Murphy v. Danforth

Mike A. MURPHY and Karen Murphy v. Robin
DANFORTH

95-1136                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1996


1.   Guardian & ward -- Parental Kidnapping Prevention Act
     applicable -- appellants sought temporary and eventual
     permanent guardianship. -- Even though the present case
     involved a petition for guardianship rather than the more-
     usual chancery court determination of child custody, the
     supreme court declared that the Parental Kidnapping Prevention
     Act, 28 U.S.C. 1738A, (1994), was applicable because
     appellants sought to be appointed temporary guardians, with
     the temporary appointment to be made permanent; their petition
     therefore would have the effect of permanently determining
     custody and would interfere with the custody orders of a Texas
     court.

2.   Guardian & ward -- Parental Kidnapping Prevention Act --
     hierarchy of jurisdictional preferences. -- The Parental
     Kidnapping Prevention Act's hierarchy of jurisdictional
     preferences is: (1) continuing jurisdiction; (2) home-state
     jurisdiction; (3) significant-connection jurisdiction; and (4)
     jurisdiction where no other jurisdictional basis is available.

3.   Guardian & ward -- Parental Kidnapping Prevention Act -- first
     two jurisdictional categories satisfied. -- Where the Tarrant
     County, Texas, District Court ruled that it had continuing
     jurisdiction in the matter of custody and that Texas was the
     home state of the children, the record did not reflect that
     those rulings were ever appealed, and the supreme court
     determined that the first two jurisdictional categories of the
     Parental Kidnapping Prevention Act were satisfied.

4.   Guardian & ward -- Parental Kidnapping Prevention Act -- third
     jurisdictional category satisfied. -- The supreme court
     concluded that, even if continuing jurisdiction and home-state
     jurisdiction had not been in Texas, it was also the state that
     met the Parental Kidnapping Prevention Act's third criterion,
     a significant connection; appellee entered her personal
     appearance in Tarrant County, Texas, when she petitioned for
     a change of custody, that petition was still pending on the
     date of her former husband's death, and the children were
     still in that jurisdiction on the date of their father's
     death; appellants and the deceased husband's parents filed a
     petition in intervention in Tarrant County, Texas, and
     appeared there; where home-state jurisdiction is not
     available, a jurisdiction with a significant connection can
     exercise jurisdiction.
5.   Guardian & ward -- Parental Kidnapping Prevention Act --
     prohibits court from exercising jurisdiction if another court
     is already doing so -- Arkansas court appropriately refused to
     intervene. -- The Parental Kidnapping Prevention Act prohibits
     a court from exercising jurisdiction if another court is
     already exercising jurisdiction consistent with the provisions
     of the act; the supreme court concluded that the Texas court
     was providently exercising jurisdiction when the Arkansas
     court appropriately refused to interfere.

6.   Guardian & ward -- Parental Kidnapping Prevention Act --
     Uniform Child Custody Jurisdiction Act -- emergency powers
     limited -- emergency jurisdiction should not be used to modify
     custody order permanently. -- Both the Parental Kidnapping
     Prevention Act and the Uniform Child Custody Jurisdiction Act
     contain language providing for jurisdiction to be exercised on
     an emergency basis; however, emergency powers under both of
     the acts are limited; emergency jurisdiction should not be
     used to modify a custody order permanently.

7.   Guardian & ward -- appellants sought permanent change of
     custody under emergency jurisdiction -- Arkansas court
     correctly refused to exercise emergency jurisdiction. -- Where
     appellants sought a permanent change in custody under the
     exercise of emergency jurisdiction and made no suggestion that
     all of the evidence could not be produced in Texas but, in
     fact, returned the children to Texas and filed their petition
     in intervention there, the Arkansas court correctly refused to
     exercise emergency jurisdiction.


     Appeal from Ashley Probate Court; Jerry Mazzanti, Probate
Judge; affirmed.
     Law Office of Billy J. Hubbell, by: Billy J. Hubbell, for
appellants.
     Herman Hamilton, for appellee.

