Cabrera v. Mercado

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
CONSOLIDATED CASES
Nos. 1304 & 2393
September Term, 2015
SUGHEIL CABRERA
v.
NELSON MERCADO
Krauser, C.J.
Berger,
Leahy,
JJ.
Opinion by Leahy, J.
Filed: September 28, 2016
This appeal concerns a marriage gone wrong, allegations of abuse, and an infant
who was taken by one parent to live in another state without the other parent’s knowledge
or consent. The circumstance is one that the federal Parental Kidnapping Prevention Act
(the “Parental Kidnapping Statute”), 28 U.S.C. § 1738A (2012), and the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Maryland Code
(1984, 2012 Repl. Vol.), Family Law Article (“FL”), § 9.5-101 et seq., were enacted to
prevent.1
A.M.C.2 was born in June 2014 to Appellant Sugheil Cabrera and Appellee Nelson
Mercado—a married couple living in Rockville, Maryland. Four months later, Ms.
Cabrera filed a petition for a protective order against Mr. Mercado in the District Court of
Maryland. The district court issued a temporary protective order (“TPO”) granting
temporary custody of A.M.C. to Ms. Cabrera, with visitation to Mr. Mercado. At Ms.
Cabrera’s prompting, the parties asked the court to postpone the scheduled merits hearing,
and meanwhile, Mr. Mercado’s visits with his son continued every other day without any
1
See generally Anne B. Goldstein, The Tragedy of the Interstate Child: A Critical
Reexamination of the Uniform Child Custody Jurisdiction Act and the Parental Kidnaping
Prevention Act, 25 U.C. Davis L. Rev. 845 (1992). These statutes sought to prevent the
quasi-accepted practice of “child snatching” in which a parent unilaterally moves with their
child to another jurisdiction in an attempt to obtain a favorable custody determination in
that jurisdiction. Christine L. Jones, The Parental Kidnaping Prevention Act: Is there New
Hope for a (Limited) Federal Forum?, 18 Temp. Pol. & Civ. Rts. L. Rev. 141, 147 (2008).
This practice arose because “[a] given interstate custody dispute could be brought in the
courts of more than one state. The states frequently ignored one another’s custody
decisions. Thus, custody litigants, by moving from state to state, could avoid unfavorable
orders.” Goldstein, supra, at 864.
2
In this case, we will refer to the parties’ minor child by these initials.
1
problems.
When Mr. Mercado and his attorney appeared at the merits hearing, they learned
that Ms. Cabrera had sent her attorney to dismiss the case without explanation. Soon after,
they discovered Ms. Cabrera had fled to Puerto Rico—with A.M.C.
On the very day her attorney dismissed the case in Maryland, Ms. Cabrera filed a
complaint for custody in the superior court in Puerto Rico. In response, Mr. Mercado
quickly filed a complaint for custody and divorce in the Circuit Court for Montgomery
County. These filings unleashed a jurisdictional battle over the custody of A.M.C.
between the parents, and between the states3 in which they now reside.
Although several custody and affiliated orders have been entered in both Puerto
Rico and in Montgomery County, Maryland, this appeal brought by Ms. Cabrera springs
mainly from the final custody order entered in favor of Mr. Mercado in the Circuit Court
for Montgomery County.4 Central to the issues Ms. Cabrera raises on appeal is the question
of jurisdiction over A.M.C. under the UCCJEA and the Parental Kidnapping Statute.
We hold that Maryland is the child’s “home state” under both statutes, and that
Maryland already made the initial custody determination by the time Ms. Cabrera filed her
complaint in Puerto Rico. Accordingly, the circuit court did not err or abuse its discretion
3
The UCCJEA defines a “state” as “a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular
possession subject to the jurisdiction of the United States.” FL § 9.5-101(p).
4
Ms. Cabrera actually filed three notices of appeal, but a full recitation of the
procedural history in the introduction of this opinion would constitute a Sisyphean task.
2
in entering an emergency temporary custody order or a final custody order in Mr.
Mercado’s favor.
BACKGROUND
A. Dismissal of Petition for Protective Order
Ms. Cabrera and Mr. Mercado5 were married on December 12, 2013 in Rockville,
Maryland. The couple resided in Clarksburg, Maryland, and both were employed at the
National Institutes of Health (“NIH”) in Rockville, Maryland.6 Their only child, A.M.C.,
was born on June 21, 2014.
On October 25, 2014, Ms. Cabrera petitioned the District Court of Maryland in
Montgomery County for a protective order—for herself and A.M.C.—against Mr.
Mercado. In the petition, Ms. Cabrera claimed that she “feared for [her] safety” and that
Mr. Mercado was “threatening, harassing and intimidating [her] for some time now[,] and
it has become a pattern . . . .” She further alleged that Mr. Mercado had displayed a pattern
of obsessive activity, that she felt “stalked and harassed,” and that he had been tracking her
activities. Specifically, Ms. Cabrera described two incidents that she claimed occurred on
October 24 and 25, 2014:
This morning while I as leaving the house my husband blocked my
entrance[.] Also while I was putting the baby in the carseat[,] he pushed the
car door attempting to hurt me when I asked him for some space while
5
Ms. Cabrera is from San Juan, Puerto Rico, and took residence in Montgomery
County, Maryland in December 2010. Mr. Mercado is originally from La Paz, Bolivia,
but has resided in Montgomery County, Maryland, since July 1989. Mr. Mercado claims
that he is a citizen of the United States and no longer a Bolivian citizen.
6
According to a pleading filed by Mr. Mercado, Ms. Cabrera has a law degree and
was employed by NIH as a contract specialist.
3
securing the baby in the car.
***
Last night (10/24) I arrived home at 8:30 pm and he snatched the baby
away from me the minute I walked in the house. He was questioning me
where was I saying “God knows what you’ve been doing and who you’ve
been with[.]” He made a threat that “I would know what he had for me in
due time[.]” I replied saying that I wasn’t going to get intimidated by him.
...
Ms. Cabrera complained that she was being subjected to Mr. Mercado’s general pattern of
controlling behavior, including that he listened to her phone calls, that his body language
was intimidating, and that he had “snatche[d]” A.M.C. from her arms. She also included
complaints that more reflected anger or frustration rather than fear, such as her allegations
that Mr. Mercado “[d]oesn’t take his fa[ir] share of responsibilities” and “refuses to help
with childcare and/or housework” and that she “constantly needs to remind [Mr. Mercado]
to put the money in the household account.” The only allegations she presented in the
petition that were in any way directed toward A.M.C.—rather than toward herself—were
that Mr. Mercado “likes to snatch the baby from [her] when [she’s] holding him[,]” and
that he raises his voice at A.M.C. when the baby gets fussy.
The district court issued an ex parte interim protective order for the benefit of Ms.
Cabrera and A.M.C. against Mr. Mercado on October 26, 2014. The order, by its terms
effective only through October 28, stated that there were “reasonable grounds to believe”
Mr. Mercado had committed the offenses of assault and stalking, and ordered that Mr.
Mercado not abuse, threaten, harass, contact, or attempt to contact Ms. Cabrera. The order
further directed Mr. Mercado vacate and stay away from the couple’s Clarksburg residence,
4
and granted Ms. Cabrera temporary use and possession of the home. Mr. Mercado abided
by the protective order and immediately left the house upon receiving a copy.
At the ensuing protective order hearing on October 28, 2014, Mr. Mercado and his
counsel appeared along with Ms. Cabrera. The district court issued a TPO at the
conclusion of the hearing. Similar to the interim protective order, the TPO recited the
district court’s finding that there were reasonable grounds to believe Mr. Mercado had
assaulted Ms. Cabrera on October 25, 2014. The TPO ordered that Mr. Mercado not
abuse, threaten to abuse, harass, or contact Ms. Cabrera, and further ordered that he stay
away from Ms. Cabrera’s residence and place of employment. Notably, the TPO awarded
custody of A.M.C. to Ms. Cabrera until the final protective order hearing, which was
scheduled for November 5, 2014, and allowed for a three-hour supervised visitation session
on November 1, 2014.
Ms. Cabrera, Mr. Mercado, and their respective attorneys appeared for the
scheduled proceeding on November 5, 2014, and requested the district court extend the
term of the TPO to November 17, 2014. According to Mr. Mercado, he agreed to this
postponement so that the parties could negotiate visitation with A.M.C. on their own. The
amended TPO provided for six visitation sessions between November 5 and November 14,
2014.7
On the morning of November 17, 2014, Mr. Mercado and his counsel appeared in
7
According to Mr. Mercado, between November 5 and November 17 he saw his
son every other day without a supervision requirement. We note there is no allegation or
suggestion in the record that any problems occurred during any of the scheduled visits.
5
court. Ms. Cabrera did not appear. Instead, Ms. Cabrera’s counsel appeared and
requested dismissal of the petition for protective order without explanation. The district
court dismissed the case.8
B. Flight to Puerto Rico
Ms. Cabrera fled to Puerto Rico with A.M.C., without Mr. Mercado’s knowledge or
consent, on November 15, 2014—just two days prior to the scheduled hearing that was
extended at her request. The same day that Ms. Cabrera’s petition for protective order
was dismissed, on November 17, 2014, Ms. Cabrera filed a complaint for custody of
A.M.C. in the Superior Court of Puerto Rico for the Judicial Region of Bayamon.9 The
complaint alleged that Mr. Mercado “exhibit[ed] a pattern of domestic violence” that made
cohabitation impossible. The complaint further alleged:
9. That [Mr. Mercado] is a citizen of Bolivia[10] and although he holds U.S.
citizenship, he has expressed his desire to move the minor out of the
jurisdiction, without the consent of [Ms. Cabrera].
10. That [Ms. Cabrera] fears that [Mr. Mercado] will remove [A.M.C.] from
our jurisdiction without her consent, impeding in this manner the efforts on
the part of [Ms. Cabrera] to exercise physical and legal custody, and
prolonging any legal proceedings related to the custody of the minor.
The complaint also asserted that Mr. Mercado “does not show domestic behavior
appropriate for his son’s upbringing, risking in this manner the physical and emotional
health of the minor.” And, that he “faces serious behavioral problems, behaving in a
8
The Order of Dismissal of Petition for Protection bears a timestamp of 9:06 A.M.
9
The complaint filed in Puerto Rico bears what appears to be a timestamp of 10:41
A.M.
10
Mr. Mercado denies that he is currently a Bolivian citizen.
6
violent manner physically and psychologically preventing him from offering the ideal
conditions for the minor.” The complaint requested, inter alia, (1) a temporary custody
order in favor of Ms. Cabrera until a final order was issued; (2) a temporary order
forbidding the removal of A.M.C. from Puerto Rico; and (3) a final custody order in favor
of Ms. Cabrera. Ms. Cabrera made no mention in the complaint she filed in Puerto Rico
of the fact that she had previously filed a protective order petition in Maryland that had
granted her temporary custody of A.M.C.
Mr. Mercado was personally served, in Maryland, with the Puerto Rican summons
(although there is some ambiguity in the record concerning the specific documents that
were served on him), but he filed no responsive pleading. He does not contest that he was
served.
C. Mr. Mercado’s Emergency Motion for Custody and Return of Child
On November 21, 2014, Mr. Mercado initiated the underlying action on appeal by
filing an Emergency Motion to Return Child to Maryland and Emergency Motion for
Temporary Custody (“Emergency Motion”), along with a complaint for divorce, custody,
and child support in the Circuit Court for Montgomery County.11 In his complaint, Mr.
Mercado “contest[ed] the jurisdiction of the Commonwealth of Puerto Rico[,]” stating that
he “has never been a resident nor domiciled in nor had contacts with such jurisdiction [and
that] Puerto Rico is [Ms. Cabrera]’s Territory of birth to which she has absconded with
[A.M.C].” The complaint requested that Mr. Mercado be granted, inter alia, (1) a limited
11
Ms. Cabrera never filed an answer to Mr. Mercado’s complaint.
7
divorce; (2) pendente lite and permanent custody of A.M.C.; and (3) various relief relating
to marital property and the family residence.
In the Emergency Motion, Mr. Mercado “adamantly challenge[d Ms. Cabrera]’s
claim of abuse” and stated that Mr. Mercado “has been a kind, caring spouse and good
father.” He asserted that Maryland was A.M.C.’s home state pursuant to the Maryland
UCCJEA and that Maryland “has exclusive, continuing jurisdiction over custody of
[A.M.C].” As such, he asserted in the Emergency Motion that Maryland was “the proper
forum for a merits determination of custody and access,” and requested that he be granted
temporary legal and physical custody of A.M.C. and that A.M.C. be returned to Maryland.
