Nadeau v. Nadeau

• Decision Date: 21 July 1998
• Docket Number: No. 97-389-M,97-389-M
• Citation: 716 A.2d 717
• Parties: Donald A. NADEAU v. Sharon NADEAU. P.
• Court: Rhode Island Supreme Court

Page 717

716 A.2d 717

Donald A. NADEAU v. Sharon NADEAU.

No. 97-389-M.P.

Supreme Court of Rhode Island.

July 21, 1998.

Timothy Conlon, Providence, Anthony J. Cordeiro, Warwick, for plaintiff.

Carolyn T. Barone, Warwick, for defendant.

Before WEISBERGER, C.J., and LEDERBERG, FLANDERS and GOLDBERG, JJ.

OPINION

GOLDBERG, Justice.

This case is before the Court on the petition for certiorari of the defendant, Sharon Nadeau (Sharon). The defendant seeks review of a preliminary decree of the Rhode Island Family Court in which the trial justice determined that even though the Connecticut Superior Court had apparently assumed emergency jurisdiction over the underlying custody and divorce proceedings pursuant to the provisions of the Parental Kidnapping Prevention Act (PKPA), as codified in 28 U.S.C. § 1738A, the Rhode Island Family Court was the appropriate forum to assume jurisdiction with respect to a full hearing on the merits relating to custody and visitation of the minor children. For the foregoing reasons we affirm the trial justice and quash the writ heretofore issued. The facts of the case insofar as pertinent are as follows.

I The Facts and Travel

On April 3, 1997, Sharon and her five minor children left their home in Coventry, Rhode Island, and fled to the State of Connecticut, the state in which she grew up and where her parents currently reside. Sharon alleges that the impetus for her having left the family home was years of physical, physiological, and emotional abuse at the hands of her husband, Donald A. Nadeau, M.D. (Donald). After her arrival in Connecticut, Sharon filed a form entitled "Application For Relief From Abuse" with the Connecticut Superior Court and sought restraining and protective orders against Donald, as well as temporary custody of the couple's minor children. An ex parte order granting all the requested relief was issued immediately, and a full hearing on the abuse complaint was scheduled for April 21, 1997. Sharon maintains that under the laws of the State of Connecticut, the Connecticut Superior Court has jurisdiction over the subject-matter of the abuse complaint and personal jurisdiction over Donald. Donald was served personally with this process by a member of the Kent County's Sheriff's Department on April 8, 1997. At the same time Sharon filed the Application For Relief From Abuse, she also filed a complaint for divorce. Donald was served personally with this complaint on April 8, 1997, as well.

One week later, on April 15, 1997, Donald filed a complaint for divorce in the Rhode Island Family Court. He also filed an ex parte motion, seeking custody of the children, restraining orders against Sharon, and other miscellaneous protective relief as well. Donald's divorce complaint failed to disclose that custody proceedings were pending in Connecticut or that Sharon had been granted temporary sole physical custody of the children. He did acknowledge this fact, however, in his ex parte motion for restraining orders and custody but stated that Sharon's action in the State of Connecticut was without cause and furthermore that Connecticut was without jurisdiction in the matter. The motion further alleged that Sharon suffered from serious psychological problems and that as a result Donald feared for the safety of his children. Thereafter a justice of the Rhode Island Family Court entered an order awarding temporary sole custody of the children to Donald with the directive that Sharon return them to Rhode Island.

On April 21, 1997, the scheduled hearing in Connecticut commenced. There is no record of these proceedings nor any indication that the Connecticut trial justice tried to communicate with the Rhode Island Family Court prior to proceeding. Nevertheless the trial justice awarded sole custody and physical possession of the children to Sharon. Furthermore Donald was restrained from visiting or contacting his family. Donald was personally served in Rhode Island with the resulting court order by a member of the Kent County Sheriff's Department on April 25, 1997.

On April 29, 1997, Donald appeared specially in the Connecticut Superior Court and moved to dismiss the Connecticut divorce action for lack of jurisdiction He did not, however, file a motion to vacate the orders entered pursuant to the April 21, 1997 hearing. On May 5, 1997, Donald also filed an amended ex parte motion for relief in the Rhode Island Family Court, asking for custody of his children and a pronouncement from the court that pursuant to the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), as codified in G.L.1956 chapter 14 of title 15, Rhode Island was the proper state to assume jurisdiction over the custody and divorce proceedings. It is unclear from the record whether the Family Court trial justice knew about the orders that had previously been entered in Connecticut. Nevertheless he granted the amended ex parte order, which awarded temporary custody of the children to Donald, restrained Sharon from removing the children from Rhode Island, and pursuant to the UCCJA assumed jurisdiction on behalf of the State of Rhode Island over both the custody and divorce proceedings.

