State ex rel. Griffin v. District Court of Fifth Dist., 91-272
| Decision Date | 04 May 1992 |
| Docket Number | No. 91-272,91-272 |
| Parties | STATE of Wyoming, ex rel., John Scott GRIFFIN, Petitioner, v. DISTRICT COURT OF THE FIFTH DISTRICT and Judge Gary P. Hartman, Judge of the Fifth Judicial District, Washakie County, Wyoming, Respondent. |
| Court | Wyoming Supreme Court |
Thomas C. Bancroft, Worland, for petitioner.
Joseph B. Meyer, Atty. Gen., Richard E. Dixon, Asst. Atty. Gen., for respondent.
Kent Richins, Worland, guardian ad litem.
Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.
Upon application of petitioner John Scott Griffin (father), this court issued an Alternative Writ of Mandamus and Prohibition on December 23, 1991. The father sought to prohibit the Wyoming district court from exercising jurisdiction in a child custody proceeding involving his one-year-old son, Spencer Bryce Griffin (child), and the boy's mother, Melissa V. Presnell (mother). The writ addressed the custody jurisdiction of the Wyoming district court as to whether it was in conflict with or alternative to a Virginia court where a proceeding for custody was also pending.
We hold that the jurisdiction provisions in the Wyoming Uniform Child Custody Jurisdiction Act (UCCJA), Wyo.Stat. § 20-5-101 through § 20-5-125 (1987), and the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S. § 1738A (Law. Co-op.1989), preclude Wyoming district court jurisdiction in this case where the child had been removed from Virginia by his mother unless the Virginia court relinquishes jurisdiction to the Wyoming district court.
Spencer Bryce Griffin was born in Denver, Colorado on December 21, 1990. The child's mother and father 1 had met shortly after the mother moved to Virginia in January, 1989. The father had lived in Virginia since 1976 and continues to live there at this time. After becoming pregnant, the mother left Virginia in May, 1990 to stay with her sister in Denver, Colorado. The father joined the mother in Colorado in late December, 1990 during which time the child was born. Approximately three weeks later, the mother, father and child returned to the father's home in Virginia.
In April 1991, the father petitioned the Juvenile and Domestic Relations District Court of Fairfax County, Virginia to grant temporary custody of the minor child to the father. Prior to court decision, however, the parents filed a stipulation, which became a judicial order, providing that the father would have temporary custody until permanent custody was established. Further, the consent order stipulated that the child would reside with the father at his home in Reston, Virginia, and the mother was given the option to continue living in the father's home until a permanent custody agreement was reached. Custody Proceeding No. 1 in Virginia was then dismissed. Both parents and the child mostly, but not at all times, resided together in Virginia until September, 1991 when the mother and child came to Wyoming. Whether the mother and the child came to Wyoming for a temporary visit or a permanent stay is totally in factual dispute.
Shortly after the mother and child left Virginia, the father filed a petition dated September 19, 1991 in the Juvenile and Domestic Relations District Court of Fairfax County, Virginia seeking to determine the child's custody pursuant to Virginia's Uniform Child Custody Jurisdiction Act. (Custody Proceeding No. 2) The mother received notice of a custody hearing scheduled for December 3, 1991 in the Virginia court when she was served with process by a Washakie County, Wyoming deputy sheriff on October 28, 1991.
The chronology of events and jurisdictional issues in this case became complicated, however, because the mother had filed a petition to establish paternity, custody, visitation and support in the Fifth Judicial District Court for Washakie County, Wyoming on October 10, 1991--eighteen days before she received service of process of the Virginia custody proceeding initiated by the father. (Custody Proceeding No. 3) The mother admitted prior notice that the father "was going to file something," and thirty-six days after she came to Wyoming, the proceeding was filed in the Fifth Judicial District Court, Washakie County, Wyoming. In filing in Wyoming, the mother failed to include the requisite affidavit pursuant to Wyo.Stat. § 20-5-110 disclosing where the child had previously lived and whether or not there had been prior litigation concerning the child's custody. The father was served in Virginia with a summons and copy of the petition in the Wyoming action on October 29, 1991. The following day, the father filed a motion to dismiss the Wyoming proceeding on the basis of lack of jurisdiction. A memorandum filed in support of the father's motion advised the Wyoming district court that a custody proceeding was already pending in Virginia at the time of the mother's October 10, 1991 Wyoming filing. 2
Pursuant to Wyo.Stat. § 20-5-107(c) 3 and Wyo.Stat. § 20-5-108(d), 4 Wyoming District Court Judge Gary P. Hartman contacted Virginia Family Court Judge Michael J. Valentine by telephone on December 2, 1991. Wyoming counsel for the mother, Wyoming counsel for the father, and a Wyoming court-appointed guardian ad litem attended the conference call in Judge Hartman's chambers. It appears from the record that Judge Valentine and Judge Hartman agreed that the December 3, 1991 hearing, scheduled in Virginia, would be limited to the purpose of deciding whether the father should be responsible to pay for the cost in bringing the mother and child to Virginia for custody determination. Further, Judge Valentine indicated that his court would not make a determination at the December 3, 1991 hearing as to whether Virginia should exercise jurisdiction in determining custody pursuant to the UCCJA.
