Columb v. Columb

COLUMB_V_COLUMB.91-520; 161 Vt. 103; 633 A.2d 689

[Opinion filed 17-Sep-1993]

[Motion for Reargument Denied 22-Oct-1993]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-520


 Gregory Columb                               Supreme Court

                                              On Appeal from
      v.                                      Windsor Family Court

 Marjorie Columb                              June Term, 1992


 Paul F. Hudson, J. (motions to modify custody), and
 Theodore S. Mandeville, Jr., J. (motion for attorney's fees, costs and
 expenses)


 Philip H. White of Wilson & White, P.C., Montpelier, for plaintiff-
   appellant

 Barney L. Brannen of Plante, Hanley & Gerety, P.C., White River Junction,
   for defendant-appellee


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


      DOOLEY, J.   Plaintiff Gregory Columb seeks to modify the 1988 decree
 divorcing him from defendant Marjorie Columb so that he may obtain custody
 of their daughter Merideth.  The trial court determined that the facts of
 this case do not meet the jurisdictional requirements of the Parental
 Kidnapping Prevention Act (PKPA), 28 U.S.C. { 1738A, and, therefore, Vermont
 courts lack subject matter jurisdiction.  We reverse this jurisdictional
 determination and remand for further proceedings.
      The parties separated in 1984 and the child went to live with her
 mother in New Hampshire.  The father continued to reside in Vermont and
 filed for divorce in 1987.  The divorce judgment issued in 1988 and gave

 

 the mother physical custody of the child with limited visitation rights to
 the father.  The mother began living with Robert Langlois and has since
 married him.  Prior to July 1991, they resided in New Hampshire, Nova Scotia
 and various locations in Maine.
      The events giving rise to this appeal began when the mother moved to
 New Hampshire in July 1991, while the child was visiting the father.
 According to the mother's affidavit, the move was temporary and she and Mr.
 Langlois intended to return to Maine after the tourist season to begin new
 jobs.  In fact, they moved to Utah in the fall of 1991 and have remained
 there since.
      During the 1991 summer visit to Vermont, the child reported physical
 abuse by Mr. Langlois.  After a clinical evaluation of the child, the father
 refused to return her to the mother and, on August 14, 1991, moved to modify
 the 1988 decree to transfer custody to him.  In response to the mother's
 motion to dismiss, the family court ruled that it lacked subject matter
 jurisdiction under Vermont's version of the Uniform Child Custody
 Jurisdiction Act (UCCJA), 15 V.S.A. {{ 1031-1051.  Specifically, the court
 ruled that Maine was the child's home state, that it would not be in the
 child's best interest to litigate custody in Vermont, and that Vermont was
 an inconvenient forum.
      The father moved to reconsider, alleging that the court had been misled
 into determining that Maine was the mother's and the child's home state
 when, in fact, the mother and Mr. Langlois were fighting extradition to
 Maine to respond to felony charges.  The motion was denied because the
 father's counsel failed to appear at the hearing.  The issues were, however,
 aired in response to a new motion, which was heard during a remand from this

 

 Court.  By that time, this Court had decided Shute v. Shute, 158 Vt. 242,
 247, 607 A.2d 890, 893 (1992), in which we held that, when there is a
 conflict, the PKPA preempts the UCCJA and determines which state has
 jurisdiction over child custody disputes.  Based on the PKPA, the family
 court concluded that Vermont did not have jurisdiction to modify the custody
 order and denied the motion.
      The father makes three arguments on appeal:  (1) we should limit or
 overrule Shute so that its holding does not apply in this case; (2) the
 mother waived any objection to jurisdiction over custody of the child by
 appearing in the divorce action; and (3) Vermont has jurisdiction to
 determine custody of the child because the child had no home state when the
 motions to modify custody were filed.  We begin with an analysis of Shute.
      Shute involved a noncustodial parent's attempt to enforce visitation
 rights contained in a Vermont divorce decree.  At the time the underlying
 divorce action was filed, the custodial parent and the child had resided in
 Connecticut for over six months.  The custodial parent did not contest the
 jurisdiction of the Vermont court to adjudicate the divorce and the custody
 issue.  When enforcement issues arose, however, the custodial parent began a
 proceeding in Connecticut to cut off visitation rights and asserted that the
 Vermont court did not have jurisdiction with respect to a child whose home
 state was Connecticut.  The trial court dismissed the Vermont proceeding in
 favor of the one pending in Connecticut.  Id. at 243-44, 607 A.2d  at 891-92.
      Although the parties litigated Shute under the UCCJA, which has been
 adopted in both Vermont and Connecticut, this Court concluded that the PKPA
 controlled.  That statute was enacted by Congress to establish "national
 standards for determining subject matter jurisdiction over custody matters."

