Harris v. Simmons

• Decision Date: 01 September 1995
• Docket Number: No. 1233,1233
• Citation: 676 A.2d 944,110 Md.App. 95
• Parties: Jennifer Louise HARRIS v. Craig A. SIMMONS et al. ,
• Court: Court of Special Appeals of Maryland

Page 95

110 Md.App. 95

676 A.2d 944

Jennifer Louise HARRIS v. Craig A. SIMMONS et al.

No. 1233, Sept. Term, 1995.

Court of Special Appeals of Maryland.

May 3, 1996.

Reconsideration Denied June 25, 1996.

Benjamin J. Woolery (Richard M. McGill, on the brief), Upper Marlboro, for Appellant.

Anne Meister, Washington, DC, for Appellees.

Argued before CATHELL, SALMON and EYLER, JJ.

SALMON, Judge.

The parties to this appeal are battling for custody of Brittany K., the 6-year-old daughter of appellant Jennifer Harris (nee Simmons). The principal issue presented is whether South Carolina had subject-matter jurisdiction to make a permanent custody determination.

Brittany was born on April 4, 1990. Her natural father, Robert K., died in August 1992. Until appellant was admitted to the psychiatric ward of Fairfax General Hospital in February 1993, she and Brittany lived in various homes in Maryland. Craig and Ann Simmons ("the Simmonses"), Brittany's maternal grandfather and his wife, took in Brittany when Mrs. Harris was admitted to the hospital. After her release, appellant and the Simmonses entered into a voluntary "Care, Custody and Support Agreement" on May 2, 1993, which sought to "ensure stability for Brittany until she reaches school age or until such time as Jennifer Simmons is able to provide a stable and secure living arrangement for both herself and Brittany," by allowing Brittany to continue living with the Simmonses. Brittany lived with the Simmonses until August 27, 1993, when appellant changed her mind and insisted that her daughter again reside with her. For the next seven months, Brittany lived with her mother and step-father, Louis Edward Harris, Jr. ¹

Mr. Simmons, with appellant's consent, picked up Brittany on April 8, 1994 for a pre-arranged period of visitation. The Simmonses planned to have Brittany visit them in their new home in Horry County, South Carolina. The three-week visit was scheduled to allow appellant time to recover from the birth of her second child. Mr. Simmons's daughter, Mary (appellant's sister), discovered bruises and welts on Brittany's buttocks and legs shortly after the visitation period began. Upon arrival in South Carolina, the Simmonses had Brittany's injuries examined by a physician, who reported possible child abuse to the South Carolina Department of Social Services. South Carolina notified the Prince George's County Department of Social Services (PGDSS) that it was investigating the possible abuse of Brittany. PGDSS made an independent finding of child abuse on May 9, 1994.

Brittany told appellees and her treating physicians that her stepfather beat her with a belt, causing the bruising. Mr. Harris was contacted, and he admitted that he had hit Brittany with his belt once on each of two different occasions, both on April 5, 1994. Appellant and her husband maintained, however, that the bruising was not the result of Mr. Harris's use of the belt but was instead the result of Brittany falling off playground equipment on April 4, 1994.

Proceedings in South Carolina

The litigation leading to this appeal began on April 19, 1994 when appellees filed for custody of Brittany in the Circuit Court for Horry County, South Carolina. That same day, the court issued an ex parte emergency order granting temporary physical custody of Brittany to the Simmonses, stating, "Without determining whether this Court has on-going jurisdiction in this matter, the facts found above [that Brittany has been physically abused] gives this Court emergency jurisdiction to enter necessary and appropriate orders."

Appellant filed a motion to dismiss "Due to Forum Being Inconvenient." The South Carolina court issued an order on June 27, 1994, awarding temporary custody of Brittany to appellees pending trial. The court referred to Maryland as Brittany's "former home state" and cited, as bases for exercising jurisdiction, the emergency and "significant connections" test of the South Carolina Uniform Child Custody Jurisdiction Act ("UCCJA"). The order was captioned "Final as to Jurisdiction."

A permanent custody hearing was held on January 26, March 7, and March 9 of 1995. The South Carolina court granted permanent custody to the Simmonses on April 7, 1995, stating, "The prior, unappealed final order as to jurisdiction is binding upon this Court, and is the law of this case."

