COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Elder 

Argued at Richmond, Virginia 

IRENE D'AGNESE (GOULETAS) 

 OPINION BY 

v. Record No. 2466-94-2 CHIEF JUDGE NORMAN K. MOON 

 MARCH 19, 1996 

VICTOR J. D'AGNESE 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 John K. Taggart, III (Patricia D. McGraw; 

Tremblay & Smith, on briefs), for appellant. 

 Victor J. D'Agnese, pro se. 

 Irene D'Agnese appeals the circuit court's ruling that it 

had jurisdiction over the issue of child custody in divorce 

proceedings initiated by Victor D'Agnese. Mrs. D'Agnese argues 

that the court was prevented from assuming jurisdiction under the 

Uniform Child Custody Jurisdiction Act (UCCJA) because at the 

time it did so, a custody proceeding was pending in Illinois. We 

agree and reverse the circuit court's decree insofar as it 

assumes jurisdiction over the issue of child custody. 

 Irene Gouletas and Victor D'Agnese were married on August 

24, 1978 in Chicago, Illinois. Mrs. D'Agnese's family resides in 

Chicago. Three of the couple's four children were born in 

Chicago. The family moved to Virginia in 1984, where their 

fourth child was born. The family resided in Virginia until 

1992. On March 3 of that year, Mrs. D'Agnese filed for divorce 

in Virginia, requesting custody of the children. 
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 On April 10, 1992, apparently without informing Mr. D'Agnese 

of her intentions, Mrs. D'Agnese took the four children to live 

with her family in Chicago. On April 20, 1992, Mrs. D'Agnese 

filed a petition for an order of protection with the Circuit 

Court of Cook County, Illinois. She claimed that the court had 

jurisdiction because the children were physically present in the 

state and it was necessary to protect them from mistreatment and 

abuse. In support of this claim, she described various acts by 

Mr. D'Agnese, including beating the children, holding a knife to 

her daughter's throat, and threatening to kill the family pets 

with a gun. Although the form petition requested information 

about other pending court actions between the parties, Mrs. 

D'Agnese did not advise the Illinois court that she had a 

petition for divorce pending in Virginia. On April 24, 1992, 

Mrs. D'Agnese voluntarily dismissed the Virginia divorce 

petition. 

 On April 20, 1992, the day Mrs. D'Agnese filed her petition, 

the Illinois court granted an emergency protection order. The 

order prohibited Mr. D'Agnese from entering Mrs. D'Agnese's home 

or office in Chicago and from removing the children from the 

state. The order also granted temporary custody of the children 

to Mrs. D'Agnese. Mr. D'Agnese was notified of this order after 

it was granted. On May 11, 1992, Mr. D'Agnese moved to dismiss 

on the grounds that the Illinois court was an inappropriate 

forum. The court refused to dismiss Mrs. D'Agnese's petition, 

and the emergency order was extended several times. 
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 On or about May 1, 1992, Mrs. D'Agnese filed for divorce in 

Illinois. Several days later, Mr. D'Agnese filed for divorce in 

Virginia. Mrs. D'Agnese's Illinois petition for divorce and the 

petition for a protective order were consolidated. Mr. D'Agnese 

did not answer the Illinois petition for divorce, and a judgment 

for dissolution of the marriage was entered on March 22, 1993. 

The Illinois court granted custody of the children to Mrs. 

D'Agnese and continued the order of protection. It reserved 

rulings on visitation, support, maintenance, and attorney's fees. 

 Mr. D'Agnese filed an appeal of the judgment, which was 

dismissed on February 25, 1994, apparently at Mr. D'Agnese's 

request. 

 On January 25, 1993, while both the Virginia and Illinois 

proceedings were pending, Mrs. D'Agnese filed a motion for 

abstention in the Virginia circuit court, asking that the court 

refrain from exercising jurisdiction due to the Illinois 

proceedings. On March 31, 1993, the Virginia trial judge issued 

a letter to the parties indicating that he had spoken with the 

judge in Illinois. The conversation took place after Mr. 

D'Agnese had defaulted in the Illinois divorce proceeding, but 

before the final decree was entered. The Illinois judge informed 

Judge Peatross that Mr. D'Agnese had made an appearance in her 

court that "was not a special appearance but one which resulted 

in in personam jurisdiction generally over the matter." 

 The judges agreed that Virginia had jurisdiction as the 

children's "home state" under the Uniform Child Custody 
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Jurisdiction Act. See Code § 20-126(A)(1); Ill. Rev. Stat. Ch. 

