PUBLISHED OPINION
Case Nos.: 94-1314,
94-1315, 94-1316
Complete
Title
of
Case:No. 94-1314
LARRY R. W.,
Petitioner-Respondent,
v.
ALAN F. S.,
Respondent-Appellant.
------------------------------------------------------------
No. 94-1315
IN RE THE CUSTODY OF KIT S.,
SETH S., AND AJA S., MINORS:
ALAN F. S.,
Appellant,
v.
LARRY R. W.,
Respondent.
------------------------------------------------------------
No. 94-1316
IN RE THE MATTER OF THE
GUARDIANSHIP OF KIT S.,
SETH S., AND AJA S.:
LARRY R. W.,
Petitioner-Respondent.
v.
ALAN F. S.,
Respondent-Appellant.
Oral
Argument: April 20, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: July 6, 1995
Opinion
Filed: July
6, 1995
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Crawford
(If
"Special" JUDGE: Michael
Kirchman
so
indicate)
JUDGES: Gartzke,
P.J., Dykman and Sundby, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the Respondent-Appellant the
cause was submitted on the briefs of Patricia M. Heim and John H.
Schroth of Parke O'Flaherty, Ltd. of La Crosse.
Respondent
ATTORNEYSFor the Petitioner-Respondent the
cause was submitted on the brief of James P. Czajkowski of Czajkowski
& Rider, S.C. of Prairie du Chien.
COURT OF APPEALS DECISION DATED AND RELEASED July
6, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No.94-1314
94-1315
94-1316
STATE OF WISCONSIN IN
COURT OF APPEALS
No. 94-1314
LARRY
R. W.,
Petitioner-Respondent,
v.
ALAN
F. S.,
Respondent-Appellant.
------------------------------------------------------------------------------------------------------------
No.
94-1315
IN RE
THE CUSTODY OF KIT S.,
SETH
S., AND AJA S., MINORS:
ALAN
F. S.,
Appellant,
v
LARRY
R. W.,
Respondent.
------------------------------------------------------------------------------------------------------------
No. 94-1316
IN RE THE MATTER OF THE
GUARDIANSHIP
OF KIT S.,
SETH
S., AND AJA S.:
LARRY
R. W.,
Petitioner-Respondent,
v.
ALAN
F. S.,
Respondent-Appellant.
APPEAL
from a judgment of the circuit court for Crawford County: MICHAEL KIRCHMAN, Judge. Vacated.
Before
Gartzke, P.J., Dykman and Sundby, JJ.
SUNDBY,
J. In this child custody dispute, Alan F.S., who resides in
Iowa, seeks to enforce in Wisconsin an order of the First Judicial District
Court of Allamakee County, Iowa, entered August 24, 1993, awarding him custody[1]
of his three minor children who presently reside in Wisconsin. The Crawford County, Wisconsin, Circuit
Court denied his motion, and upon the guardian ad litem's petition, entered
judgment March 30, 1994, awarding custody of Alan's three minor children
to their stepfather, Larry R.W. The
court concluded that there were compelling reasons for awarding custody to
Larry R.W. and not awarding custody to Alan F.S.
We
conclude that the August 24, 1993 order of the Iowa court was not enforceable
in Wisconsin because it was not consistent with the notice requirements of 28
U.S.C. § 1738A, the Parental Kidnapping Prevention Act (PKPA). We also conclude, however, that the Iowa
court exercised its jurisdiction consistently with the PKPA when it entered its
initial decree January 6, 1988, divorcing Alan F.S. and Esther S.W. and
awarding custody of the children to Esther.
Wisconsin courts must accord full faith and credit to that decree. Thompson v. Thompson, 484 U.S.
174, 177 (1988). Therefore, the
Crawford County Circuit Court lacked jurisdiction or competence to enter a
judgment modifying the initial custody decree entered by the Iowa court. We therefore vacate the judgment from which
Alan appeals.
In
the summer of 1987, Esther and Alan separated.