Mr. Mercado stated in the Emergency Motion that he had notified Ms. Cabrera by
email and regular mail of the scheduled proceeding on the motion to be held on November
24, 2014. Just prior to the hearing on November 24, 2014, Mr. Mercado supplemented
the Emergency Motion with a certification and several attachments demonstrating that his
counsel had sent Ms. Cabrera’s counsel in Maryland and her counsel in Puerto Rico notice
of the hearing along with the writ of summons, a copy of the custody and divorce
complaint, and a copy of the Emergency Motion.
The circuit court held a hearing on the Emergency Motion on November 24, 2014.
Mr. Mercado appeared with counsel, and neither Ms. Cabrera nor counsel appeared. Mr.
Mercado testified that he had abided by the terms of the protective order and that no
problems had occurred during any of the scheduled visitation sessions. He further testified
that Ms. Cabrera had said that she was going to Richmond, Virginia, the weekend she
actually left for Puerto Rico. He also testified that he received “paperwork” on November
8
18, 2014, stating that Ms. Cabrera had initiated a custody action in a Puerto Rico court.
Mr. Mercado denied Ms. Cabrera’s allegations of domestic violence. He stated that the
first time he learned that his wife was in Puerto Rico was when a friend of Ms. Cabrera’s
called him to tell him that she had not heard from Ms. Cabrera since she traveled to Puerto
Rico.
After hearing Mr. Mercado’s testimony, the court stated that the allegations of
domestic violence complicated what would otherwise be a relatively straightforward
problem—Ms. Cabrera’s disappearance with the child. But, the court also noted (from
Ms. Cabrera’s petition for protective order) that there did not appear to be any concerns
about A.M.C.’s safety with Mr. Mercado or “anything in the[] pleadings that would rise to
the level of there being an allegation of some unsafety with the child.” Counsel for Mr.
Mercado requested a temporary custodial order.
The circuit court judge then announced her ruling:
I’m prepared to find on the basis of what I have here, which is, admittedly,
one side of the story for the most part -- although I do have some of what Ms.
Cabrera told the court, at least about the circumstances of the filing that she
made with the protective order, and I just said, there doesn’t seem to be any
allegation of concern about the way the baby was being treated by Mr.
Mercado -- Ms. Cabrera obviously felt like she was being disrespected.
Her pleadings alleged stalking and, that may be what she sensed was
happening. But at least as far as the child is concerned, I don’t see any
allegation of bad behavior.
. . . It does seem to me that a temporary emergency custody order is
in order. Whatever else is true. The way to solve these problems is not to
run to another jurisdiction. Fortunately, Puerto Rico is a place that we have
some ability to reach.
So what I’m going to do is grant that request for temporary emergency
custody of the child, but also say that Ms. Cabrera is entitled to a hearing on
48 hours’ notice with regards to that order.
I’ll also direct law enforcement to use all reasonable force, if
9
necessary, to return the child to his father for this temporary emergency
custody purposes only.
. . . [O]bviously, if Ms. Cabrera learns of this order and voluntarily
returns with A[M.C.], it’s probably the best of all circumstances, and then
perhaps we can deal with this in some organized, practical fashion.
And it’s not really a question, I don’t think, of home state jurisdiction,
but I think the law is clear that even though [A.M.C.] is not yet 6 months,
you know, the place where he’s residing is his home state. So I’m happy to
sign such an order.
On November 25, 2014, the court, “satisfied that [Mr. Mercado] made good faith attempts
to provide notice of this appearance to [Ms. Cabrera]” entered an emergency temporary
custody order directing: (1) that Ms. Cabrera immediately surrender A.M.C. to the
temporary physical and legal custody of Mr. Mercado until further order of the court; (2)
that A.M.C. not be removed from Maryland; and (3) that Ms. Cabrera is entitled to a
hearing on 48 hours’ notice to Mr. Mercado.
On December 27, 2014, a process server served Fernando A. Cabrera Balasquides—
Ms. Cabrera’s father—with the Maryland emergency temporary custody order; the writ of
summons; the complaint for divorce, custody, and child support; and other documents.
According to the affidavit of service, the process server served Mr. Cabrera at Ms.
Cabrera’s “dwelling house or usual place of abode, at Club Drive J-4 Garden Hills,
Guaynabo, PR 00966 with a resident of suitable age and discretion[.]”12 The affidavit of
service describes the following incident:
Deliver to the father of the recipient, when the [process server] arrives to the
home also the mother of Sugheil Cabrera have the kid in her arms and a[s]
soon see the Process Server she yell[s] to his husband close the garage door
and put the baby down on the floor to avoid that the [process server] see the
12
A motion filed by Ms. Cabrera on May 8, 2015 confirms that this is her address
in Puerto Rico.
10
baby, but [process server] see the baby and proceed the serve the papers to
the father who tell to the [process server] that he was not the father of Sugheil,
the [process server] indicated that he knows i[t’]s him because have seen him
in photos and also see the mother in photos. He ask to[ t]he [process server]
how he enter.. the [process server] explain[s] that they can[’]t hide behind
the gate community control access.
D. Further Proceedings in Puerto Rico
The Puerto Rico court held a hearing on January 15, 2015, on the default order that
had been entered against Mr. Mercado. According to “Minutes” produced describing the
hearing, Ms. Cabrera and her counsel appeared, and Mr. Mercado did not appear. Ms.
Cabrera’s counsel moved for temporary custody of A.M.C. and an order that A.M.C. not
be removed from Puerto Rico, which the court granted. Ms. Cabrera also moved for a
default judgment against Mr. Mercado. The final hearing was scheduled for March 25,
2015, and the Puerto Rico judgment that was eventually entered stated that Mr. Mercado
was notified of the hearing at his “address of record.”
E. Motion to Decline Jurisdiction in Maryland
On March 18, 2015, Ms. Cabrera’s counsel entered an appearance in the circuit
court on behalf of Ms. Cabrera. 13 Ms. Cabrera’s counsel also moved to vacate the
emergency custody order; this motion was denied.
Two days later, on March 20, Ms. Cabrera’s counsel filed a motion requesting the
Maryland court to decline subject matter jurisdiction under the UCCJEA and vacate the
emergency custody order. In the motion, Ms. Cabrera implicitly conceded—by not
13
Ms. Cabrera retained different counsel at this stage of the proceedings than the
counsel who handled her case during the Maryland protective order proceedings.
11
attempting to argue the point—that Maryland was A.M.C.’s home state, but nonetheless
argued that Maryland should decline jurisdiction under the UCCJEA because (1) Maryland
was an inconvenient forum and (2) Puerto Rico was a more appropriate forum to determine
custody and visitation. She contended that Puerto Rico was a more appropriate forum
because (1) domestic violence had occurred in Maryland and Puerto Rico could best protect
Ms. Cabrera and A.M.C.; (2) A.M.C. had lived in Puerto Rico for the last four months; (3)
Ms. Cabrera is the custodial parent, and the noncustodial parent is in a better position to
litigate in a foreign jurisdiction; (4) it would be an financial hardship for Ms. Cabrera to
litigate in Maryland; (5) no agreement existed between the parties to litigate in Maryland;
(6) the evidence required to resolve the custody dispute is located in Puerto Rico; (7) Puerto
Rico can decide custody and visitation more expeditiously and economically; and (8)
Puerto Rico is more familiar with the facts and issues of the case.
Ms. Cabrera further observed in her motion that a Puerto Rico court had already
asserted subject matter jurisdiction over the matter, insisting that
[a]ny order entered in this Court will merely be in conflict with the orders
previously issued by the Puerto Rico Court. Puerto Rico has already
assumed jurisdiction over matters related to custody and visitation, it has
already issued a temporary order directing that custody be awarded to [Ms.
Cabrera] and that the minor child may not be removed from the jurisdiction
of the Puerto Rico court, and it is scheduled to address these matters in a final
adjudication on March 25, 2015. Any order issued by a Maryland Court
will be of no practical effect.
(Emphasis added).
Finally, Ms. Cabrera argued that the November 25, 2014 emergency custody order
should be vacated because (1) she disputed service and (2) the circuit court was not
12
empowered to enter the order when proceedings had already begun in another jurisdiction,
as they had in this case in Puerto Rico. A hearing was set for this motion on May 15,
2015.
F. The Puerto Rican Final Custody Order
At the March 25, 2015 hearing in the superior court in Puerto Rico, Ms. Cabrera
appeared once again with her counsel, and Mr. Mercado did not appear. The court
received the following documentary evidence: (1) A.M.C.’s birth certificate; (2) the TPO
from the Maryland district court; 14 and (3) the divorce, custody, and child support
complaint filed by Mr. Cabrera in the circuit court. Ms. Cabrera also testified, and
apparently the court found her credible.
The Puerto Rico court entered judgment and issued a memorandum opinion in
which the court stated that Mr. Mercado15
incurred in [sic] domestic violence actions against [Ms. Cabrera], during her
pregnancy as well as after the birth of the minor. Said actions consisted in
pushes, hair-pulling, verbal abuse and strikes with the door of her motor
vehicle, which caused physical and emotional damages to [Ms. Cabrera].
Likewise, [] Mr. Mercado incurred in physical and emotional abuse against
his son, consisting in shouts, locking him in a dark room and threatening to
take him down to the basement of the residence, all the above in order for
[A.M.C.] to stop crying.[16]
14
The Puerto Rico court observed that “[o]n said order, based on the evidence
received at the hearing held that there was sufficient reasonable grounds to establish an
assault by [Mr. Mercado] against [Ms. Cabrera] occurred on October 25, 2014.”
15
The record contains a “certified translation” of the original opinion written in
Spanish.
16
Notably, these findings were apparently based on allegations that starkly differ
from the allegations made in Ms. Cabrera’s petition for a protective order in the Maryland
district court. Outside of “raising his voice . . . whenever [A.M.C.] g[o]t fussy[,]” the
13
The court described the proceedings that had occurred in Maryland courts up to that point,
as well as Ms. Cabrera’s flight from Maryland to Puerto Rico on November 15, 2014, and
then found that Ms. Cabrera’s relatives in Puerto Rico were helping support her and A.M.C.
The court noted that it was not Ms. Cabrera’s intention “to go back to continue living in
[Maryland,]” and found that Ms. Cabrera had maintained her employment in Maryland
through telecommuting.17
The court concluded that it “ha[d] jurisdiction over [Mr. Mercado] inasmuch as the
summons was served with the complaint personally to him on November 18, 2014[,]” and
that Ms. Cabrera’s allegations “[we]re accepted as proven” because Mr. Mercado had not
filed any responsive pleading. The court recognized that the Parental Kidnapping Statute
governed the court’s decision, and recited the parameters under the statute for determining
jurisdiction. Notably, the court’s opinion stated that the Parental Kidnapping Statute
provides:
(c) A determination on custody or on visiting rights made by a court
from a state is consistent with the requirements of this section only if:
(1) Said court has jurisdiction under the laws of its state;
(2) It complies with one of the following conditions:
Maryland petition did not allege any actual or threatened physical violence by Mr. Mercado
to the baby.
17
The record reflects, however, that Ms. Cabrera’s counsel suggested to the
Maryland circuit court at least once that Ms. Cabrera would like to return to the continental
United States, at least temporarily, for her work at NIH.
14
(A) That state:
i. is the state of residence of the minor as of the date
the procedures started, or
ii. has been the state of residence of the minor six (6)
months before the date when the procedures started . . .
(Emphasis supplied).18 Relying on this interpretation of the Parental Kidnapping Statute,
the court then concluded that Puerto Rico had jurisdiction over the custody case:
. . . there not being any custody decision from another state in effect at
18
The Parental Kidnapping Statute actually reads as follows:
(c) A child custody or visitation determination made by a court of a State is
consistent with the provisions of this section only if--
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date
of the commencement of the proceeding, or (ii) had been the
child's home State within six months before the date of the
commencement of the proceeding and the child is absent from
such State because of his removal or retention by a contestant
or for other reasons, and a contestant continues to live in such
State[.]
28 U.S.C § 1738A(c) (emphasis added). Notably, the Parental Kidnapping Statute, much
like the UCCJEA, defines the home state as
the State in which, immediately preceding the time involved, the
child lived with his parents, a parent, or a person acting as parent,
for at least six consecutive months, and in the case of a child less
than six months old, the State in which the child lived from birth
with any of such persons. Periods of temporary absence of any of
such persons are counted as part of the six-month or other
period[.]
28 U.S.C § 1738A(b)(4) (emphasis added).
15
this time, having established the present ground before to the one submitted
in the state of Maryland by [Mr. Mercado], and this Court having jurisdiction
over [Mr. Mercado] since it was summoned pursuant to the laws of Puerto
Rico, and having evidence of having [Ms. Cabrera] been the object of
domestic violence, as well as of abuse toward the minor, both by [Mr.
Mercado], and there being no doubt that this Court not only has
jurisdiction to attend this case, but that its determination shall receive the
full faith and credit of other jurisdiction, pursuant to the [Parental
Kidnapping Statute].
