Schwartz v. Schwartz, 1980

• Decision Date: 16 February 1993
• Docket Number: No. 1980,1980
• Citation: 311 S.C. 303,428 S.E.2d 748
• Court: South Carolina Court of Appeals
• Parties: John B. SCHWARTZ, Respondent-Appellant, v. Goldie L. SCHWARTZ (Beaver), Appellant-Respondent. . Heard

Page 748

428 S.E.2d 748

311 S.C. 303

John B. SCHWARTZ, Respondent-Appellant, v. Goldie L. SCHWARTZ (Beaver), Appellant-Respondent.

No. 1980.

Court of Appeals of South Carolina.

Heard Feb. 16, 1993.

Decided March 22, 1993.

Rehearing Denied April 20, 1993.

Certiorari Granted Dec. 8, 1993.

Deborah Wright, Charleston, for appellant-respondent.

D. Randolph Whitt, of Sherrill & Rogers, Columbia, for respondent-appellant.

Guardian Ad Litem Harriet H. Vaughn, of Vaughn & Lawrence, Charleston.

GOOLSBY, Judge:

This case involves an interstate custody battle over a minor daughter. John B. Schwartz (the father) brought this action in South Carolina against Goldie L. Schwartz (the mother) to enforce a California custody decree. The mother counterclaimed for a change in custody. The South Carolina family court issued orders finding that California had jurisdiction to change primary physical custody of the child from the mother to the father by giving the father sole physical custody of the child, that the California decree was entitled to full faith and credit, that the South Carolina family court had jurisdiction to entertain a change in custody action, and that no sufficient showing of a change in circumstances had been shown by the mother. The family court ordered the mother to turn the child over to the father. The South Carolina Supreme Court issued a writ of supersedeas to maintain the status quo pending appeal. Both the mother and the father appeal. The dispositive issue concerns whether California had jurisdiction to change the child's custody from the mother to the father. We reverse.

The child, who is now six years old, was born in California, the place where the mother and father were married. The mother left the marital home in January 1988, allegedly because of physical abuse by the father toward the mother. She took the child to South Carolina, along with her other two daughters from her first marriage. They joined the mother's parents and other family members in South Carolina.

A California court granted the father a divorce from the mother in August 1988. The divorce decree gave the parties joint legal custody of the child, with the mother receiving primary physical custody and the father receiving specified visitation rights. The court also ordered the father to pay child support.

The father did not visit with the child from January 1988 through August 1988, the date of the divorce. During the ten months following the divorce decree, the father visited with the child only twice. On both occasions, the mother, at the father's expense, brought the child to California. The child visited with her father for approximately one week in October 1988 and for two days in May 1989.

In June 1989, the father brought an action in California for a change of custody. While the mother sent a letter to the court in response to the show cause order, she did not file an answer. The California court modified its original decree in September 1989 and awarded sole custody of the child to the father. The court did so without taking any testimony and without making any findings of fact as to jurisdiction, change in circumstances, or the best interests of the child. The judge who signed the order modifying the original decree was not the judge before whom the matter came for a hearing.

The mother did not receive a copy of the change of custody order.

Not until May 1990, some eight months later, did the father visit with the child. This occurred in South Carolina and lasted only a few hours. That same month the father brought the instant action to enforce the California decree.

The mother answered the father's complaint, alleging, among other things, the California court lacked jurisdiction to modify its earlier decree because the child had no significant connection with California. The mother also counterclaimed for custody based on changed circumstances and the best interests of the child.

Both parties moved for summary judgment on the issue of whether the California court had jurisdiction to modify its earlier decree. In an interlocutory order dated November 20, 1990, the family court found California had jurisdiction to issue the change of custody order. The family court also concluded that, while the California order was entitled to full faith and credit, it had jurisdiction to hear the change of custody issue raised by the mother.

At the hearing conducted by the family court on the change of custody issue, the mother testified and presented testimony from her husband, her sister, and the child's Sunday School teacher. The court refused requests by the mother to receive into evidence the guardian ad litem's report, to reopen the case and call the father to testify, and to consider the best interests of the child in addition to changed circumstances. The court also refused the guardian ad litem's request to conduct a full hearing and take the testimony of all of the parties.

