Rocissono v. Spykes
Annotate this Case
Rocissono v. Spykes (99-114); 170 Vt. 309; 749 A.2d 592
[Filed 28-Jan-2000]
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. 99-114
Tressa Rocissono Supreme Court
On Appeal from
v. Lamoille Family Court
Michael Spykes January Term, 2000
Ben W. Joseph, J.
Harold B. Stevens and Heather S. Bowman of Stevens Law Office, Stowe,
for Plaintiff-Appellant.
Sharon Green of Williams and Green, P.C., Morrisville, for
Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J. Plaintiff Tressa Rocissono (mother) appeals the family
court's refusal to assume jurisdiction over the parties' custody dispute
concerning their two children. We vacate the court's decision and remand
the matter for further proceedings.
Mother and defendant Michael Spykes (father) were married in 1985 and
divorced in 1994. Their North Carolina divorce decree gave mother primary
custody of the parties' two children, a girl born in November 1985 and a
boy born in January 1991. Father was awarded liberal visitation rights.
Following the parties' divorce, mother married Dean Rocissono. Mother and
her family moved to Vermont from North Carolina on September 5, 1997, the
same
date father filed a petition in North Carolina asking the court to modify
visitation or transfer custody to him. Apparently, the petition was
either withdrawn or settled by stipulation after mother agreed to allow
the children to spend their summers with father, who moved to Arizona at
some point before the instant dispute arose.
In June 1998, the parties' two children traveled to Arizona for a
scheduled summer visit with father. On August 7, 1998, two days before
the children were to return to Vermont, father filed with the Arizona
superior court a petition seeking emergency modification of visitation or
custody. In the petition, father stated that he had spoken to mother by
telephone on August 6 and August 7, and in the conversations mother
admitted that her husband had disciplined the children inappropriately,
and that she was powerless to stop the physical and verbal abuse. On the
same day that father filed the petition, mother left her husband and sought
refuge in a shelter for battered women. On August 11, 1998, the Arizona
court assumed emergency jurisdiction over the matter and granted father
temporary custody of the children. The court explicitly stated that it
had not determined whether to exercise its jurisdiction other than on an
emergency, temporary basis.
On October 8, 1998, mother filed a petition in Vermont requesting that
the family court assume jurisdiction over the parties' custody dispute and
enforce the North Carolina divorce decree granting her custody of the
children. Father appeared by counsel after having been personally served
in Arizona. Six days later, by motion-reaction form, the family court
granted mother's request that it assume jurisdiction over the custody
dispute. On December 4, 1998, however, the Arizona superior court
determined that the safety of the children required it to exercise
jurisdiction over the matter. Noting that a telephonic conference had been
held with Judge Ben Joseph of the Vermont family court, the Arizona
superior court stated that it was in
the children's best interest that they continue to reside in Arizona
because mother had reconciled with her husband, who posed a danger to the
children. The Arizona court further concluded that Arizona was the most
convenient forum to decide the custody dispute because the children had
resided there since August 1998 and their therapist and counselors
possessed the most relevant information regarding the alleged abuse. Four
days later, on December 8, 1998, the Vermont family court issued an entry
order scheduling a hearing to reconsider mother's request for the court to
assume jurisdiction over the parties' custody dispute.
On February 19, 1999, following a December 15, 1998 hearing, the
Vermont family court declined to exercise jurisdiction over the matter.
Noting that it had not conferred with the Arizona court before initially
deciding to assume jurisdiction, the family court stated that because the
Arizona court had already lawfully assumed jurisdiction, the "real"
question was whether custody proceedings should take place only in Arizona
or in both Arizona and Vermont. The family court concluded that Vermont
would be an inappropriate and inconvenient forum because mother had
reconciled with her husband, who continued to pose a threat to the
children, and the children's best interest dictated that they reside in a
nonabusive household while the case was being litigated. The court also
noted that the children's therapist and counselors were in Arizona, and
that the children had been in Arizona for as long as they had previously
been in Vermont.(FN1) Finally, the court stated that the Parental
Kidnapping Prevention Act (PKPA) precluded Vermont from assuming
jurisdiction because the Arizona
court had already exercised jurisdiction over the matter by modifying the
North Carolina divorce decree. See 28 U.S.C. § 1738A(f) (court may modify
custody determination made by court of another state if it has
jurisdiction to make custody determination and court of other state either
no longer has jurisdiction or has declined to exercise jurisdiction); 28
U.S.C. § 1738A(g) (court shall not exercise jurisdiction over custody
matter during pendency of proceeding in which court of another state is
exercising jurisdiction consistently with PKPA). Mother appeals the
February 19 decision, arguing that because Vermont is the children's home
state, and the Arizona superior court improperly exercised jurisdiction to
make a permanent custody determination, the family court should have
assumed jurisdiction over the matter.
