2008 VT 86


Miller v. Miller (2006-504)
 
2008 VT 86
 
[Filed 22-Aug-2008]
 
NOTICE:  This
opinion is subject to motions for reargument under V.R.A.P. 40 as well as
formal revision before publication in the Vermont Reports.  Readers are
requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may
be made before this opinion goes to press.
 
                                                                                                                                                            
2008 VT
86
                                                                                                           
No.
2006-504
                                                                                                                                                            
 
Michelle M. Miller                                                                           Supreme
Court
 
                                                                                                         On
Appeal from
     v.                                                                                                 Bennington Family Court
                                                                                                         
 
Keith E. Miller                                                                                 June
Term, 2007
 
 
Nancy Corsones, J.
 
Maureen O’Reilly, Vermont Legal Aid, Inc., Rutland, and
Sandra L. Paritz, Vermont Legal Aid,
  Inc., St. Johnsbury, for Plaintiff-Appellant.
 
Sigismund J. Wysolmerski of Wysolmerski Law Office P.C., Rutland, for Defendant-Appellee.
 
 
PRESENT:
  Dooley, Johnson, Skoglund and Burgess, JJ., and Teachout, Supr. J., Specially
                     Assigned
 
 
¶
1.            
SKOGLUND, J.   Mother appeals from a family court order denying her
request to recognize a Canadian child-custody judgment and to relieve her of an
earlier contempt adjudication.  We hold that the trial court erred in declining
to recognize the foreign judgment, and that the contempt order has since become
moot.  Accordingly, we reverse.  
¶
2.            
Like many multi-jurisdictional
custody disputes, this appeal arrives with a long and tangled factual and
procedural history.  The parties lived together in Vermont for a number of
years before their child was born in March 1994.  They were married in 1996 but
separated one year later and were divorced in March 1999 pursuant to a final
judgment of the Bennington Family Court.  By agreement of the parties, the
court awarded mother sole legal and physical rights and responsibilities for
the child and granted father liberal visitation.  By the time of the divorce,
mother had moved with the child to Massachusetts.  The record discloses that in
May 2000, a Massachusetts family court issued a temporary ex parte abuse-prevention
order at mother’s request, prohibiting father from having any contact with the child.
 In June 2000, following a hearing at which father appeared, the court issued a
final abuse-prevention order again prohibiting father from having any contact
with the child.  The order was scheduled to expire in one year.[1]
¶
3.            
Father subsequently moved to
reinstate visitation in Massachusetts.  Following a hearing, the Massachusetts family court issued an order granting father supervised visits with the child
and providing for a further review in six months conditioned on father’s
successful completion of six supervised visits.  Based on father’s behavior
during the first visit, however, the visitation supervisor cancelled the second
visit and wrote a letter to the court, in July 2000, requesting that future
visits occur in a different setting with a “high[er] degree of security (on-
duty police officer, weapon check).”  The letter cited concerns about father’s “contained
rage” and “emotional stability” and characterized him as a “high risk” client. 
Apparently, no further visits occurred thereafter.  Nevertheless, in August
2000, the Massachusetts family court issued an order at the parties’ request
providing that “all further proceedings concerning the care, custody and
visitation of the minor child” would be “conducted in Massachusetts and not in Vermont.”  At the same time, the Bennington Family Court granted the parties’ joint motion
to recognize Massachusetts’s jurisdiction over the matter. 
¶
4.            
In early January 2001, mother and
child began a series of moves which she claims were necessitated by father’s
harassment and threats.  Mother states that she moved initially into a battered
women’s shelter in Pittsfield, Massachusetts, and thereafter fled to Florida when father discovered her location in Massachusetts.  She further claims that she
left Florida out of a concern that father had discovered her there, and
ultimately moved to a shelter for battered women in the Province of Quebec,
Canada, in May or June 2001.  Father contends that he was unaware of mother’s
whereabouts during this period.   
¶
5.            
In June 2002, in response to
father’s motion, the Massachusetts family court issued an order providing that,
in light of mother’s “unknown” location and father’s continued residence in
Vermont, the latter represented the most appropriate venue to exercise
jurisdiction.   Father then filed successive motions in the Bennington Family
Court to enforce the visitation provisions of the original Vermont divorce
decree, to obtain temporary custody, and to hold mother in contempt.  Mother
was served by publication but did not appear at a scheduled hearing in August
2002, which resulted in a brief, emergency order transferring custody to
father.  
¶
6.            
In September 2002, the court
issued a written decision.  The court acknowledged that a review of the child’s
best interests was difficult because of his absence from the state for the last
three years and the lack of information about his present physical and
emotional health.  Nevertheless, the court expressed concern as to whether the
child was receiving adequate medical attention for a seizure disorder that had
come to the court’s attention during an earlier abuse-prevention hearing.  The
court also noted that mother had been found to suffer from depression in the
final divorce judgment, that her petition for relief from abuse in Vermont had been denied, and that she “may be of unstable personality . . . [and] in the
throes of some mental illness . . . which would make her an unfit guardian for
the child.”  Accordingly, pending “a full [e]videntiary [h]earing to consider
the child’s best interest” the court ordered that custody be transferred to
father “until further [h]earing of the [c]ourt.”  The court also found mother
to be in contempt for her “willful failure to provide [father] with his right
to parent child contact” as provided by the court’s earlier orders.  
¶
7.            
After the hearing before the
Bennington Family Court on August 21, 2002, but before the court issued its
decision in September, mother filed a motion to terminate father’s right to
visitation and for child support in the family court of the Province of Quebec,
Canada, where she had taken up residence after fleeing from Florida.  An expert
psychological evaluation of mother and the child was submitted to the Canadian
court in October 2002.  The psychologist’s report states that it was based on
interviews with mother and the child as well as a review of a number of
documents, including the Bennington Family Court decision of September 2002,
notes from the child’s former teacher in Massachusetts and current teacher in Quebec, and reports filed with the Massachusetts family court by the visitation
supervisor.  The psychologist’s report recounts in detail mother’s allegations
of father’s physical and psychological abuse, harassment, and stalking, some of
which allegedly occurred in the child’s presence.  The expert described mother
as “sad but always in control of her emotions,” coherent and well organized,
and without any signs of psychosis, mood disorders, or other personality
disorders.  She was, in the expert’s opinion, “in good mental health,” appeared
to function well, and despite the recent instability in her life “had been able
to take good care of” the minor.  As to the child, then eight years old, the
expert noted that he was “successful” in school and “well integrated into his
class group,” was obviously “bright,” expressed himself well, and established
an easy relationship with the expert.  Although mother reported that the child
had an epileptic condition which required him to take a daily medication, he
remained physically vigorous.  As for the child’s views toward father, the
expert concluded from the child’s remarks that he had witnessed father make
numerous threats and denigrating comments against mother and himself, and as a
result had developed a strongly negative perception of father, stating in
categorical terms that he did not wish to resume parent-child contact.  The
expert concluded that an abrupt resumption of visitation with father would have
a traumatic and destabilizing impact on the child.
¶
8.            
Father was served with mother’s
Canadian petition by mail, and subsequently moved to dismiss the petition and
transfer jurisdiction to Vermont.  In May 2003, the Canadian court entered an
order granting temporary custody to mother.  The following month, it issued a
nine-page decision denying father’s motion to dismiss.  The court explained
that under Canadian law it had the discretion to decline jurisdiction if it
determined that the courts of another jurisdiction were better positioned to
resolve the dispute, and that any decision must “be taken in [the child’s]
interest and with respect to his rights.”  These interests should include,
according to the court, “the moral needs, intellectual, affective and physical
needs of the child, his age, his character, his family circumstances and the
other aspects of the situation.”  Based upon its review of several exhibits,
