Matthews v. Riley
Annotate this Case
MATTHEWS_V_RILEY.93-562; 162 Vt. 401; 649 A.2d 231
[Opinion Filed July 22, 1994]
Filed: 22-Jul-1994
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. 93-562
Mary Ellen Matthews Supreme Court
On Appeal from
v. Chittenden Family Court
James H. Riley March Term, 1994
Amy M. Davenport, J.
Norman R. Blais, Burlington, for plaintiff-appellant
Andrew D. Mikell, Burlington, for defendant-appellee
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
ALLEN, C.J. Plaintiff Mary Ellen Matthews appeals an order of the
family court requiring her to show cause why she should not be held in
contempt for her failure to comply with a custody order regarding visitation
between her son, Matthew, and his father, defendant James Riley. We
affirm.
The parties were divorced in Vermont in September 1986. The divorce
decree awarded the mother parental rights and responsibilities for Matthew,
and provided for regular contact between father and son, to occur at
reasonable times and places and with reasonable notice to the mother. When
this arrangement proved unworkable, the order was modified in January 1990
to establish a fixed schedule for visitation. The family had lived in
Vermont before the divorce, and they continued to live in Vermont until July
1991, when mother and son moved to Rhode Island. Because of the relocation,
the father moved to modify custody and visitation. In an order dated
September 15, 1991, the family court adjusted the father's visitation
schedule to accommodate the substantial increase in travel.
Visits took place as scheduled until May 1992, when the mother filed a
motion for relief in the Rhode Island family court, alleging the father had
abused Matthew. The father appeared in Rhode Island to contest the court's
jurisdiction. After a hearing held June 12, 1992, the Rhode Island court
assumed jurisdiction over custody and visitation pursuant to Rhode Island's
version of the Uniform Child Custody Jurisdiction Act (UCCJA)(FN1) and modified
the Vermont order to decrease father-son visits from monthly to bi-
monthly. The father then petitioned the Vermont family court to enforce the
September 1991 Vermont order and find the mother in contempt. The Vermont
family court concluded that the Rhode Island court lacked jurisdiction to
modify visitation, which meant that the Vermont court's September 1991 order
was enforceable. The family court then ordered the mother to show cause why
she should not be held in contempt for failing to comply with the visitation
provisions of the Vermont order.(FN2)
On appeal, the mother contends that the Vermont family court cannot
find her in contempt of its September 1991 modification order because that
order was superseded by the 1992 Rhode Island modification, and Vermont is
obliged to enforce the Rhode Island order. The mother also argues that even
if the Vermont order is enforceable, the Vermont family court should have
declined to exercise jurisdiction as an inconvenient forum for enforcement.
I.
Jurisdiction over interstate enforcement and modification of child
custody decrees is governed by the Parental Kidnapping Prevention Act
(PKPA), 28 U.S.C. { 1738A. See Shute v. Shute, 158 Vt. 242, 245, 607 A.2d 890, 893 (1992). The PKPA prescribes that "every State shall enforce
according to its terms, and shall not modify except as provided in [the
PKPA], any child custody determination made consistently with [the PKPA] by
a court of another State." 28 U.S.C. { 1738A(a). The Act applies to
related issues of visitation as well. Id. { 1738A(b)(3).
Resolution of this case turns on whether the Vermont court had
exclusive jurisdiction to make a child custody determination when the Rhode
Island court modified the visitation arrangement. If Vermont's custody and
visitation orders were consistent with the PKPA, they were entitled to full
faith and credit, and the 1992 Rhode Island modification had to comply with
PKPA requirements to be enforceable in other states. See Shute, 158 Vt. at
247, 607 A.2d at 894 (original orders, to be enforceable under PKPA, must
meet its requirements). If the Rhode Island modification was consistent
with the PKPA, the Act compels the Vermont family court to enforce the Rhode
Island order instead of the 1991 Vermont order. Otherwise, the Vermont
family court may disregard the Rhode Island modification and seek to enforce
its September 1991 order through contempt or other available remedies. 28
U.S.C. { 1738A(a); see also 15 V.S.A. {{ 1041-1043 (Vermont must enforce
foreign custody determination if rendering state had jurisdiction under
terms substantially in accordance with UCCJA, unless foreign determination
modified custody order of another state that had continuing jurisdiction and
did not relinquish it).
A.
