Matthews v. Riley, 93-562

• Decision Date: 22 July 1994
• Docket Number: No. 93-562,93-562
• Citation: 162 Vt. 401,649 A.2d 231
• Parties: Mary Ellen MATTHEWS v. James H. RILEY.
• Court: Vermont Supreme Court

Page 231

649 A.2d 231

162 Vt. 401

Mary Ellen MATTHEWS v. James H. RILEY.

No. 93-562.

Supreme Court of Vermont.

July 22, 1994.

Norman R. Blais, Burlington, for plaintiff-appellant.

Andrew D. Mikell, Burlington, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Plaintiff Mary Ellen Matthews appeals an order of the family court requiring her to show cause why she should not be held in contempt for her failure to comply with a custody order regarding visitation between her son, Matthew, and his father, defendant James Riley. We affirm.

The parties were divorced in Vermont in September 1986. The divorce decree awarded the mother parental rights and responsibilities for Matthew, and provided for regular contact between father and son, to occur at reasonable times and places and with reasonable notice to the mother. When this arrangement proved unworkable, the order was modified in January 1990 to establish a fixed schedule for visitation. The family had lived in Vermont before the divorce, and they continued to live in Vermont until July 1991, when mother and son moved to Rhode Island. Because of the relocation, the father moved to modify custody and visitation. In an order dated September 15, 1991, the family court adjusted the father's visitation schedule to accommodate the substantial increase in travel.

Visits took place as scheduled until May 1992, when the mother filed a motion for relief in the Rhode Island family court, alleging the father had abused Matthew. The father appeared in Rhode Island to contest the court's jurisdiction. After a hearing held June 12, 1992, the Rhode Island court assumed jurisdiction over custody and visitation pursuant to Rhode Island's version of the Uniform Child Custody Jurisdiction Act (UCCJA) ¹ and modified the Vermont order to decrease father-son visits from monthly to bi-monthly. The father then petitioned the Vermont family court to enforce the September 1991 Vermont order and find the mother in contempt. The Vermont family court concluded that the Rhode Island court lacked jurisdiction to modify visitation, which meant that the Vermont court's September 1991 order was enforceable. The family court then ordered the mother to show cause why she should not be held in contempt for failing to comply with the visitation provisions of the Vermont order. ²

On appeal, the mother contends that the Vermont family court cannot find her in contempt of its September 1991 modification order because that order was superseded by the 1992 Rhode Island modification, and Vermont is obliged to enforce the Rhode Island order. The mother also argues that even if the Vermont order is enforceable, the Vermont family court should have declined to exercise jurisdiction as an inconvenient forum for enforcement.

I.

Jurisdiction over interstate enforcement and modification of child custody decrees is governed by the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A. See Shute v. Shute, 158 Vt. 242, 245, 607 A.2d 890, 893 (1992). The PKPA prescribes that "every State shall enforce according to its terms, and shall not modify except as provided in [the PKPA], any child custody determination made consistently with [the PKPA] by a court of another State." 28 U.S.C. § 1738A(a). The Act applies to related issues of visitation as well. Id. § 1738A(b)(3).

Resolution of this case turns on whether the Vermont court had exclusive jurisdiction to make a child custody determination when the Rhode Island court modified the visitation arrangement. If Vermont's custody and visitation orders were consistent with the PKPA, they were entitled to full faith and credit, and the 1992 Rhode Island modification had to comply with PKPA requirements to be enforceable in other states. See Shute, 158 Vt. at 247, 607 A.2d at 894 (original orders, to be enforceable under PKPA, must meet its requirements). If the Rhode Island modification was consistent with the PKPA, the Act compels the Vermont family court to enforce the Rhode Island order instead of the 1991 Vermont order. Otherwise, the Vermont family court may disregard the Rhode Island modification and seek to enforce its September 1991 order through contempt or other available remedies. 28 U.S.C. § 1738A(a); see also 15 V.S.A. §§ 1041-1043 (Vermont must enforce foreign custody determination if rendering state had jurisdiction under terms substantially in accordance with UCCJA, unless foreign determination modified custody order of another state that had continuing jurisdiction and did not relinquish it).

A.

