IRENE D'AGNESE (GOULETAS) V VICTOR J. D'AGNESE

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia

IRENE D’AGNESE (GOULETAS)
OPINION BY
v. Record No. 2466-94-2 CHIEF JUDGE NORMAN K. MOON
MARCH 19, 1996
VICTOR J. D’AGNESE

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

John K. Taggart, III (Patricia D. McGraw;
Tremblay & Smith, on briefs), for appellant.

Victor J. D’Agnese, pro se.

Irene D’Agnese appeals the circuit court’s ruling that it
had jurisdiction over the issue of child custody in divorce
proceedings initiated by Victor D’Agnese. Mrs. D’Agnese argues
that the court was prevented from assuming jurisdiction under the
Uniform Child Custody Jurisdiction Act (UCCJA) because at the
time it did so, a custody proceeding was pending in Illinois. We
agree and reverse the circuit court’s decree insofar as it
assumes jurisdiction over the issue of child custody.
Irene Gouletas and Victor D’Agnese were married on August
24, 1978 in Chicago, Illinois. Mrs. D’Agnese’s family resides in
Chicago. Three of the couple’s four children were born in
Chicago. The family moved to Virginia in 1984, where their
fourth child was born. The family resided in Virginia until
1992. On March 3 of that year, Mrs. D’Agnese filed for divorce
in Virginia, requesting custody of the children.
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On April 10, 1992, apparently without informing Mr. D’Agnese
of her intentions, Mrs. D’Agnese took the four children to live
with her family in Chicago. On April 20, 1992, Mrs. D’Agnese
filed a petition for an order of protection with the Circuit
Court of Cook County, Illinois. She claimed that the court had
jurisdiction because the children were physically present in the
state and it was necessary to protect them from mistreatment and
abuse. In support of this claim, she described various acts by
Mr. D’Agnese, including beating the children, holding a knife to
her daughter’s throat, and threatening to kill the family pets
with a gun. Although the form petition requested information
about other pending court actions between the parties, Mrs.
D’Agnese did not advise the Illinois court that she had a
petition for divorce pending in Virginia. On April 24, 1992,
Mrs. D’Agnese voluntarily dismissed the Virginia divorce
petition.
On April 20, 1992, the day Mrs. D’Agnese filed her petition,
the Illinois court granted an emergency protection order. The
order prohibited Mr. D’Agnese from entering Mrs. D’Agnese’s home
or office in Chicago and from removing the children from the
state. The order also granted temporary custody of the children
to Mrs. D’Agnese. Mr. D’Agnese was notified of this order after
it was granted. On May 11, 1992, Mr. D’Agnese moved to dismiss
on the grounds that the Illinois court was an inappropriate
forum. The court refused to dismiss Mrs. D’Agnese’s petition,
and the emergency order was extended several times.
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On or about May 1, 1992, Mrs. D’Agnese filed for divorce in
Illinois. Several days later, Mr. D’Agnese filed for divorce in
Virginia. Mrs. D’Agnese’s Illinois petition for divorce and the
petition for a protective order were consolidated. Mr. D’Agnese
did not answer the Illinois petition for divorce, and a judgment
for dissolution of the marriage was entered on March 22, 1993.
The Illinois court granted custody of the children to Mrs.
D’Agnese and continued the order of protection. It reserved
rulings on visitation, support, maintenance, and attorney’s fees.
Mr. D’Agnese filed an appeal of the judgment, which was
dismissed on February 25, 1994, apparently at Mr. D’Agnese’s
request.
On January 25, 1993, while both the Virginia and Illinois
proceedings were pending, Mrs. D’Agnese filed a motion for
abstention in the Virginia circuit court, asking that the court
refrain from exercising jurisdiction due to the Illinois
proceedings. On March 31, 1993, the Virginia trial judge issued
a letter to the parties indicating that he had spoken with the
judge in Illinois. The conversation took place after Mr.
D’Agnese had defaulted in the Illinois divorce proceeding, but
before the final decree was entered. The Illinois judge informed
Judge Peatross that Mr. D’Agnese had made an appearance in her
court that “was not a special appearance but one which resulted
in in personam jurisdiction generally over the matter.”
