Prizzia v. Prizzia

• Decision Date: 12 April 2011
• Docket Number: Record No. 1343–10–2.
• Parties: Gary PRIZZIAv.Judit PRIZZIA.
• Court: Virginia Court of Appeals

58 Va.App. 137

707 S.E.2d 461

Gary PRIZZIA

v.Judit PRIZZIA.

Record No. 1343–10–2.

Court of Appeals of Virginia, Richmond.

April 12, 2011.

From the Circuit Court of Henrico County, Daniel T. Balfour, Judge.¹Charles E. Powers (Batzli Wood & Stiles, PC, on briefs), Richmond, for appellant.Susan C. Armstrong (George A. Somerville; Butler Armstrong, LLP; Troutman Sanders LLP, on briefs), Richmond, for appellee.Present: PETTY and BEALES, JJ., and COLEMAN, S.J.PETTY, Judge.

I. Background

Gary Prizzia (“husband”) and Judit Prizzia (“wife”) were married in Hungary on August 28, 1999. While they were living there, their only child was born on February 3, 2000. In April 2000, the Prizzias moved to Virginia, where they resided until December 15, 2002. On that date, both parties took the child to Hungary for a visit over the Christmas holidays. Husband returned to Virginia on December 25, 2002, and wife and the child remained in Hungary. On February 4, 2003, wife filed for divorce in Hungary, requesting custody of the child. Upon learning of wife's actions, husband filed for divorce in the Circuit Court of Henrico County on May 6, 2003. Husband's complaint also requested the court to award him custody of the child and to make an equitable distribution of the marital estate.

On December 30, 2003, the trial court entered an order finding “that Hungary ha[d] proper jurisdiction over the parties as to divorce, custody, visitation and child support,” and accordingly “decline[d] to exercise jurisdiction over [those] matters at [that] time.” Furthermore, the trial court's order provided that “[a]fter a final decree of divorce is granted in Hungary, this [c]ourt will hear argument on equitable distribution and spousal support.” Finally, the order stated: “In the future, if spousal support and/or child support is awarded in this [c]ourt, it can be made retroactive.”

On March 19, 2005, the Hungarian court granted the parties a divorce and awarded custody of the child to wife, with visitation rights to husband. The Hungarian court did not award child support, nor did it divide the parties' property. Husband then sought to revive the dormant proceeding in Henrico County in order to address all issues other than the divorce. Wife did not return to Virginia for the hearings, but was granted permission to present testimony by telephonic deposition.

On May 24, 2010, the trial court entered a final decree. The final decree addressed the issues of equitable distribution, child support, and spousal support. The trial court declined to enter any order dealing with the issues of divorce or child custody, choosing instead to defer to the Hungarian court's ruling on those issues.

On appeal, husband assigns numerous errors to the trial court's actions, and wife argues three additional assignments of error as well. We discuss additional facts that are relevant to specific assignments of error in our analysis below.

II. Analysis

A. Child Custody and Visitation

Husband first argues that the trial court erred in finding that the Hungarian court had jurisdiction to decide the issues of child custody and visitation. Thus, he posits, the trial court erred in failing to exercise its jurisdiction over those issues.² Where multiple states or foreign countries have potential initial jurisdiction over child custody, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) dictates where actual jurisdiction shall be exercised. Here, we conclude that the trial court failed to follow the requirements of the UCCJEA.

1. Jurisdiction To Make an Initial Child Custody Determination

To determine whether a court of this Commonwealth has jurisdiction to make an initial child custody determination,³ we look to Code § 20–146.12:

A. Except as otherwise provided in § 20–146.15 [the section providing for temporary emergency jurisdiction], a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:

1. This Commonwealth is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;

2. A court of another state does not have jurisdiction under subdivision 1, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under § 20–146.18 or § 20–146.19, and (i) 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 this Commonwealth other than mere physical presence and (ii) substantial evidence is available in this Commonwealth concerning the child's care, protection, training, and personal relationships;

3. All courts having jurisdiction under subdivision 1 or 2 have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under § 20–146.18 or § 20–146.19; or

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

As subsection (B) makes clear, “Subsection A is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth.” Code § 20–146.12(B). Thus, to determine whether a court of this Commonwealth had jurisdiction to make an initial child custody determination in this case, we must first decide what the “home state” of the child was on May 6, 2003, the date this proceeding was commenced.

The UCCJEA defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period.” Code § 20–146.1. Hence, a child's “home state” is where the child has lived with one or more of his parents for the consecutive six-month period immediately preceding the date on which a child custody proceeding is filed.

However, this is not the only six-month period we must consider in analyzing initial jurisdiction over child custody under Code § 20–146.12(A)(1). Where, as here, the child was not living in Virginia on the date the proceeding was filed, we must determine if Virginia was the child's home state at any time during the six months before the filing date. If so, Virginia would continue to have initial jurisdiction. See Code § 20–146.12(A)(1) (prescribing initial custody jurisdiction if the “Commonwealth is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth” ⁴ (emphasis added)). This alternate basis for jurisdiction becomes relevant in instances where a child has acquired a new residence less than six months before the commencement of a custody proceeding, thus rendering the child technically without a home state as of the date of the commencement of the proceeding. In such a case, the court must examine whether the child had a home state at any point within the six-month period preceding the date of filing. In other words, the court must ask whether at any point throughout the six months preceding the date of filing, it could be said that on a particular date, the child had lived with a parent in a particular state for at least six consecutive months. The purpose behind this statutory scheme is to extend a state's home state status throughout the six-month period it would take for another state to become the child's new home state.

Thus, if a child lived with a parent in Virginia for six months and then moved to another state (or another country, for that matter), Virginia would continue to have jurisdiction to make an initial child custody determination under Code § 20–146.12(A)(1) until the child had lived long enough in the other state (i.e., six months) for that state to become the child's new home state. See Code § 20–146.1.

With this understanding of the UCCJEA's basic jurisdictional scheme in mind, we need not decide whether the child's presence in Hungary from December 15, 2002 to May 6, 2003 constituted a “period of temporary absence” within the meaning of Code § 20–146.1, thus rendering Virginia the home state as of the date of filing, or whether the child had actually changed residence from Virginia to Hungary during that time. Even if the child's residence had permanently changed on December 15, 2002 from Virginia to Hungary, Virginia continued to have initial child custody jurisdiction for six months after that date. Thus, as of May 6, 2003, the date on which husband commenced this custody proceeding, Virginia either was the child's home state or had been the child's home state within the previous six months. This means that under Code § 20–146.12(A)(1), Virginia had jurisdiction to make an initial child custody determination.

2. Declining To Exercise Jurisdiction Under the UCCJEA

Having concluded that Virginia had jurisdiction to make an initial child custody determination, we must next analyze whether the trial court properly declined to exercise its jurisdiction under the UCCJEA. In analyzing this issue, we must decide as a subsidiary issue whether Hungary also had jurisdiction under the UCCJEA's jurisdictional framework. In considering this question, we treat the Hungarian court as we would a court of another state in the United States: “A court of this Commonwealth shall treat a foreign country as if it were a state of the United States for purposes of applying this article and Article 2 (§ 20–146.12 et seq.) of this chapter.” Code §...