not modify a child custody 

determination made by a court of another state unless a 

court of this Commonwealth has jurisdiction to make an 

initial determination under section 5421 (a)(1) or (2) 

(relating to initial child custody jurisdiction) and:

(1) the court of the other state determines it no longer 

has exclusive, continuing jurisdiction under section 

5422 (relating to exclusive, continuing jurisdiction) or 

that a court of this Commonwealth would be a more 

convenient forum under section 5427 (relating to 

inconvenient forum); or

(2) a court of this Commonwealth or a court of the 

other state determines that the child, the child's 

parents and any person acting as a parent do not 

presently reside in the other state.

23 Pa.C.S.A. § 5423 [emphasis ours]. 

Therefore, pursuant to 23 Pa.C.S. §5423, this Court first 

examined whether there is jurisdiction over the instant custody 

matter pursuant to 23 Pa.C.S. §5421. Section 5421 provides:

§ 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 

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;
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(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). 

23 Pa.C.S. § 5421(a) [emphasis ours].

[The trial court concluded:]

As indicated from a strict application of Sections 5423 and 5421, 

this Court is unable to assume jurisdiction over the instant case 

unless and until all courts having jurisdiction have declined to 

exercise jurisdiction on the ground that a court of this 

Commonwealth is the more appropriate forum. To date, the 

Court of Common Pleas of Cuyahoga County, Ohio has not 

issued an Order declining jurisdiction. Consequently this Court 

declined to assume jurisdiction of this case.

Trial Court Opinion, 11/14/2014, at 5-7. 
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We disagree with the trial court’s interpretation. We read section 5421 

as stating that a court of this Commonwealth has jurisdiction to make an 

initial child custody determination if a court of another state (here, the Ohio 

court) does not have jurisdiction under the home state rule. Section 5402 of 

the UCCJEA defines “home state” as:

The State in which a child lived with a parent or a person acting 

as a parent for at least six consecutive months immediately 

before the commencement of a child custody proceeding. In the 

case of a child six months of age or younger, the term means 

the state in which the child lived from birth with any of the 

persons mentioned. A period of temporary absence of any of the 

mentioned persons is part of the period.

23 Pa.C.S.A. § 5402. The language of the statute is clear and 

unambiguous— a child’s home state is established if the child “lived with a 

parent” in that state for six consecutive months prior to the filing of a 

custody matter. Id. The parties acknowledge, and the court was aware, 

that both parties and the children currently reside in Lawrence County, 

Pennsylvania, that the parties work in Pennsylvania, that the children attend 

school in Pennsylvania, and that Mother resided in Pennsylvania for six 

months prior to filing her motion to modify custody.8 Ohio, therefore, does 

not have jurisdiction under the home state rule. The parents and minor 

____________________________________________

8 The Honorable Diane M. Palos of the Cuyahoga County Court in Ohio 

presided over the initial custody hearing in this case. Judge Palos 

acknowledged in her opinion and custody order of October 31, 2103 that 

Mother and Father had established their residences in Pennsylvania. See

Opinion and Order, 10/31/13. 
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children have a significant connection with this Commonwealth other than 

mere physical presence, and substantial evidence is available in this 

Commonwealth concerning the children’s care, protection, and personal 

relationships. 23 Pa.C.S.A. § 5421(a)(2). The trial court’s analysis applies 

only section 5423(1), and disregards section 5423(2), despite its disjunctive 

language.

Further, the UCCJEA prioritizes home state jurisdiction. 23 Pa.C.S.A. § 

5421. There is a clear preference under the UCCJEA for the “home state” of 

the child to take jurisdiction over a modification request.9 See T.A.M. v. 

S.L.M., 104 A.3d 30 (Pa. Super. 2014) (trial court had jurisdiction to modify 

custody determination made by Tennessee court granting maternal 

grandmother custody of child; child had been living with maternal 

grandmother in Pennsylvania for three years, Pennsylvania was home state 

under UCCJEA, no parent or person acting as parent still resided in 

Tennessee, and mother had not been heard from in three years); see also 

R.M. v. J.S., 20 A.3d 496 (Pa. Super. 2011) (child’s home state is preferred 

basis for determining jurisdiction under UCCJEA).