40, § 2104. They also agreed that Illinois would have 

jurisdiction if the requirements of the so-called "emergency 

jurisdiction" section of the UCCJA were met. See Ill. Rev. Stat. 

Ch. 40, § 2104; Code § 20-126(A)(3). The Illinois judge 

indicated that she had made findings of abuse or mistreatment in 

accord with that section, and that Mr. D'Agnese had not 

challenged those findings. Judge Peatross informed the Illinois 

judge that Mr. D'Agnese had denied abuse at a hearing before the 

Virginia court. However, Judge Peatross concluded that both 

courts "may take jurisdiction of the matter and it is a question 

of whether or not one of the courts should decline jurisdiction 

at this point in time." 

 On October 19, 1993, the Virginia court ruled that under 

Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362 (1984), it was 

the proper court to exercise jurisdiction under the UCCJA because 

Virginia was the children's home state. On August 11, 1994, the 

circuit court denied Mrs. D'Agnese's motion to dismiss Mr. 

D'Agnese's petition for lack of jurisdiction. 

 On November 4, 1994, the Virginia court issued a decree of 

divorce that affirmed that portion of the Illinois court's decree 

dissolving the parties' marriage. The court noted that Mrs. 

D'Agnese had preserved her right to appeal the court's retention 

of jurisdiction. The court awarded custody of the children to 

Mrs. D'Agnese. The issue of visitation was reserved pending 

reports by mental health professionals. The court later ordered 
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supervised visitation on a limited basis, to which Mrs. D'Agnese 

has objected. Mrs. D'Agnese appeals the circuit court's ruling 

that it had jurisdiction over the custody of the children. 

 We review the evidence and all reasonable inferences in the 

light most favorable to Mr. D'Agnese, the prevailing party in the 

trial court. The burden is on the party who alleges reversible 

error to show that reversal is justified. Lutes v. Alexander, 14 

Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). 

 Both Virginia and Illinois have adopted the UCCJA. Among 

the Act's purposes are to avoid jurisdictional competition in 

matters of child custody, to promote cooperation among courts of 

different states in custody disputes, to assure that litigation 

over the custody of the child ordinarily occurs in the state most 

closely connected with the child and his or her family, and to 

deter abductions and other unilateral removals of children 

undertaken in order to obtain custody orders. Middleton, 227 Va. 

at 93, 314 S.E.2d at 367. The child's welfare is the paramount 

concern for courts in determining the most appropriate forum for 

a custody dispute. Farley v. Farley, 9 Va. App. 326, 329, 387 

S.E.2d 794, 796 (1990). 

 Mrs. D'Agnese does not dispute that Virginia was the 

children's home state when these proceedings began. Instead, she 

argues that the Virginia court could not lawfully assume home 

state jurisdiction because a proceeding was pending in Illinois. 

 Under Code § 20-129(A), the Commonwealth "shall not" exercise 

jurisdiction where at the time the petition was filed, a 
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proceeding concerning the custody of the child was pending in a 

court of another state "exercising jurisdiction substantially in 

conformity with this chapter . . . ." This rule does not apply 

where the court in the other state decides to stay its proceeding 

in favor of the other court. Code § 20-129(A). Here, the 

Illinois court declined to stay its proceeding in favor of the 

Virginia court. 

 This section of the UCCJA was intended to avoid 

jurisdictional conflict by establishing a "priority in time" rule 

for simultaneous proceedings. See Elizabeth Carrington Shuff, 

Comment, The Uniform Child Custody Jurisdiction Act in Virginia, 

14 U. Rich. L. Rev. 435, 438, 442 (1979).1 Code § 20-129(A) 

applies only to proceedings in another state where the court is 

exercising jurisdiction "substantially in conformity" with the 

UCCJA. Here, the Illinois court issued a protective order 

pursuant to the emergency jurisdiction provision of the UCCJA. 

 

 1 A threshold question is whether Mrs. D'Agnese is 

entitled to invoke Code § 20-129 at all. Mrs. D'Agnese seeks 

application of the "priority in time" rule, yet her Illinois 

action was not the first in time. Her Virginia divorce petition, 

which requested custody of the children, was still pending at the 

time she filed in Illinois. She failed to inform the Illinois 

court of the Virginia proceeding, apparently because she had left 

instructions with her attorney to dismiss the Virginia proceeding. 

