RICHARD C. CRICENTI vs. PAULA WEILAND.

DREBEN, J. In the recent case of MacDougall v. Acres, 427 Mass. 363 , 371 (1998), the Supreme Judicial Court held that a Massachusetts judgment incorporating an agreement of the parties that the Massachusetts Probate and Family Court would retain jurisdiction over custody matters was ineffective by reason of G. L. c. 209B, the Massachusetts Child Custody Jurisdiction Act (MCCJA), and 28 U.S.C. s. 1738A (1988), the Parental Kidnapping Prevention Act (PKPA). We hold that, in this case,

Page 786

too, these statutory provisions require reversal of the judgment entered by a Massachusetts Probate judge, who, relying on an agreement of the parties, held the wife in contempt for filing a complaint for modification in Nebraska.

The issue arose in the following context. When the wife's second husband lost his position in Massachusetts and obtained employment in Nebraska, the wife, in October, 1994, filed a complaint in Massachusetts seeking permission to move to Nebraska with the two minor children of her first marriage. [Note 1] See G. L. c. 208, s. 30. She and her first husband (husband), then and now a resident of New Hampshire, negotiated an agreement permitting her to move to Nebraska on certain conditions. One of the conditions was:

"The Middlesex Probate & Family Court, Ginsburg, J. shall retain exclusive jurisdiction over the issues of custody, visitation, and enforcement of the terms of this agreement."

A judgment entered, on the same date as the agreement, "order[ing] . . . the parties . . . to comply with the terms of an Agreement dated November 22, 1994 filed, incorporated and merged in this Judgment." The wife and the children moved to Nebraska on March 1, 1995.

In October, 1995, the husband filed a complaint for contempt claiming that the wife had failed to send the two minor children to him for a four-day October visit as provided in the 1994 judgment. After hearing, the judge ordered the wife to send the children to the husband in October. The wife did not contest jurisdiction in that proceeding although at the time of the filing of the contempt action she had been living in Nebraska for more than seven months.

Notwithstanding the 1994 agreement and the judgment providing for exclusive jurisdiction in Massachusetts, the wife, on April 17, 1996, filed a petition in Nebraska to modify the terms of visitation. Under Nebraska law, as well as under the MCCJA, and the PKPA, Nebraska is the "home State" of the children and, as such, has jurisdiction. See note 6, infra. Notified

Page 781

of the action, the husband filed a complaint for contempt in Massachusetts on May 9, 1996. After a hearing, Judge Ginsburg, on May 15, 1996, noting that jurisdiction in Massachusetts was a condition of the wife's removal of the children, found the wife in contempt "by reason of her having initiated proceedings in the State of Nebraska seeking to have Nebraska assume jurisdiction over the parties' two minor children . . . notwithstanding this court's judgment." He enjoined her from proceeding in Nebraska, and ordered her to pay the husband's counsel fees and costs in connection with the contempt hearing and in connection with a motion filed by the husband in Nebraska asking that court to decline jurisdiction. [Note 2] Nebraska took the matter under advisement and has not, to our knowledge, taken any further action.

The wife moved for relief from judgment arguing that Massachusetts lacked jurisdiction under the MCCJA and was also precluded from exercising jurisdiction under the PKPA. The motion was denied on June 12, 1996, the judge, after hearing, ruling:

"The parties negotiated in good faith an agreement which allowed the wife to remove with the two children to Nebraska. As part of the negotiations the parties agreed that this court would retain jurisdiction of the child issues and the wife appointed her attorney as resident agent for service.

"At the time of the divorce and now, the husband lives in Amherst, N.H. which is ten miles across the border. He works for a company in Acton, Mass. 3 miles from the

Page 788

courthouse. Under the doctrine of continuing jurisdiction and because if someone could ignore the part of an agreement which she decided to change, parties would not be able to negotiate removal cases. This court feels that it should retain jurisdiction until the wife appears here and convinces the court to relinquish jurisdiction under the doctrine of forum non conveniens. If the husband has to go to Nebraska on the issue, one of the significant aspects of the separation agreement has been abrogated."

Whatever force the judge's arguments might have in the absence of statute, the purposes and provisions of MCCJA and of PKPA, as well as the interpretation of those statutes in Massachusetts and elsewhere, preclude the parties from conferring continuing jurisdiction on the Massachusetts court. MacDougall v. Acres, 427 Mass. at 368-371.

The husband argues that because the Massachusetts judge (in 1996) found that the wife was in contempt of the 1994 judgment, Massachusetts is the first court which adjudicated the custody dispute and that Nebraska is the second court. As such, it has no jurisdiction to modify the Massachusetts custody determination because Massachusetts has refused to decline jurisdiction based on the parties' expressed intent. That argument is foreclosed by Umina v. Malbica, 27 Mass. App. Ct. 35 1, 357 (1989), where we held that a modification proceeding is a new action for purposes of determining jurisdiction. In that case, we viewed "the date of the commencement of the custody proceeding" in modification cases (here, April 17, 1996) as the time when the request for modification was filed, see G. L. c. 209B, s. 2(a)(1), set forth in note 5, infra, and noted at 357-358:

"Neither the statutory language, reason, nor cases decided under the [MCCJA] support the single continuous proceeding approach. The statute speaks of 'jurisdiction to make a custody determination by initial or modification judgment' (emphasis supplied). Use of the disjunctive signals a legislative intention to treat modification proceedings as distinct from initial ones. Reason favors treating modification proceedings as separate and fresh ones because, if it were otherwise, jurisdiction would lodge perpetually with the State where the initial custody order had been made, potentially long after that State had any relevant contact with the child."

