Solomon v. Solomon

DAVIS, Judge. On September 19, 1996, a hearing was held in the Circuit Court for Anne Arundel County on a Complaint to Modify Visitation and Petition for Contempt filed by appellant/erossappellee Clifford Todd Solomon (Father) and a Motion to Dismiss filed by appellee/cross-appellant Barbara Kaplan Solomon (Mother). On October 11, 1996, the Circuit Court for Anne Arundel County granted Mother’s Motion to Dismiss Father’s Complaint to Modify Visitation with the parties’ son, Jacob. Although the court concluded in its memorandum accompanying its order that it had subject-matter jurisdiction over custody and visitation of Jacob, it declined to exercise its jurisdiction.

The circuit court decided that the State of New York is the most convenient forum in this case and dismissed Father’s complaint. By Supplemental Order dated October 24, 1996, the court clarified its Memorandum Opinion and Order, stating that only Father’s Complaint to Modify Visitation was dismissed and that the ruling on his Petition for Contempt is the subject of another separate order. By another order dated October 24, 1996, the court found Mother in contempt for failing to allow visitation in accordance with the terms of the parties’ Voluntary Separation and Property Settlement Agreement (Agreement). In addition, the court ordered Mother to pay $1,912 as contribution towards counsel fees incurred by Father.

Father filed a Notice of Appeal from the Order of October 11, 1996 and Supplemental Order of October 24, 1996 and a Motion for Stay of Order on October 25, 1996. By Order dated November 19, 1996, the court stayed its October 11, 1996 order ¹⁰⁰ pending this appeal. On November 20, 1996, Mother filed a Notice of Cross-Appeal from the October 24, 1996 Order in which she was found in contempt and ordered to pay counsel fees. Father presents the following issues for our review, which we restate below: I. Whether the trial court committed reversible error when it applied the wrong standard in declining to exercise jurisdiction.

II

In the alternative, whether the trial court erred when it found that New York is the most convenient forum, without evaluating the relevance of the evidence to the issues involved. In addition, Mother’s cross-appeal presents the following question, which we restate below: III. Did the Circuit Court for Anne Arundel County have jurisdiction to find appellee in contempt of court where the child visitation orders at issue were those of the Circuit Court for Baltimore City, rather than the Circuit Court for Anne Arundel County? FACTS The parties’ child, Jacob, was born in Maryland on October 17, 1989.

In July 1990, the parties moved to New York so that Father could complete a one-year fellowship at a hospital in Manhattan. Following Father’s completion of his fellowship, the parties moved to Switzerland in July 1991, where Father began an apprenticeship at the University Hospital in Zurich. Throughout this period of time, the parties maintained ownership in a condominium in Maryland and Mother testified that she expected that the family would eventually return to Maryland so that Father could complete his residency. In December 1991, Mother and Jacob traveled to New York from Switzerland to visit family and friends.

Father declined to go on the trip. In January of 1992, Father commenced an action for divorce in the Circuit Court for Baltimore City. Mother and Jacob did not return to Switzerland and, for the ¹⁰¹ next ten months, they lived with Jacob’s maternal grandmother in Rosalyn Harbor, New York. On January 23, 1992, Mother filed an action for divorce in New York, but the action was dismissed when the New York court determined that it lacked jurisdiction.

On June 30, 1993, the Circuit Court for Baltimore City entered a Judgment of Absolute Divorce, which incorporated a Separation Agreement that the parties had executed. The Agreement granted Mother primary physical custody of Jacob and granted Father, inter alia, three weeks visitation in the summer and two weekends a month, one weekend in Maryland and one weekend in New York. Since the parties’ Judgment of Absolute Divorce, they have appeared before the Circuit Court for Baltimore City twice for hearings pertaining to Mother’s breach of the parties’ Agreement. Following a hearing on January 21,1994, the parties were able to reach an agreement.

