J-S72031-16

 2016 PA Super 284

* Retired Senior Judge assigned to the Superior Court.

B.L.,

 Appellant

v.

T.B. AND F.L.,

 Appellees

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

 No. 828 MDA 2016

Appeal from the Order Entered April 27, 2016

in the Court of Common Pleas of Schuylkill County 

Civil Division, at No(s): S-1431-2014

BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.: FILED DECEMBER 13, 2016

B.L. (Guardian) appeals from the April 27, 2016 order which granted 

the motion of F.L. (Father) to dismiss the complaint for custody of J.L. and 

M.L. (Children, collectively). We affirm.1

Children were born in Texas to Father and T.B. (Mother). Children 

lived in Texas until the summer of 2013, when they began residing in 

Pennsylvania with Guardian, who is a cousin of Mother.2 The arrangement 

 

1 Also before us is Father’s motion to dismiss pursuant to Pa.R.A.P. 1972(3), 

which provides that any party may move to dismiss an appeal “for want of 

jurisdiction in the unified judicial system of this Commonwealth.” Pa.R.A.P. 

1972(3). Because this Court has jurisdiction over this appeal from a final 

order of the trial court pursuant to 42 Pa.C.S. § 742, we deny Father’s 

motion. See, e.g., Astorino v. New Jersey Transit Corp., 912 A.2d 308, 

310 (Pa. Super. 2006) (reviewing and affirming order that dismissed action 

for lack of subject matter jurisdiction). 

2 Children have an older sister who remained in Texas and who is not 

involved in this case. 
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was governed by a guardianship agreement, which was signed by Guardian, 

Father, and Mother. The agreement provided that Father and Mother had 

determined that it would be in the best interests of Children to be in 

Guardian’s primary care, and that they “consent to provide full legal and 

physical guardianship over the person” of Children to Guardian. 

Appointment of Guardianship, 6/7/2013. The agreement further provided 

that the guardianship appointment “shall extend until August 29, 2014, 

unless revoked prior thereto, in writing, by mutual agreement of the parties 

or by order of court.” Id.

In October 2013, Father filed a custody action in Texas which resulted 

in an order establishing the custodial arrangements between Mother and 

Father, and giving Father the right to designate Children’s primary residence 

without regard to geographic location. Texas Custody Order, 10/30/2013, at 

3. Guardian was not notified of, and thus did not have the opportunity to 

participate in, the Texas custody proceedings. 

On July 25, 2014, Guardian filed a custody complaint in the Court of 

Common Pleas of Schuylkill County. On August 27, 2014, following a 

conciliation conference, an interim order was entered maintaining the status 

quo pending trial. Trial was repeatedly scheduled and continued as the 

parties sought to reach an agreement on custody. After the parties reported 

having resolved the case and sought time for stipulations to be executed, 

 
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the court cancelled the trial and directed the parties to provide the 

stipulations to the court as soon as possible. Order, 1/9/2015.

On August 26, 2015, Guardian filed a praecipe for trial, and trial was 

scheduled for January 21, 2016. Father and Guardian appeared before the 

trial court on that date, and the court learned that (1) Guardian changed her 

mind about “the previous resolution based on information provided to her by 

[C]hildren’s counselor” and (2) Father wished to file a motion “questioning 

the jurisdiction” of the Schuylkill County court. Order, 2/19/2016. The trial 

court accordingly struck the case from the trial list and set a schedule, and 

later an amended schedule, for pretrial motions.

On March 22, 2016, Father filed a motion to dismiss Guardian’s 

complaint, arguing alternatively that the existence of the Texas custody 

order deprived the trial court of jurisdiction, or that the trial court should 

decline to exercise jurisdiction because Texas is a more convenient forum. 

Motion to Dismiss, 3/22/2016, at 6. The trial court granted Father’s motion 

by order of April 27, 2016. Guardian timely filed a notice of appeal.3

 

3 Guardian did not file a statement of errors complained of on appeal 

contemporaneously with her notice of appeal as required by Pa.R.A.P. 

1925(a)(2)(i). However, this Court has “concluded that a bright-line 

application of the waiver rule was not warranted in that case for violating the 

procedure outlined in Pa.R.A.P. 1925(a)(2)(i).” J.P. v. S.P., 991 A.2d 904, 

907 (Pa. Super. 2010). Here, Guardian ultimately filed her statement, the 

trial court has addressed Guardian’s issues, and there is no apparent 

prejudice. Furthermore, the dispositive issue, subject matter jurisdiction, is 

one that can be raised at any time or by this Court sua sponte. B.J.D. v. 
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Whether a court has subject matter jurisdiction is a question of law, 

for which our standard of review is de novo and our scope of review 

plenary.4 S.K.C. v. J.L.C., 94 A.3d 402, 408 (Pa. Super. 2014). “[T]he 

question of subject matter jurisdiction may be raised at any time, by any 

party, or by the court sua sponte.” B.J.D., 19 A.3d at 1082.

