Garrett v. Garrett , 267 Ga. 356 ( 1996 )

477 S.E.2d 804 (1996) 267 Ga. 356

GARRETT
v.
GARRETT.

No. S96G0925.

Supreme Court of Georgia.

October 15, 1996. Reconsideration Denied December 5, 1996.^[*]

Terri A. Candler, Margaret Courtright, Weekes & Candler, P.C., Decatur, for Cynthia Wallace Garrett.

Nancy Finkel Lawler, Lawler & Tanner, P.C., Atlanta, Stephen E. Boswell, Jonesboro, T.J. Carnes, Carnes & Carnes, P.C., Albertville, AL, for Wayne H. Garrett.

CARLEY, Justice.

In March 1990, Ms. Cynthia Garrett and Dr. Wayne Garrett were married in Alabama and, in May 1991, their daughter was born in that state. In October 1991, Ms. Garrett and Dr. Garrett separated. The next month, Ms. Garrett and the child moved to Georgia, but Dr. Garrett remained a resident of Alabama. In January 1992, Ms. Garrett filed for divorce in Alabama. Neither Ms. Garrett's custody of the child nor Dr. Garrett's visitation rights with the child was a contested issue in the Alabama divorce proceeding. The final divorce decree was entered in April 1993 and was affirmed by the Alabama Court of Civil Appeals in April 1994. In June 1994, Ms. Garrett filed a petition in the Superior Court of Gwinnett County, invoking the "emergency" jurisdiction of that Georgia court for the purpose of seeking a modification of the Alabama divorce decree. According to the petition, Dr. Garrett's visitation rights should be modified because he had molested the child during one of her visits with him in Alabama. The Georgia court entered an ex parte order temporarily modifying Dr. Garrett's visitation rights. Thereafter, Dr. Garrett moved the Alabama court to cite Ms. Garrett for her alleged contempt of the visitation provisions of the Alabama divorce decree and, in July 1994, the Alabama court held that it had jurisdiction over the child custody issue. The Georgia court then dismissed Ms. Garrett's modification action, on the ground that the Alabama court had continuing jurisdiction over the child custody issue. Ms. Garrett's application for a discretionary appeal was granted by the Court of Appeals and the dismissal of her Georgia modification action was affirmed. According to the Court of Appeals, "Alabama law allows the assertion of continuing jurisdiction made by the Alabama court and ... the Georgia court did not err in dismissing the Georgia action." Garrett v. Garrett, 220 Ga.App. 172, 174, 469 S.E.2d 330 (1996). We granted Ms. Garrett's application for certiorari in order to determine whether the Court of Appeals correctly held that the Alabama court retained jurisdiction of the custody dispute.

1. The Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A, "limits when a state, which would otherwise have jurisdiction over a child custody dispute, may modify the custody order of another state...." Wilson v. Gouse, 263 Ga. 887, 890(2), 441 S.E.2d 57 (1994). Pursuant to section (f) of the PKPA, a court of one state can modify the child custody order of another state's court only if:

(1) it has jurisdiction to make such a child custody determination; and

(2) the court of the other [s]tate no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination. (Emphasis supplied.)

Accordingly, a Georgia court cannot modify the original Alabama child custody decree at issue in this case simply because it has the jurisdiction to do so. A Georgia court can modify that original Alabama child custody decree only if it has the jurisdiction to do so and the Alabama court either no longer has jurisdiction or has declined to exercise its jurisdiction.

It is clear that the Georgia court has jurisdiction to modify the original Alabama child custody order, since Georgia is now the "home state" of Ms. Garrett and the child. OCGA § 19-9-43(a)(1)(A). Therefore, resolution of this case is dependent upon whether the Alabama court has continuing jurisdiction to modify its original child custody order or has declined to exercise its continuing jurisdiction to do so. If the Alabama court has continuing jurisdiction to modify its original child custody order and has not declined to exercise that jurisdiction, then the PKPA limits the exercise of the Georgia court's jurisdiction to do so.

2. The PKPA provides that the Alabama court will not lose jurisdiction to modify its original child custody order so long as jurisdiction continues under its state's laws and Alabama remains the state of residence of the child or of either of her parents. Wilson v. Gouse, supra at 890(2), 441 S.E.2d 57.

By its express terms, § 1738A (d) establishes a two-prong test for determining whether the jurisdiction of a state court which has made a child custody determination consistent with the PKPA is continuing. Failure to satisfy either prong defeats a court's continuing jurisdiction.

Wilson v. Gouse, supra at 890(2), fn. 3, 441 S.E.2d 57. See also Ex Parte J.R.W., 667 So. 2d 74, 82 (Ala.1994) (applying the twoprong test in Alabama). One prong of the PKPA test for continuing jurisdiction clearly has been satisfied here, since it is undisputed that Dr. Garrett remains a resident of Alabama. Insofar as the other prong of the PKPA test is concerned, the Alabama court itself has determined that continuing jurisdiction exists under its state's laws. However,

such determination does not foreclose an inquiry into the [Alabama] court's jurisdiction by this court. Section 1738A(f) implicitly imposes upon a court an independent obligation to determine whether the state which made the initial child custody determination continues to have jurisdiction under its own jurisdictional laws. [Cits.]