(Emphasis added).
Although the certified translation of the opinion is far from clear, the Puerto Rico
court seemed to believe that it had not just temporary emergency jurisdiction—but
jurisdiction to decide the entire child custody proceeding under the Parental Kidnapping
Statute based on its findings that (1) Puerto Rico was the child’s current residence,19 (2)
there was no prior custody decision from another state in effect at that time, (3) Ms. Cabrera
alleged domestic violence, and (4) Mr. Mercado had been served in Maryland. The court
proceeded to grant legal custody of A.M.C. to Ms. Cabrera and stated that “[t]he transfer
of [A.M.C.] . . . out of the Puerto Rican jurisdiction, without the prior authorization of this
Court, is hereby forbidden.” The court apparently did not consider whether the TPO
constituted a custody determination,20 nor did it consider the definition of “home state”
19
This inference is drawn from the fact that the Puerto Rico court’s opinion
highlights the phrase “is the state of residence of the minor as of the date the procedures
started” in its translation of the Parental Kidnapping Statute. (Emphasis in original).
20
Under the Parental Kidnapping Statute, a “custody determination” is defined as
“a judgment, decree, or other order of a court providing for the custody of a child, and
includes permanent and temporary orders, and initial orders and modifications[.]”
28 U.S.C. § 1738(b)(3) (emphasis added).
16
under the Parental Kidnapping Statute, relying instead on its finding that Puerto Rico was
the child’s current residence.
G. The Battle Over Jurisdiction Continues in Maryland
On May 5, 2015, Ms. Cabrera filed a request for registration of the Puerto Rico order
in the Circuit Court for Montgomery County. The clerk of the court entered a notice of
registration of the foreign custody determination on May 7, 2015, stating that it is
enforceable as of the date of registration. On May 20, 2015, Mr. Mercado timely filed a
motion contesting the registration of the foreign judgment.21
On May 8, 2015, Ms. Cabrera also filed a motion to appear by telephone in the
scheduled pendente lite hearing. Ms. Cabrera’s motion stated:
6. Defendant, Sugheil Cabrera, wishes to make herself available and
participate in this case. . . .
7. Defendant will make herself available from Puerto Rico to this Court on
May 15, 2015 in the event the Court has any questions. Defendant will
testify at the pendente lite hearing from Puerto Rico on June 1, 2015 and will
give her testimony regarding her income and expenses, and access for
purposes of the Court deciding pendente lite child support and access.
***
9. Transmission of [Ms. Cabrera]’s testimony will be by speaker phone.
10. Requiring the personal appearance of Defendant would cause undue
hardship by having her have to fly back from Puerto Rico, and leave behind
the minor child, who is still being breast-fed by [Ms. Cabrera], in order to
testify.
Ms. Cabrera then requested that she be allowed to appear by telephone in both the hearing
on her motion to decline jurisdiction set for May 15, 2015, and the pendente lite hearing
21
The record does not indicate that the circuit court ever ruled upon the motion
challenging enrollment of the Puerto Rico custody order in Maryland.
17
set for June 1, 2015.
Mr. Mercado filed an opposition to the motion to appear by telephone on May 13,
2015. In the motion, he argued that Ms. Cabrera continues to defy the November 25, 2014
circuit court custody order and that Ms. Cabrera has not shown good cause for absence
from the proceedings. He further argued that Ms. Cabrera must appear in person so that
he has the opportunity to conduct face-to-face cross examination of her because the court’s
“assessment of [Ms. Cabrera]’s demeanor and credibility are critical to [] the determination
of the best interests of the child in these proceedings.” Mr. Mercado further observed that
Ms. Cabrera’s motion was untimely because it was not filed 30 days before the hearing, as
Maryland Rule 2-513(c) requires.
At the May 15, 2015 hearing on the motion to decline jurisdiction, Ms. Cabrera’s
counsel argued that (1) Ms. Cabrera had not been properly served; (2) Mr. Mercado has
chosen not to participate in the Puerto Rico proceedings; (3) there is a final judgment in
Puerto Rico giving custody to Ms. Cabrera that should control; and (4) under the Parental
Kidnapping Statute, Puerto Rico had jurisdiction. The court engaged Ms. Cabrera’s
counsel in the following exchange regarding the jurisdiction over the case:
THE COURT: . . . I think [] the problem here is that there’s a disconnect
between what happened in Puerto Rico and what you’re asking me to do.
[MS. CABRERA’S COUNSEL]: Why is that, Your Honor?
THE COURT: Well, I think the reason for that is because Puerto Rico has
proceeded without much regard to whether I declined or [did] not decline[]
jurisdiction. But if this Court comes to the conclusion that we do still have
jurisdiction, then I’d be interested to know what happens next, since it didn’t
seem to matter the first time.
18
[MS. CABRERA’S COUNSEL]: Well, that is actually the problem, Your
Honor, and quite frankly the point is that if this Court --
THE COURT: That I should just wave the white flag because they
proceeded regardless?
[MS. CABRERA’S COUNSEL]: No, Your Honor.
THE COURT: Okay.
[MS. CABRERA’S COUNSEL]: And I understand, yes, that you can say
that, but in essence what this Court does is not going to impact what Puerto
Rico does.
Now you know, under the UCCJEA there’s a provision for the courts
to speak to each other.
THE COURT: Right.
[MS. CABRERA’S COUNSEL]: And that may be an appropriate thing to
do here.
THE COURT: I think it might.
[MS. CABRERA’S COUNSEL]: And we certainly, I mean --
THE COURT: Yes.
[MS. CABRERA’S COUNSEL]: -- there’d be no reason not to have that
attempt.
It is our position, based on the way the court evaluated it, that the
court at this point in time in Puerto Rico has decided that it doesn’t care
what Maryland does. And so if Maryland were to continue with this
dispute, I think that’s what you’re outlining here, and it will be of no real
effect, and we point that out in our proceedings.
(Emphasis added). Ms. Cabrera’s counsel further argued that a UCCJEA state cannot
assert jurisdiction if another state has already asserted jurisdiction. The colloquy on
jurisdiction continued:
THE COURT: So this is an ex parte proceeding in a circumstance that we
would say didn’t provide fair notice or didn’t comply with what we would
19
say the rules are.
[MS. CABRERA’S COUNSEL]: I don’t know why we would say that,
because he was served in person, an order of default was entered in that case
--
THE COURT: Yes, right. That’s fine, except for that that’s not actually
how we would say this would proceed. So how we would say this would,
first of all what jurisdiction does the Puerto Rico court have over this
gentleman? None that I can think of. So he had actual notice, that’s swell,
but I don’t know what difference that makes as far as jurisdiction [i]s
concerned.
Meanwhile, there is a basis for jurisdiction here, and the thing that
troubles me about this whole analysis that you’re giving me is that it’s
exactly what these acts were designed to avoid, which is this kind of, and
it happens unfortunately all over the world, one would have hoped not in
Puerto Rico, but so be it. That people, countries, proceed with their own
set of rules about whether a child should be returned to the place from
which they were removed without consent of both parties, which is what
I think happened here. I think your client left the, she may well have had
her reasons, but part of the reason that we do this with two sides
available is so that we get both sides of the story.
(Emphasis added).
Mr. Mercado defended Maryland’s jurisdiction over the custody matter, insisting
that Maryland was A.M.C.’s home state and the protective order petition—not the Puerto
Rico custody complaint—was the first custody proceeding in this case.
The judge reserved on the motion to decline jurisdiction until after she had an
opportunity to speak to the judge of the superior court in Puerto Rico.22 Meanwhile, in
her ruling, the judge declined to rescind the November 25, 2014 emergency custody order.
At the scheduled pendente lite hearing before a magistrate on June 1, 2015, Ms.
22
As will be discussed infra, the order declining to vacate the Maryland emergency
custody order was entered five months later, on September 14, 2015.
20
Cabrera once again appeared through counsel. Ms. Cabrera’s counsel stated that there
was nothing that could be resolved at the pendente lite hearing and requested that the
pendente lite claims be dismissed. Mr. Mercado responded that there is no provision in
the UCCJEA allowing a party to not appear and instead participate by telephone.
Importantly, he requested that the court issue a body attachment for Ms. Cabrera because
she was in violation of the subpoena duces tecum that had been issued to her directing her
to appear with the requested documents at the scheduled pendente lite hearing. Ms.
Cabrera’s counsel requested the subpoena be quashed.
Given the request for a body attachment, the magistrate judge referred the parties
back to the circuit court judge who resumed the pendente lite hearing later that morning.
The judge stated that she had not been able to reach the Puerto Rico judge, who was on
vacation, but she hoped to be able to do so soon. As a result, the judge declined to rule on
the request to dismiss the pendente lite relief, stating that it “is not appropriately before
[the court] at this point” because she had not been able to reach the Puerto Rico judge.
The judge also reserved on the motion to quash and the motion to appear by telephone,
stating, again, that she did not want to rule on these issues until she was able to
communicate with the judge in Puerto Rico. The judge further stated that she was inclined
to grant the body attachment, but reserved on this issue as well.
The next hearing occurred on June 3, 2015, after the circuit court judge was able to
speak with the judge in Puerto Rico. The judge began by summarizing her discussion:
So I did finally speak to [the Puerto Rico court] about the status of things,
just to try to get a lay of the land between courts, as the UCCJEA provides.
The PKPA also provides for this.
21
I think I’d say in summary that [the Puerto Rico court’s] position is
that, while, well, I think the short summary would be this, that he doesn’t
have a pleading in front of him that would request the relief that [Mr.
Mercado] here seeks. . . . I’m paraphrasing here . . . is that without a pleading
in front of him detailing what occurred procedurally, and what the facts are
with regard to this set of proceedings . . . . He has some information about it.
He knew about the protective order. He knew about the emergency custody
order.
But he reminded me, and I think it’s worth saying here, that the
order he issued has the somewhat unusual provision in it that prohibits
the child’s removal from Puerto Rico without further court order, which
juxtaposed against Ms. Cabrera’s desire to return to the United States
to work, seems like a problem.
(Emphasis added).
The judge explained to those present at the hearing, that she and the Puerto Rican
judge did not come to any agreement, except to acknowledge that they had a forum non
conveniens issue, even if there wasn’t a subject matter jurisdiction issue. Nevertheless,
she explained why she was so uncomfortable surrendering jurisdiction:
I was direct with [the Puerto Rico court] and told him that I thought
while there’s probably not a whole lot to question about the emergency
jurisdiction, given what was presented to the court there, that doesn’t confer
subject matter jurisdiction. And this I think is the place where the
dichotomy between the PKPA and the UCCJEA may be holding us up a little
bit. . . .
I have no way to undo or stop the Puerto Rico proceeding. However,
. . . I have no question that we have subject matter jurisdiction. So then what
happens next is that the only way to have the conversation . . . about the
forum non[]convenien[s] issue, is for there to be a presence in both
jurisdictions of a request to do something, because in Puerto Rico at the
moment, there’s no request for anybody to do anything. Of course if Ms.
Cabrera wants to come back to the U.S. with the child, she needs the court’s
permission there, which is an interesting circumstance.
There was a request earlier this week . . . to the magistrate, about the
issuance of a body attachment for Ms. Cabrera. I’m inclined to do that,
because I, and I need to be clear on the record why I’m inclined to do it, . . .
and I desperately don’t want to do it, but why I’m inclined to do it.
I think Ms. Cabrera has manipulated the system. I think Ms.
22
Cabrera has taken advantage of a process and one exactly what the
Parental Kidnapping Prevention Act, the UCCJEA, and frankly the
Hague convention regarding child custody, are designed to avoid, which
is there’s a proceeding in one state. It awarded custody to a person.
That person decides it’s not going so well, and so they abscond with the
child. And a proceeding begins in a way that may or may not be
consistent with . . . Maryland’s [] view of fair notice and jurisdiction.
(Emphasis added). The judge continued to express her concern over the events that had
transpired in the case and further related her conversation with the Puerto Rican judge:
But short summary is that Ms. Cabrera has taken the parties’ son to
Puerto Rico, where he has remained since she took him there. He’s not a
loaf of bread. He’s not a sack of potatoes. He’s a human being. And this
was not the way to resolve this issue. This is, she had a protective order,
and she thought she couldn’t make the protective order be a final order under
the circumstances.
Then she needed to do something different with a different kind of
pleading. But to ask for the protective order, get it as a temporary, get
custody, abscond with the child, go to Puerto Rico, file a case, dismiss the
case here, and then say Puerto Rico had jurisdiction because that’s how she
made it be, I think is inconsistent with notions of access to justice and fair
adjudication.