We turn first to the question of whether the original divorce judgment
and subsequent modification orders issued in Vermont were consistent with
the PKPA, and thereby binding in other states. Under subsection (c) of the
Act, a custody determination is consistent with the PKPA if two requirements
are fulfilled. First, the issuing court must have jurisdiction under state
law, 28 U.S.C. { 1738A(c)(1), which in Vermont is governed by the UCCJA, 15
V.S.A. {{ 1031-1051. Second, one of the five conditions listed in PKPA
subsection (c)(2) must be met.(FN3)
For each of the three Vermont orders, the first criterion was satisfied
because Vermont had jurisdiction under the UCCJA when the orders were
issued. The UCCJA confers jurisdiction on the family court if Vermont is
the child's home state. 15 V.S.A. { 1032(a)(1).(FN4) "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 parent, for at least
six consecutive months." Id. { 1031(5).
When the 1986 divorce proceedings commenced, Matthew had lived in
Vermont at least six months; the same was true prior to the 1990
modification. He and his mother moved to Rhode Island approximately two
months before the September 1991 modification order was issued, but before
the relocation they had lived in Vermont for six consecutive months, and
Vermont was the only state that Matthew had lived in for six consecutive
months before modification proceedings commenced. This nearly continuous
residency sufficed to qualify Vermont as his home state and confer
jurisdiction under the UCCJA. The Vermont court validly exercised
jurisdiction under state law, and the orders satisfied the first PKPA
consistency requirement under { 1738A(c)(1).
Since Vermont was the home state of both parents and child, the orders
also satisfied the second PKPA requirement of consistency set forth in
{ 1738A(c)(2). This subsection lists five alternative conditions, the
first of which is a home state criterion substantially identical to that
found in the UCCJA. See 28 U.S.C. { 1738A(c)(2)(A) (home state criterion),
id. { 1738A(b)(4) (defining home state). Vermont was the home state for
purposes of both the UCCJA and the PKPA, and as a result the original 1986
custody order and the January 1990 and September 1991 modification orders (FN5)
were consistent with PKPA requirements. The orders are entitled to
enforcement in other states; any modification by another state would have to
comply with PKPA requirements to be similarly enforceable. 28 U.S.C.
{ 1738A(a).
B.
The PKPA permits a court of one state (the modifying court) to modify a
custody award made in another state (the rendering court) if: (1) the
modifying court has jurisdiction to make such a child custody determination
under PKPA subsection (c), and (2) the rendering court no longer has
jurisdiction or has declined to exercise jurisdiction. Id. { 1738A(f). In
this case, the Rhode Island family court's modification satisfied both
subsection (c) requirements. First, Rhode Island's UCCJA has home state
criteria identical to Vermont's: "the state in which the child immediately
preceding the time involved lived with his or her parents [or] parent . . .
for at least six (6) consecutive months." R.I. Gen. Laws { 15-14-3(6).
Mother and son moved from Vermont to Rhode Island in July 1991, and had
lived there continuously for at least nine months when the modification
proceedings in Rhode Island commenced.(FN6) Because they resided in Rhode
Island more than six consecutive months, the Rhode Island family court could
take jurisdiction under its UCCJA, satisfying the first PKPA subsection (c)
criterion. As the home state for UCCJA purposes, Rhode Island also was the
home state under the second subsection (c) criterion. See 28 U.S.C.
{ 1738A(c)(2)(A). Therefore, the Rhode Island family court could make a
custody determination consistent with the PKPA, which satisfies the first
criterion for modification.
The second criterion permits modification only if the rendering court
no longer has jurisdiction or has declined to exercise its jurisdiction.
Id. { 1738A(f)(2). Continuing jurisdiction under the PKPA depends on
whether (1) the rendering court continues to have jurisdiction under state
law, and (2) that state "remains the residence of the child or any
contestant." See id. { 1738A(d).(FN7) Thus, the Vermont family court had
continuing jurisdiction only if there was jurisdiction under the UCCJA, see
id. { 1738A(c)(1), and if a parent or the child lived in Vermont.
