pet — Etlin v. Etlin
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Michelle M. Etlin, Petitioner,
Vv.
Vladimir N. Etlin, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF APPEALS OF
THE COMMONWEALTH OF VIRGINIA
Michelle M. Etlin, pro se
3009 Military Rd. NW
Washington, D.C. 20015
March 14, 1989
IN THE
SUPREME COURT OF THE UNITED STATES
No.
Michelle M. Etlin, Petitioner,
Vv.
Vladimir N. Etlin, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF APPEALS OF
THE COMMONWEALTH OF VIRGINIA
The Petitioner, Michelle M. Etlin,
pro se, respectfully prays that a writ of
certiorari issue to the review the judg-
ment of the Supreme Court of Appeals of
the Commonwealth of Virginia entered in
this proceeding on December 14, 1988.
QUESTIONS PRESENTED
1. Can a state satisfy the jurisdiction-
al requirement of “significant connec-
tions” and "substantial evidence” as
those terms are used in the Uniform Child
Custody Jurisdiction Act, if the child
-l-
has not lived in that state for more than
six years? Can 28 U.S.C. 1738A confer
subject-matter jurisdiction on the courts
of a state which lacks a statutory basis
for such jurisdiction in its own law?
2. Can a state refuse to review a convic-
tion for criminal contempt because of its
insistence on a procedural rule which
serves no legitimate state interest and
is applied in a discriminatory manner?
Can a Court use contempt powers to create
a new class of laws, infractions against
which are punished without resort to Con-
stitutional protection for the accused?
PARTIES TO THE PROCEEDING
Appellant: Michelle Etlin, pro se
3009 Military Road NW
Washington DC 20015
(hereinafter called ”Mother”)
Appellee: Vladimir Etlin
7403 Lisle Avenue
Falls Church, VA 2043
(hereinafter called ”Father”)
-2-
TABLE OF CONTENTS
QUESTIONS PRESENTED ...-..ccccccceeee 1
PARTIES TO THE PROCEEDING .......+.+.- 2
TABLE OF CONTENTS .cccccccecsece (141i)
TABLE OF AUTHORITIES ..cseceesee (1ii— xi)
STATEMENT PURSUANT TO RULE 21.1(d) . 3
JURISDICTION ..ccccccccccccccccccsees 3
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED ...... 4
STATEMENT OF THE CASE ....eceececcs 6 See
FEDERAL QUESTIONS PRESENTED BELOW.. 18
REASONS TO GRANT THE PETITION ..... 19
I. IN DEROGATION OF
THE UNIFORM ACT AND
THE FEDERAL ACT,
VIRGINIA HAS EXERCISED
JURISDICTION WITHOUT A
STATUTORY BASIS FOR
DOING SO cccccccceccceccce 19
A. Background of Statu-
tory Scheme Confer-
ring Jurisdiction ... 19
B. "Jurisdiction
FOTEVGr® wccccccccces 24
C. "Significant
COMMOCELONS” 2. ncecee 27
D. The Federal issue
eg | s ae
II. THE VIRGINIA COURT
HAS ABUSED ITS CONTEMPT
POWER IN ORDER TO
DEPRIVE THE MOTHER OF
CONSTITUTIONAL RIGHTS .... 40
A. The Mother was
Denied Procedural
Due PFOCO@SS .ccccecces 40
B. The Virginia Court
Did--or Did Not?--
Have Jurisdiction
Over Civil Contempt... 42
Cc. The Mother Was
Denied Substantive
i ey 45
D. The Mother Was
Denied Equal
Protection of Law ... 47
COMOEMESOM .. . cin kb ida co ccacccaraceses 52
Oo as 57
wtte
7 7 y= beeen | FO ell tee 7
7 :
me
*
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-_A
bs
-
i
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; .
y =
‘ . ha
\
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. 3 4
‘
‘
; ‘ *
TABLE OF AUTHORITIES
THE ITED STATES NST ON
Article III, Section [3]
of the U.S. Constitution ... 6,
Article IV, Section 2.[1]
of the U.S. Constitution ... 6,
The Eighth Amendment
to the U.S. Constitution ... 6,
The Fourteenth Amendment
to the U.S. Constitution,
BORREGO SF 6a5 sa 645006865464 6,
FEDERAL STATUTES
a ae St 3
ae es ae), 3
28 U.S.C. 1738A (the
“Parental Kidnapping
Prevention Act” or
ee at ee ?
*3, a;
2s, 26,
37, 53,
FEDERAL RULES
MULLS Shc lS) wccsesvccer 3
VIRGINIA STATUTES
VA Code Section
ADe OP Gee cb KERCKe So cecccecs Fy, 4
VA Code Sections
47
57
52
51
19,
2s.
as,
55,
-iii-
20,
24,
34,
56,
— aE eee
20-125 et seq.,
the "Uniform Child
Custody Jurisdiction
Act” or *“UCCJA”
VA CODE Section
VA Code Section
VA Code Section
VA Code Section
VA CODE Section
20-126
20-128
20-130
20-132
420-135
Alexander v. Ferguson,
648 F. Supp. 282 (D. Md.
16
1986) ..
Applegate v. Gant, 460 So.2d
1293 (Ala. Civ. App. 1984) ..
Arbogast v. Arbogast,
SE2d 675 (W.V.
1984)
Bahr v. Bahr, 442 NYS2d 687,
108 Misc.2d 920, aff’d
91 AD2d
1010 (1981) @eeeee*ee*e*eestveseseseseresrseseese+#esee#ege?#@#
458 NYS2d 247,
Belosky v. Belosky,
471, 97 NM 365 (1982)
Bergh v. Bergh,
Berry v. Berry,
138 (Ala. Civ. App.
387 NW2d
213 (Minn App 1986)
466 So.2da
1985)
640 P.2d
ccccccce 36
- 36
. 37
35
eee0ees2e3e#8e#s#seee#ee#e# 39
eeeee#e#ee#s? 38
16,
a3,
26,
44,
Vv; , 1982, 654
P.2d 406, 232 Kan. 237 wecccccceee 29
Vv , 653 SW2d
732 (Tenn App 1983) .cccccccccccee 37
Clark v. Kendrick, 670 P2d
32 (Colo. App. 1983) e*e*eeee#ee#eee#e#e#e#ee## 38
Clarke v. Clarke, 1985, 496
eee ees Oo, FED ccs acccccce 34
Debra S. v. Roger S., NYS
2d 723, 116 Misc.2d 264 (1982) ... 36
Dennis v. Dennis, 366 NW2d
ee Sod edu dedesvecssces 37
Department of Human Services
v. Avinger, 721 P.2d 781
(NM App 1985) e*eeesese#ese#seee#s#eesese#s#khe#efe#srfees#ss¢ 36
In re Custody of Dunn, 701
P2d 158 (Colo. App. 1985) ........ 38
Dykes v. Dykes, Fla. App.
= eee Bea, See BG.26 188 ...cce 31
Elder v. Park, App. 1986,
717 P.2d 1132, 104 N.Mex. 163 .... 28
Enslein v. Enslein, N.Y.A.D.
2d Dept. 1985, 492 NYS2d 785 ..... 35
Evans v. Evans, 668 F.Supp.
Sew Getates Beet BOGT7T) cccccccccccce 36
Fielder v. Thorn, 525 A.2d
576 (De. Fam Ct. 1987) .......20-. 38-39
Flannery v. Stephenson, 416 So.2d
pees ees C20. BOO. 1962) .cccceces 36
-V—-
In re Fox, App 2 Dist. 1986,
225 Cal. Reptr. 823, 180 C.A.
3d 862, rev den eeeeeeee#eese#se#s#fee#e#e#ee#e#ee#e#se#*# 36
Funk v. Macauley, Ind. App.
2 Dist. 1983, 457 N.E.2d 223 ...e. 42
Garrett v. Garrett, 732 SW2d
127 (Ark. 1987) *eeees#eees+5§ree#*ee#*ee#ee#ee#sesee#e#e#@*# 36
Gomez _ v. Gomez, 1982, 446 NYS2d
127, 86 A.D.2d 594, aff'd.
