Belosky v. Belosky

Decision Date08 February 1982
Docket NumberNo. 13902,13902
Citation97 N.M. 365,1982 NMSC 13,640 P.2d 471
PartiesKathleen Ann BELOSKY, Petitioner-Appellee, v. Robert John BELOSKY, Respondent-Appellant.
CourtNew Mexico Supreme Court

Atkinson & Kelsey, Jan B. Gilman, Albuquerque, for respondent-appellant.

Harold B. Worland, Albuquerque, for petitioner-appellee.

OPINION

RIORDAN, Justice.

Kathleen Ann Belosky (mother) filed a petition in New Mexico for modification of an Ohio decree which granted her custody of her two minor children but by modification restricted her from permanently removing the children from Ohio. Robert John Belosky (father) filed a motion to dismiss the petition for modification based on lack of jurisdiction, and to enforce an Ohio decree granting him emergency temporary custody. The trial court denied the father's motion. We reverse.

On April 24, 1981, the mother removed the children from Ohio with the apparent intent of relocating in Albuquerque, New Mexico without approval by the Ohio court or the father. This was in violation of a stipulated order entered by the Ohio court on May 15, 1980.

On April 28, 1981, the Ohio court granted the father emergency temporary custody for the purpose of returning the children to Ohio. On June 8, 1981, the order was extended subject to a hearing on the merits of the father's motion for change of custody in Ohio. Both parties were ordered by the Ohio court to return the children to Ohio pending the completion of its child custody investigation.

On May 13, 1981, the mother filed her petition in New Mexico for modification of the Ohio order of May 15, 1980. She asked that the New Mexico court modify the Ohio decree to allow her to remain in New Mexico with custody of the children.

On July 10, 1981, the father filed his motion in New Mexico to dismiss the mother's petition for lack of jurisdiction and to enforce the Ohio temporary decree. After the trial court denied the motion to dismiss, we granted permission for an interlocutory appeal.

The issues we consider on appeal are:

I. Whether the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A (Spec.Pamp.1981), precludes a New Mexico modification of the Ohio order of May 15, 1980.

II. Whether the PKPA requires New Mexico to give full faith and credit to Ohio's emergency temporary order of June 8, 1981.

In Valles v. Brown, 97 N.M. ---, 639 P.2d 1181, (1981), we ruled that the effective date of the PKPA is December 28, 1980. Therefore, the PKPA applies in this case.

I. Modification of the Ohio order.

We follow the analysis of Valles v. Brown, supra in applying the PKPA to this case. Section 1738A(f) of the PKPA sets forth the conditions upon which the New Mexico trial court may grant the mother's petition to modify the Ohio order of May 15, 1980.

(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if-

1) it has jurisdiction to make such a child custody determination; and

(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

28 U.S.C.A. § 1738A(f) (Spec.Pamp.1981).

In this case, the second condition required under subsection (f) that would allow New Mexico to modify, has not been met. Ohio continues to have jurisdiction over the parties and this case under its law. Under its own law, the Ohio court obtained jurisdiction over the parties and their minor children in the 1977 Ohio divorce decree. It has maintained continuing jurisdiction over the parties and their minor children as the children's "home state" and "state of significant contact" pursuant to Ohio law. It continued to have jurisdiction even after the mother removed the children to New Mexico since the father continued to reside in Ohio. Ohio Rev.Code Ann. title 31, § 3109.22 (Anderson 1980). The Ohio court has not declined to exercise its jurisdiction.

Under subsection (d) of the PKPA, a state continues to have jurisdiction if it: 1. made a child custody determination "consistently" with the provisions of the PKPA; 2. continues to meet the requirements of subsection (c)(1) of the PKPA; and, 3. continues to be the residence of the child or any contestant. As we have already recognized, the father continues to reside in Ohio and Ohio continues to have jurisdiction under its own laws.

The only inquiry left to make as to Ohio's continual jurisdiction under subsection (f) is whether the Ohio decree is "consistent" with the PKPA. To do this we refer to subsection (c).

(c) A child custody determination made by a court of a State is consistent with the provisions of this Section only if-

(1) such court has jurisdiction under the law of such State; and

(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;

(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

(E) the court has continuing jurisdiction pursuant to subsection (d) of this section. (Emphasis added).

28 U.S.C.A. § 1738A(c) (Spec.Pamp.1981).

We have already determined that Subsection (c)(1) has been met. Subsection (c)(2) is also met. Since the children lived in Ohio for at least six months immediately preceeding the Ohio order of May 15, 1980, Ohio was the home state of the children at the time of the commencement of the proceding. § 1738A(b) (4). Having met these conditions, we find that New Mexico is without jurisdiction to entertain the mother's petition to modify the Ohio order of May 15, 1980.

The mother contends that the Ohio order of May 15, 1980 does not come within the purview of the PKPA because it was not a "custody determination" within the definition of Section 1738A(b)(3), and because it placed discretionary powers of the court in the hands of the father which amounted to relinquishment of its jurisdiction. We do not agree. Notwithstanding the propriety of the Ohio order, restricting relocation by the custodial parent without consent by the noncustodial parent or the court) the court made a valid "modification". A modification is clearly included in the definition of "custody determination" under Section 1738A(b)(3).

The mother also states that the purpose of the PKPA is to prevent interstate abductions and other removal of children for the purpose of obtaining custody. Since she already had legal custody before filing her petition in New Mexico, she argues that the PKPA should not apply.

Although the mother correctly states one of the purposes of the PKPA, Congress was not motivated by that purpose alone. Other stated purposes address directly the problems of forum shopping which are applicable equally to custodial and noncustodial parents.

(c) The general purposes...

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