Michalik v. Michalik

• Decision Date: 05 October 1992
• Docket Number: No. 90-2497,90-2497
• Citation: 494 N.W.2d 391,172 Wis.2d 640
• Parties: In re the Marriage of Rita M. MICHALIK, Petitioner-Appellant-Petitioner, v. Kenneth E. MICHALIK, Respondent-Respondent. . Oral Argument
• Court: Wisconsin Supreme Court

Page 391

494 N.W.2d 391

172 Wis.2d 640

In re the Marriage of Rita M. MICHALIK Petitioner-Appellant-Petitioner, v. Kenneth E. MICHALIK, Respondent-Respondent.

No. 90-2497.

Supreme Court of Wisconsin.

Oral Argument Oct. 5, 1992.

Decided Jan. 20, 1993.

For the petitioner-appellant-petitioner there were briefs by Patricia L. Grove and Halling & Cayo, S.C., and Allan R. Strauss, of counsel, all of Milwaukee and oral argument by Mr. Strauss.

For the respondent-respondent there was a brief by C. Michael Hausman and Slattery & Hausman, Milwaukee and oral argument by C. Michael Hausman.

BABLITCH, Justice.

This case involves the authority of Wisconsin courts to modify a child custody determination entered by a court of another state. We look to the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (PKPA) and the Uniform Child Custody Jurisdiction Act, ch. 822 Stats., (UCCJA) to resolve this issue.

Rita Michalik seeks review of a decision of the court of appeals affirming the circuit court's order declining to interfere with a prior custody order entered by an Indiana court. See In re Marriage of Michalik v. Michalik, 164 Wis.2d 544, 476 N.W.2d 586 (Ct.App.1991). The court of appeals concluded that the PKPA preempts conflicting provisions of the UCCJA and precludes courts in Wisconsin from modifying the child custody determinations of the Indiana court and from interfering with that court's ongoing exercise of its child custody determination jurisdiction. We agree. Accordingly, the judgment of the court of appeals is affirmed.

The relevant facts are undisputed. Rita Michalik and Kenneth Michalik were granted a divorce by the Superior Court of Porter County, Indiana, by a Dissolution Decree entered by that court on October 1, 1987, nunc pro tunc to March 3, 1987. The decree granted Rita Michalik custody of the Michalik's three minor children, subject to Kenneth Michalik's visitation rights. The nature of these visitation rights was set forth in the decree.

On March 9, 1989, the Indiana court entered an order finding Rita Michalik "in contempt of the Visitation Order of this Court...." However, the Indiana court took punishment under advisement, noting that Rita Michalik's "compliance with Visitation Orders in the future would likely purge her of the contempt." The March 9, 1989 order also modified the visitation schedule.

On May 1, 1989, Rita Michalik and the children moved to Milwaukee, Wisconsin. As a result of the move, the Michaliks agreed to a modification of the visitation schedule, and on June 7, 1989, the Michalik's writtenstipulation encompassing their agreement was approved by the Indiana court. Included in the stipulation was the following agreement: "The parties further stipulate that the Porter Superior Court, sitting in Valparaiso, Indiana shall retain in personam jurisdiction over the parties with reference to said dissolution action and all subsequent post-decree modifications therein."

On December 1, 1989, seven months after her relocation, Rita Michalik initiated an action against Kenneth Michalik in Milwaukee County Circuit Court seeking, among other things, a divorce, custody of the Michalik's children, and a division of the parties' property. Rita Michalik's petition stated that an "action for divorce by the parties hereto has been concluded in Porter County in the State of Indiana on the 3rd day of March, 1987...." Attached to the petition was a copy of the October 1, 1987, Dissolution Decree entered by the Indiana court and a copy of the June 7, 1989, order approving the parties' stipulated modification of Kenneth Michalik's visitation petition. Rita Michalik's Milwaukee County petition further stated: "[t]he parties have not entered into any written agreement as to support, custody, visitation of the children, ... save for orders of the court or judgment of divorce."

On December 4, 1989, Kenneth Michalik, who continued to reside in Indiana, filed a motion in the Indiana court claiming that Rita Michalik was interfering with his visitation rights. Kenneth Michalik also sought temporary custody of the children. On December 28, 1989, the Indiana court found Rita Michalik in contempt of court and granted temporary custody of the children to Kenneth Michalik, however, that order was vacated on March 1, 1990, and all orders entered by the Indiana court prior to December 28, 1989, were ordered to "remain in full force and effect."