As the family court pointed out, both Vermont and Arizona have adopted
the Uniform Child Custody Jurisdiction Act (UCCJA). See 15 V.S.A. §§
1031-1051; Ariz. Rev. Stat. Ann. §§ 25-431 to 454. In addition, both
Vermont and Arizona have recognized the primacy of the PKPA, which
represents the federal government's attempt to create some uniformity among
the states in their exercise of jurisdiction over interstate custody
disputes under the UCCJA. Although the PKPA, unlike the UCCJA, does not
purport to govern whether a state has jurisdiction to issue an initial
custody order, it does govern the enforceability of one state's custody
order in another state, as well as the other state's power to modify that
order; thus, for all practical purposes, an initial custody order must
comply with the PKPA in all respects, including its preference for
home-state jurisdiction. See Columb v. Columb, 161 Vt. 103, 108-09, 110,
633 A.2d 689, 692 (1993); J.D.S. v. Franks, 893 P.2d 732, 739 (Ariz. 1995)
(although PKPA does not govern exercise of initial jurisdiction over
custody matters, courts must comply with PKPA if they wish other states to
give full faith and credit to their custody degrees).
Because the family court's February 19 decision to decline
jurisdiction was based in part on the Arizona superior court's December 4,
1998 decision to assume jurisdiction over the parties' custody dispute, we
first consider whether the Arizona court's decision is entitled to full
faith and credit. A state court's custody determination is consistent with
the PKPA and thus entitled to full faith and credit if (1) the court has
jurisdiction under the law of that state, and (2) one of the following
conditions is met: (A) that state is, or was under certain circumstances
not relevant here, the children's home state at the time of commencement
of the proceeding in that state; (B) no other state would have
jurisdiction, and it is in the children's best interest for that court to
assume jurisdiction because the children have significant connections to
that state, and substantial evidence concerning the children's present or
future care is available there; (C) the children are physically present in
the state and the court must assume emergency jurisdiction to protect
them; (D) no other state would have jurisdiction, or another state declined
to exercise jurisdiction on the ground that the state whose jurisdiction
is at issue is the more appropriate forum to determine custody of the
children, and it is in the children's best interests for a court in that
state to assume jurisdiction; or (E) the court made a custody decision
consistent with the PKPA, the court continues to have jurisdiction under
the laws of that state, and that state remains the residence of the
children or any contestant. See 28 U.S.C. § 1738A(c).
Here, mother is not challenging the Arizona superior court's
assumption of emergency jurisdiction on August 11, 1998. See 15 V.S.A. §
1032(a)(3) (court has jurisdiction to make child custody determination if
child is physically present in state and it is necessary for court to
assume emergency jurisdiction to protect child who is subject to or
threatened with abuse or neglect); Ariz. Rev. Stat. Ann. § 25-433(A)(3)
(same); 28 U.S.C. § 1738A(c)(2)(C) (child
custody determination is consistent with PKPA if court has jurisdiction
under law of that state and emergency requires court to assume
jurisdiction to protect child physically present in state). Rather, she
argues that the court's assertion of emergency jurisdiction did not entitle
it to retain jurisdiction and make a permanent custody determination.
Mother contends that because the children resided in Vermont with their
custodial parent for more than six months before the instant dispute
arose, Vermont was their home state, see 15 V.S.A. § 1031(5) ("home state"
is state in which child lived with parent for at least six consecutive
months immediately preceding commencement of proceeding), and thus the
Vermont family court was required to exercise jurisdiction over the
parties' custody dispute.