including the expert psychological evaluation and the materials on which it
relied, the court found that father’s “attitude and comportment” toward mother
and the child and the risks of reunification with father militated against a
transfer of jurisdiction.
¶
9.            
In July 2004, father filed a
motion with the Canadian family court to have his own expert psychologist
evaluate mother and the child, and thereafter to grant custody to father.  For
reasons unclear from the record, however, father subsequently withdrew the
motion.  In February 2005, the Canadian court issued a final judgment awarding
custody of the eleven-year-old child to mother and reserving the issue of
visitation with father.  Father appealed the ruling, which the Canadian
appellate court affirmed in October 2005.    
¶
10.        
In January 2006, mother returned
to Vermont and was arrested by federal marshals, based on federal charges of
international parental kidnapping.[2]  Mother was transferred
to state custody on the outstanding contempt adjudication and a show-cause
hearing was held in which mother was given the opportunity to purge herself of
the contempt by disclosing the child’s whereabouts; she refused, and
consequently remained incarcerated.  In February 2006, mother moved to dismiss
the contempt proceeding on the ground that the court lacked subject- matter
jurisdiction to issue the August and September 2002 orders transferring custody
to father and holding her in contempt for interfering with father’s visitation
rights.[3]  The court denied the
motion, concluding that Vermont had jurisdiction under 15 V.S.A. § 1032(a)(2),
which provides that the court may exercise jurisdiction if it is in the best
interests of the child, the child and at least one contestant have a “significant
connection with this state,” and “there is available in this state substantial
evidence concerning the child’s present or future care, protection, training
and personal relationships.”[4]  Mother appealed from the
denial, but the appeal was dismissed in May 2006, for failure to comply with a
scheduling order.   
¶
11.        
In June 2006, mother filed a
motion seeking relief from the judgment of contempt and recognition of the
Canadian custody order in furtherance of the interests of justice and the best
interests of the child, pursuant to Vermont Rule of Civil Procedure 60(b)(6).[5] 
The trial court denied the motion, observing that mother had failed to appeal
either the 2002 judgment of contempt or the 2006 denial of her motion to
dismiss, and that Rule 60(b) was not a substitute for timely appeal.  The court
also declined to recognize the Canadian family court judgment, ruling that it
could not determine from the Canadian orders—which were in French—whether
Canada had properly exercised jurisdiction.  Mother moved to reconsider,
pointing out that, in fact, she had previously submitted English translations.  The
court denied this motion as well, finding that it remained unable to determine
whether the Canadian court had properly exercised jurisdiction.  This appeal
followed.
I.
¶
12.        
Although the parties focus largely
on whether Canada or Vermont had jurisdiction, as explained more below the
critical question—in our view—turns on which was ultimately the “more
appropriate forum” to resolve this protracted dispute under the Uniform Child
Custody Jurisdiction Act.[6]  We begin by noting the
overall relevance of UCCJA principles despite the complicating presence of a
foreign jurisdiction.  The UCCJA expressly provides that its “general policies
. . . extend to the international area,” 15 V.S.A. § 1051, and courts and
commentators have consistently interpreted this provision to confer comity, or
recognition, to child custody proceedings and determinations of foreign nations
that meet minimal standards of due process and promote the UCCJA’s fundamental
goals.[7]  See, e.g., McFaull v.
McFaull, 560 So. 2d 1013, 1014 (La. Ct. App. 1990) (holding that “the
general policies of the UCCJA . . . extend to the
international area and recognition and enforcement of custody decrees are
extended to other countries if there has been reasonable notice and the opportunity
to be heard”); Garg v. Garg, 881 A.2d 1180, 1204 (Md. Ct. Spec. App.
2005) (observing that “numerous other states have concluded that the UCCJA
applies to international custody disputes” and collecting cases); Ivaldi v.
Ivaldi, 685 A.2d 1319, 1325 (N.J. Super. Ct. App. Div. 1996) (“The majority
of state courts that have considered the issue have held, either explicitly or
implicitly, that the term ‘state’ may include a foreign nation.”); see
generally D.M. Blair, International Application of the UCCJEA: Scrutinizing
the Escape Clause, 38 Fam. L. Q. 547, 557 (2004) (observing that, with few
exceptions, “courts have applied the UCCJA in a straightforward manner in
international custody disputes.”); Note, American and International
Responses to International Child Abductions, 16 N.Y.U. J. Int’l L. & Pol.,
415, 428 (1984) (“[T]he [National Conference of Commissioners on Uniform State
Law] made the UCCJA’s basic policies applicable to international cases.”).
¶
13.        
An understanding of the UCCJA’s
international reach was implicit in In re Cifarelli, 158 Vt. 249, 254,
611 A.2d 394, 397 (1992), where we upheld a trial court ruling that Bermuda had
properly exercised jurisdiction over certain custody and visitation issues
concerning a minor notwithstanding the fact that a Vermont court had entered
the initial order.  The child in question had lived in Vermont for only a few
months but had been a resident of Bermuda for over a year at the time of the
superior court order dismissing the action in favor of Bermuda; information
about the child’s physical and psychological health and development were more
readily available in Bermuda, where that country’s social services agency had
investigated her circumstances; and the child’s primary care provider and
physicians resided in Bermuda.  Thus, we concluded that, “when the superior
court dismissed the action, Vermont was an inconvenient forum according to the
provisions of 15 V.S.A. § 1036,” and Bermuda “was the most appropriate forum”
to exercise jurisdiction.  Id. at 254-55, 611 A.2d at 397-98.
¶
14.        
Other courts have also recognized
that it may be appropriate in certain circumstances to decline jurisdiction in
favor of a foreign judgment where the UCCJA factors demonstrate that it would
be in the best interests of the child.  See, e.g., Plas v. Superior Court,
202 Cal. Rptr. 490, 499 (Cal. Ct. App. 1984) (holding that France represented
the more convenient forum to resolve custody dispute); Ivaldi, 685 A.2d
at 1327 (noting that “[t]he interests of the child are critical in determining
which jurisdiction provides a more convenient forum” and remanding for the
court to decide whether to decline jurisdiction in favor of Moroccan divorce
judgment); Middleton v. Middleton, 314 S.E.2d 362, 368 (Va. 1984)
(ruling that Virginia would “treat England as the equivalent of a statutory ‘home
state’ under the forum non conveniens provisions of the Act” and
declining jurisdiction where child’s contacts with England were stronger); In
re Ieronimakis, 831 P.2d 172, 179 (Wash. Ct. App. 1992) (holding that
Greece was the more appropriate forum to adjudicate child custody where it was
the child’s residence, contained the most significant family connections, and
held the most substantial evidence concerning the child’s welfare).
¶
15.        
As noted, the parties here have
focused more on whether Canada had jurisdiction than whether it should have
exercised it.  That concern is understandable in light of the trial court
ruling, which summarily dismissed the Canadian decision to retain jurisdiction
on the ground that its failure to make findings relative to the criteria for
the exercise of jurisdiction set forth in 15 V.S.A. § 1032 made it impossible
to “presently determine whether the Canadian court properly exercised
jurisdiction substantially in accordance with the UCCJA.”  Upon careful review,
however, we find that the trial court ruling does not withstand scrutiny. 
¶
16.        
Canada has not, of course, enacted the UCCJA, and its
findings do not explicitly address the jurisdictional criteria of § 1032 as
such.  There was no real dispute before the Canadian court, however, that
mother and the child had been living in Quebec for more than one year when she
filed her custody petition in the Canadian family court in September 2002. 
Although the specific address that mother initially provided proved to be
inaccurate, the Canadian court relied on evidence in the expert evaluation
indicating that mother had settled in Quebec almost sixteen months before she
filed the petition.  Furthermore, father admitted in his Canadian pleadings
that mother and the child had resided in Quebec for at least a year before she
filed her petition, observing in one motion that it was not “until August 2002,
that [father] became aware that [mother] and his child had moved to the
jurisdiction of the District of St.-Francois, Province of Quebec.”  Moreover,
it is apparent that the Canadian court considered its assumption of
jurisdiction to be in the interests of the child based on his Quebec residence,
the significant evidence presented to the court concerning his physical and
emotional health, and the perceived risks of returning the child to father in Vermont.  The Canadian decision thus evinces at least two viable grounds for its exercise
of jurisdiction under the UCCJA: as the child’s home state, under § 1032(a)(1),
and as the state where at least one contestant and the child have a significant
connection, where substantial evidence concerning the child’s welfare may be
found, and where the assumption of jurisdiction would serve the child’s
interests, under § 1032(a)(2)-(4).  
¶
17.        
Mother’s assertion to the contrary
notwithstanding, it is similarly evident that the Bennington Family Court could
