Britton v. Meier

• Decision Date: 20 December 2002
• Docket Number: No. 765,765
• Citation: 148 Md. App. 419,812 A.2d 1082
• Parties: Nicole BRITTON v. Kerry C. MEIER.
• Court: Court of Special Appeals of Maryland

812 A.2d 1082

148 Md. App. 419

Nicole BRITTON v. Kerry C. MEIER.

No. 765, Sept. Term, 2001.

Court of Special Appeals of Maryland.

December 20, 2002.

Samuel J. Brown (Jonathan E. Pasterick and Hillman, Brown & Darrow, P.A. on the brief), Annapolis, for appellant.

Erin Darner Gable (Dalnekoff & Mason, P.A. on the brief), Annapolis, for appellee.

Argued Before HOLLANDER, ADKINS and KRAUSER, JJ.

KRAUSER, Judge.

The issue before us is which state— Maryland or Illinois—may exercise jurisdiction over a visitation dispute between a Maryland mother and an Illinois grandfather, when the visitation of the grandfather was originally ordered by an Illinois court with the mother's consent. Holding that Illinois has continuing jurisdiction over this dispute, the Circuit Court for Anne Arundel denied the motion of the mother, appellant Nicole Britton, to terminate the rights of the grandfather, appellee Kerry C. Meier, to visit her four-year old daughter, Savanna Marie Britton, and then dismissed her case. In doing so, it erred.

Although this case is not a dispute between parents and certainly does not involve kidnaping, we are constrained to agree that Illinois has continuing jurisdiction over this dispute, under the Parental Kidnaping Prevention Act of 1980 ("PKPA"), 28 U.S.C. § 1738A (2000). Indeed, we do not quarrel with either the circuit court's interpretation or application of that act—only the implementation of its decision. Once it concluded that under the PKPA Illinois had jurisdiction, it should have contacted its Illinois counterpart before dismissing this case, to determine if that court wished to decline jurisdiction in deference to Maryland, Savanna's home state. Its failure to do so constitutes reversible error.

FACTS

On January 18, 1998, appellant Nicole Trinski Britton gave birth to Savanna Marie Britton in Lake County, Illinois.¹ Savanna's father was Michael Craig Meier. Before Savanna's birth, Michael died in a work-related accident. Nicole and Michael never married.

After his death, Michael's estate received a workers' compensation award on behalf of his heir and daughter, Savanna, and a wrongful death suit was filed. At that time, Michael's father, appellee Kerry C. Meier, successfully petitioned to be appointed administrator of Michael's estate.

After DNA testing confirmed that Michael was Savanna's biological father, appellee filed a petition, on June 15, 1999, for grandparent visitation in the Circuit Court of the Nineteenth Judicial Circuit in McHenry County, Illinois. Before the matter could be heard, the parties agreed upon a visitation schedule and, with their consent, the court issued an order on November 22, 1999, granting visitation to appellee, his wife and daughter, with Savanna on "the third Saturday or Sunday of every month for four hours at the residence of Savanna Britton."² It also required that appellee give appellant seventy-two hours notice of the day of visitation and that, unless otherwise agreed, appellant must be included in any visitation that involved taking Savanna from appellant's residence.

Before the issuance of that order, appellant moved with Savanna from Illinois to Maryland. On June 16, 2000, appellant filed "with the [Illinois] Court a Petition to Remove Respondent, Kerry C. Meier, as Independent Administrator of the Estate of Michael C. Meier." Among the reasons cited by appellant for appellee's removal was appellee's "announced intention to seek further DNA testing to determine the father and child relationship between the deceased and his only daughter and heir of the estate, Savanna Marie Britton." The record does not indicate the present status of that petition.

On or about June 25, 2000, appellee, exercising his visitation rights, visited Savanna in Maryland. Following that visit, on June 28, 2000, appellant filed in Illinois an Emergency Motion for Protective Order. In that motion, appellant stated that appellee had tried, during his recent visit, to "obtain[ ] a hair sample from Savanna to conduct a second DNA test." That effort included pulling Savanna's hair. As a result, appellant requested, among other things, that the Illinois court "enter a protective order preventing Respondent from taking any additional steps to obtain a second DNA test to determine the father and child relationship between Michael Craig Meier and Savanna."

In October 2000, appellee, according to the April 3, 2001 order of the circuit court, "was denied visitation of his granddaughter as a result of a Petition for Ex Parte Relief that was filed by Nicole Britton alleging the same facts as in the Emergency Motion she had filed with the Illinois Court."