452 NYS2d 13, 56 NY2d 746,
437 NE2d 272, stay denied
453 NYS2d 684, 56 NY2d 1028,
43D WEZG BSD cascvevcecevecvcsccvecces 30
Green v. Tucker, 375 F.Supp.
892 (E.D. VO. 1974) wccccccscccsese 45
Hart v. Hart, 1985, 695 P.2d
1285, 236 Kan. 856 ..ccccccvcvccces 33
Heartfield v. Heartfieid, C.A.Tex
39GS, FED Fem BESO vere soesecsvecs |
Herrero v. Matas, 447 So.2d 335,
rev dismissed 453 So.2d 44
(FER Bee DF BEBE 1964) cccccssvecees 38
Hofer v. Agner, Fla.App.Dist.
1979, 373 SO.2G 48 wecccccccccccese xB
Houtchens v. Houtchens, R.I. 1985,
488 A.2d po) at er. are e*eee#ees 31
Ingram v. Ingram, 463 So.2d 932
(Ie BD. 2G CAP. 1968) ccccccccoce 35
Jefferson v. Downs, 436 NYS2d
169, i107 BMisc.36 O52 (1981) ..ccee. 36
Joseph EH v. Jane EH, 1980, 423
A.2d 739, 283 Pa. Super. 109 ...... 32
Kioukis v. Kioukis, 440 A2d 894,
185 Conn. 249 (1981) .cccccccccccee 39
Kirylik v. Kirylik, 357 S.E.2d
BOD CBsGs BEST) escccecvccesecccccs 42
umar v n a ount
Superior Court, Cal. App. 1981,
177 Cal. Reptr. 763 eeeeee3s#sse#ee#esePer#eese#e 35
Leisge v. Leisge, 224 Va. 303,
eee 51
Leslie F. v.Constance F., 441
NYS2d 911, 110 Misc.2d 86
(1981) ceeereeeveeeee eee eee eee eee eeee 36-37
In re Marriage of Leyda, 398
Ee TEOR, LGBT) ccc cccccccces 37
LF _v. GWF, 1982, 443 A2da 751,
See me Geer. 195 ........ <r 31
Mark L. v. Jennifer S., 506
NYS2d 1020, 133 Misc.2d 454
ee case ccs esccces 34
Marks v. Marks, 315 SE2d 158
I MME cc cece cece ccccese 36
Mattleman v. Bandler, 1983, 461
Ps Pr ME. BOD secccccccccccecs 31
Matteson v. Matteson, Fla. App.
S @aeeeaeee, 379 BSO.20 677 ...2200. 29
In re McBride, Ala. Civ. App.
aeee, Sep 30.24 645 ..... Seeeeeeeee 35-36
McDougaid v. Jenson, C.A. 11
(Fla) 1986, 786 F.2d 1465,
De MES Oct. BOT cecccvccsece 35
ia
Mebert v. Mebert, 444 NYS2d 834,
111 Misc.2G 500 (1981) ...ccccceeee 36
Meier v. Davignon, 1987, 734
ee Sf SY) arr 29
Middleton v. Middleton, 1984,
240 Biiwe Bees SAT TOs OF avecsss 28, 38
Nielsen v. Nielsen, 472 So.2d
233 (is.. Bee. & Cie. 1665) .ccccccs 37
O’Daniel v. Walker, 686 SW2d 805,
14 Ark. App. 210 (1985) e*eeee#ee#ee#e?*# aoe 42
Olivia H. v. John H., 497 NYS2d
$36, 130 Miee.2d 756 (19866) ........ 39
Olson v. Olson, 1985, 494 A2d
Se ie ae A ere err er reer 32
In re Marriage of Panich, Mo.
ADD. I9G4, GIS BWaG FAS ccsccvecess . oo
Pierce v. Pierce, 640 P.2d 899,
197 Mont. 16 (1982) eeoeseee#eeeeese#ee#e#e#e#@# 38
Quenzer v. Quenzer, 653 P2d 295,
cert den 103 S.Ct. 1436, 460
US 1041, 75 L.BG.2G 794 wcccccccaces 37
Reeve v. Reeve, Fla. App.
A Bi8e. 980, FHL B6.34 709 .ccscvcics 32
In re Reynolds, 441 NE2d
1141, 2 Ohio App 3d 309,
2 GBM S4L (ESSE) cesccccccsecccceses 38
S. Frederick P. v. Barbara P.,
454 NYS2d 202, 115 Misc.2d
rs de et ad 35
Schoeberlein v. Rohlfing,
Minn App 1986, 383 NW2d 386 ........ 35
-viii-
Serna v. Salazar, 651 P.2d 1291,
98 NM 648 (1982) @eeeeee#e#ee#eesesse#ese#efee#eee#e#ee# 38
Siegel v. Siegel, 417 N.E.2d
2342, 84 £24226 212, 49 iii.
Dec. 198 (1981) eeeeee#eseskee#ee#ee#ee# 43, 44, 45
Sinclair v. Albrecht, 336 SE2d
46S, 267 8.¢. 20 {App. 1965) ........ 39
SJ _v. LT, Alaska 1986, 727 P2d 789 .. 30
Slidell v. Valentine, 298 NW2d
SEO CEG, TORE) 2c ctncccesescccexctes 39
Snow v. Snow, Minn App. 1985,
369 NW2a 581 @eeeeeeeee#secfeoesees3seeeee#ee#ee#e#ee#eeeetee e 37
Sullivan v. Sullivan, 1982,
451 NYS2d 851, 87 AD2d 42,
aff’d. 458 NYS2da 516, 58
NY¥ZG G42, 244 BEZG GEO wzceccccvese 30-31
Swire v. Swire, 1983, 494 A.2d
1035, 202 N.J. Super. 189 ..ccccceces 32
Matter of T.C.M., 651 SW2d 525
(Mo App 1983) cccccceccsecs eeeeuseeas 38
Thompson v. Thompson, 798 F.2d
2547 (900. Civ), 106.8.Ct. 513,
SL? CIES] accrccsacsessesess 20, 21,
In re Custody of Thorensen, 730
P2d 1380, 46 Wash. App. 493
(1987) eeoeeeeoeoeoeee eee eee eee eee eee 37-38
Trask v. Trask, App. 1986,
va? Picea Oe, 206. Te TOO. ssc vsscwas 30
Tufares v. Wright, 644 P2d 522,
} £2 ore 35
tate Vv Ss Vv. Brown,
639 P2d 1181, 97 NM 327 (1981) ... 35
\
Virginia E. E. v. Albert S.P.,
440 NYS2d 979, 110 Misc.2d 448
(1981) eeoeeseeee#e*e#eeege@ee#e#ee#ee#*e#eee#e#e#e#efe#e#ee#ee##e#e#e# ag
Voninski v. Voninski, 661 SW2d
872 (Tenn App. 1982) .ccccccccveccs 36
Wachter v. Wachter, 439 So.2d
1260 (La. App. 5 Cir. 1983) ...... 37
Wagner v. Wagner, 482 So.2d
780, writ den 487 So.2d 441
of ep ie Se eee eee 39
Walker v. Frericks, 328 SE2d
126, 285 S. Car. 139 (App. 1985).. 38
Walsh v. Walsh, 458 NYS2d 835,
S17 MisGi Pe GAS CASEI) cc ccvccccas 35
Wheeler v. Buck, 452 So.2d 864
CASE. CEUs BOO. ASCE) ccdiviccsewsas 35
William L. v. Michele P., 1979,
416 NYS2d 477, 99 Misc.2d 346 .... 30
Yacco v. Durley, 457 NYS2d
364, 117 Miee. 26.69 (2962) «..0.4s. 36
Ziegler v. Ziegler, 691 P.2d
773, 107 Idaho App. 527 (1984) ... 37
-X—
OTHER AUTHORITY :
Ratner, “Procedural Due
Process and Jurisdiction
to Adjudicate,” 75 Nw.U.L.
ow, SES Be CUR aca ceccscccens B
B. Bodenheimer, “The
Uniform Child Custody
Jurisdiction Act: A Legis-
lative Remedy for Children
Caught in the Conflict
of Laws,” 22 Vand.L.Rev.
