Bills v. Murdock , 232 Kan. 237 ( 1982 )

Schroeder, C.J.,

dissenting: The court has concluded the district court had no jurisdiction of this case under K.S.A. 38-1303(a)(2). With this conclusion I disagree.

Where does jurisdiction lie under the Uniform Child Custody Jurisdiction Act (K.S.A. 38-1301 et seq.) when Wyoming, the state which rendered the divorce decree, no longer has jurisdiction over the subject matter of the case, because the parties no longer reside there? That Wyoming no longer had jurisdiction is conceded by both parties and remains unchallenged on appeal to this court.

In this custody fight for Misty Dawn Bills between the mother, Shannon M. Murdock, and the father, Phillip Bills, the parties have moved numerous times since the divorce decree was entered in the State of Wyoming. Under these circumstances which state has jurisdiction is dependent upon a question of fact to be determined by the trial court. A recital of the facts, not set forth in the court’s opinion, upon which the trial court made the determination that Kansas had jurisdiction, is essential.

The record before this court contains the file from the district court, including the petition, answer, journal entry and order; the home studies made of each parent’s home; and the transcript on the hearing in which evidence was presented relevant to the change of custody issue.

The home studies are favorable to both parents. The study concerning the mother in Texas reflects that Misty Dawn, age five, resides with her mother and stepfather in Wichita Falls, Texas, in a three-bedroom mobile home with six other children. Mrs. Murdock stays at home with the children, who range in age from one month to ten years. Two children are Mr. Murdock’s from a previous marriage, one child is from a marriage of Mrs. Murdock’s prior to her marriage to Mr. Bills, and three children have been born of the Murdocks’ marriage. All the children are girls. Mr. Murdock’s income is approximately $25,000 per year. The report indicated that Misty Dawn was well cared for, loved and well adjusted in her home situation with her mother.

The home study concerning the father reflects that Mr. Bills and his wife have two daughters, one who is four months and the other two and one-half years. Mr. Bills is employed in a permanent position with the National Weather Service in Topeka, and earns approximately $30,000 per year. Mr. Bills and his wife own a home and appeared to the interviewer to be rational, mature people.

In addition to the information contained in the home studies, the following testimony was presented at the custody hearing. The parties resided in Wyoming when the divorce was granted and custody of Misty was awarded to the mother. In 1977 Mr. Bills transferred to Maryland and in 1978 he transferred to Topeka, where he has lived since that time.

Since the divorce Mr. Bills has visited with Misty in July 1977, one week in December 1978, two weeks in February 1979, three weeks in October 1979, four weeks in March and April 1980, from October to December 1980, and from June 1981 until this action was filed in August 1981. On one other occasion, in December 1977, the father attempted to have Misty come visit him, but the mother refused to permit the visit.

Mr. Bills’ present wife has a degree in education and taught for a year before their marriage. She now stays home with the children. Mr. Bills had enrolled Misty in kindergarten in Topeka during her last visit when this action was commenced. Pending the action, the district judge ordered Misty to be returned to her mother in Texas in accordance with the Wyoming decree.

Following the mother’s refusal in December 1977 to allow the father to have visitation with Misty, the father ceased paying child support. However, each time he would return Misty following a visit he gave the mother from $50 to $100. He also believed he and his wife had supplied most of Misty’s clothing.

The father expressed that he wanted custody of Misty because he believed that due to her home situation in Texas she was neglected and did not receive the attention she needed. He felt that Misty was starved for attention, and believed the mother had sometimes threatened to refuse to allow Misty to visit her father as a disciplinary measure to make Misty behave. Because the mother had moved so often Mr. Bills was concerned that the children were deprived of a consistent home environment, continuity in their education and opportunities to establish friendships with other children. Mr. Bills felt the mother discouraged visitations with Misty by requiring that the visitations be set up at her convenience. The father has always provided the transportation to and from Misty’s home in Texas for her visits with him.

Shannon Murdock testified they have lived at their current address in Wichita Falls, Texas, for five months, since purchasing their mobile home. Mrs. Murdock has moved her family numerous times since her divorce from the plaintiff in Wyoming. In reverse chronological order, the family lived in Iowa Park, Texas, approximately eleven miles from Wichita Falls, for a year during which they resided at two addresses; for short periods of time in Wichita Falls and Gringo, Texas; and at two separate residences in Columbia, Missouri, for a period of six or seven months. Prior to living in Columbia, the family lived in Marshall, Missouri, then Garden City, Kansas, and again in Marshall, Missouri, over a period of a year and one-half. Mrs. Murdock had moved to Marshall, Missouri, following her divorce from the plaintiff. The family planned to move again from Wichita Falls to Iowa Park to be nearer Mr. Murdock’s employment as soon as they could arrange for a lot for the mobile home.

Mrs. Murdock testified that it had been necessary for the family to make so many moves because their three-year-old daughter, born prematurely, had numerous medical problems, necessitating a number of major surgeries. They had moved to Texas to be near a children’s hospital in Dallas, where they felt the child could receive better treatment. Mrs. Murdock testified Misty shared a room with two of the other children. She denied ever refusing to allow the father visitation with Misty, and believed that because Misty was starting school it would be better for her to remain in Texas so that the daily routine would not be disrupted.

