Marchele (Richardson) Moore v. Curtis Richardson

Marchele (Richardson) MOORE v. Curtis
RICHARDSON

97-636                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 12, 1998


1.   Parent & child -- child-custody jurisdiction -- subject-matter
     jurisdiction applicable. -- Subject-matter jurisdiction is a
     defense that cannot either be waived by the parties at any
     time or conferred by the parties' consent; under the Parental
     Kidnapping Prevention Act of 1980 (PKPA) and the Uniform Child
     Custody Jurisdiction Act (UCCJA), child-custody jurisdiction
     is a matter of subject-matter jurisdiction.

2.   Parent & child -- child-custody jurisdiction -- appellee's
     general appearance before Texas court did not waive right to
     contest that court's subject-matter jurisdiction. -- 
     Appellant's characterization of the issue as one of personal
     jurisdiction was incorrect; the issue was one of subject-
     matter jurisdiction; the fact that appellee may have entered
     a general appearance before the Texas court did not waive his
     right to contest the Texas court's subject-matter
     jurisdiction.

 3.  Parent & child -- child-custody jurisdiction -- state conflict
     over -- how analyzed. -- When dealing with state conflicts
     over child-custody jurisdiction, the supreme court analyzes
     the facts under the provisions of the UCCJA and PKPA; orders
     providing for visitation or modifying visitation come within
     the PKPA's definition of "custody determinations";  where the
     UCCJA and PKPA conflict, the PKPA preempts; this Act
     specifically mandates that the appropriate authorities of
     every state shall not modify except as provided in subsection
     (f) of 28 U.S.C. 1738A, any child-custody determination made
     consistently with the provisions of that section by a court of
     another state.

4.   Parent & child -- child-custody jurisdiction -- conditions
     under which Texas court could properly have taken jurisdiction
     -- Texas court found one condition met. -- Under the terms of
     the PKPA, the Texas court could have taken jurisdiction to
     modify the custody or visitation order of the Arkansas court
     only if it met the following two conditions under subsection
     (f): (1) Texas must have had jurisdiction under one of the
     criteria of 1738A(c), and (2) the Arkansas court that issued
     the initial custody order must have either declined
     jurisdiction or no longer have had jurisdiction; here, Texas
     did specifically determine that it had jurisdiction under
     subsection (c)(2)(A) as the home state of the child.  

5.   Parent & child -- child-custody jurisdiction -- how long
     jurisdiction continues. -- Subsection (d) of the PKPA
     expressly states that the jurisdiction of a court of a state
     that has made a child-custody determination consistently with
     the provisions of the act continues as long as the state 
     court has jurisdiction under the law of the state and that
     state remains the residence of the child or of any contestant. 
      
6.   Parent & child -- child-custody jurisdiction -- Arkansas court
     had jurisdiction to modify order -- requirements of subsection
     (c)(1), and subsection (d), of the PKPA were met. -- Under
     Arkansas's UCCJA, the chancery court clearly had jurisdiction
     to modify its February 1993 order, the original order granting
     custody and visitation; in compliance with the requirements of
     Ark. Code Ann.  9-13-203(a)(1), at the time of the divorce
     decree, Arkansas was the home state of the child; even after
     the mother and child moved to Texas, the child's father
     continued to reside in the county; and that county's chancery
     court continued to exercise its jurisdiction and modified its
     original order on several occasions, at both parties'
     requests; the requirements of subsection (c)(1), and therefore
     of 28 U.S.C 1738A(d), of the PKPA were met.

7.   Parent & child -- child-custody jurisdiction -- Arkansas court
     in compliance with PKPA and UCCJA -- Texas court did not have
     jurisdiction. -- Where the Arkansas court was in compliance
     with the requirements of the PKPA and UCCJA, and neither
     declined nor lacked jurisdiction to modify its initial
     visitation decree, the Texas court did not have jurisdiction
     under 28 U.S.C.  1738A(f).

8.   Parent & child -- child-custody jurisdiction -- court cannot
     exercise jurisdiction in proceeding if court in another state
     is exercising jurisdiction consistent with provisions of PKPA.
     -- The PKPA expressly provides that a court cannot exercise
     jurisdiction in a proceeding if a court in another state is
     exercising jurisdiction consistent with the provisions of the
     PKPA; however, one state may assume jurisdiction and become an
     alternate forum where the initial state declines to exercise
     its jurisdiction. 