Guardian filed her custody complaint in Pennsylvania, unaware that 

there had been a prior order entered governing custody of Children. Once it 

was determined that a Texas court entered an initial custody determination 

that awarded custody to Father, the question became whether the 

Pennsylvania trial court had jurisdiction to modify the Texas order. That 

question is governed by the Uniform Child Custody Jurisdiction and 

Enforcement Act (UCCJEA), which has been adopted in both Pennsylvania 

and Texas. See 23 Pa.C.S. §§ 5421-5482; Tex. Fam. Code Ann. 

§§ 152.001-152.317. 

Under the UCCJEA, once a court makes an initial custody 

determination, that court retains exclusive, continuing jurisdiction over the 

determination until that court decides that it no longer has sufficient 

 

D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011). Therefore, waiver is not an 

issue in this appeal.

4

It appears that the trial court dismissed Guardian’s petition because it 

decided to decline to exercise jurisdiction, rather than because found that 

Pennsylvania lacked jurisdiction. However, “we may uphold a decision below 

if there is any proper basis for the result reached; thus, our affirmance may 

be based on different grounds from the trial court.” In re Adoption of 

R.J.S., 889 A.2d 92, 98 (Pa. Super. 2005).
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connection to the case. See 23 Pa.C.S. § 5422; Tex. Fam. Code Ann. 

§§ 152.202. The UCCJEA contains a provision governing jurisdiction to 

modify custody orders. Pennsylvania’s statute governing modification 

provides as follows:

Except as otherwise provided in section 5424 (relating to 

temporary emergency jurisdiction),[5]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. § 5423. 

Here, there is no indication in the record that the Texas court was 

notified about the pendency of the present action, let alone that it had ruled 

that Texas no longer had exclusive, continuing jurisdiction or that 

Pennsylvania would be a more convenient forum. Further, the trial court 

determined that Father and Mother continue to reside in Texas. Because 

 

5 Guardian does not argue that the Pennsylvania court had temporary 

emergency jurisdiction, and it does not appear to us that such jurisdiction 

has been established in this case. 
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neither subsection (1) nor (2) of section 5423 applies, the trial court lacked 

jurisdiction to modify the Texas order. Cf. T.A.M. v. S.L.M., 104 A.3d 30, 

34 (Pa. Super. 2014) (holding Pennsylvania had jurisdiction to modify 

Tennessee custody order where the child had been living in Pennsylvania for 

three years and no parent or person acting as a parent resided in Tennessee 

any longer).

Guardian challenges the Texas custody order on the basis that she, the 

guardian of Children, was not given the requisite notice and opportunity to 

be heard prior to its entry. Guardian’s Brief at 5-6. She also claims that 

Texas lacked jurisdiction to make the initial custody determination because it 

was not the home state of Children in October 2013. Id. Guardian further 

argues that, even if the order is valid, Texas law does not provide for its 

exclusive continuing jurisdiction in the matter. Id. at 7.

First, Texas did have jurisdiction to make the initial custody 

determination. The Texas statute concerning initial custody jurisdiction 

provides, in relevant part, as follows:

[A] court of this state has jurisdiction to make an initial child 

custody determination only if:

(1) this state 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 state but a parent or person acting as a parent 

continues to live in this state....
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Tex. Fam. Code Ann. § 152.201(a). Home state is defined 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.” Tex. Fam. Code Ann. § 152.102(7).

Guardian contends that Texas was not the home state of Children in 

October 2013 because they had been living in Pennsylvania since June 2013. 

Guardian’s Brief at 5. Guardian is correct that Children had not been living 

in Texas for at least six consecutive months immediately before Father 

commenced the action in Texas. However, Guardian ignores the facts that 

Children had lived in Texas the entire time before they came to 

Pennsylvania, making Texas the home state of Children within six months 

before Father filed the action there, and that Father and Mother continued to 

live in Texas. Accordingly, Texas had jurisdiction in October 2013 to make 

an initial custody determination under Tex. Fam. Code Ann. § 152.201(a). 