1207, 1237 (1969) ccccvcees eccocoes 44, 45
-xi-
eee “ E
21.1(da) - There are no official or
unofficial reports of the opinions
delivered in the courts below.
JURISDICTION
This Court may take jurisdiction
under 28 U.S.C. 1257(3).
The Fairfax County Circuit Court en-
tered a final order on March 25, 1987.
The Intermediary Court of Appeals of Vir-
ginia affirmed on April 24, 1988, and
denied application for rehearing on June
24, 1988. The Supreme Court of Virginia
denied the petition for review on Decenm-
ber 14, 1988. This Court has jurisdic-
tion because: (i) The Supreme Court of
Virginia denied review on December 14,
1988; and (iv) this Court has jurisdic-
tion under 28 U.S.C. §2101(c).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
28 U.S.C. 1738A (the “PKPA”)
provides, in pertinent part:
“(c) A child custody 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 ...;
(B) (i) it appears that no other
ate av urisdiction
under subparagraph (A), and
(ii) it is in the best inte-
rest of the child that a court
of such State assume jurisdic-
tion s th i nd
--- at least one contestant,
have a significant connection
with such state... and
(II) there is available in
such State substantial evidence
concerning the child’s present
or future care, protection,
raini nd sonal rela-
tionships; ... or ***
(E) the court has continuing ju-
risdiction pursuant to sub-
section (d) of this section.
kkk
(d) The jurisdiction of a court of a
State which has made a child custody de-
termination consistently with the provi-
sions 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.”
-4-
VA CODE Section 20-126 provides, in
pertinent part:
§20-126. Grounds for Jurisdiction.--A. A
court of this State which is competent to
decide child custody matters has juris-
diction to make a child custody determi-
nation by initial or modification decree
ifs
1. This State (i) is the home state of
the child ...3 or
2. It is in the best interest of the
child that a court of this State assume
jurisdiction because (i) the child and
--. at least one contestant, have a sig-
nificant connection with this State, and
(ii) there is available in this State
substantial evidence concerning the
child’s present or future care, protec-
tion, training, and personal relation-
ships;
eee ee a a ee ee ee ee ee ee EO aaa ee eae
a a a a
VA CODE Section 20-135 provides, in
pertinent part:
§20-135. Res Judicata effect of custody
decree.--A custody decree rendered by a
court of this State which had jurisdic-
tion under §20-126 ...is conclusive as to
all issues of law and fact decided and as
to the custody determination made unless
and until that determination is modified
pursuant to law, including the provisions
of this chapter.
Article III, Section [3] of the U.S.
Constitution provides:
"The trial of all Crimes, except in
Cases of Impeachment, shall be by
Jury; and such Trial shall be held
in the State where the said Crimes
shall have been committed:...”
Article IV, Section 2.[1] of the U.S.
Constitution provides:
"The Citizens of each State shall be
entitled to all Privileges and Immu-
nities of Citizens in the several
States.”
The Eighth Amendment to the U.S.
Constitution provides:
"Excessive bail shall not be
required, nor excessive fines
imposed, nor cruel and unusual
punishments inflicted.”
The Fourteenth Amendment to the U.S.
Constitution, Section 1 provides, in per-
tinent part:
“No state shall make or enforce any
law which shall abridge the privi-
leges or immunities of citizens of
the United States; nor shall any
State deprive any person of life,
liberty or property, without due
process of law; nor deny to any per-
son within its jurisdiction the
equal protection of the laws.”
VA Code Section 19.2-318 provides, in
pertinent part:
"19.2-318 Appeal on Writ of Error to
Judgment for Contempt.- ... A writ
of error shall lie from the Court of
Appeals to a judgment for criminal
contempt of Court. This section
shall also be construed to authorize
an appeal from or writ of error to a
judgment of a circuit court rendered
on appeal from a judgment of a dis-
trict court for civil or criminal
contempt.”
STATEMENT OF THE CASE
This Court has seen Etlin v. Etlin
four times in the past upon petitions
from the father.
Vladimir and Michelle Etlin married
in New York in November, 1976 and had a
child, Daniel Etlin, on January 20, 1978
in Virginia. They separated in 1980.
Mother and Father agreed to have
custody of Daniel decided by a child
psychiatrist pursuant to an order of the
Juvenile Court dated March 25, 1980, but
Father refused to abide by the arbitra-
tion decision and sued for custody. Dur-
-7-
Fe nn
ing the pendency of proceedings in the
Juvenile and Circuit Court, Mother and
Daniel moved to Maryland on November 1,
1980. The Fairfax County Circuit Court,
per Judge Lewis Hall Griffith, awarded
permanent custody of Daniel to Mother by
final order entered on February 26, 1981.
[Appendix 20-25].
Father sued Judge Griffith in the
federal district court in April, 1981
claiming discrimination, and promptly
moved the judge to recuse based on the
lawsuit. [Appendix 26-27]. That lawsuit
was dismissed by the district court and
appealed to the Fourth Circuit, which
dismissed. He appealed to this Court,
which denied certiorari.
Judge Griffith recused because of
the lawsuit, but the custody order was
incorporated in the final decree on
February 12, 1982. Father appealed it
to the Virginia Supreme Court, which
-8-
a — wh, na =
-4q - a
a)
2 a ae ds “
a , — _ cd
a SP 9 .
Te} wo *
refused to review it; he appealed it to
this Court, which denied certiorari.
Father then returned to the Circuit
Court filing a “motion to set aside court
order” for “fraud on the court.” [Appen-
dix 27-29]. The parties came before the
Court, per Judge — Bach, on June
1, 1982 on the mother’s motion for en-
forcement and the father’s motion to re-
litigate custody. Finding no fraud, the
court nevertheless set aside Judge Grif-
fith’s order and re-tried custody de no-
vo, making his own decision on June 2,
1982 but not signing or entering a final
order. [Appendix 29-30].
~ On September 4, 1982, Mother and
Daniel moved away from Maryland leaving
no forwarding address. No process was
outstanding against Mother at that time,
and no injunction or ne excheat order
prevented her free movement. When Fa-
ther realized Mother had moved, he made a
“motion to change custody” which did not
comply with the UCCJA’s requirements, and
served on Mother’s prior attorney a rule
to show cause why Mother should not be
held in contempt. At an ex parte hearing
on October 15, 1982, the Court held the
Mother in contempt and awarded sole cus-
tody to the Father. [Appendix 30-32].
Father requested that the Common-
wealth Attorney draw a felony warrant for
Mother’s arrest, but he declined on the
basis that she had not committed a felo-
ny in Virginia. Father brought a manda-
mus proceeding to force the prosecutor
to draw a warrant, but he lost, appealed
it to the Virginia Supreme Court, which
did not grant review; he appealed the
mandamus to the this Court but certio-
rari was denied.
Meanwhile, Mother had been forced to
assign her judgments for unpaid child
support to the last attorney she had in
-10-
|i tat elias
Virginia. This lawyer brought garnishment
proceedings to collect his fees. Father
moved to set aside garnishments, and when
denied he appealed. The Supreme Court of
Virginia refused review. He appealed to
this Court, which denied certiorari.
In 1985, 2-1/2 years after the act
complained of, Judge Bach issued a bench
warrant for Mother’s arrest for criminal
contempt, setting $10,000 bond. [Appen-
dix 32-34].
Father had Daniel’s picture shown
on the Phil Donahue Show as a missing
child and as a result located Mother and
Daniel in Portland, Oregon in 1986. He
sought to have the 1982 ex parte order
enforced there. Mother’s lawyer pointed
out that it was made without statutory
notice and was therefore unenforceable.
While proceedings were pending, Father
physically kidnapped Daniel, taking him
to Virginia.
-ll-
%
The Virginia court immediately as-
sumed jurisdiction and did the following:
(1) it assigned the Department of Social
Services to investigate Daniel’s welfare
but then terminated their investigation
and refused to honor their request to ap-
point a guardian ad litem; (2) it placed
Daniel in his father’s custody without an
examination of parental fitness; (3) it
jailed Mother and revoked her bond before
trying her for contempt [Appe:.dix 34];
and (4) it held a mixed contempt/custody
trial after which it made a punitive
custody award to Father and sentenced
Mother to 12 months in jail for criminal
contempt. [Appendix 11].
