Werner S. Hindrichs v. Diane F. Hindrichs Godorov

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
WERNER SAEMMLER HINDRICHS
MEMORANDUM OPINION * BY
v. Record No. 1936-97-2 JUDGE JAMES W. BENTON, JR.
AUGUST 11, 1998
DIANE FRANCES (HINDRICHS) GODOROV
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Carolyn M. Grimes (Sharon K. Lieblich, P.C.,
on briefs), for appellant.
(V. James Ventura; V. James Ventura, P.C., on
brief), for appellee. Appellee submitting on
brief.
Upon Diane (Hindrichs) Godorov's motion, the trial judge
declined to exercise further jurisdiction over matters pertaining
to custody and visitation of the parties' minor children and
found that Pennsylvania is a more appropriate forum pursuant to
Code § 20-130. Werner Saemmler Hindrichs, the children's father,
appeals that decision. The father contends that because these
matters have been extensively litigated by the parties in
Virginia and because the mother was procedurally barred from
making the motion, the trial judge abused his discretion in
deferring jurisdiction to Pennsylvania as a more appropriate
forum. We affirm the decree.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
The parties were married in Virginia in 1984 and separated
in 1992. In 1993, a judge entered a pendente lite order granting
the mother physical custody of the two children and the father
visitation rights. A final divorce decree was entered in the
Circuit Court of the City of Fredericksburg in 1994. The parties
and children resided in Fredericksburg from 1990 until 1994, when
the mother enrolled in medical school and moved with the children
to Philadelphia, Pennsylvania. In 1996, the father moved from
Fredericksburg and now resides in Fairfax County.
In April 1996, the father filed a petition to enforce
visitation. In May 1997, a day before the hearing on the
father's petition was scheduled, the mother filed a petition
requesting the court to decline to exercise further jurisdiction
in this matter. The mother alleged "[t]hat the Commonwealth of
Pennsylvania is and has been the home state of the minor children
since 1994"; that Pennsylvania is "the most convenient forum for
the benefit of the minor children and [where] the preponderance
of facts and circumstances governing the welfare, development and
needs of the minor children are most prevalent"; that the
children's counselor for the preceding seven months resides and
practices in Pennsylvania; and that the father no longer resides
in Fredericksburg, Virginia.
After considering the parties' arguments concerning their
respective motions, the judge ruled as follows:
The children are now and have been for years
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residents of the State of Pennsylvania. . . .
This court, . . . pursuant to . . . [Code
§] 20-108, . . . finds that it has provided
the relief that the father is entitled at
this juncture, that if there are any changes
in custody or support [they] are better
addressed in the forum in which the children
reside, and that is not the City of
Fredericksburg. . . . In fact, neither party
resides in the City of Fredericksburg, nor do
the children reside in the Commonwealth of
Virginia.
The trial judge entered two orders. The first order set a
definite visitation schedule and stated that "[a]ny modifications
in visitation are to be resolved by agreement of the parties" or
"are to be addressed in the appropriate forum where the children
reside." The second order stated as follows:
[U]pon all of the evidence received in the
collective hearings of these parties before
this Court, it appearing unto this Court that
the home state of the minor children of the
parties . . . is and has been in the
jurisdiction of their residence within the
Commonwealth of Pennsylvania, this Court
hereby DECLINES to further exercise
jurisdiction pursuant to [Code §] 20-130
. . . and finds that the Court of competent
jurisdiction serving the residence of the
aforesaid children is the appropriate forum,
and all further matters regarding the minor
children of these parties are transferred to
said Court for enforcement and/or
modification.
. . . The Court declines to further hear
in this forum matters of modification of this
Court's prior Orders, referring same to the
more convenient forum as hereinabove set
forth.
II.
The questions presented by the father raise the issue
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whether the trial judge improperly applied the provisions of the
Uniform Child Custody Jurisdiction Act (UCCJA), Code § 20-125
et seq., in declining to exercise further jurisdiction over
matters of custody and visitation and in holding that a
Pennsylvania court was a more appropriate forum.
The father raises certain procedural matters that we will
address first. The father alleges the mother provided
insufficient notice of her claims under the UCCJA and that her
petition, filed only one day before the hearing on the father's
petition for modification of visitation, failed to provide the
father with reasonable notice as required by Code § 20-127 and
Fariss v. Tsapel, 3 Va. App. 439, 350 S.E.2d 670 (1986).
The mother's motion required the trial judge to consider
Code § 20-125 et seq. and alleged that the relocation of the
children had constituted the establishment of a new "home state."
The motion also alleged that the children's continued presence
in Pennsylvania for two and one half years made Pennsylvania the
situs of more substantial connections and evidence concerning the
present status of the minor children.
Code § 20-127 provides that "[b]efore making a decree under
this chapter, reasonable notice and opportunity to be heard shall
be given to . . . any parent whose parental rights have not been
previously terminated." In Fariss, where the mother made her
motion to alter the father's visitation rights for the first time
at trial, we held that "[a]s a parent whose parental rights have
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not been terminated, [the father] was statutorily entitled to
reasonable notice of the motion to alter his visitation rights
with respect to his children - before the decree was entered."