***
The other thing is that if it’s really [Ms. Cabrera]’s intention to come
back to the United States, the continental United States, Maryland in
particular, because she wants to come back here, and that she intends to bring
the child, she’s knotted herself in a web that she’s going to have to get out
of. And while I don’t think [the Puerto Rico court] was making any specific
findings, what he said was if she decides to do that and she wants to take the
child with her, I would close the case and rescind our jurisdiction because
she’s going back to Maryland.
***
So I will take under advisement the body attachment because I do need
to look at that, although it is at least at present my intention to issue. But
more importantly, I think some effort ought to be made to try to see if there’s
a way for you to resolve this issue, short of what at least at present looks like
is going to happen, which is that there’ll be a body attachment issued
23
eventually that’ll be, that can be executed in Puerto Rico. She’ll be
incarcerated. She’ll be held until she produces the child. This is not a good
way to do this. There’s better ways. She has them in her hand, and she can
use them. And while perhaps it will be uncomfortable to have to come back
to Maryland to do this, so be it. I mean it may be uncomfortable. But it’s
a far better way than what’s happening right now.
So the thing is that now I’ve spoken to the [Puerto Rico] judge and at
least at the moment he’s unwilling to waive Puerto Rican jurisdiction, and I
am unwilling to waive Maryland jurisdiction, I don’t have any question that
Maryland is the child’s home state by our law, and that there’s nothing about
the situation in Puerto Rico that would, and particularly not anything about
the way in which the Puerto Rican order was obtained, that persuades me at
this point that we ought to cede our jurisdiction on a forum non[]convenien[s]
basis. So on we go. But I do hope something besides where we stand right
now can be obtained.
H. The Maryland Final Custody Order and Other Proceedings
Two weeks after the pendente lite hearing—the parties having failed to resolve the
issues—the court issued a writ of body attachment for Ms. Cabrera on June 15, 2015. In
the court’s order accompanying the writ of body attachment, the court found that Ms.
Cabrera has “willfully violated the valid orders of this court, by failing to abide by this
Court’s orders entered on November 25, 2014 and March 18, 2015.”
Ms. Cabrera filed a motion to revise the order and writ of body attachment on June
25, 2015, asserting that the body attachment was not in the best interests of the child. Ms.
Cabrera added that “there is no record of delay or contumacious conduct on the part of
[Ms. Cabrera], [that] there was no indication of prejudice to [Mr. Mercado], [and that Ms.
Cabrera] was not adequately served with notice of the underlying subpoena[.]” She
further maintained that the UCCJEA did not require her to be present in Maryland and that,
because the pendente lite hearing did not occur, requiring her to be present on that day
would serve only to “harass, annoy and oppress her.”
24
On August 3, 2015, the court entered an order denying Ms. Cabrera’s motion to
revise the order of body attachment. On August 19, 2015, Ms. Cabrera filed the first
notice of appeal to this Court in these proceedings, appealing the order denying the motion
to revise the body attachment.23
On September 14, 2015, the circuit court entered an order denying Ms. Cabrera’s
motion to decline jurisdiction and vacate the emergency temporary custody order. Ms.
Cabrera appealed this order, filing her second notice of appeal on September 18, 2015.24
Mr. Mercado then served Ms. Cabrera’s counsel with another subpoena, this one for
Ms. Cabrera’s appearance at the September 21, 2015 trial. Ms. Cabrera filed a motion to
quash the second subpoena on September 15, 2015.
The custody merits hearing was ultimately rescheduled to November 18, 2015.
Mr. Mercado appeared and produced five witnesses. Ms. Cabrera was once again
represented by counsel, but did not herself appear. After evidence was presented, the
court made its requisite findings on the record, all the while acknowledging the one-sided
nature of the proceedings.
The court first found that Mr. Mercado was a fit parent for A.M.C. 25 The court
23
Notably, this notice of appeal was not filed within 30 days of the order of body
attachment, which was entered on June 25, 2015; it was filed within 30 days of the denial
of the motion to revise the body attachment.
24
The first appeal, Case No. 1304, September Term 2015, was eventually
consolidated with the second appeal, Case No. 2393, September Term 2015.
25
The court did not rule that Ms. Cabrera was an unfit parent, but the court did note
that the way that Ms. Cabrera disappeared with A.M.C. “reflect[ed] poorly on Ms. Cabrera
as a parent.”
25
next found that the character and reputation in the community of both parents was fine until
A.M.C. was born. The court found that Mr. Mercado’s request for custody was sincere
and could not address any agreement between the parties because there has been no
agreement and found that it could not address willingness to share custody that day. The
court also found that (1) the Mercado family was willing to include Ms. Cabrera in their
family life; (2) A.M.C. would be the only child in Mr. Mercado’s home, but did not know
about the number of children in Ms. Cabrera’s home; (3) A.M.C. was too young to have a
custody preference; (4) the parents had problems communicating; (5) there was a large
distance between the geographic locations of the parents; (6) Mr. Mercado earned
$95,000.00 a year and that Ms. Cabrera was employed; (7) Mr. Mercado could provide a
stable and appropriate home for A.M.C.; (8) A.M.C. bonded with his father before their
separation “and should have the opportunity to continue to do so”; and (9) A.M.C. was still
too young for there to be a disruption of his social and school life.
After announcing her findings, the judge gave her ruling:
What’s most relevant here is that the child will do best if he has two parents.
I don’t know how to make that happen, because Ms. Cabrera is in Puerto
Rico, and has the child there, and has not, as of yet, returned the child here.
We are, essentially, at a standoff. This is a horrible game to play with the
child’s life, but I don’t really know beyond making an order what I can do.
So, I will find under all the circumstances, based on the factors
that I have considered, that Mr. Mercado is a fit and proper parent to
have sole legal custody of A[M.C.], and primary residential custody of
him. That’s the language that the Maryland courts use. I think it’s also
pretty much the language that the Parental Kidnapping Prevention Act, and
the Uniform Child Custody Jurisdiction and Enforcement Act use.
I recognize that I just made a court order that is directly opposite to
what the Puerto Rican order says, but I think in this situation where an order’s
been made in a way that flies in the face of jurisdictional determinations in
this state that I can do nothing else.
26
On December 11, 2015, the court entered its written order, reflecting that Mr.
Mercado’s requests for attorney’s fees and costs would be determined at a later date.26 On
January 8, 2016, Ms. Cabrera filed a “Notice of Amended Appeal,” appealing the order of
custody.
Ms. Cabrera presents the following questions on appeal:
1. “Did the trial court err in asserting jurisdiction over custody (and entering
an order for custody) when the trial court was aware that another court
had already commenced a proceeding concerning custody and the other
proceeding was neither terminated nor stayed and that Appellant had not
been served with process?”
2. “Did the trial court err in entering an order for custody without first
attempting to communicate with another court, while aware that the other
court had previously asserted jurisdiction over the same child, the same
parties and the same subject matter?”
3. “Did the trial court err in declining to treat Maryland as an inconvenient
forum without considering the necessary factors?”
4. “Did the trial court err in issuing an order for body attachment, finding
that Appellant had willfully violated the Court’s orders without a hearing,
show cause order or finding of contempt?”
5. “Did the trial court err in issuing a body attachment, to enforce a subpoena
against Appellant, without first determining if sufficient cause existed,
and when enforcement would not have benefitted the requesting party nor
furthered the interests of justice?”
DISCUSSION
26
A divorce trial, which is not part of this appeal, was scheduled for April 15, 2016.
Maryland Judiciary Case Search reports that a judgment of absolute divorce was entered
on April 20, 2016, and that Mr. Mercado was awarded judgments of $1,638.00 and
$37,623.74, relating to maintenance and sale of the marital home and attorney’s fees and
costs. The last online docket entry from this case is from April 26, 2016; thus, it appears
that Ms. Cabrera did not file a notice of appeal relating to this segment of the proceedings.
27
I.
Jurisdiction Over the Custody Proceedings Under the UCCJEA
and the Parental Kidnapping Statute
As by now apparent, this case has a tangled procedural history, with three notices
of appeal filed in a six-month span. To untangle this knot, we start by deciding that we
have appellate jurisdiction over the questions relating to custody. A party may appeal
from an interlocutory order “[d]epriving a parent, grandparent, or natural guardian of the
care and custody of his child, or changing the terms of such an order[.]” Maryland Code
(1973, 2013 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), § 12-303(3)(x).
Ms. Cabrera filed her third notice of appeal on January 8, 2016, within 30 days of the circuit
court’s December 11, 2015 final custody order, which granted sole legal and primary
residential custody of A.M.C. to Mr. Mercado, thereby necessarily depriving Ms. Cabrera
of custody. Therefore, we have appellate jurisdiction over the questions Ms. Cabrera
presents concerning custody, see CJP § 12-303(3)(x), but as explained infra, we do not
have appellate jurisdiction over the body attachment issues raised in her first appeal.
a. Legal Framework
The rules of engagement for this jurisdictional conflict are contained in the Parental
Kidnapping Statute and the Maryland UCCJEA.
The Parental Kidnapping Statute is a federal statute, which applies in every United
States jurisdiction, including Puerto Rico. Congress enacted the Parental Kidnapping
Statute in 1980 to supplement the Uniform Child Custody Jurisdiction Act (“UCCJA”),
codified by at least 43 states at that time, in response to the quasi-accepted practice of
28
“child snatching” to obtain a favorable custody determination in another jurisdiction. 28
U.S.C. § 1738A; Jones, supra, at 147 (citations omitted); Goldstein, supra, at 850.
Although the UCCJA was “designed to establish a hierarchy of jurisdictional rules for
custody cases,” state courts were not required and often declined to extend full faith and
credit to existing custody determinations in other jurisdictions. Id. at 146; see also
Goldstein, supra, at 864. The Parental Kidnapping Statute was intended to resolve this
growing problem by “requir[ing] states to accord full faith and credit to custody decrees.”
Goldstein, supra, at 916. Yet, interstate conflicts continue because courts interpret the
Parental Kidnapping Statute inconsistently. Id. at 938-39; Jones, supra, at 149.
The Parental Kidnapping Statute defines a child’s “home state” as follows:
the State in which, immediately preceding the time involved, the child lived
with his parents, a parent, or a person acting as parent, for at least six
consecutive months, and in the case of a child less than six months old,
the State in which the child lived from birth with any of such persons.
Periods of temporary absence of any of such persons are counted as part of
the six-month or other period
28 U.S.C. § 1738A(b)(4) (emphasis added). Therefore, under the Parental Kidnapping
Statute, the home state of a child not yet six months old is that in which the child has lived
since birth with a parent. The statute provides that a custody determination made
consistently with its provisions by one state will receive full faith and credit by another
state. 28 U.S.C. § 1738A(a). A custody determination is only made consistently with the
Parental Kidnapping Statute if the following jurisdictional requirements are satisfied:
(c) A child custody or visitation determination made by a court of a State is
consistent with the provisions of this section only if--
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
29
(A) such State (i) is the home State of the child on the date
of the commencement of the proceeding, or (ii) had been
the child's home State within six months before the date of
the commencement of the proceeding and the child is
absent from such State because of his removal or retention
by a contestant or for other reasons, and a contestant
continues to live in such State;
(B) (i) it appears that no other State would have jurisdiction
under subparagraph (A), and (ii) it is in the best interest of the
child that a court of such State assume jurisdiction because (I)
the child and his parents, or the child and at least one
contestant, have a significant connection with such State other
than mere physical presence in such State, and (II) there is
available in such State substantial evidence concerning the
child's present or future care, protection, training, and personal
relationships;
(C) the child is physically present in such State and (i) the child
has been abandoned, or (ii) it is necessary in an emergency to
protect the child because the child, a sibling, or parent of the
child has been subjected to or threatened with mistreatment or
abuse;
(D) (i) it appears that no other State would have jurisdiction
under subparagraph (A), (B), (C), or (E), or another State has
declined to exercise jurisdiction on the ground that the State
whose jurisdiction is in issue is the more appropriate forum to
determine the custody or visitation of the child, and (ii) it is in
the best interest of the child that such court assume jurisdiction;
or
(E) the court has continuing jurisdiction pursuant to subsection
(d) of this section.
28 U.S.C. § 1738A(c) (emphasis added). As the excerpted text demonstrates, the child’s
home state is given jurisdictional preference under the Parental Kidnapping Statute.
In addition, a state that exercises jurisdiction pursuant to the Parental Kidnapping
Statute retains jurisdiction so long as certain conditions are met:
(d) The jurisdiction of a court of a State which has made a child custody or
visitation determination consistently with the provisions of this section
continues as long as the requirement of subsection (c)(1) of this section
continues to be met and such State remains the residence of the child or of
30
any contestant.
28 U.S.C. § 1738(d). Thus, once a state has exercised jurisdiction under the Parental
Kidnapping Statute, by making a child custody or visitation determination, that state retains
jurisdiction as long as it (1) retains jurisdiction under its own state laws and (2) continues
to be the residence of either the child or any contestant.