Ordinarily, the modifying court determines whether the rendering court
has continuing jurisdiction under the law of the rendering state.(FN8) See Cann
v. Howard, 850 S.W.2d 57, 60 (Ky. Ct. App. 1993); Pierce v. Pierce, 640 P.2d 899, 903 (Mont. 1982). Nothing in the record before this Court indicates
that the Rhode Island family court considered the issue of Vermont's
continuing jurisdiction under the PKPA before deciding to modify the order
of the Vermont court. But this apparent omission, in itself, does not
render the Rhode Island modification order unenforceable under the PKPA
because the Act does not divest jurisdiction for failure to follow a
specific procedure to determine jurisdiction. See 28 U.S.C. { 1738A(f). If
the Vermont family court did not have continuing jurisdiction when the Rhode
Island modification proceedings began, the PKPA would have permitted the
Rhode Island court to modify despite the failure to consider the PKPA.
Thus, in deciding whether the Rhode Island order was entitled to full faith
and credit, in the contempt proceedings the Vermont family court had to make
the determination that the Rhode Island court apparently failed to make --
the continuing jurisdiction of the Vermont family court at the time of the
Rhode Island modification.(FN9)
In considering the father's petition for enforcement, the Vermont
family court recognized that it was required to make this determination.
The court found that the residency requirement for continuing jurisdiction
was satisfied because the father, a contestant, still lives in Vermont.
See id. { 1738A(d). It failed, however, to make the second, mandatory
determination that it had jurisdiction under Vermont's UCCJA. See id.
{ 1738A(d) (continuing jurisdiction depends both on continued satisfaction
of state law requirements and continued residency of contestant).
Based on the record before this Court, we find only one plausible basis
under the UCCJA for the Vermont family court to have exercised continuing
jurisdiction when the Rhode Island modification proceedings began in 1992.
Mother and son had been living in Rhode Island at least nine consecutive
months beforehand, so Vermont was no longer their home state. See 15 V.S.A.
{{ 1031(5) (defining home state), 1032(a)(1) (home state jurisdiction).
Matthew was not abandoned in Vermont or present here to escape abuse,
mistreatment or neglect. See id. { 1032(a)(3). Rhode Island was the boy's
home state, and the Rhode Island court did not decline to exercise
jurisdiction, so the Vermont court could not take jurisdiction by default.
See id. { 1032(4) (providing for jurisdiction if "it appears that no other
state would have jurisdiction"). The Vermont family court, therefore, had
jurisdiction only if it was in Matthew's best interest because he and at
least one contestant had a "significant connection with this state," and
there was available in Vermont "substantial evidence concerning the child's
present or future care, protection, training, and personal relationships."
Id. { 1032(a)(2)(A), (B).
In the two previous cases considering the relationship between the
UCCJA and the PKPA, this Court has held that the PKPA's preference for home
state jurisdiction, established in 28 U.S.C. { 1738A(c)(2), preempts the
UCCJA to the extent the UCCJA otherwise might confer jurisdiction when
another state is the child's home state. See Columb v. Columb, ___ Vt. ___,
___, 633 A.2d 689, 691 (1993); Shute, 158 Vt. at 247, 607 A.2d at 893. In
Shute, we concluded that Vermont did not have jurisdiction under the PKPA to
make an initial custody and visitation order because the child had been
living outside Vermont for at least three years, and had established a new
home state in Connecticut when proceedings commenced. 158 Vt. at 246-48,
607 A.2d at 893-94. Similarly, in Columb we determined that Vermont could
not enforce an original custody order that was issued in Vermont when the
child had a different home state. ___ Vt. at ___, 633 A.2d at 693-94.
In determining continuing jurisdiction under { 1738A(d), the PKPA does
not mandate a home state preference. Once a court acquires jurisdiction
under the PKPA, whether it retains jurisdiction is wholly a matter of state
law and the residence of one contestant. 28 U.S.C. { 1738A(d); see id.
{ 1738A(c)(2)(E) (determinations made by court with continuing jurisdiction
are consistent with PKPA and are entitled to interstate recognition and
enforcement). The Act "does not affect the discretion of a state to limit
its own continuing jurisdiction. The statute only curtails the freedom of
another state to modify [a] decree for the period of time the rendering
state's jurisdiction continues under its own law." Coombs, Interstate
Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn. L. Rev.
711, 852 (1982).