Because the Arizona superior court initially had emergency
jurisdiction under the law of that state, see 28 U.S.C. § 1738A(c)(1), we
need determine only whether one of the conditions listed in §
1738A(c)(2)(A)-(E) supports the Arizona court's assumption of jurisdiction
to make a permanent custody award. In reviewing these conditions, we
recognize that the PKPA's jurisdictional criteria, which for the most part
mirror the criteria contained in the UCCJA, must generally be considered
with respect to circumstances existing at the time the custody proceeding
was initiated -- in this case, August 7, 1998. Cf. Peloso v. Botkin, 144
Vt. 461, 464, 479 A.2d 156, 158 (1984) (criteria supporting jurisdiction
under UCCJA must be present at time of initiation of particular custody
proceeding; whatever occurs after that time is irrelevant to initial
inquiry into jurisdiction); In re Pima County, 711 P.2d 1200, 1205 (Ariz.
Ct. App. 1985) (critical date for determining home-state jurisdiction
under UCCJA and PKPA is date custody proceedings were commenced), vacated
in part on other grounds, 712 P.2d 431 (Ariz. 1986).
It is undisputed that as of August 7, 1998 Arizona was not and had
never been the children's home state. See § 1738A(c)(2)(A). Nor could
the Arizona court have assumed jurisdiction under § 1738A(c)(2)(B), since
Vermont would have had jurisdiction as the children's home state.
As for § 1738A(c)(2)(C), although mother has not challenged the
Arizona court's exercise of emergency jurisdiction, the assumption of
emergency jurisdiction does not allow a court to make a permanent custody
determination unless no other state has jurisdiction or the state that
does have jurisdiction declined to exercise it. See In re A.L.H., 160 Vt.
410, 413, 630 A.2d 1288, 1290 (1993) (family court's exercise of
jurisdiction under the UCCJA's emergency provision did not entitle court
to make permanent custody determination in that matter unless home state
had declined jurisdiction); see also In re D.T., 10 Vt. L.W. 325, 327
(1999) (reaffirming holding in A.L.H. that Vermont court exercising
temporary emergency jurisdiction under UCCJA cannot enter permanent
custody order until proper forum is determined). As we noted in A.L.H.,
virtually all courts that have addressed the issue, including Arizona,
"have concluded that jurisdiction under the UCCJA's emergency provision,
particularly in cases . . . where the abuse is reported to have occurred
in another state, does not authorize courts to make permanent custody
determinations." 160 Vt. at 415, 630 A.2d at 1291 (citing Pima County, 711
P.2d at 1206-07); see Perez v. Tanner, 965 S.W.2d 90, 94 (Ark. 1998)
(emergency jurisdiction under UCCJA and PKPA permits courts to issue only
temporary orders pending determination of proper forum). Indeed, Arizona
courts have recognized that in cases in which a court grants temporary
emergency custody to the resident parent, "it should not ordinarily resolve
the merits of the controversy as to permanent custody." Iacouzze v.
Iacouzze, 672 P.2d 949, 952 (Ariz.
Ct. App. 1983); accord Pima County, 711 P.2d at 1205.
Thus, the Arizona court's December 4 assumption of jurisdiction to
make a permanent custody determination was not consistent with the PKPA by
virtue of § 1738A(c)(d)(C). Further, because the Arizona court's initial
assumption of emergency jurisdiction did not, in and of itself, confer
jurisdiction to make a permanent custody determination, the court did not
have continuing jurisdiction to issue such an order under §
1738A(c)(2)(E). Nor could the Arizona court modify the North Carolina
custody decree under § 1738A(f), which permits a court to modify a custody
determination made by a court of another state if the forum court has
jurisdiction to issue such a determination and the court of the other state
no longer has jurisdiction or has declined jurisdiction. Unless the
child's home state has declined jurisdiction, § 1738A(f) of the PKPA does
not permit a court that has assumed emergency jurisdiction over a custody
matter to modify a custody decree of a third state that no longer has
jurisdiction. See In re Van Kooten, 487 S.E.2d 160, 164 (N.C. Ct. App.
1997).
