Harris v. Melnick

RODOWSKY, Judge. This appeal concerns the proper analysis for determining, where there are multi-state contacts, whether this State can and should exercise jurisdiction over a request to modify the visitation aspects of a child custody order originally entered here. The analysis involves both the Maryland Uniform Child Custody Jurisdiction Act (the Md. Uniform Act), Md.Code (1984), §§ 9-201 to 9-224 of the Family Law Article (FL), and FL § 9-302 (the Special Act). Appellant, Ann Harris (Harris), and the appellee, Jonathan Melnick (Melnick), were divorced a vinculo matrimonii in September 1980 by the Circuit Court for Baltimore County.

The parties had one child, Jason Harris Melnick (Jason), born June 9, 1976. While the divorce proceedings were pending Harris and Jason moved to Aspen, Colorado. The change of residence was approved by a temporary custody order of February 1979. The final decree awarded Harris custody of Jason and granted Melnick visitation rights in accordance with an incorporated separation agreement.

Colorado remains the domicile of Harris and Jason. Melnick has continuously resided in Maryland where Jason has regularly visited his father for the periods described in Part II, infra. From time to time after the divorce Harris and Melnick skirmished in the Circuit Court for Baltimore County. The ⁵⁴² dispute generating this appeal began, at least procedurally, in January 1985 when Melnick sought to extend Jason’s visits with him in Maryland during Christmas and in February for a Caribbean vacation.

Those issues were apparently resolved between the parties inasmuch as no court activity was docketed concerning that petition prior to June 2, 1987, when Melnick requested an emergency hearing. That request was prompted by a delay in Jason’s departure from Colorado for his summer visit. The delay resulted from a disagreement over when Jason would return to Colorado at the end of his summer visit. At a master’s hearing on June 23 Harris appeared through counsel who filed a motion, with supporting memorandum, affidavit and exhibits, challenging the jurisdiction of the circuit court.

Attached to the motion was a copy of a petition by Harris to the District Court, County of Pitkin, State of Colorado, dated June 11, requesting that court to assume jurisdiction over custody and visitation issues affecting Jason. In her Baltimore County motion Harris contended (1) that Colorado had exclusive jurisdiction or (2) that the circuit court should defer to the Colorado court. Both prongs of the argument were based upon the Md. Uniform Act. It is the Maryland version of the Uniform Child Custody Jurisdiction Act (the Uniform Act) which was approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1968. 9 U.L.A. 111 et seq.

(1979). A counterpart of the Uniform Act has also been enacted in Colorado. See Colo. Rev.Stat. §§ 14-13-101 to -126 (1987).

Harris was not present at the hearing. The master heard testimony from witnesses called by Melnick. In a report filed on June 24 the master concluded that the court had continuing jurisdiction and recommended an order concerning visitation which was entered immediately. 1 Har ⁵⁴³ ris filed exceptions. The circuit court concluded on November 18 “that the Master was correct ... in his belief that Maryland should retain jurisdiction in this case with regard to issues of custody and visitation in accordance with Family Law Article Sec[s]. 9-204 and 9-302.” FL § 9-204, which is, in substance, § 3 of the Uniform Act, reads: “(a) Grounds for jurisdiction. — A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification decree if: (1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within 6 months before commencement of the proceedings and the child is absent from this State because of the child’s removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this State; (2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and the child’s parents, or the child and at least 1 contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; (3) the child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or (4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with ⁵⁴⁴ items (1), (2), or (3) of this subsection or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

(b) Effect of physical presence. — Except under subsection (a)(3) and (4) of this section, physical presence in this State of the child, or of the child and 1 of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.” FL § 9-302 reads: “(a) Authority of court. — An equity court has jurisdiction over custody and visitation of a child who is removed from this State by a parent of the child, if: (1) the parents are separated or divorced and this State was: (1) the marital domicile of the parents; or (ii) the domicile in which the marriage contract was last performed; (2) 1 of the parents was a resident of this State when the child was removed and that parent continues to reside in this State; and (3) the court obtains personal jurisdiction over the parent who removes the child. (b) Effect of section. — This section does not affect any other basis of an equity court’s jurisdiction over custody and visitation of a child.” The circuit court then addressed the ruling sought by Harris which would “reeogniz[e] that Colorado is now and will be for the future the only appropriate forum for the modification of the existing child custody decree.” The court denied the requested ruling and cited FL § 9-204 as providing “for the continuing jurisdiction of this Court.” The circuit court’s order denied Harris’s motion. Since the motion raised the same jurisdictional objections which underpinned her exceptions to the master’s report, the court’s ruling effectively overruled the exceptions. From ⁵⁴⁵ that judgment Harris noted a timely appeal to the Court of Special Appeals. 2 We issued the writ of certiorari on our own motion prior to consideration of the appeal by the intermediate appellate court.

