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Due to what Mr. McKalip describes as a miscalculation of the divorce trial Judge, tens of thousands of dollars were added to the child support he was paying and the State of Illinois took away his drivers license almost two years ago. Mr. McKalip claims he has the "DNA evidence" of check copies, court orders and time lines that proves he was in fact "paid up", but he has been unable to get anyone to review his documents.

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This court held that 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. However, because the Virginia court was required to defer to the Illinois court under Code § 20-129(A), it was for the Illinois court to determine whether its continued exercise of jurisdiction was appropriate. 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.

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