     Robert H. Dudley, Justice.February 19, 1996 *ADVREP3*





MIKE A. MURPHY AND KAREN
MURPHY,
                    APPELLANTS,

V.

ROBIN DANFORTH,
                    APPELLEE.



95-1136


APPEAL FROM THE ASHLEY COUNTY
PROBATE COURT,
NO. P-94-77-2,
HON. JERRY MAZZANTI, PROBATE
JUDGE,




AFFIRMED.



                   Robert H. Dudley, Justice.


     The Probate Court of Ashley County refused to exercise
jurisdiction in this multi-state child-custody case.  We affirm the
decision of the trial court.
     Karl and Robin Roseberry lived in Fort Worth, Tarrant County,
Texas.  They had two little girls, Amanda, born May 5, 1987, and
Amber, born on July 29, 1989.  In 1992, Karl filed suit for divorce
in the Tarrant County District Court.  Robin appeared personally
and contested the case.  Testimony was taken on April 15, 16, and
20, 1992, but by the time the twenty-six page decree was entered on
June 19, 1992, Robin resided in Vermont.
     The Tarrant County District Court found that it had
jurisdiction of the case, in part, because Karl had been a
domiciliary of Tarrant County for more than six months.  The decree
provided that Karl was appointed the sole managing conservator, or
was granted custody, of the two little girls, and that Robin was
appointed the possessory conservator, or was given visitation
rights.  The decree specified the times for visitation and provided
that Karl was required to provide round-trip airline fares for the
children from the Dallas-Fort Worth Airport to the Burlington,
Vermont, airport for both the summer and Christmas visitation
periods with Robin.  The district court retained jurisdiction to
make further orders.  The presiding judge was William Brigham.
     In March 1993, Karl filed a motion for custody modification in
the Tarrant County District Court.  He alleged that Robin was
guilty of sexual abuse of the children and asked that unsupervised
visitation be denied Robin and that she be enjoined from taking the
children outside of Tarrant County.  The trial court is not shown
to have acted on this motion, and the record does not disclose the
reason Karl did not pursue it.
     On July, 27, 1994, Robin filed a motion in Tarrant County and,
in part, pleaded: "This Court has acquired and retains continuing,
exclusive jurisdiction of this suit and of the children the subject
of this suit as a result of prior proceedings."  The motion alleged
that the two children were in immediate physical danger from Karl. 
Attached to the motion was the affidavit of Shalene Portman
Roseberry, who was Karl's new wife.  The affidavit stated that Karl
had severely beaten Shalene on various occasions, had threatened
the girls, had physically abused them, had stated that he was going
to Vermont to kill Robin, and had extreme outbursts of anger
accompanied with violent physical actions.   
     On July 29, 1994, the Tarrant County District Court, in an ex
parte temporary order, removed the care and custody of the children
from Karl and placed the girls in the custody of Robin.  The order
additionally restrained Karl from seeing the children.  The
district court set a hearing for August 11, 1994, to determine
whether the temporary restraining order should be made into a
temporary injunction pending final hearing and whether Robin should
be made the sole conservator.  The presiding judge again was Judge
William Brigham.
     The temporary order granting care and custody to Robin had not
been amended or modified when, on September 29, 1994, Karl was
killed in a railroad crossing accident.  On that date, the children
were in Tarrant County at the home of Karl's parents.  The record
does not disclose how or why the children were there.
     Soon after Karl's death, Karen and Mike Murphy, Karl's sister
and brother-in-law, took the children from Karl's parents' home in
Tarrant County to their home in Ashley County, Arkansas.  Almost
immediately, on October 3, 1994, Karen and Mike Murphy filed a
petition in the Probate Court of Ashley County for an ex parte
order of temporary guardianship of the two girls.  They alleged:
          Robin Danforth Roseberry has kidnapped the children
     in the past, has refused to return the children to their
     father after a visit; has a history of shoplifting and
     other bizarre behavior; and has lost custody of an older
     child to her parents because of her neglect.  Finally,
     and most serious of all, Robin Danforth Roseberry has
