Curtis v. Curtis

• Decision Date: 27 March 1990
• Docket Number: No. 890210-CA,890210-CA
• Parties: Lauralee CURTIS, Plaintiff and Appellant, v. William Gregory CURTIS, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 717

789 P.2d 717

Lauralee CURTIS, Plaintiff and Appellant, v. William Gregory CURTIS, Defendant and Respondent.

No. 890210-CA.

Court of Appeals of Utah.

March 27, 1990.

Susan White Griffith, Provo, for plaintiff and appellant.

Marlin J. Grant, Logan, for defendant and respondent.

Before DAVIDSON, BILLINGS and ORME, JJ.

OPINION

ORME, Judge:

Appellant Lauralee Curtis appeals from an order of the Fourth District Court dismissing her order to show cause and enforcing an order from a Mississippi court modifying a custody arrangement previously decreed in a Utah divorce action. We conclude that the decision of the Utah court is not consistent with the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (1989). We accordingly reverse.

FACTS

The parties to this dispute were granted a decree of divorce on December 4, 1987, by Utah's Fourth District Court. At the time of divorce, the parties had seven minor children. The divorce decree granted appellant, Lauralee Curtis, the children's mother, custody of the four youngest children. The older three children were allowed to choose with which parent they wanted to live. They chose their father, respondent William Gregory Curtis.

In February 1988, Lauralee consented to William's taking the children for visitation over the Presidents' Day weekend. Without Lauralee's knowledge, he took the children to Mississippi, where he claimed he first learned that the children had been allegedly abused while in Lauralee's custody. Instead of returning the children following Presidents' Day, William retained custody of the younger children in Mississippi, in violation of the Utah divorce decree.

On February 16, William filed a complaint with a Mississippi court requesting: (1) a protective order against Lauralee pursuant to the Mississippi Protection From Domestic Abuse Law, Miss.Code Ann. §§ 93-21-1 to -29 (1989) and (2) modification of the Utah divorce decree to grant him custody of the younger children. The Mississippi court, in an ex parte order, granted temporary custody to William. Lauralee Curtis did not know what had become of the children until she received notice of the ex parte order and of the petition to modify the custody decree.

Lauralee obtained counsel in Mississippi and, on February 26, a motion to dismiss for lack of jurisdiction was filed on her behalf. The Mississippi court held a three-day hearing on William's complaint and Lauralee's motion to dismiss. Both parties appeared and were represented by counsel. At the close of the hearing, the Mississippi court continued the protective order against Lauralee, denied her motion to dismiss for lack of jurisdiction under the Mississippi abuse statute, and took under advisement her motion to dismiss for lack of jurisdiction to modify the Utah decree as well as the modification request.

The Mississippi court did not rule on the petition to modify the Utah divorce decree until August 1988, some five months after the hearing. ¹ On August 8, the Mississippi court ruled, pursuant to the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (1989) ("the PKPA"), that it did not have jurisdiction to modify the Utah divorce decree. However, the court did not dissolve the protective order against Lauralee.

On September 12, Lauralee sought and obtained from the Fourth Judicial District Court of Utah an order requiring William to show cause why he should not be held in contempt for failing to return the children to Utah. On September 23, her counsel in Mississippi filed a motion to dissolve the Mississippi protective order. The Mississippi court found Lauralee's motion to be frivolous and assessed fees against her.

On October 24, William filed a second motion with the Mississippi court to modify the Utah divorce decree. At that time the children had been living in Mississippi for just over eight months. It had been less than a year since the Utah divorce decree was issued. That same day William obtained an interlocutory order from the Mississippi court granting physical custody to him pending the final judgment, with an order requiring pick-up of the children. ²

On November 10, the Fourth District's domestic relations commissioner, Howard Maetani, held a hearing on Lauralee's order to show cause and concluded that Mississippi did not have jurisdiction to modify the divorce decree because Utah had never relinquished jurisdiction. He therefore recommended against enforcement of the Mississippi order and in favor of issuing a restraining order against William. William moved to dismiss Commissioner Maetani's order and objected to his ruling.

