Umina v. Malbica

• Decision Date: 23 May 1989
• Docket Number: No. 88-P-34,88-P-34
• Citation: 538 N.E.2d 53,27 Mass.App.Ct. 351
• Parties: Leonard J. UMINA v. Kathryn L. MALBICA.
• Court: Appeals Court of Massachusetts

Page 53

538 N.E.2d 53

27 Mass.App.Ct. 351

Leonard J. UMINA v. Kathryn L. MALBICA.

No. 88-P-34.

Appeals Court of Massachusetts,

Middlesex.

Submitted Jan. 13, 1989.

Decided May 23, 1989.

[27 Mass.App.Ct. 352] Leonard J. Umina, pro se.

Before ARMSTRONG, PERRETTA and KASS, JJ.

KASS, Justice.

In the spring of 1986, his children by a first marriage came to sojourn with Leonard J. Umina in Marlboro. Since January, 1985, the children's home had been with their mother in Colorado. For reasons to which we shall return, the father on July 28, 1986, petitioned in Probate Court for modification of a Massachusetts divorce judgment entered May 15, 1985.

A judge of the Probate Court determined that, under G.L. c. 209B, the Massachusetts Child Custody Jurisdiction Act, as inserted by St.1983, c. 680, § 1, jurisdiction over custody of the children lay in Colorado. The correctness of the judge's application of c. 209B and whether, in any event, he should have conducted an evidentiary hearing before ordering the children to be brought before a Colorado judge are the principal questions on appeal.

During their eight years of marriage, Leonard Umina and Kathryn Malbica had three children, all born in Massachusetts. Divorce proceedings commenced in August, 1984. A separation agreement, later incorporated in a divorce judgment, provided that Kathryn would be the custodial parent. She lawfully removed to Colorado at the end of 1984 or the very beginning of 1985.

Fifteen months later, on March 21, 1986, the mother sent the oldest child, Amy (then almost nine years old) to stay with her father. Amy and her mother had been getting along badly. The following June, Laura (age six) and Suzanne (age three) came to Massachusetts to visit. The three girls settled cheerfully into their father's household. He had remarried.

Accounts of abuse and neglect by their mother, Kathryn, began to emerge. Umina took the children to a psychologist who concluded that the likelihood of serious abuse by the mother was such as to require a report to the Department of Social Services. The department substantiated the allegations of abuse and neglect on July 25, 1986.

On the strength of this professional reinforcement of what his children (one supposes mostly the older two) had reported, Umina sought a modification of the divorce judgment which would give him custody of the three girls. A Probate Court judge granted the father temporary custody As authorized in the statute (G.L. c. 209B, § 7[c ] and [f ] ), the Massachusetts judge communicated with his Colorado counterpart to notify her that he was ordering the parties and the children to appear before her and to recommend that custody be awarded to the father. See Redding v. Redding, 398 Mass. 102, 104-105 & n. 3, 495 N.E.2d 297 (1986). To that course the father was extremely resistant. His view was that taking the children to Colorado, even in his care, would be grievously upsetting to them. October 26, 1987, the day which the Probate Court judge had established (apparently with cooperation of the Colorado judge) for the hearing in Colorado, came and went.

pending further hearings. Further proceedings came before a second Probate Court judge who, after studying memoranda of counsel, decided that, under the Massachusetts Child Custody Jurisdiction Act, questions of custody of the children were within the jurisdiction of Colorado, not Massachusetts.

On December 1, 1987, the mother filed in Probate Court an ex parte petition for habeas corpus to compel the children's appearance before the Colorado court. There were overtones that Umina had declared his refusal to allow the children to be taken to Colorado and that he might hide them. The Probate Court judge issued the writ with instructions that a probation officer, escorted by a deputy sheriff, take the three girls in custody and bring them before the Colorado court.

Proceedings before the District Court for Jefferson County in Colorado wound up with an award of custody of the children to the father, with whom they now reside in Marlboro, Massachusetts.

1. Mootness. The appeal is from the orders of the second Probate Court judge declining jurisdiction and issuing the writ which produced the children in Colorado, issues in which Umina no longer has any personal stake, beyond intellectual and emotional ones. The questions he raises are, therefore, moot. Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703, 341 N.E.2d 902 (1976). Bronstein v. Board of Registration in Optometry, 403 Mass. 621, 627, 531 N.E.2d 593 (1988). Yet the underlying questions of how these difficult and emotionally charged cases should proceed fall under the rubric "capable of repetition, yet evading review," Southern Pac. Terminal Co. v. Interstate Commerce Commn., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), as the underlying child custody issue will, as here, have been resolved before the appeal is resolved. See Adoption of Emily, 25 Mass.App.Ct. 579, 580 n. 1, 521 N.E.2d 399 (1988). The questions presented affect the public interest beyond the parties. Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943). Brach v. Chief Justice of the Dist. Court Dept., 386 Mass. 528, 532-533, 437 N.E.2d 164 (1982). County of Suffolk v. Labor Relations Commn., 15 Mass.App.Ct. 127, 131, 444 N.E.2d 953 (1983). Constitutional issues are not involved, compare Lockhart v. Attorney Gen., 390 Mass. 780, 782-784, 459 N.E.2d 813 (1984), and explication of the statute may be of some use. ¹ See, e.g., Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274, 372 N.E.2d 242 (1978); Hashimi v. Kalil, 388 Mass. 607, 608-609, 446 N.E.2d 1387 (1983).

