Sams v. Boston, 18539

• Decision Date: 27 July 1989
• Docket Number: No. 18539,18539
• Citation: 384 S.E.2d 151,181 W.Va. 706
• Court: West Virginia Supreme Court
• Parties: , 6 A.L.R.5th 1033 Tina Ruth SAMS, formerly Tina Ruth Boston v. Geary Lee BOSTON.

Page 151

384 S.E.2d 151

181 W.Va. 706, 6 A.L.R.5th 1033

Tina Ruth SAMS, formerly Tina Ruth Boston v. Geary Lee BOSTON.

No. 18539.

Supreme Court of Appeals of West Virginia.

July 27, 1989.

Concurring Opinion Aug. 2, 1989.

Syllabus by the Court

A state remains the "home state" of the children, for purposes of the Uniform Child Custody Jurisdiction Act, specifically, W.Va.Code, 48-10-2(5) and 48-10-3(a)(1) [1981], and for purposes of the Parental Kidnapping Prevention Act, specifically, 28 U.S.C. § 1738A(b)(4) and § 1738A(c)(2)(A) (1982), for a reasonable period of time, where the children have been abducted to and concealed in another state by one of the parents.

Richard A. Bush, Bush & Trippel, Parkersburg, for Geary Lee Boston.

George E. Lantz, Lantz, Palmer, Tebay & Reed, Parkersburg, for Ruth Sams.

McHUGH, Justice:

This appeal presents an important question under the Uniform Child Custody Jurisdiction Act and under the Parental Kidnapping Prevention Act, specifically, whether a state remains the "home state" of children under those two Acts, for a reasonable period of time, where the children have been abducted to and concealed in another state by one of the parents. Holding in the affirmative, we affirm the order of the Circuit Court of Wood County, West Virginia, with respect to its having subject-matter jurisdiction. On the other hand, we reverse that court's separate order awarding permanent legal custody to the appellee-mother, and remand this case for a full evidentiary hearing to determine which of the parents should obtain permanent legal custody based upon the best interest of the children.

I

The appellee-mother, Tina Ruth Sams, formerly Tina Ruth Boston, filed in the Circuit Court of Wood County, West Virginia, for divorce from the appellant-father, Geary Lee Boston, in October, 1983. The parties had resided in such county and state since at least July, 1972, when they were married there. The only ground alleged initially for the divorce was irreconcilable differences. In the divorce complaint the appellee asked for temporary and permanent legal and physical custody of the three children born of the marriage, namely, Geary Lee Boston, Jr., then age ten (born November 13, 1972), Joseph Daniel Boston, then age nine (born June 23, 1974) and Kristina Ruth Boston, then age three (born July 2, 1980). In November, 1983, the appellant failed to return the three children to the appellee after obtaining only temporary physical custody of them during the exercise of visitation arrangements. He also thereafter secreted himself and the three children from the appellee.

The appellee in December, 1984, amended her divorce complaint to include, as grounds, cruel and inhuman treatment, desertion for six months and separate habitation for over a year. In May, 1985, the Circuit Court of Wood County, West Virginia, granted a divorce to the appellee based upon the one-year separation. The court order was silent as to child custody. ¹ From November, 1983, until December, 1986, the appellee attempted to ascertain the whereabouts of the children and the appellant. In December, 1986, she finally located them in Crawfordville, Wakulla County, Florida. In order for the appellant to agree to the children's visitation with the appellee during the next summer, the appellee executed a written agreement not to seek permanent legal custody of the children.

The children came to visit the appellee in Wood County, West Virginia, in June, 1987. In July, 1987, the appellee, still having physical custody of the children, filed in Wood County, West Virginia, a petition for modification of the May, 1985 divorce decree, so as to obtain permanent legal, as well as physical, custody of the children and child support from the appellant. In that petition the appellee alleged that she had been the primary caretaker of the children until the appellant "snatched" them in November, 1983, and that she would be a fit and proper custodian of the children.

The appellant filed a motion to dismiss for "forum non conveniens " and "to enforce stipulation of visitation," alleging (1) that Florida was the "home state" of the children under the Uniform Child Custody Jurisdiction Act ("the UCCJ Act"), adopted by both the State of West Virginia ² and the State of Florida, ³ and alleging (2) that the appellee had violated the visitation agreement by seeking permanent legal custody of the children. Counsel for the appellant made a so-called "special appearance" at a hearing on August 10, 1987 before a family law master in Wood County, West Virginia. The family law master, on August 11, 1987, denied the appellant's motion to dismiss and for enforcement of the "stipulation of visitation."

