Garg v. Garg
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In the Circu it Court for B altimore C ounty Case No. 03-C-03-001370DL IN THE COURT OF APPEALS OF MARYLAND No. 97 September Term, 2005 ______________________________________ AJAY GARG v. DEEPA GARG ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinio n by Wiln er, J., Raker, J., joins in the judgm ent only ______________________________________ Filed: June 8, 2006 Respon dent, Deepa Garg, filed a compla int in the Circuit C ourt for B altimore C ounty seeking a limited divorce from her husband, petitioner Ajay Garg, cu stod y of their minor child, Chaitanya, spousal and ch ild support, and certain ancillary relief. Mr. Garg moved to dismiss the c omplaint o n the grou nds that (1) he had not been validly served, and (2) because of proceedings already pend ing in a court in Indore, India, the Maryland court was precluded from exe rcising jurisdictio n in the custody matter. After conducting an evidentiary hearing, the Circuit Court conclude d that, becau se of the pe nding cas e in India, it should not exercise jurisdiction, announced its findings in support of that conclusion, dismissed the entire action, and, pursu ant to a subs equent m otion, assesse d costs and attorneys fees against Ms. G arg. Th e court n ever ru led on th e servic e of pro cess issu e. The Court of Sp ecial App eals vacated that judgm ent and rem anded the case for fu rther proceedings. Garg v. Garg, 163 Md. App. 546, 881 A.2d 11 80 (2005). It held that (1) even if there might be a basis for concluding that the Maryland court should not exercise jurisdiction over th e custo dy disput e, it clearly had subject matter jurisdiction over the divorce action, (2) the Circuit Court erred in deferring a request by respondent to appoint an attorney for the child pending resolution of the jurisdiction al issue in ef fect that, as a matter of law, it was required to appoint an attorney for the child before deciding the jurisdictional issue, and (3) in revisiting the jurisdictional issue on remand, the trial court was to apply the newly enacted Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) rather than the Uniform Child Custody Jurisdiction Act (UCCJA) that was in effect when the complaint was filed. Petitioner is not contesting the intermediate appellate court s determination that the divorce action may proceed in Maryland, so we have no occasion to address that issue.1 He does complain about the other two rulings, however, and his complaint is legitimate. The Court of Special Appeals erred in even addressing the Circuit Court s decision to defer the appointment of counsel for the child, as that was not a matter raised by Ms. Garg in her brief and was there fore not be fore the co urt. It was apparently injected sua spon te by the appellate court, without the benefit of argument, and then used to resolve the appea l. Having improper ly injected the issue, the court then erred in its ruling on it; the court should not have second-guessed the discretionary decision by the Circuit Court judge which, under the circumstances, was entirely appropriate and we ll within the p ermissible b ounds of his discretion. The Court of Special Appeals also erred in concluding that the UCCJEA had any application to this case; the plain language of the statute makes clear that the statute does not apply. Because the intermed iate appellate c ourt ruled as it did on the a ppointm ent-of-counsel issue, it never addresse d the princip al issues actua lly raised by respon dent in her a ppeal 1 We note that petitioner s motion to dismiss the divorce action was based on lack of proper service, not on any assertion of lack of subjec t matter jurisdiction. Mr. Garg contended that the co mplaint and summ ons were nev er properly served on him b ut were instead left with one Seenu Devappa in Hartford, Connecticut, on Ms. Garg s assertion that Devappa was authorized to receive service for Mr. Garg. Garg averred that he had never lived in Connecticut and that service on Mr. Devappa was not authorized by him or by either Maryland or Connecticut law. Neither the Circuit Court nor the Court of Special Appeals addressed that issue. It was not raised in Mr. Garg s petition for certiorari, and there is n o compla int about it in his brief in this C ourt. -2- whether the Circuit Court was correct in its determination that it had no jurisdiction under the UCCJA over the custody issue and whether the court erred in assessing expenses and attorneys fees ag ainst he r. We shall reman d the case to the Cou rt of Specia l Appeals so it can properly decide those issues, which were fully briefed and argued in that court but, in part because of the subsequent enactment of the UCCJEA, have no further pub lic importanc e, other than to the parties, w arranting rev iew by this C ourt. BACKGROUND Mr. and Ms. Garg were born and raised in Ind ia and we re married th ere in July, 1991. Mr. Garg first came to the United States in 1985 as a student, earned a degree in chemical engineering, and remained gainfully employed here until 2000. In October, 1991, shortly after their marriage, Ms. Garg joined