Voninski v. Voninski

• Decision Date: 26 October 1982
• Citation: 661 S.W.2d 872
• Parties: Karen E. VONINSKI, Plaintiff-Appellee, v. Paul VONINSKI, Defendant-Appellee. 661 S.W.2d 872
• Court: Tennessee Court of Appeals

Page 872

661 S.W.2d 872

Karen E. VONINSKI, Plaintiff-Appellee, v. Paul VONINSKI, Defendant-Appellee.

661 S.W.2d 872

Court of Appeals of Tennessee Middle Section, at Nashville.

Oct. 26, 1982.

Rose Palermo and Abby R. Rubenfeld, Cheatham & Palermo, Nashville, for plaintiff-appellant.

Vincent Finocchio, Syracuse, N.Y., Jack A. Butler and H. Scott Williams, Butler, Lackey, Holt & Snedeker, Nashville, for defendant-appellee.

OPINION

CONNER, Judge.

This is a case of first impression involving the effect of recently enacted federal legislation regarding child custody disputes when the custodial parent and non-custodial parent are residents of different states (here Tennessee and New York); and how that legislation interfaces with the relevant statutes of the respective states.

According to the pleadings and exhibits thereto the parties hereto were divorced in New York in October of 1978. The plaintiff-appellant, Karen E. Voninski, ¹ was awarded custody of their two minor children, with whom she has been living in Tennessee since that time. The final decree ordered that the children spend the majority of their summer vacations with the defendant, Paul Voninski, in New York, and purported to retain exclusive jurisdiction over custody and visitation matters in the New York court.

On July 14, 1980, the New York court which had granted the divorce, in response to a contempt petition instituted by Mr. Voninski, issued an order whereby it claimed jurisdiction pursuant to the terms of the divorce decree. That court ordered Mrs. Voninski to produce the children in New York for summer visitation with Mr. Voninski. She did not participate in this proceeding except to make a special appearance through counsel to contest the jurisdiction of the New York court. However, subsequent to the entry of this order Mrs. Voninski did hand over the children for an abbreviated visitation with their father for the summer of 1980.

On June 1, 1981, Mrs. Voninski filed the instant petition to change visitation in the Circuit Court for Davidson County, Tennessee, the residence of plaintiff. The petition alleged that the minor daughter was "violently opposed to spending the summer with her father" and had refused to go to New York. It sought a hearing before the Tennessee court to modify the visitation arrangements for the daughter. No change was sought as to the minor son.

On July 17, 1981, while this petition was pending, Mr. Voninski again filed a contempt petition against Mrs. Voninski in New York. An August 18, 1981, show cause date was set there. Mrs. Voninski did not appear at that hearing. On August 13, 1981, Mr. Voninski moved to dismiss the Tennessee proceeding for lack of jurisdiction based on the terms of the 1978 divorce decree. An order was issued by the New York court on August 24, 1981, claiming jurisdiction pursuant to the divorce decree of 1978, and directing that a trial be set in New York.

A hearing was held in Tennessee on February 5, 1982, on the motion to dismiss filed by the defendant and the trial court ruled that it lacked jurisdiction. No proof was heard from the parties. Plaintiff appealed from the Tennessee dismissal contending the jurisdictional requirements of federal law and the statutes of both states mandate that jurisdiction in custody and visitation matters involving these children lies only in Tennessee. Thus, an examination of the relevant federal and state laws is required to determine whether such jurisdiction lies in Tennessee where the children have resided for several years with their mother or in New York where the divorce was granted, custody awarded and visitation rights specified.

On December 28, 1980, the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. Sec. 1738A (hereinafter referred to as "PKPA") was enacted into law. A stated purpose was to establish national standards under which courts can determine their jurisdiction to decide interstate custody disputes. ² PKPA dictates that full faith and credit be given to child custody determinations made by a court of another state if made consistently with the provisions of the statute. 28 U.S.C. Sec. 1738A(a). Modification of such decrees is permitted only when the second state now has jurisdiction and the rendering state has lost or refused it. 28 U.S.C. Sec. 1738A(f). The act reads in pertinent part:

Full faith and credit given to child custody determinations

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.

(b) As used in this section, the term--

* * *

(4) "home State" means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months, ... Periods of temporary absence of any such persons are counted as part of the six-month or other period.

* * *

(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if--

(1) such court has jurisdiction under the law of such state; and

(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interests of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;

(D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

(E) The court has continuing jurisdiction pursuant to subsection (d) of this section.

(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

* * *

(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if--

(1) it has jurisdiction to make such a child custody determination; and

(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination. (Emphasis supplied.)

28 U.S.C. Sec. 1738A(a)-(d), (f).

As a federal jurisdictional statute, the PKPA establishes a policy of federal pre-emption in the area of custody jurisdiction. Consequently, under the Supremacy Clause of the United States Constitution, ³ the PKPA takes precedence over either the Tennessee or New York Law and must be first consulted in determining jurisdiction in custody disputes. See Lodge 76, International Association of Machinists and Aerospace Workers v. Wisconsin Employment Relations Commission, 427 U.S. 132, 138, 139, 96 S.Ct. 2548, 2552, 49 L.Ed.2d 396 (1976); Leslie L.F. v. Constance F., 110 Misc.2d 86, 441 N.Y.S.2d 911, 913 (Fam.Ct.1981); Mebert v. Mebert, 111 Misc.2d 500, 444 N.Y.S.2d 834, 839, 840 (Fam.Ct.1981). In this judicial maze, the federal act, however, directs one straight back to state law since the first of the jurisdictional prerequisites of the PKPA is that the state court must have jurisdiction under its own laws. See 28 U.S.C. Sec. 1738A(c)(1), supra. Moreover, if jurisdiction was originally in New York that jurisdiction must have been lost or declined in order for Tennessee to modify the New York decree. 28 U.S.C. Sec. 1738A(f)(2).

No argument is advanced that the initial New York decree of October 4, 1978, was entered without jurisdiction. Therefore, that decree is entitled to enforcement unless modified as provided in 28 U.S.C. Sec. 1738A(f), supra. In reiteration, modification by a court of Tennessee is permissible in the circumstances of this case only if (1) Tennessee has jurisdiction to make a custody determination, and (2) New York no longer has jurisdiction or has declined to exercise such jurisdiction to modify its initial decree. Ibid.

In further reiteration, jurisdiction to make a child custody determination pursuant to the PKPA requires in part that jurisdiction exist under the court of the forum itself. Pursuant to 28 U.S.C. Sec. 1738A(c), a custody determination is consistent with the provisions of the PKPA only if: (1) the court making the determination has jurisdiction under the law of such state, and (2) one of five conditions is met, the cornerstone being that the state is either the "home state" of the child on the date of the commencement of the proceeding or had been the child's home state within six months before the date of the commencement of the proceeding. See 28 U.S.C. Sec. 1738A(c)(2)(A)-(E), supra.

The conditions enumerated in subsection (c)(2)...