I Harris’s principal argument rests on the Md. Uniform Act. 3 The Uniform Act speaks in terms of “jurisdiction” and the parties to this case have, in turn, couched their arguments in terms of “jurisdiction.” As a preliminary matter it is well to keep in mind the historic distinction in ⁵⁴⁶ equity between a court’s possessing jurisdiction over the subject matter and the exercise of that jurisdiction. See, e.g., Wakefield v. Little Light, 276 Md. 383 , 349-50, 347 A.2d 228, 237-38 (1975). We agree with the overview of the Uniform Act given by the Supreme Court of California in a case analogous to the one before us. “The jurisdictional grounds for making a child custody determination are set out in section [3] of the Uniform Act [FL § 9-204], Sections that follow address due process rights of the parties and prescribe appropriate procedures. Other sections, crucial to our determination, articulate the circumstances or situations in which the courts may or should decline to exercise jurisdiction.

The sections relied upon ... fall in the latter category. We stress this point because both parties speak of either California or New York as lacking ‘jurisdiction’ to act in the instant matter, when the crucial question is really whether the Uniform Act directs or allows exercise of jurisdiction. As shall appear, it is obvious that each state can claim to have jurisdiction from among the multifaceted components of section [3 of the Uniform Act].” Kumar v. Superior Court, 32 Cal.3d 689, 695 , 652 P.2d 1003, 1006-07 , 186 Cal.Rptr. 772, 775-76 (1982). Consequently, we shall rephrase the arguments presented by Harris and by Melnick to emphasize the distinction described above.

Harris submits that Colorado is the only state with jurisdiction over the subject matter. She bases that argument on FL § 9-204(a)(l), under which Colorado is the “home state” of Jason. 4 She also bases that argument on FL § 9-204(a)(2) because she contends that only Colorado meets the “significant connection” test of that subsection. Melnick does not dispute that Colorado is Jason’s “home state.” The father joins issue with Harris over the applica ⁵⁴⁷ tion of FL § 9-204(a)(2) and contends that Maryland has “significant connection” jurisdiction over the subject matter. He further contends that FL § 9-302 gives the Circuit Court for Baltimore County jurisdiction over the subject matter.

Harris responds by asserting that, even if each competing state has subject matter jurisdiction, the more significant contacts are with Colorado so that the Maryland court ought not exercise subject matter jurisdiction in keeping with the policy of the Md. Uniform Act. In this latter respect Harris emphasizes FL § 9-202 which in relevant part reads: “(a) General purposes. — The general purposes of this subtitle are to: (3) assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and the child’s family have the closest connection and where significant evidence concerning the child’s care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and the child’s family have a closer connection with another state; (b) Construction. — This subtitle shall be construed to promote the general purposes stated in this section.” Neither party relies on FL § 9-214(a) or the comparable Colorado provision. As hereinafter explained that provision primarily controls whether a state is allowed to exercise subject matter jurisdiction to modify an existing custody order of another state. FL § 9-214(a) provides: “If a court of another state has made a custody decree, a court of this State shall not modify that decree unless (1) it appears to the court of this State that the court that rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this subtitle or has declined to assume jurisdiction to ⁵⁴⁸ modify the decree and (2) the court of this State has jurisdiction.”[ 5 ] FL § 9-214(a) is § 14(a) of the Uniform Act.

The reporter for the Uniform Act was Professor Brigitte M. Bodenheimer whose extensive writings on that subject highlight the importance of § 14(a). See generally The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand.L. Rev. 1207 (1969) (Bodenheimer I); The Rights of Children and the Crisis in Custody Litigation: Modification of Custody in and out of State, 46 U.Colo.L.Rev. 495 (1975) (Bodenheimer II); and Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 Fam.L.Q. 203 (1981) (Bodenheimer III). Professor Bodenheimer has described the legal background which brought about the promulgation of the Uniform Act. “Under state law preceding the Uniform Act, courts have the power to modify their own custody decrees. They retain continuing jurisdiction to change their custody or visitation provisions, if circumstances have changed, or, under some laws, if the existing custody arrangement presents a danger to the child.

