IRENE D’AGNESE (GOULETAS) v. VICTOR J. D’AGNESE
COURT OF APPEALS OF VIRGINIA
March 19, 1996, Decided
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. The family resided in Virginia until 1992. In that year, Mrs. D’Agnese filed for divorce in Virginia, requesting custody of the children. Later that year, 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 and she voluntarily dismissed the Virginia divorce petition. Then the Illinois court granted an emergency protection order and granted temporary custody of the children to Mrs. D’Agnese. Subsequently Mr. D’Agnese filed for divorce in Virginia. The Virginia court ruled that 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.
Issue:
Whether the Virginia court had jurisdiction over the issue of child custody in divorce proceedings?
Discussion:
This court held that 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. However, because the Virginia court was required to defer to the Illinois court under Code 20-129(A), it was for the Illinois court to determine whether its continued exercise of jurisdiction was appropriate. 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.
Conclusion:
This court hence reversed the judgment of the circuit court.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firms unofficial views of the Justices opinions. The original opinions should be consulted for their authoritative content
Then the Illinois court granted an emergency protection order and granted temporary custody of the children to Mrs. D’Agnese. Subsequently Mr. D’Agnese filed for divorce in Virginia. The Virginia court ruled that 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.
Issue:
Whether the Virginia court had jurisdiction over the issue of child custody in divorce proceedings?
Discussion:
This court held that 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. However, because the Virginia court was required to defer to the Illinois court under Code 20-129(A), it was for the Illinois court to determine whether its continued exercise of jurisdiction was appropriate. 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.
Conclusion:
This court hence reversed the judgment of the circuit court.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firms unofficial views of the Justices opinions. The original opinions should be consulted for their authoritative content