In re of the Custody of Hutchins

7 V.I. 393, 1969 V.I. LEXIS 6

• Court: Municipal Court of The Virgin Islands
• Decided: August 29, 1969
• Docket: Civil JDR No. 49-1969
• Status: Published

Opinion

HOFFMAN, Municipal Judge

MEMORANDUM OPINION, FINDINGS AND JUDGMENT

A Preliminary Hearing was held in this matter on July 8, 1969 on ex parte petition dated and filed on July 7, 1969. Based on the testimony of petitioner taken at the July 8, 1969 hearing, and the Order dated May 1, 1968 by Circuit Judge W. Troy Hall, Jr., and the psychiatric report of Dr. Donald Scott Beacock, the Court entered its July 28, 1969 Order giving the petitioner temporary custody of the two minors herein and set the matter down for further hearing on August 5, 1969. By Notice dated August 2, 1969 Young, Isherwood and Carney Esqs. (Warren H. Young, of counsel), appeared on behalf of the natural mother of the minors, Mary C. Hutchins, respondent herein and filed Motion to Vacate the temporary custody Order of this Court dated July 28, 1969. At the request of counsel, the matter was set down for hearing on August 13,1969. Argument of counsel was heard on that date and the testimony of respondent and petitioner taken. Petitioner’s Exhibit 1 and respondent’s exhibits A, B, C, D, E, P and G were admitted into evidence. Subsequent to the August 13, 1969 hearing and on August 27,1969 there was filed in this Court, Notice to take deposition of Dr. Malcolm Marshall on August 29, 1969 at the offices of the law firm of Birch, deJongh & Farrelly, Esqs., the petitioner’s attorneys. Further, on August 28, 1969, letter dated August 28, 1969 with copy of a Psychological Evaluation of Victor Hutchins, one of the minors herein, dated August 27, 1969 by “M. A. Marshall, Ph.D. Clinical Psychologist” was hand delivered and filed in this Court. Though not in evidence, the August 27, 1969 report of Dr. Marshall was considered by the Court. Exhibit G consisting of 447 pages of testimony taken at a May 2, 1968 hearing before Circuit Judge Hall on petitioner’s then Motion to Amend the Florida Decree of Divorce dated September 30,1963. This 1963 Decree was amended and petitioner herein granted legal custody of the minors with specific visitation rights to respondent. From the pleadings and the voluminous Florida transcript and exhibits the Court, after careful consideration of same and the arguments and memoranda submitted by counsel, and after unsuccessful efforts of the Court to effect an amicable adjustment of this matter with the efforts of counsel, the Court finds:

1. That the minors, Victor William and Mary Alexandra Hutchins are under eighteen (18) years of age and living in St. Thomas, Virgin Islands;

2. That the May 1, 1968 Decree of Circuit Judge W. Troy Hall, Jr., was reversed by the District Court of Appeal of Florida, Second District and Opinion filed March 14, 1969 (see Respondent’s Exhibits D and E) and the custody provisions of the 1963 Decree of Divorce reinstated and the “cause remanded for further proceedings”. That petitioner herein applied for Writ of Certiorari to the Supreme Court of Florida, and the application of the Writ is presently pending before the Supreme Court.

3. That pursuant to stipulation (of the parties herein) dated June 27,1969 an Order was entered by Circuit Judge Hall and dated July 1, 1969 (Respondent’s Exhibit B) wherein (paragraph 3) petitioner agreed to return the minors to Florida on or before Saturday, July 5, 1969 “for the two months visitation period provided in the modification Order dated May 2, 1968 ...” and that (paragraph 4) the petitioner and respondent agreed “that during the period between July 5, 1969 and July 11, 1969 the said children shall be examined by Dr. E. Michael Gutman, Psychiatrist, who shall make his findings to this Court (Florida) on or before July 11, 1969 at 9:00 o’clock a.m. at which time the Court will hear and determine defendant’s (petitioner herein) petition for modification filed and served on the 20th of June, 1969....”

4. That the minors herein were not returned to Florida as provided in Finding (3) above and continue to remain in the Virgin Islands with the petitioner allegedly for the reasons enunciated in the petition, testimony of petitioner and the December 28, 1968 psychiatric report of Dr. Donald Scott Beacock.

From the findings above, the Court concludes that it does have jurisdiction over the minors herein with authority to rule on the custody petition.

However, after careful consideration of the voluminous Florida and Virgin Islands testimony, exhibits, memoranda etc., the Court is satisfied that petitioner has not established such an exceptional factual situation or manifest injustice to the minors herein involved that would warrant this Court to bypass the principle of comity and reverse the judgment of the Florida Courts; particularly, where the Supreme Court of Florida, at the request of petitioner, still has the matter under consideration.

The Motion to Dismiss is granted and the Order of this Court dated July 28, 1969 is vacated. Costs to respondent, including $150.00 attorney’s fee.