Mother’s counsel argued that the
Virginia Court should not exercise ju-
risdiction in a hearing before trial on
February 20, 1987, but the Judge refused
to consider the motion and announced his
intention to assume jurisdiction, ina
-12-
colloquoy in which the considerations of
the UCCJA were not referenced:
COUNSEL:
COURT:
COUNSEL:
COURT:
COUNSEL:
COURT:
(Transcript February 20, 1987, p.
* * *
COUNSEL:
.--l have to file a motion
asking you to--under section
20-130 of the Code of Virginia-
-to defer jurisdiction back to
Oregon. Are you ruling on that?
I’m denying that.
You deny that motion?
I don’t think Oregon has any
jurisdiction over this. ...
There have been literally 10,
20, 30 hearings in this court,
and there’s no way that Oregon
(Interposing) Your Honor, pro-
bably more.
Yes, probably more. This is the
court that’s going to hear it.
I know these people. I’m going
to decide it.
14)
*
~
I would reiterate to you that
the child has not lived in this
state since 1980, since October
31, 1980; when Judge Griffith
awarded custody, he’d been gone
from the state about 3 months
-.-+» and that when you heard
custody in June of ’82, he’d
been gone however long and so
forth and so on. And I would
reiterate that the moving party
in all of these litigations has
been Mr. Etlin who has kept the
wheels churning. And I’ll
stand on my brief for the rest
of my argument, including the
observations about Sections 20-
132, 20-148 [sic], 20-130 and
-13-
x*«ke
COURT:
20-125 [sic], all sections of
the Uniform Child Custody Ju-
risdiction Act adopted in the
state.
Well, I think the Fairfax
County, Virginia Circuit Court
is the appropriate jurisdiction
to hear it, and I don’t think
it’s even a close question. I
think it’s the only jurisdic-
tion that has any business at
all hearing it. * * * and as
far as I know, there’s nothing
in [the UCCJA] that even re-
motely indicates that Oregon,
under these circumstances,
should have custody, or should
have jurisdiction over that
case.
Transcript, March 12, 1987, pp. 121-124.
COURT:
... Let me say this, too. I
also feel, ... I also believe
in my heart and soul, that this
-.. needs to be decided, and I
frankly don’t think that the
Oregon judge, who was very
peripherally involved in this
thing, or any other judge, is
in nearly the position I am to
decide this case for the best
interest of this child.
Transcript, March 12, 1987, p. 125.
Mother appealed from that order on
three grounds: (1) her contempt convic-
tion was improper because the statute of
limitations for contempt passed, all acts
-14-
complained of had taken place outside the
Commonwealth, and because she was held in
criminal contempt of an order which con-
tained no injunction or specific command;
(2) the court did not, under Virginia
law, have jurisdiction to decree as to
the custody of Daniel there was no evi-
dence in Virginia upon which to decide
custody; and (3) the trial court made a
punitive custody award contrary to the
best interests of the child and the law
of Virginia.
The Court of Appeals refused to
consider the contempt conviction because
appeal was not brought by writ of error.
It affirmed the trial court, opining that
the Commonwealth had jurisdiction pursu-
ant to 20-126(b) ("significant connec-
tions”) [Appendix 15].
Mother applied to the Court of Ap-
peals for reconsideration on three the-
ories: (1) caselaw in Virginia provides
-15-
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“a
: a
that review by appeal rather than writ of
error is, at worst, “inadvertence” and
cannot deprive a petitioner of review of
criminal contempt conviction; [Appendix
35); (2) the merging of a custody and
contempt trial is a prima facie showing
that the custody decree rendered was pu-
nitive; and (3) since Virginia had dero-
gated the PKPA by proceeding without com-
pliance with the Act, it could not pre-
sume to “continuing jurisdiction” under
the PKPA. [Appendix 38-41]
"Had the trial court ever given
consideration to the requirements of
the UCCJA [starting in 1982], in-
cluding Section 20-126(A) (2), and
Section 20-135, none of the latter
events of this case, including the
mother’s desperate escape, would
have occurred. It is simply unjust
to resort to the UCCJA to confirm
and justify the actions of a judge
whose casual disregard of the Act
was the original element that threw
the case out of control.”
Mother’s Petition for Rehearing to the
Court of Appeals, April 17, 1988, pp.
16-17.
The Court of Appeals denied rehear-
-16-
ing and refused to consolidate Mother’s
appeal with appeal of the order Judge
Bach finally signed in 1988 nunc pro tunc
1982. Mother petitioned the Supreme
Court of Virginia for review. Among
other assertions, she brought up the fact
that the application of the procedural
bar to her right to review of criminal
contempt conviction had been applied in
the Commonwealth in a discriminatory
manner, because other criminal contempt
defendants’ convictions were reviewed by
means of appeal. [Appendix 38] She gave
oral argument pro se before a writ panel
on December 12, 1988; on December 14,
1988 her petition for review was denied.
[Appendix 19]
Meanwhile, the custody decision
Judge Bach made on June 2, 1982, of which
he held Mother in contempt on October 15,
1982, for which he jailed Mother on Feb-
ruary 18, 1987; and which he signed on
-17<
March 4, 1988; is presently on appeal
before the Court of Appeals of Virginia.
Mother also moved the trial court to
vacate its ex parte order dated October
26, 1982 because she was never served
with notice of the hearing. The trial
court refused to hear Mother’s motion
when it was served and filed, so Mother
brought a petition before the Court of
Appeals of Virginia to mandate the trial
court to vacate that order. The court
has demurred and that petition also re-
mains pending.
FEDERAL QUESTIONS PRESENTED BELOW
The question of whether Virginia
had subject matter jurisdiction under the
significant connections test was first
addressed to the trial court in a pre-
trial memorandum of law [Appendix 36-37],
then briefed to the Court of Appeals and
the Supreme Court of Virginia. [Appendix
37-41).
-18-
The question of abuse of the con-
tempt powers of a court of the Common-
wealth was first raised in the trial
court upon oral argument [Appendix 41)
and then briefed to the Appellate Court
[Appendix 15, 35] and Supreme Court of
Virginia {Appendix 38].
REASONS _TO GRANT THE PETITION
I. IN DEROGATION OF THE UNIFORM ACT AND
THE FEDERAL ACT, VIRGINIA HAS EXER-
CISED JURISDICTION WITHOUT A STATU-
TORY BASIS FOR DOING SO.
A. Background of Statutory Scheme
Conferring Jurisdiction.
Jurisdiction can only be acquired
pursuant to statute; it cannot be pre-
sumed or assumed under the common law.
Two statutes describe the prerequisites
for jurisdiction to hear child custody
disputes (continuing or original) in
Virginia, as in all other states: the
Uniform Child Custody Jurisdiction Act,
or the UCCJA (VA Code 20-125 et seq.) and
-19-
the Parental Kidnapping Preventing Act,
or the PKPA (28 U.S.C. 1738A). (The
UCCJA is sometimes referred to herein as
the Uniform Act and the PKPA is sometimes
referred to as the Federal Act.)
The National Conference of Commis-
sioners on Uniform State Laws and the
American Bar Association promulgated the
UCCJA in 1968 to bring order to chaos.
In spite of this, 12 years later,
“a number of states refused to enact
the UCCJA while others enacted it
with modifications. In the absence
of uniform national standards for
allocating and enforcing custody
determinations, noncustodial pa-
rents still had reason to snatch
their children and petition the
courts of any of a number of haven
states for sole custody.” Thompson
v. Thompson, 108 S.Ct. 513, 517
(1988)
In addition to “haven states,” there
were loopholes. One was the use of the
“significant connections/substantial
evidence” test (the ”"SCSE Test”) to
allow a court to take jurisdiction over
custody of a child who had lived else-
-20-
where for a long time. Under the provi-
sions of the UCCJA, the two tests (home
state or SCSE) were simply alternative,
and neither was given preference. The
Commissioners and other commentators ge-
nerally agreed that the SCSE Test should
not be used to excess by courts eager to
justify jurisdiction. See Ratner, “Pro-
cedural Due Process and Jurisdiction to
Adjudicate,” 75 Nw.U.L.Rev. 363, 392
(1980). But this Court never granted
certiorari on the subject.
