Cronin v. Camilleri

⁷⁰¹ MURPHY, Judge. This appeal stems from a custody battle reaching as far west as Hawaii and as far south as Florida. Dennis Cronin, appellant, and Stephanie Camilleri, appellee, are married. They are the natural parents of two children, a daughter born on February 24, 1989, and a son born on November 2, 1990.

In March of 1992, the daughter complained that appellant had made her engage in sexual activity with him. This complaint was first made to appellee, who reported it to Child Protective Services. Shortly thereafter, a warrant was issued for appellant’s arrest. On March 12, 1992, appellee took the children to Hawaii.

Appellee placed the children in foster care and entered a mental health facility. She remained there for thirteen days. On March 27, 1992, in the Family Court of the First Circuit, State of Hawaii (hereafter referred to as “Hawaii court”), appellee filed an “Ex Parte Petition for a Temporary Restraining Order for Protection and Statement.” The Hawaii court issued a temporary restraining order for protection. That order provided in pertinent part: [P]ursuant to HRS [Hawaii Revised Statutes] Chapter 586, the Court finds there is probable cause to believe: 1. recent past act or acts of abuse has/have occurred. ****** It appears to the Court that a Temporary Restraining Order for Protection should be granted, ...

IT IS HEREBY ORDERED that the Defendant(s) appear before the Judge in the above proceeding at the date, time and place indicated in the attached Notice of Hearing to show cause why this temporary restraining order should not continue. Pending this hearing on the Order to Show Cause, IT IS ORDERED that the Defendant(s) and any person(s) acting in his/her/their behalf shall be enjoined and restrained from: 1. contacting, threatening or physically abusing A. the plaintifffs) ⁷⁰² B. any person(s) residing at Plaintiffs residence. 2. telephoning the Plaintiff(s). 3. entering or visiting the Plaintiff(s) residence. THIS ORDER BECOMES EFFECTIVE ONCE IT HAS BEEN SIGNED AND FILED. THE ORDER REMAINS IN EFFECT FOR THIRTY DAYS UNLESS THE COURT CONTINUES OR TERMINATES IT.

The Hawaii court also scheduled a Show Cause Hearing for April 9, 1992 and attached a notice of that hearing to the restraining order. Appellee’s brother mailed to appellant, by certified mail—return receipt requested, a copy of the petition, the restraining order, and notice of the April 9th hearing. Appellant signed a receipt for that mailing on April 3, 1992. When appellant did not appear on.

April 9th, and appellee could not prove that appellant had received notice of the proceedings, the Show Cause Hearing was continued to April 23, 1992. Cronin did not appear for the April 23rd hearing, at the conclusion of which the Hawaii court issued a three-year restraining order, that included the following provision: Defendant is prohibited from personally contacting Plaintiff and any minor children residing in the household at home, school or babysitters which includes telephoning, visiting and/or remaining within three (3) blocks of the place of residence, school and/or employment of the Plaintiff. Appellee’s request for temporary custody of the children was not granted in that order. On July 24, 1992, appellee filed a motion to amend the order to include temporary custody.

Back in Baltimore, appellant turned himself in on the outstanding warrant and posted bail. He then filed a complaint for limited divorce in the Circuit Court for Baltimore City. That complaint included a request that appellant be granted custody of the children. On September 10, 1992, appellant travelled to Hawaii, served appellee with a copy of the Balti ⁷⁰³ more City complaint, took the children away from their babysitter, and returned to Baltimore with them.

On September 23,1992, appellee filed a motion for emergency custody in the Circuit Court for Baltimore City. The Honorable Marvin B. Steinberg scheduled a hearing for the next day. Judge Steinberg also ordered appellant to appear in person and produce the children at the September 24th hearing. Appellant received notice of the hearing but removed himself and the children from Maryland.

On September 24th, Judge Steinberg awarded temporary custody of the children to appellee, ordered that appellee remain in Maryland until further order of court, and issued a body attachment for appellant. On October 5, 1992, the Hawaii court granted appellee’s motion to amend and awarded temporary custody of the children to her. On November 21, 1992, appellant was arrested in Florida, charged with abduction of the children, and returned to Maryland. On April 14, 1993, appellee filed a supplemental motion in the Circuit Court for Baltimore City, requesting that the court (1) modify the custody order to allow her to return to Hawaii with the children, and (2) dismiss appellant’s request for custody.

