Butler v. Grant, 313

• Court: United States State Supreme Court of Delaware
• Citation: 714 A.2d 747
• Docket Number: No. 313,1997,313
• Parties: Karen BUTLER, 1 Respondent-Below, Appellant, v. Thomas GRANT, Petitioner-Below, Appellee. . Submitted:
• Decision Date: 26 May 1998

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714 A.2d 747 Karen BUTLER, ¹ Respondent-Below, Appellant,
v.
Thomas GRANT, Petitioner-Below, Appellee. No. 313, 1997. Supreme Court of Delaware. Submitted: May 26, 1998.
Decided: July 29, 1998.

Court Below: Family Court of the State of Delaware, in and for Kent County, File No.: CK91-4599, CPI No.: 97-04541.

On Appeal from Family Court: AFFIRMED.

Francine R. Solomon, Wilmington, for Appellant.

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Thomas Grant, Smyrna, pro se.

David H. Williams (argued), Paul P. Rooney, Morris, James, Hitchens & Williams, Wilmington, Amici Curiae.

Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT and BERGER, JJ., constituting the Court en Banc.

HARTNETT, Justice.

In this appeal we consider whether the Family Court, pursuant to the Uniform Child Custody Jurisdiction Act, ² has continuing subject matter jurisdiction over the custody of a minor child, although the child and her mother have left Delaware.

Respondent-Below, Appellant, the Mother, contends that the Delaware Family Court no longer has continuing jurisdiction to consider the custody of her minor child because she and the child have made Connecticut their home state for almost three years and have registered in Connecticut the Delaware Family Court's 1995 Modification of Custody Decree. Alternatively, Mother contends that the Family Court should have deferred its jurisdiction to Connecticut as the more convenient forum.

Because the Petitioner-Below, Appellee, the Father, continues to reside in Delaware and continues to exercise his right of visitation with his child in Delaware, we hold that the Delaware Family Court has exclusive continuing jurisdiction over the parties and the proceedings under the Uniform Act. Additionally, we find that the Family Court's ruling that Delaware was not an inconvenient forum for the parties to adjudicate the issue of visitation was proper. We, therefore, AFFIRM the Family Court.

Nature of the Proceedings

The procedural facts are not in dispute. They, unfortunately, illustrate how a simple issue of custody and visitation as to the minor child of the parties can be made unduly complex. Upon their divorce in 1991, Father and Mother agreed to joint custody of the child, whereby the Mother would be the primary residential parent and the Father would have visitation rights. The Family Court approved this arrangement and entered an initial custody and visitation order by stipulation on December 14, 1992.

In April 1994 Mother remarried and in December of 1994 she filed an emergency request in the Delaware Family Court to modify the initial custody decree to permit her to remove the child to Connecticut. She additionally sought sole custody of the child. Father, in response, also requested sole custody contending that residential placement in Delaware would be in the child's best interest. On June 24, 1994, after a hearing on the parties' cross-motions for modification of the original custody order, the Family Court issued a temporary order which continued the parties' joint custody arrangement, but permitted the child to be relocated to Connecticut. The primary physical placement of the child remained with the Mother, and Father was granted liberal visitation rights. This arrangement became permanent on March 24, 1995 when the Family Court, on review of its temporary order, entered an order continuing the previous custody and visitation arrangement (the Delaware Modification Decree).

On January 12, 1996, Mother registered the Delaware Modification Decree in the Connecticut Superior Court. Shortly thereafter Mother petitioned the Delaware Family Court to dismiss the Delaware proceedings for lack of subject-matter jurisdiction on the grounds that Mother and Child had been residing in Connecticut since June, 1994, and the Delaware Modification Decree was now registered in Connecticut. A hearing was scheduled in Delaware on this petition, along with other pending petitions between the parties, but both Mother and her Delaware counsel failed to appear. The Family Court, therefore, did not consider the merits of the petition.

