Pierce v. Slate

• Decision Date: 07 July 2017
• Docket Number: No. 2016-420,2016-420
• Citation: 2017 VT 63
• Court: Vermont Supreme Court
• Parties: Laurie Pierce v. Josh Slate

2017 VT 63

Laurie Pierce v. Josh Slate

No. 2016-420

Supreme Court of Vermont

June Term, 2017

July 7, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Bennington Unit, Family Division

John W. Valente, J.

Cristina Mansfield of Mansfield Law, LLC, Manchester Center, for Plaintiff-Appellant.

Brian K. Marthage, Bennington, for Defendant-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. CARROLL, J. Mother appeals from the trial court's dismissal of her parentage action under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as well as its denial of her motion to reconsider. Mother essentially argues that Vermont, not Virginia, should assert jurisdiction over this child custody case. We affirm.¹

¶ 2. As set forth in greater detail below, mother and father are the parents of a child born in Vermont in June 2016. The child also lived with parents for a time in Virginia. Father initiated child custody proceedings in Virginia in August 2016 and was granted custody of the child.Mother appealed that decision within the Virginia court system. Mother then filed a parentage action in Vermont. Following a joint hearing before Virginia and Vermont courts, the Virginia court retained jurisdiction over the custody case, and the Vermont court dismissed the parentage action.

I. UCCJEA

¶ 3. To place mother's arguments in context, we begin with an overview of the UCCJEA, codified at 15 V.S.A. §§ 1061-1096. As set forth below, the UCCJEA "prioritizes home state jurisdiction in initial custody determinations," and "clearly enunciates that the original decree state retains exclusive continuing jurisdiction over its custody orders." Ward v. LaRue, 2016 VT 81, ¶ 17, ___ Vt. ___, 150 A.3d 631 (quotation omitted). Where a child is less than six months of age, "home state" "means the state in which the child lived from birth" with a parent or a person acting as a parent. 15 V.S.A. § 1061(7) (indicating that "[a] period of temporary absence of any of the mentioned persons is part of the period"). A child might have no "home state." See In re A.W., 2014 VT 32, ¶ 20, 196 Vt. 228, 94 A.3d 1161 (concluding that child had no "home state" at age of three weeks where she was born in New York but moved to Vermont at one week old with parent who intended to reside there; child had not "lived from birth" in either New York or Vermont); see also In re Cifarelli, 158 Vt. 249, 253-54, 611 A.2d 394, 396-97(1992) (concluding under same definition in predecessor statute that child who was less than six months old had "no home state" because she had neither lived consecutively in one state for six months "[n]or had she lived in any one state 'from birth' to the commencement of proceedings").

¶ 4. Mother relies heavily on 15 V.S.A. § 1071(a), which concerns "[i]nitial child custody jurisdiction." Section 1071 provides, with an exception not relevant here, that:

(a) . . . a Vermont court has jurisdiction to make an initial child custody determination only if:

(1) Vermont is the home state of the child on the date of the commencement of the proceeding or was the home state of the childwithin six months before the commencement of the proceeding and the child is absent from Vermont, but a parent or person acting as a parent continues to live in Vermont;

(2) A court of another state does not have jurisdiction under subdivision (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that Vermont is the more appropriate forum under section 1077 or 1078 of this title, and:

(A) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with Vermont other than mere physical presence; and

(B) substantial evidence is available in Vermont concerning the child's care, protection, training, and personal relationships;

(3) All courts having jurisdiction under subdivision (1) or (2) of this subsection have declined to exercise jurisdiction on the grounds that a Vermont court is the more appropriate forum to determine the custody of the child under section 1077 or 1078 of this title; or

(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3) of this subsection.

(Emphasis added.) An " '[i]nitial determination' means the first child custody determination concerning a particular child." Id. § 1061(8) (emphasis added).

¶ 5. If a Vermont court makes an initial child custody determination, that court:

(a) . . . has exclusive, continuing jurisdiction over the determination until:

(1) a Vermont court determines that neither the child nor the child and one parent nor the child and a person acting as a parent have a significant connection with Vermont, and that substantial evidence is no longer available in Vermont concerning the child's care, protection, training, and personal relationships; or

(2) a Vermont court or a court of another state determines that the child, the child's parents, and any person acting as a parent do not currently reside in Vermont.

Id. § 1072; see also Editors' Notes, Uniform Child Custody Jurisdiction & Enforcement Act § 202 (1997) [hereinafter UCCJEA Editors' Notes] ("The continuing jurisdiction of the original decree State is exclusive," and "[i]t continues until one of two events [recited above] occurs.").

¶ 6. The UCCJEA also addresses "jurisdiction to modify determination," 15 V.S.A. § 1073, which complements the section quoted above. See UCCJEA Editors' Notes § 203. Section 1073 provides, with an exception not relevant here, that:

[A] Vermont court may not modify a child custody determination made by a court of another state unless a Vermont court has jurisdiction to make an initial determination under subdivision 1071(a)(1) or (2) of this title and:

(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 1072 of this title or that a Vermont court would be a more convenient forum under section 1077 of this title; or

(2) a Vermont court or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not currently reside in the other state.

(Emphasis added.)

¶ 7. "Simultaneous proceedings" are addressed in § 1076(a), which states, with an exception not relevant here, that:

(a) . . . a Vermont court may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a Vermont court is a more convenient forum under section 1077 of this title.

" 'Commencement' means the filing of the first pleading in a proceeding." Id. § 1061(5).

¶ 8. Section 1076(b) requires the Vermont court to examine information that the parties must provide concerning, among other things, whether a case has been filed in another state, and to determine if a child custody proceeding "has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter." If so, the Vermont court must "stay its proceeding and communicate with the court of the other state." Id. Vermont must dismiss itsproceeding unless "the court of the state having jurisdiction substantially in accordance with this chapter" determines "that the Vermont court is a more appropriate forum." Id.

¶ 9. The UCCJEA Editors' Notes indicate that the section on simultaneous proceedings "represents the remnants of the simultaneous proceedings provision of the [Uniform Child Custody Jurisdiction Act (UCCJA)] § 6," the predecessor of the UCCJEA. UCCJEA Editors' Notes § 206. The notes recognize that various provisions in the UCCJEA, including the prioritization of "home state" jurisdiction, have minimized the "problem of simultaneous proceedings." Id. "If there is a home State," the notes explain, "there can be no exercise of significant connection jurisdiction in an initial child custody determination and, therefore, no simultaneous proceedings. If there is a State of exclusive, continuing jurisdiction, there cannot be another State with concurrent jurisdiction and, therefore, no simultaneous proceedings." Id. (recognizing that home state, as well as State with exclusive, continuing jurisdiction, could defer to another State, but "that decision is left entirely to the home State or the State with exclusive, continuing jurisdiction"). "Under this Act, the simultaneous proceedings problem will arise only when there is no home State, no State with exclusive, continuing jurisdiction and more than one significant connection State. For those cases, this section retains the 'first in time' rule of the UCCJA." Id. The "first in time" rule is discussed in greater detail below.

II. Facts

¶ 10. With this legal framework in mind, we turn to the facts. As noted above, mother and father are the parents of a daughter, born on June 6, 2016 in Vermont. Parents did not have a long-term relationship. Mother lived in Vermont with her parents at the time of the child's birth. Father has been a Virginia resident at all relevant times. Shortly after the child's birth, parents began planning for mother to join father in Virginia with the child. Mother moved to Virginia on July 23, 2016. Mother signed a lease on an apartment in Virginia, which father co-signed for credit purposes. The parties...