Shute v. Shute

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 89-449


 Karen L.C. Shute                             Supreme Court

                                              On Appeal from
      v.                                      Lamoille Superior Court

 C. Denny Shute                               December Term, 1990


 Linda Levitt, J.

 Robert Halpert and C. James Mathis, Law Offices of Kurrle and Halpert,
   Montpelier, for plaintiff-appellee

 Leslie E. Black and Graham Hayes Govoni, Law Clerk (On the Brief), Johnson,
   for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      JOHNSON, J.   We decide today that the jurisdictional requirements of
 the Parental Kidnapping Prevention Act, (PKPA), 28 U.S.C. { 1738A, preempt
 the Uniform Child Custody Jurisdiction Act, (UCCJA), 15 V.S.A. {{ 1031-1051,
 when these acts are in conflict.  Therefore, unless a child custody decree
 is in compliance with the Parental Kidnapping Prevention Act, the trial
 court lacks subject matter jurisdiction to modify or enforce its original
 decree.
      This case arose out of a motion for contempt of a Lamoille Superior
 Court order granting a divorce to the parties and awarding custody of the
 minor son to the wife.  The motion was filed by the former husband on
 February 18, 1986, alleging that his former wife had denied him visitation
 and telephone contact with their son since October 1985.  This began two
 and one-half years of litigation that involved visitation and, eventually,
 subject matter jurisdiction issues.  On May 27, 1988, the husband filed a
 second motion for contempt and enforcement.  On July 22, 1988, the wife
 filed a motion to dismiss, claiming a lack of subject matter jurisdiction
 under the UCCJA, 15 V.S.A. { 1032, or, alternatively, that the trial court
 should decline to exercise jurisdiction because Vermont was an inconvenient
 forum under 15 V.S.A. { 1036.  On August 4, 1989, the Lamoille Superior
 Court relinquished jurisdiction to the State of Connecticut.  The superior
 court found that Vermont was an inconvenient forum because Connecticut had
 been the child's home state since 1982 and that Connecticut had closer
 connections to the child than Vermont.  The husband appealed.  We affirm the
 trial court's relinquishment of jurisdiction, but do so on a different
 ground.
      Some history of the original divorce action and later events is
 necessary.  The husband and wife were married in Vermont in 1978.  One son
 was born to the parties in December 1980.  The family lived together in
 Vermont until April 1982.  In May 1982, the wife and son moved to
 Connecticut.  The wife filed for divorce in Lamoille Superior Court on
 February 22, 1983.  On March 8, 1984, the trial court issued a Final Order
 and Decree.  At the time the original decree was issued, the trial court
 made no findings as to subject matter jurisdiction over child custody.  The
 wife's complaint for divorce stated that her residence had been Connecticut
 since May 1982.  The complaint did not state the residence of the child.
      The court incorporated the parties' final stipulation, dated March 8,
 1984, into the Final Order and Decree.  Under the terms of the final
 stipulation, the parties agreed that the care, custody and control of the
 minor child would be awarded to the wife, subject to the right of reasonable
 visitation by the husband.  In addition, the parties agreed that the Vermont
 courts would have continuing jurisdiction of all issues, including custody,
 support and visitation rights.
       On appeal, the husband claims that the trial court violated his
 constitutional right to due process when it failed to provide him with
 reasonable or adequate notice and no opportunity to be heard before
 relinquishing jurisdiction, (FN1) and that the court abused its discretion when
 it failed to consider all relevant factors before deciding that Vermont was
 an inconvenient forum.  In light of our holding that the trial court did not
 have subject matter jurisdiction to modify its original custody decree, we
 do not reach the precise issues raised by the husband.
      This case reflects the jurisdictional complications that can occur when
 parents, living in different states, seek to modify an original child
 custody decree by using the courts of two states.  Historically, divorce
 and child custody judgments have not been subject to the full faith and
 credit mandate in Article IV, { 1, of the United States Constitution and the
 codification of that mandate in 28 U.S.C. { 1738.  By necessity, these
 judgments have been set apart because they must be modifiable in the
 rendering state when the best interests of the child require a change.
 Kovacs v. Brewer, 356 U.S. 604, 608 (1958).  Therefore, they lack finality
 and do not fall under the Full Faith and Credit Clause.  In re Forslund, 123
 Vt. 341, 344, 189 A.2d 537, 539 (1963).  The result of this lack of
 recognition and enforcement of custody decrees has been that children were
 moved to other states by parents who wanted to modify existing orders.
 Barndt v. Barndt, 397 Pa. Super. 321, 326, 580 A.2d 320, 322 (1990).
      In response to this confusion, states passed the UCCJA, which provided
 uniform rules for determining custody jurisdiction.  Meade v. Meade, 812 F.2d 1473, 1475 (4th Cir. 1987).  This remedy was not effective, however,
 because states adopted variations of the UCCJA and state courts interpreted
 the uniform provisions differently.  Id. at 1475-76.  Congress found that
 these inconsistencies resulted in a large and growing number of cases
 involving custody and visitation disputes and conflicting custody decrees
 from different states.  Parental Kidnapping Prevention Act, Pub. L. No. 96-
 611, { 7(a)(1) and (2), 94 Stat. 3566, 3568 (1980).  To correct these
 problems, Congress passed the Parental Kidnapping Prevention Act in 1980.
 28 U.S.C. { 1738A.
      The PKPA established national standards for determining subject matter
 jurisdiction over custody matters.  Under its provisions, jurisdiction is
 vested in the child's home state.  28 U.S.C. { 1738A(c)(2)(A).  The PKPA
 defines "home state" as

