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Home My WebLink About99-4494 CivilMICHELLE L. LOUTHIAN,: Plaintiff · SHANE M. LOUTHIAN, · Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4494 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S PETITION FOR MODIFICATION AND NOW, this Defendant's preliminary OF CUSTODY BEFORE BAYLEY and OLER, JJ. ORDER OF COURT 1st day of December, 1999, upon consideration of objections to Plaintiff's petition for modification of Court of Common Pleas of York County. shall be borne by Plaintiff. N. Christopher Menges, Esq. 145 East Market Street York, PA 17401 Attorney for Plaintiff Any fees associated with the transfer BY THE COURT, ~jWesley Ole~ J~., J. custody, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that Plaintiff's action is transferred to the Clyde W. Vedder, Esq. 32 N. Duke Street P.O. Box 544 York, PA 17405 Attorney for Defendant :rc MICHELLE L. LOUTHIAN,: Plaintiff · SHANE M. LOUTHIAN, · Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4494 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S PETITION FOR MODIFICATION OF CUSTODY BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT Oler, December 1, 1999. This case presents the issue of whether a plaintiff's forum choice of one Pennsylvania county to litigate a petition to modify a custody order from another Pennsylvania county will be sanctioned, where (a) the county which originated the order continues to have jurisdiction, (b) the county which originated the order has not declined to exercise such jurisdiction, and (c) jurisdiction in the county of Plaintiff's choice is predicated upon the doctrine of forum non conveniens. For the reasons stated in this opinion, the issue will be resolved against the plaintiff. STATEMENT OF FACTS; PROCEDURAL HISTORY The present action has been commenced by a petition filed on August 12, 1999. The petition, filed by Michelle L. Louthian against Shane M. Louthian, seeks modification of a 1993 York County custody order relating to the parties' son, Zachary J. Louthian (d.o.b. October 19, 1990). The petition alleges that Plaintiff resides in Cumberland County, that Defendant resides in York County, and that under the existing York County order Plaintiff has primary custody of the child and Defendant has partial custody on alternating weekends and at various other times. Plaintiff requests that the existing order be modified to include a non-disparagement clause and a direction that Defendant cooperate in the acquisition of certain "wrap around services" for the child to promote his behavioral, social, emotional and educational needs. Defendant has interposed preliminary objections to the petition in the form of a motion to dismiss on the basis of a lack of subject matter jurisdiction and the pendency of a prior action. The York County court, Defendant notes, has acted as recently as March of 1998 in the custody matter. The parties are in agreement that the following represents a correct recitation of the history of the custody litigation:~ Plaintiff initiated the instant action ... to modify an existing Court Order dated July 16, 1993, entered by the Court of Common Pleas of York County, Pennsylvania. The applicable Order in this matter, conceming the child, is an Order issued by the York County Court of Common Pleas per the Honorable Penny L. Blackwell, Judge, on July 16, 1993 .... [T]he parties are also currently under and subject to two ... subsequent Court Orders entered by the Court of Common Pleas in York County, Pennsylvania and dated March 31, 1998, and August 30, 1996, respectively .... The York County action was commenced on July 23, 1991, and remains active and pending. Such action has never ~ Plaintiff's Brief in Opposition to Defendant's Preliminary Objections, at 1 (Plaintiff's adoption of statement of facts contained in Defendant's Brief in Support of Preliminary Objections). 2 been stayed nor has the Court of Common Pleas of York County, Pennsylvania declined to assume jurisdiction to modify its decree .... [T]he Court of Common Pleas of York County, Pennsylvania accepted jurisdiction to hear modification petitions filed on March 24, 1992, June 25, 1993, August 3, 1994, April 12, 1995, and although Plaintiff filed preliminary objections to jurisdiction and venue on March 23, 1998, by Order dated March 31, 1998, ... Plaintiff's preliminary objections were deemed withdrawn .... ... Defendant, the father of the child, lives in York, York County, Pennsylvania .... Mother is employed full-time by the York County Children and Youth Services and works daily in York County? Defendant's preliminary objections to Plaintiff's modification petition in this court were argued on October 13, 1999.3 For the reasons stated herein, Plaintiff's petition for modification will be transferred to the York County Court of Common Pleas. DISCUSSION Section 5364 of the Uniform Child Custody Jurisdiction Act provides as follows with respect to modification of custody decrees: If another court has made a custody decree, a court before which a petition for modification is pending shall not modify the decree of the other court unless it appears to the court before which the petition is pending that the other court which rendered the decree does not have jurisdiction under jurisdictional prerequisites substantially in accordance with [the Uniform Child Custody Jurisdiction Act] or has declined to assume jurisdiction to modify its decree and the provisions of subsection (0(2) [relating to certain improper conduct on the part of a petitioner which would cause the court before 2 Defendant's Brief in Support of Preliminary Objections, at 1-2. 3 Plaintiff's position was submitted on her brief. 