This brings us to the last alternative ground for jurisdiction. Under
§ 1738A(c)(2)(D), the Arizona superior court's December 4, 1998 decision
to assume permanent jurisdiction over the parties' custody dispute would
have been consistent with the PKPA and thus entitled to full faith and
credit if (1) the children's home state, Vermont, had declined to exercise
jurisdiction on the ground that Arizona was the more appropriate forum to
determine custody of the children, and (2) it was in the children's best
interest for Arizona to assume jurisdiction. As of December 4, 1998,
however, Vermont had not declined to exercise jurisdiction over the
parties' custody dispute. To the contrary, on October 14, 1998, the
Vermont family court granted mother's request that it assume jurisdiction
over the matter. Even assuming that the October 14 order was
invalid because of the family court's failure to communicate with the
Arizona court, see 15 V.S.A. § 1035 (before exercising jurisdiction, court
shall make inquiry as to custody proceeding in other state and communicate
with court in that state to assure matter is litigated in appropriate
forum), the family court had not declined to assert its jurisdiction as of
December 4.
Evidently, sometime between October 14 and December 4, the two courts
held a telephonic conference. But nothing in the record indicates the
substance of that conference, which the Arizona court referred to in its
December 4 decision.(FN2) On December 8, the family court informed the
parties that a hearing would be held to reconsider its decision to assume
jurisdiction over their custody dispute. We must assume that no decision
to decline jurisdiction had been made before the December 15, 1998 hearing
that was scheduled for the court to consider that very question. Indeed,
the family court's decision not to exercise jurisdiction was made on
February 19, 1999, more than two months after the Arizona superior court
assumed permanent jurisdiction over the matter.
Given these inescapable facts, we conclude that the Arizona superior
court's December 4 decision to assert permanent jurisdiction over the
parties' custody dispute was not consistent with the PKPA and thus not
entitled to full faith and credit. Cf. Pima County, 711 P.2d at 1207
(juvenile court acted in contravention of UCCJA and PKPA by exercising its
emergency jurisdiction without first communicating with home state to
determine appropriate forum and without home state having declined
jurisdiction). Therefore, the family court was not precluded
from assuming jurisdiction in this case by § 1738A(g) of the PKPA, which
prohibits a state from asserting jurisdiction over a custody dispute that
is pending in another state in which the court is exercising jurisdiction
consistently with the PKPA.
Our conclusion that the family court was not required to decline
jurisdiction because of the premature action of the Arizona court does not
suggest, however, that mother must prevail in this appeal. The family
court had discretion, within the bounds of the law, to decline
jurisdiction. Assuming that the family court's February 19 decision to
decline jurisdiction was proper, the Arizona's court's premature
assumption of jurisdiction would be rendered harmless.
The question remains, therefore, whether the family court abused its
discretion in declining to exercise jurisdiction. The family court
declined jurisdiction for three reasons: (1) the Arizona court had
lawfully assumed permanent jurisdiction over the parties' custody dispute
on December 4, 1998, and thus could act on father's petition to modify the
North Carolina custody order; (2) mother's husband, with whom mother had
reconciled, continued to pose a danger to the children, who needed to
reside in a nonabusive household while the case was litigated; and (3)
the children's therapist and counselors were in Arizona and could provide
information concerning the alleged past abuse and the children's future
needs.
We have already held that the first reason was erroneous because on
December 4, 1998 the Arizona court did not properly assume jurisdiction to
issue a permanent custody determination concerning the parties' dispute.
The second reason is also erroneous insofar as it appears to address the
merits of the controversy rather than the jurisdictional question. Either
the Arizona or the Vermont court could have issued temporary orders
assuring the children's safety, regardless of which forum was deemed
appropriate for adjudicating the parties' custody
dispute. The family court, for example, could have issued an order
allowing father to keep the children with him in Arizona pending a final
decision on the motion to modify. See, e.g., A.L.H., 160 Vt. At 416-17,
630 A.2d at 1292 (after assuming emergency jurisdiction under UCCJA, if
family court finds that returning juvenile to home state would place her in
danger, "it may issue further temporary orders to assure her protection");
see also Shook v. Shook, 651 So. 2d 6, 9 (Ala. Civ. App. 1994) (trial
court should have continued its emergency jurisdiction "only until the
proper forum had been determined;" court erred in permanently modifying
Nevada custody determination based solely on emergency provision of PKPA);
Iacouzze, 672 P.2d at 952 (rather than award permanent custody to mother
under UCCJA's emergency jurisdiction, trial court should have awarded
mother temporary custody and stayed further proceedings upon condition
that custody proceeding would commence in child's home state); Curtis v.