A hearing was subsequently held before the family law master, on August 18, 1987, on the appellee's petition for child custody. The appellant was not personally present but his West Virginia attorney noted a so-called "special appearance." The appellee had notified the appellant of the hearing by certified mail, and the appellant's signature is on the return receipt card. In addition, the appellant called the appellee to acknowledge receipt of the notice of hearing and to inform the appellee that he would not personally attend the hearing. ⁴

At the August 18, 1987 hearing the appellee testified that she had been the primary caretaker of the children until the appellant abducted them in November, 1983. ⁵ She also testified that she was working as a secretary and that she had signed the agreement not to seek permanent custody of the children because she did not have any other choice in order to see the children.

The oldest child, Geary, Jr., also testified at that hearing. He was fourteen years old at the time of the hearing. He testified that he preferred to stay with his mother. His only stated reason was "to get reacquainted with" her. He admitted that his father treated him well and that he liked the school he attended in Florida. ⁶

On August 18, 1987, during the custody-determination hearing, the family law master received information that a child custody proceeding had been brought in Florida, by the appellant, after the appellee's petition for child custody had been filed in West Virginia. The family law master, on August 19, 1987, sent a letter to the Florida circuit court judge (Wakulla County) informing the latter of the pending West Virginia child custody proceeding. ⁷ In his letter to the Florida judge the family law master opined that, upon the facts recited in the letter, West Virginia was the "home state" under the UCCJ Act (when the divorce action was filed) and that although the children had substantial contacts with Florida, West Virginia was the more appropriate forum for deciding child custody due to the appellant's "inequitable conduct" of absconding with the children and concealing their whereabouts. The Florida court did not respond. ⁸

The Florida court stayed its proceedings until it received notice of the West Virginia family law master's recommended decision. The master, in August, 1987, recommended that West Virginia had jurisdiction under the UCCJ Act as either the "home state" or the "significant-connection" state. ⁹ The master also recommended that permanent legal custody of the children be awarded, for the first time, to the appellee. The Circuit Court of Wood County, West Virginia, agreed with the master's recommendations and entered orders on the jurisdiction and custody-determination questions on October 1, 1987.

The Florida circuit court (Wakulla County), on September 4, 1987, entered its "order on motion to determine jurisdiction," wherein that court determined that Florida was the "home state" of the children; that the appellant, "as natural parent," "moved with his children to Crawfordville, Florida, in June, 1984," (from December, 1983 until June, 1984 the court found that the appellant and the children had been in Wirt County, West Virginia); that the appellee had "abandoned" her plea for child custody when the May, 1985 divorce decree failed to name her as custodian; that the August 18, 1987 recommendation of the West Virginia family law master as to child custody was not entitled to full faith and credit under the federal statute known as the Parental Kidnapping Prevention Act of 1980 ("the Federal PKP Act"), as West Virginia was not the home state and had not been the home state within six months of the West Virginia child custody proceeding brought in July, 1987; ¹⁰ that irrespective of the allegation that the appellant had wrongfully removed the children from West Virginia, the UCCJ Act and the Federal PKP Act do not contemplate "punitive" decrees against a parent but, instead, contemplate decrees based upon the state having the most significant connection with the children.

In January, 1988, the Florida circuit court (Wakulla County) entered a final order awarding permanent legal custody to the appellant. In that order that court found that the appellant's occupation as a lineman allowed him to provide well for the children; that the home environment in Florida had been loving and stable; that the children liked their schools in Florida and were actively involved in school and other activities in Florida. Interestingly, the court, which had, as stated above, expressed earlier that the UCCJ Act and the Federal PKP Act did not contemplate "punitive" decrees, emphasized in this custody-determination order that the appellee had not allowed the children to have free and uncensored telephone conversations with the appellant during the time they have been in West Virginia with the appellee (since June, 1987).

The oldest child, now sixteen years of age, has continued to live with the appellee-mother since June, 1987. The middle child, now fifteen years of age, returned to Florida with the appellant-father for a time but is now back voluntarily with his mother. The youngest child, the now nine-year-old daughter,...