The model UCCJEA is the successor to the UCCJA. Friedetzky v. Hsia, 223 Md.
App. 723, 734 (2015). In 1997, the National Conference of Commissioners of Uniform
State Laws (“NCCUSL”) “promulgated the UCCJEA to revise the UCCJA in order to
coincide with federal enactments[, such as the Parental Kidnapping Statute,] and to resolve
the consequent thirty years of conflicting case law caused by states’ various enactments of
the UCCJA.” Id. (citation omitted). In 2004, Maryland enacted its version of the
UCCJEA, codified at FL § 9.5-101 et seq.27 2004 Md. Laws, ch. 502 (H.B. 400).
This Court has recognized that “[t]he UCCJEA, governing custody and visitation, .
. . w[as] established to provide systematic and harmonized approaches to urgent family
issues in a world in which parents and guardians, who choose to live apart, increasingly
live in different states and nations.” Friedetzky, 223 Md. App. at 726-27. The UCCJEA
“‘provide[s] stronger guidelines for determining which state has jurisdiction, continuing
jurisdiction, and modification jurisdiction over a child custody determination[.]’” Miller
27
Every jurisdiction in the United States—with the exception of Massachusetts and
Puerto Rico—has enacted the UCCJEA. Uniform Law Commission, The National
Conference of Commissioners of Uniform State Laws, Child Custody Jurisdiction and
Enforcement Act,
http://www.uniformlaws.org/Act.aspx?title=Child%20Custody%20Jurisdiction%20and%
20Enforcement%20Act [https://perma.cc/M7HG-5MWR].
31
v. Mathias, 428 Md. 419, 452 (2012) (quoting In re Kaela C., 394 Md. 432, 455 (2006)).
A chief function of the UCCJEA is to “[d]eter abductions of children[.]” UCCJEA, § 101
cmt., 9 U.L.A. Part 1A, at 657 (1997). Since its promulgation, the UCCJEA has generally
“reduced the instance of jurisdictional conflicts.” Andrea Charlow, There’s No Place Like
Home: Temporary Absences in the UCCJEA Home State, 28 J. Am. Acad. Matrim. L. 25,
28 (2015).
Under Maryland’s UCCJEA,
(h) “Home state” means:
(1) the state in which a child lived with a parent or a person acting as
a parent for at least 6 consecutive months, including any temporary
absence, immediately before the commencement of a child custody
proceeding; and
(2) in the case of a child less than 6 months of age, the state in
which the child lived from birth with any of the persons
mentioned, including any temporary absence.
FL § 9.5-101(h) (emphasis added). Thus, like the Parental Kidnapping Statute, if a child
is not yet six months old, a child’s home state under the UCCJEA is the state in which he
or she has lived from birth with a parent. Id.
Further, the UCCJEA’s bases for jurisdiction are substantially similar to that of the
Parental Kidnapping Statute. The UCCJEA confers jurisdictional preference to the
child’s home state under FL § 9.5-201(a):
(a) Grounds for jurisdiction — Except as otherwise provided in § 9.5-204
[governing temporary emergency jurisdiction] of this subtitle, a court of this
State has jurisdiction to make an initial child custody determination only
if:
(1) this State is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the
child within 6 months before the commencement of the
32
proceeding and the child is absent from this State but a parent or
person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under item (1)
of this subsection, or a court of the home state of the child has declined
to exercise jurisdiction on the ground that this State is the more
appropriate forum under § 9.5-207 or § 9.5-208 of this subtitle, and:
(i) the child and the child’s parents, or the child and at least one
parent or a person acting as a parent, have a significant
connection with this State other than mere physical presence;
and
(ii) substantial evidence is available in this State concerning
the child’s care, protection, training, and personal
relationships;
(3) all courts having jurisdiction under item (1) or (2) of this
subsection have declined to exercise jurisdiction on the ground that a
court of this State is the more appropriate forum to determine the
custody of the child under § 9.5-207 or § 9.5-208 of this subtitle; or
(4) no court of any other state would have jurisdiction under the
criteria specified in item (1), (2), or (3) of this subsection.
(b) Exclusive jurisdictional basis — Subsection (a) of this section is the
exclusive jurisdictional basis for making a child custody determination
by a court of this State.
(c) Effect of physical presence — Physical presence of, or personal
jurisdiction over, a party or a child is not necessary or sufficient to make a
child custody determination.
(Emphasis added). Therefore, under the UCCJEA, the child’s home state has jurisdiction
unless the home state has declined jurisdiction, and this is the exclusive jurisdictional basis
for a court to make a child custody determination. A court that makes an initial custody
determination under FL § 9.5-201 enjoys “exclusive, continuing jurisdiction over the
determination[.]” FL § 9.5-202. See also Charlow, supra, 28 J. Am. Acad. Matrim. L.
25, 28 (2015) (“Once an order has been rendered consistent with the act, the issuing state
has continuing, exclusive jurisdiction until all the parties and the child have left the state
or the issuing state determines that the child and the parties no longer have a significant
connection with the state and substantial evidence is no longer available there.” (footnote
33
omitted)). As stated supra, under the Parental Kidnapping Statute, similarly, once a state
makes a child custody determination, it retains jurisdiction so long as it retains jurisdiction
pursuant to its own state law and remains the residence of the child or one of the
contestants.
A state should not exercise jurisdiction if, at the time the proceeding commences,
another state “having jurisdiction substantially in conformity” with that state’s UCCJEA
has already begun proceeding. In Maryland, FL § 9.5-206(a) provides:
Except as otherwise provided in § 9.5-204 [governing temporary emergency
jurisdiction] of this subtitle, a court of this State may not exercise its
jurisdiction under this subtitle if, at the time of the commencement of
the proceeding, a proceeding concerning the custody of the child has
been commenced in a court of another state having jurisdiction
substantially in conformity with this title, unless the proceeding has been
terminated or is stayed by the court of the other state because a court of this
State is a more convenient forum under § 9.5-207 of this subtitle.[28]
The UCCJEA, much like the Parental Kidnapping Statute, provides for temporary
emergency jurisdiction when a state is not the home state of the child. A Maryland court
has temporary emergency jurisdiction if the child is physically present in Maryland and he
or she has been abandoned or it is necessary in an emergency situation to protect the child
28
Similarly, the Parental Kidnapping Statute provides:
(g) A court of a State shall not exercise jurisdiction in any proceeding for a
custody or visitation determination commenced during the pendency of a
proceeding in a court of another State where such court of that other State is
exercising jurisdiction consistently with the provisions of this section to
make a custody or visitation determination.
28 U.S.C. § 1738A(g).
34
because the child is subjected to or being threatened with abuse. FL § 9.5-204. Exercise
of jurisdiction under FL § 9.5-204, however, is generally temporary and does not constitute
the exclusive, continuing jurisdiction of FL §§ 9.5-201 to 202.
To summarize, under the UCCJEA, a court has jurisdiction to make an initial child
custody determination if (1) it is the home state of the child or was the child’s home state
within six months before the commencement of the proceeding and the child is absent from
the state, but still has a parent living within the state; (2) there is no home state or the home
state has declined to exercise jurisdiction, and the child and a parent have a significant
connection to the state and substantial evidence is available in the state; (3) all courts
having jurisdiction under the first two bases have declined jurisdiction; or (4) no court
would be able to exercise jurisdiction under the first three bases just mentioned. FL § 9.5-
201. Once a state has made an initial custody determination, that state enjoys exclusive,
continuing jurisdiction, unless certain events not at issue in the present case occur. See
FL § 9.5-202. If a state does not enjoy exclusive, continuing jurisdiction, a state may
nonetheless exercise temporary emergency jurisdiction if a child is physically present in
the state and has been abandoned or it is necessary in an emergency situation to protect the
child because he or she is being subjected to or threatened with mistreatment; by its terms,
however, this jurisdiction is temporary. FL § 9.5-204. Meanwhile, a court should not
exercise jurisdiction, if at the time the proceeding is commenced, a child custody
proceeding has been “commenced in a court of another state having jurisdiction
substantially in conformity with” Maryland’s UCCJEA. FL § 9.5-206(a).
Under the Parental Kidnapping Statute, a state has jurisdiction—and, therefore, its
35
custody determination is entitled to be enforced by another state—if it has jurisdiction
under its own laws and one of the following conditions is met: (1) it is the home state of
the child on the commencement of the proceedings or was the home state of the child within
six months before the commencement of the proceedings and the child is absent and a
custody contestant continues to live within the state; (2) there is no home state, and it is in
the best interest of the child that the state assume jurisdiction because (a) the child and at
least one parent have a significant connection to the state and (b) there is substantial
evidence in the state to determine custody; (3) the child is physically present in the state
and has been abandoned or it is necessary in an emergency to protect the child because he
is subject to or threatened with mistreatment or abuse; (4) no other state has jurisdiction,
or every state has declined jurisdiction, and it is in the best interest of the child that the
state assume jurisdiction; or (5) the court has continuing jurisdiction because it has already
made a child custody determination pursuant to the Parental Kidnapping Statute. 28
U.S.C. § 1738A(c). If a state makes a child custody or visitation determination consistent
with the Parental Kidnapping Statute, it enjoys continuing jurisdiction, so long as its
jurisdiction continues pursuant to its laws and the state remains the residence of either the
child or one custody contestant. 28 U.S.C. § 1738A(d). Meanwhile, a state should not
exercise jurisdiction “during the pendency of a proceeding in a court of another State where
such court of that other State is exercising jurisdiction consistently with” the Parental
Kidnapping Statute. 28 U.S.C. § 1738A(g).
The two statutes are thus substantially in accord in demarcating the bases for a
court’s jurisdiction over custody matters, although one might argue that the Parental
36
Kidnapping Statute provides a broader basis for emergency jurisdiction. Compare FL §
9.5-104, with 28 U.S.C. § 1738A(c)(2)(C). But see In re Adoption of Yvette, 881 N.E.2d
1159, 1170 (Mass. App. Ct. 2008) (under the Parental Kidnapping Statute, “because
Maryland had home state jurisdiction, not to mention a pending custody case and an
outstanding custody order, emergency jurisdiction in Massachusetts was ‘limited to issuing
temporary orders designed to effectuate [Maryland’s] exercise of jurisdiction, yet keep the
child[ren] safe.’” (alteration in original) (citations omitted)). Both statutes give
jurisdictional preference to the child’s “home state.” “When there is a conflict between
the [Parental Kidnapping Statute] and state law, the [Parental Kidnapping Statute], under
the Supremacy Clause, prevails.” Britton v. Meier, 148 Md. App. 419, 426 (2002).
b. Simultaneous Proceedings Analysis
In the first issue Ms. Cabrera raises on appeal, Ms. Cabrera does not attempt to argue
that Maryland was not A.M.C.’s home state under both the UCCJEA and the Parental
Kidnapping Statute.29 Instead, she argues that the trial court did not have jurisdiction to
enter the emergency temporary custody order obtained by Mr. Mercado because another
jurisdiction—Puerto Rico—had commenced a proceeding that had not been stayed or
terminated. Ms. Cabrera contends that Puerto Rico is substantially in conformity with
Maryland because it adheres to the federal Parental Kidnapping Statute. Because the
29
It is undisputed that A.M.C., who was not yet six months old at the time of the
initiation of any of the custody proceedings, lived in Maryland with one or both parents for
his entire life until Ms. Cabrera absconded to Puerto Rico with A.M.C. on November 15,
2014. Therefore, Maryland was A.M.C.’s home state under both the UCCJEA and the
Parental Kidnapping Statute. See FL § 9.5-101(h); 28 U.S.C. § 1738A(b)(4).
37
circuit court entered the emergency temporary custody order when another proceeding was
pending, Ms. Cabrera maintains that the emergency temporary custody order “should be
vacated and reversed.”30
Mr. Mercado counters that Maryland was the home state of A.M.C. under the
UCCJEA and that Maryland had jurisdiction under the UCCJEA. Mr. Mercado maintains
that Ms. Cabrera not only initiated the first proceeding in Maryland, when she petitioned
for custody of A.M.C. under the protective order, but she also authorized counsel to appear
and participate in the Montgomery County proceedings, thereby submitting to the
jurisdiction of that court. Mr. Mercado points out that Ms. Cabrera conceded in the
complaint she filed in Puerto Rico that she was a resident of and domiciled in Maryland
and, therefore, Maryland had personal jurisdiction over her under both Maryland and
Puerto Rico law.31
Whether the trial court correctly asserted jurisdiction is an issue of statutory
interpretation that we review de novo to determine whether the court was legally correct.
30
The briefs in this case were filed before the eventual entry of the final custody
order, therefore, the parties devote numerous pages to arguing whether the September 14,
2015 order—the order from which Ms. Cabrera filed her first notice of appeal—was a final
judgment or an appealable interlocutory order. We do not address these arguments here,
except to observe, as stated supra, that we have jurisdiction to decide the questions relating
to custody because Ms. Cabrera filed a timely notice of appeal from the final custody order
entered on December 11, 2015. The December 11, 2015 order is indisputably an
appealable interlocutory order under CJP § 12-303(3)(x).
