Pilkington v. Pilkington

NICOLE PILKINGTON v. ROMAN PILKINGTON, II

No. 2766

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

November 15, 2016

UNREPORTED

Meredith, Leahy, Beachley, JJ.

Opinion by Leahy, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Nicole Pilkington (Appellant) challenges the Circuit Court for Harford County's jurisdiction to issue the underlying order awarding sole legal and primary physical custody of her child R.P., to her former husband, Roman Pilkington, II (Appellee). Ms. Pilkington is a citizen and current resident of Germany. Mr. Pilkington is a Sergeant in the United States Army, and the transience of his residences in that service underlies the issues at the crux of this case.

The parties met in 2003 in Germany where they got married and became the parents of R.P. During the time the married couple lived in Germany, Ms. Pilkington also gave birth to B.P., who, it was later determined, was not the biological child of Mr. Pilkington. The parties moved to Colorado, where they divorced two years later and entered into a court-ordered custody plan for R.P., awarding Ms. Pilkington primary physical custody.¹ After another three years, Mr. Pilkington moved to Maryland, where he currently resides.

In 2014, Ms. Pilkington took B.P. and R.P. to Germany for a month-long vacation, and then decided unilaterally to stay in Germany and enroll both children in school there, in violation of the Colorado court's custody order for R.P. Nineteen months later, when Ms. Pilkington allowed R.P. and his sister to visit his father in Maryland, Mr. Pilkington sought judicial intervention. He filed two emergency custody petitions in the Circuit Court for Harford County for R.P. and B.P.

At the emergency custody hearing, Ms. Pilkington appeared through counsel and challenged the court's jurisdiction under the Maryland Uniform Child Custody Jurisdiction and Enforcement Act ("Maryland UCCJEA" or "Act"), Maryland Code (1984, 2012 Repl. Vol.), Family Law ("FL") § 9.5-101 et seq. The court decided it could exercise jurisdiction under the Act, but ordered Mr. Pilkington to return the children to Germany until the court could conduct a full trial. Once the children were back in Germany, Ms. Pilkington broke off all communications and did not participate in any further court proceedings preceding this appeal. In response, the circuit court determined that Ms. Pilkington's behavior was inconsistent with R.P.'s best interest and awarded sole legal and primary custody of R.P. to Mr. Pilkington.

Ms. Pilkington presents the following issues:

1) "Whether the lower court erred when it modified custody without subject matter jurisdiction."

2) "Whether the lower court erred and violated the Mother's due process rights and fundamental liberty interest in the care, custody and control of her son in violation of the United States Constitution, the Maryland Declaration of Rights and Maryland statutory and case authority when it failed to provide the Mother notice and an opportunity to be heard."

3) "Whether the lower court erred and violated the Mother's due process rights and fundamental liberty interest in the care, custody and control of her son when it exceeded the authority afforded it by the Maryland Rules."

4) "Whether the lower court abused its discretion when it modified and changed custody without holding a hearing and without any factual findings."

We hold that the circuit court in this case exceeded the jurisdictional restraints imposed under the Maryland UCCJEA by entering an order that modified a foreignjurisdiction's existing custody order when Maryland was not the child's home state and there was no other jurisdictional basis to modify an existing order under FL § 9.5-203. We, therefore, must vacate the circuit court's order and remand the case with instructions that the court limit itself to the authority contained in the Maryland UCCJEA's enforcement subtitle.

BACKGROUND

A. The Marriage and Divorce

Mr. Pilkington met Ms. Pilkington, a German national, while he was stationed with the United States Army in Schweinfurt, Germany. On May 23, 2003, the couple married in Niederwerrn, Bavaria, Germany, where they lived until December 2008 when the Army transferred Mr. Pilkington to Colorado Springs, Colorado. During their marriage and while the couple still resided in Germany, Ms. Pilkington gave birth to two children: B.P., born in 2004, and R.P., born in 2006. The couple remained married until October 28, 2010, at which point they obtained a Decree of Dissolution of Marriage ("Colorado Order") in the District Court for El Paso County, Colorado. A paternity test at the time of the parents' divorce proved that Mr. Pilkington is not B.P.'s biological father, although her birth certificate identifies him as the father. R.P. is Mr. Pilkington's biological son.

