Kelly K. Fitzgerald v. James W.A. Jackson

Supreme Court

No. 2022-265-Appeal.
(W 19-2200M)

Kelly K. Fitzgerald :

v. :

James W.A. Jackson. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2022-265-Appeal.
(W 19-2200M)

Kelly K. Fitzgerald :

v. :

James W.A. Jackson. :

Present: Suttell, C.J., Goldberg, Robinson, and Long, JJ.

OPINION

Chief Justice Suttell, for the Court. This case concerns a child-custody

dispute between the plaintiff, Kelly K. Fitzgerald, and the defendant, James W.A.

Jackson, who is not represented by legal counsel before this Court. The defendant

appeals from an order declaring that the Rhode Island Family Court has jurisdiction

over the matter. This case came before the Supreme Court pursuant to an order

directing the parties to appear and show cause why the issues raised in this appeal

should not be summarily decided.1 After considering the parties’ written and oral

submissions and reviewing the record, we conclude that cause has not been shown

and that this case may be decided without further briefing or argument. For the

reasons set forth herein, we affirm the order of the Family Court.

1
Because defendant resides in Australia, oral arguments in this appeal were
conducted remotely through WebEx.

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I

Facts and Travel

We note at the outset that plaintiff is a United States citizen and defendant is

a citizen of Australia; the two minor children at the core of the custody dispute

appear to have dual citizenship of the United States and Australia. The children have

lived in Rhode Island with plaintiff since 2015. The parties were never married.

On April 26, 2019, plaintiff filed a miscellaneous petition for sole custody and

other relief. Therein, she requested that the Family Court (1) award her sole custody

and physical possession of her and defendant’s children; (2) award defendant

reasonable rights of visitation within the United States; (3) order defendant to pay

child support; (4) order defendant to maintain medical insurance coverage for the

benefit of both children; (5) order defendant to pay half of all uncovered medical,

dental, and optical expenses of the children; (6) order defendant to pay half of any

activity expenses incurred by the children; (7) deem Rhode Island to be the home

state of the minor children pursuant to the Uniform Child Custody Jurisdiction Act;2

and (8) award plaintiff attorneys’ fees, court costs, and lost wages.

2
We note that the Uniform Child Custody Jurisdiction Act (UCCJA) has been
repealed. Prior to the adoption of the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) in 2003, “the UCCJA was the statutory vehicle for
avoiding jurisdictional competition and conflict with other state courts in matters of
child custody.” Beauregard v. White, 972 A.2d 619, 626 (R.I. 2009) (citing Glynn
v. Meslin, 532 A.2d 554, 555 (R.I. 1987)).

-2-
The defendant filed an answer, requesting that plaintiff’s complaint be denied

and dismissed and asserting three affirmative defenses: lack of subject-matter

jurisdiction; lack of personal jurisdiction; and improper venue. In his answer,

defendant argued that the parties had a pending action in the Family Court of

Australia. The defendant indicated that he entered an appearance specifically for the

purpose of contesting jurisdiction. The defendant thereafter filed a memorandum of

law in support of his argument that the Family Court lacked subject-matter

jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiction and

Enforcement Act (UCCJEA), G.L. 1956 chapter 14.1 of title 15.

On March 26, 2020, a Family Court justice emailed counsel for both parties

urging them to collaborate in an effort to move the case to resolution; she also

scheduled a pretrial conference via telephone. After a June 4, 2020 pretrial hearing,

the justice entered an order setting up a video-conferencing schedule for defendant

with the children three times per week and allowing him to telephone the children at

any time. Soon thereafter, defendant filed a motion seeking joint custody of the

children and an order allowing him to return to Australia with the children. The

record reflects that the matter was referred to mediation and partially settled.

Another video-conferencing visitation order was issued by a second Family

Court justice in March 2021. In addition, defendant was ordered to pay child support

of $168 per week, retroactive to June 4, 2020, and plaintiff was ordered to obtain

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passports from Australia and the United States for the children. That order was

prepared by defendant.