After the presentation of the mother's case, the family court, as the record reflects, granted the father's "motion for a directed verdict." But see Rule 41(b), SCRCP ("After the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the defendant ... may move for a dismissal...."); Rule 2(a), SCRFC (making Rule 41, SCRCP applicable to domestic relations actions). The family court ordered the mother to give custody of the child to the father at noon the following day.

The mother immediately petitioned the supreme court for a writ of supersedeas. The supreme court granted the petition on the grounds that it was not clear from the record whether the California court had jurisdiction to issue the decree and it was not clear whether any court had adequately adjudged the child's best interests by viewing all available evidence prior to changing the status quo.

I.

We agree with the mother's contention that the California court did not have jurisdiction in September 1989 to modify its earlier decree so as to award sole physical custody of the parties' daughter to the father.

Where the provisions of the federal Parental Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A (Supp.1992) ¹ and state law conflict, the federal act controls. Marks v. Marks, 281 S.C. 316, 315 S.E.2d 158 (Ct.App.1984). We must first look, therefore, to the provisions of the PKPA to determine whether California properly exercised jurisdiction in this case.

It is undisputed California had jurisdiction to issue the August 1988 initial decree awarding primary physical custody to the mother. At the time the father commenced the action in January 1988, California "had been the child's home State within six months before the date of the commencement of the proceeding and the child [was] absent from [California] because of [her] removal ... or for other reasons, and a contestant continue[d] to live in [California]." 28 U.S.C. § 1738A(c)(2)(A)(ii).

It is equally clear California was not and had not been the child's home state within the past six months when the father commenced the action to modify the custody order in June 1989. Id. § 1738A(c)(2)(A). The child custody determination made by the California court would be consistent with the provisions of the PKPA, therefore, only if the California court, as required by § 1738A(c)(1), had jurisdiction under California law and if one of the other jurisdictional prerequisites contained in § 1738A(c)(2) were met. The requirements of subsections (B), (C), and (D) of § 1738A(c)(2), however, were not met because, as the record shows, South Carolina had become the child's home state as defined in the PKPA, the child was not physically present in California, and South Carolina had not declined to exercise jurisdiction.

California also did not have continuing jurisdiction under subsection (E) of § 1738A(c)(2). This is because, pursuant to § 1738A(d), jurisdiction continues only as long as the requirement of subsection (c)(1) is met, i.e., as long as "such court has jurisdiction under the law of such State."

We turn, therefore, to the question of whether California properly exercised child custody jurisdiction under its own state law.

California has enacted the Uniform Child Custody Jurisdiction Act (UCCJA). ² The jurisdictional provisions of the California version are almost identical to those adopted in South Carolina and are very similar to those of the PKPA. The only distinction between the PKPA and the UCCJA that is relevant here is the unqualified provision in the UCCJA that a court may exercise jurisdiction if "the child and at least one contestant[ ] have a significant connection with [the] state, and ... there is available in [the] state substantial evidence concerning the child's present or future care, protection, training, and personal relationships." Cal.Civ.Code § 5152 (1983) (amended 1992). This jurisdictional requirement was not satisfied.

At best, the child had only slight contact with California at the time that the father began his custody action; consequently, California no longer had jurisdiction to modify its earlier decree. See In re Marriage of Arnold, 222 Cal.App.3d 499, 271 Cal.Rptr. 624 (1990) (where an original divorce decree was issued in California and the father remained in California, California lacked jurisdiction to modify the decree because all of the child's significant contacts were with Canada); cf. Sinclair v. Albrecht, 287 S.C. 20, 23, 336 S.E.2d 485, 488 (Ct.App.1985) ("Connection with the decree state ends if all the parties involved have moved away or contact with the decree state has otherwise become slight.") (emphasis added); Kumar v. Superior Court, 32 Cal.3d 689, 186 Cal.Rptr. 772, 777, 652 P.2d 1003, 1008 (1982) (wherein the California Supreme Court stated that "New York's jurisdiction to modify its decree ... depended, inter alia, on continued 'significant connection' of [the child] and at least one of his parents...