           the State in which, immediately preceding the time
           involved, the child lived with his parents, a parent, or
           a person acting as parent, for at least six consecutive
           months, and in the case of a child less than six months
           old, the State in which the child lived from birth with
           any of such persons. . . .

 Id. { 1738A(b)(4).
      The PKPA prohibits a state from modifying a child custody determination
 made in a sister state when the earlier determination was issued consistent
 with the provisions of the Act.  Id. { 1738A(a).  If a child has a home
 state, a child custody determination is consistent with the PKPA only if
 such state has jurisdiction under its own laws and the state is the home
 state of the child on the date of the commencement of the proceedings.  Id.
 { 1738A(c)(1) and (2)(A)(i).  If the child is absent from a State that would
 otherwise be the child's home state because of removal or retention by a
 contestant, the child's absence will not deprive the State of home state
 jurisdiction.  Id. { 1738A(c)(1) and (2)(A)(ii). (FN2) Congress ensured that
 PKPA jurisdictional requirements would be met by giving continuing and
 exclusive jurisdiction to a court to modify its previous order only if the
 court had jurisdiction to determine custody matters in its original
 proceeding.
      Some state UCCJA laws provide alternate grounds for custody juris-
 diction.  But the language of the PKPA indicates that Congress intended to
 preempt the field of custody jurisdiction.  Meade, supra, 812 F.2d at 1475-
 76; Barndt v. Barndt, supra, 580 A.2d at 326-27; Voniski v. Voniski, 661 S.W.2d 872, 876 (Tenn. Ct. App. 1982).  Therefore, under the Supremacy
 Clause, the PKPA takes precedence over state law when the laws conflict.
 U.S. Const. art. VI; Trustees of the Diocese v. State, 145 Vt. 510, 514, 496 A.2d 151, 153 (1985).
      Under Vermont's UCCJA provisions, there is no preference for one
 jurisdictional ground over another.  Duval v. Duval, 149 Vt. 506, 513, 546 A.2d 1357, 1361-62 (1988).  A trial court may exercise subject matter
 jurisdiction if Vermont is the child's home state at the time of
 commencement of the proceedings or if it is in the child's best interest
 that Vermont have jurisdiction.  Meyer v. Meyer, 148 Vt. 65, 67, 528 A.2d 749, 750-51 (1987).  Because the alternate ground provisions of the Vermont
 law conflict with the home state preference of the PKPA when it appears that
 the child has a home state other than Vermont, we now hold that the PKPA
 preempts the Vermont statutes that conflict with the PKPA.  In a custody
 case, the best interest of the child is no longer controlling if the child
 has a home state.
      In this case, the record shows that the Lamoille Superior Court had
 jurisdiction to entertain the divorce action in 1983.  There were no
 allegations in the complaint as to jurisdiction to determine the custody of
 the parties' minor son.  In fact, Vermont did not have jurisdiction under
 the PKPA because the child's home state was Connecticut on the date that the
 divorce action was filed.  Later, when the husband initiated a proceeding to
 enforce the Vermont decree, the wife initiated a second proceeding in
 Connecticut.  Although the Vermont court was not being asked, at that point,
 to modify the order of a sister state, the question of the enforceability of
 the original Vermont decree should have been squarely before the court.
      First, the trial court should have determined if it had continuing
 jurisdiction to modify its original decree.  For the court to have
 continuing jurisdiction, the original decree had to be in compliance with
 the PKPA.  28 U.S.C. { 1738A(d).  It was not in compliance because the
 child had a home state other than Vermont when the wife filed the divorce
 action in 1983.
      Second, the trial court should have determined if it had current
 jurisdiction under the PKPA.  The court had jurisdiction only if: (1) the
 child lived in Vermont and Vermont was the child's home state; or (2) it
 appeared that no other state had jurisdiction and it was in the best
 interests of the child to assume jurisdiction; or (3) another state had
 declined to exercise jurisdiction in favor of Vermont; or (4) the original
 decree was in compliance with the PKPA and Vermont continued to be the
 residence of the child or any contestant.
      None of the circumstances outlined existed in this case.  Connecticut
 was, and continues to be, the child's home state; that state has
 jurisdiction under its own laws and the PKPA.  In fact, Connecticut has
 exercised jurisdiction over the child custody issues in this case.
 Moreover, the Connecticut court will not be bound by the original Vermont
 decree under the Full Faith and Credit provisions of the PKPA.  28 U.S.C. {
 1738A(a).
      The husband argues that, under the PKPA, Vermont has exclusive
 jurisdiction to enforce and modify the original decree because he remains a
 resident of Vermont.  But the husband's continuing Vermont residence
 satisfies only part of the PKPA requirement.  For a court to have continuing
 jurisdiction to modify its original custody determination, the original
 determination must have been made consistently with the PKPA.  That was not
 done in this case.
      The husband also argues that Vermont has exclusive jurisdiction
 because the parties agreed that Vermont courts would have continuing
 jurisdiction to modify the original decree.  However, the jurisdictional
 deficiency cannot be cured by the stipulation of the parties.  Subject
 matter jurisdiction cannot be conferred by agreement or consent of the
 parties when it is not given by law.  Gerdel v. Gerdel, 132 Vt. 58, 65, 313 A.2d 8, 12 (1973).
      Therefore, the trial court's relinquishment of jurisdiction to
 Connecticut was proper.  Jurisdiction over a divorce is not necessarily
 coextensive with jurisdiction over custody of children.  A trial court must
 determine if it has jurisdiction to hear and resolve child custody matters.
 Whether the child has a home state as defined by the Act must be apparent on
 the face of the complaint.  If the home state is not Vermont, then other
 grounds consistent with the PKPA exceptions to home state jurisdiction must
 be alleged.
      This decision overrules our holding in Meyer, 148 Vt. at 67, 528 A.2d 
 at 750-51, to the extent that Meyer adopted alternate grounds for subject
 matter jurisdiction when Vermont is not the home state of the child.  It
 also overrules Duval, 149 Vt. at 513, 546 A.2d  at 1361-62, to the extent
 that Duval expressed no clear preference for home state jurisdiction when
 Vermont is not the child's home state.
      Affirmed.