 

 Id. at 245, 607 A.2d  at 893.  We found that "the language of the PKPA
 indicates that Congress intended to preempt the field of custody
 jurisdiction" and that intent was achieved through the Supremacy Clause.
 Id. at 246, 607 A.2d  at 893.
      The preemption issue was important in Shute because the PKPA and the
 UCCJA, although similar in purpose and approach, differ on the
 consideration to be given to the home state of the child.  The "home state"
 is defined as "the state in which the child immediately preceding the time
 involved lived with his parents, a parent, or a person acting as a parent,
 for at least six consecutive months."  15 V.S.A. { 1031(5); see also 28
 U.S.C. { 1738A(b)(4) (essentially identical definition).  In both statutes,
 periods of temporary absence are counted as part of the six-month period.
      The UCCJA grants jurisdiction to adjudicate custody to the child's home
 state at the time of the commencement of the proceeding, or, in certain
 circumstances, to the state that was the home state within six months
 before the proceedings commenced, 15 V.S.A. { 1032(a)(1), but it also grants
 jurisdiction to a state that is not the home state when there are certain
 contacts and "it is in the best interest of the child."  15 V.S.A. {
 1032(a)(2).  The PKPA, on the other hand, gives primacy to the home state or
 the recent home state (FN1) and does not authorize alternative "best interest"
 
 

 jurisdiction unless there is no home state.  See 28 U.S.C. {
 1738A(c)(2)(B)(i) (court may look to other tests to assert jurisdiction;
 "best interests" standard only applies if "it appears that no other state
 would have jurisdiction" as home state).
      In Shute, the home state of the child was Connecticut even at the time
 the original divorce action was filed as both mother and child had been
 residents of Connecticut for nine months before the divorce action was filed
 in Vermont.  158 Vt. at 247, 607 A.2d  at 894.  Thus, we held that
 Connecticut had jurisdiction under the PKPA, and it was improper for
 Vermont to assert jurisdiction.  Id. at 248, 607 A.2d  at 894.
      The facts of this case are in many respects similar to those in Shute.
 As in Shute, when the underlying custody order was issued, another state, in
 this case New Hampshire, was the home state of the child.  As in Shute, this
 state has never become the home state of the child although the noncustodial
 parent resides in Vermont and the child has been here for visits.  Unlike
 Shute, however, in this case, there is no proceeding pending in the home
 state of the child if, indeed, the child now has a home state.
      The father argues that the PKPA does not apply in this circumstance
 and, therefore, does not preempt the UCCJA because the PKPA deals only with
 situations when one state must give full faith and credit to the custody
 decision of another state and when a custody decision of one state is to be
 modified in another state.  Thus, in the father's view, the initial
 jurisdiction question, before any interstate conflict arises, is determined
 solely by the UCCJA and can be based on "best interest" jurisdiction.  Shute
 can be distinguished, the father argues, because in that case separate
 proceedings existed in Connecticut creating the interstate conflict.

 

      The father acknowledges that his argument would result in a custody
 order that is not entitled to full faith and credit in other states because
 the order would not meet PKPA requirements.  He argues that we should ignore
 this deficiency because other states are free to recognize our order even if
 they are not required to do so.
      We agree that in the narrow sense urged by the father the PKPA does not
 preempt the jurisdictional authority granted in the UCCJA.  See E.E.B. v.
 D.A., 446 A.2d 871, 879 (N.J. 1982) (PKPA does not "significantly disrupt"
 jurisdictional provisions of UCCJA), cert. denied, 459 U.S. 1210 (1983);
 Coombs, Interstate Child Custody: Jurisdiction, Recognition, and
 Enforcement, 66 Minn. L. Rev. 711, 822-34 (1982) (preemption exists only to
 the extent compliance with both is impossible).(FN2) As the father argues, the
 PKPA governs the enforceability of one state's custody order in another
 state and the other state's power to modify that order; it does not purport
 to control the jurisdiction to issue an initial order.  See Thompson v.
 Thompson, 484 U.S. 174, 181 (1988) (purpose of PKPA is "to provide for
 nationwide enforcement of custody orders made in accordance with the terms
 of the UCCJA"); Foster, Child Custody Jurisdiction:  UCCJA and PKPA, 27
 N.Y.L. Sch. L. Rev. 297, 307 (1981).  Thus, there is no conflict between the
 UCCJA, which controls initial jurisdiction, and the PKPA, which does not.
      The father's argument, however, ignores the coercive effect of the PKPA
 on the jurisdictional choices available to us.  In practice,

