Agnello v. Becker

• Decision Date: 16 June 1981
• Citation: 184 Conn. 421,440 A.2d 172
• Court: Connecticut Supreme Court
• Parties: Anthony AGNELLO v. Virginia BECKER

Page 172

440 A.2d 172

184 Conn. 421

Anthony AGNELLO v. Virginia BECKER

Supreme Court of Connecticut.

Argued Feb. 11, 1981.

Decided June 16, 1981.

Herbert F. Rosenberg, Ridgefield, for appellant (plaintiff).

David P. Ball, Danbury, with whom, on the brief, was Steven M. Olivo, Danbury, for appellee (defendant).

Before BOGDANSKI, C. J., and PETERS, HEALEY, ARMENTANO and SHEA, JJ.

ARTHUR H. HEALEY, Associate Justice.

In this case, the plaintiff appeals from the judgment of the trial court which refused to order the return of a minor child to the custody of the plaintiff and to the state of New Jersey, and failed to find the defendant in contempt. It involves the application of the Uniform Child Custody Jurisdiction Act (UCCJA), which has been adopted by both Connecticut and New Jersey. ¹

The circumstances which generated this action are as follows: The plaintiff and the defendant lived together out of wedlock from February, 1974, until September, 1978, in the state of New Jersey. A female child, Nicole, was born to them on June 23, 1977.

On September 16, 1978, the plaintiff and the defendant separated. In November, 1978, the plaintiff removed the child from the defendant's home while the defendant was at work. For nearly one year, the child lived with the plaintiff. During this time, the defendant hired two investigators to find Nicole. The defendant finally discovered her whereabouts in October, 1979. On November 15, 1979, the defendant removed the child from a nursery school parking lot. She brought the child with her to the state of Connecticut, where she had assumed residence about one week earlier. Prior to November 15, 1979, the child had lived her entire life in New Jersey, and had never been out of the state.

On or about November 24, 1979, the plaintiff instituted an action to obtain custody of the child in the Superior Court, Chancery Division, of Passaic County in New Jersey. This action was instituted pursuant to the UCCJA. N.J.Stat.Ann. §§ 2A:34-28 through 2A:34-52. On that same date, the New Jersey court entered an ex parte order and directed that "temporary custody of (the child) be ... awarded to the plaintiff until further order of this court" and that the "defendant ... forthwith return custody of the child to the plaintiff." ² The court further ordered that the defendant appear before it on December 14, 1979, or as soon as possible thereafter, to "show cause ... why the within order should not be made permanent." The "show cause" order was personally served upon the defendant in Connecticut by a deputy sheriff for Fairfield County on December 9, 1979. ³

The defendant retained the services of a New Jersey attorney, ⁴ who appeared at the December 14, 1979 hearing. Upon the attorney's advice, the defendant did not present herself or the child in court on that date. After hearing argument by counsel on December 14, 1979, the New Jersey court found that it had jurisdiction to make a child custody determination pursuant to the UCCJA, and advised the defendant to "return the child to this Jurisdiction and to the custody of the Plaintiff herein by 12 o'clock Noon, December 17, 1979." ⁵ The defendant received by mail from her attorney an unsigned copy of the court's order. The plaintiff contends that a copy of this order was personally served upon the defendant by a deputy sheriff for Fairfield County in January, 1980. The defendant has not returned the child to the custody of the plaintiff or to the state of New Jersey.

The plaintiff instituted the present action in the Superior Court for the judicial district of Danbury in January, 1980, requesting the court to enforce the orders of the New Jersey court, and to adopt those orders as the orders of the Connecticut Superior Court, pursuant to the UCCJA; General Statutes §§ 46b-90 through 46b-114; ⁶ and to enforce the same by contempt. The defendant appeared by counsel, who moved to dismiss the proceedings, to grant custody of the child to the defendant, and to refer the matter to the family relations officer.

On February 4, 1980, the Superior Court, Glass, J., heard the parties, denied the defendant's motion to dismiss, denied the plaintiff's citation for contempt, and referred the matter to the family relations officer. ⁷ The court, Glass, J., reaffirmed these orders after reargument on March 3, 1980. The plaintiff has instituted this appeal from those decisions.