Additionally, we point out that the Prefatory Note to the UCCJEA states 

that the UCCJEA has addressed the problem of simultaneous proceedings 

and conflicting custody orders in sections 5410, 5422 and 5426. See 23 

____________________________________________

9 We recognize that in some cases the “home state” may not be the most 

appropriate forum. See Dincer v. Dincer, 701 A.2d 210 (Pa. 1997). 
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Pa.C.S.A. §§ 5401-5482-Prefatory Note, 3. We find that the trial court’s 

reading of the various sections of the UCCJEA has hamstrung its ability to 

grant relief. Rather than prioritizing the home state pursuant to section 

5421, the court incorrectly prioritized section 5422 (exclusive, continuing 

jurisdiction). See 23 Pa.C.S.A. §§ 5421, 5422. We conclude that this was a 

misapplication of the law and contrary to the purpose of the UCCJEA. See

23 Pa.C.S.A. § 5401.10 Cf. A.D. v. M.A.B., 989 A.2d 32 (Pa. Super. 2010) 

(Child did not have significant connection with Pennsylvania, and thus Court 

of Common Pleas did not have exclusive continuing jurisdiction under 

UCCJEA to hear father’s petition to modify child custody order; child had not 

____________________________________________

10 [T]his Act should be interpreted according to its purposes which are to: 

(1) Avoid jurisdictional competition and conflict with court of 

other states in matters of child custody which have in the 

past resulted in the shifting of children state to state with 

harmful effects on their well-being;

(2) Promote cooperation with the courts of other states to the 

end that a custody decree is rendered in that state which 

can best decide the case in the interest of the child;

(3) Discourage the use of the interstate system for continuing 

controversies over child custody;

(4) Deter abductions of children;

(5) Avoid relitigation of custody decisions of other states; and

(6) Facilitate the enforcement of custody decrees of other 

states.

23 Pa.C.S.A. § 5401, Uniform Law Comment. 
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resided in state for almost seven years, mother had resided in different state 

for almost seven years, father had no contact with child after child left state, 

and child’s physicians, school, friends, and family all were located in different 

state). 

In Rennie v. Rosenthol, 995 A.2d 1217 (Pa. Super. 2010), this Court 

discussed exclusive, continuing jurisdiction pursuant to the UCCJEA:

The UCCJEA, 23 Pa.C.S.A. § 5401, et seq., was promulgated by 

the National Conference of Commissioners on Uniform State 

Laws in 1997 and became effective in Pennsylvania in 2004. The 

UCCJEA replaced the Uniform Child Custody Jurisdiction Act 

(“UCCJA”) as a way to rectify inconsistent case law and revise 

custody jurisdiction in light of federal enactments. One of the 

main purposes of the UCCJEA was to clarify the exclusive, 

continuing jurisdiction for the state that entered the child 

custody decree. See 23 Pa.C.S.A. § 5422, cmt.; see also

Bouzos–Reilly v. Reilly, 980 A.2d 643, 645 (Pa. Super. 2009).

 * * * *

Under the plain meaning of section 5422(a)(1), a court that 

makes an initial custody determination retains exclusive, 

continuing jurisdiction until neither the child nor the child and 

one parent or a person acting as a parent have a significant 

connection with [the original decree state] and substantial 

evidence concerning the child's care, protection, training, and 

personal relationships is no longer available [in the original 

decree state]. 

Rennie, 995 A.2d at 1220–21 (emphasis added and footnotes omitted).

The Uniform Law Comment to section 5422 provides further guidance 

and support for our conclusion. It states that “[t]he continuing jurisdiction 

of the original decree state is exclusive[,] and [i]t continues until one of two 

events occurs:

 * * * *
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2. Continuing jurisdiction is lost when the child, the child’s 

parents, and any person acting as a parent no longer resides 

in the original decree state. The exact language of subsection 

(a)(2) was the subject of considerable debate. Ultimately the 

Conference settled on the phrase that “a court of this state 

or a court of another state determines that the child, 

the child’s parents, and any person acting as a parent 

do not presently reside in this state” to determine 

when the exclusive, continuing jurisdiction of a state 

ended. . . . It is the intention of this Act that subsection 

(a)(2) of this section means that the named persons no 

longer continue to actually live within the state. Thus, unless 

a modification proceeding has been commenced, when the 

child, the parents, and all persons acting as parents physically 

leave the state to live elsewhere, the exclusive, continuing 

jurisdiction ceases. . . . . .[11] If the child, the parents, 

and all persons acting as parents have all left the state 

which made the custody determination prior to the 

commencement of the modification proceeding, 

considerations of waste of resources dictate that a 

court in state B, as well as a court in state A, can 

decide that state A has lost exclusive, continuing 

jurisdiction. 

23 Pa.C.S.A. § 5422, Uniform Law Comment (emphasis added). 

Here, the modification proceeding was commenced in Lawrence 

County, after the parties and the children no longer resided in Ohio, the 

original decree state. Mother had resided in the Commonwealth for at least 

six months prior to filing her motion to modify custody. Based on these 

undisputed facts, Ohio no longer has exclusive, continuing jurisdiction over 

____________________________________________

11 To clarify, if a modification proceeding had been commenced in Ohio 

before the parties and children moved to Pennsylvania, exclusive, continuing 

jurisdiction would NOT have ceased in Ohio. Here, the modification 

proceeding commenced after the parties and children had moved to 

Pennsylvania and Mother had resided in the Commonwealth for at least six 

months prior to filing the motion to modify. 
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this child custody matter pursuant to the UCCJEA and is no longer able to 

enter any custody orders in this case. Pennsylvania meets the criteria for 

jurisdiction and, therefore, we reverse and remand this case for a 

determination on the merits of Mother’s motion for modification.12

With respect to Mother’s final three issues concerning the propriety of 

the court’s order granting Father’s petition for counsel fees, we agree with 

Mother that her filing of three petitions in these circumstances is not 

“repetitive” within the meaning of 23 Pa.C.S.A. § 5339. Our standard of 

review of an award of counsel fees is well settled: we will not disturb a trial 

court’s determination absent an abuse of discretion. Verholek v. 