On May 12, 1997, Sharon filed a motion in Rhode Island Family Court, seeking a dismissal of all ex parte orders previously entered by that court. A hearing on the motion was scheduled for June 23, 1997. During the course of that hearing, however, the Family Court trial justice suspended the proceedings so that he could communicate with the judge presiding over the case in the Connecticut Superior Court and discern what action Connecticut had taken relative to the instant dispute. The trial justice was not able to reach the Connecticut trial justice and continued the matter so that he could arrange a telephone conference among the two justices and the parties' respective counsel.

Unfortunately the proposed telephone conversation never occurred. In the meantime Donald's motion to dismiss the Connecticut divorce action came before the Connecticut Superior Court, at which time he argued forum non convenes, lack of subject-matter jurisdiction, lack of personal jurisdiction, lack of jurisdiction under the UCCJA, and inappropriate situs. The trial justice denied the motion and found that even though the jurisdiction pursuant to the UCCJA is discretionary, he saw no need to decline jurisdiction because the children's contacts in the State of Rhode Island were "really superficial." ¹ "I just can't conceive of any substantial ties as far as the children are concerned with the State of Rhode Island." On July 24, 1997, Donald executed a stipulation in conjunction with the Connecticut divorce action, agreeing to pay child support to Sharon.

On July 28, 1997, the hearing in Rhode Island Family Court reconvened. The trial justice stated that in compliance with § 15-14-7(c) of the UCCJA, he had attempted to contact the Connecticut Superior Court trial justice, but did not receive a response. ² He then proceeded to address the merits of Sharon's motion to dismiss and stated that at the start, any analysis had to begin by addressing the question of jurisdiction as defined by the PKPA. The trial justice stated that the PKPA, which is intended to prevent jurisdictional conflict, prohibits the exercise of concurrent jurisdiction when another court is exercising jurisdiction consistent with the provisions of the act. The trial justice further stated that in circumstances wherein the state law (the UCCJA) is inconsistent with the PKPA, the PKPA and its provisions would take precedence.

The trial justice found that because the children had resided in Rhode Island for at least six months before moving with their mother to Connecticut, Rhode Island was the children's "home state" for purposes of the PKPA. ³ The trial justice noted that Connecticut appeared to have assumed jurisdiction pursuant to the "significant contact" component of the PKPA, but upon review of the act he held that the PKPA "actually codifies a preference for home state jurisdiction." Concerning Sharon's allegations of abuse, the trial justice found that although the Connecticut Superior Court had never referred to the exercise of emergency jurisdiction, it was entirely appropriate under either the PKPA or the UCCJA for Connecticut to exercise jurisdiction on an emergency basis and issue temporary orders. He further stated, however, that emergency jurisdiction is limited in nature and confers authority to make only temporary orders and that, therefore, it was improper for Connecticut to continue exercising jurisdiction over the custody proceedings. Accordingly with respect to the full hearing on the issues of custody and visitation, the trial justice assumed jurisdiction on behalf of the State of Rhode Island in accordance with the provisions of the PKPA and the UCCJA. Sharon sought relief from this Court by way of petition for writ of certiorari and for a stay of the decision of the trial justice, both of which were granted.

In support of her petition Sharon argues that the trial justice committed reversible error by failing to give full faith and credit to the valid Connecticut custody order, which order was never challenged and was entered prior to the commencement of any proceedings in Rhode Island. Sharon maintains that since the Connecticut order is valid pursuant to the terms of the PKPA and Connecticut law, the Rhode Island Family Court had no choice but to enforce the order and was prohibited from modifying it. Sharon further argues that contrary to the finding of the trial justice, the exercise of emergency jurisdiction under the PKPA and the UCCJA by the Connecticut Superior Court allows that court to continue to exercise jurisdiction over custody matters and mandates compliance with the Connecticut custody order. Conversely Donald maintains that the Connecticut orders were not issued in substantial compliance with the provisions of the PKPA or the UCCJA...