Kioukis v. Kioukis

• Decision Date: 11 August 1981
• Citation: 440 A.2d 894,185 Conn. 249
• Court: Connecticut Supreme Court
• Parties: Dimitrius KIOUKIS v. Norma KIOUKIS.

Page 894

440 A.2d 894

185 Conn. 249

Dimitrius KIOUKIS v. Norma KIOUKIS.

Supreme Court of Connecticut.

Argued June 3, 1981.

Decided Aug. 11, 1981.

Paul P. DeLuca, Danbury, for appellant (defendant).

Sheldon A. Rosenbaum, Waterbury, for appellee (plaintiff).

Before BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

BOGDANSKI, Chief Justice.

On December 2, 1976, the trial court rendered a judgment dissolving the marriage of the parties and granting custody of their minor child, Lisa Kioukis, to the defendant mother with reasonable rights of visitation to the plaintiff father, and ordering the plaintiff to pay thirty-five dollars per week for the support of the minor child. In January of 1977, when Lisa was five years old, the defendant mother and the child moved to Tennessee. The plaintiff continued to reside in Connecticut. The family relations officer has been collecting the support payments.

On January 31, 1980, the plaintiff moved to modify the order concerning visitation. That motion was heard on April 7 and April 22, 1980. No evidence was taken on either of those two days. Neither the defendant nor the minor child was within Connecticut. The transcript indicates that the parties also filed motions to modify support. These motions should have been made a part of the printed record or the briefs. Practice Book § 3060F(c)(3). Nevertheless, we will review the defendant's claim of error regarding the support modification.

On April 7, 1980, the trial court, Sullivan, J., modified the plaintiff's visitation rights and ordered, as part of the modification, that prior accrued support payments amounting to $1015 and all later support payments be held by the family relations office and not released to the defendant until she complied with the modified visitation. From those orders the defendant mother has appealed challenging the jurisdiction of the court to modify visitation and to order the withholding of child support payments. ¹

The defendant contends that the Uniform Child Custody Jurisdiction Act (UCCJA), General Statutes §§ 46b-90 through 46b-114, deprived the court of jurisdiction to modify the visitation order. ²

The Superior Court's jurisdiction to modify an order regarding visitation of a minor child is conferred and limited by statute. General Statutes § 46b-56(a) provides, in pertinent part: "In any controversy before the superior court as to the custody or care of minor children, and at any time after the return day of any complaint under § 46b-45, the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815o."

As its stated purposes the UCCJA seeks to: "(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being; (2) promote cooperation with the courts of other states to the end that a custody decree is rendered in a state which can best decide the case in the interest of the child; (3) assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; (4) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; (5) deter abductions and other unilateral removals of children undertaken to obtain custody awards; (6) avoid relitigation of custody decisions of other states in this state insofar as feasible; (7) facilitate the enforcement of custody decrees of other states; (8) promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and (9) make uniform the laws of the states which enact The Uniform Child Custody Jurisdiction Act." General Statutes § 46b-91(a)(1); see Agnello v. Becker, --- Conn. ---, pp. ---, ---, 440 A.2d 172 (42 Conn.L.J., No. 51, pp. 17, 18) (1981).

"The basic scheme of the act is simple. First, one court in the country assumes full responsibility for custody of a particular child. Second, for this purpose a court is selected which has access to as much relevant information about the child and his family in the state as possible. Third, other essential evidence, which is inevitably out-of-state in the case of an interstate child, is channeled into the first court which might be called the 'custody court.' Fourth, other states abide by the decision of the custody court and enforce it in their territory, if necessary. Fifth, adjustments in visitation and other ancillary provisions of the decree, and custody changes, if any, are as a rule made by the original custody court. Sixth, if the child and his family no longer have appreciable ties with the state of the original court, a new custody court is selected to take the place of the original one for purposes of adjustments and modifications, and pertinent information is channelled from the prior to the subsequent custody court." Bodenheimer, "The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws," 22 Vand.L.Rev. 1207, 1218 (1969).

A "custody determination" under the UCCJA includes court orders involving visitation rights, but does not include decisions related to child support. Section 46b-92(2). ³ An "initial decree" is "the first custody decree concerning a particular child, including a temporary order of custody granted pendente lite." General Statutes § 46b-92(6). A "modification decree" is "a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court." General Statutes § 46b-92(7).

The April, 1980 orders come under the definition of "modification decree." Modification jurisdiction under the UCCJA is determined by §§ 46b-93 and 46b-104. Section 46b-104(a) relates to modification of out-of-state decrees. It expresses a preference that jurisdiction to modify an existing decree is reserved for the state that rendered the initial decree. It states: "If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this chapter or has declined to assume jurisdiction to modify the decree and (2) the court of this state has jurisdiction." As stated in the commissioners' note to § 14 of the UCCJA (here, General Statutes § 46b-104): "In order to achieve greater stability of custody arrangements and avoid forum shopping, subsection (a) declares that other states will defer to the continuing jurisdiction of the court of another state as long as that state has jurisdiction under the standards of this Act. In other words, all petitions for modification are to be addressed to the prior state if that state has sufficient contact with the case to satisfy section 3 (here, General Statutes § 46b-93). The fact that the court had previously considered the case may be one factor favoring its continued jurisdiction. If, however, all the persons involved have moved away or the contact with the state has otherwise become slight, modification jurisdiction would shift elsewhere.... For example, if custody was awarded to the father in state 1 where he continued to live with the children for two years and thereafter his wife kept the children in state 2 for 61/2 months (31/2 months beyond her visitation privileges) with or without permission of the husband, state 1 has preferred jurisdiction to modify the decree despite the fact that state 2 has in the meantime become the 'home state' of the child. If, however, the father also moved away from state 1, that state loses modification jurisdiction interstate, whether or not its jurisdiction continues under local law.... Also, if the father in the same case continued to live in state 1, but let his wife keep the children for several years without asserting his custody rights and without visits of the children in state 1, modification jurisdiction of state 1 would cease.... The situation would be different if the children had been abducted and their whereabouts could not be discovered by the legal custodian for several years. The abductor would be denied access to the court of another state under section 8(b) (here, General Statutes § 46b-98) and state 1 would have modification jurisdiction in any event under section 3(a)(4).... If the state of the prior decree declines to assume jurisdiction to modify the decree, another state with jurisdiction under section 3 can proceed with the case. That is not so if the prior court dismissed the petition on its merits." Uniform Child Custody Jurisdiction Act § 14, 9 U.L.A. (1979) 154-55.

The preference for continuing jurisdiction of the original state seeks to prevent parental resort to kidnapping to gain a more favorable judgment in a new forum. See Bodenheimer, "Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA," 14 Family L.Q. 203 (1981); Clark, Law of Domestic Relations 319-23 (1968).

The first state's exclusive jurisdiction, however, does not continue indefinitely. At some point the child's connections with the first state become too tenuous to satisfy the demands of § 46b-93. ⁴ In the present case, Connecticut does not have jurisdiction under § 46b-93(a)(1). ...