D'Agnese v. D'Agnese

• Decision Date: 19 March 1996
• Docket Number: No. 2466-94-2,2466-94-2
• Citation: 22 Va.App. 147,468 S.E.2d 140
• Parties: Irene D'AGNESE (Gouletas) v. Victor J. D'AGNESE. Record
• Court: Virginia Court of Appeals

Page 140

468 S.E.2d 140

22 Va.App. 147

Irene D'AGNESE (Gouletas) v. Victor J. D'AGNESE.

Record No. 2466-94-2.

Court of Appeals of Virginia Richmond.

March 19, 1996.

John K. Taggart, III, Charlottesville (Patricia D. McGraw; Tremblay & Smith, on briefs), for appellant.

Victor J. D'Agnese, pro se.

Present: MOON, C.J., COLEMAN and ELDER, JJ.

MOON, Chief Judge.

Irene D'Agnese appeals the circuit court's ruling that it had jurisdiction over the issue of child custody in divorce proceedings initiated by Victor D'Agnese. Mrs. D'Agnese argues that the court was prevented from assuming jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) because at the time it did so, a custody proceeding was pending in Illinois. We agree and reverse the circuit court's decree insofar as it assumes jurisdiction over the issue of child custody.

Irene Gouletas and Victor D'Agnese were married on August 24, 1978 in Chicago, Illinois. Mrs. D'Agnese's family resides in Chicago. Three of the couple's four children were born in Chicago. The family moved to Virginia in 1984, where their fourth child was born. The family resided in Virginia until 1992. On March 3 of that year, Mrs. D'Agnese filed for divorce in Virginia, requesting custody of the children.

On April 10, 1992, apparently without informing Mr. D'Agnese of her intentions, Mrs. D'Agnese took the four children to live with her family in Chicago. On April 20, 1992, Mrs. D'Agnese filed a petition for an order of protection with the Circuit Court of Cook County, Illinois. She claimed that the court had jurisdiction because the children were physically present in the state and it was necessary to protect them from mistreatment and abuse. In support of this claim, she described various acts by Mr. D'Agnese, including beating the children, holding a knife to her daughter's throat, and threatening to kill the family pets with a gun. Although the form petition requested information about other pending court actions between the parties, Mrs. D'Agnese did not advise the Illinois court that she had a petition for divorce pending in Virginia. On April 24, 1992, Mrs. D'Agnese voluntarily dismissed the Virginia divorce petition.

On April 20, 1992, the day Mrs. D'Agnese filed her petition, the Illinois court granted an emergency protection order. The order prohibited Mr. D'Agnese from entering Mrs. D'Agnese's home or office in Chicago and from removing the children from the state. The order also granted temporary custody of the children to Mrs. D'Agnese. Mr. D'Agnese was notified of this order after it was granted. On May 11, 1992, Mr. D'Agnese moved to dismiss on the grounds that the Illinois court was an inappropriate forum. The court refused to dismiss Mrs. D'Agnese's petition, and the emergency order was extended several times.

On or about May 1, 1992, Mrs. D'Agnese filed for divorce in Illinois. Several days later, Mr. D'Agnese filed for divorce in Virginia. Mrs. D'Agnese's Illinois petition for divorce and the petition for a protective order were consolidated. Mr. D'Agnese did not answer the Illinois petition for divorce, and a judgment for dissolution of the marriage was entered on March 22, 1993. The Illinois court granted custody of the children to Mrs. D'Agnese and continued the order of protection. It reserved rulings on visitation, support, maintenance, and attorney's fees. Mr. D'Agnese filed an appeal of the judgment, which was dismissed on February 25, 1994, apparently at Mr. D'Agnese's request.