31
Mr. Mercado cites to P.R. Laws Ann. tit. 1, § 38 for the proposition that Maryland
had personal jurisdiction over Ms. Cabrera under Puerto Rico law.
Mr. Mercado also makes a blanket assertion that all of Ms. Cabrera’s arguments are
unpreserved and waived.
38
Breslin v. Powell, 421 Md. 266, 277 (2011) (citations omitted).
The central question is which jurisdiction, Maryland or Puerto Rico, commenced a
“proceeding concerning the custody of the child” first. As discussed above, FL § 9.5-
206(a) provides that a court may not exercise jurisdiction when a proceeding “has been
commenced in a court of another state having jurisdiction substantially in conformity with
this title.” The answer is key to identifying which jurisdiction maintained “exclusive,
continuing jurisdiction” under the UCCJEA, FL §§ 9.5-201 to 9.5-202 and continuing
jurisdiction under the Parental Kidnapping Statute, 28 U.S.C. § 1738A(d).
The UCCJEA provides several definitions relevant to the current discussion:
(d) (1) “Child custody determination” means a judgment, decree, or other
order of a court providing for the legal custody, physical custody, or
visitation with respect to a child.
(2) “Child custody determination” includes a permanent,
temporary, initial, and modification order.
(3) “Child custody determination” does not include an order relating
to child support or other monetary obligation of an individual.
(e) (1) “Child custody proceeding” means a proceeding in which legal
custody, physical custody, or visitation with respect to a child is
an issue.
(2) “Child custody proceeding” includes a proceeding for divorce,
separation, neglect, abuse, dependency, guardianship, paternity,
termination of parental rights, and protection from domestic
violence, in which the issue may appear.
(3) “Child custody proceeding” does not include a proceeding
involving juvenile delinquency, contractual emancipation, or
enforcement under Subtitle 3 of this title.
***
(i) “Initial determination” means the first child custody determination
concerning a particular child.
39
FL § 9.5-101 (emphasis added). As the excerpted text demonstrates, the UCCJEA
explicitly defines “child custody proceeding” to include a proceeding addressing protection
from domestic violence in which custody appears.
In Cronin v. Camilleri, a mother brought her two children to Hawaii and filed a
temporary restraining order against the father after one of the children complained that the
father had sexually abused her. 101 Md. App. 699, 701 (1994). The Hawaiian court
issued the temporary protective order for the benefit of the mother and children, enjoining
the father from contacting, threatening, physically abusing, or telephoning the mother or
the children. Id. at 701-02. After the father did not appear for the hearing on the final
protective order, the Hawaiian court entered a three-year protective order prohibiting the
father from contacting the mother or the children for three years. Id. at 702. The mother
then filed a motion to amend the protective order to include temporary custody. Id.
The father thereupon filed a complaint for limited divorce, which included a request
for custody of the children, in the Circuit Court for Baltimore City. Id. He traveled to
Hawaii, served the mother with his Maryland complaint, and took the children back to
Baltimore. Id. at 702-03.
On appeal from the Maryland circuit court proceedings, this Court held that the
temporary restraining order proceeding—which dealt with custody—was a custody
proceeding under the UCCJA. Id. at 705-06. The Court affirmed the finding of the
circuit court that the Hawaii temporary restraining order “‘was a proceeding that’s ancillary
to the UCCJA and had the welfare of the child as it implicitly relate[d] to custody as part
of its subject matter[.]’” Id. at 705 (quoting the circuit court’s opinion). The court stated
40
that “[a] ‘custody proceeding’ includes any proceeding in which custody is at issue.” Id.
at 706 (citation omitted).32
The drafters of the UCCJEA intended very broad definitions of “child custody
determination” and “child custody proceeding.” The prefatory note to the UCCJEA states
that the model statute “includes a sweeping definition that, with the exception of adoption,
includes virtually all cases that can involve custody of or visitation with a child as a
“custody determination.” UCCJEA, Prefatory Note, 9 U.L.A. Part 1A, at 651–52 (1997).
The comment on the definition of “child custody proceeding” states that “[t]he inclusion
of proceedings related to protection from domestic violence is necessary because in some
States domestic violence proceedings may affect custody of and visitation with a child.”
UCCJEA, § 102 cmt., 9 U.L.A. Part 1A, at 659 (1997).
In this case, Ms. Cabrera petitioned the Maryland district court for a protective order
for herself and A.M.C. on October 25, 2014. The TPO awarded custody of A.M.C. to Ms.
Cabrera until the final protective order hearing, scheduled for November 5, 2014, and it
allowed Mr. Mercado a visitation session with A.M.C. As stated in Ms. Cabrera’s brief
on appeal, she obtained an extension of the TPO and asked the court to reschedule the
merits hearing to November 17, 2014. The revised TPO provided for six scheduled
visitation sessions before the date of the final protective order merits hearing. The record
contains no evidence or allegation that there were any problems with these visitations, or
32
See also Stephens v. Stephens, 646 N.E.2d 682, 686 (Ind. Ct. App. 1995) (stating
that Kentucky had jurisdiction under Indiana’s enactment of UCCJA when mother had
initiated domestic violence proceedings—that addressed temporary custody—several days
before father filed custody petition in Indiana).
41
with Mr. Mercado abiding by the terms of the interim protective order or the TPO. Yet
two days before the merits hearing, Ms. Cabrera absconded with A.M.C. to Puerto Rico.
On November 17, 2014, the date the final protective order hearing was scheduled, Ms.
Cabrera’s Puerto Rico counsel filed the Puerto Rico custody complaint on her behalf.
We hold that the Maryland protective order proceeding was the first custody
proceeding. It was a “proceeding at which custody [wa]s at issue.” Cronin, 101 Md.
App. at 706; see also FL § 9.5-101(e). Similarly, the Maryland district court’s TPO was
the initial custody determination. The TPO awarded custody of A.M.C. to Ms. Cabrera
and allowed Mr. Mercado visitation with him. See FL § 9.5-101(d), (e), & (i). Therefore,
Maryland had “exclusive, continuing jurisdiction” under the UCCJEA, FL § 9.5-202, and
continuing jurisdiction under the Parental Kidnapping Statute, 28 U.S.C. § 1738A(d).
We determine that it was not legal error for the circuit court to enter the emergency
temporary custody order where the child and his parents resided in Maryland since the
child’s birth (with Maryland thereby constituting the home state under both the UCCJEA
and the Parental Kidnapping Statute, see FL § 9.5-101(h); 28 U.S.C. § 1738A(b)(4)), and
a second custody proceeding was initiated in Puerto Rico after the TPO proceeding was
initiated in Maryland. Contrary to Ms. Cabrera’s contention, FL § 9.5-206(a), precluding
Maryland’s assertion of jurisdiction when a state in substantial conformity has initiated a
proceeding, does not apply to the situation at hand. Rather, Maryland had exclusive,
continuing jurisdiction because it was both A.M.C.’s home state and the first jurisdiction
42
to make an initial child custody determination.33 Whether Puerto Rico is in substantial
conformity with Maryland’s UCCJEA, therefore, is not at issue 34 because Maryland
33
To the extent that the District Court of Maryland, the court that made the initial
custody determination, was a different state court than the Circuit Court for Montgomery
County, which later assumed control of jurisdiction over the matter, the NCCUSL
commentary on § 202 of the UCCJEA, governing exclusive, continuing jurisdiction has
the following to say:
The use of the phrase “a court of this State” under subsection (a)(1)
makes it clear that the original decree State is the sole determinant
of whether jurisdiction continues. A party seeking to modify a
custody determination must obtain an order from the original
decree State stating that it no longer has jurisdiction.
UCCJEA, § 202 cmt., 9 U.L.A. Part 1A, at 674 (1997) (emphasis added). Therefore, it is
of no import that the two courts were separate courts. Maryland retained exclusive,
continuing jurisdiction once the initial custody determination was made. FL § 9.5-202.
34
This Court has interpreted the term “substantial conformity” to bear on whether
the substantive law of the second state is in substantial conformity with Maryland’s. See,
e.g., Apenyo v. Apenyo, 202 Md. App. 401, 421-23 (2011) (declining jurisdiction in light
of previously filed Ghanan custody proceeding, despite fact that Maryland was home state
of child, and suggesting that Ghana was in substantial conformity with Maryland, in part
because it is “a sister legatee of the English common law”); Malik v. Malik, 99 Md. App.
521, 536 (1994) (under UCCJA, on substantial conformity issue, remanding to determine
whether Pakistani court applied “best interest of the child” standard or whether “the
Pakistani court applied a rule of law or evidence or procedure so contrary to Maryland
public policy as to undermine confidence in the outcome of the trial”).
However, we note that some other states, in determining whether a second court’s
jurisdiction is in substantial conformity with that of the UCCJEA—which would then
require the first court to refrain from exercising jurisdiction under their analogue to FL §
9.5-206—actually analyze whether the second state’s assertion of jurisdiction was correct
under the UCCJEA. See, e.g., Meyeres v. Meyeres, 196 P.3d 604, 607-08 (Utah Ct. App.
2008) (concluding that Utah trial court was not required to accept Kansas’s assertion of
jurisdiction over the initial custody determination when mother had beaten father to
courthouse in Kansas, but when Utah was the home state, because UCCJEA required Utah
trial court to determine whether Kansas’s exercise of jurisdiction was proper); In re Burk,
252 S.W.3d 736, 741 (Tex. Ct. App. 2008) (determining that simultaneous proceedings
section of Texas’s UCCJEA did not bar Texas from asserting jurisdiction over custody
when Texas was the home state of child because Colorado’s jurisdiction was not in
43
already had jurisdiction under both the UCCJEA and the Parental Kidnapping Statute.
We hold the circuit court did not err by entering the emergency temporary custody
order, despite the commencement of a simultaneous custody proceeding in Puerto Rico
before Mr. Mercado filed his complaint and request for the emergency order in circuit
court.
c. Inadequate Service
Ms. Cabrera next contends that the trial court inappropriately exercised jurisdiction
over the proceeding because Ms. Cabrera had not been served before November 25, 2014,
the date the court entered the emergency temporary custody order. Because Ms. Cabrera
had not been served—and had only been contacted by email and regular mail—by that
date, Ms. Cabrera contends that the emergency temporary custody order “should be vacated
and reversed.”
In response to Ms. Cabrera’s argument concerning the failure to serve her before
November 25, 2014, Mr. Mercado asserts that “Maryland’s UCCJEA further extends the
State’s reach, providing that notice for exercise of jurisdiction when a person is outside this
State may be given in a manner prescribed by the State for service of process.” (Citing
FL § 9.5-107).
An issue is moot “‘when there is no longer an existing controversy between the
parties at the time it is before the court so that the court cannot provide an effective
substantial conformity with Texas’s); In re Marriage of Sareen, 153 Cal. App. 4th 371,
376 (2007) (trial court not precluded from exercising its jurisdiction, despite a previously
filed custody proceeding in India—which was valid under Indian law—when proceeding
was filed within nine days after arrival in India).
44
remedy.’” O’Brien & Gere Eng’rs v. City of Salisbury, 447 Md. 394, 405 (2016) (quoting
Clark v. O’Malley, 434 Md. 171, 192 n.11 (2013) Ms. Cabrera’s service issue is moot
because the final custody order is the current governing order and would still govern even
if we vacated the emergency temporary custody order, as Ms. Cabrera requests. This court
was presented with a very similar situation in Krebs v. Krebs, 183 Md. App. 102 (2008).
In that case, the mother lived with the children in Arizona, and the father lived in Maryland.
Id. at 105-06. The father initiated a divorce action in the Circuit Court for Worcester
County, but he was unable to serve the mother because she was avoiding service. Id. at
106. During the children’s visit with the father in Maryland, the father became concerned
for the safety of his children—due to the mother’s instability and potential drug use—and
moved in the divorce action for emergency custody of his children. Id. at 106-07. The
motion did not contain a certificate of service, and the mother did not appear personally or
by counsel. Id. After an ex parte hearing, the Maryland magistrate granted pendente lite
custody of the children to the father. Id. at 107.
A week later, a private process server served the mother in Arizona. Id. at 107.
After a conference between the Arizona court and the Maryland magistrate, the Arizona
court agreed to decline jurisdiction on forum non conveniens grounds, despite Arizona’s
status as the home state. Id. at 108. Back in Maryland, the circuit court held a full hearing
on the merits, at which the mother was represented, whereupon the circuit court granted
custody to the father, with visitation to the mother. Id. at 109.
