Vernon v. Vernon

• Decision Date: 19 September 2003
• Citation: 800 N.E.2d 1085,768 N.Y.S.2d 719,100 N.Y.2d 960
• Parties: RUSSELL O. VERNON, Respondent, v. VICTORIA M. VERNON, Appellant.
• Court: New York Court of Appeals Court of Appeals

100 N.Y.2d 960

800 N.E.2d 1085

768 N.Y.S.2d 719

RUSSELL O. VERNON, Respondent, v. VICTORIA M. VERNON, Appellant.

Court of Appeals of the State of New York.

Argued September 11, 2003.

Decided September 19, 2003.

John P. Rudden, New York City, for appellant.

Aaron Weitz, New York City, for respondent.

Chief Judge KAYE and Judges CIPARICK, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT

SMITH, J.

The primary issue in this custody proceeding is the continuing subject matter jurisdiction of the New York State courts in view of the Federal Parental Kidnaping Prevention Act ([PKPA] 28 USC § 1738A) and New York's Uniform Child Custody Jurisdiction Act (UCCJA), article 5-A of the Domestic Relations Law. Following a hearing, Supreme Court ordered that custody of the only child of the parties, now living in Wyoming with defendant mother, be transferred to the father, who resides in New York State. The Appellate Division affirmed, and so do we.

I

Plaintiff-respondent (father) and defendant-appellant (mother) were married in June 1985, in West Point, New York. Five years later, in July 1990, they had a daughter. In March 1991, six months after the child's birth, the parties separated. In June 1991, the father commenced an action for divorce in New York County, where he had moved after the separation. That same month, the mother, along with the child, who was then 11 months old, left the marital home in Sloatsburg, New York, for Shreveport, Louisiana.

In December 1992, New York Supreme Court granted a judgment of divorce, incorporating by reference a comprehensive settlement agreement, the terms of which had been negotiated by mother and father in open court in July 1991, and which survived the judgment. When the judgment was granted, mother and child were living in Las Vegas, Nevada, where they had moved in July 1992. Under the settlement agreement, mother had sole legal custody of the child. Father had visitation rights in accordance with a detailed schedule. The settlement agreement provided that "[i]t is expressly understood and agreed that so long as one of the parties herein is a resident of the State of New York, the Supreme Court of the State of New York shall retain personal jurisdiction of the parties, of the child, and of the case, for all purposes."

In January 1992, six months after mother and child had moved to Louisiana, mother filed an action in Louisiana seeking to modify the custody and visitation arrangement that had been agreed to in open court in July 1991. The father obtained an order from New York Supreme Court enjoining mother from continuing the action and she ultimately abandoned it.

In January 1993, the mother and child moved to Cheyenne, Wyoming. Later that year, in November, father moved in New York for sole custody in New York, claiming that the mother's relocations were intended to deprive him from having contact with his daughter. Mother responded by denying father's allegations, and stating in effect that if the court intended to deny the motion, it should exercise jurisdiction, but if the court was inclined to grant the motion, she should be given an opportunity to file a cross motion seeking to dismiss the action because New York was an inconvenient forum. Supreme Court held father's motion in abeyance, pending a referee's report. Supreme Court then denied mother's motion for renewal and reargument, in which she argued that New York was an inconvenient forum. The Appellate Division unanimously affirmed (210 AD2d 170 [1994]).

The Referee heard testimony from the child's three prior nannies, crediting their testimony that mother had "denigrated and foul-mouthed the father in [the child's] presence, and tried to alienate [the child] from her father." Two of the experts who testified supported the father. The first was a clinical psychologist who had been appointed to investigate mother's allegation that father had sexually abused the child. The witness concluded that the allegation was unfounded and suspected that it was made to affect the custody dispute. The second witness was a forensic psychologist who had been appointed by the court in 1992 to help mother and father establish an appropriate visitation schedule, and again in 1994 to evaluate the parties. She also concluded that mother's allegations of sexual molestation were unfounded. Mother offered the testimony of, among others, the child's therapist in Wyoming.