On January 25, 1993, while both the Virginia and Illinois proceedings were pending, Mrs. D'Agnese filed a motion for abstention in the Virginia circuit court, asking that the court refrain from exercising jurisdiction due to the Illinois proceedings. On March 31, 1993, the Virginia trial judge issued a letter to the parties indicating that he had spoken with the judge in Illinois. The conversation took place after Mr. D'Agnese had defaulted in the Illinois divorce proceeding, but before the final decree was entered. The Illinois judge informed Judge Peatross that Mr. D'Agnese had made an appearance in her court that "was not a special appearance but one which resulted in in personam jurisdiction generally over the matter."

The judges agreed that Virginia had jurisdiction as the children's "home state" under the Uniform Child Custody Jurisdiction Act. See Code § 20-126(A)(1); Ill.Rev.Stat. Ch. 40, § 2104. They also agreed that Illinois would have jurisdiction if the requirements of the so-called "emergency jurisdiction" section of the UCCJA were met. See Ill.Rev.Stat. Ch. 40, § 2104; Code § 20-126(A)(3). The Illinois judge indicated that she had made findings of abuse or mistreatment in accord with that section, and that Mr. D'Agnese had not challenged those findings. Judge Peatross informed the Illinois judge that Mr. D'Agnese had denied abuse at a hearing before the Virginia court. However, Judge Peatross concluded that both courts "may take jurisdiction of the matter and it is a question of whether or not one of the courts should decline jurisdiction at this point in time."

On October 19, 1993, the Virginia court ruled that under Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362 (1984), it was the proper court to exercise jurisdiction under the UCCJA because Virginia was the children's home state. On August 11, 1994, the circuit court denied Mrs. D'Agnese's motion to dismiss Mr. D'Agnese's petition for lack of jurisdiction.

On November 4, 1994, the Virginia court issued a decree of divorce that affirmed that portion of the Illinois court's decree dissolving the parties' marriage. The court noted that Mrs. D'Agnese had preserved her right to appeal the court's retention of jurisdiction. The court awarded custody of the children to Mrs. D'Agnese. The issue of visitation was reserved pending reports by mental health professionals. The court later ordered supervised visitation on a limited basis, to which Mrs. D'Agnese has objected. Mrs. D'Agnese appeals the circuit court's ruling that it had jurisdiction over the custody of the children.

We review the evidence and all reasonable inferences in the light most favorable to Mr. D'Agnese, the prevailing party in the trial court. The burden is on the party who alleges reversible error to show that reversal is justified. Lutes v. Alexander, 14 Va.App. 1075, 1077, 421 S.E.2d 857, 859 (1992).

Both Virginia and Illinois have adopted the UCCJA. Among the Act's purposes are to avoid jurisdictional competition in matters of child custody, to promote cooperation among courts of different states in custody disputes, to assure that litigation over the custody of the child ordinarily occurs in the state most closely connected with the child and his or her family, and to deter abductions and other unilateral removals of children undertaken in order to obtain custody orders. Middleton, 227 Va. at 93, 314 S.E.2d at 367. The child's welfare is the paramount concern for courts in determining the most appropriate forum for a custody dispute. Farley v. Farley, 9 Va.App. 326, 329, 387 S.E.2d 794, 796 (1990).

Mrs. D'Agnese does not dispute that Virginia was the children's home state when these proceedings began. Instead, she argues that the Virginia court could not lawfully assume home state jurisdiction because a proceeding was pending in Illinois. Under Code § 20-129(A), the Commonwealth "shall not" exercise jurisdiction where at the time the petition was filed, a proceeding concerning the custody of the child was pending in a court of another state "exercising jurisdiction substantially in conformity with this chapter...." This rule does not apply where the court in the other state decides to stay its proceeding in favor of the other court. Code § 20-129(A). Here, the Illinois court declined to stay its proceeding in favor of the Virginia court.

This section of the UCCJA was intended to avoid jurisdictional conflict by establishing a "priority in time" rule for simultaneous proceedings. See Elizabeth Carrington Shuff, Comment, The Uniform Child Custody Jurisdiction Act in Virginia, 14 U.Rich.L.Rev. 435, 438, 442 (1979). ¹ Code § 20-129(A) applies only to proceedings in another...