We turn first to the question of whether the original divorce judgment and subsequent modification orders issued in Vermont were consistent with the PKPA, and thereby binding in other states. Under subsection (c) of the Act, a custody determination is consistent with the PKPA if two requirements are fulfilled. First, the issuing court must have jurisdiction under state law, 28 U.S.C. § 1738A(c)(1), which in Vermont is governed by the UCCJA, 15 V.S.A. §§ 1031-1051. Second, one of the five conditions listed in PKPA subsection (c)(2) must be met. ³

For each of the three Vermont orders, the first criterion was satisfied because Vermont had jurisdiction under the UCCJA when the orders were issued. The UCCJA confers jurisdiction on the family court if Vermont is the child's home state. 15 V.S.A. § 1032(a)(1). ⁴ "Home state" is defined as "the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months." Id. § 1031(5).

When the 1986 divorce proceedings commenced, Matthew had lived in Vermont at least six months; the same was true prior to the 1990 modification. He and his mother moved to Rhode Island approximately two months before the September 1991 modification order was issued, but before the relocation they had lived in Vermont for six consecutive months, and Vermont was the only state that Matthew had lived in for six consecutive months before modification proceedings commenced. This nearly continuous residency sufficed to qualify Vermont as his home state and confer jurisdiction under the UCCJA. The Vermont court validly exercised jurisdiction under state law, and the orders satisfied the first PKPA consistency requirement under § 1738A(c)(1).

Since Vermont was the home state of both parents and child, the orders also satisfied the second PKPA requirement of consistency set forth in § 1738A(c)(2). This subsection lists five alternative conditions, the first of which is a home state criterion substantially identical to that found in the UCCJA. See 28 U.S.C. § 1738A(c)(2)(A) (home state criterion); id. § 1738A(b)(4) (defining home state). Vermont was the home state for purposes of both the UCCJA and the PKPA, and as a result the original 1986 custody order and the January 1990 and September 1991 modification orders ⁵ were consistent with PKPA requirements. The orders are entitled to enforcement in other states; any modification by another state would have to comply with PKPA requirements to be similarly enforceable. 28 U.S.C. § 1738A(a).

B.

The PKPA permits a court of one state (the modifying court) to modify a custody award made in another state (the rendering court) if: (1) the modifying court has jurisdiction to make such a child custody determination under PKPA subsection (c), and (2) the rendering court no longer has jurisdiction or has declined to exercise jurisdiction. Id. § 1738A(f). In this case, the Rhode Island family court's modification satisfied both subsection (c) requirements. First, Rhode Island's UCCJA has home state criteria identical to Vermont's: "the state in which the child immediately preceding the time involved lived with his or her parents [or] parent ... for at least six (6) consecutive months." R.I.Gen.Laws § 15-14-3(6). Mother and son moved from Vermont to Rhode Island in July 1991, and had lived there continuously for at least nine months when the modification proceedings in Rhode Island commenced. ⁶ Because they resided in Rhode Island more than six consecutive months, the Rhode Island family court could take jurisdiction under its UCCJA, satisfying the first PKPA subsection (c) criterion. As the home state for UCCJA purposes, Rhode Island also was the home state under the second subsection (c) criterion. See 28 U.S.C. § 1738A(c)(2)(A). Therefore, the Rhode Island family court could make a custody determination consistent with the PKPA, which satisfies the first criterion for modification.

The second criterion permits modification only if the rendering court no longer has jurisdiction or has declined to exercise its jurisdiction. Id. § 1738A(f)(2). Continuing jurisdiction under the PKPA depends on whether (1) the rendering court continues to have jurisdiction under state law, and (2) that state "remains the residence of the child or of any contestant." See id. § 1738A(d). ⁷ Thus, the Vermont family court had continuing jurisdiction only if there was jurisdiction under the UCCJA, see id. § 1738A(c)(1), and if a parent or the child lived in Vermont.

Ordinarily, the modifying court determines whether the rendering court has continuing jurisdiction under the law of the rendering state. ⁸ See Cann v. Howard, 850 S.W.2d 57, 60 (Ky.Ct.App.1993); Pierce v. Pierce, 197 Mont. 16, 640 P.2d 899, 903 (1982). Nothing in the record before this Court indicates that the Rhode Island family court considered the issue of Vermont's continuing jurisdiction under the PKPA before deciding to modify the order of the Vermont court. But this apparent omission, in itself, does not render the Rhode Island modification order unenforceable under the PKPA because the Act does not divest jurisdiction for failure to follow a specific procedure to determine jurisdiction. See 28 U.S.C. § 1738A(f). If the Vermont family court did not have continuing jurisdiction when the...