184 Conn. 421

Anthony Agnello v. Virginia Becker

Bogdanski, C. J., Peters, Healey, Armentano and Shea, Js.

Argued February 11

decision released June 16, 1981

*422Herbert F. Rosenberg, for the appellant (plaintiff).

David P. Ball, with whom, on the brief, was Steven M. Olivo, for the appellee (defendant).

Arthur H. Healey, J.

In this case, the plaintiff appeals from the judgment of the trial court which refused to order the return of a minor child to the custody of the plaintiff and to the state of New Jersey, and failed to find the defendant in contempt. It involves the application of the Uniform Child Custody Jurisdiction Act (UCCJA), which has been adopted by both Connecticut and New Jersey.1

The circumstances which generated this action are as follows: The plaintiff and the defendant lived together out of wedlock from February, 1974, until September, 1978, in the state of New Jersey. A female child was born to them on June 23, 1977.

On September 16, 1978, the plaintiff and the defendant separated. In November, 1978, the plaintiff removed the child from the defendant’s home while the defendant was at work. For nearly one *423year, the child lived with the plaintiff. During this time, the defendant hired two investigators to find Nicole. The defendant finally discovered her whereabouts in October, 1979. On November 15, 1979, the defendant removed the child from a nursery school parking lot. She brought the child with her to the state of Connecticut, where she had assumed residence about one week earlier. Prior to November 15, 1979, the child had lived her entire life in New Jersey, and had never been out of the state.

On or about November 24, 1979, the plaintiff instituted an action to obtain custody of the child in the Superior Court, Chancery Division, of Passaic County in New Jersey. This action was instituted pursuant to the UCCJA. N. J. Stat. Ann. §§ 2A: 34-28 through 2A: 34-52. On that same date, the New Jersey court entered an ex parte order and directed that “temporary custody of [the child] be . . . awarded to the plaintiff until further order of this court” and that the “defendant . . . forthwith return custody of the child to the plaintiff.”2 The court further ordered that the defendant appear before it on December 14, 1979, or as soon as possible thereafter, to “show cause . . . why the within order should not be made permanent.” The “show cause” order was personally served upon the defendant in Connecticut by a deputy sheriff for Fairfield County on December 9,1979.3

*424The defendant retained the services of a New Jersey attorney4 who appeared at the December 14, 1979 hearing. Upon the attorney’s advice, the defendant did not present herself or the child in court on that date. After hearing argument by counsel on December 14,1979, the New Jersey court found that it had jurisdiction to make a child custody determination pursant to the UCCJA, and advised the defendant to “return the child to this Jurisdiction and to the custody of the Plaintiff herein by 12 o’clock Noon, December 17,1979.”5 6The defendant received by mail from her attorney an unsigned copy of the court’s order. The plaintiff contends that a copy of this order was personally served upon the defendant by a deputy sheriff for Fairfield County in January, 1980. The defendant has not returned the child to the custody of the plaintiff or to the state of New Jersey.

The plaintiff instituted the present action in the Superior Court for the judicial district of Danbury in January, 1980, requesting the court to enforce the orders of the New Jersey court, and to adopt those orders as the orders of the Connecticut Superior Court, pursuant to the UCCJA; G-eneral Statutes *425§§ 46b-90 through 46b-114;6 and to enforce the same by contempt. The defendant appeared by counsel, who moved to dismiss the proceedings, to grant custody of the child to the defendant, and to refer the matter to the family relations officer.

On February 4, 1980, the Superior Court, Glass, J., heard the parties, denied the defendant’s motion to dismiss, denied the plaintiff’s citation for contempt, and referred the matter to the family relations officer.7 The court, Glass J., reaffirmed these orders after reargument on March 3, 1980. The plaintiff has instituted this appeal from those decisions.

On various grounds, the plaintiff challenges the ruling of the trial court in failing to direct the return of the child to the plaintiff’s custody and to New Jersey, and in refusing to hold the defendant in contempt.