In effect, by deferring to state law determinations of jurisdiction,
PKPA subsection (d) reflects a preference for continuing jurisdiction. The
PKPA was passed in December 1980, against a backdrop of forty-three states
that previously had adopted the UCCJA. See Uniform Child Custody
Jurisdiction Act, 9 U.L.A. pt. 1, at 115 (1988) (table of jurisdictions with
adoption dates). Of the forty-three, only Alaska and Tennessee had modified
the jurisdictional alternatives in the model UCCJA (FN10) to make home state
jurisdiction paramount; the rest of the states had codified alternative home
state and best interest bases, as Vermont did in adopting the UCCJA. See
id. { 3 cmt., at 145-48 (discussing actions of adopting jurisdictions); see
also 15 V.S.A. { 1032(a). Thus, we presume that Congress enacted the PKPA
mindful of the fact that a state court could base continuing jurisdiction on
something other than the UCCJA home state criterion, at the same time that
Congress favored home state jurisdiction for initial custody determinations.
Permitting a state to retain jurisdiction beyond the period it was the
child's home state furthers the goals of both the UCCJA and the PKPA. The
Vermont Legislature provided, as part of the general purposes of enacting
the UCCJA, that the law was intended to "avoid jurisdictional competition
and conflict with courts of other states in matters of child custody which
have in the past resulted in the shifting of children from state to state
with harmful effects on their well-being." 1979, No. 136 (Adj. Sess.)
{ 1(1). The possibility of continuing jurisdiction beyond the home state
period discourages parties from relocating to re-establish a home state only
to modify an unfavorable custody arrangement. See PKPA, Pub. L. No. 96-611,
{ 7(c)(4), 94 Stat. 3568, 3569 (1980) (PKPA intended to "discourage
continuing interstate controversies over child custody"). In providing for
continuing jurisdiction, the PKPA fosters a stable home environment and
family relationships for a child, promotes "negotiated settlement of custody
disputes, and facilitat[es] visitation between a child and [the] other
noncustodial parent." Coombs, supra, at 854 (footnote omitted).
In Columb, we said that, "[i]n light of the PKPA preference for home
state jurisdiction, . . . 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." ___ Vt.
at ___, 633 A.2d at 692-93. But Columb dealt with the question of whether
Vermont had jurisdiction to make an initial custody determination, which is
subject to the PKPA home state preference. See 28 U.S.C. { 1738A(c)(2),
(f)(1). For purposes of determining the continuing jurisdiction of the
Vermont family court under { 1738A(d), no preference exists among the
jurisdictional bases in the UCCJA, 15 V.S.A. { 1032(a), other than any
preference established in the UCCJA itself.
The "best interest" criterion, 15 V.S.A. { 1032(a)(2), offers the only
viable basis for Vermont's continued jurisdiction in this case. The father
continued to reside in Vermont, where regular visitation was to take place
between father, son, and numerous relatives; only the mother's actions
prevented visitation as scheduled. Matthew lived in Vermont his entire life
before moving to Rhode Island two years ago. Moreover, the Vermont family
court fashioned the initial custody order and two subsequent modifications
after taking extensive evidence regarding Matthew. For purposes of
continuing jurisdiction, the combination of the father's continued
residence, the boy's regular visits with his father and relatives in
Vermont, and substantial evidence regarding his care, protection and
personal relationships satisfied the best interest criteria of { 1032(a)(2).
See also Harris v. Melnick, 552 A.2d 38, 45-46 (Md. 1989) (discussing
precedent supporting proposition that jurisdiction of state, no longer home
state, continues if non-custodial parent resides there and exercises
substantial visitation); Escudero v. Henry, 395 S.E.2d 793, 796 (W. Va.
1990) (continuing jurisdiction may be based, in part, on original court's
long involvement in case that makes available to that court substantial
evidence concerning child's personal relationships, protection, and
training); Bodenheimer, The Uniform Child Custody Jurisdiction Act: A
Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand. L.
Rev. 1207, 1237 (1969) (jurisdiction continues as long as non-custodial
parent lives in state, no longer home state, and exercises visitation
privileges). Concluding that Vermont had continuing jurisdiction in these
circumstances under { 1032(a)(2) furthers the policies of both the UCCJA and
the PKPA, because parents will be discouraged from moving only to establish
another home state and obtain a conflicting custody determination. See
Michalik v. Michalik, 494 N.W.2d 391, 398 (Wis. 1993) (PKPA preference for
continuing jurisdiction discourages "unilateral removals of children for the
purpose of obtaining favorable custody decree").