reasonably assert jurisdiction on at least one ground as well,  inasmuch as
Massachusetts had expressly declined to exercise jurisdiction in favor of
Vermont, and father and his family continued to reside in Vermont.  See id.
§ 1032(a)(4) (Vermont has jurisdiction if “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”).   
¶
18.        
The question of whether
jurisdiction exists, however, is separate from the question of whether
it should be exercised.  As to that issue, the record here shows that
while Vermont may have issued the initial divorce decree and custody order in
March 1999, the child had already left Vermont to live with mother in
Massachusetts, had been out of Vermont for three years when father filed his
petition for modification in August 2002, and indeed is acknowledged by all
parties to have lived outside of Vermont for the last nine years.  See Rocissono
v. Spykes, 170 Vt. 309, 318, 749 A.2d 592, 599 (2000) (listing factors
commonly considered by courts in deciding whether to decline jurisdiction,
including “the location of the children at the time of the proceeding” and the “length
of time that the children have or had been in or out of the forum state at the
time the proceeding commenced”); see also Sampson v. Johnson, 846 A.2d
278, 289 (D.C. 2004) (directing trial court on remand to determine appropriate
forum based on “the situation as it exists following the remand”).
¶
19.        
It is equally evident from the
record that substantial evidence relating to the child’s welfare and
development was “more readily available” in Canada than Vermont when father
filed his modification motion.  15 V.S.A. § 1036(c)(3).  The Bennington Family
Court’s September 2002 ruling acknowledged as much, noting the difficulty of
obtaining evidence concerning the child’s best interests as he had not been
before a Vermont court or apparently in the state since he was five years old. 
Further, we note that the court’s expressed concerns about mother’s state of
mind and ability to care for the child’s neurological condition were purely
speculative.  The Canadian judgment, in contrast, rested on a relatively
recent, comprehensive evaluation of the emotional and physical health of mother
and the child; the child’s adjustment at school, intellectual development, and
perceptions of father; and the likely emotional impact on the child of an
abrupt reunification with father.  Nor can we ignore the Canadian court’s
obvious concern about the risks to mother and the child if compelled to
litigate in father’s home state.  We need not credit all of mother’s
allegations of abuse to accept her belief, and the Canadian court’s implicit conclusion,
that Canada provided a more secure forum.  See, e.g., Stoneman v. Drollinger,
2003 MT 25, ¶ 34, 64 P.3d 997 (declining jurisdiction in Montana based, in
part, on history of domestic violence and the mother’s sense “that she feels
safer in Washington where . . . [the father] does not know her address or daily
pattern of activities”).[8]  Therefore, despite
father’s continued residence in Vermont, the conclusion is inescapable that Canada had a closer connection with the child and more substantial evidence concerning his health
and welfare when father filed his motion, and that evidence and connection with
  Canada have undoubtedly only increased over time.  
¶
20.        
Balanced against these factors is
the inescapable fact of mother’s patent and longstanding interference with
father’s opportunity to establish parent-child contact.  One of the fundamental
goals of the UCCJA is the prevention of “forum-shopping” by one parent seeking
an advantage over the other, Rocissono, 170 Vt. at 318, 749 A.2d at 598,
and one of the specific statutory factors we must consider in determining an
appropriate forum is whether the exercise of jurisdiction would “contravene any
of the purposes” of the UCCJA.  15 V.S.A. § 1036(c)(5).[9] 
There is no evidence here that mother was consciously forum-shopping in moving
to Canada rather than, as she claimed, seeking to evade an allegedly abusive
former spouse, but the ultimate effect in depriving father of his legal rights
was the same.  Nevertheless, in matters as serious as determining a child’s
future, our paramount concern must remain focused on the welfare of the child.  See
In re Adoption of Baby Girl B., 867 P.2d 1074, 1079 (Kan. Ct. App. 1994)
(“The prime consideration in determining if a court is an inconvenient forum is
the best interests of the child.”).  Accordingly, courts have recognized that,
in deciding whether or not to exercise jurisdiction under the UCCJA, the
important goal of discouraging parental misconduct in child custody matters
may—in rare instances—be outweighed by considerations relating to the best
interests of the child.  See, e.g., Bergeron v. Bergeron, 492 So. 2d
1193, 1203 (La. 1986) (“If the best interests of all children are to be served
. . . [t]he imperative to discourage abduction and other violations of custody
orders may, in extraordinary circumstances, be subordinated to the paramount
concern in all custody matters for the welfare of the child.”); In re
Clausen, 502 N.W.2d 649, 682 (Mich. 1993) (“Even in child snatching cases,
courts have placed consideration of the child’s best interests ahead of
punishment of the wrongdoer.”); State ex rel. Rashid v. Drumm, 824
S.W.2d 497, 502 (Mo. Ct. App. 1992) (observing that the “clean hands” doctrine “is
a discretionary ground for denying jurisdiction and does not supersede the best
interests of the child”); Nehra v. Uhlar, 402 A.2d 264, 272 (N.J. Super.
Ct. App. Div. 1979) (recognizing that the children’s “welfare should not be
sacrificed on the altar of judicial punishment of a parent for wrongdoing in
removing the children from a foreign jurisdiction, or in violating the order of
a foreign court”).
¶
21.        
For the reasons previously
discussed, we conclude that this is one of those rare cases where the best
interests of the child must take precedence over the policy goal of deterring
parental wrongdoing.  As noted, at the time of the original petition the child
had been absent from Vermont for three years, and the family court consequently
had no real evidentiary basis on which to evaluate the child’s welfare or
determine his best interests for purposes of a custodial placement.  The
Canadian court, in contrast, was home to both the mother and the child and had
access to current information concerning the child’s schooling, physical and
emotional well-being, and attitude towards his parents.  While we are reluctant
to give even an appearance of rewarding parental misconduct, we cannot ignore
the impact that distance and the passage of time have exerted in this matter. 
We conclude, therefore, that Canada was the more appropriate forum to resolve
this matter, and that the Bennington Family Court should have declined
jurisdiction in favor of the foreign forum.[10]
¶ 22.        
Several procedural objections to this
conclusion are, of course, immediately apparent.  First, the Bennington Family
Court was not apprised of the Canadian proceeding when it issued its decision
in September 2002, and thus can hardly be faulted for failing to defer to a
proceeding of which it was unaware.  Mother’s petition for relief from
judgment, however, provided an opportunity to rectify this omission in the
interests of the child, and we conclude that such relief was appropriate for
the reasons stated.  See Riehle v. Tudhope, 171 Vt. 626, 627, 765 A.2d
885, 887 (2000) (mem.) (recognizing that Rule 60(b)(6) “is intended to
accomplish justice in extraordinary situations that warrant the reopening of
final judgments after a substantial period of time”).  We recognize as well
that mother failed to appeal either the 2002 modification ruling (she was
served by publication but claimed to be unaware of the ruling) or the
subsequent 2006 order denying her motion to dismiss.  As we have explained,
however, and as other courts have also recognized, the important interest in
finality of judgments must occasionally—in rare cases—yield to the best
interests of the child.  See, e.g., Livingston v. Livingston, 572 P.2d
79, 86 (Alaska 1977) (holding that the “paramount criterion of the best
interest of the child” in custody matters justified invocation of Rule 60(b) to
reopen final divorce judgment in light of subsequent disclosures); In re
Drummond, 945 P.2d 457, 462 (N.M. Ct. App. 1997) (concluding that “[w]here
the best interests of the child demand it, the exceptional circumstances”
provision of Rule 60(b) should be used to reopen adoption decree); In re
Matyaszek, 824 N.E.2d 132, 143 (Ohio Ct. App. 2004) (noting that Ohio
courts have “recognized that the child’s best interests are paramount in
determining whether relief from judgment is appropriate”); State ex rel.
M.L.B. v. D.G.H., 363 N.W.2d 419, 428 (Wis. 1985) (holding that final
custody and support judgment may be reconsidered on motion for relief from
judgment where failure to do so would have “significant future ramifications
for . . . the child”).  We conclude that this is such a case.
¶ 23.        
Finally, we note that, although apprised of the Bennington
Family Court order, the Canadian court apparently made no effort to contact the
  Vermont family court to coordinate their efforts, as required by the UCCJA. 
See 15 V.S.A. § 1036(d) (requiring state courts to communicate with one another
to “exchange information pertinent to the assumption of jurisdiction by either
court with a view to assuring that jurisdiction will be exercised by the more
appropriate court”).  Although the Canadian court was obviously not bound by
this provision, comity would certainly have called for a higher level of
international cooperation than was evidenced here.  The UCCJA is not predicated
upon reciprocation, however, and judicial proprieties must not be preserved at
the expense of the interests of the child.  Cifarelli, 158 Vt. at  257, 611