Verholek, 741 A.2d 792, 795 (Pa. Super. 1999). A trial court has abused 

its discretion if it failed to follow proper legal procedures or misapplied the 

law. Id. See also Thunberg v. Strause, 682 A.2d 295 (Pa. 1996) 

(appellate court’s scope of review in cases involving counsel fees is limited to 

determining whether trial court abused its discretion).

Section 5339 provides the authority for the award of counsel fees and 

costs in custody matters, not only in cases of contempt, but also in cases 

where a party’s conduct is “obdurate, vexatious, repetitive or in bad faith.” 

23 Pa.C.S.A. § 5339. Section 5339 states:

____________________________________________

12 Because we agree with Mother’s claims in issues 1 and 2, we find it 

unnecessary to address issues 3, 4 and 7. 
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Under this chapter, a court may award reasonable interim or 

final counsel fees, costs and expenses to a party if the court 

finds that the conduct of another party was obdurate, vexatious, 

repetitive or in bad faith.

23 Pa.C.S.A. § 5339 (emphasis added). As this Court noted in Chen, 

supra, this language is essentially identical to the language in sections 

2503(7) and (9) of the Judicial Code, which allows an award of counsel fees 

under the following circumstances: 

(7) Any participant who is awarded counsel fees as a sanction 

against another participant for dilatory, obdurate or vexatious 

conduct during the pendency of a matter.

(9) Any participant who is awarded counsel fees because the 

conduct of another party in commencing the matter or otherwise 

was arbitrary, vexatious or in bad faith.

42 Pa.C.S.A. §§ 2503(7), (9). “The distinction between section 5339 of the 

Domestic Relations Code and section 2503 of the Judicial Code is simply the 

addition of the word `repetitive.’” Chen, 100 A.3d at 591. 

Here, the trial court awarded Father counsel fees based on its 

conclusion that Mother’s filings were “repetitive” within the meaning of 

section 5339. The trial court states that this conclusion is supported by “the 

record developed in the instant case, in addition to the Opinion issued by the 

Cuyahoga County Court[.]” Trial Court Opinion, supra at 11. We disagree. 

As indicated above, Mother filed her first motion for modification in 

May 2014, after the Lawrence County Court registered the Ohio decree. Her 

second motion, filed one month later, after the court declined to exercise 

jurisdiction, sought special relief in the form of emergency jurisdiction based 
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on W.S.’s injuries. Father filed a petition for counsel fees claiming Mother’s 

actions were “vexatious.” The trial court denied Father’s petition. Four 

months later, on October 21, 2014, Mother filed another petition for special 

relief, claiming W.S. had returned home to her with new bruises on his 

buttocks and thigh. Mother also reiterated her request that the court 

exercise emergency jurisdiction. Father filed a petition for counsel fees, 

claiming Mother’s motions were vexatious and repetitive, and the trial court 

granted Father’s request. 

The court, in its order, pointed out that that the circumstances did not 

warrant its exercise of emergency jurisdiction, and that it had “previously on 

two occasions declined to accept jurisdiction under the UCCJEA, in that the 

Court of Common Pleas of Cuyahoga County, Ohio, has not relinquished 

jurisdiction to this Court.” Order, 10/21/14, at 2. The court, therefore, 

granted Father’s petition for counsel fees “based upon [Mother’s] repetitive 

filings pursuant to 23 Pa.C.S.A. [§] 5339[.]” 

A suit is “vexatious,” such as would support an award of counsel fees 

in a child custody case, if it is brought without legal or factual grounds and if 

the action served the sole purpose of causing annoyance. In re the Barnes 

Foundation, 74 A.3d 129 (Pa. Super. 2013) (interpreting 42 Pa.C.S.A. § 

2503(7)). Here, because the trial court’s orders declining jurisdiction are in 

error, and those orders provided, in part, the basis of the court’s order 

granting counsel fees, we find it necessary to reverse that order. Further, 

although repetition alone may be grounds for imposition of counsel fees, we 
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conclude that the circumstances here do not warrant an award. Chen, 

supra. The award of counsel fees is not supported by the record.13 

Order reversed. Case remanded for proceedings consistent with this 

decision. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/27/2015

____________________________________________

13 Because we reverse the order granting counsel fees, we need not address 

issue 5, where Mother claims Father violated local rules of procedure in filing 

his petition for counsel fees.