Matter of Marriage of Ieronimakis

831 P.2d 172, 66 Wash. App. 83, 1992 Wash. App. LEXIS 455

• Court: Court of Appeals of Washington
• Decided: June 15, 1992
• Docket: 25327-1-I
• Status: Published

Opinions

Forrest, J.

Appellant Markos Ieronimakis, a citizen of Greece, appeals an award of custody of the two children bom of his marriage to Helen Ieronimakis asserting that the court below lacked subject matter jurisdiction. We affirm the decree of dissolution, but reverse the custody decree finding the court lacked subject matter jurisdiction.¹

Facts and Procedural History

Markos Ieronimakis was bom in Greece and has lived there all of his life except for a period of time spent in the United States in the late 1970's. Helen Ieronimakis was bom in Greece, but emigrated to North America when she was 8 years old, moving first to Canada and later settling with her parents in Seattle. Helen became an American citizen.

In the late 1970's Helen and Markos met in Seattle. They moved to Greece where they married on June 26, 1978. The two children who are the focus of this appeal, Iosif (Joseph) and Nicolaos (Nicholas) were bom in Greece. Joseph was bom on April 22, 1979. Nicholas was bom on April 29, 1980. The family resided in Greece, where Markos is employed, until the parties separated on August 4,1987. On that day, and while Markos was at work, Helen took the children and flew to Seattle, where she and the children commenced to reside with Helen's parents. On the following day, August 5, 1987, Markos reached Helen by telephone. She told him that she did not intend to return the children to Greece. On August 11, 1987, precisely 7 days after arriving in Seattle, Helen filed a petition for dissolution of marriage in which she sought to be awarded the custody of Joseph and Nicholas.

In Greece, the parties experienced marital difficulties. Helen alleged in the proceedings below that Markos kept her and the children socially isolated, that he drank excessively, that he was physically abusive to her and the children, that he demanded she abort her third pregnancy, which occurred in 1986, and that although Markos had at one point agreed to allow her and the children to come to live in the United States, he also had threatened to have her deported and to keep the children from leaving Greece with her.

Although Markos limited his appearance in the proceedings below to the purpose of objecting to the court's jurisdiction in the custody proceedings, he submitted controverting affidavits and he did submit to an interview with the court appointed guardian ad litem.² In his interview with the guardian ad litem, Markos (through an interpreter) charged Helen with being the one who kept herself and the children isolated in Greece. He denied excessive drinking and he denied that he had ever agreed that Helen and the children could come to the United States to live, characterizing her departure from Greece with the children as a parental "kidnapping".

After Helen filed the petition for dissolution a show cause hearing for temporary custody was scheduled. Helen retained an attorney in Athens, Greece, for the purpose of serving Markos. On December 8, 1987, and while under the erroneous impression that Markos had been timely served with the appropriate King County court documents, Helen obtained a temporary custody order. The order was made subject to the subsequent filing of an affidavit of service, however.

Helen then learned that the attorney who had been retained to effectuate service upon Markos had failed to actually deliver the court documents to him. Instead the attorney had given Markos only a verbal notice of the Washington proceedings.

Meanwhile, on August 17, 1987, Markos commenced a child custody proceeding in Greece. The Greek court authorized telegram notice of those proceedings on Helen, but Helen maintains that she never received such a telegram and the record of the Greek proceedings which have been provided for this appeal contain no proof that such telegram notice was ever sent. A show cause hearing was set in Athens for August 27, 1987. On that day Markos obtained a temporary custody order in his favor. A trial date on the issue of permanent custody was scheduled for December 14, 1987.

On December 12, 1987, Helen was served with notice of the Greek court proceedings. She hired an attorney in Athens to appear on her behalf, and on December 14, 1987, that attorney obtained a continuance in the Greek trial date to February 1, 1988.

On January 19, 1988, Markos appeared in the King County dissolution matter, through retained counsel, he having been by then either personally served in Greece or he elected to appear in response to the verbal notice of the Washington proceedings. His appearance was stated to be for the limited purpose of contesting the jurisdiction of the Washington court with respect to the children's custody. Markos has never filed a response to the petition for dissolution of marriage, and in fact he has declined to respond, relying instead on the jurisdictional challenge.