A.2d at 399 (observing that the UCCJA “is not a reciprocal law” and holding
that “[a] failure to comply strictly with the communication provision does not
require reversal”).  Accordingly, we discern no procedural impediment to
recognition of the Canadian judgment.   
¶ 24.        
Nothing in the dissent undermines these
fundamental conclusions.  Nevertheless, several of the dissent’s claims merit a
response. 
¶ 25.        
As a threshold matter, we simply cannot let pass the dissent’s
unnecessary characterization of the parties.  While willing to tarnish mother’s
character based on speculative findings lacking evidentiary support, the
dissent virtually ignores documented evidence of father’s physical and psychological
violence.  The dissent makes much of the family court’s denial of mother’s
motion for relief from abuse, overlooking the Massachusetts order granting such
relief, as well as the visitation supervisor’s letter to the Massachusetts
court expressing such concern about father’s “contained rage” and “emotional
stability” that she requested a more secure setting and warned that release of
the letter to father would “increase the likelihood of out of control behavior”
toward mother, the child, and the supervisor herself.  Nor is there sufficient
acknowledgment by the dissent of the Canadian psychologist’s report setting
forth in substantial detail mother’s allegations concerning father’s physical
and emotional violence, as well as the child’s report concerning father’s
threats.
¶ 26.        
We do not raise this issue to excuse mother’s misconduct or to indict
father’s.  Our role is not to make a case for either party, but to state the
facts plainly and without embellishment.  An argument for upholding the trial
court’s refusal to recognize the Canadian judgment can certainly be made; it
does not require manipulation of the record to do so.
¶ 27.        
The dissent’s tendency to overstate the case does not end with the
record evidence.  It asserts that the Court “bypasses” several legal standards “to
reach its result.”  Post, ¶ 34.  This claim is also baseless.  As a
procedural matter, the dissent argues that, having failed to appeal either the
2002 order or the 2006 denial of her jurisdictional complaint, mother “was
foreclosed” from seeking relief under Rule 60(b).  Post, ¶ 41.  We have,
indeed, repeatedly observed that Rule 60(b) is not a substitute for appeal,
explaining that the important interest in finality of judgments demands that
the rule be applied “guardedly,”  Levinsky v. State, 146 Vt. 316, 318,
503 A.2d 534, 536 (1985) (per curiam denial of motion for reargument), and only
in “extraordinary” circumstances.  Riehle, 171 Vt. at 627, 765 A.2d at 887. 
Our holding that the instant case represents one of those rare instances justifying
relief does not represent an abandonment of the rule but rather an application
of it under “the historical authority of the courts of equity to reform a
judgment in special circumstances.”  Levinsky, 146 Vt. at 318, 503 A.2d at
536; see also Kellner v. Kellner, 2004 VT 1, ¶ 12, 176 Vt. 571, 844 A.2d
743 (mem.) (“Finality and repose sometimes must yield to the interests of
justice.”); Koch v. Billings Sch. Dist. No. 2, 833 P.2d 181, 188 (Mont.
1992) (noting the general principle that while it is ordinarily not permissible
to rely on Rule 60(b) “to remedy a failure to take an appeal,” this is not “an
inflexible rule and in unusual cases a party who has not taken an appeal may
obtain relief on motion”).
¶ 28.        
The dissent also asserts that, having argued for recognition of the
Canadian judgment on the ground that Canada rather than Vermont had
jurisdiction, mother waived any claim that Canada was the more convenient
forum.  Just as there are cases where a failure to appeal may not be fatal to
relief from judgment, there are instances where a failure to object or raise a
specific issue does not preclude its consideration on appeal.  See Cardiff
v. Ellinwood, 2007 VT 88, ¶ 12, __ Vt. __, 938 A.2d 1226 (court may
consider issue not raised below “in the interests of judicial economy”); Ledbetter
v. Brown City Sav. Bank, 368 N.W.2d 257, 261 (Mich. Ct. App. 1985) (while
failure to raise an issue below normally precludes review on appeal, “this rule
is not inflexible and will not be applied where the issue is one of law
concerning which the necessary facts have been presented”) (quotation omitted). 
This is plainly such a case.  First, as our earlier discussion makes clear, the
critical factors underlying a forum analysis are largely the same as those
applicable to the issue of jurisdiction, to wit, the child’s home state,
significant connections with the forum, and the location of substantial
evidence concerning the child’s welfare, care, interests, and personal relationships. 
See 15 V.S.A. §§ 1032(a), 1036(a).  Contrary to the implication of the
dissent, therefore, the parties here were afforded ample opportunity to address
the critical issues underlying our analysis.  Furthermore, as earlier noted,
this case has dragged on for too many years, and a remand to address the record
evidence under a slightly different legal theory would represent a useless
expenditure of time and resources and needlessly subject the child to continued
instability. 
¶ 29.        
On more substantive matters, the dissent also claims that, contrary to
the Court’s conclusion, “[t]he only extraordinary circumstance appearing in
this case is mother’s criminal contumacy.”  Post, ¶ 35.  Here again the
dissent has opted for rhetoric over a dispassionate review of the record.  As
the record makes clear, the child has lived and attended school in Canada for years, has thrived at school and in his community, and would suffer if that
stability were threatened.  Moreover, evidence and witnesses relating to the
child’s schooling, home life, and personal relationships are all in Canada.  As earlier noted, we are not the first court to recognize that, in weighing the
important public interest in finality of judgments against the best interests
of a child, the latter must sometimes predominate.  Nor, in these highly unique
circumstances, will granting Rule 60(b) relief in order to recognize the
Canadian judgment unduly expand the Rule’s scope or undermine its beneficial
purposes.  The case for relief is compelling and sound. 
¶
30.        
Finally, the dissent claims that the Canadian court’s exercise of
jurisdiction was not based on the standards set forth in the UCCJA.  It is
true, as the dissent observes, that the Canadian court did not expressly
address such UCCJA considerations as the child’s home state, whether another
state had a closer connection with the child and his family, or the location of
substantial evidence concerning the child’s care, present and future welfare,
and personal relationships.  Much of this information was in the record before
it, however, and all of these factors undoubtedly informed the Canadian court’s
explicit conclusion that the retention of jurisdiction was in the best
interests of the child, a conclusion with which we fully concur.  Thus, the
Canadian court’s failure to follow the precise forms of Vermont law do not
undermine its substantive conclusion that Canada was the more appropriate forum
to exercise jurisdiction. 
II.
¶
31.        
Our conclusion that the family
court should have declined to exercise jurisdiction over the custody issue does
not necessarily extend to the contempt motion.  See Thompson v. Thompson,
171 Vt. 549, 550, 762 A.2d 1236, 1238 (2000) (mem.) (holding that a contempt
proceeding is not a custody adjudication under the UCCJA and that the family
court acted properly in considering a contempt motion despite its determination
that New York offered a more convenient forum); Matthews v. Riley, 162
Vt. 401, 414, 649 A.2d 231, 240-41 (1994) (noting that the UCCJA does not
affect the court’s inherent power to enforce existing custody orders).  In this
regard, however, we may take judicial notice of the fact that, while the
instant appeal was pending, the family court vacated the contempt adjudication
in response to mother’s disclosure of the whereabouts of the child.[11] 
Civil contempt is essentially a coercive measure designed to compel compliance
with a court order, and as such the contemnor always retains the power to “purge”
or terminate the sanction through compliance.  Sheehan v. Ryea, 171 Vt. 511, 512, 757 A.2d 467, 468 (2000) (mem.).  Accordingly, it is well settled that a
contemnor who chooses this option renders the contempt order moot and
unappealable, for the court is then left with no means to grant effectual
relief.  See, e.g., Cent. Emergency Med. Servs., Inc. v. State, 966
S.W.2d 257, 259 (Ark. 1998) (holding that when appellant, adjudicated in
contempt for failure to deliver certain documents, “purged its contempt, it
rendered the propriety of the contempt order moot”); In re Browning, 573
P.2d 1095, 1095-96 (Kan. Ct. App. 1977) (dismissing appeal of contempt
adjudication when mother delivered custody of child in compliance with court
order); Vinson v. Vinson, 191 S.W.3d 85, 87 (Mo. Ct. App. 2006) (holding
that, when wife delivered property to husband in compliance with divorce
judgment, she had “complied with the contempt judgment, thus rendering the case
moot and unappealable”); see also In re Young’s Tuttle Street ROW, 2007
VT 118, ¶ 4, __ Vt. __, 939 A.2d 521 (mem.) (“[W]hen a tribunal has already
granted the relief requested, the appellate case is moot, because the reviewing
court can no longer grant effective relief.” (Quotation omitted.)). 
Accordingly, we conclude that the contempt claim has been rendered moot, and
need not be addressed on appeal. 
The portion of the family court order denying mother’s request for
recognition of the Canadian judgment is reversed.  The portion of the order
denying mother’s request for relief from the judgment of contempt is reversed
on the ground that the contempt order has been vacated and the issue is moot.
 
