Etter v. Etter

• Decision Date: 11 September 1979
• Docket Number: No. 1401,1401
• Citation: 405 A.2d 760,43 Md.App. 395
• Parties: Charles L. ETTER v. Judy Carole ETTER.
• Court: Court of Special Appeals of Maryland

Page 395

43 Md.App. 395

405 A.2d 760

Charles L. ETTER v. Judy Carole ETTER.

No. 1401.

Court of Special Appeals of Maryland.

Sept. 11, 1979.

Michael L. Pullen, Easton, for appellant.

John P. Severt, with whom was Joseph J. Wase, Columbia, on the brief, for appellee.

Argued before MOORE, LOWE and MacDANIEL, JJ.

MOORE, Judge.

The questions presented on this appeal are whether, pursuant to the Uniform Child Custody Jurisdiction Act, Md.Ann.Code art. 16, §§ 184-207, (Supp.1978), the Circuit Court for Howard County (Fischer, J.) had jurisdiction, and properly exercised it, to resolve a custody dispute involving a child whose home had been with his father in Dover, Delaware. On the basis of the facts and circumstances disclosed in the record, and the provisions of the Act, we hold that the court was correct in exercising jurisdiction over the controversy.

I

In November 1977, Judy Carole Etter, after years of marital strife, departed from her home in Dover, Delaware, leaving behind her husband, the appellant, and Troy, her 12-year old son. Thereafter, she established residence in Columbia, Maryland, where she secured a job as an accountant. During her separation from Troy, appellee maintained frequent contact with him. No custody decree had been issued by any court; Troy remained with his father by agreement of the parties.

Late in the evening of July 22, 1978, Troy, then 13 years of age, telephoned appellee and pleaded with her to come for him and take him to live with her in Maryland. In the early morning hours of July 23, she and Troy crossed into Maryland and proceeded to appellee's home in Columbia.

Court proceedings inevitably ensued. The record indicates that on Friday, August 11, 1978, the Circuit Court for Howard County signed an Ex parte Order granting custody of Troy to appellee "during pendency of this proceeding." We are told that the court issued the Order after talking with appellee and with Troy, and after the office of the Clerk of the Court had closed. Appellant was not notified of the proceeding. On the same day, at 4:02 p. m., appellant filed a petition in the Family Court of Delaware seeking custody of the boy. The following Monday, August 14th, at 9:43 a. m., appellee's petition for "Sole and Exclusive Custody" was filed in the office of the Clerk of the Circuit Court for Howard County. ¹ On August 16th, notice of the Ex parte Order was sent to appellant. The Delaware court, after learning of the Maryland petition, and believing it had been filed first, by Order dated August 28, 1978, stayed further proceedings in Delaware.

A hearing was held in Maryland on September 20th before Judge Fischer. Appellant, although he had filed no responsive pleading to his wife's petition, was represented by counsel and appeared as a witness. Two of his neighbors from Dover, Delaware also testified. The court had also heard the testimony of appellee and of five witnesses on her behalf. The boy was also a witness. At no time prior to or during the hearing were any statements made or actions taken challenging the validity of the Ex parte temporary Order. At the conclusion of the hearing, the parties were permitted to submit memoranda on the jurisdictional question. The court filed its opinion on December 6th, in which it held that Maryland had jurisdiction and awarded custody to appellee.

On this appeal, Mr. Etter raises three issues. He contends that: the Ex parte Order was void; Maryland had no subject matter jurisdiction; and, alternatively, the lower court should have declined jurisdiction so as to recognize and enforce the public policies underlying the Uniform Child Custody Act.