This case appears to be the first in this court in which we are asked to construe the provisions of the UCCJA, adopted by our legislature in 1978, and codified in chapter 815o of the General Statutes, (A 46b-90 through 46b-114. The uniform act was approved by the National Conference of Commissioners on Uniform State Laws (hereinafter com*426mission), and the American Bar Association, in 1968. As of the summer of 1980, the aet had been adopted, with some variations, in over forty states. See Bodenheimer, “Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA,” 14 Fam. L. Q. 203 (1981).

As one of its stated purposes, the act seeks to “[a]void jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.” General Statutes §46b-91(a) (1); see N.J. Stat. Ann. § 2A: 34-29(a). The act hopes to “deter abductions ...; assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection; [and] avoid relitigation of custody decisions of other states . . .. ” General Statutes §46b-91(a);8 see N.J. Stat. Ann. §2A: *42734-29. Our act expressly provides that “[t]he courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this chapter.” General Statutes § 46b-103.9

One of the conclusions of the trial court attacked by the plaintiff is that the New Jersey court did not have jurisdiction over the matter and that Connecticut was a more appropriate jurisdiction in which to determine the custody question. We agree with the plaintiff that the New Jersey court clearly had jurisdiction under the UCCJA and that the Connecticut trial court should have recognized and enforced the New Jersey decree.

The UCCJA sets forth the bases for jurisdiction of a court to make a child custody determination. See General Statutes § 46b-93(a) ;10 N.J. Stat. Ann. *428§2A: 34-31 (a). As the commissioners’ note to the uniform act makes clear: “In the first place, a court in the child’s home state has jurisdiction, and secondly, if there is no home state or the child and his family have equal or stronger ties with another state, a court in that state has jurisdiction.” (Emphasis added.) 9 U.L.A., Uniform Child Custody Jurisdiction Act § 3, commissioners’ note. “Home state” is defined in the act to mean “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months . . . .” General Statutes §46b-92(5); N.J. Stat. Ann. §2A: 34-30(e). The act extends the home state rule for an additional six-month period in order to allow suit in the home state after the child’s departure. 9 U.L.A., supra, § 3, commissioners’ note; see General Statutes §46b-93; N.J. Stat. Ann. §2A: 34-30(e). “The main objective is to protect a parent who has been left by his spouse taking the child along. The provision makes clear that the stay-at-home parent, if he acts promptly, may start proceedings in his own state if he desires, without the necessity of attempting to base jurisdiction on paragraph (2).” 9 U.L.A., supra, § 3, com*429missioners’ note. Paragraph (2), i.e., General Statutes § 46b-93(a) (2), N.J. Stat. Ann. § 2A: 34-31 (a) (2), provides that a state has jurisdiction if “it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” (Emphasis added.) 9 U.L.A., supra, §3 (a) (2).

Under the act, New Jersey clearly had jurisdiction. The evidence at trial indicated that before the November 15, 1979 abduction by the defendant, the child had lived her entire life in New Jersey, and that the plaintiff instituted his custody suit in New Jersey within a month after the abduction.

Jurisdiction may be found to exist under the UCCJA, as the trial court correctly concluded, if it is in the best interest of the child that a court of the state assume jurisdiction. General Statutes § 46b-93(a) (2); N.J. Stat. Ann. § 2A: 34-31 (a) (2). To satisfy the “best interest” test, however, the child and at least one contestant must have a “significant connection” with this state; General Statutes § 46b-93(a) (2) (A); N.J. Stat. Ann. § 2A: 34-31 (a) (2) (i); and there must be available in this state “substantial evidence concerning the child’s present or future care, protection, training and personal relationships.” General Statutes § 46b-93(a) (2) (B); N.J. Stat. Ann. §2A: 34-31 (a) (2) (ii). The UCCJA expressly notes that “[pjhysical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.” See 9 U.L.A., supra, §3 (c). In adopting General Statutes §46b-93(c), which is our counterpart of *430§ 3(c) of the uniform act, our legislature decided to omit the words “while desirable.”

