Shute v. Shute

• Decision Date: 03 April 1992
• Docket Number: No. 89-449,89-449
• Citation: 607 A.2d 890,158 Vt. 242
• Parties: Karen L.C. SHUTE v. C. Denny SHUTE.
• Court: Vermont Supreme Court

Page 890

607 A.2d 890

158 Vt. 242

Karen L.C. SHUTE v. C. Denny SHUTE.

No. 89-449.

Supreme Court of Vermont.

April 3, 1992.

Robert Halpert and C. James Mathis, Law Offices of Kurrle and Halpert, Montpelier, for plaintiff-appellee.

Leslie E. Black and Graham Hayes Govoni, Law Clerk (on the brief), Johnson, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

We decide today that the jurisdictional requirements of the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A, preempt the Uniform Child Custody Jurisdiction Act (UCCJA), 15 V.S.A. §§ 1031-1051, when these acts are in conflict. Therefore, unless a child custody decree is in compliance with the Parental Kidnapping Prevention Act, the trial court lacks subject matter jurisdiction to modify or enforce its original decree.

This case arose out of a motion for contempt of a Lamoille Superior Court order granting a divorce to the parties and awarding custody of the minor son to the wife. The motion was filed by the former husband on February 18, 1986, alleging that his former wife had denied him visitation and telephone contact with their son since October 1985. This began two and one-half years of litigation that involved visitation and, eventually, subject matter jurisdiction issues. On May 27, 1988, the husband filed a second motion for contempt and enforcement. On July 22, 1988, the wife filed a motion to dismiss, claiming a lack of subject matter jurisdiction under the UCCJA, 15 V.S.A. § 1032, or, alternatively that the trial court should decline to exercise jurisdiction because Vermont was an inconvenient forum under 15 V.S.A. § 1036. On August 4, 1989, the Lamoille Superior Court relinquished jurisdiction to the State of Connecticut. The superior court found that Vermont was an inconvenient forum because Connecticut had been the child's home state since 1982 and that Connecticut had closer connections to the child than Vermont. The husband appealed. We affirm the trial court's relinquishment of jurisdiction, but do so on a different ground.

Some history of the original divorce action and later events is necessary. The husband and wife were married in Vermont in 1978. One son was born to the parties in December 1980. The family lived together in Vermont until April 1982. In May 1982, the wife and son moved to Connecticut. The wife filed for divorce in Lamoille Superior Court on February 22, 1983. On March 8, 1984, the trial court issued a Final Order and Decree. At the time the original decree was issued, the trial court made no findings as to subject matter jurisdiction over child custody. The wife's complaint for divorce stated that her residence had been Connecticut since May 1982. The complaint did not state the residence of the child.

The court incorporated the parties' final stipulation, dated March 8, 1984, into the Final Order and Decree. Under the terms of the final stipulation, the parties agreed that the care, custody and control of the minor child would be awarded to the wife, subject to the right of reasonable visitation by the husband. In addition, the parties agreed that the Vermont courts would have continuing jurisdiction of all issues, including custody, support and visitation rights.

On appeal, the husband claims that the trial court violated his constitutional right to due process when it failed to provide him with reasonable or adequate notice and no opportunity to be heard before relinquishing jurisdiction, ¹ and that the court abused its discretion when it failed to consider all relevant factors before deciding that Vermont was an inconvenient forum. In light of our holding that the trial court did not have subject matter jurisdiction to modify its original custody decree, we do not reach the precise issues raised by the husband.