To summarize, because the father has resided in Vermont and the
Vermont family court had jurisdiction under state law, Vermont had
continuing jurisdiction under the PKPA. See 28 U.S.C. { 1738A(d). The
Rhode Island court failed to comply with the prerequisites for modification
jurisdiction set forth in { 1738A(f) because there was no basis for that
court to conclude that Vermont had lost jurisdiction or was deferring to
Rhode Island, and the Rhode Island court never requested that the Vermont
family court decline jurisdiction.(FN11) See 28 U.S.C. { 1738A(f)(2). Neither
Vermont nor any other state is bound to recognize and enforce the Rhode
Island modification, see 28 U.S.C. { 1738A(a), and the Vermont family court
may enforce the September 1991 order as the last order in this case to
conform to PKPA requirements. Therefore, we affirm the family court's order
that the mother show cause why she should not be held in contempt.(FN12)
II.
The mother also argues that Vermont is not a convenient forum to
resolve enforcement issues such as contempt, and that the father's petition
should have been dismissed. The court may find a party in contempt after
determining that the party, "though able, refuses to comply with a valid,
specific court order." Andrews v. Andrews, 134 Vt. 47, 49, 349 A.2d 239,
241 (1975). The family court could have, within its discretion, dismissed
the contempt petition after finding that Vermont is an inconvenient forum
for enforcement. See Burrington v. Ashland Oil Co., 134 Vt. 211, 215-17,
356 A.2d 506, 509-11 (1976) (discussing forum non conveniens
considerations); cf. 15 V.S.A. { 1036(a) (court may decline to exercise
jurisdiction to make custody determination upon finding that it is
inconvenient forum). However, the party seeking dismissal bears a
considerable burden. In this case, there must be more than a mere showing
of inconvenience to the mother; it must also be shown that dismissal would
not seriously inconvenience the father. Burrington, 134 Vt. at 215, 356 A.2d at 509-10. Furthermore, decisions regarding enforcement of child
custody orders should be made mindful of their impact on the child. See 15
V.S.A. { 665 (best interest of child is overarching concern in custody
matters).
The family court considered whether Vermont was a convenient forum for
enforcement in terms of the UCCJA provisions that empower the family court
to dismiss a custody determination action if Vermont is an inconvenient or
inappropriate forum. See id. { 1036(e). The UCCJA, however, determines
only whether the family court has jurisdiction to make a custody
determination -- "a court decision and court orders and instructions
providing for the custody of a child, including visitation rights." Id.
{ 1031(2). The UCCJA does not affect the court's inherent power to enforce
its custody determinations, or the power of courts in other states to
enforce Vermont custody determinations made consistent with the PKPA. See
Kirylik v. Kirylik, 357 S.E.2d 449, 450 (S.C. 1987) (even if court loses
jurisdiction under UCCJA to modify prior orders, nonetheless retains
inherent power to enforce compliance with such orders through contempt
proceedings); In re J.L.V., 426 N.W.2d 112, 114 (Wis. Ct. App. 1988) (UCCJA
inapplicable to contempt proceedings); Marquiss v. Marquiss, 837 P.2d 25, 39
(Wyo. 1992) (UCCJA irrelevant to continuing jurisdiction to impose sanctions
for non-compliance). Indeed, requiring UCCJA jurisdiction as a predicate to
enforcement would defeat the purpose of the PKPA, which mandates that all
states must enforce custody determinations made consistent with PKPA
requirements, regardless of whether they could exercise jurisdiction to make
a custody determination. 28 U.S.C. { 1738A(a). However, though the
inconvenient forum calculus does not demand it, the trial court acted within
its discretion in considering the { 1036(c) forum non conveniens criteria,
intended to further the best interests of the child. See In re J.L.V., 426 N.W.2d at 114 (rejecting father's inconvenient forum argument as undercut by
prior benefit conferred by orders of current forum).
