B.R.F., In re

• Citation: 669 S.W.2d 240
• Decision Date: 20 March 1984
• Docket Number: No. 46519,46519
• Parties: In re B.R.F., A Minor.
• Court: Missouri Court of Appeals

Page 240

669 S.W.2d 240

In re B.R.F., A Minor.

No. 46519.

Missouri Court of Appeals,

Eastern District,

Division One.

March 20, 1984.

Love, Lacks, McMahon & Paule by Daniel P. Card II, St. Louis, for petitioner, B.S.G.

Iris Golliday Ferguson, St. Louis, for respondent, F.F.

SATZ, Judge.

This is an original proceeding in habeas corpus initiated by B.S.G., the maternal grandmother of B.R.F., a minor. The grandmother contends she was awarded the legal custody of B.R.F. by an order of the Juvenile and Domestic Relations Court, Burlington County, New Jersey (New Jersey Court). ¹ She also contends the natural father of B.R.F. is violating her right to custody by having taken physical custody of B.R.F. and refusing to return B.R.F. to her. We issued the writ, and, for the reasons which follow, we find the writ lies and order the father, F.F., to return the physical custody of B.R.F. to the grandmother, B.S.G., under and pursuant to the order of temporary custody of the New Jersey Court.

Certain facts are not in dispute. B.R.F. is one of two children born to F.F., the father, during his marriage to B.J.F., the mother. The marriage was dissolved by a decree of the Circuit Court, City of St. Louis, in December, 1976. Custody of B.R.F. and her brother was awarded to their mother. ² At the time of the divorce decree, the mother was living in New Jersey. She continued to live there with her children until her death on January 11, 1982.

After the death of the mother, the maternal grandmother cared for the children at their home in New Jersey. In February, 1982, the grandmother filed a "complaint" in the New Jersey Court requesting an order of temporary custody of the children. On March 23, 1982, an evidentiary hearing was held. The father appeared in person and by his attorney. The New Jersey Court entered an order awarding temporary custody of the children to their grandmother subject to the father's right to reasonable visitation. ³

On August 18, 1982, the father sought modification of the original divorce decree by filing a motion for an "Ex Parte Order of Custody" in the Circuit Court, City of St. Louis (Missouri Court). Suggesting the death of the mother as a change of circumstance, the father requested the Court "to vacate and set aside" its previous order awarding custody of the children to their mother and, ex parte, to grant him custody of the children. On the same day, the Missouri Court entered its order granting custody of the children to the father. Subsequently, the father traveled to New Jersey and returned to Missouri with his daughter, B.R.F.

On August 30, 1982, the New Jersey Court held another hearing concerning the custody of B.R.F. The father did not appear but was represented by counsel. The Missouri Court's order of custody was admitted into evidence. ⁴ In an unsigned memo, dated the same day as the hearing, the New Jersey Court's previous order was "ordered" to remain in full force and effect and the father was "ordered" to return B.R.F. to the Court within 10 days. Subsequently, and, as far as the record shows, without further hearing, an order, signed by the judge of the New Jersey Court, awarded "custody of the children" to the grandmother, suspended the father's visitation rights and ordered the father to return B.R.F. to the grandmother. The father failed to comply with this order, and the grandmother then petitioned this Court for a writ of habeas corpus. ⁵

On these basic facts, the grandmother contends the New Jersey Court had jurisdiction to issue its custody awards and that, under the Uniform Child Custody Jurisdiction Act (UCCJA) adopted by both Missouri (Missouri Act) and New Jersey (New Jersey Act), ⁶ the orders of the New Jersey Court, in particular, the last order of that Court, must be recognized and enforced by Missouri courts. In face of a valid and enforceable award of custody to her, the grandmother reasons, the father's retention of the custody of B.R.F. is unlawful.

The father counters that the Missouri Court properly assumed jurisdiction over B.R.F. at the time of the original divorce decree and that this jurisdiction continued and was in effect at the time the grandmother petitioned the New Jersey Court; therefore, he reasons, the New Jersey Court lacked jurisdiction to determine the custody of B.R.F. Moreover, the father argues, the order of the Missouri Court, dated August 18, 1982, awarding custody of B.R.F. to him, was a valid order, pursuant to which he rightfully brought B.R.F. back to live with him in Missouri.