II

Relying principally on Maryland Rule 170, ² appellant first requests that we declare the Ex parte Order of August 11, 1978 void because at the time of its issuance no pleadings were on file with the clerk. This Order, interlocutory in nature, granted temporary custody of Troy to appellant. Pursuant to Md. (Cts. & Jud. Proc.) Code Ann. § 12-303(c)- (10) (Supp.1978), a natural parent may appeal an interlocutory order that deprives him or her of the care and custody of his or her child. Appellant's trial counsel, who withdrew his appearance after the proceedings below, neither appealed this Order nor raised any questions as to its validity. The point is obviously moot. ³

III

Appellant strenuously contends that the lower court was without jurisdiction to determine custody. The Oregon Court of Appeals in Carson v. Carson aptly described the steps to be followed in determining jurisdiction and the propriety of its exercise under the Uniform Child Custody Jurisdiction Act (hereinafter cited as the Act). It stated:

"Under the Act the court must go through a Multi-step process in determining whether to exercise jurisdiction. First it must ascertain whether it has jurisdiction . . . . If it finds that there is jurisdiction, Then the court must determine whether there is a custody proceeding pending or a decree in another state which presently has jurisdiction. If so, the . . . court must decline to exercise its jurisdiction. . . . Finally, assuming the court has jurisdiction and there is not a proceeding pending or a decree, the court then must determine . . . whether to exercise its jurisdiction because of convenient forum." (Emphasis added.)

29 Or.App. 861, 565 P.2d 763, 764-65 (1977).

In Maryland, Section 186 of the Act sets forth the instances when a court of this State, competent to decide child custody matters, has jurisdiction to make a child custody determination. Md.Ann.Code art. 16, § 186 (Supp.1978). Subsection (a)(2), relied upon by the court below, ⁴ confers jurisdiction if, Inter alia :

"It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, Or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships . . . ." (Emphasis added.)

It becomes apparent that the critical elements are (a) "a significant connection with (the) State" and (b) that "substantial evidence" be available in Maryland to show the child's present and future needs. One court has interpreted this "as meaning a high but not maximum degree of connection and access to evidence." Carson v. Carson, 565 P.2d at 767. Despite appellant's arguments to the contrary, the record here is replete with evidence showing that the mother and child had a strong connection with Maryland, that substantial evidence was available in Maryland concerning his needs, and that it would be in the best interests of Troy for the Maryland court to exercise jurisdiction. This is reflected in the comprehensive opinion of Judge Fischer. He stated in part:

"It is abundantly clear from the testimony of the parties and witnesses that Troy's best interests lie with his care and custody being with his mother. The difficult decision for this Court is whether this Court is the appropriate Court to make that decision.

Troy was until quite recently a citizen of the State of Delaware and that State had a paramount interest in Troy's welfare. It seems apparent from a full review of the Uniform Child Custody Act to which both Delaware and Maryland are signators that it would not be unreasonable to reach the conclusion that Delaware is the appropriate forum in which to litigate Troy's custody. The Uniform Act was enacted to prevent parents from taking children from one jurisdiction to another in order to change the forum in which to determine custody. But, in the present case, it appears that the Circuit Court for Howard County, Maryland is the proper court to exercise jurisdiction over the parties. The Circuit Court for Howard County meets the jurisdictional requirements of the Uniform Child Custody Jurisdiction Act. Article 16 Sec. 186(a)(2) of the Act provides that jurisdiction may be invoked where:

'it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships.'

The facts of this case indicate that both the child and mother have significant connections with the State of Maryland. The mother has lived and worked in Maryland for nine months and she has acquired a single family dwelling as a residence for both her and Troy. Troy is attending a school in Maryland at Wilde Lake Middle School in Columbia and finding it personally rewarding, in a contrast to his attitude toward school in Delaware. Mrs. Etter and Troy have close family ties with two of the boy's maternal aunts and the boy and his mother have established close medical connections with Dr. Hayes, a psychologist and resident of Howard County. Dr. Hayes has reported that both Troy and Mrs. Etter must continue with their psychotherapy treatment so that both can recover from the effects of the marital strife.

As to the second requirement of Article 16 Sec. 186 (a)(2) there is available in this State substantial evidence concerning Troy's present or future care, protection, training and personal relationships. Troy's mother lives in Maryland and he emphatically desires to remain with her. All of Troy's school records are in Maryland and Troy's psychologist, with whom Troy meets regularly, lives in Maryland. It thus appears that the Circuit Court for Howard County, in the present and in the future, has optimum access to relevant evidence about the child and family. In addition this does not appear to be the typical case of a parent unilaterally removing a child from one state to another. In this case Troy was not snatched by a parent. He initiated the call for...