State Ex Rel. Rashid v. Drumm

824 S.W.2d 497, 1992 Mo. App. LEXIS 212, 1992 WL 20267

• Court: Missouri Court of Appeals
• Decided: February 11, 1992
• Docket: 61142
• Status: Published

Opinions

CRANE, Presiding Judge.

Ahalaam Smith Rashid, mother, a United States citizen and resident of St. Louis County, brought a dissolution of marriage action against Adel Mohammed Zaghdi, father, a citizen and resident of Saudi Arabia, in the Circuit Court of St. Louis County. In the action mother sought custody of the parties’ six year old daughter, Amirah Adel Zaghdi, a dual citizen whose home was in Saudi Arabia but was physically present in St. Louis County at the commencement of the proceedings. Mother was given temporary custody of the child ex parte. Father filed a motion to set aside the temporary custody order on the grounds of fraud. The trial court treated the motion as a challenge to the jurisdiction of the court to determine child custody. After a two day hearing, the trial court, applying the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) as enacted in Missouri, § 452.440 et seq., ruled that it did not have jurisdiction to exercise custody jurisdiction and that Saudi Arabia did have jurisdiction, and ordered the child returned to the custody of the father. Mother filed this writ of prohibition to prevent dismissal of the custody proceeding. We granted a provisional writ which we now make absolute on the grounds that the trial court abused its discretion by finding it had no jurisdiction without considering the best interests of the child with respect to a forum under § 452.450.1(4) RSMo 1986.

FACTUAL BACKGROUND

The facts relevant to the issues presented by this writ are undisputed. Mother and father were married on July 28, 1984, in St. Louis County, Missouri, and lived for a short time after the marriage in Belle-ville, Illinois. Father, a Saudi Arabian citizen, was in this country as a student. In August, 1984, they moved to Lansing, Michigan for two years while father continued his studies. Their daughter Amirah was born in Michigan on September 15, 1985. The family continued to reside in Lansing, Michigan until August, 1986, when father graduated from Lansing Community College and returned to Saudi Arabia. Mother and Amirah returned to St. Louis, Missouri in August, 1986. They remained in St. Louis, Missouri, until December 5, 1986, when they left to join father in Saudi Arabia. The family lived together in Saudi Arabia until March 25, 1987, when mother returned to the United States alone for a seven month visit with her family. Mother returned to Saudi Arabia in October, 1987, and lived with father and Amirah until the beginning of 1988.

Mother left Saudi Arabia through the assistance of the American Embassy on February 13, 1988, and returned to the St. Louis area. Amirah remained in Saudi Arabia with father. Subsequently, father took another wife in Saudi Arabia. On September 19, 1991, father and Amirah came to the United States to visit mother. Upon their arrival in St. Louis, father and Amirah went with mother to the hotel where father was registered. While father was getting his room key, mother left the hotel with Amirah without father’s knowledge or consent and kept Amirah with her until she was ordered to produce Amirah in court on November 4, 1991.

PROCEDURAL HISTORY

According to the pleadings there have been no custody or dissolution proceedings relating to this child or to this marriage except those that have been filed in St. Louis County. No proceedings have been instituted in Saudi Arabia nor has any prior decree relating to the custody of the child been entered by any court of any state or foreign country.

On October 31, 1990, mother filed a Petition for Dissolution of Marriage in the Circuit Court of St. Louis County in Cause Number 616940, seeking a dissolution of the marriage and the award of custody of Amirah to father. Mother filed an Amended Petition on August 26, 1991, seeking custody of Amirah for herself. Mother moved to dismiss Cause Number 616940 on September 20, 1991, on the grounds that father had never been served. She filed a new Petition for Dissolution of Marriage on September 20, 1991, in Cause Number 629059 and obtained personal service on father. Mother alleged that she had custody of Amirah in St. Louis County and sought permanent custody. She also sought and obtained an order ex 'parte granting her temporary child custody. Father filed his Answer, Cross Petition for Dissolution of Marriage, and Motion for Custody Pendente Lite in this Cause on October 28, 1991.

On November 1, 1991, father moved to set aside the temporary custody order on the grounds that it had been obtained by fraud. The trial court treated this as a motion to dismiss the custody determination for lack of jurisdiction. It heard evidence on this issue on November 13 and November 18, 1991, and entered its order sustaining the motion to dismiss. It delayed the effective date of its order to give the parties time to file an application for a writ.

In its order the trial court made the following conclusions:

1. This state is not the home state of the child and was not the home state of the child when this proceeding commenced on September 20, 1991.

2. This state had not been the child’s home state within six months prior to the commencement of this proceeding.

3. The child does not have a significant connection with this state.

4. There is not available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

5. The child has not been abandoned.

6. The child has not been mistreated or abused.

7. The child has not been threatened with mistreatment or abuse.

8. The child is not being neglected and has not been neglected.

9. Although no other state has child custody jurisdiction and no other state has declined to exercise child custody jurisdiction, the Courts in Saudi Arabia have jurisdiction. Although not enacted in this State, Section 23 of the Uniform Child Custody Jurisdiction Act provides that “the general policies of (the) Act extend to the international area.”

10.It is just and proper under the circumstances for the Courts of this state to decline to exercise jurisdiction.

The court further concluded, “[pjursuant to §§ 452.450 and 452.475, RSMo, this Court does not have jurisdiction to make a child custody determination by initial decree.”

AVAILABILITY OF UCCJA IN MISSOURI TO DETERMINE JURISDICTION IN AN INTERNATIONAL CUSTODY CASE

Mother first claims the trial court exceeded its jurisdiction in deciding this matter under the UCCJA because the UCCJA, as adopted in Missouri, does not include Section 23 of the uniform act. This section extends the general policies of the act to the international area and provides for recognition and enforcement of custody decrees of other nations under certain circumstances.¹ The Comment to that section provides that the first sentence makes the general policies of the Act applicable to international cases. “This means that the substance of section 1 (not adopted in Missouri) and the principles underlying provisions like sections 6, 7, 8 and 14(a) are to be followed when some of the persons involved are in a foreign country or a foreign custody proceeding is pending.” Unif. Child Custody Jurisdiction Act § 23 comment, 9 U.L.A. 326-27 (1968).

The failure of a state legislature to adopt § 23 has been held to express an intent not to require the enforcement of foreign custody decrees. Minton v. McManus, 9 Ohio App.3d 165, 458 N.E.2d 1292, 1294 (1983). However, we have not been referred to, nor have we found, any case which addresses what a state legislature, by omitting § 23, intends with respect to the application of the other provisions of the UCCJA to an original custody dispute involving a resident of a foreign country.

The trial court used the jurisdictional provisions of the UCCJA (§ 452.450 RSMo 1986 and UCCJA § 3) and the “clean hands” provision (§ 452.475 RSMo 1986 and UCCJA § 8) to determine whether it had jurisdiction. The trial court specifically held in its order “[pjursuant to §§ 452.-450 and 452.475 this court does not have jurisdiction to make a child custody determination by initial decree.”

1. Availability of § 452.450 to determine jurisdiction

We will first consider whether the trial court could use § 452.450 to determine if it had jurisdiction. As enacted in Missouri, this section provides that a Missouri court which is competent to decide child custody matters has jurisdiction to make a child custody determination if one of four possible jurisdictional bases exists. This section is a procedural statute which does not create any new substantive rights for any of the parties but merely dictates the forum where custody actions will be heard. Elliott v. Elliott, 612 S.W.2d 889, 892 (Mo.App.1981). The statute supersedes prior Missouri practice under which the courts used the test set out in § 79 of the Restatement Second, Conflict of Laws, to determine child custody jurisdiction. Id. at 893. The statute provides four possible bases for jurisdiction, commonly referred to as the (1) home state (2) significant connection (3) emergency and (4) default or vacuum bases. It recognizes parens patriae jurisdiction under restricted conditions and incorporates the longstanding Missouri public policy supporting jurisdiction where the best interests of the child are served. See Kennedy v. Carman, 471 S.W.2d 275, 281-87 (Mo.App.1971).² This jurisdictional provision is sufficiently comprehensive that it may be used to determine jurisdiction irrespective of whether a resident of a foreign country is involved. Moreover, custody decrees made pursuant to the UCCJA are recognized and enforced in other states which have adopted the UCCJA. § 452.500 RSMo 1986; UCCJA § 13. The trial court acted within its authority in using § 452.-450 to determine if it had jurisdiction in this international child custody matter.

2. Availability of § 452.475 to determine jurisdiction

We next consider the trial court’s use of the “clean hands” provision of § 452.475 to determine whether it had jurisdiction. This section provides, with respect to an initial decree:

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 if this is just and proper under the circumstances.

Section 452.475.1 RSMo 1986. We do not need to reach the question whether this section is applicable to an international child custody dispute, because the doctrine of unclean hands does not affect a court’s jurisdiction but only the court’s decision whether it should or should not exercise jurisdiction. 1 McCahey, Kaufman, Kraut & Zett, Child Custody and Visitation Law Practice § 4.08[1][2] (1991). This section provides a basis to decline otherwise existing jurisdiction, not to determine jurisdiction, thus the court improperly relied on this section in finding that it had no jurisdiction.

3. Declination of Jurisdiction under § 452.W

Father argues that the trial court declined jurisdiction under § 452.475 and that it was within its discretion to do so. We do not read the trial court’s order as a declination of jurisdiction. The court explicitly concluded that “this court does not have jurisdiction to make a child custody determination by initial decree.” In its finding number 10, the court ruled it was just and proper under the circumstances for the courts of this state to decline jurisdiction. However, the trial court did not go on to decline jurisdiction. Moreover, once the court found it had no jurisdiction, it could not “decline” jurisdiction it did not otherwise have.

In any event, even if the trial court was inartfully attempting to decline jurisdiction under the clean hands provision, its attempt failed. In order for the court to decline under this section, it would have to have found that petitioner had wrongfully taken the child from another state or have engaged in similar reprehensible conduct. Although there was evidence in the record that mother had secreted the child from the father, the court made no finding in its otherwise detailed order that this or any other conduct constituted “reprehensible conduct” or even if this was the basis for the court’s finding that it would be proper to decline jurisdiction.

More importantly, however, the court did not consider whether declination would be in the best interests of the child. The “clean hands” provision is a discretionary ground for denying jurisdiction and does not supersede the best interests of the child. Snow v. Snow, 369 N.W.2d 581, 583 (Minn.Ct.App.1985); O’Neal v. O’Neal, 329 N.W.2d 666, 669 (Iowa 1983). The paramount issue is the welfare of the child rather than the tactics of the parents. It is error to decline jurisdiction on the basis of a parent’s conduct without considering the best interests of the child. Nehra v. Uhlar, 168 N.J.Super. 187, 402 A.2d 264, 268-69 (N.J.Super.Ct.App.Div.1979). See also Van Houten v. Van Houten, 156 A.D.2d 694, 549 N.Y.S.2d 452, 454 (1989).

If § 452.475 applies to an international custody dispute in Missouri, and if the trial court had found it otherwise had jurisdiction, the trial court would have had discretion to decline jurisdiction under that provision, only if it found reprehensible conduct and that declination would be in the best interests of the child. However it did not make these findings in support of declining jurisdiction. There was no valid declination of jurisdiction by the trial court.

APPLICATION OF § 452.450 OF THE UCCJA TO THIS ACTION

Alternatively, mother argues that if § 452.450 is used to determine subject matter jurisdiction in this custody proceeding, the trial court had jurisdiction under § 452.450.1(4) because no other state had jurisdiction and it is in the best interests of the child that the Missouri court assume jurisdiction.³ We find the trial court misapplied the law in determining it had no jurisdiction. The trial court could not, as a matter of law, treat Saudi Arabia as a “state” under this section. In addition, it abused its discretion in determining it had no jurisdiction without considering the best interests of the child with respect to a forum.

Subsection (4) of § 452.450.1, is the “default” or “vacuum” basis of jurisdiction, which provides:

It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), 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 it is in the best interest of the child that this court assume jurisdiction.

The comment to this section in the UCCJA provides: “Paragraph (4) of subsection (a) provides a final basis for jurisdiction which is subsidiary in nature. It is to be resorted to only if no other state could, or would, assume jurisdiction under the other criteria of this section.” Unif. Child Custody Jurisdiction Act § 3 comment, 9 U.L.A. 145 (1968).

In its finding number 9, the trial court found that although no other state has child custody jurisdiction, “the Courts in Saudi Arabia do have jurisdiction” and “the policies of (the) act extend to the international area” under § 23 of the UCCJA. The term “state” as used in the UCCJA has been held not to include foreign nations where the legislature has not adopted § 23 of the UCCJA. Minton, 458 N.E.2d at 1294.⁴ Since Missouri has not adopted § 23 of the UCCJA, it is clear that the legislature did not intend the word “state” as used in § 452.450 to include a foreign country. Because “state” does not include a foreign country under § 452.450.1(4) and because Missouri has not adopted § 23 of the UCCJA, Saudi Arabia as a matter of law cannot have jurisdiction either as a “state” or under the policy provisions of § 23 of the UCCJA.

Two elements of jurisdiction under § 452.450.1(4) were met. No other state had jurisdiction and the child was physically present in the state at the commencement of the proceedings.⁵ In order to determine if it had jurisdiction under § 452.-450.1(4), the trial court was then required to address the best interests of the child. Creavin v. Moloney, 773 S.W.2d 698, 704-705 (Tex.Ct.App.1989); In re Marriage of Arnold, 222 Cal.App.3d 499, 271 Cal.Rptr. 624 (1990).

The determination of the best interests of the child under § 452.450.1(4) refers to a choice of a forum, not to the fitness of the parents. See, State ex rel. Laws v. Higgins, 734 S.W.2d 274, 278 (Mo.App.1987) (interpreting phrase as used in § 452.450.1(2)). As an initial matter it must be determined if there is any other forum which can and will adjudicate the custody proceedings. This is significant because, if there is no other forum which can and will adjudicate custody, then the best interests of the child are served by a custody determination in the forum where the child is physically present. Dobyns v. Dobyns, 650 S.W.2d 701, 707 (Mo.App.1983). See also, Massey v. Massey, 89 A.D.2d 566, 452 N.Y.S.2d 101, 103 (1982); McFaull v. McFaull, 560 So.2d 1013, 1014 (La.Ct.App.1990); Schmidt v. Schmidt, 227 N.J.Super. 528, 548 A.2d 195, 198-99 (N.J.Super.Ct.App.Div.1988); Creavin, 773 S.W.2d at 704.⁶

The fact that no other state has jurisdiction is not dispositive of the question of the availability of another forum. Although Missouri has not extended the UCCJA to the international area, the paramount concern of Missouri in a custody proceeding is the best interests of the child. These interests may require that custody be determined by the courts of a foreign country. Accordingly, a Missouri court may find that a court of a foreign country is an available forum to adjudicate custody. The trial court did conclude that the courts of Saudi Arabia had jurisdiction. However, this conclusion was based on a misinterpretation of law and not on a determination of which forum was in the best interests of the child after considering relevant factors.

Although relevant factors will vary on a case by case basis, in this case the primary inquiry is whether there is an available foreign forum which would have jurisdiction substantially in accord with the principles in the UCCJA. Suarez Ortega, 465 So.2d at 609; Klont, 342 N.W.2d at 550-51. In determining whether a foreign forum is available, consideration must be given to whether the foreign forum could and would adjudicate the controversy. See, e.g. § 452.470.3 (Unif. Child Custody Jurisdiction Act § 7(d), 9 U.L.A. 233 (1968)) (applying these factors in the forum non conve-niens situation). See also, Creavin, 773 S.W.2d at 704 (Ireland was not an available forum where, because absolute divorce cannot be obtained in Ireland, the courts in Ireland do not have any power over the children of a marriage). Another factor is whether minimum due process, including notice and the opportunity to be heard, will be accorded in the foreign proceeding. See Schmidt, 548 A.2d at 198; Klont, 342 N.W.2d at 550-51; Al-Fassi v. Al-Fassi, 433 So.2d 664, 666 (Fla.Dist.Ct.App.1983).⁷ A further factor is whether the foreign forum will be guided by the best interests of the child in awarding custody. See, Al-Fassi, 433 So.2d at 668. If there is an available foreign forum meeting this criteria, then the court should consider which forum has the strongest basis for jurisdiction under § 452.450.1.

The trial court did hear evidence relating to the child’s ties to and home in Saudi Arabia, but there was no evidence relating to child custody laws in Saudi Arabia, whether courts there could and would adjudicate the controversy, if minimum due process would be accorded all parties to the proceedings, or if the best interests of the child would guide the custody determination. It did not make any findings on the best interests of the child with respect to a forum. Without considering these factors and making a determination of the best interests of the child, the court exceeded its authority in finding that it had no jurisdiction under § 452.450 and that the courts of Saudi Arabia had jurisdiction over this child custody proceeding. Likewise, without evidence on these factors the record is insufficient for us to reach the question of whether the trial court does or does not have jurisdiction under this section.

Although the trial court exceeded its authority in determining it had no jurisdiction on the record before it, the trial court is not prohibited from reexamining the question of jurisdiction on a proper record. Such a record would include evidence on whether there is another available forum. Such an inquiry would encompass consideration of the following factors:

1. Whether that forum would have jurisdiction substantially in accord with the principles of the UCCJA.

2. If that forum could and will adjudicate the custody matter.

3. Whether that forum would accord minimum due process including notice and the opportunity to be heard.

4. Whether that forum would decide custody on the best interests of the child.

If there is another available forum then the court should consider which of the available forums has the strongest basis for jurisdiction in accordance with the principles in § 452.450.1.

It is mother’s burden, as the proponent of jurisdiction, to establish a prima facie basis of jurisdiction. State ex rel. Laws v. Higgins, 734 S.W.2d 274, 277 (Mo.App.1987). Although mother did not make that record at the first hearing below, she is not precluded from doing so in a future proceeding. Kilgore v. Kilgore, 666 S.W.2d 923, 932-34 (Mo.App.1984). The prior hearing in the trial court proceeded under a misunderstanding of law on the part of all participants due to the lack of judicial precedent governing jurisdiction of international custody disputes in a state which had not adopted the international provisions of the UCCJA.⁸ The best interests of the child require that the trial court determine where jurisdiction properly lies and that a court with jurisdiction will adjudicate custody.

In determining the best interests of the child with respect to forum, evidence relating to the best interests of the child with respect to custody is irrelevant. Such evidence is only appropriate in a hearing to determine custody. Furthermore the jurisdictional issue is limited to determining whether another forum is available with jurisdiction which will determine the child custody issue in accord with minimum due process and award custody on the basis of the best interests of the child. Collateral matters relating to the culture, mores, customs, religion, or social practices in that other forum are not only irrelevant to the question of jurisdiction but also such cultural comparisons have no place in the ultimate custody award. See e.g. Waites v. Waites, 567 S.W.2d 326, 333 (Mo. banc 1978).

The provisional writ of prohibition is made absolute.

SATZ, J., concurs. SMITH, J., dissents in separate attached opinion.

1 . This section reads:

§ 23. [International Application]

The general policies of this Act extend to the international area. The provisions of this Act 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 institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

Unif. Child Custody Jurisdiction Act § 23, 9 U.L.A. 326 (1968).

2 . "The UCCJA deliberately provided for jurisdictional flexibility to insure procurement of its dominant concern, the best interests of children. Some stability and certainty as to child custody jurisdiction was sacrificed where the best interests of the child presumably call for an assumption of jurisdiction by a state other than the home state.” Foster, Child Custody Jurisdiction: UCCJA and PKPA, 27 N.Y.L.SchX.Rev. 297, 302 (1981).

3 . Mother does not attack the trial court’s findings 1-8 which would support a finding that the trial court did not have jurisdiction under § 452.450.1(1)—(3).

4 .Jurisdictions which have adopted § 23 take different approaches to the question of whether or not the word "state” includes a foreign country. See e.g. Klein v. Klein, 141 Misc.2d. 174, 533 N.Y.S.2d 211 (N.Y.Sup.Ct.1988) (Israel not a "state” within the definition of the statute); Massey v. Massey, 89 A.D.2d 566, 452 N.Y.S.2d 101 (1982) (Quebec, Canada not a state); In re Marriage of Arnold, 222 Cal.App.3d 499, 271 Cal.Rptr. 624 (1990) (Canada a "state” because UCCJA has international application). In those jurisdictions which have adopted § 23, but do not include a foreign country in the definition of "state,” deference to the laws of other nations under the UCCJA is decided on the basis of whether child custody law in the foreign country is similar to the UCCJA, see, Lotte U. v. Leo U., 128 Misc.2d 896, 491 N.Y.S.2d 581 (N.Y.Fam.Ct.1985) (Jurisdiction of Switzerland not recognized because based solely on domicile of father); Suarez Ortega v. Pujals de Suarez, 465 So.2d 607, 609 (Fla.Dist.Ct.App.1985) (Mexico would exercise jurisdiction in accord with principles embodied in UCCJA); Klont v. Klont, 130 Mich.App. 138, 342 N.W.2d 549, 550-51 (1983) (West Germany exercised jurisdiction in accord with principles of UCCJA), and whether basic due process is observed. Garza v. Harney, 726 S.W.2d 198, 200 (Tex.Ct.App.1987).

5 . See § 452.450.2 (Unif. Child Custody Jurisdiction Act § 3(b), 9 U.L.A. 144 (1968)). “Physical presence of the child may also be sufficient for a residual jurisdiction provided by section 3(a)(4) of the Act to assure the parties of a forum when no other court has or is prepared to exercise jurisdiction under the two main criteria of the Act.” Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand. L.Rev. 1207, 1230 (1969). See also, Blakesley, Child Custody Jurisdiction and Procedure, 35 Emory L.J. 291, 300 (1986).

6 . Contrary to the assertion in the dissent, some of these cases involve situations in which the child had been in this country on a transitory basis for a very short time. In Schmidt the child had been living in West Germany, and was taken to New Jersey without notice to his father by his mother, who filed a custody petition the day they arrived in New Jersey. In Massey the child had been living in Canada with her mother. She came to New York to visit her father and he refused to return her. The New York custody proceeding was commenced 10 days after her arrival in New York.

7 . These cases and the previous cases cited in this paragraph are all cases arising in jurisdictions in which the UCCJA has international application. Although Missouri has not adopted UCCJA § 23, if a Missouri court is going to recognize foreign country jurisdiction under a best interests of the child analysis, the minimum standards used in these other jurisdictions should apply.

8 . Mother apparently proceeded under the premise that the UCCJA did not apply because § 23 had not been adopted in Missouri and that therefore § 79 Restatement Second, Conflict of Laws would apply under which child's mere physical presence in the state and/or presence of the parents in the state was sufficient grounds for jurisdiction. Although we have rejected it, her position that prior law would govern was not without some logical support.