R.E.P. v. J.H.

J-A01015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.E.P., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
J.H., :
:
Appellee :
: No. 1318 WDA 2016

Appeal from the Order Dated August 11, 2016
In the Court of Common Pleas of Allegheny County,
Family Court, at No(s): FD16-007048-008

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED: APRIL 10, 2017

I agree with the learned Majority that the record supports the trial

court’s finding that jurisdiction lay properly in North Carolina, and I join the

Majority except as noted, infra.

I write separately because I disagree with the Majority’s finding that

the proper standard when determining jurisdiction pursuant to the

maximum-significant-contacts test is an abuse of discretion. See Majority’s

Memorandum at 15 citing Wagner v. Wagner, 887 A.2d 282, 285 (Pa

Super. 2005).

* Retired Senior Judge assigned to the Superior Court.
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This Court’s examination of the applicable standards of review when

assessing issues arising under the UCCJEA in S.K.C. v. J.L.C., 94 A.3d 402

(Pa. Super. 2012) (Olson, J.), is instructive.

[W]e begin with a discussion of the appropriate standard and
scope of review when considering an appeal from a decision
rendered under 23 Pa.C.S.A. § 5422, which establishes the trial
court’s exclusive, continuing jurisdiction to make a child custody
determination. It is hornbook law that “as a pure question of
law, the standard of review in determining whether a [trial] court
has subject matter jurisdiction is de novo and the scope of
review is plenary.” However, when discussing our standard of
review in other cases arising under section 5422, we have often
stated that “this Court will not disturb a decision to exercise or
decline jurisdiction absent an abuse of discretion by the trial
court.”

This language is accurate in that, when a trial court
possesses subject matter jurisdiction over a child custody
dispute, a trial court’s decision to exercise that jurisdiction is
subject to an abuse of discretion standard of review. However,
we have imprecisely quoted this language even when the
question was not whether the trial court properly exercised (or
declined to exercise) jurisdiction, but rather the question was
whether the trial court actually possessed subject matter
jurisdiction.

The UCCJEA establishes subject matter jurisdiction before
the courts of common pleas in child custody matters under
various subsections of Title 23, including 23 Pa.C.S.A. §§ 5421
and 5422. As the provision quoted below makes clear, section
5421 identifies the circumstances under which a court of
common pleas has jurisdiction to make an initial child custody
determination. Pursuant to section 5421(b), section 5421(a) is
the exclusive jurisdictional basis for making an initial child
custody determination by a court of this Commonwealth.

Section 5422(a) identifies the circumstances under which a
court which has made a child custody determination under
section 5421 or section 5423 retains exclusive, continuing
jurisdiction over that order. Under section 5422(a), a court
which has made a child custody determination under section

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5421 or section 5423 retains exclusive, continuing jurisdiction
over that determination until the elements of section 5422(a)(1)
or section 5422(a)(2) have been satisfied. Section 5422(b)
states that if the trial court has made a child custody
determination, but no longer has exclusive, continuing
jurisdiction under section 5422(a), it may modify that
determination if it has jurisdiction to make an initial custody
determination under section 5421. From our review of the
statutory language, it is evident that a section 5422
determination does not involve a trial court’s decision regarding
whether to exercise jurisdiction that has been established.
Rather, a section 5422 determination implicates the subject
matter jurisdiction of the trial court.

Id. at 406-408 (citations and footnotes omitted).

In light of the foregoing, I find the trial court’s determination under 23

Pa.C.S.A. §§ 5421(a)(2), maximum-significant-contacts, implicates a pure

question of law, and thus, the proper standard is de novo.

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