On appeal, the mother argued that the circuit court violated her due process rights
by holding an ex parte emergency hearing without her being served. Id. This Court held
45
that this issue was moot, explaining:
If we assume, arguendo, that [the mother] would prevail in her contention
that the court should not have issued a pendente lite order until she had notice
and an opportunity to appear at the hearing, the only relief that this Court
could grant would be to vacate the pendente lite order and remand the matter
for a new hearing at which she would have the opportunity to be present.
But, [the mother] has had a plenary hearing on the merits. Consequently,
the issue is moot.
Id. at 109-10.
In the present case, it is true that Ms. Cabrera was not served at the time the
Maryland emergency temporary custody order was entered. But Ms. Cabrera certainly
was served on December 27, 2014, well before the custody hearing on the merits, which
occurred on November 18, 2015. Ms. Cabrera had counsel and was represented at that
hearing. The only relief Ms. Cabrera requests for this alleged error is that the emergency
temporary custody order be vacated and reversed, but even if we granted her relief, it would
have no consequence because a final custody order is already in place.
We will nevertheless address the merits of Ms. Cabrera’s argument because an
appellate court “in rare instances . . . may address the merits of a moot case if [it is]
convinced that the case presents unresolved issues in matters of important public concern
that, if decided, will establish a rule for future conduct.” Coburn v. Coburn, 342 Md. 244,
250 (1996) (citing State v. Peterson, 315 Md. 73, 82 (1989). We determine that this is
such a case.
As we already have observed, despite the intent of the UCCJEA and the Parental
Kidnapping Statute, interjurisdictional battles over custody issues continue, and the
question of whether service and notice are required in an emergency custody proceeding is
46
one that is surely capable of repetition. We have the ability to review a moot issue in a
situation “where a controversy that becomes non-existent at the moment of judicial review
is capable of repetition but evading review.” Comptroller of the Treasury v. Zorzit, 221
Md. App. 274, 292 (2015) (citations omitted). Moreover, because no Maryland case has
construed FL § 9.5-107 (providing the notice requirements for out-of-state persons) we
undertake to decipher the notice and service requirements applicable to circumstances such
as those presented in this case under Maryland’s UCCJEA.
Turning to the merits we observe that Ms. Cabrera is correct in pointing out that FL
§ 9.5-205 mandates that notice be given to all parties before a child custody determination
may be made:
(a) Before a child custody determination is made under this title, notice and
an opportunity to be heard in accordance with the standards of § 9.5-107 of
this title shall be given to all persons entitled to notice under the law of this
State as in child custody proceedings between residents of this State, any
parent whose parental rights have not been previously terminated, and any
person having physical custody of the child.
As stated supra, the UCCJEA’s definition of “child custody determination” includes a
temporary order. FL § 9.5-101(d). These notice requirements apply then, to temporary
custody orders.
FL § 9.5-107 describes the notice required for out-of-state persons under
Maryland’s UCCJEA:
(a) Form. — (1) Notice required for the exercise of jurisdiction when a
person is outside this State may be given in a manner prescribed by the law
of this State for service of process or by the law of the state in which the
service is made.
(2) Notice shall be given in a manner reasonably calculated to give actual
notice but may be by publication if other means are not effective.
47
(Emphasis added). We determine the plain meaning of FL § 9.5-107 directs that notice
may be given by service of process, accomplished according to either the law of Maryland
or the law of the jurisdiction in which the person is served, but, regardless, notice must be
given in a manner reasonably calculated to provide actual notice. See UCCJEA, § 108
cmt., 9 U.L.A. Part 1A, at 664 (1997) (“This section authorizes notice and proof of service
to be made by any method allowed by either the State which issues the notice or the State
where the notice is received.”).
Maryland Rule 2-121(a), which describes how service is to be made when
commencing an action:
Service of process may be made within this State or, when authorized by the
law of this State, outside of this State (1) by delivering to the person to be
served a copy of the summons, complaint, and all other papers filed with it;
(2) if the person to be served is an individual, by leaving a copy of the
summons, complaint, and all other papers filed with it at the individual's
dwelling house or usual place of abode with a resident of suitable age and
discretion; or (3) by mailing to the person to be served a copy of the
summons, complaint, and all other papers filed with it by certified mail
requesting: “Restricted Delivery—show to whom, date, address of delivery.”
Service by certified mail under this Rule is complete upon delivery. Service
outside of the State may also be made in the manner prescribed by the
court or prescribed by the foreign jurisdiction if reasonably calculated
to give actual notice.
(Emphasis added). Both Maryland and Puerto Rico generally require personal service
when an action is commenced. Id.; P.R. Laws Ann. Tit. 32, § 4.4(a) (“Upon a person of
legal age, by delivering a copy of the summons and of the complaint to him personally or
to an agent authorized by him or appointed by law to receive service of process.”).
As excerpted above, however, notice “shall be given in a manner reasonably
48
calculated to give actual notice but may be by publication if other means are not effective.”
FL § 9.5-107(a)(2). Maryland Rule 1-351, provides the notice requirements for
emergency ex parte relief:
No court shall sign any order or grant any relief in an action upon an ex parte
application unless:
(a) an ex parte application is expressly provided for or necessarily
implied by these rules or other law, or
(b) the moving party has certified in writing that all parties who
will be affected have been given notice of the time and place of
presentation of the application to the court or that specified
efforts commensurate with the circumstances have been made to
give notice.
(Emphasis added).
It is undisputed that Ms. Cabrera was not personally served before November 25,
2014, the date the circuit court entered the emergency temporary custody order. Ms.
Cabrera was not served until December 27, 2014, the date that the process server served
her father, a person of “suitable age and discretion” who resided in her abode, in Puerto
Rico. See Md. Rule 2-121(a).
On November 24, 2014, Mr. Mercado presented the circuit court with (1) a copy of
a November 20, 2014 email from Mr. Mercado’s counsel to Ms. Cabrera demanding
A.M.C.’s return to Maryland, along with a corresponding email delivery report; (2) a copy
of a November 21, 2014 email from Mr. Mercado’s counsel to Ms. Cabrera, advising her
of the November 24, 2014 temporary custody proceeding; (3) a copy of a November 21,
2014 email sent by Mr. Mercado’s counsel to Ms. Cabrera’s Puerto Rico counsel informing
him of the November 24 hearing and attaching the writ of summons, the custody and
divorce complaint, and the emergency custody motion, along with a corresponding email
49
delivery report; and (4) a copy of a November 21, 2014 email correspondence in which
Mr. Mercado’s counsel sent Ms. Cabrera’s protective order counsel a copy of the writ of
summons, the divorce and custody complaint, the Emergency Motion, and notice of the
November 24, 2014 hearing and the protective order counsel’s response that she no longer
represented Ms. Cabrera.35
In this case, Ms. Cabrera absconded to Puerto Rico without notice, and made herself
unavailable to personal service. Mr. Mercado’s counsel tried to provide her notice by (1)
emailing Ms. Cabrera several times advising her of the November 24, 2014 temporary
custody proceeding, and (2) emailing Ms. Cabrera’s Puerto Rico counsel and Maryland
counsel informing them of the November 24, 2014 hearing and attaching copies of the writ
of summons, the custody and divorce complaint, and the emergency custody motion. Mr.
Mercado tried himself to call and email Ms. Cabrera. Before the hearing on November
24, 2014, Mr. Mercado filed a supplement to the emergency custody motion that contained
attachments of the foregoing correspondence, thereby “certify[ing] in writing that all
parties who will be affected have been given notice of the time and place of presentation
of the application to the court or that specified efforts commensurate with the
circumstances have been made to give notice.” See Md. Rule 1-351.
We conclude that, in this factual context, where a party has fled the jurisdiction and
35
At oral argument, Mr. Mercado’s counsel claimed to have called, written, and
emailed Ms. Cabrera’s counsel with notice of the circuit court proceedings, only to be
informed that that counsel no longer represented Ms. Cabrera. Mr. Mercado’s counsel
then gave Ms. Cabrera’s new Puerto Rico counsel notice with all pleadings that had been
filed and copied Ms. Cabrera.
50
made herself unavailable, that the efforts of counsel to inform the absconded party of the
emergency (and thus, temporary) proceeding complied with Maryland Rule 1-351 and the
Maryland law prong of FL § 9.5-107(a)(1) because such efforts were “reasonably
calculated to give actual notice[,]” thereby satisfying FL § 9.5-107(a)(2). We hold,
therefore, that under the circumstances, the circuit court did not commit error by entering
the emergency temporary custody order without personal service on Ms. Cabrera.
51
d. The Trial Court’s Entry of a Custody Order Without First Communicating
with the Puerto Rico Court
Ms. Cabrera next argues that FL § 9.5-204(d)(1)36 requires that when a Maryland
court becomes aware that a child custody proceeding has commenced in another
jurisdiction, the court must immediately communicate with that jurisdiction before
making a child custody determination. Ms. Cabrera maintains that the circuit court’s
failure to do so requires that this Court “vacate[] and reverse[]” the emergency temporary
custody order. Mr. Mercado offers no specific argument to combat Ms. Cabrera’s
contention on this issue.
36
FL § 9.5-204 provides, in pertinent part:
(a) Grounds. — A court of this State has temporary emergency jurisdiction
if the child is present in this State and the child has been abandoned or it is
necessary in an emergency to protect the child because the child, or a sibling
or parent of the child, is subjected to or threatened with mistreatment or
abuse.
***
(d) Communication with other state court. — (1) A court of this State that
has been asked to make a child custody determination under this section, on
being informed that a child custody proceeding has been commenced in, or
a child custody determination has been made by, a court of a state having
jurisdiction under §§ 9.5-201 through 9.5-203 of this subtitle, shall
immediately communicate with the other court.
(2) A court of this State that is exercising jurisdiction in accordance with §§
9.5-201 through 9.5-203 of this subtitle, on being informed that a child
custody proceeding has been commenced in, or a child custody determination
has been made by, a court of another state under a statute similar to this
section shall immediately communicate with the court of that state to resolve
the emergency, protect the safety of the parties and the child, and determine
a period for the duration of the temporary order.
52
We determine that Ms. Cabrera’s issue concerning the circuit court’s failure to
communicate with the Puerto Rico court is moot for the same reason that the failure of
service issue is moot. Although the circuit court failed to communicate with the Puerto
Rico court before entering the emergency temporary custody order on November 25, 2014,
the circuit court had communicated with the Puerto Rico court by June 3, 2015, before the
entry of the final—and governing—custody order in this case.
Although we do not believe the more nuanced circumstances surrounding the circuit
court’s communications with the Court in Puerto Rico demand that we bypass mootness
and engage in a full analysis of Ms. Cabrera’s issue on appeal, we will make a few
observations. First, Ms. Cabrera’s assertion that FL § 9.5-204(d)(1) applies to the
situation at hand is a misreading of the statute and the status of Maryland’s jurisdiction
over the case. Subsection (d)(1) requires that a court that is exercising emergency
temporary custody jurisdiction under FL § 9.5-204 immediately communicate with the
court exercising jurisdiction under FL §§ 9.5-201 to 203. Even though the circuit court
entered a temporary emergency custody order, at no point in these proceedings was
Maryland exercising temporary jurisdiction under FL § 9.5-204. As we have previously
explained, Maryland was the home state of the child and was exercising continuing
jurisdiction pursuant to FL § 9.5-201-02.37
Second, Ms. Cabrera’s counsel did not broach the idea of contacting the Puerto Rico
37
In addition, FL § 9.5-204(a) requires that the child to be in the State for a court
to exercise temporary jurisdiction. A.M.C. was not in Maryland at this time, so the circuit
court could not have been exercising temporary emergency jurisdiction under FL § 9.5-
204.
53
court until a hearing on May 15, 2015, whereupon the circuit court said that it would. In
fact, the circuit court decided to reserve on Ms. Cabrera’s motion to decline jurisdiction
until it could speak to the Puerto Rico court.
e. The Circuit Court’s Refusal to Decline Jurisdiction
Ms. Cabrera contends that the circuit court failed to properly consider whether
Maryland was an inconvenient forum for a determination of the custody dispute because
the court failed to recite the requisite statutory factors that must be considered under the
UCCJEA. She maintains that domestic abuse tops the list of statutory factors and states
that the court’s failure to consider this factor was an abuse of discretion. She claims Puerto
Rico was the more convenient jurisdiction because the noncustodial parent is in a better
position to litigate from afar than the custodial parent. Mr. Mercado does not specifically
address this argument in his brief.
We review a court’s decision whether to decline to exercise jurisdiction in favor of
a more convenient forum for abuse of discretion:
The decision whether to relinquish the court's jurisdiction in favor of a more
convenient one is one addressed to the sound discretion of the court. See
Krebs v. Krebs, 183 Md. App. 102, 117, 960 A.2d 637, 646 (2008)
(reviewing a court's decision to decline jurisdiction for abuse of discretion).
