Family Law Prof Blog

Case Law Development: Jurisdiction to Enforce Child Support Orders

The Ohio Court of Appeals traces issues of jurisdiction over child support orders in a case involving a Mother seeking to enforce child support orders from Puerto Rico in the Ohio courts. 

Mother had registered and sought to enforce an order of support and for arrearages issued by the court in Puerto Rico. The entire family had lived in Puerto Rico, where the original child support ordered had been issued in 1971.  After the divorce, all the parties had moved to New York. The court noted that, at that point, New York had effectively obtained exclusive and continuing jurisdiction. Thus the Puerto Rican court was without jurisdiction to have issued an arrearage judgment at that time.  However, Mother subsequently moved back to Puerto Rico with child.  Thereafter, the court had jurisdiction to issue a new support order for the child's prospective care. The court held that, although Puerto Rico did not have jurisdiction to enforce the 1971 support order for arrears that accrued after New York obtained jurisdiction, it did have jurisdiction to enter a support order for the prospective care of the child. 

Thus, the trial court's judgment regarding the registration of the Puerto Rico support order concerning the child's prospective care was affirmed. However, the trial court's order which enforced Puerto Rico's attempt to collect the arrears stemming from the 1971 order was vacated, and the case was remanded for recalculation of arrears that accrued from 1971 until 1976.

Cruz v. Cumba-Ortiz, 2006 Ohio 1362, 2006 Ohio App. LEXIS 1230 (March 23, 2006)

Case Law Development: Tribal Court Has Jurisdiction over Child Dependency Case Even if Court Has Not Been Approved through Department of the Interior

The California Court of Appeals affirmed the transfer of a juvenile dependency proceeding to a tribal court pursuant to the Indian Child Welfare Act, even thought the Secretary of the United States Department of the Interior had not approved its tribal court. The court noted that Section 1911(b) of the ICWA creates "concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of 'good cause,' objection by either parent, or declination of jurisdiction by the tribal court."  The Department argued that 25 U.S.C. 1918 required the tribal court of obtain approval of the Department in order to assume jurisdiction over child custody cases, however, the court noted that the procedure contemplated by that statute was necessarily only if the tribal court sought to assert exclusive jurisdiction over these cases.

In re M.A., Coming Under the Juvenile Court Law, 2006 Cal. App. LEXIS 317 (March 9, 2006)
Opinion on the web (last visited March 9, 2006 bgf)

Case Law Development: Dueling Jurisdiction Between Enforcing State and Modifying State under UCCJEA

In the present case, although the record is clear that the child and her parents do not have significant contacts with the state of Florida, nevertheless, pursuant to [*11]  the analysis applied in Yurgel and Lamon, Florida is the state where the initial custody order was entered at a time when all parties resided in the state; it was the state where the custody modification was entered, and where the modification order was reversed. Moreover, the only reason the child was in the state of The Florida Court of Appeals takes a march through the UCCJEA in a case in whioh Mother lived in Massachusetts, Father and Child lived in Tennessee, but the original custody order was rendered in Florida and Florida had retained jurisdiction over the action.  The case provides a relatively clear factual pattern for teaching application of the UCCJEA provisions regarding competing jurisdictional bases. 

The sequence of events in the case are:
2000 - Florida - judgment of dissolution gave Wife primary residential custody of Child. Father files a petition for modification of custody and to relocate Child with him to Tennessee.
2002 - Florida court grants Mother permission to move with the child to Massachusetts.
2004 - Florida grants Father's petition for modification of custody.  Mother appeals but sends child to live with Father in Tennessee.
2005 - Florida Court of Appeals reverses judgment of modification. Father responds by filing suit in Tennessee for order granting him custody.  Father argues that Tennessee has become the child's home state because she had been residing with him there for the prior year, during the pendency of the appeal in Florida.

The story from there on is a series of conflicting orders in both the Tennessee and Florida trial courts.

The Florida Court of Appeals sorts out the matter by noting that, while the Tennessee court was looking to provisions of the UCCJEA providing jurisdiction to modify a custody determination based on Tennessee having become the child's home state, the trial court had overlooked the enforcement provisions of the act providing that, because Florida had retained continuing jurisdiction to enforce its orders, Tennessee could not exercise jurisdiction to modify the custody order unless Florida had terminated or stayed its own proceeding.