Wilson v. Gouse, supra at 890-891(2), fn. 4, 441 S.E.2d 57. Nevertheless, the question of whether the Alabama court has continuing jurisdiction to modify its original decree is a question of Alabama law. Wilson v. Gouse, supra at 891(3), 441 S.E.2d 57 (Ohio law determines the continuing jurisdiction of the courts of that state over child custody).

Alabama is among those states which have enacted the Uniform Child Custody Jurisdiction Act (UCCJA). §§ 30-3-20 et seq. of Ala.Code of 1975. As enacted in Alabama, the UCCJA specifically provides that the courts of that state have modification jurisdiction so long as the child and at least one contestant have a "significant connection" with Alabama and there is "substantial evidence" available in Alabama regarding "the child's present or future care, protection, training, and personal relationships...." § 30-3-23(a)(2) of Ala.Code of 1975. Thus, if Alabama has continuing jurisdiction to modify its original child custody decree under this provision of its UCCJA and has not declined to exercise that jurisdiction, Georgia is limited under the PKPA from exercising its jurisdiction to modify that decree. This is true without regard to whether Georgia also may have a "significant connection" as the current "home state" or whether "substantial evidence" likewise may be available here. OCGA § 19-9-54(a).

In construing that provision of the UCCJA which is comparable to § 30-3-23(a)(2) of the Alabama Code of 1975,

[i]t appears that the majority of appellate courts ... hold that the state in which the initial decree was entered has exclusive continuing jurisdiction to modify the initial decree if: (1) one of the parents continues to reside in the decree state; and (2) the child continues to have some connection with the decree state, such as visitation. (Emphasis in original.)

Greenlaw v. Smith, 123 Wash.2d 593, 869 P.2d 1024, 1031 (1994). Accordingly,

"[a]lthough the new state becomes the child's home state, significant connection jurisdiction continues in the state of the prior decree where the court record and other evidence exists and where one parent or another contestant continues to reside. Only when the child and all parties have moved away is deference to another state's continuing jurisdiction no longer required." [Cit.].... "The jurisdiction of [the decree] state ... continues and is exclusive as long as [one contestant] lives in [the decree] state ... unless he [or she] loses contact with the children, for example, by not using his [or her] visitation privileges for three years." [Cit.]

Greenlaw v. Smith, supra at 1030-1031. See also McDow v. McDow, 908 P.2d 1049 (Alaska 1996); Kumar v. Superior Court of Santa Clara County, 32 Cal. 3d 689, 186 Cal. Rptr. 772, 652 P.2d 1003 (1982). It appears that Alabama, unlike Ohio, subscribes to this majority rule, whereby the courts of that state have continuing jurisdiction over custody matters so long as one parent has remained an Alabama resident and has continued to exercise child visitation rights in that state.

Alabama courts have "continuing preferred" jurisdiction over custody matters if the initial custody determination was entered with proper jurisdiction and either the child or either parent continues to reside in Alabama. [Cit.]

Lyon v. Lyon, 618 So. 2d 127, 129 (Ala.Civ. App.1993). See also Ex Parte J.R.W., supra at 82 (wherein Lyon, supra, and Kumar, supra, are cited with approval). Accordingly, under Alabama law, the jurisdiction of that state's court would continue in this case, because the exercise of child visitation rights awarded by the Alabama court to Dr. Garrett results in a "significant connection" between that state and the child and "substantial evidence" exists in Alabama as to whether those child visitation rights awarded to Dr. Garrett should be modified because of the manner in which he is alleged to have exercised those rights in that state. This Court's decision in Wilson v. Gouse, supra, is totally consistent with, but factually distinguishable from, this case. In Wilson, we held that the Ohio court did not retain jurisdiction because: Ohio law, unlike Alabama law, provides that visitation with a resident parent does not establish a "significant connection" with that state; and, most of the relevant modification evidence was not to be found in Ohio. It follows that the Court of Appeals correctly held that Alabama law allows the assertion of continuing jurisdiction made by the Alabama court in this case.

3. There is no constitutional infirmity in the interpretation of the Alabama law so as to permit the courts of that state to exercise continuing jurisdiction under the circumstances which exist in this case. Goldfarb v. Goldfarb, 246 Ga. 24, 268 S.E.2d 648 (1980). See also OCGA § 19-9-53; Youmans v. Youmans, 247 Ga. 529, 531, 276 S.E.2d 837 (1981); Yearta v. Scroggins, 245 Ga. 831, 832, 268 S.E.2d 151 (1980). Since the courts of Alabama have continuing jurisdiction and have not declined to exercise that jurisdiction, the PKPA limits the exercise of the Georgia court's jurisdiction to modify the original Alabama child custody decree. It follows that the Court of Appeals correctly affirmed the trial court's dismissal of Ms. Garrett's modification action.

Judgment affirmed.

All the Justice concur.

NOTES

[*] Editor's Note: Justice Hunstein's December 5, 1996 opinion specially concurring on reconsideration will be separately published later. See 478 S.E.2d 584.