On December 28, 1980, the PKPA, 28
U.S.C. 1738A, was signed into law. It
was meant to end the confusion and in-
duce compliance with the UCCJA. Accord-
ing to this Court, the PKPA amounted to
"Federal adoption of key provisions of
the UCCJA for all states,” Thompson,
supra, at 517. The PKPA closed a loop-
hole: it set out in identical language
the jurisdictional prerequisites of the
-21-
CC
UCCJA, with one difference: it prescribed
the home state test for jurisdiction as
preferred, and allowed the use of the
SCSE Test only as an alternative if there
was no home state.
In two other divisions, however, it
did not end confusion but perhaps created
it. This Court has dealt with the first
great misinterpretation that arose from
the Federal Act: in its recent decision
in Thompson v. Thompson, 798 F.2d 1547
(9th Cir), 108 S.Ct. 513, supra, it af-
firmed the Ninth Circuit’s opinion that
the PKPA was not meant to give rise to a
private federal cause of action.
What was the PKPA designed to do?
It was designed to cause the States to
comply with the UCCJA and to vest full
faith and credit in those custody orders
which did comply with it. The Federal
Act, rather than giving rise to federal
litigations, was meant to regulate state
-22-
court litigations and cause the several
States to judiciously comply with their
own uniform laws. Again, relying upon
this Court’s analysis, “the PKPA is a
mandate directed to state courts....”
Thompson, supra, at 518.
The way the PKPA sought to induce
compliance with the UCCJA was twofold:
(1) it accorded full faith and credit to
custody decrees, but only to those cus-
tody decrees which were made in compli-
ance with the PKPA--i.e., only with
those custody decrees which followed the
dictates of the UCCJA, while elevating
home state over significant connections
as a basis for jurisdiction; and (2) it
set up continuing jurisdiction in a state
which had already made a decree (the
"Decree State”), again only if that
state maintained jurisdiction under its
law. As of 198€, all of the 50 states
had adopted the UCCJA, the PKPA allows
-23-
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Decree State modification jurisdiction
only if the state maintains jurisdiction
under the UCCJA. _
B. “Jurisdiction Forever”
As if to complement the misunder-
standing about the PKPA opening the
doors of federal courthouses to custody
trials, another common idea developed
which was basically an oversimplification
of the Federal Act. It was commonly be-
lieved that the Decree State retained
the right to make all modification de-
crees as long as one parent still lived
there (the “Jurisdiction Forever Rule”).
This would remove from the Decree
State the necessity to comply with the
UCCJA with respect to modification de-
crees, an effect which is plainly ad-
verse to the intentions of the PKPA. (It
could also encourage punitive custody
awards and relitigations contrary to the
intent of both Acts.)
-24-
The Jurisdiction Forever Rule ig-
nored this logical inconsistency, assum-
ing that conflict between the UCCJA and
PKPA was not incongruous and pointing out
that when the two acts were in conflict,
the PKPA would govern because of federal
preemption.
This interpretation, however, does
not fit a careful and faithful reading of
the law which was actually written. It
assumes that the legislators not only
meant what they didn’t say, but meant
something a lot simpler and easier to
write than the law they passed. (It rests
on the notion that the legislators went
out of their way to write something more
complicated than what they really meant!)
It represents a pragmatic application of
the law which is actually contrary to its
provisions. In pertinent part, the law
reads:
“(c) A child custody determination
made by a court of a State is con-
| wn
sistent with the provisions of this
Section only if--
(1) such court has jurisdic-
tion under the law of such
State; and ***
(ad) 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 re-quirement of sub-
section (c)(1) of this section con-
tinues to be met and such State re-
mains the residence of the child or
of any contestant.”
Subsection (d) does not say that the
Decree State’s jurisdiction continues so
long as one parent remains in that state.
In addition, the requirement of Subsec-
tion (c)(1) must continue to be met. Sub-
section (c)(1) requires the court to
have jurisdiction under the law of such
state. In the case of every single state
now, that is the UCCJA. In Virginia in
1987, that was the UCCJA as adopted by
Virginia, that is, 20-125 et seq.
This Court has already recognized
that the PKPA confers continuing juris-
diction subject to conditions; in Thomp-
son, supra, the Court says:
. ~26-
“The sole exception to this [conti-
nuing jurisdiction of Decree State]
occurs where the first State either
has lost jurisdiction or has de-
clined to exercise continuing ju-
risdiction.” Id. at 515.
So the formula set forth by the PKPA
is a circular test which incorporates and
reiterates the UCCJA’s jurisdictional re-
quirements. There is no conflict; the
Federal Act encourages and depends upon
compliance with the Uniform Act.
In 1987, Daniel was meyer years old.
He had moved away from Virginia with his
custodial parent on November 1, 1981 at
the age of less than three years old,
never having attended school in Virginia.
His doctors, teachers, activities and
friends, acquaintances, religious acti-
vities, and home were elsewhere. Vir-
ginia lacked jurisdiction to hear a mo-
dification custody petition.
Cc. "Significant Connections”
In fact, the trial court did not
pretend there was substantial evidence
-27=
in Virginia in 1987; the Judge openly
stated that his reason for exercising
jurisdiction was that there had been
plentiful litigation in the Common-
wealth. (Supra, p. 7] (Taking into ac-
count that one of the main purposes of
the UCCJA is to reduce custody litiga-
tion, Elder v. Park, App. 1986, 717 P.2d
1132, 104 N.Mex. 163, this would seem to
disqualify, not qualify, Virginia to
hear the case.)
WHAT ARE SIGNIFICANT CONNECTIONS?
"Significant connections” can be
defined in any number of ways. However,
it is obvious that “significant connec-
tions” does not mean simply and solely
that the court made a decree in the past.
Although many states have described the
SCSE Test, and although Virginia itself
applied it in Middleton v. Middleton,
1984, 314 S.E.2d 362, 227 Va. 82, it re-
Mains an area prone to abuse and its de-
-29- |
finition lacks sufficient particularity
for uniform application by the several
states. Again, the states decide these
issues in different ways on different
days. Some examples follow.
The fact that Florida had made the
original decree and a subsequent modifi-
cation did not constitute “sufficient
connections,” where the children had
lived with their custodial parent in New
York for three years, and only the non-
custodial parent lived in Florida. Mat-
teson v. Matteson, Fla. App. 2 Dist.1980,
379 So.2d 677. But cf. Meier v. Davignon,
1987, 734 P2d 807, 105 NM 567.
Visitation with a non-custodial pa-
rent by a child who lived in a sister
state did not establish jurisdiction.
Bills v. Murdock, 1982, 654 P.2d 406,
232 Kan. 237. But cf. In re Marriage of
Panich, Mo. App. 1934, 672 SW2d 718.
Jurisdiction could not be asserted
:
A
x
id
where, prior to filing of the petition
for modification, New Mexico was not the
children’s home state, and the only con-
nection of the children to the state was
their father. Trask v. Trask, App. 1986,
727 P.2d 88, 104 NM 780. But cf. William
o Ve ichele P., 1979, 416 NYS2d 477, 99
Misc.2d 346.
Visitation with the non-custodial
parent was not enough connection to es-
tablish jurisdiction. Gomez v. Gomez,
1982, 446 NYS2d 127, 86 A.D.2d 594,
aff’d. 452 NYS2d 13, 56 NY2d 746, 437
NE2d 272, stay denied 453 NYS2d 684, 56
NY2d 1028, 439 NE2d 399. But cf. SJ v.
LT, Alaska 1986, 727 P2d 789.
Although the father had a signifi-
cant connection with New York, the child
had no connection other than a brief re-
sidence prior to commencement of the ac-
tion. Sullivan v. Sullivan, 1982, 451
NYS2d 851, 87 AD2d 42, aff’d. 458 NYS2d
-30-
fo
516, 58 NY2d 642, 444 NE2d 980. But cf.
