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Bergen v. Bergen

decided: March 5, 1971.

ELIZABETH Z. BERGEN
v.
JAMES M. BERGEN, APPELLANT



Hastie, Chief Judge, and Freedman and Gibbons, Circuit Judges.

Author: Freedman

Opinion OF THE COURT

FREEDMAN, Circuit Judge.

This is an unfortunate case arising out of a conflict between parents over the custody of their six-year-old daughter. They have invoked the jurisdiction of separate courts, and the present outcome of their strife is an order adjudging the father in contempt of the District Court of the Virgin Islands.

On March 14, 1968, the plaintiff, who was a bona fide resident and domiciliary of the Virgin Islands, obtained a divorce in the District Court of the Virgin Islands from the defendant, a resident of the State of New York, who was represented in the action by counsel who entered a formal appearance and filed an answer on his behalf. At the time of the divorce decree their child was residing with her mother and accordingly was also domiciled in the Virgin Islands. The divorce decree awarded custody of the child to the mother with the right of reasonable visitations to the father "in accordance with the terms and provisions" of a property settlement and separation agreement of the parties.*fn1

Under the agreement incorporated in the divorce decree, the child on a number of occasions visited with her father in New York City. Her latest visit to him began on July 18, 1970. A few days before she was to be returned to her mother in the Virgin Islands, the father instituted a proceeding in the Supreme Court of the State of New York, in the County of New York, where the child was then with him, for an award of her permanent custody. He alleged that he could not seek relief in the District Court of the Virgin Islands because it was not then in session, and that he should be awarded custody of her because the mother had not given her good care since the divorce and had continued in a relationship with another man which was harmful to the child. On this application the New York court, on September 3, 1970, four days before the father was to have returned the child to her mother, entered an ex parte order directing the mother to show cause why custody of the child should not be awarded to the father and enjoined her pending the hearing from removing the child from the court's jurisdiction.

Promptly after being served with a copy of this order in the Virgin Islands the mother filed a petition in the divorce action to have the father adjudged in contempt for failing to return the child and for an order restraining him from proceeding with his action in New York. She alleged that the father had violated the decree of the District Court of the Virgin Islands by his failure to return the child, that his statement that he could not seek relief in that court was false and that the New York court lacked jurisdiction to disturb the decree because both the mother and the child were domiciled in the Virgin Islands. On this petition the District Court of the Virgin Islands entered two ex parte orders. One, designated a temporary restraining order, commanded the father to discontinue the prosecution of his action in New York and enjoined him from prosecuting it pending a hearing on the petition, which the court fixed. The other ordered him to appear on a fixed day to show cause why he should not be adjudged in contempt.

On September 28, 1970, a hearing was held in the Virgin Islands on the mother's petition, at which the District Court heard testimony on the contempt issue after the father's counsel withdrew when the court refused to permit him to enter a special appearance. On October 2, 1970, the District Court entered the order which is the subject of this appeal, adjudging the father guilty of willful contempt for failing to return the child to the mother, directing him to return the child to the mother within ten days and providing that if he failed to do so he should pay $1,500 to the Clerk of the Court and be subject to further punishment for his continuing contempt. By orders of the District Court and of this Court the judgment of contempt and the order requiring the return of the child to the mother, both contained in the order of October 2, 1970, were stayed pending the decision of this appeal. Apparently the New York court held the case before it in abeyance pending the decision in the Virgin Islands contempt proceeding.

Title 16, § 109 of the Virgin Islands Code vests in the District Court the power in granting a divorce to decree also who shall have custody of the minor children of the marriage.*fn2 When the District Court entered the divorce decree dissolving the marriage of these parties, the wife and the minor child were domiciled in the Virgin Islands and the father submitted to the jurisdiction of the court. He therefore was bound by the decree.*fn3 The District Court thereafter retained continuing jurisdiction to enforce the custody provision.*fn4 The Restatement of Conflict of Laws (Second), which is authoritative in the Virgin Islands,*fn5 succinctly expresses the principle in § 26:

"If a state obtains judicial jurisdiction over a party to an action, the jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action. Reasonable notice and reasonable opportunity to be heard must be given the party at each new step in the proceeding."

Moreover, since the custody of the child had been awarded to the mother with whom she had been living in the Virgin Islands, her domicil is there.*fn6 For this reason, too, the Virgin Islands, as the place of the child's domicil, has undoubted jurisdiction over her custody.*fn7 Since the welfare of the child is the chief consideration in questions of custody, the Virgin Islands has a paramount interest in the subject. This interest was not altered by the father's temporary custody of the child during her visits to him,*fn8 which did not change the domicil of the child from the Virgin Islands to New York.*fn9

The fact that the Virgin Islands District Court had jurisdiction and authority to act is not, however, the end of the problem. For the further question arises whether it should have exerted its undoubted jurisdiction after the father, domiciled in New York where the child was then physically present, had invoked the jurisdiction of the New York court. This leads to a consideration of the jurisdiction of the New York court.

Almost half a century ago Cardozo, J., in Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624 (1925), expressed the now accepted principle that the state in which a minor child happens to be physically present has jurisdiction to make an award of its custody because it has authority as parens patriae to provide for the general welfare of any child who is within its borders.*fn10 In this case the child was present in the State of New York and the New York court therefore had jurisdiction to entertain the father's application for an award of custody. Indeed, the Virgin Islands custody decree itself was subject to modification in the Virgin Islands,*fn11 and therefore New York was required to give it no greater recognition,*fn12 even if the full faith and credit clause,*fn13 which is applicable to judgments of the Territory of the Virgin Islands,*fn14 were strictly applied. The full faith and credit clause, however, is not rigidly applied in custody cases even where it is given recognition, for a second court inevitably has before it events which have unfolded after the original decree.*fn15 The New York court, therefore, was called upon to act on an application which on its face at least was within its jurisdiction. Indeed, it is a jurisdiction which in similar cases is recognized in the Virgin Islands.*fn16 Since there is a concurrence of jurisdiction of the courts of the Virgin Islands and of New York, the question which should yield can only be decided on principles of comity.

The order of the District Court of the Virgin Islands, however, proceeds simply on the basis of its own authority and contains no evaluation of any competing considerations regarding the invocation of the jurisdiction of the New York court. The District Court simply adjudged the father in willful contempt because it had jurisdiction over him and it found that he had, without cause, willfully and contrary to its decree retained the child after the expiration of the period of reasonable visitation. It made no reference to the principle of comity nor did it evaluate the relative strength of the interests of the two competing jurisdictions. There are no findings that the application which the father made to the New York court was in bad faith or that it would constitute an unreasonable and unnecessary hardship on the mother. These significantly are matters which the mother alleged in her petition and which the District Court recited in the temporary restraining order.*fn17 Had they appeared in the findings of fact made by the District Court after the hearing on the petition there would have been a solid foundation for a decision to exert to the full its undoubted jurisdiction. But the recitals in the temporary restraining order cannot serve as findings of fact to support the adjudication of contempt, for in stating them in the ...


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