Columb v. Columb

• Decision Date: 17 September 1993
• Docket Number: No. 91-520,91-520
• Citation: 161 Vt. 103,633 A.2d 689
• Parties: Gregory COLUMB v. Marjorie COLUMB.
• Court: Vermont Supreme Court

Page 689

633 A.2d 689

161 Vt. 103

Gregory COLUMB v. Marjorie COLUMB.

No. 91-520.

Supreme Court of Vermont.

Sept. 17, 1993.

Motion for Reargument Denied

Oct. 22, 1993.

Philip H. White of Wilson & White, P.C., Montpelier, for plaintiff-appellant.

Barney L. Brannen of Plante, Hanley & Gerety, P.C., White River Junction, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Plaintiff Gregory Columb seeks to modify the 1988 decree divorcing him from defendant Marjorie Columb so that he may obtain custody of their daughter Merideth. The trial court determined that the facts of this case do not meet the jurisdictional requirements of the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A, and, therefore, Vermont courts lack subject matter jurisdiction. We reverse this jurisdictional determination and remand for further proceedings.

The parties separated in 1984, and the child went to live with her mother in New Hampshire. The father continued to reside in Vermont and filed for divorce in 1987. The divorce judgment issued in 1988 and gave the mother physical custody of the child with limited visitation rights to the father. The mother began living with Robert Langlois and has since married him. Prior to July 1991, they resided in New Hampshire, Nova Scotia and various locations in Maine.

The events giving rise to this appeal began when the mother moved to New Hampshire in July 1991, while the child was visiting the father. According to the mother's affidavit, the move was temporary and she and Mr. Langlois intended to return to Maine after the tourist season to begin new jobs. In fact, they moved to Utah in the fall of 1991 and have remained there since.

During the 1991 summer visit to Vermont, the child reported physical abuse by Mr. Langlois. After a clinical evaluation of the child, the father refused to return her to the mother and, on August 14, 1991, moved to modify the 1988 decree to transfer custody to him. In response to the mother's motion to dismiss, the family court ruled that it lacked subject matter jurisdiction under Vermont's version of the Uniform Child Custody Jurisdiction Act (UCCJA), 15 V.S.A. §§ 1031-1051. Specifically, the court ruled that Maine was the child's home state, that it would not be in the child's best interest to litigate custody in Vermont, and that Vermont was an inconvenient forum.

The father moved to reconsider, alleging that the court had been misled into determining that Maine was the mother's and the child's home state when, in fact, the mother and Mr. Langlois were fighting extradition to Maine to respond to felony charges. The motion was denied because the father's counsel failed to appear at the hearing. The issues were, however, aired in response to a new motion, which was heard during a remand from this Court. By that time, this Court had decided Shute v. Shute, 158 Vt. 242, 247, 607 A.2d 890, 893 (1992), in which we held that, when there is a conflict, the PKPA preempts the UCCJA and determines which state has jurisdiction over child custody disputes. Based on the PKPA, the family court concluded that Vermont did not have jurisdiction to modify the custody order and denied the motion.

The father makes three arguments on appeal: (1) we should limit or overrule Shute so that its holding does not apply in this case; (2) the mother waived any objection to jurisdiction over custody of the child by appearing in the divorce action; and (3) Vermont has jurisdiction to determine custody of the child because the child had no home state when the motions to modify custody were filed. We begin with an analysis of Shute.

Shute involved a noncustodial parent's attempt to enforce visitation rights contained in a Vermont divorce decree. At the time the underlying divorce action was filed, the custodial parent and the child had resided in Connecticut for over six months. The custodial parent did not contest the jurisdiction of the Vermont court to adjudicate the divorce and the custody issue. When enforcement issues arose, however, the custodial parent began a proceeding in Connecticut to cut off visitation rights and asserted that the Vermont court did not have jurisdiction with respect to a child whose home state was Connecticut. The trial court dismissed the Vermont proceeding in favor of the one pending in Connecticut. Id. at 243-44, 607 A.2d at 891-92.

Although the parties litigated Shute under the UCCJA, which has been adopted in both Vermont and Connecticut, this Court concluded that the PKPA controlled. That statute was enacted by Congress to establish "national standards for determining subject matter jurisdiction over custody matters." Id. at 245, 607 A.2d at 893. We found that "the language of the PKPA indicates that Congress intended to preempt the field of custody jurisdiction" and that intent was achieved through the Supremacy Clause. Id. at 246, 607 A.2d at 893.