Upon a review of the evidence, we conclude that the trial court’s finding that it was in the best interests of the child to determine custody in Connecticut was clearly erroneous. See Practice Book § 3060D. The evidence does not demonstrate that the child and at least one contestant have a “significant connection” with this state and that there is available in Connecticut “substantial evidence concerning the child’s present or future care, protection, training and personal relationships.” We observe that the fact that the child is in this state with the defendant by reason of the child’s abduction from New Jersey is not, under the circumstances, a “significant connection” with Connecticut.

Moreover, even if we were to conclude that both the “significant connection” and the “substantial evidence” requirements of the “best interest” test were met, it is clear that the UCCJA seeks to assure that only one state make the custody decision. Assuming the defendant had filed a petition in this state, we note that General Statutes §46b-96(a) expressly provides: “A court of this state shall not exercise its jurisdiction under this chapter if at the time of filing the petition a proceeding concerning the custody of the child is pending in a court of another state exercising jurisdiction substantially in conformity with this chapter ..."11 See N.J. Stat. Ann. § 2A: 34-34 (a).

*431In arguing that we should uphold the trial court’s judgment, the defendant claims that the New Jersey court did not have jurisdiction because the defendant did not receive adequate notice of the New Jersey proceedings. It is clear that under the UCCJA, before a court can make a decree, “reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of the child. If any of these persons is outside the state, notice and opportunity to be heard shall be given pursuant to section 46b-95 [See N.J. Stat. Ann. §2A: 34-33].” General Statutes § 46b-94; see N.J. Stat. Ann. § 2A: 34-32. “Notice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice ....” General Statutes § 46b-95(a) ;12 see N.J. *432Stat. Ann. §2A: 34-33 (a). It is clear that the defendant had “reasonable notice and opportunity to be heard” in the New Jersey proceedings. The defendant testified that on December 9, 1979, she was served, by a sheriff in Connecticut, with the New Jersey court’s initial decree and its order to show cause telling her to appear in New Jersey at a hearing on December 14,1979. As previously discussed, she retained the services of a New Jersey attorney to represent her at the show cause hearing. She also testified that, upon advice of her counsel, she chose not to present herself in New Jersey at the show cause hearing.13 Her New Jersey attorney appeared at the hearing, questioned the jurisdiction of the New Jersey court, and communicated with the defendant after the hearing.14

The defendant also claims that the “reprehensible conduct” of the plaintiff, in taking the child from the home of the defendant and allegedly “concealing” her from the defendant, supports the trial court’s conclusion that the New Jersey decree should not be recognized. In making this argument, the defendant apparently relies on General Statutes § 46b-98(a). See N.J. Stat. Ann. §2A: 34-36 (a). That section states: “If the petitioner for an initial *433decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct, the court may decline to exercise jurisdiction if it is just and proper under the circumstances.”

We initially note that this provision does not set forth any new bases for jurisdiction. Secondly, under this section, the determination of whether the plaintiff’s conduct was reprehensible was more properly a question for the New Jersey court. Thirdly, we point out that the act does not require a state to decline to exercise its jurisdiction over the matter for such conduct. We defer to the judgment of the New Jersey court in exercising its jurisdiction.15

It is clear, then, that the trial court erred in concluding that the New Jersey court did not have jurisdiction to determine the custody of the child. Since the New Jersey court “had assumed jurisdiction under statutory provisions substantially in accordance” with our act, the New Jersey court decree is entitled to recognition and enforcement by the courts of this state. General Statutes § 46b-103.

Once a certified copy of a custody decree of another state has been filed in the office of the clerk of the Superior Court, “[t]he clerk shall treat the decree in the same manner as a custody decree of the superior court. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by the superior court.” General Statutes § 46b-105(a). The record indicates *434that the plaintiff has filed a certified copy of the New Jersey decree in the office of the Superior Court at Danhury. Accordingly, the decree is entitled to be enforced as if it were a decree rendered by a court of this state.

There is error, the judgment is set aside, and the case is remanded with direction that the New Jersey decree be given full recognition and enforcement under the UCCJA.

In this opinion the other judges concurred.

Agnello v. Becker
184 Conn. 421

Case Details

Name
Agnello v. Becker
Decision Date
Jun 16, 1981
Citations

184 Conn. 421

Jurisdiction
Connecticut

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