At the second hearing on November 10,1994, the court found Mother in contempt and ordered her to contribute to Father’s counsel fees. Then, in May 1994, Mother filed a request in the Supreme Court of New York, County of New York, to modify support and visitation, but the court denied Mother’s request, deferring to the Maryland court’s jurisdiction. On March 25, 1996, Father filed in the Circuit Court for Anne Arundel County a Complaint to Modify Visitation, asking the court to grant him, inter alia, visitation with Jacob for the whole summer. In addition, Father filed a Petition for Contempt on May 23, 1996 and on July 5, 1996, alleging that Mother repeatedly breached the Agreement by denying Father phone contact and visitation.

On May 23, 1996, Mother filed in the Family Court of New York a Petition for Modification of a Judgment of Another Court, requesting the court to modify the June 30, 1993 Judgment of Absolute Divorce of the Circuit Court of Baltimore City. On June 26, 1996, the Family Court of New York stated that it would stay the action pending the resolution of this case in Maryland. ¹⁰² On June 3, 1996, Mother filed a Motion to Dismiss Father’s Complaint to Modify Visitation, alleging that the Circuit Court for Anne Arundel County was “an inconvenient forum to make custody and visitation determinations and that the Family Court of the State of New York, County of New York is a more appropriate forum.” Father filed an opposition to the motion on June 12, 1996. On September 19, 1996, a hearing was held in the Circuit Court for Anne Arundel County on the Motion to Dismiss for lack of subject-matter jurisdiction and on the Petition for Contempt. At the hearing, the parties testified to the following facts.

Father currently resides in Severna Park, Maryland with his wife Bernadette, and he contends that he has lived continuously in Maryland, with the exception of his one-year fellowship in New York and stay in Switzerland. Jacob visits Father in Maryland one weekend a month, three weeks during the summer, and one week during the rest of the year, as well as alternating holidays. Jacob’s paternal grandparents live in Maryland. Mother and Jacob currently reside in New York City where Jacob attends school.

At the time of the trial, Jacob was in the first grade. Mother notes that Jacob’s teachers, rabbi and temple, doctors, and dentist are all in New York City. In addition, Jacob attends a children of divorce group in New York City and his maternal relatives are all in New York. Mother testified that Jacob’s maternal grandmother sees Jacob three to four times a week.

Jacob also has many friends in New York City with whom he interacts on a regular basis. By Memorandum Opinion and Order dated October 11, 1996, the trial court found that it had jurisdiction over visitation of Jacob because all of the prerequisites of F.L. § 9-302(a) were satisfied. The court, however, stated that “it may decline, in its discretion, to exercise its jurisdiction if it finds that Maryland is an inconvenient forum, pursuant to Family Law Article § 9-207.” After considering several factors set out in F.L. § 9-207, the court concluded that the State of New York “is the most convenient forum in this case” and declined ¹⁰³ jurisdiction. In addition, the court found that venue was proper for it to decide the Petition for Contempt.

In a Supplemental Order filed October 24, 1996, the court clarified its October 11, 1996 Order, and stated that Father’s Complaint to Modify Visitation is dismissed and that its ruling on the Petition for Contempt would be the subject of a separate order. In a separate order filed on October 24,1996, the court found Mother in contempt and ordered her to pay $1,912 as a contribution towards counsel fees. Father filed a timely appeal, and Mother filed a timely cross-appeal. DISCUSSION The trial court found that it had jurisdiction, pursuant to F.L. § 9-302(a), which provides: (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: (i) 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.

The court explained in its October 11, 1996 Memorandum and Order that the prerequisites of F.L. § 9-302(a) were satisfied because “the parties are divorced and this State was their marital domicile.” In addition, Father was a resident of Maryland when Mother and Jacob went to New York, and Father continued to reside in Maryland. Finally, the court stated that it had obtained personal jurisdiction over Mother when she entered her appearance in this action. ¹⁰⁴ The court, however, declined to exercise its jurisdiction over Father’s Complaint to Modify Visitation, pursuant to F.L. § 9-207, which is part of Maryland’s Uniform Child Custody Jurisdiction Act (Uniform Act). According to F.L. § 9-207(a), a “court which has jurisdiction under this subtitle ... may decline to exercise its jurisdiction ... if it finds that it is an inconvenient forum____” Family Law § 9-207(c) lists several factors that the court may take into account when determining whether it is an inconvenient forum. Father contends that the court erred when it considered the factors set forth in F.L. § 9-207(c), because this provision, he argues, is only applicable to subtitle two 1 and not to the court’s finding of jurisdiction under F.L. § 9-302(a).

