Middleton v. Middleton, s. 822080
| Decision Date | 09 March 1984 |
| Docket Number | 822102,Nos. 822080,s. 822080 |
| Citation | 227 Va. 82,314 S.E.2d 362 |
| Parties | Sheila J. MIDDLETON v. Brian C. MIDDLETON. Herbert Lee LYONS v. Margaret Verity Flower LYONS. Record |
| Court | Virginia Supreme Court |
Donald K. Butler, Arlington (Morano & Butler, Arlington, on brief), for appellant in Record No. 822080.
B. VanDenburg Hall, Fairfax, for appellee in Record No. 822080.
Bruno A. Ristau, Washington, D.C. (Gordon P. Peyton; Peyton, Prendergast & Shapiro, Ltd.; Alexandria, Kaplan, Russin & Vecchi, Washington, D.C., on brief), for appellant in Record No. 822102.
Robert G. Culin, Jr., Arlington (Betty A. Thompson, Ltd., Arlington, on brief), for appellee in Record No. 822102.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.
These cases, each involving an international child custody dispute, afford us the first opportunity to apply the Uniform Child Custody Jurisdiction Act (UCCJA), Code §§ 20-125 through 146, which became effective January 1, 1980, Acts 1979, ch. 229.
In Middleton, the dispositive question is whether the trial court properly exercised jurisdiction over the issue of child custody, ruling that Virginia and not England was a more convenient forum to make the custody determination. In Lyons, the basic issue is whether the trial court properly refused to exercise jurisdiction over the question of child custody, deciding to defer to the courts of England where a prior custody action was pending.
Appellant Sheila J. Middleton and appellee Brian C. Middleton were married in England during 1962. They immigrated to the United States in 1967 and he became employed as an engineer for a chemical company. They resided in Chesterfield County where two daughters were born, one in 1969 and the other in 1971.
In 1974, the mother returned to England with the children. In 1977, the trial court granted the father a final divorce, without objection by the mother, upon the ground that the parties had lived separate and apart without any cohabitation and without interruption for one year. See Code § 20-91(9)(a). The divorce decree awarded custody of the children to the mother, provided reasonable visitation rights to the father, and required him to pay child support at the rate of $200.00 per month.
After the children left Virginia with their mother, the father visited them in England until they were of sufficient age for unaccompanied air travel. From 1978 to 1981, by agreement of the parties, the children spent periods of time with the father in Virginia. He remarried in 1979 and now lives in Annandale, employed by a bank.
In August of 1981, while the children were with the father in Virginia for a regular summer visitation, he instituted the present proceeding by filing a petition for custody based on an alleged change in circumstances since entry of the divorce decree. The mother had no warning that the husband would seek to vary the custody order. The father charged that the mother was guilty of immoral behavior in England in the children's presence, that she intended to separate the children by placing one with an aunt and keeping the other with her, that she made degrading comments about the father in the presence of the children, that she had attempted to frustrate his right of access to the children, that the children desired to remain with the father, and that she had mistreated the children. The mother received notice in England of the petition four days after it was filed and subsequently learned that the father would not return the children to England on August 31 as prearranged.
The mother came to Virginia without knowledge of the father, retrieved the children on September 2 from the father's home while he was away, and took the children back to England. On the same day, the court below entered an ex parte order enjoining the mother from removing the children from Virginia and the United States.
On Friday, September 4, the mother initiated proceedings in an English court to have the children made Wards of Court and to have their care and control granted to her. They returned to their English school the following Monday, having missed only the first three days of the school session.
On September 18, the mother filed a plea to the jurisdiction in the Chesterfield Circuit Court. Relying on the UCCJA, she requested the trial court not to exercise jurisdiction and to defer to the appropriate English court for any determination of a change of custody. After a hearing at which only the father presented evidence, the chancellor overruled the mother's plea by order entered November 16, 1981. The trial court decided that it had continuing jurisdiction over the custody issue and that Virginia was the more convenient forum for disposition of the matter.
One week later, the English High Court of Justice made the children Wards of Court and ordered that the children remain in the interim care and control of the mother. The High Court restrained the father from interviewing or deposing the children until the custody issue was decided. It ordered preparation of a welfare report on the children and a copy forwarded to the Chesterfield court as well as to the English court.
Subsequently, and during the next nine months, the Virginia trial court conducted hearings, considered various motions filed by the father, and entered orders pursuant to those motions, all without the participation of the children or the mother, who refused to appear either personally in Virginia or for depositions in England. In August of 1982, the trial court entered the order from which the mother appeals. The chancellor, among other things, found the mother in contempt of court because she removed the children from the United States with knowledge of the order of September 2, 1981 prohibiting such removal; she failed to appear as ordered for depositions in England and in Fairfax, Virginia; and she violated orders respecting the father's visitation rights. Noting that the mother "has been accorded every reasonable opportunity to present her case and she has failed and refused to do so" and reciting review of the English Welfare Officer's report, the trial court determined that the children's best interests would be served by changing their custodial care. Consequently, the court awarded the father sole custody of the children, subject to reasonable visitation rights in the mother. The court further assessed a fine and a jail term against the mother for contempt and terminated the obligation of the father to pay child support.
Appellant Herbert Lee Lyons married appellee Margaret Verity Flower Lyons, a British subject, in Arlington County in 1971. A son was born in 1975. Marital discord developed. On April 13, 1982, the mother left the marital abode without notice to the father, took the child, and went to England. The father, a government lawyer, was out-of-state at the time.
On the next day, the mother filed an "Originating Summons" in the English High Court of Justice, Oxford District Registry. She asked that the child be made a Ward of Court and that the court award her the care and control of the boy.
On April 30, the father filed the present suit against the mother for divorce based on wilful desertion. Asserting the child's whereabouts were unknown, the father requested that he be awarded custody of the child.
On May 20, the father was served with the English summons, along with a notice advising that the child had become a Ward of Court on April 14. This was the first knowledge the father had after April 13 of the location of the child and mother. According to the notice, the effect of the wardship is to prohibit the child from marrying or leaving England or Wales without leave of the High Court and, further, to prohibit any material change in the child's welfare, care and control, or education without leave of court.
The father then moved the High Court to terminate the wardship and to order the child's return to Virginia for a decision on custody. After a hearing at which both parents testified personally, the High Court granted the father's request on June 28. The mother appealed. On July 6, the Supreme Court of Judicature, Court of Appeal, reversed the decision of the High Court. It ordered that the child remain in the interim care and control of the mother and that further English proceedings on the issue of custody be expedited.
In the meantime, the mother had been served with the divorce papers. She filed an answer and cross-bill in Virginia seeking a divorce from the father on the ground of cruelty and asking the court to award her custody of the child.
Next, the father filed in the Virginia court a motion that an order be entered compelling the mother to return the child to Fairfax County. In considering the father's motion, the chancellor reviewed the record of the English proceedings. After a hearing on August 30, the court denied his motion, deciding to "grant comity" to the Court of Appeal's order of July 6. On September 23, the trial court entered the order from which the father appeals.
Subsequently, the trial court granted the father a divorce a mensa et thoro from the mother on the ground of wilful desertion occurring on April 13. The court dismissed the mother's cross-bill.
On December 20, after a custody hearing at which the parents again testified in person, the English High Court decided that the child should remain a ward of the court. The court also ruled that the mother should have care and control of the child and that the father should have access to the child as specified in the order.
The Model Act was approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1968. 9 U.L.A. 111 (1979). In a prefatory note to the Act, the Commissioners referred to the "growing public concern," id., over the fact that every year thousands of children are...
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