This case reflects the jurisdictional complications that can occur when parents, living in different states, seek to modify an original child custody decree by using the courts of two states. Historically, divorce and child custody judgments have not been subject to the full faith and credit mandate in Article IV, § 1, of the United States Constitution and the codification of that mandate in 28 U.S.C. § 1738. By necessity, these judgments have been set apart because they must be modifiable in the rendering state when the best interests of the child require a change. Kovacs v. Brewer, 356 U.S. 604, 608, 78 S.Ct. 963, 966, 2 L.Ed.2d 1008 (1958). Therefore, they lack finality and do not fall under the Full Faith and Credit Clause. In re Forslund, 123 Vt. 341, 344, 189 A.2d 537, 539 (1963). The result of this lack of recognition and enforcement of custody decrees has been that children were moved to other states by parents who wanted to modify existing orders. Barndt v. Barndt, 397 Pa.Super. 321, 326, 580 A.2d 320, 322 (1990).

In response to this confusion, states passed the UCCJA, which provided uniform rules for determining custody jurisdiction. Meade v. Meade, 812 F.2d 1473, 1475 (4th Cir.1987). This remedy was not effective, however, because states adopted variations of the UCCJA and state courts interpreted the uniform provisions differently. Id. at 1475-76. Congress found that these inconsistencies resulted in a large and growing number of cases involving custody and visitation disputes and conflicting custody decrees from different states. Parental Kidnapping Prevention Act, Pub.L. No. 96-611, § 7(a)(1) and (2), 94 Stat. 3566, 3568 (1980). To correct these problems, Congress passed the Parental Kidnapping Prevention Act in 1980. 28 U.S.C. § 1738A.

The PKPA established national standards for determining subject matter jurisdiction over custody matters. Under its provisions, jurisdiction is vested in the child's home state. 28 U.S.C. § 1738A(c)(2)(A). The PKPA defines "home state" as

the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons....

Id. § 1738A(b)(4).

The PKPA prohibits a state from modifying a child custody determination made in a sister state when the earlier determination was issued consistent with the provisions of the Act. Id. § 1738A(a). If a child has a home state, a child custody determination is consistent with the PKPA only if such state has jurisdiction under its own laws and the state is the home state of the child on the date of the commencement of the proceedings. Id. § 1738A(c)(1) and (2)(A)(i). If the child is absent from a state that would otherwise be the child's home state because of removal or retention by a contestant, the child's absence will not deprive the state of home state jurisdiction. Id. § 1738A(c)(1) and (2)(A)(ii). ² Congress ensured that PKPA jurisdictional requirements would be met by giving continuing and exclusive jurisdiction to a court to modify its previous order only if the court had jurisdiction to determine custody matters in its original proceeding.

Some state UCCJA laws provide alternate grounds for custody jurisdiction. But the language of the PKPA indicates that Congress intended to preempt the field of custody jurisdiction. Meade, 812 F.2d at 1475-76; Barndt, 397 Pa.Super. at 333-37, 580 A.2d at 326-27; Voninski v. Voninski, 661 S.W.2d 872, 876 (Tenn.Ct.App.1982). Therefore, under the Supremacy Clause, the PKPA takes precedence over state law when the laws conflict. U.S. Const. art. VI; Trustees of the Diocese v. State, 145 Vt. 510, 514, 496 A.2d 151, 153 (1985).

Under Vermont's UCCJA provisions, there is no preference for one jurisdictional ground over another. Duval v. Duval, 149 Vt. 506, 513, 546 A.2d 1357, 1361-62 (1988). A trial court may exercise subject matter jurisdiction if Vermont is the child's home state at the time of commencement of the proceedings or if it is in the child's best interest that Vermont have jurisdiction. Meyer v. Meyer, 148 Vt. 65, 67, 528 A.2d 749, 750-51 (1987). Because the alternate ground provisions of the Vermont law conflict with the home state preference of the PKPA when it appears that the child has a home state other than Vermont, we now hold that the PKPA preempts the Vermont statutes that conflict with the PKPA. In a custody case, the best interest of the child is no longer controlling if the child has a home state.

In this case, the record shows that the Lamoille Superior Court had jurisdiction to entertain the divorce action in 1983. There were no allegations in the complaint as to jurisdiction to determine the custody of the parties...