2. Jurisdiction over custody arrangements. When construing G.L. c. 209B, the Massachusetts Child Custody Jurisdiction Act (hereafter referred to as the "MCCJA" and sometimes "the Massachusetts act"), it bears keeping in mind that the MCCJA is far from a carbon copy of the Uniform Child Custody Jurisdiction Act (hereafter referred to as the "UCCJA" and sometimes the "uniform act"). ² 9 (pt. 1) U.L.A. 123 Under the Massachusetts act, determination of jurisdiction requires a two step analysis: first, whether § 2 of the MCCJA confers jurisdiction upon the Massachusetts court at all; and, second, whether, after weighing the criteria in § 7 of the MCCJA (the inconvenient forum provision), the court should exercise jurisdiction. In that respect the MCCJA resembles the method prescribed by §§ 3 and 7 of the UCCJA. ³

                (Master ed. [27 Mass.App.Ct. 355] 1988).  See Custody of a Minor (No. 3), 392 Mass. 728, 731 n. 3, 468 N.E.2d 251 (1984) ("similar but not identical");  Tazziz v. Tazziz, 26 Mass.App.Ct. 809, 814, 533 N.E.2d 202 (1988) ("The chapter [209B] appears to be based in some degree upon the [UCCJA] but varies from that draft statute in material respects").  At least one commentator has written that Massachusetts "may not, strictly speaking, be considered a UCCJA state."   Blakesley, Child Custody--Jurisdiction and Procedure, 35 Emory L.J. 291, 296 n. 26 & 358 n. 371 (1986).  Cases from other States based on the UCCJA may, therefore, often be of marginal utility
                

If there is a basis for jurisdiction, § 7 of both the UCCJA and the MCCJA sets out a series of criteria to be considered when the court makes its discretionary decision whether to accept jurisdiction. Tazziz v. Tazziz, 26 Mass.App.Ct. at 814, 533 N.E.2d 202. McCarron v. District Court, 671 P.2d 953, 956 (Colo.1983). Brown v. Brown, 195 Conn. 98, 109-110, 486 A.2d 1116 (1985). Larsen v. Larsen, 5 Kan.App.2d 284, 292, 615 P.2d 806 (1980). Breneman v. Breneman, 92 Mich.App. 336, 342, 284 N.W.2d 804 (1979). Wenz v. Schwartze, 183 Mont. 166, 180, 598 P.2d 1086 (1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980). Dennis v. Dennis, 387 N.W.2d 234, 236 (N.D.1986). Oehler v. Clinton, 282 S.C. 25, 28, 317 S.E.2d 445 (1984). Failure to recognize such discretion constitutes an error of law. Tazziz v. Tazziz, 26 Mass.App.Ct. at 814 & n. 5, 533 N.E.2d 202. Cf. In re Marriage of Hopson, 110 Cal.App.3d 884, 901, 168 Cal.Rptr. 345 (1980). The court should, and in some instances must, explain its exercise of discretion in written findings. Tazziz v. Tazziz, 26 Mass.App.Ct. at 813, 533 N.E.2d 202. See also Szmyd v. Szmyd, 641 P.2d 14, 19 (Alaska 1982).

In drawing the circle of jurisdiction, the MCCJA is more confined than the UCCJA. ⁴ Under § 3(a) of the UCCJA, a court is competent to decide a child custody determination if: "it is in the best interest of the child ... because (i) the child and his parents, or the child and at least one contestant, have a significant connection with [the State in which jurisdiction is sought]." 9(Pt. 1) U.L.A. 143. The MCCJA does not authorize application of a "best interest of the child" test unless "it appears that no other state would have jurisdiction under paragraph (1) [of the MCCJA]." G.L. c. 209B, § 2(a )(2). ⁵ In providing that an emergency may be the basis for jurisdiction, the MCCJA is again more limited than the uniform act. Section 3(a)(3) of the UCCJA provides that a court has jurisdiction if a child "is physically present in this State and ... (ii) it is necessary in an a. "Home state" jurisdiction. The first basis for jurisdiction under § 2 of the MCCJA is as the "home state" of the children "on the commencement of the custody proceeding." G.L. c. 209B, § 2(a )(1). Section 1 of the MCCJA defines the "home state" as:

emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected [or dependent]." 9(Pt. 1) U.L.A. 144. Similar language appears in the MCCJA, but it is qualified by a proviso that, if jurisdiction might lie in another State, the Massachusetts court may invoke "emergency" jurisdiction only to the extent of "entering such temporary order or orders as it deems necessary unless the court of the other state has...