Proceedings in Maryland

On May 9, 1994, twenty days after the Simmonses instituted suit in South Carolina, appellant filed a complaint in the Circuit Court for Prince George's County, Maryland, seeking custody of Brittany under Maryland's UCCJA, alleging that Maryland was Brittany's "home state." ²

The circuit court (Ahalt, J., presiding), after a hearing on July 7, 1994 on the issue of Maryland's jurisdiction over Brittany's custody, found that Maryland was Brittany's home state and that South Carolina had not "exercised jurisdiction substantially in conformity" with the UCCJA. The Simmonses filed alternative motions to dismiss the complaint pending in Prince George's County, or to stay the proceedings, on July 12, 1994. The Simmonses argued that Maryland should not exercise jurisdiction because they had already obtained a custody decree in South Carolina. Appellant responded by arguing that South Carolina should have declined to exercise jurisdiction once an action was commenced in Maryland, the more appropriate jurisdiction.

Judge Ahalt presided over a review hearing on the issue of temporary custody and visitation on July 29, 1994. He once again found that Maryland was Brittany's home state. He further found that South Carolina had no basis to exercise continuing jurisdiction.

That same day, Master Julia B. Weatherly of the circuit court presided over a pendente lite hearing on the custody issue. She recommended that custody be awarded to the Simmonses. She also recommended that Mrs. Harris be granted telephone access to and visitation with Brittany, provided that Mr. Harris was not present and had no contact with Brittany.

The Simmonses filed a "Motion for Finding of Inconvenient Forum" on March 6, 1995. They asked the Maryland court to decline to exercise jurisdiction over the custody matter. Appellant again argued that South Carolina should have exercised its jurisdiction only until an action was filed in Maryland. ³

The circuit court (Smith, J., presiding) heard argument on the motion to dismiss ⁴ on May 25, 1995 and granted the motion on June 23, 1995. This timely appeal followed, which presents the following question:

Did the South Carolina court properly exercise jurisdiction under the UCCJA to award permanent custody?

We answer in the negative, thereby reversing the grant of appellees' motion to dismiss, and remand for further proceedings. Until those proceedings have concluded, South Carolina's grant of temporary custody to appellees shall remain in effect.

DISCUSSION

I.

The UCCJA is codified in Maryland Code (1984, 1991 Repl.Vol.), §§ 9-201 to -224 of the Family Law Article ("FL"). It controls which state has subject-matter jurisdiction over child custody cases. See In re Marriage of Ben-Yehoshua, 91 Cal.App.3d 259, 154 Cal.Rptr. 80, 83 (1979); Renno v. Evans, 580 So.2d 945, 948 (La.Ct.App.1991); FAMILY LAW & PRACTICE § 32.03 (Arnold H. Rutkin, general ed. 1990). The UCCJA was proposed in 1968 in response to problems of interstate enforcement of custody decrees. By September 1984, all fifty states had adopted it. FAMILY LAW, supra, s32.03[a], at 32-43.

The general purposes of the UCCJA are to avoid jurisdictional conflict with courts of other states; to assure that litigation takes place in the state with which the child and the child's family have the closest connection and where significant evidence concerning the child's care, protection, and personal relationships is most readily available, and that courts decline to exercise jurisdiction when the child and the child's family have a closer connection with another state; and to avoid relitigation of custody decisions of other states "insofar as feasible." FL § 9-202(a); see also S.C.CODE ANN. § 20-7-784 (Law.Co-op.1985) ("S.C.CODE"). A court issuing a custody decree retains jurisdiction for future modifications so long as the parties have requisite ties to that state. FL § 9-214; see also S.C.CODE § 20-7-810.

The UCCJA bases jurisdiction on four grounds, only the first three of which are relevant to this case.

(a) Grounds for jurisdiction.--A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination ... if:

(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within 6 months before commencement of the proceedings and the child is absent from this State because of the child's removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this State;

(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and the child's parents, or the child and at least 1 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;

(3) the child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

(4)(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with items (1), (2), or (3) of this subsection or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is...