Staats v. McKinnon, 2006 Fla. App. LEXIS 2677 (February 27, 2006)

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Supreme Court To Hear Subject Matter Jurisdiction Arguments Tuesday in the Anna Nicole Smith Case

The United States Supreme Court will hear arguments Tuesday in the legal fight over the fortune of oil entrepreneur J. Howard Marshall II between the one-time Playboy Playmate of the Year, Vickie Lynn Marshall, a/k/a Anna Nicole Smith, and 67-year-old E. Pierce Marshall, the deceased’s billionaire's youngest son.  Smith and Marshall married in 1994 in Houston when she was 26 and he was 89. Smith died just 14 months later. The narrow question before the court is whether a federal court has subject matter jurisdiction to hear a dispute involving state probate matters. (reo)   You may download Petitioner's Brief in Case 04-1544_Here.pdf  You may download Respondent's Brief in Case 041544_Here.pdf

Case Law Development: Recognition of Custody Orders of Foreign Countries Required

The Massachusetts Supreme Court holds that a trial court must respect the custody determination of a foreign state so long as that judgment is procedurally comparable to a domestic judgment.  The  child in this action was born in Trinidad, West Indies and was residing in Boston with Mother.  Father, who lives in Trinidad, filed a petition in the Massachusetts court to enforce a Trinidad consent decree that awarded the mother physical custody of the son, but prohibited either parent from taking the son out of Trinidad, except by agreement of the other parent or by court order. The Massachusetts Supreme Court affirmed the trial judge's order for enforcement of the Trinidad consent decree.

The court concluded that both under Massachusetts statutes regarding enforcement of foreign custody orders and under principles of comity, the court was required to respect the foreign order because it was in "substantial conformity" with Massachusetts law.  The "substantial conformity" test, requires proof that the foreign court had jurisdiction over the parties and over the subject matter; applied procedural and substantive law reasonably comparable to Massachusetts law; and was based on a determination of the best interests of the child.  Finding that the Trinidad court met these requirements, the court could not look further to examine the substance of the underlying order.

Khan v. Saminni, 2006 Mass. LEXIS 33  (February 15, 2006)
Opinion on the web (last visited February 23, 2006 bgf)

Case Law Development: New Hampshire Husband's Divorce of Wife under Islamic Law Did Not Deprive State Court of Jurisdiction to Grant Divorce

The New Hampshire Supreme Court affirmed the trial court's divorce in this action in which Husband claimed he had already divorced his wife under his country's law.  The couple were married in Lebanon in 1986 and lived for considerable periods in both the United States and the Middle East during their marriage.  Husband claims that on the day before Wife filed for divorce in New Hampshire, he initiated a divorce under Islamic law by declaring "I divorce you" three times in succession in the presence of the petitioner and that he telephoned an attorney in Lebanon on the same day and declared, with two witnesses listening, that he had divorced his wife.  Thus, he argued the New Hampshire court lacked jurisdiction.

New Hampshire statutes provide that a “divorce obtained in another jurisdiction shall be of no force or effect in this state . . . if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.”  The court of appeals concluded that this statute applied to foreign divorces as well and that, because both parties were domiciled in New Hampshire when the action was commenced, the trial court did not err in refusing to dismiss the divorce petition for lack of subject matter jurisdiction.  The court likewise rejected Husband’s argument that dismissal was required by principles of comity, noting that comity is a discretionary doctrine and that, given that the parties and their children had been domiciled in New Hampshire for at least the past three years and the considerable burdens that Wife would have to bear in going to Lebanon to obtain a divorce, public policy dictated that the New Hampshire court retain jurisdiction.

In re Ramadan, 2006 N.H. LEXIS 15 (February 14, 2006)
Opinion on the web (last visited February 23, 2006 bgf)

Case Development: Home State Jurisdiction under the UCCJEA

The Supreme Court of Montana interpreted its version of the UCCJEA so as to emphasize the priority of home state jurisdiction in custody disputes.  The dispute involved Mother and children, who had lived in Arkansas from 2002 to May 2005.  They had then moved to Montana for the next three months. Father filed a petition for custody in August 2005.  Mother argued that Arkansas remained the children's home state, so that Montana did not have jursidiction.  The District Court accepted Father's interpretation of the statute that requires that the children live in the state "for at least 6 consecutive months immediately before the commencement of a child custody proceeding." Under their interpretation, since the children had not lived in any state for six consecutive months immediately before the custody suit was filed, there was no home state and jurisdiction should be determined by a hearing to determine whether the children had a significant connection with Montana existed and whether other factors favored Montana's assertion of initial jurisdiction.  Mother filed for a writ of prohibition, which the supreme court granted.

The Supreme Court held that "home state for purposes of determining initial jurisdiction under [Montana custody statutes} is not limited to the time period of '6 consecutive months immediately before the commencement of a child custody proceeding.' The applicable time period to determine 'home state' in such circumstances should be 'within 6 months before the commencement of the [child custody] proceeding.'...This interpretation promotes the priority of home state jurisdiction that the drafters of the UCCJEA specifically intended."