9.   Parent & child -- child-custody jurisdiction -- priority to
     jurisdictional bases for modification under PKPA. -- Priority
     is given to jurisdictional bases under the PKPA in the
     following order: (1) continuing jurisdiction; (2) home-state
     jurisdiction; (3) significant-connection jurisdiction; and
     (4) jurisdiction when no other jurisdictional basis is
     available; here, even if the Texas court is now the home state
     of the child, the Arkansas court properly exercised continuing
     jurisdiction because that basis has priority over home-state
     jurisdiction under the PKPA.

10.  Parent & child -- child-custody jurisdiction -- when exercise
     of emergency jurisdiction allowed. -- The PKPA provides for
     emergency jurisdiction as a means for a state that does not
     possess exclusive continuing jurisdiction to enter a temporary
     order until the state with continuing jurisdiction is able to
     determine the issues; both the PKPA and UCCJA allow a court to
     exercise emergency jurisdiction when the child is physically
     present and a genuine emergency, such as abandonment or abuse,
     exists; jurisdiction based on an emergency under the UCCJA may
     only be used in extreme or extraordinary situations where the
     immediate health and welfare of the child is at stake.

11.  Parent & child -- child-custody jurisdiction -- emergency
     jurisdiction should not be used to permanently modify custody
     order. -- Emergency powers are limited and should not be used
     to permanently modify a custody order; they should only be
     used to give a party custody for as long as it takes to travel
     with the child to the proper forum to seek a permanent
     modification; emergency jurisdiction may be exercised
     independently of the order of preferences, but relief under
     emergency jurisdiction would normally be only temporary, and
     the parties would be directed to return to a court with the
     most preferred jurisdictional basis.

12.  Parent & child -- child-custody jurisdiction -- emergency
     jurisdiction improperly used to seek permanent modification of
     custody order -- Texas court without jurisdiction to
     permanently modify Arkansas court's order. -- The Arkansas
     court had the benefit of evaluations and reports made both in
     Texas and in Arkansas; therefore, a permanent modification by
     the Texas court was not appropriate if Texas was exercising
     authority under the emergency-jurisdiction provisions of the
     PKPA; even if an emergency existed because of family abuse,
     the Texas court possessed only the limited jurisdiction to
     give relief for the period of time that it took appellant to
     go to the appropriate forum to seek permanent modification of
     the custody order; it appeared that at all times, the child
     remained in appellant's custody and was apparently safe; under
     these circumstances, she should have sought relief from the
     Arkansas court, from which she had sought relief several times
     before, as the court with preferred jurisdiction to
     permanently modify visitation; the order of the chancery court
     finding appellant in contempt for violation of its child-
     visitation order was affirmed.


     Appeal from Sebastian Chancery Court; Harry Foltz, Chancellor;
affirmed.
     Amy Blackwood, for appellant.
     Dale Arnold, for appellee.