On various grounds, the plaintiff challenges the ruling of the trial court in failing to direct the return of the child to the plaintiff's custody and to New Jersey, and in refusing to hold the defendant in contempt.

This case appears to be the first in this court in which we are asked to construe the provisions of the UCCJA, adopted by our legislature in 1978, and codified in chapter 815o of the General Statutes, §§ 46b-90 through 46b-114. The uniform act was approved by the National Conference of Commissioners on Uniform State Laws (hereinafter commission), and the American Bar Association, in 1968. As of the summer of 1980, the act had been adopted, with some variations, in over forty states. See Bodenheimer, "Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA," 14 Family L.Q. 203 (1981).

As one of its stated purposes, the act seeks to "(a)void jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being." General Statutes § 46b-91(a)(1); see N.J.Stat.Ann. § 2A:34-29(a). The act hopes to "deter abductions ...; assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection; (and) avoid relitigation of custody decisions of other states ...." General Statutes § 46b-91(a); ⁸ see N.J.Stat.Ann. § 2A: 34-29. Our act expressly provides that "(t)he courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this chapter." General Statutes § 46b-103. ⁹

One of the conclusions of the trial court attacked by the plaintiff is that the New Jersey court did not have jurisdiction over the matter and that Connecticut was a more appropriate jurisdiction in which to determine the custody question. We agree with the plaintiff that the New Jersey court clearly had jurisdiction under the UCCJA and that the Connecticut trial court should have recognized and enforced the New Jersey decree.

The UCCJA sets forth the bases for jurisdiction of a court to make a child custody determination. See General Statutes § 46b-93(a); ¹⁰ N.J.Stat.Ann. § 2A:34- 31(a). As the commissioners' note to the uniform act makes clear: "In the first place, a court in the child's home state has jurisdiction, and secondly, if there is no home state or the child and his family have equal or stronger ties with another state, a court in that state has jurisdiction." (Emphasis added.) 9 U.L.A., Uniform Child Custody Jurisdiction Act § 3, commissioners' note. "Home state" is defined in the act to mean "the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months ...." General Statutes § 46b-92(5); N.J.Stat.Ann. § 2A:34-30(e). The act extends the home state rule for an additional six-month period in order to allow suit in the home state after the child's departure. 9 U.L.A., supra, § 3, commissioners' note; see General Statutes § 46b-93; N.J.Stat.Ann. § 2A:34-30(e). "The main objective is to protect a parent who has been left by his spouse taking the child along. The provision makes clear that the stay-at-home parent, if he acts promptly, may start proceedings in his own state if he desires, without the necessity of attempting to base jurisdiction on paragraph (2)." 9 U.L.A., supra, § 3, commissioners' note. Paragraph (2), i.e., General Statutes § 46b-93(a)(2), N.J.Stat.Ann. § 2A:34-31(a)(2), provides that a state has jurisdiction if "it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one 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." (Emphasis added.) 9 U.L.A., supra, § 3(a)(2).

Under the act, New Jersey clearly had jurisdiction. The evidence at trial indicated that before the November 15, 1979 abduction by the defendant, the child had lived her entire life in New Jersey, and that the plaintiff instituted his custody suit in New Jersey within a month after the abduction.

Jurisdiction may be found to exist under the UCCJA, as the trial court correctly concluded, if it is in the best interest of the child that a court of the state assume jurisdiction. General Statutes § 46b-93(a)(2); N.J.Stat.Ann. § 2A:34-31(a)(2). To satisfy the "best interest" test, however, the child and at least one contestant must have a "significant connection" with this state; General Statutes § 46b-93(a)(2)(A); N.J.Stat.Ann. § 2A:34-31(a)(2)(i); and there must be available in this state "substantial evidence concerning the child's present or future care, protection, training and personal relationships." General Statutes § 46b-93(a)(2)(B); N.J.Stat.Ann. § 2A:34-31(a)(2)(ii). The UCCJA expressly notes that "(p)hysical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody." See 9 U.L.A., supra, § 3(c). In adopting General Statutes § 46b-93(c), which is our counterpart of § 3(c) of the uniform act, our legislature decided to omit the words "while desirable."

Upon a review of the evidence, we conclude...