Second, Texas does have exclusive, continuing jurisdiction over that 

initial custody determination. The relevant Texas statute provides that once 

it has made an initial custody determination under section 152.201, it has 

exclusive, continuing jurisdiction until “(1) a court of this state determines 

that neither the child, nor the child and one parent, nor the child and a 

person acting as a parent, have a significant connection with this state and 

that substantial evidence is no longer available in this state concerning the 
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child's care, protection, training, and personal relationships.” Tex. Fam. 

Code Ann. § 152.202(a). 

Guardian’s argument is as follows:

Taking the above elements one at a time, it is clear that 

the Children in this case have virtually no connection, much less 

a significant connection, with Texas given that they have not 

resided in Texas for nearly three years. Further, it is clear that 

substantial evidence is no longer available in Texas concerning 

the Children’s care, protection, training, and personal 

relationships given the length of their absence from Texas.

It is also clear that if the Children have no connection with 

Texas then it is impossible for a child and one parent or a child 

and a person acting as a parent to have a significant connection 

with the State of Texas.

Guardian’s Brief at 7 (emphasis in original). 

If we actually do take the elements of the Texas statute one at a time, 

starting with the first one, it is clear that Guardian’s argument is unavailing. 

Guardian has ignored the requirement that the determinations as to the rest 

of the elements listed in subsection 152.202(a)(1) must have been made by 

“a court of this state,” i.e., a Texas court. The record does not show that 

any Texas court has made such a ruling. 

Finally, even if the Texas order were a legal nullity for one reason or 

another, Pennsylvania did not have jurisdiction to make an initial custody 

determination. The Pennsylvania statue regarding initial jurisdiction is as 

follows.
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§ 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;

(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).
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(b) Exclusive jurisdictional basis.--Subsection (a) is the 

exclusive jurisdictional basis for making a child custody 

determination by a court of this Commonwealth.

(c) Physical presence and personal jurisdiction 

unnecessary.--Physical presence of or personal jurisdiction over 

a party or a child is not necessary or sufficient to make a child 

custody determination.

23 Pa.C.S. § 5421. “Home state” is defined as follows:

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. § 5402. 

As noted above, Children were absent from Texas pursuant to a 

guardianship agreement that provided that Guardian’s appointment “shall 

extend until August 29, 2014, unless revoked prior thereto, in writing, by 

mutual agreement of the parties or by order of court.” Appointment of 

Guardianship, 6/7/2013. Guardian argues that the trial court erred in 

concluding that the agreement was temporary because nothing in the 

agreement refers to the appointment as temporary; she claims that the 

agreement “is not worded in such a way that it states it will terminate on 

that date, rather the wording is such that the guardianship could continue 

past that date.” Guardian’s Brief at 12. 
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Guardian’s interpretation is patently incorrect. The plain language of 

the agreement set a maximum length of the guardianship - until August 29, 

2014 - but provided that it could end sooner by being revoked prior to that 

end date. Nothing in the agreement contemplates an extension of 

Guardian’s appointment beyond August 29, 2014. Thus, the trial court 

properly construed the agreement as a temporary guardianship. 

The temporary nature of the guardianship rendered Children’s absence 

from Texas a temporary absence. M.E.V. v. R.D.V., 57 A.3d 126, 133 (Pa. 

Super. 2012) (holding that absence from prior state was temporary during 

the time it was contemplated that the parent and child would return to the 

other state). Under our definition of “home state,” Children’s temporary 

absence from Texas counts toward their Texas residency. R.M. v. J.S., 20 

A.3d 496, 507 (Pa. Super. 2011) (“[F]or home state determination, the law 

is clear that if a parent leaves one state temporarily and takes the child to 

another state, no matter for how long, the child is still considered as having 

‘lived’ in the first state during the time of that temporary absence.”). 

Thus, at the time Guardian instituted the custody proceedings in 

Pennsylvania, Pennsylvania law provided that Texas, not Pennsylvania, was 

the home state of Children. Because Children had a home state elsewhere, 

and that home state had not declined to exercise jurisdiction, Pennsylvania 

lacked jurisdiction to make an initial custody determination under section 

5421. 
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Guardian has sound arguments against the propriety of the initial 

Texas determination and in favor of Pennsylvania as a more appropriate 

jurisdiction at this time for making a custody determination as to Children. 

However, for all of the foregoing reasons, those arguments must be 

presented to the court in Children’s home state of Texas.

Order affirmed.6

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/13/2016

 

6 Because we have concluded that the trial court lacked subject matter 

jurisdiction, Guardian’s remaining issues on appeal are moot.