In October, 1996, Mother's Connecticut counsel wrote to the Delaware Family Court requesting that the court's file be transferred to Connecticut stating that Connecticut had become the home state of the proceedings between the parties. In response, the Family

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Court stated that no decision had been made to defer to the Connecticut Court. Mother's Connecticut counsel then wrote a letter to the Connecticut Court asking it to direct the Delaware Family Court to transfer the case file to Connecticut. On November 6, 1996, the Connecticut Superior Court issued an order accepting jurisdiction of the case, and subsequently wrote to the Delaware Family Court requesting the case file. Within a week, Mother petitioned the Connecticut Court to modify the visitation provision of the Delaware Modification Decree. After receiving notice of the hearing in the Connecticut Court, Father entered his appearance in that court, allegedly to prevent a default judgment. The parties then proceeded to a mediation conference, where both parties agreed to modify the visitation provisions of the Delaware Modification Decree. On December 18, 1996, the Connecticut court entered a decree approving the agreement (Connecticut Modification Decree) and forwarded a copy of it to the Delaware Family Court. In response, the Delaware Family Court, in a January 12, 1997 letter, made it clear that it had declined to defer its continuing jurisdiction over the matter to the State of Connecticut and, without any application pending in Delaware, declined to make a more substantive ruling on the jurisdictional issue.

On February 10, 1997, Mother filed a motion for contempt in Connecticut seeking to enforce the 1996 Connecticut Modification Decree. A hearing was scheduled for March 11, 1997. Father immediately moved in the Connecticut Court to dismiss the proceeding for lack of subject matter jurisdiction. On March 14, 1997, the Connecticut Court formally requested the Delaware Family Court to defer jurisdiction to Connecticut and outlined the parties connections to both Delaware and Connecticut.

Meanwhile in Delaware, on February 24, 1997, Father filed an emergency petition seeking a ruling that Delaware had continuing and exclusive jurisdiction over the custody and visitation proceedings. The Family Court summarily dismissed the petition on February 27, 1997. On March 10, Father filed a rule to show cause motion seeking to enforce the 1995 Delaware Modification Decree. As a result, the Family Court, recognizing that two modification decrees existed, one in Delaware and one in Connecticut, sua sponte reopened the petition for a ruling on jurisdiction and, after responses and briefing from both parties, on July 2, 1997 ruled that it retained continuing jurisdiction and declined to defer its jurisdiction to Connecticut. ³ Mother now appeals that Order.

Father filed an answer pro se in this appeal. On November 25, 1997, this Court appointed David H. Williams, Esquire, and Paul P. Rooney, Esquire, amici curiae, who also filed a brief in this matter. This Court gratefully acknowledges the pro bono participation of the amici. Their service is in the highest tradition of the Delaware Bar.

Delaware Family Court's Jurisdiction

Mother first contends that Father should be estopped from raising the issue of whether the Delaware Family Court has continuing jurisdiction over the matter because he voluntarily appeared in the Connecticut action and agreed to modify the Delaware Modification Decree. It is, however, well-established Delaware law that parties cannot confer subject matter jurisdiction upon a

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court. ⁴ We, therefore, find Mother's argument to be without merit.

Mother next contends that Delaware no longer has continuing jurisdiction over the parties because the Delaware Modification Decree was registered in Connecticut and Connecticut is now the "home state" of the child and the mother. Further, she argues that all the information necessary to determine whether to modify the Delaware Modification Decree is before the Court in Connecticut. This argument raises the issue of whether the Delaware Family Court properly interpreted the Uniform Act when it determined that it had continuing subject matter jurisdiction, an issue of law which this Court reviews de novo. ⁵

In order to determine whether the Family Court has continuing jurisdiction over the parties and jurisdiction to enforce its Delaware Modification Decree, we must consider the interplay between several provisions of the Uniform Act, and its general purposes. ⁶ We must also consider the Federal Parental Kidnapping Prevention Act. ⁷

The general purposes of the Uniform Act are outlined in Section 1(a) of the Act: ⁸

(a) The General purposes of this Act [Chapter] are to:

(1) Avoid 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 the well being of such children;

(2) Promote cooperation with the courts of other states to the end that a custody decree will be rendered in that state which can best decide the case in the interest of the child;

(3) Assure that litigation concerning the custody of the child takes 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 the courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state which has enacted the Uniform Child Custody Jurisdiction Act;

(4) Discourage continuing controversies over child custody in the interests of greater stability of home environment and of secure family relationships for the child;

(5) Deter abductions...