We resolve the custody issue here under the UCCJA. ⁷ The purpose of the UCCJA is to limit, as much as possible, the jurisdiction or exercise of jurisdiction over the custody of a child, at any one time, to the court of only one state and, thus, avoid jurisdictional competition and conflict between the courts of different states. UCCJA § 1, 9 ULA 116-117 (Master ed. 1979). Thus, under the UCCJA, the courts of one state must recognize and enforce the custody decree of a court of another state as long as the latter court assumed jurisdiction under statutory provisions substantially in accordance with the UCCJA or under factual circumstances which meet the jurisdictional standards of the UCCJA. UCCJA § 13. However, the courts of one state are not permitted to modify a custody decree issued by a court of another state unless the latter court no longer has jurisdiction or declines to exercise its jurisdiction to modify the decree. UCCJA § 14. The Missouri Act and the New Jersey Act track these sections of the UCCJA. §§ 452.500; 452.505 RSMo; §§ 2A:34-41; 2A:34-42 N.J.Stat.Ann. Therefore, it is clear that if the Missouri Court had continuing jurisdiction over the custody of B.R.F. pursuant to the divorce decree, the New Jersey Court's assumption of jurisdiction was invalid. We find, however, that the Missouri Court did not have continuing jurisdiction.

Prior to our present dissolution act, a Missouri court was said to derive its jurisdiction over a divorce proceeding from the divorce action itself, e.g., Schumacher v. Schumacher, 223 S.W.2d 841, 845 (Mo.App.1949), and the divorce action was considered to be "personal to the two spouses" Id. at 845. An award of custody made in conjunction with a divorce decree simply determined that, as between the two spouses, the spouse chosen as custodian for a child was more suitable to care for that child. E.g., State ex rel. Walker v. Crouse, 240 Mo.App. 389, 205 S.W.2d 749, 750 (1947). Upon the death of either spouse, the divorce action abated Schumacher v. Schumacher, supra at 845 and, since the court derived its jurisdiction from the divorce action, its jurisdiction to modify the original divorce decree abated. Id. at 845. Our present Dissolution Act has not changed these principles and their corollaries. See Tomlinson v. O'Briant, 634 S.W.2d 546, 548 (Mo.App.1982); See Leventhal v. Leventhal, 629 S.W.2d 505, 507 (Mo.App.1981). Accordingly, in the present case, the Missouri Court's jurisdiction, derived from the divorce action, abated upon the death of B.J.F., the natural mother, ⁸ leaving the New Jersey Court free to exercise its jurisdiction over the custody of B.R.F., if it could otherwise meet the requirements of the New Jersey Act.

Since New Jersey has adopted the UCCJA, (the New Jersey Act), we must recognize and enforce the New Jersey Court's order of custody, its exercise of jurisdiction, if the New Jersey Court assumed jurisdiction under statutory standards substantially in accordance with those of the Missouri Act. § 452.500 RSMo (UCCJA § 13). The degree of latitude allowed by § 452.500 RSMo (UCCJA § 13) depends upon the interpretation of the statute's substantial conformity phrase, an issue that courts have not critically examined. Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn.L.R. 711, 726-734 (1982). Two immediate problems are created by this phrase. First, § 452.500 RSMo (UCCJA § 13) does not explicitly indicate whether the New Jersey Act or the Missouri Act should be used to test the propriety of the New Jersey Court's assumption of jurisdiction. The two Acts are, however, so similar that the results under each would be the same. For our purposes here, we use the New Jersey Act and cite the corresponding sections of the Missouri Act. ⁹ Second, § 452.500 RSMo (UCCJA § 13) does not explicitly indicate which provisions of the New Jersey Act the New Jersey Court must have complied with in order to receive the respect mandated by § 452.500 RSMo. (UCCJA § 13). No extended discussion is needed here on this issue, however, for the parties focus their arguments on three mandatory provisions of the Acts: § 2A:34-31 N.J.Stat.Ann.; § 452.450 RSMo; (UCCJA § 3), setting the criteria for jurisdiction; and §§ 2A:34-32 and 2A:34-33 N.J.Stat.Ann.; §§ 452.455(2) and 452.460 RSMo (Supp.1983) (UCCJA §§ 4 and 5), setting the requirements of notice and opportunity to be heard. ¹⁰

The New Jersey Act contains four prerequisites for jurisdiction. § 2A:34-31, N.J.Stat.Ann.; 452.450 RSMo (UCCJA § 3). ¹¹ These prerequisites are alternative, and, if any of the four are met, the New Jersey Court had jurisdiction.

The father contends the New Jersey Court did not have jurisdiction under any provision of the New Jersey Act. The grandmother responds that New Jersey was the "home state" of B.R.F. and, thus, the New Jersey Court had jurisdiction under the first prerequisite of the New Jersey Act. Although we agree with the grandmother that the New Jersey Court had jurisdiction, we do not agree that New Jersey was the "home state" of B.R.F.

"Home state" is defined as "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 6 consecutive months...." § 2A:34-30(e) N.J.Stat.Ann.; § 452.445(4) RSMo (Supp.1983) (UCCJA § 2(5)). "Person acting as parent" is defined as "a person, other than a parent, who...