 It was in fact dismissed shortly after the Illinois petition was 

filed. 

 At the time Mr. D'Agnese filed his petition in Virginia, the 

proceeding initiated by Mrs. D'Agnese was pending in Illinois. 

These were simultaneous proceedings within the meaning of Code 

§ 20-129, and therefore that statute applies, even though the 

Illinois proceeding was not originally the first in time. See

Simpkins v. Disney, 416 Pa. Super. 243, 247-49, 610 A.2d 1062, 

1064-65 (Super. Ct. 1992). 
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Under that provision, the court may assume jurisdiction if the 

child is physically present in the state and it is necessary in 

an emergency to protect the child from mistreatment or abuse, 

either actual or threatened. Ill. Rev. Stat. Ch. 40, § 2104; 

Code § 20-126(A)(3). 

 In order to determine whether it was appropriate to defer to 

the Illinois court under Code § 20-129(A), the circuit court had 

to determine whether the Illinois court's exercise of 

jurisdiction was substantially in conformity with the Act. While 

the court appeared to have doubts about the legitimacy of the 

allegations of abuse, it nonetheless found in the letter opinion 

of March 31, 1993 that the Illinois court had obtained emergency 

jurisdiction. Once the circuit court so found, it was required 

to defer to the Illinois court pursuant to Code § 20-129(A). See

Coleman v. Coleman, 493 N.W.2d 133, 136 (Minn. Ct. App. 1992); 

Carpenter v. Carpenter, 326 Pa. Super. 570, 577-80, 474 A.2d 

1124, 1128-30 (Super. Ct. 1984). 

 In deciding to exercise home state jurisdiction even though 

an action was pending in Illinois, the circuit court relied on 

Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362 (1984). In 

Middleton, the Supreme Court held that a pending custody 

proceeding in England did not justify the circuit court's refusal 

to exercise home state jurisdiction. The Court warned against 

applying Code § 20-129(A) in a "wooden" manner where foreign 

jurisdiction had been obtained by one parent spiriting the child 

away from its domicile. Id. at 99, 314 S.E.2d at 371. However, 
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in Middleton there were no allegations of abuse, and the Court in 

effect held that the mother had "spirit[ed] the child away from 

its domicile" simply in order to obtain foreign jurisdiction. 

Id.

 If the Virginia circuit court had found that Mrs. D'Agnese 

took the children to Illinois simply to obtain jurisdiction in 

that state and not to protect them from abuse, it could have 

refused, under Middleton, to defer to the Illinois court pursuant 

to Code § 20-129(A). However, the court did not do so, but found 

instead that the Illinois court had obtained emergency 

jurisdiction. The circuit court therefore had no basis to refuse 

to defer to the Illinois court pursuant to Code § 20-129(A). 

 The Illinois court's exercise of emergency jurisdiction, 

which is temporary in nature, did not necessarily confer 

permanent jurisdiction over the custody issue. Indeed, a court 

that exercises emergency jurisdiction is generally required to 

defer to the court with the stronger claim to jurisdiction, 

usually the court in the home state. See Coleman, 493 N.W.2d at 

137, n.2; In re Marriage of Alexander, 252 Ill. App.3d 70, 72, 

77, 623 N.E.2d 921, 923, 926 (1993); Trader v. Darrow, 630 A.2d 

634, 638-39 (Del. 1993); Piedimonte v. Nissen, 817 S.W.2d 260, 

267 (Mo. Ct. App. 1991). Mrs. D'Agnese's counsel conceded at 

oral argument that the Illinois court had neither home state nor 

significant connection jurisdiction over the custody matter. 

 However, because the Virginia court was required to defer to 

the Illinois court under Code § 20-129(A), it was for the 
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Illinois court to determine whether its continued exercise of 

jurisdiction was appropriate. Any objection by Mr. D'Agnese to 

the jurisdiction of the Illinois court had to be made in 

Illinois. The Illinois court found that it had obtained personal 

jurisdiction over Mr. D'Agnese and consolidated the divorce and 

the emergency custody proceedings. The court issued orders on 

both dissolution and custody, and Mr. D'Agnese's appeal was 

dismissed. The Illinois order is now final, and that order 

cannot be collaterally attacked in the Virginia courts. 

 For the foregoing reasons, the judgment of the court 

assuming jurisdiction over the custody of the children is 

reversed, and the visitation order vacated. The case is remanded 

to the trial court for any further proceedings consistent with 

this opinion. 

 Reversed and remanded.