The family court found that Matthew maintains a significant connection
with Vermont despite having lived in Rhode Island since July 1991. Vermont
is where visits with his father take place, and where most of his relatives
on both sides reside. Until the 1992 Rhode Island modification proceedings,
the Vermont courts had made all custody determinations, including the order
to be enforced. As recently as 1991, as part of modification hearings, the
Vermont court had taken considerable testimony about Matthew and his
relationship with each parent. The court further determined that the most
significant and complete evidence concerning Matthew's relationship with his
father and visitation in general would be found in Vermont. In light of
these findings and the considerable inconvenience to the father that
dismissal would produce, the trial court declined to disturb the father's
choice of a Vermont forum for enforcement of the 1991 Vermont order. The
mother justifies her refusal to cooperate as necessary to protect Matthew
from the harm that would ensue from contact with his father. If this is the
case, evidence of Matthew's experiences in Vermont and his relationship with
his father should prove important to resolution of the contempt issue, and
most of that relevant evidence lies in Vermont. The family court reasonably
concluded that Vermont remains an appropriate forum for the contempt
proceedings, and hence did not abuse its discretion.
Affirmed.
FOR THE COURT:
_____________________________
Chief Justice
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Footnotes
FN1. See R.I. Gen. Laws {{ 15-14-1 to 15-14-26.
FN2. Ordinarily, an appeal would lie from the issuance of a contempt
order, not an interim order to show cause. In light of the ongoing dispute
concerning jurisdiction, and the mother's position that the Rhode Island
modification order effectively invalidates the Vermont order underlying the
father's contempt petition, awaiting the issuance of a final contempt order
would serve little purpose. Further proceedings would not develop
controlling questions of law, further delay might prove detrimental to the
child's best interest, and judicial economy would best be served by hearing
the appeal from the show cause order. See V.R.A.P. 2 (Supreme Court may
suspend appellate rules "[i]n the interest of expediting decision, or for
other good cause shown"); Castle v. Sherburne Corp., 141 Vt. 157, 165, 446 A.2d 350, 354 (1982) (suspending appellate rules pursuant to V.R.A.P. 2 and
addressing controlling questions of law in interest of judicial economy).
FN3. Subsection (c) provides:
A child custody determination made by a court of a
State is consistent with the provisions of [the PKPA]
only if --
(1) such court has jurisdiction under the
law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State
of the child on the date of the commencement
of the proceeding . . .
(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 . . .
(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 that no other State
would have jurisdiction under subparagraph
(A), (B), (C), or (E), or another State has
declined to exercise jurisdiction . . ., 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
the PKPA].
28 U.S.C. { 1738A(c).
FN4. Section 1032(a)(1) requires home state jurisdiction to be determined
at the "commencement of the proceeding." For purposes of the UCCJA, a
"proceeding" commences with the filing of a new petition for custody or
modification of a custody determination. See Boisvert v. Boisvert, 143 Vt.
445, 447-48, 466 A.2d 1184, 1185-86 (1983) (custody modification); Barden
v. Blau, 712 P.2d 481, 485 (Colo. 1986) (en banc) (visitation modification);
Kioukis v. Kioukis, 440 A.2d 894, 898 (Conn. 1981) (same); Slidell v.
Valentine, 298 N.W.2d 599, 603 (Iowa 1980) (custody modification).
FN5. The family court also had continuing jurisdiction to issue both
modification orders because the court had jurisdiction under the UCCJA, and
the father continued to live in the state. See 28 U.S.C. { 1738A(d)
(defining continuing jurisdiction). This made the modification orders
consistent with the PKPA. See id. { 1738A(c)(1), (c)(2)(E).
FN6. The record is unclear as to the date the mother petitioned the Rhode
Island family court for modification of the custody arrangement. However,
even if home state jurisdiction is measured from the time of her earliest
filing in the Rhode Island court, the ex parte motion for emergency relief
filed in May 1992, Rhode Island met the six-month minimum for home state
jurisdiction.
FN7. "Contestant" is defined as "any person, including a parent, who
claims a right to custody or visitation of a child." 28 U.S.C.
{ 1738(b)(2).
FN8. In situations in which the Vermont family court contemplates
modification of a valid custody determination of another state, the court
must contact the court of the other state directly to confer on the
question of continuing jurisdiction. See 15 V.S.A. {{ 1035(b),(c)
(simultaneous proceedings in two states), 1036(d) (dismissal of proceedings
if Vermont is an inconvenient forum). This should facilitate the process
and help prevent inconsistent or competing custody determinations.
FN9. Citing 15 V.S.A. { 1035, the dissent faults the Vermont family
court for failing to communicate to the Rhode Island court its intention to
hold contempt proceedings and not accord the Rhode Island modification full
faith and credit. Strictly speaking, the UCCJA applies to custody
determinations, not contempt proceedings, and therefore the provisions of
{ 1035 regarding simultaneous proceedings in different states do not apply.