 

         [i]t seems obvious . . . that all states will wish their
         decrees to have the protection of the rather strict
         enforcement requirements of the PKPA.  It follows that
         they will be guided by the conditions which that Act
         imposes for enforcement where those conditions differ
         from the UCCJA.  But in order to be enforceable under
         the PKPA, a state's decree must also be based upon
         jurisdiction under its own law, which means, now that
         the UCCJA is in force in all states, under the UCCJA.
         Thus for all practical purposes initial jurisdiction in
         custody cases must comply with both the PKPA and the
         UCCJA.

 1 H. Clark, The Law of Domestic Relations { 13.5, at 804-05 (2d ed. 1987)
 (footnotes omitted); see also Foster, supra, at 331 (noting that PKPA
 "coerces conformity with its standards").  The theoretical possibility that
 a home state would recognize a Vermont custody order issued without the full
 faith and credit protection of the PKPA is overwhelmed by the reality that
 courts have too often failed to respect other states' custody decrees even
 when issued in conformity with the UCCJA and PKPA.  See generally Charlow,
 Jurisdictional Gerrymandering and the Parental Kidnapping Protection Act, 25
 Fam. L.Q. 299, 311-13 (1991) (despite passage of PKPA, "conflicting custody
 orders in different state courts continue to be commonplace").  Further, a
 home state custody order issued in direct conflict with such a Vermont order
 would be entitled to full faith and credit in other states and, by virtue of
 the PKPA, in Vermont.  Thus, if Vermont moves to assert jurisdiction when
 its order is not entitled to full faith and credit, the mother has every
 incentive to start a proceeding in Utah and refuse to comply with any
 Vermont order.  To ignore these realities is likely to entangle this child
 in a web of proceedings satisfactory to no one.
      In Shute, we overruled earlier cases holding that the UCCJA expressed
 "no clear preference for home state jurisdiction."  Shute, 158 Vt. at 248,

 

 607 A.2d  at 894.(FN3) This case gives us the opportunity to further explain the
 significance of our actions in Shute to our construction of the UCCJA.  In
 light of the PKPA preference for home state jurisdiction, we hold that it is
 not normally in the best interest of the child for Vermont to exercise
 jurisdiction to determine the custody of a child whose home state or recent
 home state is other than Vermont.  See 15 V.S.A. { 1032(a)(2); see also
 Coombs, supra, at 851 (arguing that this interpretation of the UCCJA was
 always intended in the context of initial proceedings).  Further, we hold
 that Vermont is normally an inconvenient forum to determine the custody of a
 child who has a home state other than Vermont.  See 15 V.S.A. { 1036(a)
 (court with jurisdiction may decline to exercise jurisdiction if court finds
 that it is an inconvenient forum); see also 28 U.S.C. { 1738A(c)(2) (primacy
 of home-state jurisdiction).  In such a case, an appropriate remedy is to
 dismiss the Vermont proceedings.  15 V.S.A. { 1036(e).  Any exceptions to
 these rules -- for example, when the home state declines jurisdiction --
 must be narrow and extraordinary.
      When the UCCJA is properly construed, the issue raised by the father
 becomes irrelevant.  Although the PKPA does not preempt the UCCJA in the
 circumstances of this case, we construe the UCCJA consistent with the
 policies of the PKPA to avoid any conflict.  The practical significance of
 this holding is that the home-state preference of the PKPA applies in
 initial custody determinations as well as in modification or enforcement
 
