Maryland Baltimore Child Custody Jurisdiction Contempt Petition Lawyers Attorneys
MERLE H. PALTROW v. KENNETH C. PALTROW
Court of Special Appeals of Maryland
September 8, 1977
The father is a psychiatrist, practicing in Oregon; the mother is an instructor in psychiatric nursing at Hospital in Baltimore. The parties were married in 1960 and were divorced in Oregon on September 1, 1972. Mrs. Paltrow was originally awarded custody of the four minor children. Under an Order of Modification, dated December 1, 1975, custody of first child was awarded to Father. On April 29, 1976, by a "stipulated order," second child's custody was also transferred to the father. Both orders were adopted by the Circuit Court for Multnomah County, Oregon. Prior to the entry of the Order dated December 1, 1975, Mrs. Paltrow informed the court of her intention to move from Oregon to Maryland. The Oregon court recited in the Order that the move was not in the best interests of the children, but, nevertheless, continued the modified custody in the mother upon condition that the children return to Oregon for visitation withtheir father during the summer recess. The move to Maryland occurred on January 11, 1976. When the mother failed to return the children to Oregon during the following June, the father, on July 12, 1976, filed a Motion in Oregon to have Mrs. Paltrow adjudicated in contempt and to transfer to him the custody of the other 2 children. The mother's bill of complaint was filed on July 26, 1976, in the Circuit Court for Baltimore County, and requested that the court assume jurisdiction of the two minor children residing with her. The father did not file an answer to the bill of complaint but, as already indicated, filed a Motion Ne Recipiatur on which a hearing was held on September 27, 1976.The lower court declined jurisdiction. Appellant mother challenged an order of the Circuit Court for Baltimore County (Maryland), which declined jurisdiction in the child custody action and granted appellee father's motion ne recipiatur, because the mother did not comply with the requirements of 191 of the Uniform Child Custody Jurisdiction Act, Md. Ann. Code art. 16, 184 et seq.
Issues:
Can a Motion Ne Recipiatur decide the question of jurisdiction?
Whether the Oregon court was the proper forum to exercise jurisdiction?
As the Court of Appeals and this Court have had occasion to hold, such a motion has a specific, limited purpose and may not serve the office of a demurrer, plea, motion raising preliminary objection or motion for summary judgment. Here, the motion was addressed to the failure of Mrs. Paltrow to supply in her bill of complaint or in a separate affidavit the information required by 191 of the Uniform Child Custody Jurisdiction Act, particularly information relating to Dr. Paltrow's pending motion in Oregon for transfer of custody. Although, in our judgment, it would have been more appropriate to dismiss the proceeding rather than to grant appellee's Motion Ne Recipiatur, we find no reversible error. Furthermore, it is abundantly clear from a reading of the Uniform Act that even absent a motion, the court sua sponte could have considered the question of the exercise vel non of jurisdiction. We think it plain from the statement of purposes and the othersections cited that an equity court in a proceeding relating to child custody has an affirmative duty to examine the question of the pendency of proceedings elsewhere in Maryland or in other jurisdictions and should do so of its own motion even if the issue is not raised by the parties themselves. We also consider it not only proper but necessary for a court of this State to determine, as a preliminary matter, whether to exercise its jurisdiction where it becomes apparent that a proceeding concerning the custody of the child or children is pending in a court in another jurisdiction. Support for the Oregon court's exercise of jurisdiction substantially in conformity with the provisions of the Uniform Act, which is also in effect in Oregon, was found by Judge Maguire in the provisions of 186, "When court has jurisdiction," specifically subsection (a)(1). We think that the trial court was correct in this interpretation. The six-month provision in the statute is obviously not the equivalent of a statute of limitations and the court properly found substantial conformity with the provisions of the Act. We also observethat the facts and circumstances involved in these proceedings might well have justified the court, under 189 of the Act, "Finding that court is inconvenient forum," to decline to exercise its jurisdiction and to dismiss the proceedings on the ground that Maryland was an "inconvenient forum" and that the court of Oregon was a "more appropriate forum." Art. 16, 189 (a). With respect to 189 (c), it is relevant that Oregon was the state where all four children had been raised and where two of the children reside with the father, in his custody. Oregon has the closer connection with the family and its court has considered the issue of custody on three occasions, the last being in April 1976, only three months prior to the institution of the instant proceedings.
Conclusion:
The court affirmed the judgment of the lower court, which declined jurisdiction in the mother's child custody dispute and held that Oregon was the proper forum.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
Maryland Baltimore Child Custody Jurisdiction Contempt Petition Lawyers Attorneys
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