Stephens v. Fourth Judicial Dist. Court, 2006 MT 21 (January 31, 2006)
Opinion available on the web (last visited February 4, 2006 bgf)

Case Development: Trial Court Jurisdiction to Dissolve Judgments Arising out of Divorce Actions

The Florida Court of Appealsaddressed issues of jurisdiction and laches in an action to enforce a judgment arising out of divorce.  The action by Husband was based on a money judgment he had obatined against wife in 1994 for $ 7810.66 for overpayment of support. In 2004, with the judgment having grown to $18,000 with interest, Husband re-recorded the judgment and began collection proceedings, including and action to garnish Wife's wages.  In response, Wife filed a motion to dissolve Husband's judgment based on laches.  The trial court granted the motion to dissolve the judgment.

The court of appeals reversed, holding that the trial court lacked jurisdiction to dissolve the judgment.  While agreeing that divorce courts have continuing jurisdiction to modify child support, child custody, and alimony provisions, as to all other judgments, the trial court loses jurisdiction over the case except to enforce the judgment  or to dissolve the judgment under the narrow ground provided by Florida rules of civil procedure. Since laches is not such a grounds, the court had no jurisdiction to dissolve Husband's action.  Moreover, the court commented that even if the court had jurisdiction and even if laches were an affirmative ground for dissolving a judgment, Wife had not proven laches as she had shown no evidentiary or financial prejudice.  That husband had waited over ten years to enforce the judgment, at a time when wife was less able to afford to pay, was insufficient proof of laches.

Baker v. Baker, 2006 Fla. App. LEXIS 1267  (February 3, 2006)
Opinion available on the web (last visited February 4, 2006 bgf)

Alaska Wins Right to Set Child Support In Dispute Over Tribal Sovereignty

The Alaska Supreme Court upheld a 2001 state Superior Court decision affirming the state's right to determine child support in a custody battle involving the Native village of Northway. The ruling is the latest decision in the ongoing tribal sovereignty issue over the jurisdiction of tribal courts. The state has long argued that the rights of tribes to govern their members was limited in scope. While the decision, gave some support to the state's view,  it did not completely resolve the issue. The Supreme Court had ruled in 1999 that the Native village of Northway, as a federally recognized tribe, had jurisdiction over child custody cases.  Source:  R.A. Dillon, Fairbanks Daily News-Miner, news-miner.com. For the complete story, please click here (last visited December 31, 2005, reo).  The Slip Opinion in this case, John v. Baker, may be found here.

Case Law Development: Personal Jursidiction under UIFSA Based on "Acts and Directives" of Non-resident Parent

The Ohio Court of Appeals interpreted its Uniform Interstate Family Support Act ("UIFSA") which allows a court to exercise personal jurisdiction over a non-resident parent when the children are present in the state as a result of the "acts and directives" of the non residential parent.

The court reviewed a number of cases from other jurisdictions intepreting this provision and concluded that "where there is a pattern of abuse or harassment, the resident parent will be considered to have fled as a result of the 'acts and directives' of the non residential parent and, as such, personal jurisdiction is appropriate under the UIFSA statute."  However, in this case, the trial court had not only ordered custody and support under the authority of that act, but also had granted a divorce and split the marital property.  The appellate court thus reversed and remanded, holding that UIFSA grants a trial court jurisdiction limited to the exact language of the act.  Thus “the trial court had no authority to grant a decree of divorce or to make a division of property.”

Sneed v. Sneed, 2005 Ohio 6413, 2005 Ohio App. LEXIS 5776 (December 5, 2005) Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/3/2005/2005-ohio-6413.pdf (last visited December 9, 2005 bgf)

New Hampshire Judges May Be Required to Make Detailed Findings in Custody Cases

Under a bill under consideration by the New Hampshire Legislature, Judges would be required to explain in writing what evidence they used in making child custody decisions. The House Children and Family Law Committee voted unanimously to support the amended bill last week after months of deliberations and heated exchanges between father's rights groups and advocates for children and domestic abuse victims. The decision must be based on a preponderance of the evidence and be in writing. The legislation will go to the House floor in January, and if it passes, will move on to the Senate. Source. Associated Press, seacoastonline.com. For more information, please click here (last visited November 20, 2005, reo).

Ontario May Bar Faith-Based Tribunals From Formally Settling Family Law Disputes

Ontario families may no longer be able to turn to a religious tribunal to settle disputes such as divorce and child custody cases if new legislation introduced Tuesday by Attorney General Michael Bryant becomes law.  “When it comes to family law arbitrations in this province, there is only one law for Ontario- Canadian law," Bryant told the legislature to cheers from his Liberal colleagues.  People still would be free to seek a resolution of family disputes from religious leaders, but Bryant said it would amount to "advice only" and would not be enforceable by the courts. The legislation is the first time the government has officially acknowledged Premier Dalton McGuinty's surprise statement to The Canadian Press last September that he would stop all religious arbitrations from having the force of law in Ontario . Some Jewish and Muslim groups have vowed to fight to keep the faith-based tribunals, and complained they had no input before McGuinty's surprise announcement last September. Source. Keith Leslie, The Canadian Press, news.yahoo.com. For the complete story, please click here (last visited November 16, 2005, reo).