3 which the petition is pending to decline to exercise jurisdiction] will not be violated by an exercise of jurisdiction by the court before which the petition is pending. Act of December 19, 1990, P.L. 1240, §2, 23 Pa. C.S. §5364(h)(1). The record in the present case does not support the proposition that York County lacks jurisdiction under jurisdictional prerequisites substantially in accordance with the Act,4 nor the proposition that York County has declined to exercise such jurisdiction. While recognizing the cogency of Defendant's argument based on the above provision in support of Defendant's preliminary objections to the instant Cumberland County proceeding,5 Plaintiff maintains that "Defendant has forgotten one very important part of the U.C.C.J.A." -Section 5348 of the Act, relating to forum non conveniens.6 This section, in pertinent part, provides that [a] court which has jurisdiction under [the Uniform Child Custody Jurisdiction Act] to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another [county] is a more appropriate forum. 4 See Act of December 19, 1990, P.L. 1240, §2, 23 Pa. C.S. §5344(a)(2) (jurisdiction based on significant connection of child and one parent with court in question and availability of substantial evidence regarding custody); M., §5364(a) (general rule of intrastate application of interstate provisions of Uniform Child Custody Jurisdiction Act). 5 See Plaintiff's Brief in Opposition to Defendant's Preliminary Objections, at 1 (While most of the argument set forth in Defendant's brief is accurate, .... "). 6 Id., at 1-2. 4 Act of December 19, 1990, P.L. 1240, {}2, 23 Pa. C.S. {}5348(a); see id., {}5364(a) (general rule of intrastate application of interstate provisions of Uniform Child Custody Jurisdiction Act). Relying on this provision to support Cumberland County's exercise of jurisdiction over her request to modify the York County order, Plaintiff argues as folloxvs: Nothing could be clearer than the fact that Cumberland County, Pennsylvania, has more contacts with the child and it is a more convenient jurisdiction. That is exactly the purpose of Section 5348(c) of the U.C.C.J.A. therefore, it is submitted that it is in the best interests of the child as well as judicial economy for Cumberland County, Pennsylvania, to not decline, but rather to accept jurisdiction in this case.7 Several factors, however, militate against sanctioning Plaintiff's choice of Cumberland County as a forum to litigate a petition to modify York County's custody order, where (a) York County continues to have jurisdiction, (b) York County has not declined to exercise such jurisdiction, and (c) jurisdiction in Cumberland County is predicated upon the doctrine of forum non conveniens. First, the doctrine of forum non conveniens is designed to provide "the court with a means of looking beyond technical considerations such as jurisdiction and venue to determine whether litigation in the plaintiff's chosen forum would serve the interests of justice under the particular circumstances." Alford v. Philadellvhia 7 Id., at 3. Coca-Cola Bottling Co. Inc., 366 Pa. Super. 510, 513, 531 A.2d 792, 794 (1987). It is not a doctrine designed to facilitate a plaintiff's choice of forum.8 Second, the wording of the forum non conveniens provision at issue indicates that it was intended to provide a means whereby the exercise of jurisdiction by a court could be "decline[d]." The language of the section does not suggest an intent to broaden jurisdictional boundaries in the interest of convenience.9 Third, it has been held that the forum non conveniens language of the Uniform Child Custody Jurisdiction Act was not intended to provide an independent basis for jurisdiction. See Black v. Black, 441 Pa. Super. 358, 657 A.2d 964 (1995). Fourth, Section 5364 of the Uniform Child Custody Jurisdiction Act explicitly proscribes jurisdiction in this court under the present circumstances. Finally, an interpretation of the forum non conveniens provision at issue to permit a plaintiff to secure jurisdiction in a forum which is expressly denied jurisdiction in another provision of the same act would be inconsistent with 8 "[T]he purpose for which the doctrine of forum non conveniens was developed was to move cases from one judicial district to another when the facts demonstrate that the judicial district in which the case has been brought is inconvenient to the parties." Purcell v. Bryn Mawr Hospital, 379 Pa. Super. 626, 651,550 A.2d 1320, 1332 (1988). 9 "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1921(a). "Words and phrases shall be construed according ... to their common and approved usage .... "Id., § 1903(a). 6 accepted rules of statutory construction. "Every statute shall be construed, if possible, to give effect to all its provisions,''l° and parts of a statute which are in pari materia are to be construed harmoniously, il The combined effect of the foregoing factors is to lead the court to the conclusion that Defendant's.preliminary objections in this case are meritorious. Consequently, the following order will be entered: ORDER OF COURT AND NOW, this 1st day of December, 1999, upon consideration of Defendant's preliminary objections to Plaintiff's petition for modification of custody, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that Plaintiff's action is transferred to the Court of Common Pleas of York County. Any fees associated with the transfer shall be borne by Plaintiff. BY THE COURT, N. Christopher Menges, Esq. 145 East Market Street York, PA 17401 Attorney for Plaintiff s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Id., §1921(a). Id., §1932; see First Nat? Bank of Millville v. Horwatt, 192 Pa. Super. 581, 62 A.2d 60 (1960). 7 Clyde W. Vedder, Esq. 32 N. Duke Street P.O. Box 544 York, PA 17405 Attorney for Defendant :rc