her husband in the U.S. and took up residence w ith him in Massachusetts. She became an American citizen in 1997 or 1998. Mr. Garg has remained a citizen of India. The child s citizensh ip status is unclear. Both parties made trips back to India. In June, 1995, while pregnant, Ms. Garg returned to India to stay with Mr. Garg s parents in Indore, and, on September 23, 1995, Cha itanya was born there. Mr. Garg visited them a month later, but they all resumed residence in Massachusetts in January, 1996, and, except for a visit to India by Ms. Garg and Cha itanya in January, 1999, con tinued to live th ere until July, 1999, w hen they return ed to Indore. The family remained in India until Ms. Garg and Chaitanya came to Maryland on -3- May 24, 2002. The critical events relevant to this case occurred during the sprin g of 200 2. It is evident that there had been significant family discord; each party has accused the other of a variety of inappro priate beha vior. The p arties were liv ing in Indo re, an d Ch aitan ya then six-and-a-h alf years old was enrolled in school there. In March, Ms. Garg, without notice to her husba nd, remov ed Chaita nya from his school, and moved w ith him to the home of Ms. Garg s parents in Mum bai (formerly Bombay), nearly 400 miles away. On April 1, 2002, through counsel, Ms. Garg filed an action in the Mumbai court for maintenance allowance. That ac tion nev er prog ressed b ecause Mr. G arg wa s not ser ved w ith proc ess. A week later, on April 8, 2002, Mr. Garg filed an action in the Indore court seeking the return of Chaitanya. It was an action solely for custody; he did not seek a divorce. Mr. Garg alleged that, under India law, the father is the natural guardian of his children over five years of age, and the basis of his complaint was that Ms. Garg had unlawfully abducted Cha itanya from his guardianship. At som e point, before any proceed ings on tha t complain t, Ms. Garg contacted a lawyer in Indore, Vimal K. Gangwal, Esq., by phone, claimed that she had been des erted by her hu sband, and requested Mr. Gangwal s professional assistance. She also, at some point in April, signed a general power of attorney, appointing her father, Shri V. K. G ovil, as her atto rney, with auth ority, among other thing s, to attend to all the Court cases o n my beh alf. On May 24, Ms. Garg and C haitanya left Ind ia for the U nited States, se ttling in -4- Maryland. In a subseq uent statem ent, her attorney, Mr. Gangwal, asserted that Ms. Garg was unaware of the action in the Indore court when she left. It is not clear from whom he got that information; he later claimed that he had not been able to reach Ms. Garg after she left India. In June, 2002, having first tried other methods of serving Ms. Garg, Mr. Garg published notice of his action in a Mumbai newspaper, apparently as a means of serving her by publica tion. On July 11, 2002, the Indore court assumed jurisdiction. The order shows that Ms. Garg was re presen ted by M r. Gang wal in th e proce eding. The essential issue was whether jurisdiction should lie (1 ) in Mum bai, (2) where the child was cu rrently livin g in the U .S., or (3) in Indore, where the child had been living w ith his father prior to the mother s removing him. Mr. Garg, relying on the Guardians and Wards Act, asserted that custody jurisdiction belonged with the court wh ere the child ordinarily resides , that, under that law, the child was ordinarily residing in Indore, and that the mother s re moval of the child could not defeat that jurisdiction. Gangwal filed an application in the nature of a motion to dismiss, in which he argued that, because the parties and the child were all Hindu, the applicable law was not the Guardians and Wards Act but rather the H indu M inority and Gu ardianship Act and th at, under that Act, jurisdiction lay either in Mumbai or in Baltimore, Maryland, where, he asserted, the child was currently residing. Although Mr. Gangwal insisted that he had been unable to contact his client since she departed India, he obviously knew that she was in the -5- Baltimore area and averred that they are/were in USA at the time when the notice from the US Court w as served. I t is not clear what notice he was referring to. There was no proceeding in a U.S. court until Ms. Garg filed this action in Feb ruary, 2003, and the record shows that service of process from the Indore court was served on her at that time.2 The Indore court dismissed Ms. Garg s application, holding that the Guardians and Wards Act was applicable, that, under § 9 of that Act, jurisdiction lay where the child had been ordinarily residin g, and tha t the mothe r s remova l of the child d id not suffice to abrogate that jurisd iction. M s. Garg was d irected to file an answer to the complaint. On August 26, 2002, Mr. Gangwal advised the court that, after repeated calls, he had received no instructions from his client, and the court therefore decided to proceed ex parte. It is not clear whether anything furth er has occu rred in the Ind ore court. M r. Garg testifie d in this case, in September, 2003, that a hearing had been sched uled in the Indore cou rt for some