                                         FOR THE COURT:




                                         Associate Justice




FN1.      The trial court gave virtually no notice and opportunity to be heard
 to the husband before relinquishing jurisdiction.  Although we do not
 condone the trial court's actions, we think the interests of the parties are
 better served by reaching the jurisdictional issues, so that the custody and
 visitation issues may be settled by the appropriate jurisdiction.

FN2.       If there is no home state jurisdiction under 28 U.S.C. { 1738A
 (c)(1) and (2)(A)(i) or (ii), one of the following conditions must be met
 before a court may accept jurisdiction:
             (B)(i) it appears that no other State would have
     jurisdiction under subparagraph (A), and (ii) it is in the best
     interest of the child that a court of such State assume
     jurisdiction because (I) the child and his parents, or the child
     and at least one contestant, have a significant connection with
     such State other than mere physical presence in the State, and
     (II) there is available in such State substantial evidence
     concerning the child's present or future care, protection,
     training and personal relationships;
             (C) the child is physically present in such State and (i) the
     child has been abandoned, or (ii) it is necessary in an emergency
     to protect the child because he has been subjected to or
     threatened with mistreatment or abuse;
             (D)(i) it appears no other State would have jurisdiction under
     subparagraph (A),(B),(C), or (E), or another State has declined
     to exercise jurisdiction on the ground that the State whose
     jurisdiction is in issue is the more appropriate forum to
     determine the custody of the child, and (ii) it is in the best
     interest of the child that such court assume jurisdiction; or
             (E) the court has continuing jurisdiction pursuant to
 subsection (d) of this section.
 28 U.S.C. { 1738A(c)(1) and (2)(B)-(E).