The defendant filed several motions over the next few months, including a

motion to adjudge plaintiff in contempt for failure to obtain passports for the

children, a motion requesting in-person visits with the children in Australia, and

another contempt motion for plaintiff’s failure to cooperate with video-conferencing

visits. Those motions appear to have been heard; however, we were not provided

with a transcript of those hearings. On September 28, 2021, the hearing justice

granted counsel’s motion to withdraw his appearance on behalf of defendant;

defendant thereafter proceeded pro se.

The defendant then filed additional material with the Family Court over the

next several months, including: (1) a motion to compel an evidentiary hearing and a

finding of jurisdiction; (2) a “Notice to Court” containing allegations of ex parte

communications between the hearing justice and plaintiff’s attorney and

inappropriate behavior by the hearing justice; (3) an objection to temporary orders

regarding the children’s placement; and (4) a “Notice to Court” alleging that the

child support orders entered in January 2021 were void ab initio for lack of a

jurisdictional finding.

At a December hearing, the second hearing justice indicated that, among the

motions and statements that had been filed, defendant was challenging the Family

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Court’s jurisdiction. The hearing justice then scheduled an evidentiary hearing on

that issue. Counsel for plaintiff asked defendant whether “he receives the electronic

filings” from the court’s electronic portal and he indicated that he did. The hearing

justice invited the parties to file supplemental material or memoranda prior to the

hearing. She also asked defendant to advise the court of proceedings taking place in

any other jurisdiction. The defendant indicated that the case in Australia had been

dismissed.

A third Family Court justice continued the matter for further hearing. The

defendant filed a “Notice to Court,” explaining his view of various events, a motion

to dismiss for lack of jurisdiction, along with an accompanying memorandum and

affidavit, and a “Notice to Court” complaining of, among other things, delays and

the Family Court’s failure to rule on the issue of jurisdiction. Documents from the

Family Court of Australia were filed, indicating that the Australian court concluded

that it may not “exercise jurisdiction over matters relating to the parenting” of the

parties’ children.

At a hearing on April 28, 2022, the third hearing justice indicated that she

would only be “ruling today on the jurisdiction.” She took judicial notice of the

decision rendered by the Family Court of Australia, noting that there was no appeal

from that order, which was entered in April 2020. Reviewing the decision, the

hearing justice determined that:

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“The Court in Australia dismissed the case. They also
dismissed the February 3, 2020 application and, ‘all
outstanding applications are dismissed and all future
hearing dates are vacated.’ It states, ‘[t]he Family Court
of Australia may not, by virtue of the operation of the
Family Law Act of 1975, determine issues relating to
parenting of the subject children.’”

Indeed, after making findings of fact, the Australian court concluded that “the

Family Court of Australia may not exercise jurisdiction over matters relating to the

parenting of these children. * * * Therefore, the father’s application in relation to

parenting will be dismissed.” Accordingly, the third hearing justice determined that

“there is no jurisdiction for Australia to hear the case. They declined. They reviewed

it. They made a ten page -- the judge issued a ten-page order and findings in this

matter that Rhode Island has jurisdiction.” She therefore stated:

“I accept the findings of the Australian court, and I accept
that Rhode Island has jurisdiction because [plaintiff is] a
resident of Rhode Island; the children have been in Rhode
Island for seven years, and there does not appear to be any
other states involved with this family or these children.”

After the hearing justice pronounced her decision, defendant requested to have his

evidence heard as to jurisdiction, indicating that he was “given an evidentiary

hearing date.” The hearing justice replied “[o]h, no, you will have an evidentiary

hearing on the issue regarding your visitation or contact with the children.”

At a hearing on June 20, 2022, defendant continued to contest the issue of

jurisdiction. The hearing justice indicated that defendant could appeal the order

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resolving the issue of jurisdiction after it entered. She further stated: “I’m not

making any other decisions when the issue of jurisdiction is still being raised by the

Defendant.”

