Brown v. Brown

• Decision Date: 29 January 1985
• Court: Connecticut Supreme Court
• Parties: Richard A. BROWN v. Kathleen W. BROWN.

Page 1116

486 A.2d 1116

195 Conn. 98

Richard A. BROWN v. Kathleen W. BROWN.

Supreme Court of Connecticut.

Argued Nov. 9, 1984.

Decided Jan. 29, 1985.

Alan A. Rosa, Torrington, for appellant (plaintiff).

Martin A. Rader, Jr., Danbury, for appellee (defendant).

Before PETERS, C.J., and HEALEY, PARSKEY, SHEA and SANTANIELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

This case concerns the application of the Uniform Child Custody Jurisdiction Act (UCCJA) which has been adopted by both Connecticut and Florida, the two states directly involved in this appeal. ¹ The plaintiff husband instituted this Connecticut custody action against the defendant wife, a Florida resident, after her refusal to return their two minor children ² to him in Connecticut after summer visitation with her. The defendant filed a motion to dismiss the action on the basis that Connecticut was an inconvenient forum under General Statutes § 46b-97 ³ to determine the issue of custody. ⁴ The trial court granted the defendant's motion and this appeal followed.

The relevant background circumstances are the following: The marriage of the parties was dissolved in 1979 in Florida where the parties had resided since 1969. The dissolution judgment gave primary custody of the minor children to the plaintiff and rights of "liberal and reasonable rights of visitation" to the defendant. ⁵ It also provided that neither party "can remove the children from the State of Florida without an Order of [this] Court." Moreover, the judgment also provided that the court "retains jurisdiction ... to enter such Orders as may be equitable, appropriate and just and to insure compliance with this Final Judgment." Thereafter, on May 5, 1980, the Florida court entered a modification order pursuant to a joint stipulation of the parties which provided, inter alia, that the plaintiff "may remove the minor children from the state of Florida, to reside in any location within the continental United States" and that the defendant "will have custody of the children during the summer months...." ⁶

In August, 1980, the plaintiff and the children left Florida and went to Columbus, Indiana, where they resided for about three and one half months. The children attended school there. ⁷ The plaintiff remarried on September 3, 1980, in Indiana. He then moved to Bethel, Connecticut, and stayed with his brother for four or five weeks until he could find a place for the children. The children enrolled in and attended school in Bethel. Thereafter, the plaintiff moved to North Carolina, where the children went to school and lived until early in September, 1981. The plaintiff then returned for two weeks to Columbus, Indiana, with the children who were "enrolled in school" there. ⁸ Sometime around October 1, 1981, the plaintiff returned with the children to West Redding, Connecticut, and the children went to school in Redding. After living in West Redding for "about two and a half months," he moved in January, 1982, to New Milford where the children attended school until June, 1982. At that time, the children went to Florida to live with their mother, the defendant, for the summer.

A week or two before the commencement of school in September, ⁹ the defendant's attorney wrote to the plaintiff requesting a modification of custody. The plaintiff refused and requested that the defendant return the children to him. She refused to do so. On September 9, 1982, the defendant filed an action in Florida seeking a modification of the custody award in the dissolution judgment. ¹⁰ On September 15, 1982, the plaintiff filed this action in Connecticut seeking enforcement of the Florida judgment. ¹¹ By order dated October 1, 1982, the Florida court granted the defendant's motion for temporary custody and designated her as the primary custodian of the minor children whose residence was ordered to "be that of the [defendant] until further order of this court." In entering these orders, which were expressly designated temporary, that court, referring to its final judgment of August 8, 1979, found that it "has never relinquished its jurisdiction over the subject matter or the parties herein, and that [it] has the power, jurisdiction and authority to continue to issue Orders in this cause." Additionally, the Florida court in its order indicated that it had been advised that the plaintiff had initiated proceedings in Connecticut to request that state to recognize the final judgment in the original Florida action. It also noted that it was further advised that the Connecticut proceedings had been initiated on September 15, 1982, whereas the defendant had filed her Florida petition for modification of its final judgment on September 9, 1982, when the minor children were in her physical care, custody and control.