See In re Brandon, 551 N.E.2d 506, 510 (Mass. 1990) (contempt proceeding
does not constitute "pending custody proceeding" under UCCJA). In addition,
the father's attorney had filed a memorandum with the Rhode Island family
court that clearly explained the role of the PKPA and Vermont's continuing
jurisdiction in this dispute, but the Rhode Island court order not only
ignored the PKPA requirements, it failed to acknowledge the Act's existence.
Moreover, the Vermont contempt proceedings began only after the Rhode Island
modification proceedings had finished and the case was being appealed;
therefore, in Rhode Island the matter was out of the family court's hands.
We agree that communication between potentially competing jurisdictions is
critical to supporting the fundamental policies of the PKPA and the UCCJA,
but we fail to see any basis for faulting the Vermont family court in this
case for not engaging in an endeavor of doubtful value.
FN10. Section 3(a) of the model UCCJA reads:
A court of this State which is competent to
decide child custody matters has jurisdiction to make a
child custody determination by initial or modification
decree if:
(1) this State (i) is the home state of the child
at the time of commencement of the proceeding, or (ii)
had been the child's home state within 6 months before
commencement of the proceeding and 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; or
(2) it is in the best interest of the child that
a court of this State assume jurisdiction because (i)
the child and his parents, or the child and at least one
contestant, have a significant connection with this
State, and (ii) there is available in this State
substantial evidence concerning the child's present or
future care, protection, training, and personal
relationships; or
(3) the child is physically present in this
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 or is otherwise neglected [or dependent]; or
(4)(i) it appears that no other state would have
jurisdiction under prerequisites substantially in
accordance with paragraphs (1), (2), or (3), or another
state has declined to exercise jurisdiction on the
ground that this State is the more appropriate forum to
determine the custody of the child, and (ii) it is in
the best interest of the child that this court assume
jurisdiction.
UCCJA { 3(a), 9 U.L.A. pt.1, at 143-44.
FN11. The dissent contends that the Rhode Island court did not err in
failing to determine whether Vermont would decline to exercise jurisdiction
because no motion was pending in the Vermont court, and therefore there was
nothing to "decline." This misperceives the requirement of the PKPA.
Before Rhode Island could modify, Vermont must have declined to exercise its
jurisdiction to modify. The issue is not whether proceedings are pending in
the rendering court, but whether the rendering court has declined to take
jurisdiction over a proceeding to modify its initial determination.
FN12. The dissent also argues that since both states had jurisdiction
under their respective versions of the UCCJA, "[o]verriding Rhode Island's
jurisdiction to modify rests on an exceedingly thin reed." But this
conclusion begs the central question -- whether Rhode Island had
jurisdiction under the PKPA. See 28 U.S.C. { 1738A(a) (modification is
entitled to full faith and credit only if court complies with PKPA
requirements). Modification jurisdiction is not simply a matter of state
law alone. Though both states satisfied the jurisdictional prerequisites of
their respective versions of the UCCJA, Vermont further satisfied the
criteria for continuing jurisdiction under the PKPA, jurisdiction that the
family court did not surrender.
-------------------------------------------------------------------------------
Dissenting
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. 93-562
Mary Ellen Matthews Supreme Court
On Appeal from
v. Chittenden Family Court
James H. Riley March Term, 1994
Amy M. Davenport, J.
Norman R. Blais, Burlington, for plaintiff-appellant
Andrew D. Mikell, Burlington, for defendant-appellee
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
MORSE, J., dissenting. In the Fall 1992, the Rhode Island family court
modified father's visitation with his son from monthly, as previously set in
Vermont, to bimonthly. About a year later, the Vermont family court ordered
mother to show cause why she should not be held in contempt for preventing
father monthly visitation, as it had ordered. Ironically, nothing in the
record before us indicates Rhode Island's awareness of the Vermont court's
contrary view of Rhode Island's authority.
All this happened despite the admonition of key features of the UCCJA,
enacted in both states. I believe this case was mishandled in both states
largely because each court failed to implement the paramount feature of the
UCCJA -- interstate communication. This Court has now leaped into the fray
as if great values of sovereignty were threatened. A few telephone calls
between trial judges of the two states could have done more for the best
interests of the parties' son than this jurisdictional war. I respectfully
dissent.