Id. at 441, 350 S.E.2d at 672. Although the notice requirements
of the UCCJA apply to custody and visitation proceedings, they do
not apply, however, to a court's decision declining to exercise
jurisdiction and deferring jurisdiction to another state.
See Lutes v. Alexander, 14 Va. App. 1075, 1084, 421 S.E.2d 857,
863 (1992). Moreover, the trial judge granted the mother's
motion for a continuance on the date of the hearing and, thus,
provided the father with adequate time to prepare a defense to
the motion to decline jurisdiction.
The father also contends that the mother did not attach to
her initial pleading the affidavit required by Code § 20-132. In
pertinent part, Code § 20-132 provides as follows:
A. Every party in a custody proceeding in
his first pleading or in an affidavit
attached to that pleading shall give
information under oath as to the child's
present address, the places where the child
has lived within the last five years, and the
names and present addresses of the persons
with whom the child has lived during that
1
period.
However, the mother's motion, which requested the court to
1
Code § 20-132 applies to the first pleading in a "custody
proceeding." A "'[c]ustody proceeding' includes proceedings in
which a custody determination is an issue, such as an action for
divorce or separation." Code § 20-125(3). A "'[c]ustody
determination' means a court decision and court orders and
decrees providing for the custody of a child, including
visitation rights." Code § 20-125(2).
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decline to exercise further jurisdiction, was not the first
pleading in this custody proceeding. Rather, it was a petition
in an existing and continuing custody case. Therefore, the
absence of an affidavit did not preclude the mother from moving
the court to decline further jurisdiction.
The father also argues that the trial judge erred in
entering contemporaneous orders, one granting visitation and the
other declining further jurisdiction. The trial judge
specifically indicated that he would only clarify his prior order
of visitation by establishing specific dates for visitation so as
to ensure visitation pending any application by the father for
relief in the more convenient forum. The trial judge refused to
modify the prior order by enlarging visitation, and the trial
judge directed that the portion of the petition filed by the
father seeking enlargement of visitation be filed in the more
appropriate forum.
Moreover, by declining to exercise jurisdiction under Code
§ 20-130, the trial judge was declining "to make an initial or
modification decree." The trial judge did not decline to enforce
a decree already in existence. Such a decree continues to have a
res judicata effect under Code § 20-135 and will be enforced by a
court in any state including Virginia. See Code § 20-136. In
the present case, the trial judge was declining to modify the
decree, not to enforce it.
The father contends that because the trial judge's order
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fails to identify the alternative forum in Pennsylvania to which
jurisdiction should be deferred, the father is left without a
forum to enforce his visitation rights. Citing Mubarak v.
Mubarak, 14 Va. App. 616, 420 S.E.2d 225 (1992), the father
argues that "before the trial court should defer jurisdiction to
another forum, it should know the identity of that forum." Id.
at 622, 420 S.E.2d at 228. In Mubarak, we ruled that "the
criteria contained in the statute and outlined in Middleton [v.
Middleton, 227 Va. 82, 314 S.E.2d 362 (1984),] required the trial
court to defer the exercise of jurisdiction to the appropriate
court in Great Britain" where the children resided and where
evidence of their needs existed. Id. at 621, 420 S.E.2d at 228.
However, because the record did not furnish the name of the
appropriate court and did not establish whether the alternative
forum "is known to the father or is identifiable," we reversed
and remanded the case for further proceedings to ascertain the
appropriate court having jurisdiction over the children. Id. at
622, 420 S.E.2d at 228.
In this case, counsel for the father told the trial judge
that he wanted the order to refer to the specific court that
would have jurisdiction and stated that he "would try to find out
what that would be, so we are just not referring it to
Pennsylvania and then struggling with who ends up with this court
order." Counsel for the father stated that he would identify the
court, and the trial judge agreed. However, counsel never
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identified such court. The proposed order drafted by the
mother's counsel listed the forum as the Court of Common Pleas in
Philadelphia, Pennsylvania. When the father objected to the use
of this court, the trial judge instructed counsel to "amend your
order . . . to say . . . the appropriate Court in the
Commonwealth of Pennsylvania . . . having proper jurisdiction."
The final order states that "the Court of competent jurisdiction
serving the residence of the aforesaid children[, the
Commonwealth of Pennsylvania,] is the appropriate forum." From
the record, it is apparent that the appropriate forum in
Pennsylvania is "identifiable" to the father. The trial judge
did not err.
The father also argues that the trial judge had no evidence
upon which he could base his finding of inconvenient forum
because no testimony was presented at the hearing. The trial
judge specifically ruled that his finding was based upon the
collective evidence submitted at all prior hearings. The motion
filed by the mother seeking the decline of jurisdiction alleged
certain facts that were not disputed by the father's answer.
Each counsel made proffers at the hearing, and each party made
informal statements to the trial judge to which no objection was
made. Therefore, from the record as a whole it appears to us
that the trial judge had a sufficient basis upon which to make a
sound decision.
III.
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The Supreme Court has noted that the UCCJA was enacted to
serve a number of general purposes.
