Olson v. Olson

ROSALYN B. BELL, Judge. In this appeal, we decide whether the court erred in dismissing the father’s petition for custody and support of the minor children based on lack of subject-matter jurisdiction. Kathleen W. Olson and Larry S. Olson were married in Hapeville, Georgia, in 1970. Two children were born of the marriage.

The parties were divorced by the Family Court for the County of Newport, Rhode Island, on July 26, 1979. The Olsons entered into a Property Settlement Agreement in February 1979 which, among other things, addressed child custody, support and visitation. It further provided that “the matter of the support, maintenance and custody of said minor children shall be determined by the Family Court of the State of Rhode Island, which shall continue to reatin [sic] jurisdiction over such matters, including the power to modify the same____” The Rhode Island divorce decree provided, in pertinent part, that “[t]he parties shall retain joint custody of the children ... with the [father] retaining physical custody.” It was silent, however, concerning visitation and support. The court neither incorporated the settlement agreement by reference, nor merged it into the decree.

Mr. Olson moved to St. Mary’s County, Maryland, in September 1979, bringing both children with him. Mrs. Olson continued to reside in Rhode Island. For the past five years, the children have spent four consecutive weeks each summer with their mother. They would visit her either in Rhode Island, or in Norfolk, Virginia where Mrs. Olson’s mother resides.

In June 1984, Mrs. Olson took the children to Virginia. She had planned to keep them for five weeks but returned them to their father at the end of three weeks. At the beginning of August, she took them back to Virginia. Af ¹⁵⁸ ter several days, she called Mr. Olson to inform him that she was taking the children to Rhode Island for the remainder of the summer.

Mr. Olson asked his former wife to agree in writing that she would return them to Maryland before school began in September. When she refused to do so, he became concerned that she was planning to keep them with her indefinitely. His concern stemmed from the following facts: she had never before requested as much visitation; she had become increasingly hostile to him; and she had been having conversations with one of the children about living with her in Rhode Island. The Circuit Court for St. Mary’s County issued an injunction prohibiting Mrs. Olson from removing the children from Maryland and it ordered the sheriff to obtain physical custody of them and deliver them to their father.

The injunction further provided that Mrs. Olson be restricted to visiting the children in the home of their father. Mrs. Olson was served with the injunction when she returned briefly to Maryland with the children. At a hearing on August 20, 1984, the court took testimony on Mrs. Olson’s motion to dissolve the injunction and on Mr. Olson’s opposition. The chancellor found that for the past five years Mrs. Olson had four consecutive weeks of visitation with the children each summer.

He dissolved the injunction and returned the visitation arrangement to the status quo. Prior to the August 20 hearing, Mr. Olson petitioned the Circuit Court for St. Mary’s County to modify the Rhode Island custody decree. In his petition, he requested that Mrs. Olson “be granted liberal but specified visitation rights” and that she “be ordered to pay a reasonable amount of child support.” Mrs. Olson moved to dismiss claiming that the court lacked jurisdiction. The court held no hearing but, in an order dated September 7, 1984, dismissed the claim “for lack of jurisdiction over the subject matter.” Mr. Olson then noted this appeal. ¹⁵⁹ MODIFICATION OF CUSTODY Jurisdiction cannot be conferred upon a court by consent of the parties.

See Clark v. Elza, 286 Md. 208, 211-212 , 406 A.2d 922 (1979); Biro v. Schombert, 285 Md. 290, 293 , 402 A.2d 71 (1979); Paolino v. Paolino, 420 A.2d 830 (R.I.1980). Only the court may decide whether it has jurisdiction to proceed. Sullivan v. Insurance Commissioner, 291 Md. 277, 281 , 434 A.2d 1024 (1981). Thus, the parties’ agreement which provided that Rhode Island “shall continue to retain jurisdiction” is not controlling.

In Maryland and in forty-seven other states, including Rhode Island, interstate child custody disputes, such as the one before us, are governed by the Uniform Child Custody Jurisdiction Act (UCCJA). Haralambie, Handling Child Custody Cases § 9.02 (1983). The UCCJA was enacted in this State in 1975 and is codified at Md.Family Law Code Ann., § 9-201 et seq. (1984). 1 We do not know the precise basis upon which the chancellor concluded that the court lacked subject-matter jurisdiction — his terse order did not explain his rationale.