On January 22, 1990, the Milwaukee County Circuit Court stayed proceedings in Rita Michalik's Wisconsin action "until such time as this Court is notified that Indiana chooses not to exercise its jurisdiction and elects to allow Wisconsin to hear the matter, or an appellate court directs Wisconsin to hear the matter." Rita Michalik neither sought circuit court reconsideration of this decision to stay nor leave to appeal from this order of the court. Thereafter, however, Rita Michalik, by an order to show cause signed by the circuit court and filed June 8, 1990, requested that the Circuit Court for Milwaukee County modify "the summer (school recess) visitation schedule of the parties...." Kenneth Michalik objected, contending that the Wisconsin court should not hear the matter.

On October 16, 1990, the Wisconsin circuit court entered an order finding that the children had "the closest and most significant connections with the State of Wisconsin ..." and that Wisconsin was the children's "home state" under ch. 822 Stats., the Uniform Child Custody Jurisdiction Act. Although concluding that it had "concurrent subject matter jurisdiction" with Indiana, the circuit court decided to defer to the Indiana court "regarding determinations or modification of visitation issues arising under the Dissolution Decree, and Modified Stipulation, as such relate to proceedings appropriate for consideration under Wis.Stats. Chapter 822...." In addition, the circuit court's decision appeared to make a distinction between "custody" determinations and "visitation" determinations. In its oral bench decision the court stated: "In this case we do not have a child custody issue. If anything, we have pending, at least in the request, substantive release by the petitioner [which] is a question of modification as it relates to visitation." Although neither party appears to argue that this is an accurate distinction, for purposes of clarification we note that visitation under both Wisconsin's UCCJA and the PKPA is included in the definition of a "custody determination." Section 1738A(b)(3) provides: " 'custody determination' means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications...." 28 U.S.C. § 1738A(b)(3) (emphasis added). Section 822.02(2) of the UCCJA defines a "custody determination" as any "court decision and court orders and instructions providing for legal custody, physical placement or visitation rights." Section 822.02(2) (emphasis added).

Rita Michalik appealed the circuit court judgment and the court of appeals affirmed. The court of appeals concluded that the PKPA precludes Wisconsin courts from modifying a child custody determination originally made in an Indiana court and from interfering with that court's ongoing exercise of its child custody determination jurisdiction. Rita Michalik petitioned for review arguing that because Wisconsin has "home state" jurisdiction over the children, Indiana cannot act in custody matters and any orders it may issue will be unenforceable because they will not be in compliance with the PKPA. We granted Rita Michalik's petition for review and affirm.

Before beginning our analysis of this case, a brief discussion of the historical underpinnings of the PKPA and a summary of its provisions is warranted.

The United States Supreme Court first discussed the problem of interstate child custody disputes in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). The issue presented in May was whether an Ohio court must give full faith and credit to a Wisconsin decree awarding custody of the children to their father when that decree was obtained by the father in an ex parte divorce action in a Wisconsin court which had no personal jurisdiction over the mother. Id. at 528-29, 73 S.Ct. at 841. A majority of the court held that a state was not bound under the Full Faith and Credit Clause of the United States Constitution to recognize a custody order of another state when the state issuing the order did not have personal jurisdiction over one of the parents. Id. at 534, 73 S.Ct. at 843.

Following May, child abductions undertaken for forum shopping purposes became a frequent occurrence. Andrea S. Charlow, Jurisdictional Gerrymandering and the Parental Kidnapping Prevention Act, Family Law Quarterly, Vol. XXV, Number 3 299, 303 (1991). "Even when 'parental kidnapping' was not involved, one or both divorced spouses often moved and sought a different custody order from their new state of residence. The result, seen with depressing frequency, was conflicting custody orders from two states, neither willing to concede the exclusive custody jurisdiction of the other." Meade v. Meade, 812 F.2d 1473, 1475 (4th Cir.1987).

In an attempt to alleviate these problems, the Commission on Uniform Laws devised the Uniform Child Custody Jurisdiction Act. See Uniform Child Custody Jurisdiction Act, 9 U.L.A. 123 (1988). Now adopted, in some form, by all 50 states, the UCCJA was promulgated to provide the states with uniform standards for determining custody jurisdiction. ¹ However, because statesenacted different versions of the UCCJA and state courts have varied in their interpretations of the Act, the UCCJA has proved to be an inadequate solution to the problem of parental kidnapping and interstate custody disputes. See, Charlow, supra, at 308; Joan M. Krauskopf, Remedies for Parental Kidnapping in Federal Court:...