     allowed these minor children to be sexually molested by
     her boyfriend and has participated with her boyfriend in
     requiring the children to watch sex acts involving the
     mother and the boyfriend.  It is in the best [interest]
     of the minor children that petitioners be appointed
     temporary and permanent guardians of the person and of
     the estate of the minor children.
     They asked that the temporary guardianship be made permanent. 
On the same day, October 3, the Arkansas court appointed Karen and
Mike Murphy temporary guardians until the matter could be fully
heard on October 6, 1994.  Robin had no notice of the proceeding.
     On the same day, October 3, but in Tarrant County, Texas,
Robin filed a petition for a Writ of Habeas Corpus in which she
alleged that the girls were being illegally restrained by Karl's
parents.  Judge William Brigham issued the writ commanding Karl's
parents to produce the children before the court on October 6,
1994.
     On October 6, the Murphys, who are appellants in this case,
and Karl's parents, Curtis and Delango Roseberry, filed petitions
in intervention in the custody action in the Texas court.  All four
of the intervenors sought custody of the girls for the Murphys.
     On the same date, October 6, as the hearing was about to
commence in Ashley County, Arkansas, Probate Judge Jerry Mazzanti
stated that he had been contacted by Judge William Brigham of the
Tarrant County District Court and informed that there had "been an
ongoing proceeding there in Texas for a substantial period of
time," and that it was his impression that the Texas court should
hear the custody matter.  Judge Mazzanti stated that Judge Brigham
had not yet had time to forward certified copies of the Tarrant
County, Texas, proceedings, but because of the serious nature of
the allegations filed in the Arkansas court, he ruled that he would
take jurisdiction for consideration of an "emergency order for a
period of up to thirty days or until there is a verified order"
from Texas, and then the temporary order would then be terminated. 
Judge Mazzanti heard proof but never entered a formal order. 
Perhaps the reason was the judge knew Robin had not been given
notice of the Arkansas hearing, and that she was proceeding in
Texas. 
     The next day, October 7, in Texas, Judge Brigham issued an
"Order on Jurisdiction and Delivery of Minor Children to the
Court."  It provides, in part, "IT IS THEREFORE ORDERED that the
233rd District Court of Tarrant County, Texas has continuing
jurisdiction and the state of Texas is the home state of the
children the subject of this suit." (Emphasis added.)  On October
12, Judge Brigham issued an "Order to Return Children," which in
part provides, "The Court finds that the Applicant, ROBIN LYNN
DANFORTH, is the person entitled by law to possession of the
children, AMANDA LEE ROSEBERRY and AMBER DAWN ROSEBERRY and that
Respondents, MICHAEL ANDERSON MURPHY, KAREN LEANN MURPHY, CURTIS
ROSEBERRY, and DELANGO (JANIE) ROSEBERRY, have illegally confined
and restrained the children."  As a result of the illegal restraint
of the children, and the interventions of the Murphys and Karl's
parents, the Tarrant County District Court awarded Robin a judgment
against the Murphys and Karl's parents for $1,340.00, plus $238.00
costs.  On November 9, 1994, in the final custody order, Judge
Brigham decreed, "IT IS ORDERED AND DECREED that ROBIN LYNN
DANFORTH is the person entitled by law to possession of the
children, AMANDA LEE ROSEBERRY and AMBER DAWN ROSEBERRY."
     On December 12, 1994, the Tarrant County District Court set
the petitions for intervention for hearing on January 23, 1995.  On
January 23, 1995, an associate judge of the Tarrant County District
Court filled out a "Report for Modification" which provides that
the petitions for intervention filed by the Murphys and Karl's
parents were moot and "Court further finds that all information
involving the children is now in Vermont and this is not a
convenient forum.  Ordered that intervention is dismissed."  The
associate judge's report was approved by Judge Brigham on January
24.  
     On March 1, 1995, the Murphys filed a motion asking the
Arkansas court to reconsider its earlier order refusing to exercise
jurisdiction since the Texas court said the case was no longer
pending there.  A hearing was set for April 17, 1995.  Robin filed