Houtchens v. Houtchens, R.I. 1985, 488
A.2d 726.
Although a child born in New Jersey
had visited her father in New Jersey af-
ter moving away from the state with her
custodial mother, the child had no sub-
stantial connection with New Jersey; New
secs Dae
——
Jersey lacked jurisdiction over custody.
LF v. GWF, 1982, 443 A2d 751, 183 NJ Su-
per. 195. But cf. Dykes v. Dykes, Fla.
App. 5 Dist. 1981, 395 So.2d 188.
On a petition for modification, e-
vidence was insufficient to establish
“significant connections” if the chil-
dren were only in the state for visita-
tion. att nv. Bandler, 1983, 461
A2d 561, 123 NH 368. But cf. Hofer v.
Agner, Fla.App.Dist. 1979, 373 So.2d 48.
The state in which the mother resi-
ded and which had made the original cus-
tody decree lost its preexisting juris-
-31-
basis cst saleskstetaaat
diction where the children’s only re-
maining connection was visitation with
their non-custodial mother. Olson v.
Olson, 1985, 494 A2d 737, 64 Md. App.
154. But cf. Joseph EH v. Jane EH, 1980,
423 A.2d 739, 283 Pa. Super. 109.
New York lacked jurisdiction to
decree concerning custody where the
children had not lived in New York for
five years and their only connection was
their father’s visitation rights. Swire
v. Swire, 1983, 494 A.2d 1035, 202 N.J.
Super. 189. But cf. Reeve v. Reeve, Fla.
App. 1 Dist.1980, 391 So.2d 789.
The Court of Appeals of Virginia did
not explain what the basis of the signi-
ficant connections might have been. A
concept as crucial as substantial evi-
dence about a child’s welfare should be
defined plainly. If definition of such a
crucial term is left only to trial court
discretion, the UCCJA’s and PKPA’s goal
-32-
- “dn dorrntitsy ig Staal
of limiting, rather than proliferating,
jurisdiction (Hart v. Hart, 1985, 695
P.2d 1285, 236 Kan. 856) is not served.
Of course, this Court requires an
explanation of why definition of “sig-
nificant connections/substantial evi-
dence” and/or clarification of the “con-
tinuing jurisdiction” provisions of the
PKPA are important federal issues. The
answer is that regulation of interstate
jurisdictional activity is obviously a
federal issue; otherwise there would be
no Uniform Act and no PKPA. Yet now, the
essential reasoning behind the Uniform
Commissioners’ work and the Wallop
Amendment can be evaded by the “"Juris-
diction Forever Rule” coupled with a fast
and loose interpretation of “significant
connections” and “substantial evidence”--
such as that adopted by the trial court
in Etlin v. Etlin and allowed to proceed
uncorrected through the highest Court of
-33-
the Commonwealth of Virginia.
D. The Federal Issue Presented
Since the decision in Thompson, su-
pra, the Supreme Court of the United
States has told the fifty states what the
PKPA does not do. Petitioner asks this
Court to continue the process, grant
certiorari, and tell the several states
what the PKPA does do.
THE STATES ARE DIVIDED AND CONFUSED
Can a Forum State ever modify the
decree of its sister state if a non-
custodial parent remains behind and in-
vokes the continuing jurisdiction of the
decree state? In the face of conflict-
ing definitions and widely divergent in-
terpretations, the several states have
come down on both sides of the question.
SAYING ONLY THE DECREE STATE RULES:
Clarke v. Clarke, 1985, 496 A.2d 361, 126
N.H. 753; Mark L. v. Jennifer S., 506
NYS2d 1020, 133 Misc.2d 454 (N.Y. 1986);
-34-
Enslein v. Enslein, N.Y.A.D. 2d Dept.
1985, 492 NYS2d 785; Walsh v. Walsh, 458
NYS2d 835, 117 Misc.2d 815 (1983); S.
Frederick P. v. Barbara P., 454 NYS2d
202, 115 Misc.2d 332 (1982)? Schoeberlein
v. Rohlfing, Minn App 1986, 383 NW2d
386; State ex rel Valles v. Brown, 639
P2d 1181, 97 NM 327 (1981); Ingram v.
Ingram, 463 So.2d 932 (La. App. 2d Cir.
1985); Wheeler v. Buck, 452 So.2d 864
(Ala. Civ. App. 1984); O’Daniel v.
Walker, 686 SW2d 805, 14 Ark. App. 210
(1985); McDougald v. Jenson, C.A. 11
(Fla) 1986, 786 F.2d 1465, cert den 107
S.Ct. 207; Heartfield v. Heartfield,
C.A.Tex 1985, 749 F.2d 1138; Kumar v.
| Santa Clara County Superior Court, Cal.
App. 1981, 177 Cal. Reptr. 763; Bahr v.
Bahr, 442 NYS2d 687, 108 Misc.2d 920,
aff’d 458 NYS2d 247, 91 AD2d 1010
(1981); Tufares v. Wright, 644 P2d 522,
98 NM 8 (1982); In re McBride, Ala. Civ.
-35-
App. 1985, 469 So.2d 645; Applegate v.
Gant, 460 So.2d 1293 (Ala. Civ. App.
1984); Flannery v. Stephenson, 416 So.2d
1034 (Ala. Civ. App. 1982); Evans v.
Evans, 668 F.Supp. 639 (M.D. Tenn 1987);
Garrett v. Garrett, 732 SW2d 127 (Ark.
1987); Yacco v. Durley, 457 NYS2d 384,
117 Misc.2d 69 (1982); Department of
Human Services v. Avinger, 721 P.2d 781
(NM App 1985); Belosky v. Belosky, 640
P.2d 471, 97 NM 365 (1982); Marks v.
Marks, 315 SE2d 158 (S.C. App. 1984); In
re Fox, App 2 Dist. 1986, 225 Cal.
Reptr. 823, 180 C.A. 3d 862, rev den;
Jefferson v. Downs, 436 NYS2d 169, 107
Misc.2d 852 (1981) to name a few.
SAYING THE FORUM STATE MAY RULE:
Voninski v. Voninski, 661 SW2d 872 (Tenn
App. 1982); Debra S. v. Roger S., NYS 2d
723, 116 Misc.2d 264 (1982); Mebert v.
Mebert, 444 NYS2d 834, 111 Misc.2d 500
(1981); Leslie F. v.Constance F., 441
-36-
NYS2d 911, 110 Misc.2d 86 (1981); Vir-
ginia E. E. v. Albert S.P., 440 NYS2d
979, 110 Misc.2d 448 (1981); In re Mar-
riage of Leyda, 398 NY2d 815 (Iowa,
1987); Snow v. Snow, Minn App. 1985, 369
NW2d 581; Dennis v. Dennis, 366 NW2d 474
(ND 1985); Quenzer v. Quenzer, 653 P2d
295, cert den 103 S.Ct. 1436, 460 US
1041, 75 L.Ed.2d 794; Zie Vv j er,
691 P.2d 773, 107 Idaho App. 527 (1984);
Arbogast v. Arbogast, 327 SE2d 675 (W.V.
1984) (holding that a custody decree not
made in compliance with the PKPA could
not vest continuing jurisdiction in the
decree state); Nielsen v. Nielsen, 472
So.2d 133 (La. App. 5 Cir. 1985); Wachter
v. Wachter, 439 So.2d 1260 (La. Bop. 5
Cir. 1983) (holding that the Decree State
could not make an order consistent with
the provisions of the PKPA while it was
not the child’s home state); Boyd v.
Boyd, 653 SW2d 732 (Tenn App 1983); In re
-37-
ee ae
Custody of Thorensen, 730 P2d 1380, 46
Wash. App. 493 (1987); In re Custody of
Dunn, 701 P2d 158 (Colo. App. 1985)
(holding it was abuse of discretion for
the court in the forum state to
automatically reject jurisdiction in
favor of the decree state!); In re Rey-
nolds, 441 NE2d 1141, 2 Ohio App 3d 309,
2 OBR 341 (1982); Alexander v. Ferguson,
648 F. Supp. 282 (D. Md. 1986); Serna v.
Salazar, 651 P.2d 1291, 98 NM 648 (1982);
W Vv icks, 328 SE2d 126, 285 S.