 
                                                                        FOR
THE COURT:
 
                                                                                                                                    
                                                                        ____________________________________                                                            Associate
Justice
 
¶ 32.        
BURGESS, J., dissenting.   Mother has never challenged the family
court’s findings that while suffering from depression she sought to curtail
contact with father through an ex parte relief-from-abuse petition denied for
lack of evidence, failed to follow up on scheduled treatment for the child’s brain
lesion and rare seizure disorder, and then, after her abuse allegations against
father were fully tried and adjudged meritless, took the child first to
Massachusetts and then to other jurisdictions, including Canada, in defiance of
a stipulated custody order.[12]  These findings and
conclusions by the family court are not, despite the majority’s alarm, recited
to tar mother’s character, but to reflect the actual character of the case from
the perspective of the family court based on the evidence and record before
it at the time of mother’s motions.  On that record, the family court was
not called upon to answer the majority’s new and relatively simple inquiry as
to the most appropriate forum for a custody dispute involving a child living
abroad.  What confronted the family court was a motion for relief from judgment
by mother, who had claimed, but failed to prove, abuse by father, and who was already
found to have suffered from depression and “some sort of break-down,” “probably
in the throes of some mental illness,” making her an “unfit guardian for the
child,” “possibly . . . delusional,” potentially placing the child in “danger”
and, intent on depriving father of his parental rights, in willful contempt of
court by having absconded with the child to parts unknown for years.  These undisputed
facts, along with mother’s then continuing refusal to offer evidence of the child’s
care and well-being, were considered with other factors in the family court’s denial
of mother’s motions.  The case as actually presented to the family court had
nothing to do with the majority’s theory of forum non conveniens introduced today.

¶
33.        
The record having been established, and with mother’s Vermont Rule of Civil Procedure 60(b)(6) motion
for relief failing to challenge anything but subject matter jurisdiction, which
the majority agrees was a doomed effort, the family court had no reason to grant
the motion or to entertain other theories not asserted by mother.  Mother
failed to make any timely objection to the jurisdiction of the family court in
2002, and then later failed to appeal from the 2006 Vermont family court order
from which she now seeks to be excused.  In the meantime, mother was convicted
by a federal jury of felony kidnapping for absconding with the child to Canada.  While mother’s criminal interference with father’s parent-child
contact was extraordinary, she demonstrated no extraordinary
circumstances warranting relief from the family court’s order on jurisdiction
under Rule 60(b)(6).  There is no basis to
disturb the family court’s discretionary and rationally explained denial of
mother’s Rule 60(b) motion.  Accordingly, I dissent from the reversal of the
family court’s order.
¶
34.        
The majority bypasses several legal standards to reach its
result.  The majority reverses the trial court’s
reasoned decision despite our established abuse-of-discretion standard of
review for denial of a Rule 60(b) motion, and the utter absence of any such
abuse in the family court’s denial of mother’s request for relief.  The
majority also disregards settled law barring relief from judgments from which
no appeal has been taken.  Instead, the majority purports to consider the
merits of mother’s jurisdictional claims under Vermont’s Uniform Child Custody
Jurisdiction Act (UCCJA), 15 V.S.A. §§ 1031-1051, as if presented for direct,
de novo appellate review.  Rejecting, as a matter of law under 15 V.S.A. §
1032, mother’s belated claim that the Vermont family court lacked subject
matter jurisdiction, the majority nevertheless proceeds to consider a claim not
raised and preserved by mother in this appeal: that the family court should
have discretionarily declined to exercise its jurisdiction under a different provision,
§ 1036.  Finally, the majority assumes, without an evidentiary record, that the
best interests of the child are extraordinary in this case and warrant relief
from judgment when mother failed to raise, or refused access to evidence about,
such a claim before the family court prior to its entry of final judgment,
twice, against her.  Given mother’s tactical choice not to pursue these
arguments in the trial court or on appeal, the family court properly concluded
that mother was not entitled to relief under Rule 60(b).
¶
35.        
The majority treats these “procedural
objections” as overcome in this case because it is one of those rare
circumstances where the “finality of judgments must . . . yield to the best
interests of the child.”  Ante, ¶ 22.  But the facts cited by the
majority to support its conclusion are merely that the child lived in Canada for an extended period of time so that information about the child is there.  Ante,
¶ 21.  Of course, this situation would arise whenever one parent kidnaps a
child to a foreign jurisdiction and then manages, even by contempt of court, to
extend the illegal abduction.  Thus, the majority rewards the kidnapper, and
encourages others, by equating such unlawful frustration of family court
jurisdiction with the best interests of the child.  There are no findings, and
nothing in the record to suggest, that Canadian information about the child
could not be reasonably available to the Vermont family court.  The only
extraordinary circumstance appearing in this case is mother’s criminal
contumacy, and this should not be a basis for Rule 60(b)(6) relief from
judgment when mother passed, for her own tactical reasons, two opportunities to
challenge the previous final judgments. 
¶
36.        
Having nothing extraordinary to explain its departure from
ordinary Rule 60 practice, the majority recites extensively from mother’s
allegations of abuse, as well as a visitation supervisor’s allegations of abuse
and a psychologist’s report based on those same allegations—all of which, after
some six proceedings spread across seven years, two states and the Province of
Quebec, remain wholly unproven.[13]  Mother failed to carry
her burden of proof at the relief-from-abuse hearing.  Mother failed to present
any evidence at the hearing on father’s motion to transfer custody.  Mother
elected not to offer evidence to the family court that contact with father was
contrary to the best interests of the child.
¶
37.        
The majority correctly holds that
the family court had subject matter jurisdiction under § 1032, and that the
family court could decline to exercise its jurisdiction in favor of a more
appropriate or convenient foreign forum under §1036.  But the majority is
incorrect to entirely recast mother’s Rule 60(b) motion as a challenge to the
forum as inconvenient or inappropriate, when the actual issue before the family
court, and this Court, was narrower: whether mother’s belated assertion of
subject matter jurisdiction in Canada—to the exclusion of Vermont—could justify
relief under Rule 60(b) from a judgment that she failed to challenge through
appeal.  That decision was discretionary, and the family court’s ruling must “stand
on review unless the record clearly and affirmatively indicates that such
discretion was withheld or otherwise abused.”  Bingham v. Tenney, 154 Vt. 96, 99, 573 A.2d 1185, 1186 (1990) (reiterating that Rule 60(b) determinations are
committed to the sound discretion of the trial court).
¶
38.        
While the procedural history of
this case may be long, it is punctuated by just a few critical events—each the
product of mother’s tactical choice.  Having hidden the child in Canada and secreted herself there, mother was duly served by publication, but failed to
appear for the hearing on father’s motions to modify and for contempt in August
2002.  Her default resulted in the family court’s September 19, 2002 order,
finding mother in contempt based on her willful violation of the earlier
custody order, and temporarily transferring child custody to father pending
further hearing.  Served with the contempt order in October 2002, mother chose
not to respond to the Vermont proceedings or otherwise challenge the family
court’s order for almost two years.  Instead, mother commenced proceedings in
the Canadian courts, eventually receiving a favorable custody ruling
there in May 2003.  In the Vermont proceedings, mother did respond to father’s motion for medical records in
2004, with her own motion to dismiss for lack of jurisdiction which was
dismissed as moot upon the court’s denial of father’s request.  Mother raised
no further challenge to the court’s jurisdiction or its custody order over the
next sixteen months.
¶
39.        
Then, in January 2006, upon
entering Vermont, mother was arrested and held on the contempt order.  In
February 2006, mother filed a motion to vacate the 2002 custody order on the
grounds that the court lacked jurisdiction.  The family court concluded that
Vermont did have jurisdiction over the matter and denied the motion, explaining
that mother’s “failure to offer evidence about this child’s present and future
needs, and her unilateral detention of this child in violation of this court’s
order should not operate to confer ‘home state’ jurisdiction in the place
[Canada] where mother has secreted the child.”  Mother appealed, but her appeal
was dismissed in April 2006 for her failure to comply with a scheduling order. 