Curtis, 574 So. 2d 24, 31 (Miss. 1990) (trial court correctly assumed
temporary emergency jurisdiction, but erred when it continued to exercise
subject matter jurisdiction over custody dispute after it should
reasonably have become apparent that there was no danger to children from
permitting adjudication of modification in home state); Holt v. District
Court, 626 P.2d 1336, 1346 (Okla. 1981) (trial court may make such order
as needed to protect children under emergency jurisdiction, but must
require mother to submit matter to home state within definite period of
time).
Before examining the family court's third reason, we review the
standards under which the court must decide whether to decline
jurisdiction over custody disputes. Those standards are contained in 15
V.S.A. § 1036 of the UCCJA, which provides that the family court "may
decline to exercise its jurisdiction any time before making a decree if it
finds that it is an inconvenient forum to make a custody determination
under the circumstances of the case and that a court of
another state is a more appropriate forum." Although the decision whether
to decline jurisdiction is discretionary and thus subject to review under
an abuse-of-discretion standard, see Brown v. Brown, 486 A.2d 1116, 1123
(Conn. 1985), the family court must act in accordance with the statute and
its overall purposes to eliminate forum shopping and to assure that the
children's best interests are considered. See id.
In light of the PKPA's preference for home-state jurisdiction, a court
in a state other than the home state is normally not acting in a child's
best interest when it exercises jurisdiction to make a permanent custody
determination regarding that child. See Columb, 161 Vt. at 109-10, 633 A.2d at 693 ("[I]t 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. . . . Vermont is
normally an inconvenient forum to determine the custody of a child who has
a home state other than Vermont."). Under certain circumstances, a home
state may defer jurisdiction to another state on the ground that the other
state is the more appropriate forum, but such a determination requires
consideration of the nonexclusive factors enumerated in § 1036(c), as well
as any other relevant factors. See Brown, 486 A.2d at 1128-29.
The factors listed in § 1036(c) inquire
(1) if another state is or recently was the child's home state; (2) if
another state has a closer connection with the child and his family
or with the child and one or more of the contestants; (3) if
substantial evidence concerning the child's present or future care,
protection, training, and personal relationships is more readily
available in another state; (4) if the parties have agreed on another
forum which is no less appropriate; and (5) if the exercise of
jurisdiction by a court of this state would contravene any of the
purposes of this chapter.
Related factors commonly considered by courts deciding whether to decline
jurisdiction under
§ 1036 of the UCCJA are (1) the location of the children at the time of the
proceeding; (2) the length of time that the children have or had been in
or out of the forum state at the time the proceeding commenced; (3) the
circumstances that led to the children being removed from or taken to the
forum state; (4) whether the children's custody is subject to a custody
decree and, if so, which state issued that decree; (5) the nature of the
existing custody arrangements; (6) the location of collateral relatives;
(7) the strength of the children's ties to the competing jurisdiction as
compared to their ties to the forum state; and (8) the respective financial
abilities of the competing parties to litigate the custody dispute in
out-of-state proceedings, cf. Matthews v. Riley, 162 Vt. 401, 413, 649 A.2d 231, 240 (1994) (requiring showing not only that moving party would
be inconvenienced by assumption of jurisdiction, but also that declining
jurisdiction would not seriously inconvenience nonmoving party). See
Annotation, Inconvenience of Forum as Ground for Declining Jurisdiction
under § 7 of the Uniform Child Custody Jurisdiction Act (UCCJA), 21
A.L.R.5th 396, 443 (1994).