The defendant filed an emergency motion on June 27, 2022, seeking a summer

parenting schedule. He claimed that he attempted to resolve the issue with plaintiff,

but that she refused to cooperate. The plaintiff objected to the motion, claiming that

defendant was aware of the children’s schedules and that there was no emergency.

The hearing justice denied the motion. She noted that defendant was still contesting

jurisdiction, that no order had yet entered, and that the appeal period had not yet

started. She concluded that she would “not hear any motion until [the] jurisdiction

issue is resolved or consented to by the Defendant.”

An order was entered on July 25, 2022, giving full faith and credit to the

decision of the Australian court and also finding that the children had lived in Rhode

Island for seven years, and holding that the Family Court has jurisdiction to hear the

case. The order required that the children remain with their mother in Rhode Island

until further order of the court and that previous support orders would remain in

effect. In addition, it charged that “matters regarding visitation or placement issues

shall be continued for an evidentiary hearing in person.” The court appended a copy

of the Australian court’s decision to its order. The defendant filed a timely notice of

appeal from the order.

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II

Standard of Review

This Court reviews “de novo whether a court has subject-matter jurisdiction

over a particular controversy.” Sidell v. Sidell, 18 A.3d 499, 504 (R.I. 2011) (quoting

Long v. Dell, Inc., 984 A.2d 1074, 1078 (R.I. 2009)). The Court also reviews

questions of statutory interpretation de novo. Id. “[W]hen the language of a statute

is clear and unambiguous, this Court must interpret the statute literally and must give

the words of the statute their plain and ordinary meanings.” Id. (quoting Waterman

v. Caprio, 983 A.2d 841, 844 (R.I. 2009)).

Additionally, “we review a challenge to personal jurisdiction de novo.”

Martins v. Bridgestone Americas Tire Operations, LLC, 266 A.3d 753, 757 (R.I.

2022).

III

Discussion

The defendant raises numerous issues in support of his appeal. At the core,

defendant submits that the Family Court acted without subject-matter and personal

jurisdiction.

We address first the issue of subject-matter jurisdiction. The defendant

submits multiple arguments in connection with his subject-matter jurisdiction

challenge. Specifically, he submits that the court erred (1) in not ruling on

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jurisdiction immediately, pursuant to G.L. 1956 § 15-14.1-18, before proceeding in

the matter because there was a “simultaneous proceeding” occurring in Australia;

(2) in not declining jurisdiction by reason of conduct, pursuant to § 15-14.1-20;3 (3)

in canceling and not holding any evidentiary hearings with regard to jurisdiction,

pursuant to the United States Constitution; (4) in determining that the Family Court

of Australia found that the United States had jurisdiction over the matter because it

actually dismissed the case due to simultaneous proceedings; and, finally, (5) in

giving “full faith and credit” to the orders of the Family Court that predate July 25,

2022, because the court did not have jurisdiction.

3
General Laws 1956 § 15-14.1-20 states:

“(a) Except as otherwise provided, if a court of this state
has jurisdiction under this chapter because a person
seeking to invoke its jurisdiction has engaged in
unjustifiable conduct, the court shall decline to exercise its
jurisdiction unless:

“(1) The parents and all persons acting as parents
have acquiesced in the exercise of jurisdiction;

“(2) A court of the state otherwise having
jurisdiction determined that this state is a more
appropriate forum; or

“(3) No court of any other state would have
jurisdiction under the criteria specified in this
chapter.”

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“The authority of the Family Court over child-custody disputes is a question

of subject-matter jurisdiction.” Beauregard v. White, 972 A.2d 619, 626 (R.I. 2009).

“In Rhode Island, subject-matter jurisdiction of child-custody disputes is now set

forth in the UCCJEA, which provides rules for determining the proper forum in

child-custody proceedings that involve jurisdictional conflicts.” Id.