¶
40.        
On June 16, 2006, mother filed her
motion for relief from judgment under Rule 60(b)(6).  Couched as a plea for
recognition and enforcement of the Canadian custody order as a matter of
international comity and adherence to the UCCJA, mother urged the family court
to resolve the “jurisdictional contest between the sovereign state of Canada and the State of Vermont” that had “yet never . . . been addressed by the Vermont courts.” 
Notwithstanding her invitation to respond to a conflict of international
proportions, mother’s invocation of Canadian jurisdiction as either exclusive
or more convenient was, according to our more mundane domestic law, too late
and properly denied.  
¶ 41.        
Mother was incorrect in claiming that
jurisdiction was not addressed by the family court until her June 2006 motion
for relief.  Mother raised lack of Vermont jurisdiction four months earlier in
her February 2006 motion to vacate the 2002 transfer of custody to father.  Her
argument was rejected, and final judgment on that question was entered against
her.  Mother failed to prosecute her appeal of the issue.  We have repeatedly
emphasized that Rule 60(b) “is not intended to function as a substitute for a
timely appeal.”  Donley v. Donley, 165 Vt. 619, 619, 686 A.2d 943, 945
(1996) (mem.) (quotation omitted).  Having failed to appeal the family court’s
denial of her jurisdictional complaint, and citing nothing extraordinary to
excuse that failure, mother was foreclosed from seeking consideration of that
matter through Rule 60(b).[14]
¶
42.        
The majority claims that mother’s Rule
60(b) motion afforded the family court an “opportunity” to consider the
discrete question of whether jurisdiction would be most appropriately
exercised by Canada rather than Vermont.  Ante, ¶ 22.  Mother, however, already had multiple opportunities to litigate this
claim and failed to raise it.  The issue of inconvenient forum under the UCCJA,
15 V.S.A. § 1036, on the same facts, was available to mother when she defaulted
on the motion to modify in 2002.  The issue was equally available to mother
when she moved to vacate the 2002 custody order in February 2006.  Examination
of mother’s pleading and memoranda reveals no such claim.  Where a party has an
opportunity to contest jurisdiction and fails to do so, “Rule 60(b)(6), which
normally affords relief only under extraordinary circumstances, is unavailing .
. . with respect to [the] jurisdictional claims.”  Donley, 165 Vt. at 620, 686 A.2d at 945.  This is because “simple failure” to raise jurisdictional
issues “is not an ‘extraordinary circumstance’ justifying relief from judgment
under Rule 60(b)(6).”  Town of Washington v. Emmons, 2007 VT 22, ¶ 7, __
Vt. __, 925 A.2d 1002 (mem.).  Even if the standards for exercising
jurisdiction in § 1036 of the UCCJA were somehow invoked by mother’s argument,
or by the family court’s decision, the ruling was not appealed and so could not
be raised anew under Rule 60(b).  See Donley, 165 Vt. at 619, 686 A.2d
at 945.
¶
43.        
Moreover, having failed to raise
the issue of inappropriate forum below, mother failed to preserve that question
for appeal.  The issue was not raised, nor was there any mention of § 1036 or
its grounds for family court deference to a more appropriate jurisdiction, in
her Rule 60(b) motion or in her appeal here.  Rather, in her Rule 60(b) motion
and on appeal, mother argued lack of subject matter jurisdiction—an argument
the majority rightly rejects here because the family court’s subject matter
jurisdiction was evident on the record.  Ante, ¶ 17.  To reach the
question of appropriate forum, the majority disregards established limitations
on appeal: (1) that claims not raised below will not be reviewed for the first
time on appeal, Greene v. Bell, 171 Vt. 280, 287 n.3, 762 A.2d 865, 871
n.3 (2000); and (2) that matters not briefed will not be considered on
appeal, State v. Settle, 141 Vt. 58, 61, 442 A.2d 1314, 1315 (1982).  “It
is our long standing rule that this court should not put the lower court in
error when the latter was not afforded the opportunity of considering and
acting upon the issue itself.”  Laird Props. New England Land Syndicate v.
Mad River Corp., 131 Vt. 268, 282, 305 A.2d 562, 570 (1973).  Instead, the
majority reconstructs mother’s failed appeal to present a different “critical
question” of the “more appropriate forum” and
then reverses the family court, not for an abuse of discretion, but for not
correctly answering a question that mother never asked.  Ante, ¶ 12
(quotation omitted).  
¶
44.        
Mother asserted no issue
actionable under Rule 60(b)(6).  The family court’s ruling on jurisdiction was
not appealed, so the jurisdictional issues may not be raised now through a
motion for relief from judgment.  See Kellner v. Kellner, 2004 VT 1, ¶
12, 176 Vt. 571, 841 A.2d 743 (mem.) (“Rule 60(b)(6) may not substitute for a
timely appeal . . . .”).  Furthermore, despite opportunities to do so, mother
never raised the issue of Vermont as an inappropriate forum, so the failure to
present that question to the family court was not an extraordinary circumstance
subject to review under Rule 60(b)(6).  See McCleery v. Wally’s World, Inc.,
2007 VT 140, ¶ 13, __ Vt. __, 945 A.2d 841 (mem.) (holding that issues that
could have been raised at trial or on direct appeal may not be asserted for the
first time in a Rule 60(b) motion).  Even if mother’s repeated claims of no
subject matter jurisdiction under § 1032 are treated as challenging the
appropriateness of the forum under the standards of § 1036, mother sought
no appeal from the family court’s ruling.  Thus, if the family court failed to
address the § 1032 claims as a § 1036 challenge, Rule 60(b) remained
unavailable to mother as a means for collateral attack on the judgment in lieu
of appeal.  McCleery, 2007 VT 140, ¶ 13.
¶
45.        
Rule 60(b)(6), a catch-all
provision, offers relief from judgment for “any other reason justifying relief
from the operation of the judgment” not already available under the Rule’s
several more specific grounds for relief.  See V.R.C.P. 60(b)(1)-(5).[15]
 Rule 60(b)(6) relief requires “extraordinary circumstances.”  Donley,
165 Vt. at 620, 686 A.2d at 945.  Extraordinary circumstances do not include,
as the family court recognized, the “free, calculated, and deliberate choice”
of mother to not appeal either the 2002 or the 2006 order.[16]
 See Estate of Emilo v. St. Pierre, 146 Vt. 421, 424, 505 A.2d 664, 666
(1985) (ruling that “clause (6) of [Rule 60(b)] may not be used to relieve a
party from free, calculated, and deliberate choices he has made”).  Nor is
there anything extraordinary about mother’s tactical choice to litigate subject
matter jurisdiction under § 1032, rather than argue that Vermont was an
inappropriate forum under § 1036.  That mother failed to appear at the custody
hearing in 2002, or might have pursued other tactics or arguments afterwards,
is similarly unremarkable.  See Kellner, 2004 VT 1, ¶¶ 12-13 (denying