On February 1, 1988, the permanent custody trial took place in Greece. On February 18, 1988, a written decree was entered, awarding the children's custody to Markos. No visitation was provided for Helen. After reciting that Helen had surreptitiously removed the children from Greece and that Markos was a loving father, the Greek decree stated as follows:

The interest of the minor children, for [their] correct [physical] and corporal development, imposes that the parental custody [of] them will be granted to their father and that they must be educated here, in Greece as [G]reek boys. The defendant [mother] has the intention to not come back never in Greece and to retain permanently the above mentioned minor children in America. Therefore the law-suit must be admitted as substantially. . . well founded ....

Helen then appealed the Greek custody decree to a higher court. According to documents from the Greek judicial authorities which were provided with the record for the appeal here in Washington, Helen was not required by Greek law to comply with the Greek trial court's order while her appeal in Greece was pending.

Meanwhile, between February and June 1988, a commissioner of the King County Superior Court communicated with the appropriate judicial authorities in Greece, inquiring about Greek substantive and procedural law in child custody matters. The commissioner received written assurances from the Greek authorities that Greece provides equal rights for women and that child custody decisions are based on the best interests of the child.³

On June 16, 1988, the commissioner entered an order in the Washington proceedings deferring jurisdiction to the Greek courts, stating that this ruling was in keeping with the policies of the Uniform Child Custody Jurisdiction Act and forum non conveniens.

Helen timely sought revision of the commissioner's ruling. On July 13, 1988, the court appointed a guardian ad litem for the children (and a few days before that date the court also appointed Dr. Reichert, a behavioral and developmental pediatrician, to evaluate the children).

On September 25, 1988, while the Washington revision proceedings were still underway, Helen prevailed in her appeal of the Greek custody decree and received a ruling that the father would not have the children and that the children would remain in the United States.⁴

On November 14, 1988, after having received the written reports of the guardian ad litem and court appointed pediatrician, a judge of the King County Superior Court granted revision of the commissioner's ruling, and ordered instead that custody jurisdiction would be retained in Washington based on the "best interests of the children". Due to delays which appear to be the responsibility of both parties' counsel below, the written order granting revision was not entered until March 3, 1989. Markos then sought discretionary review of that order in this appellate court. Discretionary review was denied.

On November 13, 1989, after appropriate notice to Markos, a commissioner of the King County Superior Court entered an order of default, findings of fact, conclusions of law, decree of dissolution of marriage and a permanent parenting plan, by which the Ieronimakis marriage was dissolved and by which Helen was designated to be the children's custodian and sole decision-making residential parent. The parenting plan provided Markos with up to 1 month of summer visitation with the children annually, to be exercised only in King County, upon advance notice to the mother. The visitation was limited to the daytime and was required to be supervised by a neutral third party. In order to protect the children from being returned to Greece during any such visitation, Markos was to be required to temporarily surrender his passport to a neutral third party during the duration of the visitation. The parenting plan further provided that upon Joseph reaching the age of 14 and Nicholas reaching the age of 13, the children may, if they desire, have a month of annual summer visitation with Markos in Greece, conditioned upon Markos's assurance that the children will be returned to the United States.

After hearing from the two attorneys with respect to the procedural history and the prior rulings on the jurisdictional issues of the case, a court commissioner (who had not previously been involved with the case) heard testimony from Helen. Helen testified as to the date of the marriage, as to the names and birth dates of the children, as to the period of the children's residency in Greece, as to her United States citizenship and as to the children's "green cards". She also testified that the children had (by then) resided in King County for 2 years, that the marriage was irretrievably broken, that she was able to support the children fully, and that Markos had provided no financial support for the children since separation.

The commissioner was also advised that the provisions of the parenting plan were based on the recommendations of the children's guardian ad litem, and that although Markos had Helen's current telephone number, he had made no effort to contact the children since March or April of 1989, a period of some 7 or 8 months.

The court commissioner then entered the findings and conclusions, parenting plan and decree of dissolution of marriage. This appeal was timely filed by Markos.

Subject Matter Jurisdiction

Markos argues that jurisdiction should have been declined by the court in order to comply with the Uniform Child Custody Jurisdiction Act (UCCJA).⁵ We agree. Helen contends the UCCJA does not apply to this proceeding because Greece is not a "state" as defined in RCW 26.27-.020(10).⁶ This is clearly correct for certain provisions of the act such as RCW 26.27.060 dealing with simultaneous proceedings in other states. However, RCW 26.27.030⁷ sets forth the jurisdiction requirement for the Washington court to try a child custody dispute. The petitioner has the burden to establish jurisdiction. The determination of jurisdiction under subsections (l)(a), (b), and (c) is made without reference to whether Greece is included in the definition of "state". Only subsection (l)(d) involves the definition of "state" as a basis for jurisdiction. Helen did not rely on subsection (d) as a basis for jurisdiction. Reading the subsection literally, it is arguable that although Greece asserted jurisdiction, its not being a state as defined in RCW 26.27.020 means that the Washington court could assume jurisdiction. We are doubtful that in light of the purposes of the statute such result was the legislative intent. However, we prefer to rest our holding on the provisions of RCW 26.27.230:

International application. The general policies of this chapter extend to the international area. The provisions of this chapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

Under this section the Washington court would give effect to custody decrees of foreign nations, including Greece, in the same manner they would to those of sister states. We need not decide whether the trial court should have given effect to the Greek decree at the time of the trial of this matter since we hold the court should not have assumed jurisdiction and since jurisdiction is to be determined as of the time an action is commenced.

What is the result of applying the "general policies of this chapter" to this international custody dispute? If this mother and these children had come from Puerto Rico, it could hardly be seriously argued that Washington should not decline in favor of Puerto Rico.⁸ Applying the "general policies" to these facts, the result should be the same. There is no question that if Greece was a sister state, it would be the "home state" and the proper place for the determination of custody. No persuasive reason has been urged for denying Greece the status of a "home state" except the restrictive definition of RCW 26.27.020 which we do not find to be controlling in light of RCW 26.27.230.

Since Washington is clearly not the home state, jurisdiction must be found on the alternative bases of jurisdiction set forth in RCW 26.27.030. Apparently the trial court believed jurisdiction may be based on alternative subsection (b) because Helen and the children have a "significant connection" with Washington and there is substantial evidence concerning the children's best interests here. This analysis is unpersuasive because the facts which the trial court relied on in determining the jurisdiction question came into existence after the dissolution petition was filed. At the time the petition was filed all the relevant information was in Greece with the possible exception of a minor relationship with the maternal grandparents which could certainly have been presented to the Greek court.⁹ The fact that there was substantial evidence concerning the children's care, protection, training, and personal relationships at the time of trial does not justify the Washington court taking jurisdiction.

To allow Washington courts to assert jurisdiction because Helen generated significant contacts with the state is in effect telling any abducting parent that if you can stay away from the home state long enough to generate new considerations and new evidence, that is a sufficient reason for the new state to assert a right to adjudicate the issue. Such a holding circumvents the intent of the jurisdiction laws.¹⁰

While there were allegations of mistreatment, none of which seemed overwhelming,¹¹ there is no showing that the Greek courts are incapable of protecting the children's interests. To the contrary, the superior court commissioner, prior to recommending the court decline jurisdiction, confirmed that the children's welfare would be safeguarded. The only other basis for ignoring the well-settled policies and allowing jurisdiction in Washington courts is the belief that the return of the children to Greece at this point would place them in an intolerable situation. Of course this argument addresses the custody issue which may only be considered after jurisdiction is established. Even if true, this situation results, of course, from events which have transpired since Helen abducted and gained sole control over the children¹² and should not be retroactively applied to control a decision as to jurisdiction. Even if the Greek court had awarded custody to the father, there is no reason to assume a total separation from the mother. Any such separation would only result from Helen's choice to put her own desires above her children's welfare by deciding not to five in Greece and not to visit Greece.

If the choice before this court truly was between the children with their father in Greece having no contact with Helen causing the undesirable rupture of their relationship with the mother; or the children with the mother in the United States having essentially no contact with Markos, it would be a much harder case. It appears that the trial court, and the dissent, believed it was faced with such an all or nothing choice. Fortunately, that is not the case before us. This court can apply .the proper principle declining jurisdiction in favor of the home state recognizing that the Greek court likewise recognizes the importance of the children's relationship with their mother.¹³

One of the tragic consequences of the trial court's decision is that these children would be effectively denied any reasonable relationship with their father and would be cut off from their Greek heritage. Markos can only visit in a strange country, in the presence of a neutral supervisor, after surrendering his passport like a criminal on bail. Such restrictions might be appropriate for Helen's visitation in Greece since she has a proven record of abduction. Here they are totally inappropriate and unfair to Markos. Additionally, and more importantly, the restrictions would damage the children by preventing any normal relationship with their father and their Greek heritage.

Furthermore, since the Greek court has jurisdiction over both parents, a Greek decree may prove much more flexible and reasonable in attempting to have these children enjoy a significant relationship with both parents and with their Greek homeland. It would be an unacceptable precedent to reward the abducting parent without any substantial showing that such action is necessary to avoid threatened mistreatment and abuse bf the children. Applying the "general policies" of the UCCJA to this dispute requires the Washington courts to decline jurisdiction.

Discretionary Reasons for Declining Jurisdiction

Even if this court were to conclude that jurisdiction may be found under any of the provisions of RCW 26.27-.030, jurisdiction should have been declined on the basis of RCW 26.27.070 and RCW 26.27.080(1). The doctrine of forum non conveniens has been codified into the UCCJA at RCW 26.27.070 and provides that even where a court has jurisdiction, it should decline to exercise jurisdiction under certain circumstances. Many of the factors intended to determine if a forum is inconvenient merely repeat the home state and significant connection tests of jurisdiction.¹⁴ As discussed above, Greece was the home state, had the most significant connection with the family and had the most substantial evidence of the children's welfare at the filing of this action. The exercise of Washington jurisdiction violates the home state preference and thus defeats the purposes stated in RCW 26.27.010.

Likewise, RCW 26.27.080(1)¹⁵ specifically addresses the facts of this case. When the petitioner for an initial decree has wrongfidly taken the child from its home state the court may decline jurisdiction. To hold otherwise would create a double standard, establishing different rules for "good abductions" and "bad abductions". But this court cannot condone Helen's conduct, no matter how well intentioned, when it presents a deliberate frustration of Markos's rights and an attempt to select the forum for the custody dispute contrary to the statutory policies. The exercise of jurisdiction contravenes the strict policy to deter abductions and other self-help measures undertaken to obtain custody.¹⁶

Hague Convention

We find additional support for this conclusion in the recently adopted Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention).¹⁷ Article 1 of the convention provides as follows:

The objects of the present Convention are —

[a] to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

[b] to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Although the convention does not directly control the instant matter¹⁸ it is a clear manifestation of this country's national policy to discourage abductions and encourage home-state jurisdiction. Although somewhat more generous and flexible in allowing a nation's courts to assume jurisdiction of an international custody dispute, there is a surprisingly good fit between the purposes and provisions of the UCCJA and the Hague Convention. Our interpretation and application of the general language of RCW 26.27.230 applying the general policies of the UCCJA to international custody disputes is in harmony with the provisions and purposes of the Hague Convention.

The judgment of a trial court assuming jurisdiction of this custody dispute and award of guardian ad litem fees is reversed, in other respects the decree of dissolution is affirmed. The trial court shall, however, retain jurisdiction to enter appropriate orders implementing the current Greek custody decree and specifically to arrange for a transfer of custody if such transfer is required by the Greek decree.

Scholfield, J., concurs.

1 Markos also challenged the award of one-half the guardian ad litem fees. Since Helen has conceded this point we need not address the issue. It is unnecessary to discuss the reserved issues and Markos's other challenges in light of our disposition in this case.

2 Markos also sought, obtained and exercised rights of temporary visitation with the children in Seattle during the pendency of the proceedings below.

3 The dissent's distrust and criticism of the Greek judicial proceedings is somewhat surprising. In fact, even without the benefit of Helen's presence, the Greek courts reached the same conclusion as to custody that the dissent seems to believe could only properly be addressed by the Washington court.

4 At oral argument for the Washington appeal, the attorneys confirmed that Helen had at least temporarily prevailed on appeal in Greece. This court has not been provided with a copy of the Greek appellate court's order of September 25, 1988, hut the order was referred to in Helen's civil appeals statement. Helen has not argued that the Washington appeal has become moot, and Markos has continued his vigorous prosecution of this Washington appeal. We assume that Markos has likewise appealed the order by which Helen appears to have at least temporarily prevailed in Greece. If there has been an ultimate and final decision in Greece since the time of oral argument, this court has not been advised of the outcome.

5 RCW 26.27.

6 " 'State' means any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia."

7 "(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the conditions as set forth in any of the following paragraphs are met:

"(a) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

"(b) 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; or

"(c) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

"(d)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b), or (c) of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

"(2) Except under subsection (l)(c) and (d) of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

"(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody."

8 We do not find In re Felix C., 116 Misc. 2d 300, 455 N.Y.S.2d 234 (N.Y. Fam. Ct. 1982) persuasive since, as the dissent acknowledges at 113, the Puerto Rican custody decree was obtained without proper notice. In any case, the New York court acknowledged that had the Puerto Rican court given the mother proper notice and Puerto Rican law allowed for examination of the children's best interests, the "court would reach a different conclusion." Felix, at 308 n.4.

9 In re Marriage of Steadman, 36 Wn. App. 77, 671 P.2d 808 (1983) is distinguishable since, as the dissent acknowledges at 104, there the court could not, and did not, address the significant connections test as it applies to children that have significant connections with a foreign state where substantial evidence exists concerning their care. It is also significant that in that case the foreign jurisdiction, Maine, declined to exercise jurisdiction in favor of Washington.

10 "The [Parental Kidnaping Prevention Act of 1980] specifically establishes a home state priority by precluding use of the significant connection as a basis for jurisdiction in the initial decree setting if there is a home state elsewhere that has not declined to exercise its jurisdiction. 28 U.S.C. § 1738A(c)(2)(B). The PKPA's explicit home state priority arose after several years of experience under the UCC JA indicated that the significant connection basis was being used by the courts as a loophole to exercise jurisdiction upon slight contact with the child." 2 Washington State Bar Ass'n, Family Law Deskbook § 47.6(3) (1989).

11 The dissent, at 101, suggests there was "substantial evidence" of abuse but no party, or the dissent, suggests there was sufficient evidence of abuse to establish jurisdiction under RCW 26.27.030(1)(c) to protect the children. If the facts supported such a finding, which they do not, the UCCJA has provided an adequate mechanism to find jurisdiction and we should not manipulate the other provisions to accomplish this task. In any case, the dissent reaches its conclusion without the benefit of all the parties' versions of events and refuses to acknowledge the Greek courts could determine the true nature of the abuse after hearing from both parties.

12 As the trial court recognized this raises a real opportunity for "brainwashing" the children. The conduct of the mother and maternal grandparents when the father was here suggest a ruthless effort to destroy the father/child relationship.

13 The dissent repeatedly makes the unwarranted assumption the Greek courts will not consider the best interests of the children, despite the direct assurances from Greek authorities. While the dissent freely criticizes the conclusions of the Greek trial decree, we think it somewhat ironical that the Greek Court of Appeals has awarded custody of the children to Helen and will allow them to stay in the United States.

14 RCW 26.27.070(3) provides that:

"In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:

"(a) If another state is or recently was the child's home state;

"(b) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;

"(c) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state;

"(d) If the parties have agreed on another forum which is no less appropriate; and

"(e) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in RCW 26.27.010."

15 "Jurisdiction declined by reason of conduct. (1) If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction for purposes of adjudication of custody if this is just and proper under the circumstances."

16 "'Abductions and reabductions of children remains perhaps the most serious problem confronting practitioners and the courts, not to mention the child, the innocent victims of the ongoing struggle between embattled and embittered parents.'" Goodman v. Goodman, 383 Pa. Super. 374, 391-92, 556 A.2d 1379, 1388 (1989) (quoting 4 J. McCahey, M. Kaufman, C. Kraut & J. Zett, Child Custody & Visitation Law and Practice § 4.08[1], at 4-150 (1988)).

17 The Hague Convention may be found as Sen. Treaty Doc. 99-11, 99th Cong. 1st Sess. (1985) and at 51 Fed. Reg. 10498-10502 (1986).

18 The United States ratified the Hague Convention on April 29, 1988. Implementing legislation became effective on July 1, 1988. 42 U.S.C. §§ 11601-11610. Greece, however, had not ratified or implemented the Hague Convention at the time of the proceedings below, nor at the time this case was briefed and argued on appeal.