The preemption issue was important in Shute because the PKPA and the UCCJA, although similar in purpose and approach, differ on the consideration to be given to the home state of the child. The "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 six consecutive months." 15 V.S.A. § 1031(5); see also 28 U.S.C. § 1738A(b)(4) (essentially identical definition). In both statutes, periods of temporary absence are counted as part of the six-month period.

The UCCJA grants jurisdiction to adjudicate custody to the child's home state at the time of the commencement of the proceeding, or, in certain circumstances, to the state that was the home state within six months before the proceedings commenced, 15 V.S.A. § 1032(a)(1), but it also grants jurisdiction to a state that is not the home state when there are certain contacts and "it is in the best interest of the child." 15 V.S.A. § 1032(a)(2). The PKPA, on the other hand, gives primacy to the home state or the recent home state ¹ and does not authorize alternative "best interest" jurisdiction unless there is no home state. See 28 U.S.C. § 1738A(c)(2)(B)(i) (court may look to other tests to assert jurisdiction; "best interests" standard only applies if "it appears that no other state would have jurisdiction" as home state).

In Shute, the home state of the child was Connecticut even at the time the original divorce action was filed as both mother and child had been residents of Connecticut for nine months before the divorce action was filed in Vermont. 158 Vt. at 247, 607 A.2d at 894. Thus, we held that Connecticut had jurisdiction under the PKPA, and it was improper for Vermont to assert jurisdiction. Id. at 248, 607 A.2d at 894.

The facts of this case are in many respects similar to those in Shute. As in Shute, when the underlying custody order was issued, another state, in this case New Hampshire, was the home state of the child. As in Shute, this state has never become the home state of the child although the noncustodial parent resides in Vermont and the child has been here for visits. Unlike Shute, however, in this case, there is no proceeding pending in the home state of the child if, indeed, the child now has a home state.

The father argues that the PKPA does not apply in this circumstance and, therefore, does not preempt the UCCJA because the PKPA deals only with situations when one state must give full faith and credit to the custody decision of another state and when a custody decision of one state is to be modified in another state. Thus, in the father's view, the initial jurisdiction question, before any interstate conflict arises, is determined solely by the UCCJA and can be based on "best interest" jurisdiction. Shute can be distinguished, the father argues, because in that case separate proceedings existed in Connecticut creating the interstate conflict.

The father acknowledges that his argument would result in a custody order that is not entitled to full faith and credit in other states because the order would not meet PKPA requirements. He argues that we should ignore this deficiency because other states are free to recognize our order even if they are not required to do so.

We agree that in the narrow sense urged by the father the PKPA does not preempt the jurisdictional authority granted in the UCCJA. See E.E.B. v. D.A., 89 N.J. 595, 446 A.2d 871, 879 (1982) (PKPA does not "significantly disrupt" jurisdictional provisions of UCCJA), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 445 (1983); Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn.L.Rev. 711, 822-34 (1982) (preemption exists only to the extent compliance with both is impossible). ² As the father argues, the PKPA governs the enforceability of one state's custody order in another state and the other state's power to modify that order; it does not purport to control the jurisdiction to issue an initial order. See Thompson v. Thompson, 484 U.S. 174, 181, 108 S.Ct. 513, 517, 98 L.Ed.2d 512 (1988) (purpose of PKPA is "to provide for nationwide enforcement of custody orders made in accordance with the terms of the UCCJA"); Foster, Child Custody Jurisdiction: UCCJA and PKPA, 27 N.Y.L.Sch.L.Rev. 297, 307 (1981). Thus, there is no conflict between the UCCJA, which controls initial jurisdiction, and the PKPA, which does not.

The father's argument, however, ignores the coercive effect of the PKPA on the jurisdictional choices available to us. In practice,

[i]t seems obvious ... that all states will wish their decrees to have the protection of the rather strict enforcement requirements of the PKPA. It follows that they will be guided by the conditions which that Act imposes for enforcement where those conditions differ from the UCCJA. But in order to be enforceable under the PKPA, a state's decree must also be based upon jurisdiction under its own law,...