Section 15-14.1-13(a) of the UCCJEA provides that a Rhode Island court has

jurisdiction to make an initial child-custody determination only if:

“(1) This state is the home state of the child on the date of
the commencement of the proceeding, or was the home
state of the child within six (6) months before the
commencement of the proceeding and the child is absent
from this state but a parent or person acting as a parent
continues to live in this state;

“(2) A court of another state does not have jurisdiction
under subdivision (1) of this subsection, or a court of the
home state of the child has declined to exercise jurisdiction
on the ground that this state is the more appropriate forum
and:

“(i) The child and the child’s parents, or the child
and at least one parent or a person acting as a parent,
have a significant connection with this state other
than mere physical presence; and

“(ii) Substantial evidence is available in this state
concerning the child’s care, protection, training, and
personal relationships;

“(3) All courts having jurisdiction under subdivision (1) or
(2) of this subsection have declined to exercise jurisdiction
on the ground that a court of this state is the more
appropriate forum to determine the custody of the child; or

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“(4) No court of any other state would have jurisdiction
under the criteria specified in subdivision (1), (2), or (3) of
this subsection.”

The statute further provides that the above section is the “exclusive jurisdictional

basis for making a child custody determination by a court of this state.” Section

15-14.1-13(b). In addition, “[p]hysical presence of, or personal jurisdiction over, a

party or a child is not necessary or sufficient to make a child custody determination.”

Section 15-14.1-13(c).

The UCCJEA requires that Rhode Island courts “treat a foreign country as if

it were a state of the United States for the purpose of applying this chapter.” Section

15-14.1-5(a). Thus, “a child custody determination made in a foreign country under

factual circumstances in substantial conformity with the jurisdictional standards of

[the UCCJEA] must be recognized and enforced” unless the child-custody law of

the foreign country “violates fundamental principles of human rights.”

Section 15-14.1-5(b)-(c). There is no allegation before this Court or the Family

Court that Australian child-custody law violates principles of human rights. Indeed,

the hearing justice gave full faith and credit to the decision of the Australian court

and observed that Australian laws seem “very similar” to that of the United States

as to jurisdictional standards. We discern no error in this finding.

We therefore turn to application of § 15-14.1-13 of the UCCJEA, which

requires that one of the four listed conditions be satisfied in order for Rhode Island

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to make an initial child-custody determination. It is clear to us that, although only

one prong must be satisfied, several statutory factors support the exercise of

jurisdiction in this case.

The first prong requires that “[t]his state is the home state of the child on the

date of the commencement of the proceeding * * *.” Section 15-14.1-13(a)(1). This

condition is certainly satisfied because the hearing justice and the Australian court

found that the children have been living in Rhode Island since 2015. See id.

Furthermore, the Australian court determined that the children are “habitually

resident in the USA.”

The second, third, and fourth prongs implicate other possible fora; here, the

only other forum that might be appropriate is Australia. One of the children was

born in Australia, both children resided there until 2015, and their father—

defendant—is a resident and citizen of Australia. As observed by the hearing justice,

however, the Family Court of Australia declined to exercise jurisdiction over this

child-custody dispute. Indeed, in its decision, the Australian court determined that

“[t]he issue of the place of the children’s habitual residence is * * * paramount. The

Court may not exercise jurisdiction if the children are not habitually resident in

Australia.” The court went on to determine that “[t]he children are habitually

resident in the USA” and that, under the law of Australia, “the Family Court of

Australia may not exercise jurisdiction over matters relating to the parenting of these

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children.” The case was dismissed, and the record before us indicates that it was

never appealed.

