Opinion
No. A-12-315
01-29-2013
KENDRA J. CROWE, APPELLEE, v. BRYAN S. CROWE, APPELLANT.
Gregory J. Beal for appellant. No appearance for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Keith County: DONALD E. ROWLANDS, Judge. Reversed and remanded with directions.
Gregory J. Beal for appellant.
No appearance for appellee.
IRWIN, MOORE, and PIRTLE, Judges.
MOORE, Judge.
INTRODUCTION
Bryan S. Crowe appeals from the order of the district court for Keith County, which granted Kendra J. Crowe's motion to dismiss the contempt action filed by Bryan against her. Specifically, Bryan asserts that the district court erred in finding that Colorado should have jurisdiction of the case, since the decree had been registered by Kendra in Colorado, without following the Nebraska Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). We conclude that the district court erred in dismissing Bryan's contempt action without receiving evidence and making relevant findings under Nebraska's UCCJEA, and we therefore reverse and remand with directions.
BACKGROUND
In a 2006 dissolution action, Kendra was awarded custody of the parties' minor children, subject to Bryan's right of reasonable visitation. On March 26, 2009, the parties entered into a written stipulation, modifying the decree with respect to custody and visitation. The stipulation indicated Kendra lived in Colorado and Bryan was in Texas in the military at that time. On that same date, the district court entered an order approving the parties' stipulation, ordering that the parties share joint custody of the children, with primary physical custody remaining in Kendra, subject to Bryan's specified visitation.
The present appeal arises out of a contempt action initiated on December 15, 2011, by Bryan, when he filed an affidavit and application for an order to show cause in the district court, alleging that Kendra had denied him visitation as previously ordered by the district court. In his affidavit and application, Bryan stated that his address was in Big Springs, Nebraska. On December 16, the district court entered an order to show cause, directing Kendra to appear at a hearing on February 17, 2012, and show cause why she should not be held in contempt of court.
On February 16, 2012, Kendra filed a motion to dismiss which was also scheduled for hearing on February 17. In her motion, Kendra alleged that neither the parties nor their children had lived continuously in Nebraska for the previous 6 months. Kendra alleged that she and the children had resided in Colorado since 2007 and that Bryan, who left Nebraska in 2005, had only recently returned. Kendra also alleged that she had registered the parties' decree of dissolution as a foreign judgment in Colorado without objection by Bryan.
The hearing on Kendra's motion to dismiss was continued from February 17, 2012, until March 16. The bill of exceptions from the hearing shows that the court heard argument from counsel for both parties but that no evidence was actually received by the court. Kendra's counsel provided the court with some information about where the parties had been living. She also informed the court that her client had registered the decree as a foreign judgment in Colorado and that she had a certified copy from the Colorado court to offer as evidence. At this juncture, Bryan's counsel raised his concerns about the differences between registering a foreign judgment and transferring jurisdiction of a case under the UCCJEA. He argued that registering a foreign judgment provides for enforcement of the provisions of that judgment but does not act to divest the other court of its original jurisdiction. The court took the matter under advisement without receiving any documents into evidence, and it declined to hear an offer of proof from Bryan's counsel as to Bryan's activities and the locations in which he had lived. While the bill of exceptions states that exhibit 1, presumably a copy of the foreign judgment registration referenced during the course of the hearing, was marked for identification, the court did not receive exhibit 1 into evidence on the record, nor was a copy included in the bill presented to this court on appeal.
On March 21, 2012, the district court entered an order granting Kendra's motion to dismiss "as both [Kendra] and the minor children reside in Colorado and this case has been registered in Colorado." The court "release[d] jurisdiction to Larimer County Colorado as it is the home state of the children." Bryan subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Bryan asserts that the district court erred in (1) ruling that it has no continuing jurisdiction after a Nebraska judgment is registered in a foreign state in a domestic relations case involving child custody, support, and visitation; (2) sustaining Kendra's motion to dismiss the show cause order; and (3) ignoring the requirements set forth in Neb. Rev. Stat. § 43-1239 (Reissue 2008) as to how jurisdiction may be transferred to another state in a case involving child custody.
STANDARD OF REVIEW
The question whether jurisdiction should be exercised under the UCCJEA is entrusted to the discretion of the trial court and is reviewed de novo on the record for abuse of discretion by the appellate court. Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006). In considering whether jurisdiction existed under the UCCJEA, when the jurisdictional question does not involve a factual dispute, determination of the issue is a matter of law, which requires an appellate court to reach a conclusion independent from the trial court. Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).
ANALYSIS
The determinative question presented in this appeal is whether Kendra's registration of the decree as a foreign judgment in Colorado was effective in divesting the Nebraska district court of jurisdiction where the provisions of the UCCJEA were not followed. We conclude it was not.