 

proceedings involving the courts of more than one state.  If a child has a
 home state other than Vermont at the relevant time periods, ordinarily the
 Vermont courts will lack subject matter jurisdiction over the custody
 proceeding.
      The father next argues that the mother waived any jurisdictional defect
 by voluntarily submitting to the jurisdiction of Vermont courts at the time
 of the divorce.  This argument was addressed in Shute when the noncustodial
 parent argued that the custodial parent had agreed to Vermont jurisdiction.
 We held that the defect could not be waived because "[s]ubject matter
 jurisdiction cannot be conferred by agreement or consent of the parties when
 it is not given by law."  Shute, 158 Vt. at 248, 607 A.2d  at 894.  We also
 note that neither the UCCJA nor the PKPA specifically recognizes waiver or
 agreement as a ground to establish jurisdiction.  We conclude that
 jurisdiction was not established by waiver in this case.
      The father's final argument is that Vermont has jurisdiction even if
 the home-state-preference rule of the PKPA is in force.  To find
 jurisdiction, we must find that the circumstances required by the UCCJA, and
 indirectly the PKPA, are present at the commencement of the custody
 proceeding.  Peloso v. Botkin, 144 Vt. 461, 464, 479 A.2d 156, 158 (1984).
 There are three relevant points in time when we might find that a proceeding
 was commenced.  See 28 U.S.C. { 1738A(c)(2)(A) (home state jurisdiction
 determined at time of "commencement of the proceeding"); 15 V.S.A. {
 1032(a)(1) (same).  They are (1) the date of the commencement of the
 divorce, (2) the date the father filed the initial motion to modify, and (3)
 the date the father filed his renewed motion to modify on remand from this
 
 

 Court.  The father has argued that the family court had jurisdiction on the
 latter two dates.
      Vermont was not the home state of the child on any of these dates.  On
 the first date, New Hampshire was the home state of the child.  There is
 nothing to suggest that this was an extraordinary situation for which we
 should carve out an exception to the rule of home-state primacy under the
 PKPA in order to find that Vermont had jurisdiction to adjudicate custody
 of the child at that time.  Thus, in accordance with our earlier holding, it
 was not in the best interest of the child for Vermont to assume
 jurisdiction at that time, and Vermont was an inconvenient forum to
 determine custody of the child.  Because there was no subject matter
 jurisdiction for determining custody based on the divorce filing, the father
 cannot rely on the underlying action for jurisdiction over his motion to
 modify.  See 28 U.S.C. { 1738A(d) (when state has made child custody
 determination "consistently with the provisions of this section,"
 jurisdiction may continue if state remains residence of child or any
 contestant and jurisdiction in proper under UCCJA).
      The second date is August 14, 1991, when the father filed his initial
 motion to modify the custody decision.  At that time, the mother was
 temporarily living in New Hampshire and the child was visiting the father in
 Vermont.  The trial court found that the home state of the child on that
 date was Maine because she had lived over six months with the mother in that
 state and was away on a period of "temporary absence."  15 V.S.A. { 1031(5);
 see also 28 U.S.C. { 1738A(b)(4) (periods of temporary absence are counted
 as part of six-month period).  Although the father has questioned that
 ruling, asserting that the mother and Mr. Langlois withheld evidence of
 
 

 their criminal problems in Maine, he failed to appear at a hearing and his
 motion was dismissed for nonprosecution.  He has not attacked that
 dismissal here.  The court's finding that Maine was the home state in August
 1991 has become binding and cannot be contested.
      On the third possible date, the date the father filed his renewed
 motion to modify on January 14, 1992.  On that date, the mother and the
 child were residing in Utah but had done so for less than six months.
 Further, over six months had elapsed since the mother and the child had
 resided in Maine.  The duration of their residence in New Hampshire was
 less than six months.  Thus, the child had no home state on that date, and
 there is nothing in the PKPA or the UCCJA, as we have interpreted these
 statutes, to prevent Vermont's assertion of jurisdiction if grounds to do so
 otherwise exist.  See 28 U.S.C. { 1738A(c)(2)(B) ("best interest"
 jurisdiction may be asserted if the child has no home state and none within
 the previous six months).
      The trial court did not consider the date of the renewed motion as the
 time of commencement because it focused erroneously on the date of the
 divorce filing.  Acknowledging that the date of the motion to modify can be
 considered the date of commencement for purposes of the UCCJA or PKPA,(FN4)the
 mother argues that only August 14, 1991, can be considered the proper date
 because relitigation of jurisdiction is inconsistent with the purposes of
 the UCCJA and PKPA.  We do not find either the court's reasoning or the
 