a motion to dismiss.  Both parties were represented at the hearing
on the motion to reconsider.  Counsel agreed that the children had
been in Vermont since October 1994, and that the Vermont Family
Court had scheduled a hearing for May 11, 1995, on a petition for
custody that had been filed by the Murphys.  Judge Mazzanti ruled
that on October 3, 1994, the date the Murphys filed their petition
for a temporary guardianship in Arkansas, Texas was the home state
of the girls pursuant to the Parental Kidnapping Prevention Act of
1980, and, as a result, dismissed the motion to reconsider. 
     Even though this case involves a petition for guardianship,
rather than the more-usual chancery court determination of child
custody, the Parental Kidnapping Prevention Act, 28 U.S.C. 1738A,
(1994), is applicable because the Murphys sought to be appointed
temporary guardians, with the temporary appointment to be made
permanent; thus, it would have the effect of permanently
determining custody and would interfere with the Texas court's
custody orders.  See 28 U.S.C. 1738A(b)(3).  On appeal, the Murphys
first contend that under the P.K.P.A. the Texas court improperly
exercised jurisdiction because (1) Karl was deceased and, under
Texas law, the pending case between him and Robin was abated; and
(2) Texas did not meet the criteria of the P.K.P.A. as set out in
28 U.S.C.  1738A(c)(2) because no contestant continued to live in
Texas after Karl's death.  
     The Murphys' argument that the Texas court did not have
jurisdiction ignores a number of critical facts.  On July 29, 1994,
Robin again entered her personal appearance in the Tarrant County
District Court and pleaded that court "has acquired and retains
continuing, exclusive jurisdiction of this suit and of the
children."  On the same date, the Tarrant County Court gave
temporary custody of the children to Robin, and set a hearing for
August 11 to determine whether Robin should be given permanent
custody.  The order had not been amended when, on September 19,
Karl was killed.  The children were in Tarrant County on that day. 
By October 3, the children had been temporarily taken to Ashley
County, where they remained for only a few days.  On October 3, the
Murphys filed their petition for a temporary guardianship in Ashley
County, but on the same day Robin filed a petition in Tarrant
County asking that the children be returned to her.  On October 6,
Judge Brigham issued a Writ of Habeas Corpus.  This same day,
October 6, is the date Judge Mazzanti refused to exercise
jurisdiction in Ashley County.  The next day, October 7, Judge
Brigham ruled that the Tarrant County District Court "has
continuing jurisdiction and the state of Texas is the home state of
the children." (Emphasis added.)  On October 11, 1994, the Murphys
filed a petition in intervention in Tarrant County.  On the same
day, October 11, 1994, Robin, the Murphys and Karl's parents
appeared in the Tarrant County District Court and the court granted
Robin a personal judgement against the Murphys, and Karl's parents
in the amount of $1340.00, plus costs in the amount of $238.00 for
expenses she incurred in attempting to find her children.  Robin's
attorney was awarded a judgment against the Murphy's and Karl's
parents for $1,912.50.  On November 9, 1994, Judge Brigham found
that the children were in possession of the Family Court Services
in Tarrant County Texas and ruled that Robin was entitled to
permanent custody of the children.  It was not until over a month
later, on December 12, 1994, after Robin and the children were in
Vermont, that the Texas court ruled that "all information involving
the children is now in Vermont and this is not a convenient forum." 
     The P.K.P.A. hierarchy of jurisdictional preferences is: (1)
continuing jurisdiction; (2) home-state jurisdiction; (3)
significant-connection jurisdiction; and (4) jurisdiction when no
other jurisdictional basis is available. 28 U.S.C.  1738A(c); 
Jeff Atkinson, Modern Child Custody Practice,  3.24 at 165 (1986).
     Tarrant County fits within the first category.  It had
continuing jurisdiction.  The original custody decision was made
there, as were the first and the second modifications of custody, 
and the Texas court retained jurisdiction to make further orders
affecting the children.  All of the parties to this action were
there before the Texas court when the final custody order was