We next address defendant’s argument that the Family Court “erred with years

of delay and in not ruling on jurisdiction immediately before proceeding with

anything else * * * when initially challenged in 2019, citing § 15-14.1-18[]

Simultaneous proceedings[] and given 2018 orders, in the ongoing Australian case

* * *.” Section 15-14.1-18 provides:

“(a) Except as otherwise provided, a court of this state may
not exercise its jurisdiction under this chapter if, at the
time of the commencement of the proceeding, a
proceeding concerning the custody of the child has been
commenced in a court of another state having jurisdiction
substantially in conformity with this chapter, unless the
proceeding has been terminated or is stayed by the court
of the other state because a court of this state is a more
convenient forum.

“(b) Except as otherwise provided, a court of this state,
before hearing a child custody proceeding, shall examine
the court documents and other information supplied by the
parties pursuant to this chapter. If the court determined
that a child custody proceeding has been commenced in a
court in another state having jurisdiction substantially in
accordance with this chapter, the court of this state shall
stay its proceeding and communicate with the court of the
other state. If the court of the state having jurisdiction
substantially in accordance with this chapter does not
determine that the court of this state is a more appropriate
forum, the court of this state shall dismiss the proceeding.”

The defendant’s argument pursuant to this section is moot. On April 27, 2022, the

Family Court was provided with a copy of the Australian court’s order and

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corresponding decision declining to exercise jurisdiction and dismissing the case

there on April 15, 2020. Both parties confirmed that there is no appeal pending in

that matter.

Accordingly, we hold that the Rhode Island Family Court has subject-matter

jurisdiction over the matter. The hearing justice did not err in her finding of the

same.4

We next address defendant’s argument as to personal jurisdiction. The

defendant appears to argue that the Family Court did not have personal jurisdiction

over him because he had no ties to Rhode Island “other than [that] his children were

hidden” here. This argument is unavailing. As noted above, the Family Court’s

authority over child-custody cases is a matter of subject-matter jurisdiction.

Beauregard, 972 A.2d at 626. “[A] state’s power to decide a custody matter does

not depend on its having personal jurisdiction over the parties, but rather depends on

its ability to adjudicate matters concerning the status of its citizens through quasi in

rem jurisdiction.” Henderson v. Henderson, 818 A.2d 669, 675 (R.I. 2003).

4
We note that defendant additionally argues that the Family Court should have
declined subject-matter jurisdiction by reason of conduct, pursuant to § 15-14.1-20.
This statutory provision, however, presumes that the Family Court has
subject-matter jurisdiction in the first place. See § 15-14.1-20. It also requires a
finding of “unjustifiable conduct,” which in turn necessitates an evidentiary hearing.
See id. As defendant has yet to be afforded such a hearing, he is not foreclosed from
raising the argument on remand.

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Furthermore, defendant waived the issue of personal jurisdiction and

consented to jurisdiction in Rhode Island because he availed himself of the laws of

Rhode Island by participating in mediation, filing a motion for joint custody, and

submitting a DR-6 form prior to a hearing on child support. See Ogden v. Rath, 755

A.2d 795, 799 (R.I. 2000) (father conferred personal jurisdiction in Family Court by

filing concurrent motion for legal custody of child); Houtchens v. Houtchens, 488

A.2d 726, 728 (R.I. 1985) (filing a motion for temporary support and custody

conferred personal jurisdiction over mother on the Family Court despite the

concurrent filing of a motion to dismiss on jurisdictional grounds pursuant to the

UCCJA); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985)

(noting that the “personal jurisdiction requirement is a waivable right” and there are

a variety of ways in which a party may give “express or implied consent to the

personal jurisdiction of the court” (quoting Insurance Corp. of Ireland v. Compagnie

des Bauxites de Guinee, 456 U.S. 694, 703 (1982))).

We turn now to defendant’s remaining arguments. The defendant submits

that his Fourteenth Amendment rights were violated because the Family Court held

secret remote hearings that were not open to the public “via the (DaCast) ‘Public

Judicial Live Steam’ [sic] * * *.” The transcripts provided by defendant indicate

that those hearings were conducted either remotely via WebEx and livestreamed or

in Washington County Family Court with the parties present via WebEx; therefore,

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the hearings were accessible to the public either in person or remotely. Indeed, at

one of the hearings, defendant asked whether the hearing was taking place on the

record because his “court watcher [was] not seeing anything.” The hearing justice

responded that they were “in open court,” and “any member of the public can come

and watch this matter,” but that they were “not on the internet.” There is no evidence

in the record that a “secret proceeding[]” took place.