This is confirmed by the fact that the statute authorizing the making of the
decision enumerates a number of factors that the court must consider, without
prescribing what the decision should be. “Before finding an abuse of
discretion we would need to agree that, ‘the decision under consideration [is]
well removed from any center mark imagined by the reviewing court and
beyond the fringe of what that court deems minimally acceptable.’” In re Yve
S., 373 Md. 551, 583–84, 819 A.2d 1030, 1049 (2003) (quoting In re
Adoption/Guardianship No. 3598, 347 Md. 295, 312–13, 701 A.2d 110, 118–
19 (1997) (some internal citations omitted)).
Miller v. Mathias, 428 Md. 419, 454 (2012).
54
The Maryland UCCJEA specifies the factors a court should address in
considering whether Maryland is an inconvenient forum at FL § 9.5-207:
(a) Action if this State is inconvenient forum. — (1) A court of this State
that has jurisdiction under this title to make a child custody
determination may decline to exercise its jurisdiction at any time if it
determines that it is an inconvenient forum under the circumstances
and that a court of another state is a more appropriate forum.
(2) The issue of inconvenient forum may be raised upon motion of a
party, the court's own motion, or request of another court.
(b) Factors in determination. — (1) Before determining whether it is an
inconvenient forum, a court of this State shall consider whether it is
appropriate for a court of another state to exercise jurisdiction.
(2) For the purpose under paragraph (1) of this subsection, the court
shall allow the parties to submit information and shall consider all
relevant factors, including:
(i) whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the
parties and the child;
(ii) the length of time the child has resided outside this State;
(iii) the distance between the court in this State and the court
in the state that would assume jurisdiction;
(iv) the relative financial circumstances of the parties;
(v) any agreement of the parties as to which state should
assume jurisdiction;
(vi) the nature and location of the evidence required to resolve
the pending litigation, including testimony of the child;
(vii) the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and
(viii) the familiarity of the court of each state with the facts and
issues in the pending litigation.
(c) Stay of proceeding. — If a court of this State determines that it is an
inconvenient forum and that a court of another state is a more appropriate
forum, it shall stay the proceedings upon condition that a child custody
proceeding be promptly commenced in another designated state and may
impose any other condition the court considers just and proper.
Ms. Cabrera’s argument assumes that the circuit court did not consider these factors
because the judge did not state all of her reasons for her decision not to decline jurisdiction
55
on the record at the time the decision was entered. However, FL § 9.5-207 only requires
that the court consider these factors, and we decline to graft onto the statute a requirement
that the judge must state a finding as to each factor onto the record.
In the present case, Ms. Cabrera filed her motion to decline jurisdiction under the
UCCJEA on March 20, 2015. The parties filed pleadings with the court detailing their
positions on the above-recited factors, and providing the court with information such as the
relative financial circumstances of the parties. The court then held a hearing on May 15,
2015, part of which concerned Ms. Cabrera’s motion, and the judge reserved on the matter
until she could have a conversation with the Puerto Rico court. Before the next hearing,
on June 3, 2015, the court had been in contact with the judge in Puerto Rico by phone. At
the hearing the judge recited at length her reasons for her conclusion that “I don’t have any
question that Maryland is the child’s home state by our law, and that there’s nothing about
the situation in Puerto Rico that would, and particularly not anything about the way in
which the Puerto Rican order was obtained, that persuades me at this point that we ought
to cede our jurisdiction on a forum non[] connvenien[s] basis.” The court took the matter
under advisement, however, until September 14, 2015 when it finally entered the order
denying Ms. Cabrera’s motion to decline jurisdiction. The record is clear that the circuit
court judge in this case considered—indeed struggled with—the circumstances presented
in this case from the time of the emergency temporary custody hearing on November 24,
2014 to the entry of the order denying the request to decline jurisdiction, almost a year
later. The transcripts of the various proceedings, described and excerpted supra,
demonstrate that the judge considered the requisite factors under FL § 9.5-207. We
56
discern no abuse of discretion in the court’s denial of Ms. Cabrera’s motion to decline
jurisdiction for forum nonconveniens.
II.
Body Attachment
At the threshold of Ms. Cabrera’s issues concerning the body attachment order
entered on June 15, 2015, lies Mr. Mercado’s contention that the order denying the motion
to revise the body attachment order is not an appealable order and that, therefore, this Court
has no jurisdiction to address these issues. Mr. Mercado also contends that an order of
body attachment is not final and appealable until served.
Ms. Cabrera presses that the interlocutory order is appealable: (1) as a final
judgment; (2) as an order for contempt, pursuant to CJP § 12-304; (3) as an appealable
interlocutory order as a custody decision under CJP § 12-303(3)(x), and; (4) that an order
for body attachment is appealable under the collateral order doctrine. She also argues that
Maryland Rule 2-534 tolled the time for her to file her notice of appeal of the body
attachment.
The body attachment order was entered by the clerk of the circuit court on June 15,
2015. On August 3, 2015, the clerk entered the court’s order denying Ms. Cabrera’s
motion to revise the order of body attachment. On August 19, 2015, Ms. Cabrera filed
her first notice of appeal, appealing the order denying the motion to revise the body
attachment. Notably, this notice of appeal was filed not within 30 days of the order of
body attachment, which was entered on June 15, 2015; it was only filed within 30 days of
the denial of the motion to revise the body attachment.
57
Before we turn to Ms. Cabrera’s professed grounds for appeal, we note that because
the final order of custody is not itself a final judgment and is only appealable under CJP §
12-303(3)(x), there must be an independent basis to appeal the court’s interlocutory order
denying the motion to revise the body attachment.38 See Quillens v. Moore, 399 Md. 97,
115 (2007) (citations omitted) (“an appeal generally must be taken from a final judgment;
the decision must be ‘so final as to determine and conclude rights involved, or deny the
appellant means of further prosecuting or defending his rights and interests in the subject
matter of the proceeding.’”). An appellate court “look[s] to whether any further order
was to be issued or whether any further action was to be taken in a case to determine
whether an order or ruling is a final, appealable judgment.” Nnoli v. Nnoli, 389 Md. 315,
324 (2005) (citing In re Samone H., 385 Md. 282, 297-98 (2005)). The order appealed
from—the August 3, 2015 order denying Ms. Cabrera’s motion to revise the body
attachment—was not intended by the court “as an unqualified, final disposition of the
matter in controversy,” and it did not “adjudicate or complete the adjudication of all claims
against all parties[.]” See Rohrbeck, 318 Md. at 41. The body attachment was intended
to incentivize Ms. Cabrera’s attendance so that the case could proceed.
38
Although Maryland Rule 8-131(d) provides that “[o]n an appeal from a final
judgment, an interlocutory order previously entered in the action is open to review by the
Court unless an appeal has previously been taken from that order and decided on the merits
by the Court[,]” no final judgment was entered in this case by the time the third notice of
appeal was filed. The docket on Maryland Judiciary Case Search reflects that the parties
continued to litigate their divorce in the circuit court action below, which came to a trial
on April 14. A final judgment of divorce, which presumably disposed of all claims against
all parties in Mr. Mercado’s November 21, 2014 complaint, was entered on April 20, 2016.
No appeal was taken from that judgment.
58
In Nnoli v. Nnoli, the Court of Appeals addressed the appealability of a denial of a
motion to quash a body attachment that had previously been issued. 389 Md. 315, 324
(2005). We address this case first because it bears on many of the independent grounds
that Ms. Cabrera asserts as grounds for the appealability of the interlocutory order denying
the motion to revise the body attachment.
In Nnoli, the Court first noted that the petitioner was not appealing from an order
holding him in contempt, but was appealing from a denial of a motion to quash a body
attachment. Id. at 323. The court defined a “body attachment” as an “order[] directing
law enforcement to take a person into custody and bring the person before the court.” Id.at 323 n.1 (citing Wilson v. State, 345 Md. 437, 450 (1997)). The Court held that such an
order was not appealable because it was not a final judgment, was not permitted under
Maryland Rule 2-602, CJP § 12-303, or the collateral order doctrine. Id. Thus, there is
a case that is directly on point holding that an order very similar to the order in the case
sub judice is not immediately appealable.
Even setting the Nnoli decision aside, we can find no legal basis to support Ms.
Cabrera’s putative grounds for the appealability of the order denying the motion to revise
the body attachment. Ms. Cabrera improperly invokes Rule 2-534.39 Because that Rule
39
Maryland Rule 2-534 provides:
In an action decided by the court, on motion of any party filed within ten
days after entry of judgment, the court may open the judgment to receive
additional evidence, may amend its findings or its statement of reasons for
the decision, may set forth additional findings or reasons, may enter new
findings or new reasons, may amend the judgment, or may enter a new
judgment. A motion to alter or amend a judgment may be joined with a
59
applies only after a final judgment disposing of all the issues is rendered, it is inapplicable
in the present context. See Renbaum v. Custom Holding, Inc., 386 Md. 28, 45 (2005)
(citations omitted) (“Indeed, a motion to alter or amend a judgment may not be entertained
(and is generally a nullity) until entry of the subject judgment.”). And, Ms. Cabrera’s
next argument that CJP § 12-30440 provides an avenue for her to appeal the original body
attachment order is equally unavailing. Even if we agree (and we don’t) that the General
Assembly intended that such an interlocutory order is immediately appealable under § 12-
304 as an order of contempt, she would still need to comply with Maryland Rule 8-202’s
requirement that one must file a notice of appeal within 30 days of the order. See In re
Guardianship of Zealand W., 220 Md. App. 66, 78-79 (2014) (citations omitted) (“Even
when interlocutory appeals are permitted, however, such an appeal must be filed within
thirty days of the entry of the order from which the appeal is taken. If the appeal is not
filed within thirty days after the entry of an appealable interlocutory order, this Court lacks
jurisdiction to entertain the interlocutory appeal.”); see also Spivery-Jones v. Receivership
Estate of Trans Healthcare, Inc., 438 Md. 330, 357-58 (2014) (Where the Court of Appeals
motion for new trial. A motion to alter or amend a judgment filed after the
announcement or signing by the trial court of a judgment but before entry of
the judgment on the docket shall be treated as filed on the same day as, but
after, the entry on the docket.
40
CJP § 12-304 states, in pertinent part:
Any person may appeal from any order or judgment passed to preserve the
power or vindicate the dignity of the court and adjudging him in contempt of
court, including an interlocutory order, remedial in nature, adjudging any
person in contempt, whether or not a party to the action.
60
determined that an order denying a motion to vacate a receivership was not an appealable
interlocutory order).
Finally, there is no reading of CJP § 12-303(3)(x) that would allow the order
denying the motion to revise the body attachment to be appealable as a custody order, and
invoking the collateral order doctrine does nothing more to save Ms. Cabrera’s appeal.
The collateral order doctrine “‘is a very narrow exception to the general rule that appellate
review ordinarily must await the entry of a final judgment disposing of all claims against
all parties.’” Kurstin v. Bromberg Rosenthal, LLP, 191 Md. App. 124, 144 (2010)
(emphasis in Kurstin) (quoting Pittsburgh Corning v. James, 353 Md. 657, 660-61 (1999)).
The collateral order doctrine has four elements:
(1) it must conclusively determine the disputed question;
(2) it must resolve an important issue;
(3) it must be completely separate from the merits of the action; and
(4) it must be effectively unreviewable on appeal from a final judgment.
Osborn v. Bunge, 338 Md. 396, 403 (1995) (citing Montgomery Cnty. v. Stevens, 337 Md.
471, 477 (1995)). In Broadway v. State, this Court held that an order for a body
attachment, in the criminal context, was not appealable as a final order—or under the
collateral order doctrine—until the body attachment was served on the person because no
issue had been “conclusively determined” until service. 202 Md. App. 464, 477-78
(2011) (citations omitted) (internal quotation marks omitted). Here, Ms. Cabrera has
61
never been served with the body attachment, so it is not appealable under the collateral
order doctrine.41
Because none of the foregoing grounds cited by Ms. Cabrera provide her an avenue
to appeal the order denying her motion to revise the order of body attachment, we hold that
we are without jurisdiction to address her issues concerning the circuit court’s issuance of
the body attachment.
ORDER OF CUSTODY AFFIRMED.
APPEAL OF ORDER DENYING MOTION
TO REVISE ORDER OF BODY
ATTACHMENT DISMISSED.
COSTS TO BE PAID BY APPELLANT.
41
The parties do not argue CJP § 12-303(2) as a basis for jurisdiction, but that
statutory subsection allows an appeal from “[a]n order granting or denying a motion to
quash a writ of attachment.” No case has applied this section to a body attachment; the
cases applying this section are appeals from writs of attachment for property. See, e.g.,
Phyllis J. Outlaw and Assocs. v. Graham, 172 Md. App. 16 (2006).
62