Page 789

Nor can the 1994 judgment together with the 1995 visitation order constitute pending proceedings in Massachusetts so as to preclude jurisdiction in Nebraska under Neb. Rev. Stat. s. 43-1206 (1995), Nebraska's analog to c. 209B, s. 2(d). [Note 3] The provisions barring the exercise of jurisdiction while a proceeding is pending in another State are "designed generally to apply to situations in which no custody determination has yet been made on a matter pending before a foreign court . . . ." Custody of a Minor (No. 3), 392 Mass. 728 , 733 (1984). Custody of Brandon, 407 Mass. 1 , 8-9 (1990). Since Massachusetts had already entered its custody orders in 1994 and 1995, there was no proceeding pending in Massachusetts after the 1995 judgment. Jurisdiction thereafter had to be determined under other sections of the act. See Uniform Child Custody Jurisdiction Act s. 6 comment, 9 U.L.A. 220 (1988) ("Once a custody decree has been rendered in one state, jurisdiction is determined" by sections other than the provision relating to pending proceedings.) See Wheeler v. Dist. Court, 186 Colo. 218, 221 (1974); In re Neville, 136 Or. App. 403, 406 (1995); Quenzer v. Quenzer, 653 P.2d 295, 302 (Wyo. 1982), cert. denied, 460 U.S. 1041 (1983); McCahey et al., Child Custody & Visitation Law and Practice s. 4.06[3], at 4-143 (1997). Indeed, it is Massachusetts that is barred from exercising jurisdiction by reason of c. 209B, s. 2(d), see note 3, supra, because of the pending action in Nebraska.

That the parties here attempted by agreement to vest continued jurisdiction in Massachusetts, or that the wife did not object to jurisdiction in 1995, is of no significance. What is viewed as subject matter jurisdiction "cannot be conferred by consent, conduct or waiver." MacDougall v. Acres, 427 Mass. at 371,

Page 790

quoting from Litton Bus. Sys. Inc. v. Commissioner of Rev., 383 Mass. 619 , 622 (1981). [Note 4]

Indeed, our cases have stated that, with the passage of G. L. c. 209B, the exercise of jurisdiction by a Massachusetts court over a custody determination must be based "solely on G. L. c. 209B." Redding v. Redding, 398 Mass. 102 , 106 (1986). Guardianship of Zeke, 422 Mass. 438 , 441 (1996). MacDougall v. Acres, 427 Mass. at 366.

In addition to the bar against exercising jurisdiction under s. 2(d), set forth in note 3, supra, there is here no statutory grant of jurisdiction. See G. L. c. 209B, s. 2(a), the relevant portions of which are set forth in the margin. [Note 5] When the wife

Page 791

filed her petition for modification of visitation on April 17, 1996, the children had lived in Nebraska for more than six consecutive months, having moved there in March, 1995. Accordingly, as we have indicated, Nebraska, and not Massachusetts, is the home State, and there is no jurisdiction in Massachusetts under s. 2(a)(1). [Note 6] MacDougall v. Acres, 427 Mass. at 368.

There is also no jurisdiction under s. 2(a)(2). "Massachusetts, unlike States more faithful to the UCCJA, does not explicitly reserve jurisdiction under a continuing jurisdiction or a 'best interest' provision." Umina v. Malbica, 27 Mass. App. Ct. at 358. Thus, under G. L. c. 209B, s. 2(a)(2), Massachusetts can only exercise jurisdiction if it appears that no other State would have "home State" jurisdiction. Since Nebraska has such jurisdiction, this provision is inapplicable. MacDougall v. Acres, 427 Mass. at 368-369.

In addition, by reason of 28 U.S.C. s. 1738A(d), set forth in the margin, [Note 7] Massachusetts is precluded from exercising jurisdiction. Since, as we have indicated, the Massachusetts court was called upon to adjudicate the custody dispute subsequent to the Nebraska court having been asked to do so, it must satisfy the jurisdictional demands of the PKPA. [Note 8] Delk v. Gonzalez, 421 Mass. 525 , 531 (1995). Hillier v. Hillier, 41 Mass. App. Ct. 486 , 488 (1996). Not only does Massachusetts not have jurisdiction under its own law, but the husband is a New Hampshire resident. Massachusetts does not remain "the residence of the child or of any contestant," as required by the Federal statute.

Page 792

The judgment of contempt is vacated and a new judgment is to enter dismissing the action for lack of jurisdiction.

So ordered.