Next, defendant claims that the Family Court should not have issued orders

regarding child support and custody without first making a jurisdictional finding.

The defendant cites Pukas v. Pukas, 104 R.I. 542, 247 A.2d 427 (1968), in support

of his argument that orders cannot be lawfully issued before the court has

jurisdiction, and they cannot be made retroactive. Such reliance is misplaced

because there was no jurisdictional issue raised or decided in that case. See generally

Pukas, 104 R.I. 542, 247 A.2d 427. Additionally, the argument is unavailing

because defendant himself filed a motion for custody, participated in mediation, and

submitted a DR-6 form prior to a hearing on child support. It was not until after

defendant’s attorney withdrew that he raised the issue of jurisdiction again.

The defendant also argues that his rights were violated because he has been

denied physical access to his children for the past three years. The case cited by

defendant in support of this argument is inapplicable to the case before us.

Furthermore, at the June 20, 2022 hearing, the hearing justice indicated that she

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“would certainly permit visitation for [defendant],” but noted that there was no

motion pending. She stated that there would need to be mediation and a hearing

regarding dates, terms, and conditions of visitation; however, the only issue before

her at that time was jurisdiction.

After the hearing, defendant filed an emergency motion for temporary orders,

apparently seeking visitation with the children during the summer. The hearing

justice denied this motion because defendant continued to assert that the Family

Court had no jurisdiction in this matter. She indicated that she would not hear any

motion until the question of jurisdiction was resolved.

We hold that the hearing justice erred in not ruling on the emergency motion

because, at the time, no order had been entered divesting the Family Court of

jurisdiction, and no appeal had been filed. It is well established that once an appeal

has been docketed in this Court, the lower court no longer has jurisdiction. See, e.g.,

Thompson v. Thompson, 973 A.2d 499, 513 (R.I. 2009). However, at the time of

defendant’s emergency motion, jurisdiction remained with the Family Court.

Finally, we address the defendant’s claims that future evidentiary hearings

should be held via WebEx rather than in person because he resides in Australia. The

order at issue indicates that “the matters regarding visitation or placement issues

shall be continued for an evidentiary hearing in person.” (Emphasis added.) Perhaps

it is somewhat redundant to say that a contested child-custody case is troubling,

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particularly in a case exacerbated by the fact that the father resides half a world away

from his children. The case before us has now been pending for over four years, yet

no evidentiary hearing on the fundamental issues of custody and visitation has taken

place. Such a hearing was scheduled but has not yet occurred. Now that this Court

has determined that Rhode Island may properly exercise jurisdiction, however, we

expect that the case will proceed as expeditiously as possible. We would,

additionally, suggest that, where possible, reasonable accommodations be made for

the noncitizen defendant in this global custody dispute.

IV

Conclusion

For the reasons set forth herein, we affirm the order of the Family Court. We

remand the matter to the Family Court for further proceedings consistent with this

opinion.

Justice Lynch Prata did not participate.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Kelly K. Fitzgerald v. James W.A. Jackson.

No. 2022-265-Appeal.
Case Number
(W 19-2200M)

Date Opinion Filed February 9, 2024

Justices Suttell, C.J., Goldberg, Robinson, and Long, JJ.

Written By Chief Justice Paul A. Suttell

Source of Appeal Washington County Family Court

Judicial Officer from Lower Court Associate Justice Laureen D'Ambra

Felicia A. Manni-Paquette, Esq.
Attorney(s) on Appeal
James W.A. Jackson, pro se

SU-CMS-02A (revised November 2022)