     Ray Thornton, Justice.
     Appellant Marchele (Richardson) Moore brings this appeal from
the ruling of the Sebastian County Chancery Court finding her in
contempt for violation of its child-visitation order.  For
reversal, Ms. Moore argues that the chancery court's order finding
her in contempt was void for want of jurisdiction both under the
Parental Kidnapping Prevention Act of 1980 (PKPA) and the Uniform
Child Custody Jurisdiction Act (UCCJA), and because appellee Curtis
Richardson voluntarily submitted himself to a Texas court's
jurisdiction.  We hold that the Arkansas court properly exercised
continuing jurisdiction and affirm.
     The Sebastian County Chancery Court entered a decree of
divorce on February 2, 1993, granting Ms. Moore and Mr. Richardson
an absolute divorce.  The chancery court also awarded Ms. Moore
custody of the parties' minor daughter, required Mr. Richardson to
pay child support, and awarded him visitation rights.
     Ms. Moore filed a petition for modification of this order on
October 25, 1995, requesting that the court terminate visitation
because Mr. Richardson was being investigated for allegedly abusing
the child, and she also requested the court's permission to move to
Seymour, Texas, with the child.  Debra Brown, a licensed
psychological examiner, testified that these allegations had been
investigated by the Arkansas Department of Human Services (DHS) and
local law enforcement, who decided that the allegations did not
warrant further action.
     By order dated March 26, 1996, the chancery court granted Ms.
Moore permission to move after May 15, but denied her request to
terminate visitation with the child's father.  The court modified
the visitation to require that all future visits be supervised and
limited visitation to one weekend a month once Ms. Moore and the
child moved to Texas.  The court also held Mr. Richardson in
contempt for nonpayment of child support.
     Mr. Richardson filed a petition in July 1996, requesting that
the court hold Ms. Moore in contempt for violating the March order
when she cut off all visitation after the move to Texas.  In her
counterclaim, Ms. Moore contended that Mr. Richardson had failed to
pay child support, asserted that the visitation was not properly
supervised, and alleged that the child had told Texas DHS workers
that she had been physically and emotionally abused after the
Arkansas court had ordered that the visits be supervised.  Ms.
Moore attached copies of affidavits from Rachel Oquendo, a child
sexual-assault counselor at First Step in Texas.  She also
responded that an active DHS case was pending in this matter in
Texas, and if she allowed visitation, action would be taken against
her by the Texas DHS.
     A hearing was held in Sebastian County on October 21, 1996, at
which time the court heard testimony from both parents and
conducted an in camera interview with the child.  In its October 22
order, the court expressed its reluctance to modify the supervised
visitation ordered the previous March, where the court had
concluded that the child was not in danger.  The court then found
that the allegations of child abuse in both Arkansas and Texas had
not been substantiated, and decided that it would not cut off the
child's natural father's visitation rights on the basis of the
evidence and testimony presented.  However, the chancery court
stressed that visitation be supervised at all times by Mr.
Richardson's mother, Martha O'Neal, or by Mr. O'Neal, her husband.
     On November 25, 1996, a Texas court issued an ex parte
protective order finding that Ms. Moore was in "clear and present
danger of family violence" and ordering Mr. Richardson to appear at
a hearing in Seymour, Texas, on December 17, 1996, to show cause
why this order should not become permanent.  The emergency order
was effective for twenty days.  Mr. Richardson made a general
appearance on December 17, and provided the Texas court with a
certified copy of the Arkansas court's October order.
     On January 3, 1997, Mr. Richardson filed a motion for contempt
in Sebastian County, asserting that he was being denied visitation
and that Ms. Moore was seeking to have the State of Texas assume
jurisdiction to modify visitation.  Mr. Richardson's attorney
called the court's attention to a hearing scheduled by the Texas
court for February 3, 1997, to consider whether to terminate Mr.
Richardson's parental rights.
     Chancellor Harry Foltz, who had been exercising continuing
jurisdiction in the Arkansas court, sent Judge David Hajek of the
50th judicial district in Seymour, Texas, a letter dated January
17, 1997, attempting to resolve an apparent jurisdictional
conflict.  In the letter, Chancellor Foltz stated his belief that
the Arkansas court retained jurisdiction in the case under 28
U.S.C.  1738A(d) (1994), because the father continued to reside in
Arkansas and the original custody determination was made in