Rule 60(b)(6) relief from a tactical decision that, in retrospect, was
ill-advised).  The family court’s denial of mother’s motion on these grounds
was entirely correct.
¶
46.        
The majority does not, and cannot,
point to any abuse of discretion in the family court’s denial of Rule 60(b)(6)
relief.  Vermont’s UCCJA mandates that the family court recognize an
out-of-state custody decree when the foreign court “assume[s] jurisdiction
under statutory provisions substantially in accordance with this chapter or
which was made under factual circumstances meeting the jurisdictional standards
of the chapter.”  15 V.S.A. § 1041.  Mother made no such showing here.  The
family court explained that it would not defer to the Canadian order because
mother failed to demonstrate that Canadian jurisdiction was exercised
compatibly to Vermont’s statutory standard.  That standard directs the court to
determine “if it is an inconvenient forum” by considering “if it is in the
interest of the child that another state assume jurisdiction,” and gives the
court discretion to weigh several factors including residence, family
connections and availability of evidence in the other state.  15 V.S.A. § 1036(c).
¶ 47.        
In contrast, the Canadian exercise of
jurisdiction was premised on the merits of the custody petition, different
substantive law, and on payment of child support.  The Quebec court recited
that it considered the best interests of the child, not in the context of
convenience to the child and geographic availability of relevant evidence as in
the UCCJA, but from its conclusion based on an expert’s report that contact
with the father was inadvisable.  The Quebec order also explained, essentially,
that its doctrine of forum non conveniens presumed that jurisdiction would not
be declined in favor of another forum, and that to do so would require an “exceptional
exercise” of its power.  The Canadian court declared, without description or
analysis, that the “judge ha[d] studied the pertinent facts and . . . concluded
that no other jurisdiction was manifestly more appropriate than Quebec.”  Reciting that the child’s best interests guided its tribunal, the Quebec order emphasized that best interests “consists in receiving as soon
as possible the child support to which he is entitled.”  These differences
are not, as posited by the majority, mere matters of form over substance, but
are different substantive standards quite apart from Vermont’s UCCJA.
¶
48.        
The Quebec order, on its face,
affirmed the exercise of Canadian jurisdiction on grounds substantially
different from Vermont’s UCCJA jurisdictional provisions.  The record confirms
that the Quebec court’s conclusion—that no other forum appeared more
appropriate than itself—was not based on standards or facts warranting the
exercise of jurisdiction under the UCCJA.  Thus, it was not error for the
family court to declare that it could not find that Canada exercised its
jurisdiction according to considerations substantially similar to the UCCJA
standards.  The family court was correct in pointing out that the Canadian
court considered none of the other factors set forth in § 1036(c).  Unable to
satisfy the statutory precondition to recognition of the foreign order, mother
was not entitled to its enforcement.  15 V.S.A. § 1041.  It was no abuse of
discretion for the family court to follow the dictates of the statute and deny
mother’s motion. 
¶
49.        
Even if we turn back the clock and
pose this as an appeal from a family court decision that Vermont was not an
inconvenient forum, the record below still supports such a ruling as wholly
within the family court’s discretion under § 1036.  The court did consider the
best interests of the child and concluded that mother absconded with him
to frustrate father’s parental rights, that her alienation of the child was
unjustified and the product of reasons “known only” to her and not supported by
the evidence.  Those facts did not recommend that it was “in the interest of the child that another state
assume jurisdiction.”  15 V.S.A. § 1036(c).  The family court’s findings
support its exercise of jurisdiction because, wherever the child was located,
it was only in furtherance of mother’s kidnapping and alienation of the child
from his father.  Mother’s refusal to respond to process precluded findings by
the court about the child’s “home state,” his connections to another state or
the availability of evidence.  Id. § 1036(c)(1)-(3).  These
findings are not challenged.
¶ 50.        
Had it appeared that mother settled the
child in another forum, the family court’s exercise of its jurisdiction still
did not “contravene any of the purposes of this chapter.”  Id.
§ 1036(c)(5).  Indeed, the family court’s insistence on exercising its
jurisdiction served the express purpose of the UCCJA to “discourage continuing
controversies over child custody in the interest of greater stability of home
environment and of secure family relationships for the child,” and to “deter
abductions and other unilateral removals of children undertaken to obtain
custody awards.”  1979, No. 136 (Adj. Sess.), § 1(4)-(5).  Even if, from the
viewpoint of the majority, mother was not “consciously forum-shopping in moving
to Canada,” ante, ¶ 20, there is no reasonable doubt that she was
consciously kidnapping the child in obvious derogation of an existing
parent-child contact order and Vermont’s UCCJA. 
¶
51.        
The 2002 findings were essentially
reiterated in the family court’s February 23, 2006 order denying mother’s belated
motion to dismiss for lack of subject matter jurisdiction.  Those findings
remain unchallenged.  Even imagining that the family court decided forum non
conveniens under § 1036, mother’s introduction of the Canadian court’s opinion—that
Vermont’s forum was no more appropriate than Quebec’s based on the child’s
residence and connections in Quebec—did not trump Vermont’s statutory and
family court interest in refusing to accept parental abduction and alienation
as being in the child’s best interests.  Another court more tolerant of
parental kidnapping might have balanced the § 1036 factors differently, but a “difference
in judicial opinion is not synonymous with abuse of judicial discretion.”  Dyer
v. Lalor, 94 Vt. 103, 116, 109 A. 30, 36 (1920) (quotations omitted). 
Deferral by the family court to Quebec as the child’s “home state” under the
unfortunate circumstances of this case would
lend judicial imprimatur to mother’s illegal detention of the child—exactly
what the UCCJA was intended to discourage, if not eliminate.  The family court did
not abuse its discretion in deciding not to defer to Quebec when, instead, its
own exercise of jurisdiction was expressly authorized by § 1036. 
¶ 52.        
Accordingly,
I would affirm the family court order.  I am authorized to state that Judge
Teachout joins in this dissent.
                                                                                                                        