That same summer, Esther and the children moved from Iowa to Prairie du
Chien, Wisconsin. On January 15, 1988,
Esther married Larry, the respondent herein.
The children continued to live in Wisconsin in the home of their mother
and Larry.
Esther
died August 18, 1993. On the same day,
Larry petitioned the Crawford County Circuit Court to award him custody of the
children. On August 24, 1993, Alan
obtained an order from the Iowa district court ordering that the children be
returned to him immediately. Neither
Alan nor the court gave Larry notice of Alan's petition. On August 26, 1993, Alan sought to enforce
the order of the Iowa court in Wisconsin, but the Wisconsin trial court stayed
enforcement pending a hearing September 1, 1993, on the guardian ad litem's
petition to award custody and physical placement of the children to Larry. The Wisconsin court concluded that it had
jurisdiction to act on the guardian ad litem's petition. On December 8, 1993, it entered the judgment
from which Alan appeals.
Alan
presents two issues: First, was the
Wisconsin trial court required by the Full Faith and Credit Clause[2]
to enforce the August 24, 1993 Iowa court order awarding custody of the
children to Alan? Second, did the
Wisconsin trial court have jurisdiction on the guardian ad litem's petition to
modify the custody determination made by the Iowa court in the divorce decree
it entered January 6, 1988? We conclude
that these issues are controlled by the Parental Kidnapping Prevention Act.[3]
I.
THE WISCONSIN TRIAL COURT WAS
NOT REQUIRED TO GIVE
FULL FAITH AND CREDIT TO THE IOWA
COURT'S ORDER
BECAUSE THE ORDER WAS NOT
CONSISTENT WITH THE PKPA.
The
Iowa court entered its August 24, 1993 order pursuant to § 598.41(6) of
the Iowa Code, which provides:
When the parent
awarded custody or physical care of the child cannot act as custodian or
caretaker because the parent has died ..., the court shall award custody
including physical care of the child to the surviving parent unless the court
finds that such an award is not in the child's best interest.
Because Larry was not notified of the pendency of Alan's
motion under this statute, the August 24, 1993 order was not entered
consistently with the PKPA.
The
PKPA provides that "authorities of every State shall enforce according to
its terms ... any child custody determination made consistently with the
provisions of this section by a court of another State." 28 U.S.C. § 1738A(a). The August 24, 1993 order granting Alan
custody of the children had the effect of modifying the original divorce
decree. Therefore, it satisfies PKPA's
definition of "custody determination." See § 1738A(b)(3).[4]
Title
28 U.S.C. § 1738A(c) provides that a child custody determination made by a
court of a state is consistent with the provisions of PKPA only if
"(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met: ... (E) the court has continuing jurisdiction pursuant to
subsection (d) of this section."
Subsection (d) of § 1738A provides:
The jurisdiction
of a court of a State which has made a child custody 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 any contestant.
It
is undisputed that the original divorce decree was consistent with 28 U.S.C. §
1738A. Therefore, the jurisdiction of
the Iowa court continues as long as it has jurisdiction under Iowa law and Iowa
remains the residence of the children or of any contestant, or the court
declines to exercise its discretion. See
Bolson v. Bolson, 394 N.W.2d 361, 364 (Iowa 1986). Alan is a parent who resides in Iowa; he is
therefore a "contestant." See
§ 1738A(b)(2). Because the Iowa court
has continuing jurisdiction under subsection (d), the August 24, 1993
order complied with subsection (c).
However,
to be consistent with 28 U.S.C. § 1738A, an order modifying custody and
physical placement must comply with subsection (e) of § 1738A. Subsection (e) requires that "[b]efore
a child custody determination is made, reasonable notice and opportunity to be
heard shall be given to ... any person who has physical custody of a
child." At the time of the Iowa
order, Larry had "actual possession and control" of the
children. See § 1738A(b)(7).[5] Larry was therefore entitled to notice and
an opportunity to be heard before the Iowa court awarded custody to Alan. "A central component of these acts [the
UCCJA[6]
and the PKPA] is proper notice to the parties." State v. Carver, 781 P.2d 1308, 1317 (Wash.