In his report dated October 8, 1997, the Referee stated the following:

"I find that [the child] is a normal, healthy, physically and emotionally fit, intelligent and pretty little girl, of seven.

"I find that both parents are loving, caring parents who can equally be entrusted with the custody of [the child] and that they both have appropriate facilities to do so. I do not find the mother less fit.

"I also find that both parents hate each other and that this hatred causes tension in the child, who is unavoidably caught between them in their constant tug-of-war for her love and affection.

"However, the established visitation rights have not been interfered with. At most, it can be argued, that the mother's attitude towards the father, explicit and implicit, has so affected [the child], that she often refuses to come to the phone, when her father calls from New York and she is with her mother in Cheyenne, Wyoming."

The Referee recommended that custody and visitation remain unchanged, but that the mother be enjoined from alienating the child from the father, as well as from interfering with his right of visitation and to speak to her on the phone. The Referee also granted a motion by the mother to enroll the child in a parochial school, finding it in the child's best interest. The Referee did not decide a motion by the mother for an award of counsel fees, or an application for upward modification of child care and medical expenses because she did not present the necessary evidence.

Meanwhile, in 1995, the mother adopted a second child, from Bulgaria, who is about the same age as the subject child. The three lived together in a house the mother purchased in Cheyenne, Wyoming. The father eventually remarried and purchased a home in Tuxedo Park, New York, where he lives with his wife and their daughter.

Before Supreme Court decided whether to accept or reject the Referee's report, the parties entered into an agreement in April 1998, which generally modified the July 1991 agreement incorporated into the December 1992 judgment of divorce by extending the father's visitation rights in exchange for his discontinuing the motion for sole custody and other motions related to the mother's enrollment of the child in a parochial school.

Four months later, in August 1998, the mother commenced a proceeding in Wyoming, seeking to change the father's right to visitation. The father obtained an order in New York restraining the mother from proceeding in Wyoming. The mother ultimately consented to the dismissal of the Wyoming action.

In January 2000, the father brought an order to show cause seeking to hold the mother in contempt for failing to abide by the visitation schedule. The mother moved for dismissal of the motion, claiming that the child refused to visit her father and forcing her to do so was against her best interests. The mother also argued that New York should decline jurisdiction because New York was an inconvenient forum. In June 2000, the court again appointed the forensic psychologist to evaluate the parties and report to the court. Relying on an August 2000 report by the forensic psychologist, the court concluded that the mother "has removed the child from the jurisdiction and essentially cut off the relationship with the father and the child. If I remove these court proceedings to the same jurisdiction, I am further enabling the mother to continue this pattern of removal. We have a valid basis for jurisdiction and that is denied." The court ordered a hearing on the contempt motion. In her extensive report, the psychologist expressed concerns that the mother "could not be counted upon to fulfill the court-ordered visitation." The psychologist also recommended a change from sole custody to joint custody, with the father having authority over certain aspects of the child's life.

In February 2001, the mother again argued that the court lacked subject matter jurisdiction over the contempt hearing. The court denied the motion, as well as a motion for reargument and renewal.

The hearing took place in July 2001. The forensic psychologist testified that the child's unwillingness to travel to New York that summer to see her father was caused by the mother's "ongoing and relentless alienation to which the child is subjected based upon" the mother's "distrust, anxiety, and anger at" the father. The mother played "a very active role in many ways in discouraging visitation with the father." On cross-examination, the psychologist explained that the child's "tie, her loyalty, her struggle, her hostilities are all based upon her feeling that her mother does not want her to see her father, have fun with him, spend time with him and that it is a betrayal of the mother's love and care for her if she does that. This child is in a terrible, terrible dilemma." The psychologist also testified that it would be "very much" in the child's interest to see her father regularly. In the psychologist's view, however, the mother was incapable of taking the necessary steps to encourage the child to visit her father.

Several days later, the court placed the mother's counsel on notice that the court would consider a change of custody, and that before deciding, the court wished to hear from the mother and the child. When the hearing resumed on August 3, 2001, the court heard testimony from the father, his present wife, his mother, and his sister-in-law. The mother did not appear in court and did not offer witnesses. The mother's attorney informed the court that "it [was] impossib...