Case Law Development: UCCJEA Jurisdiction When Child and Primary Custodial Parent Move to Another State

The Arkansas Supreme Court held that it had continuing and exclusive jurisdiction over a custody action even though Mother, who had been granted the sole authority to determine the children's residence, had moved to Oregon and had been living there for three years prior to Father's motion to modify. The children's connection with Arkansas were their court-ordered vacation-time visitation with Father and Father's family.  The court reviewed a number of UCCJEA cases from other jurisdictions and found that 12 weeks annually of visitation with Father was sufficient connection for the court to retain jurisdiction. 

West v. West, 2005 Ark LEXIS 662 (November 3, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20051103/04-393.html (last visited November 7, 2005 bgf)

Judge Splits Jurisdiction of Custody and Financial Issues Between Two States

Wife filed for divorce in New York, where case law would entitle her to an interest in her husband's medical degree. Husband filed for divorce and custody of the children where they live - Ohio - which has jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act.  In an action brought by wife to enjoin husband's suit, the New York judge ruled that the two interests are not necessarily irreconcilable.

In New York, the medical degree would be considered marital property, under O'Brien v. O'Brien. But not so in Ohio.  "The wife suggests that the husband's challenge to her request for custody is insincere," Drager wrote. "The husband does not - and cannot - dispute the fact that he has spent relatively little time with the children since he left the marital residence." However, under the Uniform Child-Custody Jurisdiction and Enforcement Act, the New York court does not have jurisdiction to resolve the custody dispute because "New York was not the home state of the children at or within six months prior to the commencement of the New York Action," according to Drager. Therefore, like Solomon, Drager decided to slice the prize in half. The child custody issue will remain in Ohio, but the remainder of the divorce proceeding, including the distribution of property, will be heard in New York.

For more information please click here (last visited November 3, 2005 bgf)

Case Law Development: For Service by Publication to Give In Rem Jurisdiction to Divorce Court, Property Must Be Specifically Described

Teaching the somewhat dry and technical requirements of jurisdiction in the family law class can often be challenging against the backdrop of the more colorful cases the course provides.  Often a good horror story can wake up the students to the importance of getting jurisdiction right.  Here's a Missouri short story on in rem jurisdiction in divorce actions that, at least an attorney who gets it wrong, would be a tale of terror:

Husband and Wife separate, and after three years, Husband files for divorce.  He serves Wife by publication.  Court grants a default judgment of divorce and awards Husband title to property the couple had owned as tenants by the entirety. 

Time passes.  Husband dies, leaving his daughter (who is not Wife's daughter) as his heir. Wife reappears, discovers the default judgment and brings suit to quiet title to the land, asserting that Husband's failure to specifically describe the property in his service by publication rendered the divorce court without jurisdiction to adjudicate title to the property.  Trial court agrees and grants Wife fee simple title to the property.  The Court of Appeals affirms. 

Assuming Husband was represented by counsel in the divorce action, one might presume attorney is checking with his insurance carrier.

Miller v. Jonesburg State Bank, 2005 Mo. App. LEXIS 1555 (October 25, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/322cc63d5b8d1be2862570a4005308a5?OpenDocument (Last visited October 28, 2005 bgf)

Case Law Development: Jurisdiction and Parentage Decision in Surrogacy Contract Situations

The Ohio Court of Appeals needed to unweave the tangled web of assisted reproduction and jurisdiction in this case involving three parents, from three different states, each claiming to be the legal parent of triplets.  The case has made some news simply because the story is so intriguing. For law professors, this would make a great case study to help the students trace through the provisions of the UCCJA and PPKA and differentiate parentage determinations from custody decisions.

Rice v. Flynn, 2005 Ohio 4667; 2005 Ohio App. LEXIS 4205 (September 7, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/9/2005/2005-ohio-4667.pdf
(last visited September 9, 2005)

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Case Law Developments: Jurisdiction of Court to Assign Veteren's Disability Payments in Divorce Decree

The Virginia Court of Appeals bars collateral attack of a divorce decree incorporating an agreement to assign veteren's disability benefits.

Winfree v. Winfree, 2005 Va. App. LEXIS 330 (August 30, 2005)
Text of opinion on web at http://www.courts.state.va.us/opinions/opncavtx/2391043.txt

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