compliance with the provisions of the PKPA and the UCCJA.  He
informed the Texas court that he had a pending motion for contempt
before him, set for hearing on March 13, and requested a response
from Judge Hajek.
     Ms. Moore filed a motion to dismiss the contempt proceeding on
March 4, 1997, alleging that the chancery court (1) did not have
personal jurisdiction over the parties, (2) did not have subject-
matter jurisdiction over the issue, and (3) could not act because
another action was pending between the same parties arising out of
the same transaction or occurrence.  In her brief in support of her
motion to dismiss, Ms. Moore alleged that the Texas court now has
jurisdiction over this proceeding.  Ms. Moore attached a copy of
the protective order that the Texas court entered on February 11,
1997, stating that both parties made a personal appearance on
December 17, 1996, and finding that the Texas court properly had
jurisdiction over the matter.  The Texas court found that Mr.
Richardson had committed family violence since the last Arkansas
court order, and that it was in the child's best interest to
prohibit Mr. Richardson from contacting or approaching the child
and Ms. Moore, except within the parameters approved by the court. 
The Texas court separately modified visitation, ordering that it
occur only under the supervision of Diana Lochridge, a licensed
professional counselor in Texas.
     After the March 13 hearing, the Arkansas court entered an
order setting forth its findings.  In its March 17 order, the court
denied Ms. Moore's motion to dismiss for lack of jurisdiction,
stating that it had had jurisdiction over this case and these
parties since it entered the initial divorce complaint in 1993, and
had exercised this jurisdiction as recently as October 22, 1996,
when Ms. Moore, as well as Mr. Richardson, had requested and
received relief from the Arkansas court.  In the order, the
Arkansas court claimed to have jurisdiction under the PKPA, 28
U.S.C.  1738A(d).  The court also stated that it had attempted to
comply with the provisions of the UCCJA requiring that two courts
involved in simultaneous proceedings communicate with one another,
but that the Texas court did not respond.  See Ark. Code Ann.  9-
13-206 (Repl. 1993).  The court found Ms. Moore in contempt for
violation of its visitation orders and for failing to appear in
violation of its January 3 order to show cause.  The court ordered
the sheriff to incarcerate Ms. Moore until a hearing could be held
to determine if she should be released, or until she posted a
$2,500 bond to insure her presence at the next hearing.  From this
order, Ms. Moore brings this appeal.
     Ms. Moore argues that the Arkansas court erred in ruling that
it had continuing jurisdiction because Mr. Richardson, through his
general appearances before the Texas court on December 17 and
February 7, "submitted himself and fully engaged in the litigation
process."  She states that, by his appearance, he acquiesced and
waived his right to object to the Texas court's assumption of
jurisdiction.
     Ms. Moore also contends that the Texas court properly had
jurisdiction under the PKPA, even though Arkansas had original
jurisdiction under the UCCJA.  She alleges that the Texas court
correctly exercised jurisdiction for two reasons, citing 28 U.S.C.
 1738A(c): (1) because Texas is now the "home state" of the child
and is therefore given jurisdictional preference under the PKPA,
and (2) because it was necessary to protect the child from
continued mistreatment or abuse under the "emergency jurisdiction"
provision of the PKPA.
     Ms. Moore attempts to analyze jurisdiction in terms of whether
Mr. Richardson's appearance before the Texas court waived his right
to object to jurisdiction, mischaracterizing the issue as one of
personal jurisdiction, rather than an issue of subject-matter
jurisdiction, which is a defense that cannot either be waived by
the parties at any time or conferred by the parties' consent.  See
Ark. R. Civ. P. 12(h)(3).  Under the PKPA and UCCJA, child-custody
jurisdiction is a matter of subject-matter jurisdiction.  1 Jeff
Atkinson, Modern Child Custody Practice  3.31, at 175 (1986). 
Therefore, the fact that Mr. Richardson may have entered a general
appearance before the Texas court does not waive his right to
contest the Texas court's subject-matter jurisdiction.  See, e.g.,
McBride v. McBride, 688 So. 2d 856 (Ala. Ct. Civ. App. 1997)
(stating that the UCCJA provisions relate to subject-matter
jurisdiction, which cannot be vested by the parties even if all
parties consent and request an adjudication on the merits).
     When dealing with state conflicts over child-custody
jurisdiction, we analyze the facts under the provisions of the
UCCJA and PKPA.  Snisky v. Whisenhunt, 44 Ark. App. 13, 17, 864 S.W.2d 875, 878 (1993).  Orders providing for visitation or
modifying visitation come within the PKPA's definition of "custody