After hearings on that motion, the Honorable John N. Prevas (1) dismissed appellant’s complaint for custody, (2) dissolved the injunction preventing appellee from leaving Maryland, (3) denied appellee’s motions for attorneys’ fees and transportation costs, and (4) denied appellant’s motion to stay the proceedings. We affirm each of those decisions. Appellant presents the following issues for our review: I. Did the court abuse its discretion or err as a matter of law when it ruled that the temporary restraining order filed in the State of Hawaii constituted a “proceeding” as contemplated by the Maryland U.C.C.J.A. and the Federal Parental Kidnapping Prevention Act?

II

Did the court abuse its discretion when it ruled that the appellant had received sufficient notice of the April 9, 1992 hearing in Hawaii as required by the ⁷⁰⁴ U.C.C.J.A. and the Federal Parenting Kidnapping Prevention Act?

III

Did the court abuse its discretion when it ruled that the State of Maryland was an “inconvenient forum” as contemplated under the Maryland U.C.C.J.A. and the Parental Kidnapping Prevention Act?

IV

Did the court abuse its discretion when it relinquished jurisdiction to the State of Hawaii based on the alleged “reprehensible conduct” of the Appellant? V. Did the court indicate a predisposition and violate the right of the Appellant to a decision based solely on the evidence and the law, when the court expressed itself that the Court suspected that the sexual abuse criminal proceedings that arose out of the Appellee’s false accusations, were dismissed because the authorities “did not want to expose the child to the adversary system of the criminal justice system?” I. & III. Judge Prevas stated: A The State of Maryland (Circuit Court for Baltimore City) has jurisdiction over the issue of custody of the two minor children, pursuant to the provisions of FL. Art. 9-204, particularly subsections (a)(l)(i), (a)(1)(h) and (a)(2) of that section of the Maryland Uniform Child Custody Jurisdiction Act (“UCCJA”).

B. The Defendant, Stephanie Camilleri’s, Ex Parte Petition for a Temporary Restraining Order for Protection and Statement filed in the Family Court for the First Circuit of the State of Hawaii constitutes a “proceeding” as contemplated by the Maryland UCCJA, particularly the provisions of FL. Art. 9-201(d) and FL. Art. 9-206. C. That, therefore, pursuant to the provisions of FL.

Art. 9-206, the State of Maryland (Circuit Court for Baltimore City) declines to exercise its jurisdiction over the custody issue, due to pendency of a custody proceeding in ⁷⁰⁵ the State of Hawaii as of the time of the filing of the Plaintiffs Complaint for limited Divorce.... Neither party disputes that finding. We agree that Maryland has jurisdiction over the custody issue. Etter v. Etter, 43 Md.App. 395, 398 , 405 A.2d 760 (1979).

The Hawaii Proceeding Appellant contends that the temporary restraining order filed by the Hawaii court was not a “proceeding” under the Maryland Uniform Child Custody Jurisdiction Act (“UC-CJA”). We disagree. Judge Prevas stated: In the request for the temporary restraining order, although custody was not directly discussed, it was clear that the children were being kept away by the mother from the father because of the allegations of abuse. So that I find as a fact and as a matter of law, that the March 27, 1992 temporary restraining order was a proceeding as contemplated by 9-206, even though the statute which authorizes that proceeding, that being chapter 586 of the Family Law Article of Hawaii, rather than ... 583 of the Hawaii Statute which is the UCCJA. íH # sf* ‘Jfi At the time it was being reviewed by Maryland ... the temporary restraining order ... was a proceeding that’s ancillary to the UCCJA and had the welfare of the child as it implicitly relates to custody as a part of its subject matter.... ... [M]y conclusion of law with respect to the issue of whether or not under 9-206, the application for the temporary restraining order in Hawaii was a proceeding as contemplated in 9-206, that just as a ... 4-505 or 4-506 proceeding would be a proceeding contemplated by the UCCJA in Maryland.... section 586 of the Hawaii code is ⁷⁰⁶ ... a proceeding as contemplated under section 583 in Hawaii.

We agree with this analysis. Md.Code (1984, 1991 RepLVol.), § 9-206(a) of the Family Law Article (hereinafter referred to as “FL.”) provides in pertinent part: [A] court of this State shall not exercise its jurisdiction under this subtitle if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising