Valerie M. (McAndrew) Hogan
Philip A. McAndrew.
Kent County Family Court (K06-136) Sandra A. Lanni Associate Justice
ATTORNEYS ON APPEAL:
For Plaintiff: Barbara E. Grady, Esq.
For Defendant: Thomas M. Dickinson, Esq. Kathleen M. Hagerty, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
Maureen McKenna Goldberg Associate Justice
The defendant, Philip A. McAndrew (McAndrew or defendant) is before the Supreme Court on appeal from an order of a justice of the Family Court, declining to exercise jurisdiction over an ongoing custody dispute between the defendant and his former wife, Valerie M. Hogan (Hogan or plaintiff), on the ground of forum non conveniens. For the reasons set forth within, we vacate the judgment of the Family Court.
Facts and Travel
The parties, both dual citizens of the United States and the Republic of Ireland (Ireland), married in 1996. Their son, P.,  was born in 1999, C. arrived in 2000, and E., the youngest, was born in 2004. McAndrew and Hogan chose to part ways in 2006, and a divorce was granted in Rhode Island Family Court in 2008. In accordance with a property settlement agreement drafted by Hogan's attorney, the parties share joint custody of their three children, with Hogan having physical placement. The parties agreed that Hogan could return to Ireland with the children as early as 2009 and that McAndrew would exercise visitation with them in the United States and in Ireland. As part of the agreement, the parties stipulated that all future child-custody disputes "shall remain under the jurisdiction of the [Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A], [the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), G.L. 1956 chapter 14.1 of title 15, ] and that of the Rhode Island Family Court * * *." The property settlement agreement subsequently ripened into a final judgment of divorce, which included the agreed-upon forum-selection clause; it was entered by consent.
Hogan relocated to Ireland in 2009 with the children, while McAndrew remained in Rhode Island. He visited the children regularly in Ireland, and they spent two weeks with him in Rhode Island each summer. The children were with McAndrew in Rhode Island for their summer holiday in July 2014 when the current dispute before the Court arose. According to McAndrew, the two oldest children had alleged that Hogan had subjected them to physical and emotional abuse. The Irish Child and Family Agency (TUSLA) had become involved after P. reported an incident of alleged abuse to his school counselors. McAndrew claimed that P. and C. did not wish to return to their mother in Ireland. The two children and their younger sister, E., were scheduled to depart for Ireland, with Hogan, on July 16.
On July 9, 2014, McAndrew filed three motions in the Rhode Island Family Court: an ex parte emergency motion to modify custody and placement; a motion for an in camera interview of the three children; and a motion for an order requiring Hogan to submit to a mental health examination. The court granted the ex parte emergency motion. However, on July 16, notwithstanding the marital settlement agreement and the final judgment of divorce, Hogan sought to dismiss the action on the grounds that the Family Court lacked subject matter jurisdiction because the children had resided in Ireland continuously for more than five years. She also moved to vacate the ex parte order. The next day, July 17, at the expedited hearing on Hogan's motion to vacate the ex parte order,  the Family Court justice raised the issue of whether the Family Court was an inconvenient forum to hear the case. The court continued the matter to September 12 for a hearing on the issues of subject matter jurisdiction and forum non conveniens.
Meanwhile, Hogan turned to the High Court of Ireland (Irish High Court) for relief and instituted a special summons under Irish domestic legislation. In the special summons, Hogan sought "a declaration that Ireland is the place of habitual residence of the children, and that the Irish High Court has jurisdiction in all matters pertaining to their welfare, custody[, ] and access." On September 9, 2014, three days before the hearing scheduled in Family Court, the Irish High Court granted McAndrew's motion to stay the special summons proceedings. The Irish High Court concluded that "if [the Rhode Island Family Court] declines jurisdiction, the Irish proceedings will progress. If [the Rhode Island Family Court] assumes jurisdiction, the question of a stay of the Irish proceedings, pending a determination of the substantive matter, may come to be made in Ireland * * *."
Back in Rhode Island, on September 12 and 15, 2014, the Family Court heard the parties on the issue of jurisdiction. The following facts gleaned from testimony were not disputed. With the exception of yearly visits with their father, the children lived continuously in Ireland with Hogan from January 2009 to July 2014, while McAndrew has resided in the United States. Despite this distance, McAndrew spends multiple weeks with the children each year, with most of their time together being in Ireland. The children have attended Irish schools exclusively from the time they moved to Ireland until August 2014, when P. enrolled in school in Rhode Island. Both Hogan and the children have been receiving support services through TUSLA over the past few months. With the exception of health-care professionals who cared for the children during their stays in Rhode Island, all of the current medical doctors, psychotherapists, and social workers for the children, Hogan, or both are based in Ireland.
McAndrew testified on cross-examination that the parties' agreement that the Rhode Island Family Court would maintain jurisdiction was "vital" to his decision to assent to the children's relocation to Ireland. He testified that "[w]ithout it I would never have agreed to let them go. This was a consent agreement, and it was predicated on that very statement." He stated that allowing Irish courts to have jurisdiction would have been a "deal breaker, " because it was his contention that Irish courts generally do not recognize a divorced father's right to the joint custody of his children.
McAndrew further testified that he is a physician and a partner in a medical practice. He generally, but not always, receives a biweekly stipend regardless of whether he works during that period. McAndrew also testified to the approximate fair market value of his home, his monthly rental income, and the value of his 401(k) and investment accounts. He receives four weeks of vacation time each year. McAndrew also identified multiple potential witnesses based in Rhode Island who could testify to the quality of his relationship with his children. He testified that he was willing to cover the expenses of any witness who would travel to Rhode Island to testify in Family Court. He also asserted that certain testimony could be provided by teleconference.
Hogan testified that she is a per diem nurse at a local hospital. On average, Hogan's wages are eight times lower than McAndrew's. She does not receive paid vacation time from her employer and is not paid when she does not work. She recounted the difficulties she experienced in securing child care when she had to travel to Rhode Island for court appearances.
After hearing testimony from both parties, the hearing justice issued a bench decision in which she declared that the Family Court retained exclusive, continuing jurisdiction pursuant to the UCCJEA. However, the hearing justice went on to conclude that Ireland was a more appropriate forum for the dispute to be heard and declined to exercise jurisdiction on the ground of forum non conveniens. An order was entered in accordance with the bench decision.McAndrew timely appealed.
Before this Court, McAndrew argues that the hearing justice abused her discretion by not giving proper weight to (1) the mutually agreed upon forum-selection clause set forth in the property settlement agreement and in the final judgment and (2) additional factors enumerated under the UCCJEA.
Standard of Review
"The application of the doctrine of forum non conveniens leaves much to the discretion of the [lower] court." Kedy v. A.W. Chesterton Co., 946 A.2d 1171, 1185-86 (R.I. 2008). This Court will not disturb a decision to grant or deny a motion to dismiss on the grounds of forum non conveniens absent a showing of an abuse of discretion. Id. at 1186. However, this standard does not suggest that this Court merely endorses the findings made by the lower court. As the United States Court of Appeals for the First Circuit has explained:
"Judicial discretion is necessarily broad-but it is not absolute. Abuse occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them." Independent Oil and Chemical Workers of ...