Walter Paul Benda v. Yoko Mizuno ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
WALTER PAUL BENDA
MEMORANDUM OPINION *
v. Record No. 2551-96-3 PER CURIAM
SEPTEMBER 2, 1997
YOKO MIZUNO
FROM THE CIRCUIT COURT OF WYTHE COUNTY
J. Colin Campbell, Judge
(Trenton G. Crewe, Jr., on brief), for
appellant.
(Frank West Morrison; Leslie S. Phillips;
Phillips & Morrison, on brief), for appellee.
Walter Paul Benda (father) appeals from an order of the
circuit court granting the motion of Yoko Mizuno (mother) to
dismiss the father's petitions for custody of their children.
The order states that the petitions were dismissed "due to a lack
of jurisdiction." Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
The record establishes that mother appeared specially by
counsel. The parties substantially agreed upon a proffer of
evidence, including the facts that the parties separated in 1995
while they were residing in Japan. The children were born in
Minnesota and went to Japan with their parents in 1992 due to the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
father's employment. The children were in Virginia for visits
several weeks in December 1993 and 1994. The father's parents
reside in Virginia.
Documents accepted as exhibits at trial establish that the
mother applied for a Virginia driver's permit in December 1994
and listed Max Meadows, Virginia as her residence. An
application for a U.S. Immigration and Naturalization Service
travel document indicates that the parties resided in Japan and
had a post office box in Max Meadows, Virginia. However, that
same application dated January 1995 contains the following
statement by the mother.
My husband is currently employed in Japan.
We still own our home in Minnesota and expect
to return sometime within the next 2 years.
The check submitted with the application contains the parties'
names and a Minnesota address.
The father contends that Code § 20-126 confers jurisdiction
in the Virginia circuit court. The Virginia Uniform Child
Custody Jurisdiction Act, codified at Code §§ 20-125 through
20-146, was enacted, in part, for the following purposes:
[T]o avoid jurisdictional competition and
conflict with courts of other states in
matters of child custody; to promote
cooperation with courts of other states so
that a custody decree is rendered in a state
which can best decide the issue in the
interest of the child; to assure that
litigation over the custody of a child
ordinarily occurs in the state that is most
closely connected with the child and his
family and where significant evidence
concerning his care, protection, training and
personal relationships is most readily
2
available; [and] to assure that the courts of
this state decline the exercise of
jurisdiction when the child and his family
have a closer connection with another state
. . . .
Middleton v. Middleton, 227 Va. 82, 93, 314 S.E.2d 362, 367
(1984) (citing the prefatory note to the Model Act, 9 U.L.A. 111,
116-17 (1979)). Pursuant to those goals, the statute provides
that Virginia has jurisdiction over questions of custody if any
one of four possible bases exist. Code § 20-126.
The father concedes that Code § 20-126(A)(1) does not apply,
because Virginia was not the home state of the children. The
father contends, however, that jurisdiction exists under each of
the remaining three subsections of Code § 20-126. We disagree.
Under Code § 20-126(A)(2), Virginia has jurisdiction if
[i]t is in the best interest of the child
that a court of this Commonwealth assume
jurisdiction because (i) the child and . . .
parents, or the child and at least one
contestant, have a significant connection
with this Commonwealth and (ii) there is
available in this Commonwealth substantial
evidence concerning the child's present or
future care, protection, training, and
personal relationships . . . .
The father argues that the children have significant connection
with Virginia. However, the trial judge found that "the children
have had very little contact with Wythe County, Virginia . . . ."
The evidence proved that the children were born in Minnesota.
The father conceded at trial that the children have been in
Virginia only twenty-two days since November 1992. The children
have not been in Virginia since December 1994 and were in Japan
3
when the father returned to Virginia in November 1995. Moreover,
all the current information concerning the children is in Japan.
Therefore, the trial judge did not err in rejecting subsection
(A)(2) as a basis for Virginia to exert jurisdiction.
The father also asserts jurisdiction in Virginia under the
emergency provision of Code § 20-126(A)(3). That subsection
grants Virginia jurisdiction as follows:
The child is physically present in this
Commonwealth 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 . . . .
The children were not present in Virginia. The trial judge found
that fact determinative in ruling that father failed to prove
jurisdiction under this section. 1 Moreover, the father presented
no evidence to support his allegation that the children were
abandoned or neglected.
Finally, the father asserts that jurisdiction exists under
subsection (A)(4). That subsection provides for jurisdiction in
Virginia as follows:
(i) It appears no other state would have
jurisdiction under prerequisites
substantially in accordance with subdivision
1, 2, or 3 of this subsection, or another
state has declined to exercise jurisdiction
on the ground that this Commonwealth is the
1
Although Code § 20-126(C) provides that "[p]hysical
presence of the child, while desirable, is not a prerequisite for
jurisdiction," the emergency jurisdiction set out in subsection
(A)(3) is expressly limited to instances when the child is found
within the Commonwealth.
4
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.
The trial judge found that the matter was pending before a
Japanese court which had jurisdiction over the question of
custody. The international nature of this custody dispute does
not dilute the jurisdictional requirements. The statute
expressly provides that "[t]he general policies of this chapter
extend to the international area." Code § 20-146. The trial
judge correctly ruled that the father bore the burden to prove
his rights would not be protected by the Japanese courts. The
father failed to meet that proof.
In summary, the evidence proved that the parties lived
together as a family in Japan from November 1992 through the
summer of 1995. The children have virtually no ties with
Virginia, except through visits to their father's family. The
father was served with notice of the mother's custody proceedings
while he was in Japan, and, in fact, sought a continuance. We
find no error in the trial judge's ruling dismissing husband's
custody petitions.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
5