The judges agreed that Virginia had jurisdiction as the
children’s “home state” under the Uniform Child Custody
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Jurisdiction Act. See Code ? 20-126(A)(1); Ill. Rev. Stat. Ch.
40, ? 2104. They also agreed that Illinois would have
jurisdiction if the requirements of the so-called “emergency
jurisdiction” section of the UCCJA were met. See Ill. Rev. Stat.
Ch. 40, ? 2104; Code ? 20-126(A)(3). The Illinois judge
indicated that she had made findings of abuse or mistreatment in
accord with that section, and that Mr. D’Agnese had not
challenged those findings. Judge Peatross informed the Illinois
judge that Mr. D’Agnese had denied abuse at a hearing before the
Virginia court. However, Judge Peatross concluded that both
courts “may take jurisdiction of the matter and it is a question
of whether or not one of the courts should decline jurisdiction
at this point in time.”
On October 19, 1993, the Virginia court ruled that under
Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362 (1984), it was
the proper court to exercise jurisdiction under the UCCJA because
Virginia was the children’s home state. On August 11, 1994, the
circuit court denied Mrs. D’Agnese’s motion to dismiss Mr.
D’Agnese’s petition for lack of jurisdiction.
On November 4, 1994, the Virginia court issued a decree of
divorce that affirmed that portion of the Illinois court’s decree
dissolving the parties’ marriage. The court noted that Mrs.
D’Agnese had preserved her right to appeal the court’s retention
of jurisdiction. The court awarded custody of the children to
Mrs. D’Agnese. The issue of visitation was reserved pending
reports by mental health professionals. The court later ordered
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supervised visitation on a limited basis, to which Mrs. D’Agnese
has objected. Mrs. D’Agnese appeals the circuit court’s ruling
that it had jurisdiction over the custody of the children.
We review the evidence and all reasonable inferences in the
light most favorable to Mr. D’Agnese, the prevailing party in the
trial court. The burden is on the party who alleges reversible
error to show that reversal is justified. Lutes v. Alexander, 14
Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992).
Both Virginia and Illinois have adopted the UCCJA. Among
the Act’s purposes are to avoid jurisdictional competition in
matters of child custody, to promote cooperation among courts of
different states in custody disputes, to assure that litigation
over the custody of the child ordinarily occurs in the state most
closely connected with the child and his or her family, and to
deter abductions and other unilateral removals of children
undertaken in order to obtain custody orders. Middleton, 227 Va.
at 93, 314 S.E.2d at 367. The child’s welfare is the paramount
concern for courts in determining the most appropriate forum for
a custody dispute. Farley v. Farley, 9 Va. App. 326, 329, 387
S.E.2d 794, 796 (1990).
Mrs. D’Agnese does not dispute that Virginia was the
children’s home state when these proceedings began. Instead, she
argues that the Virginia court could not lawfully assume home
state jurisdiction because a proceeding was pending in Illinois.
Under Code ? 20-129(A), the Commonwealth “shall not” exercise
jurisdiction where at the time the petition was filed, a
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proceeding concerning the custody of the child was pending in a
court of another state “exercising jurisdiction substantially in
conformity with this chapter . . . .” This rule does not apply
where the court in the other state decides to stay its proceeding
in favor of the other court. Code ? 20-129(A). Here, the
Illinois court declined to stay its proceeding in favor of the
Virginia court.
This section of the UCCJA was intended to avoid
jurisdictional conflict by establishing a “priority in time” rule
for simultaneous proceedings. See Elizabeth Carrington Shuff,
Comment, The Uniform Child Custody Jurisdiction Act in Virginia,
14 U. Rich. L. Rev. 435, 438, 442 (1979).1 Code ? 20-129(A)
applies only to proceedings in another state where the court is
exercising jurisdiction “substantially in conformity” with the
UCCJA. Here, the Illinois court issued a protective order
pursuant to the emergency jurisdiction provision of the UCCJA.