Car. 139 (App. 1985); Berry v. Berry,
466 So.2d 138 (Ala. Civ. App. 1985);
Pierce v. Pierce, 640 P.2d 899, 197 Mont.
16 (1982); Middleton v. Middleton, 314
SE2d 362, 227 Va. 82 (1984); Clark v.
Kendrick, 670 P2d 32 (Colo. App. 1983);
Herrero v. Matas, 447 So.2d 335, rev
dismissed 453 So.2d 44 (Fla App 3 Dist
1984); Matter of T.C.M., 651 SW2d 525 (Mo
App 1983); Fielder v. Thorn, 525 A.2d 576
-38-
(De. Fam Ct. 1987); Slidell v. Valentine,
298 NW2d 599 (Iowa, 1980) (holding that
there must be “reasonable time limits”
to the continuing jurisdiction of the
decree state); Sinclair v. Albrecht, 336
SE2d 485, 287 S.C. 20 (App. 1985); Kiou-
kis v. Kioukis, 440 A2d 894, 185 Conn.
249 (1981) (holding that when the con-
nections with the decree state become
slight, the forum state should take o-
ver); Bergh v. Bergh, 387 NW2d 213 (Minn
App 1986); Wagner v. Wagner, 482 So.2d
780, writ den 487 So.2d 441 (La. App. 4
Cir. 1986); Olivia H. v. John H., 497
NYS2d 838, 130 Misc.2d 756 (1986); to
name a few.
3 Even in the face of the voluminous
and detailed statutory and caselaw, per-
haps because of the voluminous and de-
tailed statutory and caselaw, the sever-
al states are still unsure how to pro-
ceed; each case is a roll of the dice.
-39-
In this petition, the partial list of
reported cases shows that radically dif-
ferent opinions--each of them learned
and conscientious--have issued from Con-
necticut, New York, Minnesota, New Mex-
ico, Louisiana, Alabama, California,
Texas, Tennessee, Arkansas, South Caro-
lina, Delaware, Iowa, Wyoming, Idaho,
West Virginia, Washington, Colorado,
Ohio, Maryland, Montana, Florida, Missou-
ri and Virginia. The courts of each
state have lakored judiciously to come to
the right decision about a uniform code
and a federal law, both meant to protect
interestate families and to promote fe-
deral judicial peace. It seems time for
the United States Supreme Court to speak.
II. THE VIRGINIA COURT HAS ABUSED ITS
CONTEMPT POWER IN ORDER TO DEPRIVE
THE MOTHER OF CONSTITUTIONAL RIGHTS.
A. The Mother was Denied Proce-
dural Due Process
Judge Bach issued a rule for civil
-40-
contempt on September 21, 1982, ordering
Mother to show cause on October 1, 1982;
it was never served upon her, yet she was
held in contempt on October 26, 1982.
[Appendix 30-31] In May, 1985, two and
one-half years later, in an obvious con-
trivance, the Judge issued a bench war-
rant for her arrest for criminal con-
tempt, alleging the contemptuous act of
“misleading him” in 1982. [Appendix 32-
33] The Sheriff arrested Michelle on
that warrant on February 18, 1987. On
February 20, 1987, upon being informed
that the warrant had been drawn after the
statute of limitations ran, Judge Bach
offered to draw new process, using new
grounds to satisfy legal requirements for
Michelle’s arrest [Appendix 34]. He re-
voked her bond and jailed her. [Appen-
dix 34] Three weeks later he tried her
for criminal contempt without a jury and
sentenced her to 12 months in jail.
-41-
None of the protections afforded to
citizens before they may be deprived of
their liberty were afforded to Michelle.
B. The Virginia Court Did--or Did
Not?-- Have Jurisdiction Over
Civil Contempt
When matters of contempt and custody
are inextricably interwoven, jurisdiction
to hold a person in contempt depends on
subject matter jurisdiction pursuant to
the UCCJA. Funk v. Macauley, Ind. App. 2
Dist. 1983, 457 N.E.2d 223. O’Daniel v.
Walker, 1985, 686 S.W.2d 805, 14 Ark.
App. 210. The states’ conclusions on
this matter are divided just as sharply,
if not as often, as their conclusions
about custody jurisdiction. The Macauley
court, for example, held that 10 years
after the children had left the state
with their custodial parent, that state
retained jurisdiction. Kirylik v. Kiry-
lik, 357 S.E.2da 449 (S.C. 1987) separa-
ted jurisdiction to hear a custody modi-
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fication petition from jurisdiction to
hold a parent in civil contempt, saying:
“Even if a court loses jurisdiction
to modify its prior orders under the
| UCCJA, it retains the inherent power
| to enforce compliance ... through
civil contempt.” Id. at 450.
It went on to affirm the trial court’s
decision not to exercise jurisdiction,
pointing out that the Forum State could
enforce the Decree, by contempt or other-
wise.
Another case, Siegel v. Siegel, 417
N.E.2d 1312, 84 I11.2d 212, 49 Ill. Dec.
198 (1981) invalidated a decree holding
an out-of-state custodial parent in con-
tempt because the statutory prerequi-
sites for subject matter jurisdiction
over the subject matter of custody could
not be met, although Illinois had made
the initial decree and had even provided
in it that it had exclusive continuing
jurisdiction. The decree enjoined both
parents from seeking modification in
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CO tt aoe
ane
other forums. Id. at 1313. The Court’s
held that it was the general rule in
Illinois that the Decree State maintained
continuing jurisdiction of the subject
matter and the parties for modification
purposes, but went on to analyze the
UCCJA provisions for modification ju-
risdiction, concluding that the Act
“does not excuse the original court
from continuing to meet the juris-
dictional standards of section 3
{analogous to VA Code 20-126].”
This case relied heavily on Professor B.
Bodenheimer, reporter for the special
committee of the Commissioners on Uniform
State Laws which prepared the UCCJA,
citing B. Bodenheimer, "The Uniform
Child Custody Jurisdiction Act: A Legis-
lative Remedy for Children Caught in the
Conflict of Laws,” 22 Vand.L.Rev. 1207,
1237 (1969). Bodenheimer’s position was
that the Decree State would have juris-
diction to modify “unless that court no
longer has jurisdiction under the ‘home
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state’ or ‘strong contacts’ test.” 22
Vand.L.Rev. 1207, 1236. The Siegel
court concluded that, since the custody
and contempt proceedings were inextric-
ably interwoven,
“...even though the mother was in
violation of the circuit court’s
order, it was an abuse of that
court’s discretion to adjudge her in
contempt ...”
at which point it found the court below
to be without jurisdiction and vacated.
a The Mother was Denied Sub-
stantive Due Process
Since there is a difference in
standards of proof and Constitutional
protection for defendants in criminal as
opposed to civil proceedings, whether
contempt is civil or criminal is very
important. Virginia itself recognizes
that contempt is considered a serious
crime to be tried by a jury when the
sentence exceeds six months. Green v.
Tucker, 375 F.Supp. 892 (E.D. Va. 1974).
The essential difference is that civil
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a
contempt lies for disobedience to an or-
der setting forth the rights of a liti-
gant (such as denial of visitation),
whereas criminal contempt is generally a
direct act against the Court or at least
an act which obstructs justice. A Judge
has the power to punish summarily for
direct, criminal contempt which might
threaten the administration of justice.
From the record in this case, it is clear
that Michelle was held in criminal con-
tempt not because the elements of cri-
minal contempt were present, but because
the court viahed to jail her.
The Virginia court manipulated the
contempt powers as it had manipulated the
jurisdictional statutes. The judge held
Mother in contempt by embedding her tri-
al in a civil custody proceeding. Then
he sentenced her for criminal contempt,
and appeal was denied her because the
contempt, said to be criminal, could not
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a
be reviewed on appeal (like a civil mat-
ter) but only on writ of error.
