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Mitchell v. Hughes

June 29, 2000

WILLIAM A. MITCHELL, APPELLANT
v.
CHRISTINE R. HUGHES, APPELLEE



Before Wagner, Chief Judge, Terry, Associate Judge, and King, Senior Judge. *fn1

The opinion of the court was delivered by: Terry, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Evelyn E.C. Queen, Motions Judge) (Hon. Judith Bartnoff, Trial Judge)

Argued January 14, 1997

This is a custody dispute between the father and the mother of a minor child. A Superior Court judge awarded temporary custody of Dana Nicole Mitchell to her mother, appellee Christine Hughes; a few weeks later, another Superior Court judge awarded sole permanent custody of Dana to Ms. Hughes. Dana's father, appellant William Mitchell, contends that the court did not have in personam jurisdiction over him, that it erroneously rejected his claim of forum non conveniens, and that the court did not act in the best interests of the child. We affirm.

I.

Dana was born in the District of Columbia on November 20, 1993. Her parents were not and have never been married to each other. For the first ten months of her life, until September 1994, Dana lived with Ms. Hughes in a house on R Street, N.W. Mr. Mitchell resided in another part of the city from November 1993 to June 1994; for three months thereafter, until September 1994, he lived with his mother and sister in Bowie, Maryland, a nearby suburb of the District of Columbia.

In September 1994, during an unsupervised visit, Mr. Mitchell kidnapped Dana and took her to North Carolina. *fn2 Ms. Hughes immediately filed a petition for custody in the Superior Court; a few months later, on January 20, 1995, she filed an "amended complaint for permanent custody and child support." There is a dispute as to whether Mr. Mitchell was properly served with the amended complaint on February 1, 1995, at his mother's house in Bowie, Maryland, as the process server stated in his affidavit of service. Mitchell claims not only that he was never served with the summons and complaint, but that the process server did not have a place of business in the District of Columbia and that the alleged service was invalid for that reason as well. The trial court, after an evidentiary hearing on April 11, *fn3 ruled that the evidence did not support Mr. Mitchell's claim that he had not been properly served.

Ms. Hughes then obtained a temporary custody order from the Superior Court on May 15. While she was attempting to enforce the order in North Carolina, Mr. Mitchell on May 22 filed a "complaint for child custody" in a North Carolina court which made no mention of the May 15 order from the District of Columbia. As a result, the North Carolina court issued an emergency ex parte order the same day granting temporary custody to Mr. Mitchell, even though the May 15 order had been recorded five days earlier, on May 17, in the North Carolina court.

After a hearing in North Carolina on the enforceability of the conflicting orders, the order that Mr. Mitchell had obtained on May 22 was vacated in light of the prior order from the District of Columbia. The North Carolina court acknowledged the validity of Ms. Hughes' permanent custody order, but it temporarily stayed enforcement of that order in North Carolina to give Mr. Mitchell an opportunity to seek a more permanent stay in the District of Columbia.

On July 5, 1995, following a hearing, a Superior Court judge issued a permanent custody order in favor of Ms. Hughes, accompanied by detailed findings of fact and an express conclusion of law that it was in the best interests of the child to award custody to the mother. Mr. Mitchell noted the instant appeal and later filed a motion to stay enforcement of the order. The trial court denied that motion on August 31, noting that Mr. Mitchell had been given ample opportunity to present evidence at two earlier custody hearings on the issue of what would be in Dana's best interests, but had chosen not to do so. Additionally, the court ruled that Mr. Mitchell had failed to demonstrate that the July 5 permanent custody order was clearly erroneous or that there was any likelihood of success on his appeal from that order.

In the absence of a stay from the Superior Court, the North Carolina court ordered Mr. Mitchell to return Dana to Ms. Hughes. When he refused to do so, a contempt hearing was scheduled for September 5, 1995. Faced with the contempt proceeding, Mr. Mitchell turned Dana over to Ms. Hughes. *fn4 Mr. Mitchell has had both supervised and unsupervised visits with Dana since then, but she has remained in her mother's custody.

II.

Mr. Mitchell maintains that he was never served with either the original or the amended complaint for custody and child support, and that he never voluntarily submitted himself to the jurisdiction of the District of Columbia courts. He asserts (1) that he was not in Maryland at the time the amended complaint was allegedly served upon him there, and (2) that the process server was not a resident of the District of Columbia, did not maintain a place of business in the District, and thus was not authorized to serve the summons.

The Uniform Child Custody Jurisdiction Act, D.C. Code ยงยง 16-4501 et seq. (1997) ("UCCJA"), sets forth the manner in which service of process is authorized in a case such as ...


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