In this case, the Massachusetts guardianship proceeding was not "pending" at the time the CHINS petition was filed in Vermont. See Cricenti v. Weiland, 694 N.E.2d 353, 356 (Mass.App.Ct. 1998) (proceeding is no longer "pending" under UCCJA following court's custody determination). Under § 1036 of the UCCJA, a court considering whether it is the appropriate forum to adjudicate a child custody matter over which it has jurisdiction "may" communicate with a court of another state before declining or retaining jurisdiction. As indicated by its permissive language, this section does not mandate communication between the courts.
"[T]he purposes and provisions of MCCJA and of [ 28 U.S.C. § 1738A (1988), the Parental Kidnapping Prevention Act (PKPA) ], as well as the interpretation of those statutes in Massachusetts and elsewhere, preclude the parties from conferring continuing jurisdiction on the Massachusetts court." Cricenti v. Weiland, 44 Mass. App. Ct. 785, 788 (1998). That the wife agreed "to vest continued jurisdiction in Massachusetts ... is of no significance. What is viewed as subject matter jurisdiction ‘cannot be conferred by consent, conduct or waiver.
Ibid. See Hillier v. Hillier, 41 Mass. App. Ct. 486, 488 (1996); Fortier v. Rogers, 44 Mass. App. Ct. 732, 733 (1998); Cricenti v. Weiland, 44 Mass. App. Ct. 785, 791 (1998). The MCCJA is similar, but not identical, to the Uniform Child Custody Jurisdiction Act (UCCJA).
The Worcester Probate Court did not lack in rem jurisdiction. Contrast Cricenti v. Weiland, 44 Mass. App. Ct. 785, 791 (1998). Restatement (Second) Judgments § 11 comment b recognizes that the term "subject matter jurisdiction" can "result in confusion."
[ Id.] See Hillier v. Hillier, 41 Mass.App.Ct. 486, 488, 671 N.E.2d 520 (1996); Fortier v. Rogers, 44 Mass.App.Ct. 732, 733, 693 N.E.2d 1058 (1998); Cricenti v. Weiland, 44 Mass.App.Ct. 785, 791, 694 N.E.2d 353 (1998)." In re Adoption of Yvette, supra, 71 Mass.App.Ct. 335.
Williams v.Attleboro Mutual Fire Ins. Co., 31 Mass. App. Ct. 521 (1991), citingPatry v. Liberty Mobilehome Sales, Inc., 15 Mass. App. Ct. 701 (1983) (even where parties are silent, courts must consider issue of subject matter jurisdiction suasponte). See Cricenti v.Weiland, 44 Mass. App. Ct. 785, 789-790 (1998) (subject matter jurisdiction cannot be conferred upon a court by consent, conduct or waiver). So ordered.
Allowance of the motion would have been dispositive of the claim, resulting in a final decision subject to appellate review under § 11C. Cf. Cricenti v. Weiland, 44 Mass. App. Ct. 785, 789-790 (1998) (subject matter jurisdiction cannot be conferred upon a court by consent, conduct or waiver); Williams v. Attleboro Mutual Fire Ins. Co., 31 Mass. App. Ct. 521 (1991), citing Patry v. Liberty Mobilhome Sales, Inc., 15 Mass. App. Ct. 701 (1983) (even where parties are silent on issue, courts must consider issue of subject matter jurisdiction sua sponte). According to the judge presiding at the pre-transcript conference, all parties agreed to treat the judge's order as a decision subject to an appeal to this board.