D. The Mother was Denied Equal
Protection of Law
Perhaps the abuse of the contempt
powers shows, more clearly than anything
else, why jurisdiction in custody matters
must not be determined by “feelings” and
“impressions” but only by adherence to
law. If a state court does not lawfully
exercise jurisdiction over the subject
matter of a custody trial, it must dis-
card someone’s constitutional rights in
order to enforce its own orders. That is
what happened in the Etlin case.
Michelle would have had to be tried
in Maryland for having denied visitation,
or having “absconded with the child,” if
that were to be considered criminal con-
tempt. (Article III, Section [3], U.S.
Constitution). She could be tried in
Virginia for civil contempt of a valid
Virginia decree, but a jail term could
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eee
only be imposed in a coercive, not puni-
tive, manner. (Since Daniel’s father al-
ready had him, Michelle could not be co-
erced to provide him.) No matter how the
contempt sentence is viewed, it comes out
unConstitutional. And in many other
state courts in the country, civil and
criminal contempt are being mixed, re-
defined, confused, misused and abused in
order to provide judges with legisla-
tive, judicial and executive powers--in
effect, to provide judges with kingly
powers.
This was briefed to the Court of
Appeals of Virginia [Appendix 15], which
rejected consideration of the appeal on a
technicality that protected no valid
state interest: that contempt had to be
reviewed by writ of error. The Virginia
statute cited, 19.2-318, authorizes writ
of error in criminal contempt cases; it
is not exclusive and does not contain any
~48-
» 1 aoe
language which precludes review by ap-
peal. When trial of contempt and custody
are held together, it would seem obvious
that the appeal of both should be taken
together, to promote judicial economy if
not for other reasons.
It is undeniable, by the mere fact
that the contempt and custody trials were
held together, that they were inextric-
ably interwoven. Michelle’s conviction
and sentence were contained in the same
order as the custody decision. [Appendix
10-11] Systematically, then, the con-
tempt was viewed as civil and/or crimi-
nal in Michelle’s worst interest. When
Michelle would have Constitutional
rights, the contempt was viewed ina
civil context; when Michelle would have
the right of appeal, it was viewed in the
criminal context. When Michelle would
have escaped a jail term, it was viewed
in a criminal context; when facts had to
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be proven beyond a reasonable doubt and a
jury had to be empaneled, it was viewed
as civil.
This contamination even persisted in
the Appeliate Court. Michelle’s petition
for review to the Supreme Court of Virgi-
nia pointed out that the technicality was
applied in a discriminatory manner, since
at least one defendant recently had his
criminal contempt conviction reviewed by
appeal in the very Court where her own
appeal was dishonored. [Appendix 38]
However, her petition was denied.
The use of the contempt powers of a
court can effectively elevate judge-
made “law” over legislature-made law,
threatening the separation of powers in-
herent in the Constitution. The trial
court below made a law in 1982 imposing
affirmative obligations upon Michelle, a
citizen of Maryland. (This order was not
even signed.) The same trial court then
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interpreted and enforced its own unwrit-
ten order, and punished disobedience to
it, without subject matter or personal
jurisdiction, over a citizen of another
state.
The powers of civil and criminal
contempt are unduly vague and particu-
larly in the Commonwealth of Virginia,
they merge and are ill defined. See
Leisge v. Leisge, 224 Va. 303, 296 S.E.2d
538 (1982). As a result, proceedings can
end up following no law at all, as they
fall through the cracks between civil and
criminal procedure. This violates a de-
fendant’s right to substantive due pro-
cess. (Fourteenth Amendment to the U.S.
Constitution, Section 1).
Had Michelle broken a real Virginia
law in Maryland, she would not have been
subject to such a deprivation of rights.
Had she broken a Maryland law in Mary-
land, or a Virginia law in Virginia, she
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would be entitled trial with court ap-
pointed counsel, bail, the presumption
of innocence, the right to appeal and a
jury. But most important, she would have
had the protection of the Eighth Amend-
ment against being deprived of her first-
born son as punishment for a misdemeanor.
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CONCLUSION
The Uniform Commissioners, drafters
of the PKPA, the commentators, and the
highest courts of the several States
have toiled for 20 years with more than
10 pages of law (small print, single
spaced) describing the jurisdictional
rights and responsibilities involved in
interstate custody disputes. In light of
these complex criteria, the idea that ju-
risdiction in 1981 automatically confers
jurisdiction in 1987 is ludicrous. Their
careful work could have been cut drasti-
cally if they had considered only juris-
diction for original decrees, and then
tacked on the Jurisdiction Forever Rule.
A logical view of the Jurisdiction
Forever Rule also supports the statutory
view. To say that a court may rule in
1987 because it ruled in 1981 is no more
logical than to say that a mother should
have custody in 1987 because she had cus-
-53-
tody in 1981. In fact, the latter is
much more likely to be reasonable in the
child’s best interest. Recognition that
custody depends upon circumstances which
can change requires corresponding recog-
nition that jurisdiction to decree as to
custody does the same. To imagine that a
child has moved with his custodial pa-
rent to a sister state, and his life has
changed to such a degree that his custo-
dial situation should be changed, while
assuming the immovable ability of the
decree state to make a determination
merely because it has decreed in the
past, is senseless. How can the ability
of the custodial parent to function in
the best interests of the child be con-
sidered continuously changeable, while
the ability of the Decree State court to
function in the best interests of the
child remains a constant?
A more important consideration is
-54-
|
that the equal protection of laws gua-
rantees for residents of a sister state
access to its courts of competent juris-
diction. Absent some overriding reason
why the court in the sister state (if it
has become the home state of the child
and the state with the most significant
evidence) should not provide access to
its citizens, that court cannot be de-
prived of jurisdiction. For Virginia to
be able to deny Michelle and Daniel the
equal protection of Oregon’s laws is ipso
facto unConstitutional. It is also ab-
surd. In fact, Mr. Justice Marshall,
writing for the Court in Thomson, supra,
commented on a similar eventuality that
would arise if federal courts were to
hear interstate cases under the PKPA:
"Petitioner’s proposal is all the
more remarkable in the present case,
in which he seeks to have a Califor-
nia District Court enjoin enforce-
ment of a Louisiana state-court
judgment before the intermediate
and supreme courts of Louisiana even
have had an opportunity to review
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NN
that judgment.” Id. at 520, n. 5.
While Oregon proceeded in compliance with
both the UCCJA and the-PKPA, Virginia
suddenly usurped its jurisdiction (as
soon as Father physically removed Daniel
from Oregon) at a time when it could not
comply with either the Uniform Act or
the Federal Act to decree concerning
custody of Daniel. The Virginia court
had no right to rule in 1987 because it
had no statutory basis to do so.
The court also exceeded its juris-
diction in convicting Mother of criminal
contempt. Such conviction would require
a lawful proceeding which automatically
activated constitutional protection for
the mother. The order of which Mother
was charged with contempt would have had
to be registered in Maryland (which could
not be done because it was not signed and
it did not comply with the PKPA), and
Maryland would have the responsibility
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under the PKPA to enforce it. Michelle’s
contempt trial would have taken place in
Maryland with a jury, if she chose.
No person may be deprived of life,
liberty or property without due process,
even by a judge. The powers of a judge,
like other legal powers vesting in the
state, may not encroach upon individual
liberty absent the operation of law.2/
Yet the case before the Court reveals
that a judge in Virginia not only en-
croached upon the Mother’s liberty
interest in the equal protection of laws,
including the Uniform Law and the Federal
Act passed to shore it up; he also re-
moved the mother’s Constitutional rights
in trying her for a crime by abuse of the
civil contempt process of the court.
as There is a difference between “ope-
ration of law” and “done by a
Judge.” The difference is statu-
tory basis for what the Judge does.
Lacking statutory authority, a
Judge’s deeds are not valid.
=-57=
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This Court should grant certiorari
because the Supreme Court of Virginia has
upheld a state court abuse of process
which has denied the Mother her Consti-
tutional rights, while ignoring a fede-
ral act and a uniform law instituted to
prevent such abuses.
Respectfully submitted,
Wuchllh Fhe
Michelle Etlin, pro se
3009 Military Rd. NW
Washington, DC 20015
Dated:
March 14, 1989
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.