Potter v. Rosas , 111 N.H. 169 ( 1971 )

111 N.H. 169 (1971)

STEPHEN F. POTTER
v.
HERMINE S. (POTTER) ROSAS.

No. 6186.

Supreme Court of New Hampshire.

April 30, 1971.

William D. Paine II (by brief and orally) for the libelant.

Shaines, Madrigan & McEachern and John H. McEachern (Mr. McEachern orally) for the libelee.

GRIFFITH, J.

On a petition to modify a decree of divorce and custody brought by the libelant the libelee's motion to dismiss for lack of jurisdiction was denied by Loughlin, J., who reserved and transferred libelee's exception.

The dispute here relates to the custody to Mireille Potter, child of the parties, who was born in Moetsch near Bitburg, Rheinland-Pfalz, Germany on November 21, 1962. In 1968, when the original divorce action was begun, both libelant and libelee were domiciled in New Hampshire but Mireille, their only child, was living with Mrs. Gean Frising in Schifflang, Luxembourg. It appears that in 1964 Mrs. Frising was visiting her sister Hermine S. Potter in New Hampshire and it was agreed she should take Mireille home to Luxembourg with her. The child has remained in Luxembourg since that time.

A divorce was decreed to Stephen F. Potter, October 1, 1968. A stipulation signed by the parties was adopted by the court in its decree. This decree gave custody of the minor child to Hermine S. Potter but recognized the foreign residence of the child, with a provision for support to be effective when the child was returned to this country. Both parties have remarried since the divorce and Hermine S. Potter, now Rosas, has resided in California since the divorce.

The present petition was brought by Stephen F. Potter a resident of Conway alleging that Hermine who was awarded custody of Mireille has not had the child with her since 1965. He further claims that he has been unsuccessful in his efforts to secure the return of Mireille from Luxembourg and seeks modification of the prior decree to give custody of the child to him.

Hermine S. (Potter) Rosas the libelee entered a special appearance and moved to dismiss the petition on the grounds that this court had no jurisdiction.

In the present situation with the libelee now domiciled in California, the libelant here and the child in Luxembourg, only Luxembourg or New Hampshire has potential jurisdiction in the case. Libelee's position assumes that only Luxembourg, where the child is physically present, has that jurisdiction.

Initially both parents were domiciled in New Hampshire and the court had jurisdiction to award custody even though the child was not present in the State. White v. White, 77 N.H. 26, 86 A. 353 (1913); Annot., 9 A.L.R.2d 434, 442 (1950). This jurisdiction was a continuing one and the original order of the court is subject to modification upon petition of either party. Vezina v. Vezina, 95 N.H. 297, 62 A.2d 756 (1948); Athorne v. Athorne, 100 N.H. 413, 419, 128 A.2d 910, 914 (1957); Veilleux v. Hastings, 109 N.H. 568, 258 A.2d 359 (1969).

It does not appear that Luxembourg has ever exercised jurisdiction in this case although the presence of the child there would permit them to do so. Sheehy v. Sheehy, 88 N.H. 223, 186 A. 1 (1936). Libelee's position, which assumes that only one state or country has jurisdiction to determine custody, is not supported by modern authorities. Jurisdiction may rest in "any of three places: (1) the domicile of the child, (2) where the child is physically present in the state, and (3) where the parties claiming custody are personally before the court regardless of the presence or domicile of the child." Leflar, American Conflicts Law s. 245, at 587 (1968 ed.); Sampsell v. Superior Court, 32 Cal. 2d 763, 197 P.2d 739 (1948); Restatement (Second) of Conflict of Laws s. 79 (Proposed Official Draft 1967).

The majority opinion in Application of Enke, 129 Mont. 353, 287 P.2d 19 (1955), relied upon by libelee, supports her contention that jurisdiction is exclusive with the forum where the child is physically present. We do not accept this exclusive jurisdiction approach nor do we agree with libelee's argument that Sheehy v. Sheehy, 88 N.H. 223, supports this view. The Sheehy case recognized the jurisdiction of the New York court to amend a custody order when the child was in New Hampshire and limited the jurisdiction of our court to changes in circumstances subsequent to the New York order.

The fragility of custody orders exported to other states or countries having potential jurisdiction to modify them (see Turner v. Turner, 86 N.H. 463, 169 A. 873 (1934)) does not warrant the denial of a forum in this state which has jurisdiction over the parents and has already made a decree as to custody. Indeed the mobility of modern life has led courts to provide a forum they would otherwise deny. See Wilburn v. Wilburn, 192 A.2d 797 (D.C. Ct. App. (1963)); Annot., Forum Non Conveniens — Marital Disputes, 9 A.L.R. 3d 545 (1966). In the present case where jurisdiction can lie only in Luxembourg and here, and Luxembourg has chosen not to exercise it, we are required to furnish the forum. Van Dam v. Smit, 101 N.H. 508, 509-10, 148 A.2d 289 (1959). The court may determine that the best interests of the child dictate that custody be awarded to Mrs. Gean Frising in Luxembourg and, if she consents, may so order (Butler v. Butler, 83 N.H. 413, 143 A. 471 (1928)), or it may limit its determination to the parties presently before it.

The libelee claims that the petition for modification does not set forth facts alleging any change of circumstances which would require a change in custody. The petition sets forth the nature of the dispute and alleges remarriage of the plaintiff and establishment of a home in New Hampshire. This is sufficient to enable a court to determine the controversy. Lester v. Lester, 109 N.H. 359, 360, 252 A.2d 429, 431 (1969); Stone v. Stone, 111 N.H. 167, 276 A.2d 924 (1971).

Exception overruled; remanded.

All concurred.