The UCCJA stresses the importance for courts of competing jurisdictions
to communicate before any substantive decisions are made. Neither Rhode
Island in 1992 nor Vermont in 1993 made even a passing reference in their
decisions to the need for communication with each other. The relevant
UCCJA provision states:
(a) [The family court] shall not exercise its juris-
diction under this chapter if at the time of filing the
petition a proceeding concerning the custody of the
child was pending in a court of another state exercising
jurisdiction substantially in conformity with this
chapter, unless the proceeding is stayed by the court of
the other state because this state is a more appropriate
forum or for other reasons.
(b) Before hearing the petition in a custody pro-
ceeding the court shall examine the pleadings and other
information supplied by the parties under { 1038 of this
title [R.I. Gen. Laws { 15-14-11] and shall consult the
child custody registry established under { 1044 of this
title [R.I. Gen. Laws { 15-14-17] concerning the
pendency of proceedings with respect to the child in
other states. If the court has reason to believe that
proceedings may be pending in another state, it shall
direct an inquiry to the state court administrator or
other appropriate official of the other state.
(c) If the court is informed during the course of the
proceeding that a proceeding concerning the custody of
the child was pending in another state before the court
assumed jurisdiction it shall stay the proceeding and
communicate with the court in which the other proceeding
is pending to the end that the issue may be litigated in
the more appropriate forum and that information be
exchanged in accordance with sections 1047-1050 of this
title [R.I. Gen. Laws {{ 15-14-20 to -23]. If [the
family court] has made a custody decree before being
informed of a pending proceeding in a court of another
state it shall immediately inform that court of the
fact. If the court is informed that a proceeding was
commenced in another state after it assumed
jurisdiction, it shall likewise inform the other court
to the end that the issues may be litigated in the more
appropriate forum.
15 V.S.A. { 1035. In addition, specifically addressing the family court's
discretion to decline or retain jurisdiction, the UCCJA provides:
Before determining whether to decline or retain
jurisdiction, the court may communicate with a court of
another state and exchange information pertinent to the
assumption of jurisdiction by either court with a view
to assuring that jurisdiction will be exercised by the
more appropriate court and that a forum will be
available to the parties.
Id. { 1036(d); see also R.I. Gen. Laws { 15-14-8(d).
We have scant way of telling on the less than full record before us how
the modification proceedings in Rhode Island played out. Under the facts
before us, both Vermont and Rhode Island were about equally well-situated
to determine the issue of visitation. Overriding Rhode Island's juris-
diction to modify visitation rests on an exceedingly thin reed -- the
relative importance of father's and son's "significant connection" to
Vermont in contrast to Rhode Island being the boy's "home state."
Further, the Rhode Island court is faulted for not dismissing the
mother's motion to modify because Vermont did not "decline" jurisdiction.
There was, however, nothing at that time to "decline," because no motion was
pending here when the Rhode Island action was commenced and decided. Rhode
Island should have communicated with Vermont as required, but its failure to
call did not give Vermont cause to ignore Rhode Island a year later when it
took up the parties' dispute. Two wrongs do not make a right.
The UCCJA preference is that before a court decides that it is the
appropriate forum, it share information and consult with the competing
jurisdiction. The utter failure to do that here was an abuse of discretion.
Had Vermont and Rhode Island conferred over the visitation dispute, most
likely it would not be before us now. The breakdown in communication has
caused inordinate delay, expense and heartache.
My disagreement also extends to the Court's decision to suspend the
appellate rules to decide the merits of jurisdiction. The assumptions
justifying shortcutting the process are nothing short of speculation. The
critical point is that the family court has not made a finding of contempt,
and it is not a foregone conclusion that it would. And even if it were to
hold mother in contempt at some future date, we have no idea what the
sanctions might be, if there would be any. Taking interlocutory control of
this case at this time is tantamount to reviewing a scheduling order as if
the merits were already decided -- a highly unusual step. There is simply
nothing extraordinary about a family court dispute where the only issue is
whether one party is allowed monthly or bimonthly visitation.
I would dismiss the appeal as premature, but if it were ripe would
remand to the family court to communicate with Rhode Island as required by
the UCCJA.
_________________________________
James L. Morse, Associate Justice
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