1989). The Crawford County Circuit
Court was not required to enforce the Iowa order because it did not comply with
the notice requirement of subsection (e) of the PKPA.
II.
WISCONSIN CIRCUIT COURT LACKED COMPETENCE
TO MODIFY THE
ORIGINAL IOWA DIVORCE DECREE.
Section
1738A(f) of the PKPA prescribes when the court of a state has jurisdiction to
modify a custody determination made by a court of another state:
A court of a State may modify a determination
of the custody of the same child made by a court of another State, if--
(1) it has jurisdiction to make such a
child custody determination; and
(2) the court
of the other State no longer has jurisdiction, or it has declined to exercise
such jurisdiction to modify such determination.
Wisconsin would have jurisdiction to make a
determination as to the custody of the children if Iowa no longer had
jurisdiction or declined to exercise its jurisdiction. Wisconsin has become the children's
"home state." See
§ 1738A(c)(2)A; § 822.03(1)(a), Stats. However, Iowa has not "declined to
exercise ... jurisdiction to modify such determination"; in fact, its
August 24, 1993 order would have been effective except for failure to give
Larry notice and an opportunity to be heard.
The Iowa court continues to have jurisdiction to modify its original
custody determination. See §
1738A(f).
This
case is similar to Michalik v. Michalik, 172 Wis.2d 640, 494
N.W.2d 391 (1993). Rita Michalik and
Kenneth Michalik were divorced in Indiana March 3, 1987. Rita was awarded custody of their three
minor children. On May 1, 1989,
Rita and the children moved to Wisconsin.
Thereafter, she sought to modify Kenneth's visitation rights. The court held that even though Wisconsin
had become the children's "home state," Indiana still had
jurisdiction to modify custody determinations.
Id. at 658, 494 N.W.2d at 398. The court noted the preference in the PKPA for the state which
made the original decree. Id.
The
fact that the Iowa court's attempt to modify its original decree failed does
not affect the validity of the original decree. The Iowa court's jurisdiction to amend that decree remains
unaffected unless it declines to exercise its jurisdiction.
We
therefore vacate the judgment which is the subject of this appeal.
By
the Court.--Judgment vacated.
[2] Article IV, § 1 of the United States
Constitution provides in part: "Full
faith and credit shall be given in each state to the ... judicial proceedings
of every other state."
[3] See Lucy Cooper, The Parental
Kidnapping Prevention Act (PKPA) of 1980 -- The Most Often Ignored Law in
Family Court, Wis. J. Family L.,
Jan. 1991, at 10-13.
[4] Title 28 U.S.C. § 1738A(b)(3) provides:
(3) "custody
determination" means a judgment, decree, or other order of a court
providing for the custody or visitation of a child, and includes permanent and
temporary orders, and initial orders and modifications ....
[5] Title 28 U.S.C. § 1738A(b)(7)
provides: "`Physical custody'
means actual possession and control of a child."
[6] Uniform
Child Custody Jurisdiction Act, 9 U.L.A. 115 (1988); ch. 822, Stats.
In Michalik v. Michalik, 172 Wis.2d 640, 649, 494 N.W.2d
391, 394 (1993), the court stated:
"To the extent that the PKPA and the UCCJA conflict, the Supremacy
Clause of the United States Constitution mandates that the PKPA preempts the
UCCJA."
The
Washington Supreme Court made the following observation regarding the PKPA and
the UCCJA:
Much of the
confusion generated by the language of the two laws can be eliminated if a
trial court which is asked to determine custody clearly distinguishes between
jurisdiction to determine the initial custody of a child and jurisdiction to
modify a prior custody order.
Greenlaw v. Smith, 869 P.2d 1024, 1031 (Wash.), cert. denied, 115
S. Ct. 333 (1994).