time in October, 2003. On February 24, 2003, Ms. Garg filed this action in the Circuit Court for Ba ltimore County seeking, as we ha ve said, a limite d divorce, c ustody of C haitanya, spou sal and child support, and ancillary relief. It appears that, by then, Mr. Garg had returned to the U.S. and, according to Ms. Garg, was living in Connecticut. The ground asserted for the divorce and 2 The record show s that on January 2, 2003, the presid ing judge of the Indo re court sent a summons for Ms. Garg to the Circuit Court for Baltimore County with a request that it be served on her and that the summons and other docum ents from the Indore proceeding were, in fact, served on her through the Baltimore County Sheriff s office on February 25, 2003. -6- custody was extreme cruelty on Mr. Garg s part directed at her and the child. On those same allegations of cruelty and threats, Ms. Garg, on March 7, filed an ex parte motion for immedia te custody, which was denied because she had failed to provide the notice required under Maryland R ule 1-351 . The cou rt did, how ever, temporarily enjoin Mr. Garg from removing the child from Maryland. On M arch 18, Ms. G arg filed another ex parte motion for immediate custody, based on the same allegations of cruel behavior and threats, which also w as deni ed. Mr. Garg in d ue course moved to dismiss the entire action on the ground that he had not been properly or effectively served with proce ss and separately moved th at the court decline to exercise jurisdiction over the custody action on the ground that jurisdiction lay with the court in India. Quoting Maryland Code, § 9-206(a) of the Family Law Article (1999 Repl. Vol.) (FL), which was part of the Maryland v ersion of th e UCC JA, he av erred that a Maryland court shall not exercise its jurisdiction under [the UCCJA] 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 subtitle, unless the proceeding is stayed by the court of the other state because th is State is a more ap propriate forum or for other reasons. Ms. Garg moved to strike that motion on the ground that Maryland really did have jurisdiction, notwithstanding the pending proceeding in India. On May 2, 2003, befo re the court could rule on a ny of the pending jurisdictional issues, Ms. Ga rg asked th e court to appoint independent counsel for the child, the cost to be -7- subsidized by the court. The motion alleged a credible fear b y Ms. Garg that Mr. Garg will kidnap the minor child and a bduct him to India, that the h ealth, safety and welfare of the minor child may be adversely affe cted if prom pt action by the C ourt is not take n to protect the child, and that, due to the adversity of the proceedings, it was in the best interest of the minor children that the y have counsel represen ting their interests. Mr. Garg opposed the motion, noting that (1) Ms. Garg had failed to substantiate in any way her allegations of possible abduction by Mr. Garg and that it was, in fact, she who had abducted the child from Indore, (2) a hearing on Mr. Garg s motions to dismiss for want of jurisdiction and to decline to exercise jurisdiction had been set for July 28, and (3) it would be premature, in light of the jurisdictional challenges, for the court to appoint independent counsel at that point. On July 7, Judge Fader, who was to conduct (and later did conduct) the hearing on the jurisdictional issues, postponed that hearing, then set for July 28, and, in a m emorand um to the Assignment Office, noted that the Motion to Appoint Counsel for Minor Child (5/03/03) just sits until the attorn ey filing the mo tion comp lies with the p rocedural re sponsibility to have the matter directed to the Judge of the Family D ivision assign ed to hear these motions regarding appointment of counsel on a rotating monthly basis as the Bar [h]as been so inform ed. 3 On July 23, he reset the hearing for September 23, 2003. There were, at the 3 Effective October 1, 2002, the Circuit Co urt had adopted an internal administrative policy of referring motions for the appointment of counsel for a child to a (contin ued...) -8- time, some on-going discovery disputes, and coun sel for Ms. Garg had advised the court that he needed to be out of th e country for a period du e to a fam ily emergency. On September 3, 2003, Judge Dugan, who apparently was the designated Family Division judge to whom the motion was presented, issued the order that the Court of Special Appeals found so egregious that the motion to appoint counsel w ill be held in ab eyance by the co urt until after [J udge F ader] ru les on th e issue o f jurisdic tion. The hearing on the jurisdictional issues took place as scheduled, on September 23. By then, depositions and other discovery had taken place. At n o time durin g that hearin g did Ms. Garg ask for a ruling on her motion to have counsel appointed for the child (or any consequent continuance that granting the motion might entail); nor did she complain about Judge Dugan s order deferring a ruling on that request or even mention the matter. As a result, the motion was never taken up by Judge Fader or formally resolved, other than by the fact that no