Instead, Father asserts that, if the judge wished to apply the theory of forum non conveniens, she should have applied Md.Code, Cts. & Jud. Proc. § 6-104 (1996 ReplVol.) (C.J.). This section provides that a court may dismiss an action if it “finds that in the interest of substantial justice an action should be heard in another forum ...” Father argues according to the Court of Appeals decision in Johnson v. G.D. Searle & Co., 314 Md. 521 , 552 A.2d 29 (1989) (quoting the Restatement (Second) of Conflict of Laws § 84 (1971)), that “substantial injustice” requires the court to decline jurisdiction if it is a “seriously inconvenient forum.” Johnson, 314 Md. at 525 , 552 A.2d 29 . As such, Father argues that “the inconvenience required under [C.J. § 6-104] is greater than that contemplated by [F.L. § 9-207],” and, therefore, the trial court erred in its analysis.

Alternatively, Father contends that Maryland has jurisdiction pursuant to F.L. § 9-204 and, therefore, the application of F.L. § 9-207 was proper. He contends, however, that the court should have exercised its jurisdiction because it did not find that Maryland was an inconvenient forum pursuant to F.L. § 9-207. Mother refutes appellant’s assertions, and in addition, raises an argument on cross-appeal that the Circuit ¹⁰⁵ Court for Anne Arundel County did not have jurisdiction to decide whether Mother was in contempt of the orders of the Circuit Court for Baltimore City. We address each of the parties’ arguments below.

I and II ' We first address appellant’s contention that the trial court erred when it found that it had jurisdiction pursuant to F.L. 9-302 and declined jurisdiction under F.L. § 9-207. Although Father argued below that the court had jurisdiction pursuant to F.L. § 9-204, as well as F.L. § 9-302, the trial court’s order does not discuss jurisdiction with regard to the Uniform Act, but declares that it has jurisdiction pursuant to F.L. § 9-302. 2 Father argues that if there is no jurisdiction under the Uniform Act, the court should not have applied F.L. 9-207 when determining whether to decline jurisdiction. We agree that F.L. § 9-207 has a limited application. It states: ¹⁰⁶ (a) Action if this State is inconvenient forum. — A court which has jurisdiction under this subtitle to make an initial decree or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

(Emphasis added). In the instant case, the trial court did not determine whether it had jurisdiction under the Uniform Act, F.L. § 9-204, and therefore, it should not have declined jurisdiction in accordance with F.L. § 9-207. Accordingly, we will address whether the trial court had jurisdiction pursuant to F.L. § 9-204, as Father contends on appeal. 3 Section 9-204 provides four alternative grounds for obtaining jurisdiction under the Uniform Act: (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 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 ¹⁰⁷ 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. Under the facts of the instant case, the pertinent provision is F.L. § 9-204(a)(2).

Father has lived in Maryland his whole life, with the exception of the period he studied in New York and in Switzerland. Jacob was born in Maryland and lived in Maryland for eighteen months. Although Jacob has lived in New York since then, he regularly visits Father, Father’s wife, with whom he has a close relationship, and his paternal grandparents. According to the Agreement, Jacob spends one weekend a month in Maryland, 4 four weeks throughout the year, and alternating holidays.

Over the course of his visits, Jacob has developed many friendships in Maryland. We conclude that the Circuit Court for Anne Arundel County had subject-matter jurisdiction under the Uniform Act. A circuit court could decline, however, under the Uniform Act, F.L. § 9-204(a)(c), in its discretion, to exercise its jurisdiction if it concludes that Maryland is an inconvenient forum, pursuant to F.L. § 9-207. Considering the factors set forth in ¹⁰⁸ F.L. § 9-207(c), the trial court in the case sub judice declined to exercise jurisdiction.

Section 9-207(e) provides (c) Factors in determination. — In determining if it is an