The family court's third reason for declining jurisdiction -- the
presence of the children's therapist and counselors in Arizona -- is a
consideration that falls within one of the statutory criteria, see §
1036(c)(3) (whether substantial evidence concerning child's present or
future care, protection, training and personal relationships is more
readily available in another state); however, the court ignored the other
statutory criteria. It did not consider, for example, whether declining
jurisdiction would be inconsistent with one of the principal goals of the
UCCJA and PKPA -- to discourage parents from failing to return children
after visitation, see Schoeberlein v. Rohlfing, 383 N.W.2d 386, 388 (Minn.
Ct. App. 1986) -- and with case law precluding courts from bootstrapping
emergency jurisdiction into jurisdiction to make permanent custody
determinations. See Pima County, 711 P.2d at 1205 (if trial court could
permit evaluations performed in Arizona under emergency jurisdiction to
suffice as "substantial evidence" for purposes of permanent jurisdiction,
it would effectively defeat purposes of UCCJA).
Because two of the three reasons relied upon by the family court in
declining jurisdiction were erroneous, and the third reason was a single
factor relevant to only one of the several criteria that the court should
have considered, we cannot find that the court properly exercised its
discretion. We acknowledge, however, that relevant factors not expressly
relied upon by the family court suggest that resolution of the custody
dispute by the Arizona court may have been appropriate. For example,
although Vermont was plainly the children's home state at the time of the
commencement of emergency proceeding in Arizona, the children had been in
Vermont for only about nine months before they left for Arizona in June
1998. Further, the original divorce decree and accompanying custody order
was issued in North Carolina, not Vermont, and father challenged mother's
move to Vermont until mother agreed to allow the children to spend their
summers with him. Moreover, this is not a situation where father
surreptitiously moved the children to another state to improve his chances
of obtaining custody. See Brown, 486 A.2d at 1127. Indeed, mother
acknowledged the concerns that led father to file an emergency petition in
Arizona for modification of visitation or custody, and mother may have even
acquiesced to the children remaining in Arizona while she resolved her
problems with her husband.
Finally, we cannot ignore that the children have apparently been in
Arizona for over eighteen months, and that it has been nearly one year
since the family court declined to exercise jurisdiction over the matter.
Although whatever occurs after initiation of a custody proceeding "is
irrelevant to the initial inquiry into jurisdiction," Peloso, 144 Vt. at
464, 479 A.2d at 158
(emphasis added), a court must consider current circumstances in
determining whether to decline jurisdiction on the ground that the forum
is inconvenient. See Columb, 161 Vt. at 113, 633 A.2d at 694 (requiring
family court on remand to determine whether adjudication of custody dispute
in Vermont was in best interest of child at time of remand and whether
then-current situation of parties and child warranted family court's
exercise of jurisdiction as most convenient forum).
Given all of the circumstances cited above, we are not prepared to
grant mother's request that we compel the family court to assume
jurisdiction over the parties' custody dispute. Rather, we vacate the
family court's February 19, 1999 order declining to exercise jurisdiction
over the matter, and order the court to reconsider the jurisdictional
question after holding a conference with the Arizona superior court and
the parties. Cf. J.D.S., 893 P.2d at 745-46 (noting that Arizona trial
court held telephonic conference with Florida trial court and all parties
before determining that Florida was more appropriate forum to resolve
custody dispute). In reaching its decision, the family court shall
consider the factors contained in § 1036(c) and those detailed in this
opinion.
The family court's February 19, 1999 order is vacated, and the matter
is remanded for the further proceedings consistent with this opinion.
FOR THE COURT:
_______________________________________
Associate Justice
---------------------------------------------------------------------
Footnotes
FN1. The family court characterized the question before it as "whether a
Vermont court has jurisdiction to modify a child custody determination
made by another State (North Carolina) when there is already a modification
proceeding pending in another State (Arizona)." This characterization was
incorrect because, in fact, the court had no request for modification
before it.
FN2. In its February 19, 1999 decision, the family court implied, but did
not state, that the Vermont and Arizona courts participated in a
telephonic conference. The implication arises from the family court's
statement that it vacated its October 14 order assuming jurisdiction
because it had not consulted with the Arizona court before entering the
order. That statement implies that the deficiency was corrected before
the February 19 decision was rendered.
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