Nevertheless, a judge is “presumed to know the law and is presumed to have performed his duties properly.” Lapides v. Lapides, 50 Md.App. 248, 251, 254 , 437 A.2d 251 (1981) (citations omitted); Stern v. Stern, 58 Md.App. 280, 300-301 , 473 A.2d 56 (1984). In this case, however, it is clear that there was no basis upon which he could come to the conclusion he did. As we will explain, this proceeding is governed by Maryland’s UCCJA. We will examine: (1) whether the Maryland court has jurisdiction under that statute; and (2) whether it should exercise its jurisdiction.

Before doing so, however, a brief explanation of the history of the UCCJA will prove helpful. The UCCJA was approved by the Conference of Commissioners on Uniform Laws and the American Bar Assoeia ¹⁶⁰ tion, in 1968, to counteract “the judicial trend ... toward permitting custody claimants to sue in the courts of almost any state, no matter how fleeting the contact of the child and family was with the particular state____” Uniform Child Custody Act, 9 U.L.A. Commissioners’ Prefatory Note at 112 (1968). That state of affairs came about as a result of a series of Supreme Court opinions which left open the question of whether the full faith and credit clause of the Constitution applied to custody decrees. Id.; see May v. Anderson, 345 U.S. 528 , 73 S.Ct. 840 , 97 L.Ed. 1221 (1953); New York ex. rel.

Halvey v. Halvey, 330 U.S. 610 , 67 S.Ct. 903 , 91 L.Ed. 1133 (1947). At the time, many states gave little or no effect to custody decrees of sister states; the matter of custody, therefore, could be successfully litigated in a number of different states, with each court considering the matter de novo. 9 U.L.A. Commissioners’ Prefatory Note at 113; Pratt v. Pratt, 431 A.2d 405, 407 (R.I.1981). As the Commissioners indicated in their introductory note to the UCCJA: “There is growing public concern over the fact that thousands of children are shifted from state to state and from one family to another every year while their parents or other persons battle over their custody in the courts of several states ... It is well known that those who lose a court battle over custody are often unwilling to accept the judgment of the court.

They will remove the child in an unguarded moment or fail to return him after a visit and will seek their luck in the court of a distant state where they hope to find — and often do find — a more sympathetic ear for their plea for custody. The party deprived of the child may then resort to similar tactics to recover the child and this “game” may continue for years, with the child thrown back and forth from state to state, never coming to rest in one single home and in one community.” 9 U.L.A. at 111-112. The UCCJA establishes criteria for the exercise of jurisdiction in child custody disputes, § 9-204(a); provides for ¹⁶¹ the recognition and enforcement of out-of-state decrees, § 9-213; and sets forth the guidelines for modifying a custody decree of another state, § 9-214(a). Even when a Maryland court determines that it has the power to modify an out-of-state decree, it may decline to do so if it determines that another state is a more appropriate forum, § 9-207.

In addition, it must decline to do so: (1) if the petitioner has improperly removed the child from the physical custody of the person entitled to it without that person’s consent, § 9 — 208(b); or (2) if a proceeding was pending in a court of another state concerning the custody of the child when the petition was filed, § 9-206(a). Maryland’s Jurisdiction Appellant maintains that the court erred in dismissing his petition because Maryland is the children’s “home state” and their “connections with Rhode Island have been all but dissolved____” Md. Family Law Code Ann., § 9-204(a), supra, sets forth four grounds upon which a Maryland court has jurisdiction to make a custody determination by initial decree or modification decree. It provides that “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 ¹⁶² 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 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.” 2 As a general rule, the child’s “home state” should be the jurisdiction to hear and determine custody issues. Hegler v. Hegler, 383 So.2d 1134, 1136 (Fla.1980).

See 9 U.L.A. Commissioners’ Note § 3, supra. Home state is defined as “[T]he state in which the child, immediately preceding the time involved, lived with the child’s parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.” Md.Family Law Code Ann., § 9-201(f), supra. If, however, “there is no home state or the child and his family have ¹⁶³ equal or stronger ties with another state, a court in that state has jurisdiction”. 9 U.L.A. Commissioners’ Note § 3 at 123.

The evidence shows that the children have lived with appellant in Maryland for the past five years. Their only regular periods of absence from this State have been for approximately four weeks each summer when they visit appellee in either Rhode Island or Virginia. We hold that the Maryland court has jurisdiction under the UCCJA as the children’s “home state”. Md.Family Law Code Ann., § 9-204(a)(1), supra.

Our inquiry does not end here, however, because we must further determine whether Maryland is precluded from exercising jurisdiction by § 9-206(a) or § 9-208(b) of the Act. Section 9-206(a) provides that “[A] court of this State shall not exercise its jurisdiction under this subtitle