Section 43-1239 of Nebraska's UCCJEA provides:
(a) Except as otherwise provided in section 43-1241, a court of this state which has made a child custody determination consistent with section 43-1238 or 43-1240 has exclusive, continuing jurisdiction over the determination until:
(1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.
We also note Neb. Rev. Stat. § 43-1244 (Reissue 2008) as it is relevant to our analysis of this case. Section 43-1244 provides:
(a) A court of this state which has jurisdiction under the [UCCJEA] to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or the request of another court.
(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside this state;
(3) the distance between the court in this state and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues in the pending litigation.
(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(d) A court of this state may decline to exercise its jurisdiction under the act if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
The Nebraska Supreme Court considered a similar situation to that found in this case in Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006). In that case, after the parties were divorced in Nebraska, the mother sought, and was granted, permission by the Nebraska court to permanently remove the children from Nebraska to Maryland. The mother then registered the Nebraska decree and related judgments in Maryland without objection by the father. When the mother sought permission from the Maryland court to modify the parties' visitation schedule, the father moved to dismiss, alleging that Nebraska had exclusive and continuing jurisdiction over the matter. The Maryland court denied the motion to dismiss, concluding that because the father had not objected to the registration of the decree and related judgments, he had waived his right to challenge Maryland's authority to enforce or modify such orders. The father appealed the Maryland court's determination.
The father in Watson also filed a motion for contempt in the Nebraska district court, alleging that the mother had refused to allow visitation. The mother filed a motion asking the Nebraska court to relinquish jurisdiction and transfer jurisdiction to Maryland, as well as informing the court of the registration in Maryland without objection by the father. The Nebraska court granted the mother's motion to transfer jurisdiction because of the registration of the decree in Maryland, finding that the Maryland court had determined that the mother and the children resided in Maryland and that Maryland was the more appropriate and convenient forum for determining child custody issues. The Nebraska court also denied the father's motion for contempt.
On appeal to the Nebraska Supreme Court, the father in Watson argued that the district court erred in not following the UCCJEA and denying his motion for contempt without hearing any evidence on the issue. The Nebraska Supreme Court determined that the district court had exclusive and continuing jurisdiction under the UCCJEA of the custody and visitation issues involved in the case because it made the initial child custody determination. The Supreme Court found that jurisdiction remained in the district court either until jurisdiction was lost under § 43-1239(a) or until the court declined to exercise its jurisdiction for the reason of an inconvenient forum. The Supreme Court also found error in the district court's reliance on the Maryland court's determination that it was the more appropriate and convenient forum. The Supreme Court found that pursuant to § 43-1239(a)(1), whether a court's exclusive and continuing jurisdiction has been lost is a determination to be made by a court of this state. Watson v. Watson, supra. The Supreme Court noted that the district court had not made any "determination [of] whether the children and one parent maintained a 'significant connection' to this state or whether 'substantial evidence' was available in this state" and thus concluded that the district court's exclusive and continuing jurisdiction was not lost under § 43-1239. Watson v. Watson, 272 Neb. at 655-56, 724 N.W.2d at 31. The Supreme Court further found that the district court had not properly exercised its discretion to relinquish exclusive and continuing jurisdiction pursuant to § 43-1244 because it had failed to consider the relevant statutory factors for relinquishing jurisdiction under that section. The Supreme Court also found that the district court erred in denying the father's motion for contempt. It noted § 43-1244(c) concerning the issuance of a stay "[i]f a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum . . . ." The Supreme Court reversed the judgment of the district court and remanded the cause with directions to hold an evidentiary hearing to determine whether it declined to exercise jurisdiction pursuant to the UCCJEA. The Supreme Court also instructed the district court that if it declined to exercise jurisdiction, it should stay the motion for contempt pursuant to § 43-1244(c). Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006).
In the present case, Kendra did not file a motion to relinquish jurisdiction and transfer the matter to another state as the mother did in Watson, but in support of her motion to dismiss the contempt action, she argued that the Nebraska district court no longer had jurisdiction because she had registered the judgment in Colorado where she and the children lived. The district court granted her motion to dismiss without receiving any evidence or making any findings under the UCCJEA. The court did not follow the requirements of either § 43-1239 or § 43-1244. This was error. Accordingly, we reverse, and remand with directions as stated below.
CONCLUSION
The district court erred in granting the motion to dismiss the contempt action and releasing jurisdiction to Colorado without having received evidence or making findings pursuant to the UCCJEA. Accordingly, we reverse the order and remand the cause with directions to hold an evidentiary hearing to determine (1) whether or not the court has lost jurisdiction under § 43-1239 and (2) if jurisdiction has been lost, whether the court declines to exercise jurisdiction under § 43-1244. If the court has not lost jurisdiction under § 43-1239 but declines to exercise jurisdiction under § 43-1244, it should stay the contempt action pursuant to that section.
REVERSED AND REMANDED WITH DIRECTIONS.