 

 mother's argument persuasive.  The controlling statutes adopt residency and
 temporal tests to determine the existence of jurisdiction.  If a child moves
 from place to place, as this one has, the proper forum to determine custody
 will change as moves are made.  The fact that the Vermont court did not have
 jurisdiction at one time should not foreclose the court from taking it when
 circumstances change.  Indeed, failure to take jurisdiction will undermine
 the statutory purpose to adjudicate a custody dispute in the court best
 suited to do so.  See 1979, No. 136 (Adj. Sess.), { 1(3) (statement of
 purposes of UCCJA).
      The family court originally held that "best interest" jurisdiction did
 not exist in Vermont to adjudicate the father's motion to modify custody and
 that Vermont was an inconvenient forum.  Circumstances have changed
 significantly since that determination was made.  The court's more recent
 findings indicate that it would have reconsidered these conclusions but
 thought that it could not do so because of the Shute decision.  Having held
 that Shute presents no barrier to a new evaluation of the circumstances, we
 remand to the family court.
      Unfortunately, despite the need for certainty in the child's living
 environment, we can decide only whether there was a jurisdictional bar to
 the court acting some twenty-one months ago.  On remand, the family court
 must determine whether adjudication of this custody contest in Vermont is
 presently in the best interest of the child, for the reasons specified in 15
 V.S.A. { 1032(a)(2), and whether Vermont is the convenient forum, 15 V.S.A.
 { 1036.  Although the fact that the child has now established a home state
 in Utah is not determinative, the court should adjudicate the merits only if
 
 

 the current situation of the parties and the child warrant an exercise of
 jurisdiction.
      Reversed and remanded.
                                    FOR THE COURT:


                                    ______________________________
                                    Associate Justice
------------------------------------------------------------------------------
                               Footnotes

FN1.    Both the PKPA and the UCCJA extend home state jurisdiction to a
 state which was the home state of the child within six months before the
 commencement of the proceeding if "the child is absent from this state
 because of his removal or retention by a person claiming his custody or for
 other reasons, and a parent or person acting as parent continues to live in
 this state."  15 V.S.A. { 1032(a)(1)(B); see 28 U.S.C. { 1738A(c)(2)(A)(ii)
 (substantially identical requirement).  Because six months residence is
 necessary for the child to acquire a home state, this extension is necessary
 to ensure that a child does not inappropriately lose a home state.  In the
 remainder of the opinion, we have considered the extension to be part of
 home-state jurisdiction and not mentioned it separately.

FN2.    We agree with Professor Foster's statement that "[i]t may be
 somewhat of an overstatement to assert that the PKPA preempts the UCCJA, or
 it may be hypertechnical to say that it does not preempt."  Foster, Child
 Custody Jurisdiction: UCCJA and PKPA, 27 N.Y.L. Sch. L. Rev. 297, 335
 (1981).  We did not intend a broader concept of preemption in Shute: "[T]he
 PKPA preempts the Vermont statutes that conflict with the PKPA."  158 Vt. at
 247, 607 A.2d  at 893.

FN3.    The cases are Meyer v. Meyer, 148 Vt. 65, 67, 528 A.2d 749, 750
 (1987), which is factually similar to this case because there were no out-
 of-state proceedings, and Duval v. Duval, 149 Vt. 506, 513, 546 A.2d 1357,
 1361-62 (1988).  Today we accept the construction of the UCCJA rejected in
 those cases.  In neither case was the Court aware of the existence or terms
 of the PKPA and its effect on jurisdiction.

FN4.    See Boisvert v. Boisvert, 143 Vt. 445, 448, 466 A.2d 1184, 1186
 (1983); Umina v. Malbica, 538 N.E.2d 53, 57 (Mass. Ct. App. 1989).  This
 rule does not control, however, if a state "has made a child custody
 determination consistently with the provisions of this section" and
 therefore has continuing jurisdiction to consider a motion to modify.  See
 28 U.S.C. { 1738A(d) (requirements for continuing jurisdiction).