On October 23, 2000, appellant filed pro se in the Circuit Court for Anne Arundel County a motion seeking to enroll and then modify the Illinois visitation order. After discovering that the motion was miscaptioned, appellant, with the assistance of counsel, filed an amended motion. In that motion, appellant sought to enroll the Illinois decree and modify it "to terminate all visitation."

In support of her request for termination of visitation, appellant claimed that appellee had previously questioned whether his son was Savanna's father and that, once it was established that he was, appellee was only interested in Savanna because she was the "only other heir in line" to "get all of the proceeds from the wrongful death case" involving her father. She explained that appellee's "sole interest in Savanna is to either have control of her funds thereby obtaining sufficient money on his behalf from the estate of the deceased." She further maintained that appellee's "intention by having visitation with [Savanna was] to simply try and either disprove paternity or get rid of [Savanna] so that [Savanna] will not be an heir to any money received as a result of the wrongful death action which has been filed on behalf of [Michael]." She also claimed that "[t]he current visitation by [Savanna] with the [appellee was] detrimental to the minor child's health." In support of the latter claim, she asserted "that the visitation has not gone well in the past in that [appellee] causes substantial psychological damage to the minor child and the minor child's sibling."

In Illinois on November 21, 2000—between the time appellant filed her pro se and amended motions—appellee filed a Petition for Rule to Show Cause why he was being denied visitation rights with Savanna. The hearing on this petition began on December 6, 2000, but was continued until January 4, 2001, because the Illinois court found that although notice had been given, the "rule to show cause" had not been served. Although appellant was not present, the Illinois court changed appellee's visitation schedule, allowing "visitation beginning the third Saturday of each month at 10:00 A.M. through Sunday (the following day) at 8:00 P.M .... not ... at the residence of Nicole Britton, but ... at such places as Kerry Meier determines." The only condition that it placed on appellee was that "Kerry Meier shall, however, provide Nicole Britton with the address and telephone of the place where they will spend Saturday nights, in case of emergency."

On January 4, 2001, the Illinois hearing that had been postponed on appellee's Petition for Rule to Show Cause was held. Appellant was not present, but her counsel apparently was. The court ordered that the visitation schedule modified on December 6 was to remain in effect. It further ordered that appellant appear before it on February 22, 2001, to show cause why she should not be held in contempt for failing to abide by the court's orders.

On January 19, 2001, appellee filed in the Anne Arundel circuit court a Motion to Dismiss for Lack of Subject Matter Jurisdiction. In a "directive,"³ filed on February 13, 2001, the Honorable Nancy Davis-Loomis of that court stated that "[t]he Illinois Judgment is enrolled pursuant to the Motion to Enroll the Foreign Judgment."

On April 2, 2001, the Honorable Eugene M. Lerner of the Circuit Court for Anne Arundel County conducted a hearing on appellee's motion to dismiss. After that hearing, the court granted the motion to dismiss and denied appellant's motion to enroll the Illinois order and to modify visitation. This appeal followed.

Standard of Review

"The proper standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct. In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action." Fioretti v. Md. State Bd. of Dental Exam'rs, 351 Md. 66, 71-72, 716 A.2d 258 (1998) (citations omitted). In reviewing the complaint, we must "presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom." Id. at 72, 716 A.2d 258; see also Bennett Heating & Air Conditioning, Inc. v. NationsBank of Md., 342 Md. 169, 174, 674 A.2d 534 (1996)

; Faya v. Almaraz, 329 Md. 435, 443, 620 A.2d 327 (1993); Berman v. Karvounis, 308 Md. 259, 264-65, 518 A.2d 726 (1987). "Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven." Faya, 329 Md. at 443,

620 A.2d 327; see also Bobo v. State, 346 Md. 706, 709, 697 A.2d 1371 (1997).

DISCUSSION

Appellant contends that the circuit court erred in denying her motion to enroll and vacate the Illinois visitation order at issue. Maryland, she asserts, had jurisdiction to consider her motion, while Illinois did not. Appellant's motion, we agree, should not have been so peremptorily denied, but not for the reason advanced by appellant. Indeed, the circuit court was correct: Illinois, as the state of initial jurisdiction, had exclusive jurisdiction over this matter. But it erred, we hold, in dismissing appellant's motion before contacting its Illinois counterpart to determine whether it wished to decline jurisdiction in favor of Maryland, Savanna's...