This jurisdiction continues when the child is absent from the state. “Prior to the Uniform Act, the courts of other states often assumed concurrent jurisdiction to modify a custody decree, if the child happened to be in their territory, without regard to the preexisting and continuing jurisdiction of the state of the original decree____ [Concurrent jurisdiction in several states to modify an existing custody judgment was a major cause of parental resort to kidnapping to gain a more favorable judgment in a new forum. The exercise of concurrent jurisdiction frequently resulted in collisions between the courts of different states which made contradictory custody awards. ⁵⁴⁹ “Some courts in a new state would express their readiness to recognize the custody decree of the state of continuing jurisdiction as a matter of comity, if not of full faith and credit, but in the same breath they would often take the position that circumstances had changed since the entry of the other state’s decree, so that their transfer of custody to the other parent was warranted.” Bodenheimer III, at 218-14 (footnotes omitted). She then explained the response in § 14 of the Uniform Act to the above-described problems. “The UCCJA was designed ‘to bring some semblance of order into the existing chaos.’ In order to do so, the Act had to go further than simply codifying the principle of recognition of out-of-state custody decrees. It had to strengthen the continuing jurisdiction of the state of the initial decree; it had to insulate that jurisdiction from out-of-state interference; in other words, it had to bestow legal effect upon that continuing jurisdiction which operates beyond the state borders. “Accordingly, Section 14 of the UCCJA provides that once ‘a court of another state has made a custody decree, a court of this state shall not modify that decree.’ In other words, the continuing jurisdiction of the prior court is exclusive.

Other states do not have jurisdiction to modify the decree. They must respect and defer to the prior state’s continuing jurisdiction. Section 14 is the key provision which carries out the Act’s two objectives of (1) preventing the harm done to children by shifting them from state to state to relitigate custody, and (2) preventing jurisdictional conflict between the states after a custody decree has been rendered.” Id. at 214 (footnote omitted). Bodenheimer further points out that “the rules governing modification jurisdiction are markedly different from the rules applicable to initial jurisdiction.” Id. at 215 (footnote omitted).

Initial jurisdiction is determined primarily by § 3 (FL § 9-204). Id. ⁵⁵⁰ “Modification jurisdiction, on the other hand, is governed primarily by Section 14, reinforced, where necessary, by the stronger clean hands rule of Section 8(b). As the Commissioners’ Note to Section 6 states, ‘once a custody decree has been rendered in one state, jurisdiction is determined by Sections 8 and 14.’ This means that only one state — the state of continuing jurisdiction — has power to modify the custody decree. Only that state decides whether to decline the exercise of its jurisdiction in any particular case.

The rule is clear and simple. There can be no concurrent jurisdiction and no jurisdictional conflict between two states.” Id. at 216. Thus the Commissioners’ Note to § 14 of the Uniform Act states in part that “all petitions for modification are to be addressed to the prior state if that state has sufficient contact with the case to satisfy section 3 [FL § 9-204]. The fact that the court had previously considered the case may be one factor favoring its continued jurisdiction.

If, however, all the persons involved have moved away or the contact with the state has otherwise become slight, modification jurisdiction would shift elsewhere.” 9 U.L.Á. at 154. Bodenheimer’s description of “the myth of concurrent modification jurisdiction,” Bodenheimer III, at 216, is also on point here. “Some decisions proceed on the erroneous assumption that both the state of the original decree and the state where the child subsequently resides for six months have jurisdiction to modify the original decree. They say that there is ‘significant connection’ jurisdiction in the state of the original decree and concurrent ‘home state’ jurisdiction in the new state. “This ‘concurrent jurisdiction’ theory is incompatible with the clear language of the Act. Section 14 is unambiguous: if the state of the original decree has jurisdic ⁵⁵¹ tion, a court of another state ‘shall not modify that decree.’ In other words, the state of the prior decree alone has jurisdiction to modify its decree.

This jurisdiction is exclusive. No other state has authority to hear a petition for modification.” Id. at 216-17 (footnote omitted). Courts have recognized and applied the foregoing analysis of the Uniform Act. See Kumar v. Superior Court, 32 Cal.3d. 689, 652 P.2d 1003 , 186 Cal.Rptr. 772 (1982); Kraft v. District Court, 197 Colo. 10 , 593 P.2d 321 (1979) (en banc); Hamill v. Bower, 487 So.2d 345 (Fla.Dist.Ct.App. 1986) ; Funk v. Macaulay, 457 N.E.2d 223 (Ind.Ct.App. 1983); In re Marriage of Leyda, 398 N.W.2d 815 (Iowa 1987) ; Kendall v. Whalen, 526 A.2d 588 (Me.1987); Clarke v. Clarke, 126 N.H. 753 , 496 A.2d 361 (1985); Neger v. Neger,