Thereafter, on November 15, 1982, after a full hearing in Florida where both parties were represented by counsel, that court issued its "Order Relinquishing Jurisdiction." ¹² This order, inter alia, determined that Florida was an inconvenient forum for a custody determination because of the unavailability of witnesses, including the plaintiff, and that "jurisdiction ... is relinquished by this Court to the Courts of the State of Connecticut ... [and] that this Court will cooperate with the Courts of the State of Connecticut ... including resuming jurisdiction of the cause should the Courts of the State of Connecticut express their willingness that this be done."

On April 25, 1983, a hearing was held in Connecticut on the defendant's motion to dismiss which was predicated on the ground that Connecticut was an inconvenient forum under General Statutes § 46b-97 for the determination of custody. ¹³ The trial court granted the motion, finding that Florida should assume jurisdiction, and the plaintiff has appealed.

The plaintiff claims on appeal that the trial court erred: (1) in dismissing his action, contrary to statutory and case law and the order of the Florida court, when the Florida court had previously made the determination that the issue of custody should best be determined in Connecticut; and (2) in refusing, contrary to statutory intent, to permit him to present evidence through the defendant as a witness in his own behalf. We find no error.

I

The plaintiff's first claim of error is essentially three-fold: By declining jurisdiction, the plaintiff argues, the Connecticut court acted in contravention of the "home state" concept under the UCCJA, the Florida court order that relinquished jurisdiction, and the federal Parental Kidnapping Prevention Act of 1980 (PKPA). We address these prongs of his claim in that order.

A

The plaintiff claims that the Connecticut court erred in dismissing this action on the ground that Florida at the time was the "home state," a "finding" the plaintiff characterizes as contrary to the statutory definition of "home state." See General Statutes §§ 46b-92(5); 46b-93(a)(1)(A), (a)(1)(B). ¹⁴ The plaintiff cannot, as appeared at oral argument, establish that the "home state" concept was a basis for the Connecticut court's ruling from which he now appeals; the record does not support the plaintiff's contention that this question was actually decided. The issue on this appeal does not turn, however, on whether Florida or Connecticut is the "home state" under General Statutes § 46b-93(a)(1) as the plaintiff seems to argue. ¹⁵ Rather, our focus is whether the trial court erred when it dismissed the plaintiff's action pursuant to the UCCJA's "inconvenient forum" provision, General Statutes § 46b-97, which was the explicit thrust of the defendant's motion to dismiss. In her motion to the Connecticut court, the defendant asserted four reasons for declining jurisdiction pursuant to § 46b-97. The court in its memorandum of decision on the motion to dismiss explicitly relied on at least two of those grounds, i.e., that Florida has a "closer connection" with the children than does Connecticut; see General Statutes § 46b-97(c)(2); and that "substantial evidence" concerning the Brown children's present and future care "is more readily available" in Florida. See General Statutes § 46b-97(c)(3). We agree with the result reached by the Connecticut court and first address the factors that should be weighed by the Connecticut court in determining under the UCCJA whether the Florida court rather than the Connecticut court should adjudicate this custody dispute.

We note that the question here is not whether jurisdiction existed in Connecticut, but rather whether it should be declined pursuant to § 46b-97. These questions are separate and distinct under the UCCJA which envisages that where concurrent jurisdiction exists, only one state should exercise that jurisdiction. Plas v. Superior Court, 155 Cal.App.3d 1008, 1018, 202 Cal.Rptr. 490, 496 (1984); Hattoum v. Hattoum, 295 Pa.Super. 169, 175, 441 A.2d 403 (1982); see General Statutes § 46b-91(a)(1) and (2); Uniform Child Custody Jurisdiction Act § 3, Commissioner's note cited at 9 Uniform Laws Annotated 123 (hereinafter UCCJA, § 3 Commissioner's note).

Section 7 of the UCCJA, adopted by the Connecticut General Assembly and codified at General Statutes § 46b-97, ¹⁶ permits the courts of our state to decline jurisdiction over custody disputes in accordance with that section. Moreover, in adopting § 1 of the act; General Statutes § 46b-91; the legislature has expressed the intent that it is the policy in Connecticut to "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 where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state...." General Statutes § 46b-91(a)(3).

By its express language, § 46b-97(c) directs the ...