Because Judge Valentine was indisposed and thus unable to conduct the December 3, 1991 Virginia hearing, Judge David S. Schell presided over the hearing attended only by Virginia counsel representing the father. Judge Schell ordered that Virginia was the proper forum to determine custody in this case and assumed jurisdiction pursuant to Virginia's UCCJA. Judge Schell awarded temporary custody of the child to the father and ordered the mother to immediately return the minor child to Virginia. In addition, Judge Schell continued for a subsequent hearing the question of permanent custody, issued a detention order for the mother, and commanded that the child be placed in the father's custody in Virginia.
The next day, December 4, 1991, Judge Schell's order was presented to the Wyoming district court at a hearing on the father's motion to dismiss. During the hearing, Judge Hartman conducted a second telephone conference call--this time with Judge Schell--and then took the custody matter under advisement. Judge Hartman also entered an order prohibiting the child's removal from the state pending subsequent Wyoming district court proceedings. It is from that order that the father petitioned this court for a writ of mandamus or, in the alternative, a writ of certiorari.
On December 23, 1991, this court granted an alternative writ of mandamus and prohibition which directed Judge Hartman to desist from further proceedings and to show cause why he should not be absolutely restrained from exercising jurisdiction in this case as long as jurisdiction remains vested in the Virginia court. On January 6, 1992, Judge Hartman filed a response to the show cause order. This court then ordered that simultaneous briefs be submitted by the district court and the father on or before February 6, 1992.
One significant document found in the Virginia record in this case is a memorandum submitted by Judge Valentine on January 23, 1992. In his notation, Judge Valentine concurs with Judge Hartman's impressions as to what Judge Valentine had indicated would be decided at the December 3, 1991 Virginia hearing. Further, Judge Valentine states that he did not adequately advise Judge Schell as to the nature of his December 2, 1991 telephone conversation with Judge Hartman. From the record, it appears that Judge Schell sent the case back to Judge Valentine for further disposition, and Judge Valentine has agreed to await disposition of the proceeding in this Wyoming appellate court before taking any further action in Virginia. 5
The respondent raises three issues in his brief before this court:
I. Whether the petitioner herein should be granted an extraordinary writ when he has chosen to eschew a plain, adequate, and speedy remedy at law?
II. Whether the respondent improperly assumed jurisdiction of a child custody determination, or simply stayed further proceedings pending determination of proper jurisdiction?
III. Whether the Parental Kidnapping Prevention Act of 1980 deprives Virginia and Wyoming of authority to proceed in accord with provisions of the Uniform Child Custody Jurisdiction Act?
On the other hand, the father raises the following issue:
I. Did the trial court err in failing to dismiss the petition [to establish paternity, custody, visitation and support] of Melissa Presnell for lack of jurisdiction?
Because the Wyoming district court lacked jurisdiction to make a current custody determination under both the state UCCJA and the federal PKPA, we find that the father's single issue is dispositive.
Wyo.Stat. § 20-5-125 provides that "[u]pon request of a party to a custody proceeding which raises a question of existence or exercise of jurisdiction under this act, the case shall be given calendar priority and handled expeditiously." Consequently, this case was assigned to this court's expedited docket for prompt disposition.
A fundamental purpose of both the UCCJA and the PKPA is to avoid conflict and promote cooperation. Other underlying purposes include the elimination of forum shopping, to enable courts to act in the best interests of children, and to deter interstate abductions and...
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