counsel was ever appointed. The witnesses were Mr. and Ms. Garg, Ms. Garg s father and brother, and two exp erts 3 (...continued) designated judge assigned to the Family Division of the court, rather than to the general chambers judge. That policy was communicated to the Bar in the November issue of the Baltimore County Ba r Associatio n newsle tter. It does not a ppear, how ever, that counsel was required to prese nt such a motion to the d esignated Family Division jud ge; rather, either the clerk s office, the assignment office, or some other administrative official would collect those motions, once filed and answered, and refer them to the designated judge. Judge Fader s memorandum was to the Assignment Office, and it may well have been in response to that memorandum that the motion was eventually referred to Judge Dugan, who was then assigned to the Family Division. -9- in India law who gave partially conflicting opinions. Ms. Garg repeated her allegations of cruelty and abuse on the part of her husband and was vigorously cross-examined on that and other aspects of her testimony. The expert called by Mr. Garg stated that (1) it was proper for Mr. Ga rg to bring his action in India under the Guardians and Wards Act, which was the applicable statute, (2) the test under India law in a custody case is the best interest or welfare of the child standard, an d (3) althou gh there is a m aternal pref erence un der India law until the child is five, there is no preference maternal or paternal the reafter. She cited a 2001 case from the Supreme Court of India attesting that the standard in custody cases is the welfare of the child. The expert for Ms. Garg opined that the case in India should have been brought under the Hindu Minority and Guardianship Act, and that due process was not followed in the India proceeding. She agreed, ho wever, tha t, for a child over five, th ere is no maternal or paternal preference under India law and that the controlling standard is the welfare of the child. After considering the testimony and other evidence, the court announced from the bench that it was dismissing the action. As a p redicate for some of its findings, the court mad e cle ar that it h ad lit tle re gard for M s. Ga rg s cred ibility: I have looked at this lady an d listene d to her testimo ny. She is cool, she is calculating, she makes up her mind what she wants to say when she wants to say it and I believe I don t believe her; I believe that most of the stuff she has made up to get her way. The court expresse d a similar view abou t the testimony of Ms. Ga rg s father. -10- The court recited seven reasons for its decision, all keying on the criteria stated in the UCCJA for a Maryland court to exercise jurisdiction: First, the court state d that it was not convinced that there was abuse of any magnitude, other than a little pinching of the child, because I do not accept her testimony or any of her witnes ses testim ony to tha t effec t. Second, based on the limited agreement of the two experts, the court found th at there was no maternal or paternal preference under India law with respect to Chaitanya, who was over five, and thus concluded that India law was not so far against Maryland public policy that the court would not enforce that law. Third, the court observed that the India court believed it had jurisdiction, and [f]rom what I see, the service aspects comp ort with due process o f this country and, more importantly, an attorney ha s entered his appearance for her submitting the attorney and her to the jurisdiction of the India n court. T he court n oted that when an attorney enters an appearance, there is a pres umption th at he does represent the person he says that he represe nts, and that there was no testimony to overcome that presumption that she has submitted herself to the jurisdiction of the Indian court and has in fact also been properly served there. Fourth, again doubting Ms. Garg s credibility, Judge Fader announced that he was not convinced that there is any neglect or failure by the father to support h is child in India or to car e for his child in I ndia as has bee n testifie d to by the mothe r of the c hild. -11- Fifth, respondin g to Ms. Garg s testimony regarding her fear of her husband, the court stated that, if she did have that fear, she has manufactured that fear herself based on a base of disappointment with the man she married and the man her f ather agree d she wo uld marry, and tha t her alleg ed fea r was not bas ed on a ny other f acts. Sixth, the court concluded as a matter of law that the UCCJA applied not only among the States of the United States, but to foreign countries as well. In that regard, it found that the father had filed suit in India to have the court there adjudicate the custody issue, but that India never had a chance to because she spirited that child ou t of Ind ia for no reason . The court continued: And even though she indicates now that this country is the home state for six m onths or m ore and it is true that the child has been a resident of America for longer than six months, her spiriting the c hild awa y, her committing a fraud on