entered, and the Texas court ruled that it had continuing
jurisdiction.
     In addition, the Tarrant County District Court ruled that
Texas was the home state of the children.  See U.S.C.  1738(b)(4). 
The record does not reflect that these rulings were ever appealed.
     Even if continuing jurisdiction and home state jurisdiction
were not in Texas, it was also the state which met the third
criterion, a significant connection.  Robin entered her personal
appearance in Tarrant County when she petitioned for a change of
custody, that petition was still pending on the date of Karl's
death, and the children were still in that jurisdiction on the date
of Karl's death.  The Murphys and Karl's parents filed a petition
in intervention there.  They appeared there.  When home-state
jurisdiction is not available, a jurisdiction with a significant
connection can exercise jurisdiction.  28 U.S.C. 1738A(c)(2)(B). 
Manifestly, the connection was significant enough for the Texas
court to award Robin a personal judgment against the Murphys and
Karl's parents for $1340.00, plus $238.00 costs.  
     Finally, the P.K.P.A. prohibits a court from exercising
jurisdiction if another court is already exercising jurisdiction
consistent with the provisions of the act.  28 U.S.C. 1738A(g). 
The purpose of this last provision is to avoid the "havoc wreaked
by simultaneous and competitive jurisdiction."  Kimmons v. Heldt,
667 P.2d 1245 (Alaska 1983).  The Texas court was providently
exercising jurisdiction when the Arkansas court appropriately
refused to interfere.  
     Even so, the Murphys contend that the Arkansas court erred in
failing to exercise emergency jurisdiction.  The P.K.P.A. and the
Uniform Child Custody Jurisdiction Act, Ark. Code Ann.   9-13-201
to - 228 (Repl. 1993), both contain language providing for
jurisdiction to be exercised on an emergency basis.  The language
of the two acts is almost identical in this regard.  Under either
act, the only requirements for an emergency order are the physical
presence of the child and the existence of a genuine emergency such
as abandonment or abuse.  28 U.S.C.  1738A(c)(2)(C); Ark. Code
Ann.  9-13-203(a)(3) (Repl. 1993).  However, emergency powers
under both of the acts are limited.  Emergency jurisdiction should
not be used to modify a custody order permanently.  Mitchell v.
Mitchell, 437 So. 2d 122, 127 (Ala. Civ. App. 1983).  Emergency
jurisdiction may be used to enter a temporary order giving a party
custody only for as long as it takes to travel with the child to
the proper forum to seek a permanent modification of custody,
usually the home state.  Atkinson, Modern Child Custody Practice,
 3.18 at 148.  In Iacouzze v. Iacouzze, 672 P.2d 949 (Ariz. Ct.
App. 1983), aff'd, 672 P.2d 928 (Ariz. 1983), the appellate court
affirmed the trial court's decision to give the mother temporary
custody for the time it took her to commence proceedings in the
child's home state of New Jersey.  In Nussbaumer v. Nussbaumer, 442 So. 2d 1094, 1097-98 (Fla. Dist. Ct. App. 1983), the appellate
court reversed a permanent change of custody and directed that on
remand the trial court could enter a temporary order "for a period
of time no longer than is reasonably necessary to allow the father
to present his allegations of neglect ... to the proper ... court". 
Professor Atkinson suggests:  
          A circumstance in which permanent modification might
     be appropriate in a state exercising emergency
     jurisdiction would be if the evidence of the mistreatment
     or abuse was available in the state exercising emergency
     jurisdiction, but was not available or difficult to
     obtain in the child's home state.  The problem of
     availability of evidence, however, can be solved by
     taking testimony in one state and having it transmitted
     to another state.
Atkinson, Modern Child Custody Practice,  3.18 at 148, n.170.
     Here, the Murphys asked the Arkansas court to make them
temporary guardians and, after a full hearing, to make them the
permanent guardians.  Thus, they sought a permanent change in
custody under the exercise of emergency jurisdiction.  The Murphys
made no suggestion that all of the evidence could not be produced
in Texas, and, in fact, the Murphys returned the children to Texas,
and filed their petition in intervention there.  Thus, the Arkansas
court correctly refused to exercise emergency jurisdiction.  
     Affirmed.