determinations."  Id.; 28 U.S.C.  1738A(b)(3).  Where the UCCJA
and PKPA conflict, the PKPA preempts.  Garrett v. Garrett, 292 Ark.
584, 587, 732 S.W.2d 127, 128 (1987).  Congress was seeking to
minimize jurisdictional conflicts such as this one when it enacted
the PKPA.  Id.  The Act specifically mandates that:
The appropriate authorities of every State shall enforce
according to its terms, and shall not modify except as
provided in subsection (f) of this section, any child
custody determination made consistently with the
provisions of this section by a court of another State.
28 U.S.C.  1738A(a).
     Under these terms of the PKPA, the Texas court should not have
taken jurisdiction to modify the custody or visitation order of the
Arkansas court unless it met the following two conditions under
subsection (f):  (1) Texas must have jurisdiction under one of the
criteria of 1738A(c), and (2) the Arkansas court that issued the
initial custody order must have either declined jurisdiction or no
longer had jurisdiction.  In this case, Texas did specifically
determine that it had jurisdiction under subsection (c)(2)(A) as
the home state of the child; however, under the second prong of
subsection (f), Texas was not permitted to exercise jurisdiction
unless the Sebastian County Chancery Court had declined to exercise
jurisdiction, or no longer had jurisdiction.
     Because the Arkansas court had clearly not declined to
exercise jurisdiction, we consider only whether the court no longer
had jurisdiction.  Ms. Moore claims that the Arkansas court
erroneously attempted to retain jurisdiction under subsection
(c)(2)(A) of the PKPA.  On the contrary, Chancellor Foltz stated in
his March 17, 1997, order that the chancery court retained
continuing jurisdiction in the case under 28 U.S.C.  1738A(d)
because the father continued to reside in Arkansas and the original
custody determination was made in compliance with the provision of
the PKPA and the UCCJA.  The chancery court was correct.
     Subsection (d) of the PKPA holds great importance in child-
custody determinations because in it Congress expressly declared
that the "jurisdiction of a court of a State which has made a child
custody determination consistently with the provisions of this
section continues as long as the requirement of subsection (c)(1)
of this section continues to be met and such State remains the
residence of the child or of any contestant."  Subsection (c)(1)
provides that a "child custody determination made by a court of a
State is consistent with the provisions of this section only if --
such court has jurisdiction under the law of such State."
     The Arkansas court must have had jurisdiction under its state
UCCJA, Ark. Code Ann.  9-13-201 to -228 (Repl. 1993), in order to
continue to exercise jurisdiction.  Under our UCCJA, the Sebastian
County Chancery Court clearly had jurisdiction to modify its
February 1993 order, the original order granting custody and
visitation.  Section 9-13-203 provides:
     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, . . . .
Ark. Code Ann.  9-13-203(a)(1).  At the time of the divorce
decree, the child had lived in Arkansas all of her life.  Although
Ms. Moore later removed herself and the child, Mr. Richardson
continues to reside in Sebastian County and that county's chancery
court has continued to exercise its jurisdiction and has modified
its original order on several occasions, at both parties' requests. 
We conclude that the requirements of subsection (c)(1), and
therefore of subsection (d), of the PKPA have been met.
     Because we have determined that the Arkansas court had neither
declined nor lacked jurisdiction to modify its initial visitation
decree, we conclude that the Texas court does not have jurisdiction
under 28 U.S.C.  1738A(f).
     We note that at the hearing before the Sebastian County
Chancery Court on March 13, Ms. Moore's counsel alleged that
perhaps the Texas court was exercising concurrent jurisdiction. 
The PKPA expressly provides that a court cannot exercise
jurisdiction in a proceeding if a court in another state is
exercising jurisdiction consistent with the provisions of the PKPA. 
28 U.S.C.  1738A(g).  The purpose of this provision is to avoid
"the havoc wreaked by simultaneous and competitive jurisdiction." 
Murphy v. Danforth, 323 Ark. 482, 490, 915 S.W.2d 697, 702 (1996);
see also Atkins v. Atkins, 308 Ark. 1, 823 S.W.2d 816 (1992). 
However, one state may assume jurisdiction and become an alternate
forum where the initial state declines to exercise its
jurisdiction.  See Snisky v. Whisenhunt, 44 Ark. App. 13, 864 S.W.2d 875 (1993).
     Ms. Moore argues that the Texas court's jurisdiction takes
precedence because Texas is now the "home state" of the child, a
status that is given priority under the PKPA.  However, we have
stated that we give priority to jurisdictional bases under the PKPA
in the following order:
(1) continuing jurisdiction; (2) home-state jurisdiction;