[T]he Virginia UCCJA was enacted to avoid
jurisdictional competition and conflict with
courts of other states in matters of child
custody; to promote cooperation with courts
of other states so that a custody decree is
rendered in a state which can best decide the
issue in the interest of the child; to assure
that litigation over the custody of a child
ordinarily occurs in the state that is most
closely connected with the child and his
family and where significant evidence
concerning his care, protection, training and
personal relationships is most readily
available; to assure that the courts of this
state decline the exercise of jurisdiction
when the child and his family have a closer
connection with another state; [and] to
discourage continuing controversies over
child custody.
Middleton, 227 Va. at 93, 314 S.E.2d at 367.
Under Code § 20-130(A), "[a] court which has jurisdiction
[to modify a decree] may decline to exercise its jurisdiction
. . . if it finds that it is an inconvenient forum . . . and that
a court of another state is a more appropriate forum." The court
may decline jurisdiction for, among other reasons, the fact that
"another state is or recently was the child's home state;"
"another state has a closer connection with the child and his
family"; or "substantial evidence concerning the child's present
or future care, protection, training, and personal relationships
2
is more readily available in another state." Code § 20-130(C).
2
Code § 20-130(C) provides as follows:
C. In determining if it is an inconvenient forum,
the court shall consider if it is in the interest of
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"The paramount consideration for a trial court, even on the
determination of the most convenient forum to decide child
custody and visitation, is the child's welfare." Farley v.
Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990).
In matters of a child's welfare, trial courts
are vested with broad discretion in making
the decisions necessary to guard and to
foster a child's best interests. A trial
court's determination of matters within its
discretion is reversible on appeal only for
an abuse of that discretion, and a trial
court's decision will not be set aside unless
plainly wrong or without evidence to support
it.
Id. at 328, 387 S.E.2d at 795 (citations omitted). Thus, when "a
trial court makes a determination which is adequately supported
by the record, the determination must be affirmed." Id. at 328,
387 S.E.2d at 796. See also Johnson v. Johnson, 26 Va. 135, 144,
493 S.E.2d 668, 672 (1997). Furthermore, in our review of a
trial judge's custody decision, we view the evidence in the light
the child that another state assume jurisdiction. For
this purpose, it shall take into account the following
factors, among others:
1. If another state is or recently was
the child's home state;
2. If another state has a closer
connection with the child and his family or
with the child and one or more of the
contestants;
3. If substantial evidence concerning
the child's present or future care,
protection, training, and personal
relationships is more readily available in
another state; and
4. If the parties have agreed on another
forum which is no less appropriate.
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most favorable to the prevailing party below. See Lutes, 14 Va.
App. at 1077, 421 S.E.2d at 859.
The father contends that the trial judge relied solely on
the physical presence of the children in Pennsylvania in making
his decision to decline jurisdiction. The father argues that
"[u]nder the UCCJA, physical presence of the child as a
jurisdictional basis in all but the most extreme cases has been
eliminated." Middleton, 227 Va. at 97, 314 S.E.2d at 369.
In this case, the trial judge cited as his reason for
declining jurisdiction that Pennsylvania was the children's "home
state" under the UCCJA. "Although a trial court may fail to
specify and recite in its order all the possible reasons and
adequate bases for its determination, where it is obvious from
review of the record that the trial court's determination was
made with the child's welfare as paramount, and it is clear that
the decision is in the child's best interests, the determination
is not without substantial, competent, and credible evidence to
support it." Farley, 9 Va. App. at 329, 387 S.E.2d at 796.
Reviewing the factors set out in Code § 20-130, it is clear
that credible evidence supports the trial judge's decision.
First, Virginia is not the home state of the children within the
meaning of the UCCJA. "'Home state' means the state in which the
child immediately preceding the time involved lived with . . . a
parent . . . for at least six consecutive months." Code
§ 20-125(5). Both children and the mother, the custodial parent,
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have resided in Pennsylvania for two and one half years. Second,
Pennsylvania has a "closer connection" with the children and "one
or more of the contestants," the mother. Id. The children's
"contact with Virginia is, and has been for some time, greatly
attenuated." Farley, 9 Va. App. at 329, 387 S.E.2d at 796.
Third, the most recent evidence concerning the children's care,
protection, training, and personal relationships is in
Pennsylvania. Pennsylvania is also the place where the evidence
concerning the children's future care would develop. See
Johnson, 26 Va. App. at 148, 493 S.E.2d at 674. Therefore,
Pennsylvania's courts and social services departments have a far
greater ability to investigate and provide services to the
children. At this point, "for a Virginia court to adjudicate
child custody and visitation and to provide for the supervision
would require long distance observation and fact-finding, rather
than the intimate familiarity and interaction necessary in cases
of this type." Farley, 9 Va. App. at 330, 387 S.E.2d at 796-97.
For these reasons, we hold that the trial judge did not
abuse his discretion in finding that a Pennsylvania court would
be a more convenient forum and in refusing to exercise further
jurisdiction in this matter. We therefore affirm the trial
judge's decision to transfer jurisdiction.
Affirmed.
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