 
 
                                                                
                   ____________________________________
                                                                
                   Associate Justice


[1]  The record shows that
mother had filed an earlier petition for relief from abuse in the Bennington
Family Court, which was denied in April 2000.


[2]  18 U.S.C. § 1204(a)
punishes by fine or imprisonment anyone who “removes a child from the United
States, or attempts to do so, or retains a child (who has been in the United
States) outside the United States with intent to obstruct the lawful exercise
of parental rights.”  We take judicial notice of the fact that, following a
jury trial in federal district court, mother was convicted of the charge in
July 2007.  As noted, infra, at n.11, the federal court subsequently
sentenced mother to time served on the state contempt adjudication.
 


[3]  Mother had filed a
similar motion with the Bennington Family Court in August 2004, apparently in
response to father’s motion for “disclosure of records” filed in July 2004. 
The court dismissed mother’s motion as “moot” based on its earlier order
denying father’s motion.   
 


[4]  The statute on which the
court relied, 15 V.S.A. § 1032, which is modeled on the Uniform Child Custody
Jurisdiction Act (UCCJA), provides that Vermont may exercise jurisdiction if:
(1) Vermont is the child’s “home state;” (2) Vermont jurisdiction is in the
child’s best interests, the child and at least one contestant have a
“significant connection” with the Vermont, and there is available in Vermont
“substantial evidence” concerning the child’s “present or future care,
protection, training, and personal relationships;” (3) the child is in Vermont
and needs emergency protection; or (4) no other state has jurisdiction or
another state has declined jurisdiction in favor of Vermont and it is in the
best interests of the child for Vermont to assume jurisdiction.  Id. § 1032(a)(1)-(4); see generally In re D.T., 170 Vt. 148, 151-52, 743 A.2d
1077, 1080 (1999) (discussing grounds for assertion of jurisdiction under
UCCJA).
 


[5]  Rule 60(b) provides
that, “[o]n motion and upon such terms as are just,” a court may relieve
parties from a final order on six separate grounds, including a catch-all
provision for “any other reason justifying relief from the operation of the
judgment.”  V.R.C.P. 60(b)(6); see Bingham v. Tenney, 154 Vt. 96, 99, 573 A.2d 1185, 1186 (1990) (Rule 60(b)(6) “is invoked to prevent hardship or
injustice . . . .”).
 


[6]  This section provides
that a court which has jurisdiction to make an initial or modification decree
may nevertheless decline to exercise its jurisdiction “if it finds that it is
an inconvenient forum to make a custody determination under the circumstances
of the case and that a court of another state is a more appropriate forum.”  15
V.S.A. § 1036(a).  In making such a determination “the court shall consider if
it is in the best interest of the child” to decline jurisdiction, and to this
end “may take into account the following factors, among others:
 
  (1) if another state
is or recently was the child’s home state;
  (2) if another state
has a closer connection with the child and his family or with the child and one
or more of the contestants;
  (3) if substantial
evidence concerning the child’s present or future care, protection, training,
and personal relationships is more readily available in another state;
  (4) if the parties
have agreed on another forum which is no less appropriate; and
  (5) if the
exercise of jurisdiction by a court of this state would contravene any of the
purposes of this chapter.
 
Id. § 1036(c).
 


[7]  This section provides,
in its entirety, as follows:
 
  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.
 
15 V.S.A. § 1051. 


[8]  Stoneman was
based, in part, upon a provision of the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), the successor to the UCCJA, which many states (though
not Vermont) have enacted, explicitly providing that a court deciding whether
to exercise jurisdiction may consider “whether domestic violence has occurred
and is likely to continue in the future and which state could best protect the
parties and the child.”  UCCJEA, § 207(b)(1). 
 


[9]  We have also recognized
that the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. §1738A(a),
applies equally to visitation and custody orders of another state, Miller-Jenkins
v. Miller-Jenkins, 2006 VT 78, ¶ 12, 180 Vt. 441, 912 A.2d 951, but there
is no claim here that the PKPA, a federal law for determining whether one state
must give full faith and credit to an order of another state, applies in this
international context.  See Edwards v. Edwards, 563 S.E.2d 888, 893 (Ga.
Ct. App. 2002) (holding that the PKPA “has no application” to custody dispute
involving Commonwealth of the Bahamas because it “is not a ‘state’ within the
meaning of this Act”); Ivaldi, 672 A.2d at 1231 (“[T]here is nothing in
the language or history of the PKPA suggestive of a congressional intent to
apply the statute to decrees issued by foreign” tribunals.); Ieronimakis,
831 P.2d at 183 n.7 (“[A]n examination of [the PKPA] reveals that it is not
applicable to international custody disputes.”); see generally R. Crouch, An
Intricate Maze of Child-Snatching Statutes, 23 Fam. Advoc. 29, 30 (2001)
(explaining that “[t]he PKPA brings to bear the rule of full faith and credit
between American states . . .  [which] has no application in international
cases”).  


[10]  We recognize that the
family court did not specifically address the forum non conveniens issue, but
where, as here, the record evidence is before us and the litigation has already
dragged on for years, a prompt resolution rather than a remand for further
findings serves the best interests of the child.


[11]  We also take judicial notice of the fact that, following mother’s
release from confinement on the state contempt adjudication, the federal
district court sentenced mother on the federal kidnapping conviction to time
served on the contempt charge.


[12]  The majority’s characterization
of this history as a “manipulation,” ante, ¶ 26, is simply
puzzling.  The unchallenged findings are expressly set forth in the family
court’s September 13, 2002 order, and are referenced again at length in its February
23, 2006 order.  The majority adds, correctly, that mother did obtain a
temporary relief-from-abuse order in Massachusetts in 2000 limiting father to
supervised visitation, but omits the Vermont family court’s finding that when
father contested and was in the process of litigating those issues and
restrictions, mother “removed herself from the jurisdiction” of Massachusetts. 
The family court’s findings, its chronology of events, and the fact that mother
abducted the child, are not disputed.  While these facts may not serve the
majority’s perception of the case, there is no manipulation of the settled
facts as found by the family court.


[13]  The psychologist’s
report, apparently based on information supplied by mother and an interview
with the child, simply assumes father battered mother and threatened his child,
and recommends against contact with father without some extended preparation. 
The Quebec court relied on the report in assessing its retention of
jurisdiction.  It cannot be determined from the record if the author, or
mother, was subjected to cross-examination, or if the report was subject to
challenge in Quebec.  It is clear from the record, however, that mother
presented no evidence of abuse nor evidence concerning the best interests of
the child to the Vermont family court.


[14]  The majority intones,
without evidence, that this is “one of those rare instances justifying relief”
and “does not represent an abandonment of the rule.”  Ante, ¶ 27.  As
acknowledged by the majority, the power to reform a judgment under Rule 60 in
special circumstances must be exercised “guardedly.”  Levinsky v. State,
146 Vt. 316, 318, 503 A.2d 534, 536 (1985).  Mother’s situation is no different
from the Rule 60 claim rejected in Levinsky, wherein this Court explained
that such extraordinary powers are not for situations where a litigant
“realizes he made an error in judgment,” and there is no showing “that mistake,
accident, or fraud prevented appellant from presenting a meritorious defense in
the original proceeding.”  Id. at 319, 503 A.2d at 537.  


[15]  These include
opportunity for relief on account of “(1) mistake, inadvertence, surprise or
excusable neglect; (2) newly discovered evidence . . . ; (3) fraud . . . ; (4)
the judgment is void; [and] (5) the judgment has been satisfied . . . or it is
no longer equitable,” provided that “[t]he motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more than one year after
the judgment.”  V.R.C.P. 60(b).
 


[16]  The family court’s
ruling refers only to mother’s failure to appeal the 2002 order, but mother
also failed to perfect and prosecute her appeal of the 2006 order.


