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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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