1 A threshold question is whether Mrs. D’Agnese is
entitled to invoke Code ? 20-129 at all. Mrs. D’Agnese seeks
application of the “priority in time” rule, yet her Illinois
action was not the first in time. Her Virginia divorce petition,
which requested custody of the children, was still pending at the
time she filed in Illinois. She failed to inform the Illinois
court of the Virginia proceeding, apparently because she had left
instructions with her attorney to dismiss the Virginia proceeding.
It was in fact dismissed shortly after the Illinois petition was
filed.
At the time Mr. D’Agnese filed his petition in Virginia, the
proceeding initiated by Mrs. D’Agnese was pending in Illinois.
These were simultaneous proceedings within the meaning of Code
? 20-129, and therefore that statute applies, even though the
Illinois proceeding was not originally the first in time. See
Simpkins v. Disney, 416 Pa. Super. 243, 247-49, 610 A.2d 1062,
1064-65 (Super. Ct. 1992).
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Under that provision, the court may assume jurisdiction if the
child is physically present in the state and it is necessary in
an emergency to protect the child from mistreatment or abuse,
either actual or threatened. Ill. Rev. Stat. Ch. 40, ? 2104;
Code ? 20-126(A)(3).
In order to determine whether it was appropriate to defer to
the Illinois court under Code ? 20-129(A), the circuit court had
to determine whether the Illinois court’s exercise of
jurisdiction was substantially in conformity with the Act. While
the court appeared to have doubts about the legitimacy of the
allegations of abuse, it nonetheless found in the letter opinion
of March 31, 1993 that the Illinois court had obtained emergency
jurisdiction. Once the circuit court so found, it was required
to defer to the Illinois court pursuant to Code ? 20-129(A). See
Coleman v. Coleman, 493 N.W.2d 133, 136 (Minn. Ct. App. 1992);
Carpenter v. Carpenter, 326 Pa. Super. 570, 577-80, 474 A.2d
1124, 1128-30 (Super. Ct. 1984).
In deciding to exercise home state jurisdiction even though
an action was pending in Illinois, the circuit court relied on
Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362 (1984). In
Middleton, the Supreme Court held that a pending custody
proceeding in England did not justify the circuit court’s refusal
to exercise home state jurisdiction. The Court warned against
applying Code ? 20-129(A) in a “wooden” manner where foreign
jurisdiction had been obtained by one parent spiriting the child
away from its domicile. Id. at 99, 314 S.E.2d at 371. However,
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in Middleton there were no allegations of abuse, and the Court in
effect held that the mother had “spirit[ed] the child away from
its domicile” simply in order to obtain foreign jurisdiction.
Id.
If the Virginia circuit court had found that Mrs. D’Agnese
took the children to Illinois simply to obtain jurisdiction in
that state and not to protect them from abuse, it could have
refused, under Middleton, to defer to the Illinois court pursuant
to Code ? 20-129(A). However, the court did not do so, but found
instead that the Illinois court had obtained emergency
jurisdiction. The circuit court therefore had no basis to refuse
to defer to the Illinois court pursuant to Code ? 20-129(A).
The Illinois court’s exercise of emergency jurisdiction,
which is temporary in nature, did not necessarily confer
permanent jurisdiction over the custody issue. Indeed, a court
that exercises emergency jurisdiction is generally required to
defer to the court with the stronger claim to jurisdiction,
usually the court in the home state. See Coleman, 493 N.W.2d at
137, n.2; In re Marriage of Alexander, 252 Ill. App.3d 70, 72,
77, 623 N.E.2d 921, 923, 926 (1993); Trader v. Darrow, 630 A.2d
634, 638-39 (Del. 1993); Piedimonte v. Nissen, 817 S.W.2d 260,
267 (Mo. Ct. App. 1991). Mrs. D’Agnese’s counsel conceded at
oral argument that the Illinois court had neither home state nor
significant connection jurisdiction over the custody matter.
However, because the Virginia court was required to defer to
the Illinois court under Code ? 20-129(A), it was for the
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Illinois court to determine whether its continued exercise of
jurisdiction was appropriate. Any objection by Mr. D’Agnese to
the jurisdiction of the Illinois court had to be made in
Illinois. The Illinois court found that it had obtained personal
jurisdiction over Mr. D’Agnese and consolidated the divorce and
the emergency custody proceedings. The court issued orders on
both dissolution and custody, and Mr. D’Agnese’s appeal was
dismissed. The Illinois order is now final, and that order
cannot be collaterally attacked in the Virginia courts.
For the foregoing reasons, the judgment of the court
assuming jurisdiction over the custody of the children is
reversed, and the visitation order vacated. The case is remanded
to the trial court for any further proceedings consistent with
this opinion.
Reversed and remanded.