                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia


COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF SOCIAL SERVICES,
 DIVISION OF CHILD SUPPORT ENFORCEMENT,
 ex rel. FORSAKRINGSKASSAN INTERNATIONAL DIVISION-US,
 STOCKHOLM, SWEDEN
 FOR VACLAVA ZACKOVA,
                                            MEMORANDUM OPINION* BY
v.      Record No. 0813-06-4                 JUDGE JAMES W. HALEY, JR.
                                                 JANUARY 16, 2007
MILAN FRANTISEK ZACEK


                    FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                  Donald M. Haddock, Judge

                    Janice W. McDaniel, Special Counsel (Robert F. McDonnell,
                    Attorney General; Craig M. Burshem, Senior Assistant Attorney
                    General; Beth J. Edwards, Regional Special Counsel; Nancy J.
                    Crawford, Regional Special Counsel; Stephanie Cangin, Special
                    Counsel, on briefs), for appellant.

                    Milan F. Zacek, pro se.


          The Department of Social Services (Department) maintains the trial court erred in granting

Milan F. Zacek’s (appellee) motion for summary judgment by extending full faith and credit to a

January 23, 1998 “Judgment For Dissolution of Marriage” entered by the Circuit Court of the

Eighteenth Judicial Circuit, DuPage County, Illinois (Illinois judgment). Finding no error, we

affirm.




          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                FACTS

        On January 18, 2005, pursuant to a reciprocal agreement with a child support agency in

Sweden, the Department filed an initial Uniform Interstate Family Support Act (UIFSA) petition in

Alexandria Juvenile and Domestic Relations District Court (juvenile court) seeking a support order

for appellee’s two minor children. The support petition had been initiated in Sweden by the

children’s mother, Vaclava Zacek. The juvenile court denied that petition. Subsequently, the

Department filed a de novo appeal in the Circuit Court of the City of Alexandria (trial court). Prior

to the hearing on the merits, appellee filed a motion for summary judgment.

        Attached to appellee’s motion, and admitted into evidence, was a properly authenticated

copy of the Illinois judgment declaring, “This Court has jurisdiction of the parties to this case and

the subject matter thereof.” Additionally, the Illinois judgment granted appellee a divorce from

mother, divided property between them, and ordered:

                E. [Appellee] is granted sole custody of the minor children . . . .

                F. The issues of visitation and child support are reserved.

                G. [Appellee and mother] shall carry out all of the terms, provisions
                and conditions of this Judgment.

                H. This Court reserves jurisdiction of the subject matter of this case
                and of the parties hereto for the purpose of enforcing the terms of this
                Judgment.

        Also attached to the motion, and likewise admitted into evidence, was an indictment of

mother, returned August 5, 1998, by the grand jury of the same Illinois jurisdiction, for the felony of

child abduction of the two children. That indictment, and an accompanying warrant for mother’s

arrest, apparently remain outstanding. Appellee further relied upon provisions of the Parental

Kidnapping Prevention Act (PKPA) in his motion for summary judgment.

        At a hearing on the motion for summary judgment held on January 11, 2006, counsel for the

Department advised the court that, with respect to the Illinois judgment, “the court had only in rem
                                                  -2-
jurisdiction. It could only grant divorce. It could not in fact grant him the custody . . . . [O]ur

contention is [the Illinois judgment] was done without the proper jurisdiction.” In response,

appellee argued the Illinois court did have jurisdiction to grant him custody and asked the court to

give full faith and credit to the Illinois judgment. Counsel for the Department requested the matter

be heard on “February 10th when all of these issues are obviously in dispute will have the

opportunity to be fleshed out.” On that representation, the trial court denied appellee’s motion for

summary judgment.

        On February 10, 2006, the following exchange occurred:

                THE COURT:                       We had this motion for summary
                                                 judgment.

                ATTORNEY FOR
                THE DEPARTMENT:                  Yes, sir.

                THE COURT:                       And I denied it at that time.

                ATTORNEY FOR
                THE DEPARTMENT:                  Yes, sir.

                THE COURT:                       On your representation that you were
                                                 going to establish that the Illinois
                                                 court had no jurisdiction. Do you
                                                 recall that?

                ATTORNEY FOR
                THE DEPARTMENT:                  (no response)

                THE COURT:                       That was the basis on which I denied
                                                 it. He presented to me an Illinois
                                                 order granting him full custody of the
                                                 children. You argued against my
                                                 finding in his favor on summary
                                                 judgment on the basis that you were
                                                 going to establish the Illinois court
                                                 was without jurisdiction to enter such
                                                 an order. Do you recall that?