On December 5, the Mississippi court issued a final judgment on William's second motion to modify the Utah decree. The Mississippi court found that the children had been present in the state for at least six months, ³ that the parties had significant connections with the state, and that modification by the Mississippi court was in the best interests of the children. ⁴ These findings were likely based on the jurisdictional prerequisites found in the Uniform Child Custody Jurisdiction Act adopted in Mississippi, Miss.Code Ann. §§ 93-23-1 to -47 (1989) ("the UCCJA"). ⁵ The Mississippi court determined that it had jurisdiction to modify the Utah divorce decree and issued an order granting permanent custody of all seven children to William.

On January 12, 1989, William's objection to Commissioner Maetani's ruling came before Utah's Fourth District Court. Prior to his decision, the judge, who had entered the initial Utah decree, conferred by phone with the Mississippi judge. ⁶ In its opinion, the Fourth District Court stated:

Both courts ... recognized that only one state--the state of continuing jurisdiction--has power to modify a divorce decree. Both courts further adhered to the principle that only the state with continuing jurisdiction decides whether to decline the exercise of its jurisdiction over the Decree of Divorce. Both Courts concluded there can be no concurrent jurisdiction between the State of Utah and the State of Mississippi and that under normal circumstances Utah has continuing jurisdiction to make subsequent changes or new orders concerning the custody of children when such matters have been previously decided in a Utah Decree of Divorce. ⁷

Despite these findings, the Utah court concluded that Lauralee had made a "general appearance" in Mississippi during the hearing in late February and early March of 1988, and thereby submitted herself to the jurisdiction of the Mississippi court. The Utah court thereupon dismissed the order to show cause and granted William's motion to enforce the order of the Mississippi court giving him custody of the children. Lauralee appeals from these rulings of the Utah court.

In this appeal, we address two important issues. First, we analyze the issue of subject matter jurisdiction in custody modification proceedings. Second, we address Lauralee's "general appearance" and what effect that appearance had on Mississippi's subject matter jurisdiction. Initially we note that, on appeal, both parties based their arguments primarily upon interpretations of the UCCJA, a uniform statute enacted in both states. Because we find that the PKPA directly addresses the issues before this court, creates a very manageable two-prong test for determining modification jurisdiction, and would govern in the event of any conflict with the UCCJA or other state law, ⁸ we focus our analysis on the federal statute. ⁹

SUBJECT MATTER JURISDICTION AND THE PARENTAL KIDNAPPING PREVENTION ACT

1. Generally

It is particularly appropriate to apply the PKPA in this dispute because the federal act was specifically created to deal with this kind of case. We need not turn to general legislative history to ascertain this fact. Congress formulated specific "findings and purposes" which were thereafter enacted as part of the PKPA, though not codified. See generally Parental Kidnapping Prevention Act of 1980, Pub.L. No. 96-611, § 7, 94 Stat. 3568, 3568-69 (1980). In these "findings and purposes," Congress recognized the lack of a national standard to guide states in resolving their jurisdictional disputes in the area of child custody. ¹⁰ Id. Without a national standard, states were reaching inconsistent and conflicting results. Id. Thus, disgruntled noncustodial parents, like William in this case, were tempted to snatch children away from the custodial parent and to seek a more favorable decree from another state. Id.

In response to these problems, Congress enacted the PKPA. Its expressed purpose was "to establish national standards under which the courts of [each state] will determine their jurisdiction to decide such disputes and the effect to be given by each such [state] to such decisions by the courts of other such [states]." Id. at Pub.L. No. 96-611, § 7(b). These standards guide and instruct courts to "ascertain the one state with jurisdiction to modify an existing child custody order." Murphy v. Woerner, 748 P.2d 749, 750 (Alaska 1988) (emphasis added). In most cases, the appropriate state will be the one that issued the original decree, fulfilling the "strong Congressional intent to channel custody litigation into a court having continuing jurisdiction." Mark L. v. Jennifer S., 133 Misc.2d 454, 506 N.Y.S.2d 1020, 1023 (Fam.Ct.1986) (emphasis in original). By limiting the discretion of individual state courts, Congress has removed the success of forum shopping and thus the incentive for child snatching. See E.E.B. v. D.A., 89 N.J. 595, 446 A.2d 871, 876 (1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 445 (1983); Tufares v. Wright, 98 N.M. 8, 644 P.2d 522, 525 (1982).

Having examined the purposes of the PKPA, we now apply its particular statutory provisions and policies to the facts before us. For ease of discussion, we will refer to the state that originally enters a custody decree as the "first state" and another state asked to...