The Colorado Order incorporated a parenting plan for R.P., which set child support, provided Ms. Pilkington with primary physical custody of R.P., and granted Mr. Pilkingtonweekend visitation during the school year and a total of 170 overnights per year.² The Colorado Order also required that either parent wishing to relocate the child must "file a Motion with the Court . . . and obtain court permission to relocate, unless the parties have submitted to the Court a written agreement/stipulation[.]"

B. Custody, Visitation & the Underlying Dispute

After living separately in Colorado for almost three years, the Army transferred Mr. Pilkington from Colorado Springs to Aberdeen Proving Ground, Maryland, in October of 2013. The children remained in Colorado with Ms. Pilkington from October until their school's Christmas break, at which point they traveled to Maryland to spend the holiday with Mr. Pilkington. Then, at Ms. Pilkington's request, Mr. Pilkington provided Ms. Pilkington with written permission allowing her to take the children to visit her family in Germany from January 25, 2014 to February 20, 2014.³ Once in Germany, Ms. Pilkington decided unilaterally to remain there with the children and enroll them in a German primary school. She did not ask Mr. Pilkington for a joint stipulation to amend the parental plan, nor did she seek the Colorado court's permission to relocate the children pursuant to the Colorado Order. That summer, Mr. Pilkington travelled to Germany to visit the children.He returned to Maryland two weeks later without having sought a court order to enforce his custody rights.

A year passed before Mr. Pilkington would see the children again. At no point in the meantime did Mr. Pilkington file a motion in any court for the children's return. The following summer, with Ms. Pilkington's permission, Mr. Pilkington flew to Germany to pick up the children to bring them to Maryland from June 29, 2015, until September 11, 2015, at which point they were to return to Germany. When the time came for the children to return to Germany, Mr. Pilkington took the children only as far as Philadelphia International Airport. Once at the airport, Mr. Pilkington claims the children were upset to leave him so he took them back to Maryland where he enrolled them in school.

C. The Emergency Custody Hearing

Ten days after the children were supposed to fly back to Germany, Mr. Pilkington, through counsel, sent Ms. Pilkington notice electronically, advising her that he would be filing an "Ex Parte Petition for Emergency Custody in the Circuit Court for Harford County on September 24th, 2015 at 8:30 a.m." Two days later, Mr. Pilkington again sent Ms. Pilkington and her Maryland counsel notice of the action and certification of service—this time by both email and regular mail. Then, on September 24, 2015, Mr. Pilkington filed his petition for temporary custody of R.P. and a corresponding affidavit in compliance with the requirements for a petition to enforce child custody determination.⁴ Mr. Pilkingtonbrought his petitions pursuant to FL §§ 9.5-204 and 9.5-304, as well as § 9.5-303, and filed his affidavit of compliance pursuant to § 9.5-308 of the same title.

Mr. Pilkington's complaint alleged that Ms. Pilkington kept the children in Germany in disregard of the Colorado Order, depriving Mr. Pilkington of his rights therein. Mr. Pilkington asked the court "to issue a temporary order enforcing the visitation schedule made by the Colorado court until such time that the foreign judgment can be registered in Maryland, and order that [he] be awarded primary physical custody of [R.P.] on a pendente lite basis." Mr. Pilkington only sought custody pendente lite because, he reasoned, that if granted, "Maryland [would] become the 'home state' of [the children] in December 2015.⁵

That same day, the circuit court held an emergency custody hearing. As an initial matter at the hearing, Ms. Pilkington appeared through counsel and questioned the court's subject matter jurisdiction to hear the case under the Maryland UCCJEA. The court observed: "If [the children] had gone from Colorado to Maryland, I would agree one hundred percent that you are in the wrong court. Since they had that year span or year plus over in Germany, then under the [Maryland UCCJEA] there really isn't any state in this country that has clear, pure six month jurisdiction." Mr. Pilkington's counsel acknowledged the home state issue, noting: "Due to the home state issue of six months, I was going to file that in December when that time comes." Ultimately the court found that it had jurisdiction:

Under the [Maryland UCCJEA] -- once again, if we didn't have that little intercession in Germany for over a year, clearly we wouldn't [havejurisdiction] and I would tell you all to pack your bags and go see beautiful Colorado. . . . But we do have that. So, if you look at what state in the union has any [jurisdiction], there is really no longer one that is

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