the Court by removing the child means that that home state preference and design ation is n ot to be g iven. The Court fu rther conclu ded, in this regard, that everything before me indicates that In dia and their laws and the procedure in the court was at least as good to adjudicate this matter as the C ircuit Co urt for B altimore Coun ty. Fina lly, the court de clared that it did not know Chaitanya s citizenship status, but that it was not a determining factor. The court assumed that the Indian court will give that factor some c onside ration w hen it ad judicate s this issu e. An order dismissing the case for the reasons stated by the court, a transcript of which was appended, was filed October 1, 2003. On October 9, Ms. G arg filed bo th a motion to -12- alter or amend the judgm ent and a notice of appeal. The only basis for the motion to alter or amend was the request that, pending the appeal, the order dismissing the action be amended to continue in effect the temporary injunction issued in March, 2003, precluding Ms. Garg from removing Chaitanya from the State. That motion was denied. On October 3, 2003, M r. Garg filed a motion to charge M s. Garg w ith travel expenses and attorneys fees. He n oted that, under the UCCJA (FL § 9-208(c)) (1999 Repl. Vol.), as it then existed before en actment of the U CCJEA , when a court dismissed a petition because the petitioner wrongfully took the child from another State or engaged in similar reprehens ible conduct, the court ma y, in appropriate cases, charge the petitioner with necessary travel and other expenses, including attorneys fees, incurred by other parties or their witnesses.4 In his motion, he listed a number of expense s incurre d for trav el, discov ery, and trial which, together with attorneys fees, amounted to $5,314. Ms. Garg s principal response to the motion was that the request and evidence to support it should have been presented at the hearing , not afterw ard. Unim pressed w ith that defense, the court granted the motion and entered judgment against Ms. Garg for $5,314. In her appeal to the Court of Special Appeals, Ms. Garg raised four issues: (1) did the Circuit Court err in applying the UCCJA in an international context where the foreign nation (India) had not issued an order or dec ree concerning custo dy; (2) did the court err 4 A simi lar prov ision is in cluded in the U CCJE A as w ell. See FL § 9.5-208(c) (2004 Repl. V ol.). -13- substantively in dismissing the action in contravention of FL §§ 1-201(a)(5), 1-201(b)(1), and 2-503(d); (3) did the court err in dismissing her complaint for divorce for alleged insufficient service of process;5 and (4) did the court abuse its discretion in awarding expenses and attorneys fees. Now here in her b rief is there an y complaint ab out Judge Dug an s order deferring action on the motion for appointment of counsel for Chaitanya until resolution of the jurisdictional issues. The Court of Special Appeals did not rule on any of the four issues raised by Ms. Garg. Instead, it determined that (1) the Circuit Court erred in dismissing the divorce action based on the case pending in the Indore c ourt becau se the action in that court d id not encompass a divorce, and (2) fundam enta l fair ness sugg ests that C haita nya should have a lawyer to articulate his interest and to assist on the critical and com plex issues that were determinative of his future. Garg v. Garg, supra, 163 Md. App. at 578, 881 A.2d at 1198. The deferral of the motion to appoint counsel, which, as noted, was not pressed at th e ultimate hearing before Judge Fader, was thus regarded as an abuse of discretion amounting to legal error. In light of that determination, the app ellate court vacated the entire judgment of the Circuit Court, including the award of expenses and attorneys fees, and remanded for the court (1) to appoint counsel for the child, (2) to resolve the service of process issue, and (3) to revisit and resolve the jurisdictional issues under the UCCJEA. 5 Ms. Garg did not assert that the Circuit Court had dismissed the divorce action on that ground, but merely pointed out that the Circuit Court had never ruled on that defense. -14- We granted certiorari to review the rulings of the Court of Special Appeals and, save for the issue s going to th e divorce a ction, shall rev erse the judg ment of th at court. DISCUSSION FL § 1-202 provides that, in any action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may: (1) appoint to represent the minor child counsel who may not represent any party to the action; and (2) impose against either or both pa rents coun sel fees. (E mphasis a dded). U nquestion ably, the statute m erely authorizes a court to appoint counsel in those kin ds of case s; it does not manda te such an appointment. The dec ision whe ther to appo int indepen dent coun sel for the ch ild is a discretionary one, reviewable under the rather constricted standard of whether that discretion was abused. We described th at standard in Jenkins v. State, 375 Md. 284, 295-96, 825 A.2d 1008, 1115 (2003): The abuse of discretion standard requires a trial judge to use his or her discretion soundly