                ATTORNEY FOR
                THE DEPARTMENT:                  Yes, sir.

                                                  -3-
                COURT:                          Okay. But you’ve put nothing in your
                                                case to that effect . . . . [Y]ou’ve
                                                rested at this point, so I’m going to
                                                reverse myself on the summary
                                                judgment motion based on the fact
                                                that you told me that you were going
                                                to establish a lack of jurisdiction in the
                                                Illinois court. The Illinois court’s
                                                order is entitled to full faith and credit
                                                if it had jurisdiction.

                                             ANALYSIS

        Article IV of the Constitution states, “Full Faith and Credit shall be given in each state to

the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const. art. IV, § 1.

The Full Faith and Credit Clause, therefore, requires that “[a] judgment entered in one State must

be respected in another provided that the first State had jurisdiction over the parties and the subject

matter.” Nevada v. Hall, 440 U.S. 410, 421 (1979).

        Congress created the PKPA specifically to address the issue of full faith and credit as

applied to child custody determinations. 28 U.S.C. § 1738A (2006). The United States Supreme

Court summarized the effect of PKPA in Thompson v. Thompson, 484 U.S. 174, 177 (1988)

(footnotes omitted),

                Once a State exercises jurisdiction consistently with the provisions of
                the Act, no other State may exercise concurrent jurisdiction over the
                custody dispute, even if it would have been empowered to take
                jurisdiction in the first instance, and all States must accord full faith
                and credit to the first State’s ensuing custody decree.

See also Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 88, 95, 637 S.E.2d 330, ___ (2006). “[A]s

Congress explicitly specified, one of the chief purposes of the PKPA is to ‘avoid jurisdictional

competition and conflict between State courts.’” 484 U.S. at 177 (quoting Pub. L. 96-611, 94 Stat.

3569, § 7(c)(5) (1980)).

        To extend full faith and credit to a child custody determination, PKPA prescribes two

requirements that must be met by the original jurisdiction. First, the original court must have had
                                                  -4-
jurisdiction over the parties and the subject matter. See 28 U.S.C. § 1738A(c)(1) (2006); Hall, 440

U.S. at 421. Secondly, the court must satisfy one of five conditions, derived by Congress from the

Uniform Child Custody Jurisdiction Act (UCCJA), 9 U.L.A. §§ 1-28 (1979). See 28 U.S.C.

1738A(c)(2); Thompson, 484 U.S. at 181-82. Those conditions authorize the original court to

enter a custody decree “if the child’s home is or recently has been in the State, if the child has no

home State and it would be in the child’s best interest for the State to assume jurisdiction, or if the

child is present in the State and has been abandoned or abused.” Thompson, 484 U.S. at 177.

        Code § 8.01-389 provides that, when full faith and credit is at issue, “[t]he records of any

judicial proceeding . . . of any court of another state . . . shall be received as prima facie evidence.”

Where the record contains an order from a court of a sister state, “[j]urisdiction of the sister state’s

court is presumed unless disproved by extrinsic evidence or the record itself.” Bloodworth v. Ellis,

221 Va. 18, 24, 267 S.E.2d 96, 100 (1980) (citing Adam v. Saenger, 303 U.S. 59, 62 (1938)).1 The

party challenging jurisdiction “is under a heavy burden when attempting to establish the absence of

. . . jurisdiction.” Id. (citing Barber v. Barber, 323 U.S. 77, 86 (1944)).

        Furthermore, Illinois law establishes requirements nearly identical to those of the PKPA

and UCCJA to ensure proper jurisdiction, and the extension of full faith and credit, in child custody

determinations. 750 Ill. Comp. Stat. 36/201 (2006). The Illinois court’s jurisdiction, therefore, is

presumed unless disproved by extrinsic evidence offered to the trial court. Bloodworth, 221 Va. at

24, 267 S.E.2d at 100.




        1
         In Bloodworth, the Supreme Court of Virginia reversed a grant of summary judgment
based upon the extension of full faith and credit to a Pennsylvania judgment because the
individual challenging jurisdiction submitted evidence supporting his position that the
Pennsylvania court did not in fact have jurisdiction.
                                                -5-
        Because the Department presented no evidence on the question of jurisdiction at the

hearing, there was no “material fact . . . genuinely in dispute,” Rule 3:20, and summary judgment

was properly granted on the extension of full faith and credit to the Illinois judgment.2

                                                                                            Affirmed.




        2
          We note that lawful custody of a child is a condition precedent to the receipt of support
for that child.
                                                -6-