(3) significant-connection jurisdiction; and
(4) jurisdiction when no other jurisdictional basis is
available.
Murphy v. Danforth, 323 Ark. at 490, 915 S.W.2d  at 701 (citing 28
U.S.C.  1738A(c); Atkinson, Modern Child Custody Practice  3.24,
at 165).  Even if the Texas court is now the home state of the
child, the Arkansas court properly exercised continuing
jurisdiction because that basis has priority over home-state
jurisdiction under the PKPA.
     Ms. Moore also claims that the Texas court assumed emergency
jurisdiction to protect the minor child from continued abuse or
mistreatment, based on the child's allegations.
     The PKPA provides for emergency jurisdiction as a means for a
state that does not possess exclusive continuing jurisdiction to
enter a temporary order until the state with continuing
jurisdiction is able to determine the issues.  Roger M. Baron,
Federal Preemption in the Resolution of Child Custody Jurisdiction
Disputes, 45 Ark. L. Rev. 885, 910 (1993).  The PKPA and UCCJA both
contain almost identical provisions that allow a court to exercise
emergency jurisdiction when the child is physically present and a
genuine emergency, such as abandonment or abuse, exists.  Murphy v.
Danforth, 323 Ark. at 491, 915 S.W.2d  at 702 (citing 28 U.S.C. 
1738A(c)(2)(C); Ark. Code Ann.  9-13-203(a)(3)).  Jurisdiction
based on an emergency under our version of the UCCJA may only be
used in extreme or extraordinary situations where the immediate
health and welfare of the child is at stake.  Caskey v. Pickett,
274 Ark. 383, 386, 625 S.W.2d 473, 475 (1981).
     We have stated that emergency powers are limited and should
not be used to permanently modify a custody order.  Murphy v.
Danforth, 323 Ark. at 491, 915 S.W.2d  at 702.  Rather, they should
only be used to give a party custody for as long as it takes to
travel with the child to the proper forum to seek a permanent
modification.  Id.  "Emergency jurisdiction may be exercised
independently of the order of preferences, but relief under
emergency jurisdiction would normally be only temporary and the
parties would be directed to return to a court with the most
preferred jurisdictional basis."  Atkinson, Modern Child Custody
Practice  3.01, at 109.
     In Murphy, we quoted passages from Professor Atkinson's
treatise in which he suggests that a state exercising emergency
jurisdiction might act to permanently modify an order where the
evidence of neglect or abuse is available in that state, but
difficult or impossible to obtain in the child's home state. 
Murphy v. Danforth, 323 Ark. at 491, 915 S.W.2d  at 702 (quoting
Atkinson, Modern Child Custody Practice  3.18, at 148, n. 170). 
However, Professor Atkinson advises that this problem may be
avoided by taking testimony and transmitting the evidence to the
other state.  Id.
     In this case, the Arkansas court had affidavits before it from
Texas counselors and social workers, as well as Arkansas
psychological evaluations, on which it relied in its order
requiring that the child's visits with her father be supervised at
all times.  The Arkansas court had the benefit of evaluations and
reports made both in Texas and in Arkansas; therefore, a permanent
modification by the Texas court was not appropriate if Texas was
exercising authority under the emergency-jurisdiction provisions of
the PKPA.
     Ms. Moore argues that an emergency existed that required her
to turn to the Texas court for relief, and the Texas court
specifically stated in its order that an emergency existed because
of the family abuse.  However, under the PKPA and our case law, if
a true emergency did exist, the Texas court possessed only the
limited jurisdiction to give relief for the period of time that it
took Ms. Moore to go to the appropriate forum to seek permanent
modification of the custody order.  While its protective order
issued on November 17, 1996, may have been a proper exercise of
emergency jurisdiction, its order dated February 11, 1997, clearly
attempted to modify visitation in excess of those limited terms. 
It appears that at all times, the child remained in Ms. Moore's
custody and was apparently safe.  Under these circumstances, she
should have sought relief from the Arkansas court, from which she
had sought relief several times before, as the court with preferred
jurisdiction to permanently modify visitation.
     In summary, the Arkansas court, which entered the initial
custody and visitation order, retained continuing jurisdiction over
the subject-matter and parties in this case under the PKPA and our
state's UCCJA.  Because the Arkansas chancery court had continuing
jurisdiction that it had not declined to exercise, the Texas court
was without jurisdiction to permanently modify the Arkansas court's
order.  Even if the facts had shown that there was a need to
exercise emergency jurisdiction, the Texas court's order went
beyond the scope of emergency jurisdiction under the PKPA.
     Affirmed.