and the record must reflect the exercise of that discretion. Abuse occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or sh e acts be yond the letter or re ason o f the law . See also Coo ley v. State, 385 Md. 165, 175, 867 A.2d 1065, 10 71 (2005 ); Kelly v. State, ___ Md. ___, ___ A.2d ___ (20 06). We are unable to discern an ything even a pproach ing an abu se of discre tion on this -15- record. As noted, the motion was never formally denied, but m erely r eferred to the judge specially assigned to hear the case, or at least the question of whether the court had any jurisdiction, or should exercise jurisdiction, to hear the case. If Ms. Garg felt strongly enough about the need for independent counsel for Chaitanya, she could have pressed the point when sh e appeare d before J udge Fa der aske d him to rule upon the m otion and, if nece ssary, grant a continuance in order for counsel to be appointed. There was no eme rgen cy; the child was with her and had been with her for over a year and Mr. Garg was under an injunction, which he showed no sign of disobeying, not to remove the child from Maryland. She did not press the point, however, but was instead content to have the hearing proceed without counsel for Chaitanya.6 Jurisdiction or its exercise un der both the UCC JA and U CCJE A is a threshold legal issue that the la w requ ires be re solved exped itiously. See FL § 9-223 (1999 R epl. Vol.) (UCCJA) ( on the request of a party to a custody proceeding that raises a question of existence or exercise of jurisdiction under this subtitle, the case shall be given calendar priority and handled expeditiously); FL § 9.5-106 (2004 Repl. Vol.) (UCCJEA). Although the jurisdictional issues were, to a large extent, fact-driven, as they often are, they did not relate in any w ay to, muc h less de termine , who should have custody of Chaitanya, what 6 Mr. Garg has not argued that Ms. Garg waived her right to complain about Judge Dugan s order, and we shall not resolve the issue on that ground. In judging whether either Judg e Duga n or Judge Fader ab used his disc retion in not a ppointing c ounsel, however, it is relevant to consid er the lack of interest show n by Ms. Garg in m ore urgent ly pursuin g the m atter wh en she h ad the o pportu nity to do s o. -16- visitation should be allowed, or what was in the child s b est interest. 7 The sole purpose of the hearing before Judge Fader was to determine which court should consider and resolve those issues. Give n that both p arents were ably represented by counsel of their choosing, the court obviously (though, in the light of Ms. Garg s disinclination to press the issue, tac itly) felt that it did not need another lawyer to weigh in on the purely legal issue of jurisdiction. It was not unreasonable, much less arbitrary, capricious, or beyond the letter or reason of the law for the court to reach that conclusion. Because the Court of Special Appeals erred in vacating the Circuit Court judgment upon its determination that the trial court was obliged to appoint counsel fo r Chaitanya, its judgment must be reversed and the case remanded for it to resolve the issues actually raised 7 There was some potential confusion regarding relevance of the best interest of the child in resolving jurisdiction unde r the UCCJA . FL § 9-204(a)(2) (19 99 Repl. Vol.), in setting forth when a court has ju risdiction, stated as one of the factors w hether it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and the child s parents, or the child and at least 1 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. In their prefatory note to the UCCJEA, however, the National Conference of Commissioners on Uniform State Laws, which drafted both the UCCJA and the UCCJEA, observed: The best interest language in the jurisdictional sections of the UCCJA was not intended to be an invitation to address the merits of the custody issue in the jurisdictional determination or to otherwise provide that best interests considerations should override jurisdictional determinations or to provide an addition al jurisdic tional ba sis. To resolve any ambiguity on that point, the best interests language was deleted from the jurisdiction sections of the UCCJEA. -17- by Ms. Garg. In doing so, the intermediate appellate cou rt must ap ply the U CCJA . It was in clear error in holding that the newly enacted UCCJEA applied. The UCCJEA was enacted by 2004 Md. Laws, ch. 502 and took effect October 1, 2004. Section 4 of the Act states expressly that this Ac t applies only to c ases filed to establish or modify custody or motions or other requests for relief filed in child c ustody cases o n or after the effective d ate of this Act. By the plain terms of the statute, therefore, it does not apply to cases to establish custod y filed bef ore Oc tober 1 , 2004, w hich M s. Garg s action clearly w as. JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROC EEDING S IN CONFORMANCE WITH THIS OPINION; COSTS IN COURT OF SPECIAL APPEALS TO DATE AND COSTS IN THIS COURT TO BE PAID BY RESPONDENT. Judg e Ra ker joins in the jud gme nt on ly. -18-
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