At the time of the hearing the mother had made four trips to Kansas in regard to the custody issue.

The court services domestic relations supervisor who had made the study of the father’s home, indicated to the court that he felt the child missed her father terribly, and wanted to visit her father more often. He thought Misty was afraid to express these feelings to her mother because she felt it made her mother angry. The child was obviously very sensitive about the subject, as she would cry and “hang on” to the interviewer when he would attempt to discuss the subject with her.

The court determined it had jurisdiction over the subject matter of this case under the Uniform Child Custody Jurisdiction Act, K.S.A. 38-1301 et seq. Under 38-1303(a)(2) the court found that the father and the child had a significant relation with Kansas in that the father was a permanent resident of the state, the child had visited the father a number of times here, including the past summer when the action was commenced, and that a significant parent-child relationship continued to exist between the child and father during the time he had been a resident of this state. Furthermore, the court had before it home studies from each parent’s home, the matter had been fully litigated within the state, and the court believed it would not serve the best interest of the child for the matter to be relitigated in the State of Texas. The court determined it was for the best interest and welfare of the child to make a final determination on the matter at this point, rather than to postpone a determination to permit Texas to hear the matter.

The trial court acknowledged that both Kansas and Texas had jurisdiction to hear the custody issue under K.S.A. 1303(a)(1) and (2). Apparently neither party challenged the court’s determination that Wyoming no longer has jurisdiction over the subject matter of this case. Under 38-1314 the custody decree rendered by Wyoming may be modified by a court of this state if the court has jurisdiction. K.S.A. 38-1314 provides:

“(a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree and (2) the court of this state has jurisdiction.”

When a case is filed under the Uniform Child Custody Jurisdiction Act (UCCJA), K.S.A. 38-1301 et seq., seeking modification of a custody decree rendered by a court of another state, it first must be determined whether the court in which the action was filed has jurisdiction, and if so, the court must decide if it should exercise its jurisdiction. Larsen v. Larsen, 5 Kan. App. 2d 284, 286-88, 615 P.2d 806, rev. denied 228 Kan. 807 (1980); Settle and Settle, 276 Or. 759, 764-65, 556 P.2d 962 (1976), (overruled on other grounds in Matter of Custody of Ross, 291 Or. 263, 630 P.2d 353 [1981]). Dowhanik v. Dowhanik, 43 Or. App. 379, 382, 602 P.2d 1127 (1979). The first determination, whether the court has jurisdiction, is governed by the provisions of 38-1303. The second decision, whether the court should exercise its jurisdiction, turns on the best interest of the child, Larsen v. Larsen, 5 Kan. App. 2d at 289-90; Smith v. Smith, 40 Or. App. 257, 261, 594 P.2d 1292 (1979), and rests within the discretion of the trial court. Larsen v. Larsen, 5 Kan. App. 2d at 292. K.S.A. 38-1307 provides guidelines for the trial court to consider in determining whether it is an inconvenient forum. Considerations by the trial court under 38-1307 are made only after it is found that a court of this state has jurisdiction under the Act.

I find the facts in Larsen to be strikingly similar to those involved here. The parties were divorced in Kansas in 1974, and custody of the two minor sons was granted to the father. The father moved to Minnesota with the children in 1975, and thereafter the children spent the summer months with their mother in Kansas. In 1979, after the children had been with their mother for two months for summer vacation, a motion for change of custody was filed by the mother in Kansas.

The well-reasoned discussion in Larsen concerning whether the trial court had jurisdiction under the UCCJA and whether the court should have exercised that jurisdiction under the inconvenient forum provisions of 38-1307, is highly relevant to this case. The court held that although Minnesota had jurisdiction over the matter, as it was the “home state” of the children under 38-1303(a)(1), Kansas had concurrent jurisdiction under 38-1303(a)(2). This section provides that this state may assume jurisdiction if it is within the best interest of the child because the child and one of the parents has a “significant connection” with Kansas and “substantial evidence” is available in the state concerning the children’s present or future care, protection, training and personal relationships. Because the mother had continued to reside in the state and the children were born in Kansas and had spent their early years here, substantial evidence as to their present and future well-being was available, providing Kansas with jurisdiction under the test in 38-1303(a)(2). The question was not whether jurisdiction existed under the facts of the case, but whether it should have been exercised. 5 Kan. App. 2d at 287-88.

K.S.A. 38-1307(c) provides that a court may decline to exercise jurisdiction if it finds it is an inconvenient forum and another state is a more appropriate forum. In determining whether it is an inconvenient forum the court shall consider what is in the best interest of the child, taking into account the following factors:

“(1) If another state is or recently was the child’s home state;

“(2) if another state has a closer connection with the child and the child’s family or with the child and one or more of the contestants;

“(3) if substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state;

“(4) if the parties have agreed on another forum which is no less appropriate; and

“(5) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in K.S.A. 38-1301.” (Emphasis added.)

In Larsen, the court examined cases from other states which had discussed the inconvenient forum provisions under the UCCJA, including Schlumpf v. Superior Court, 79 Cal. App. 3d 892, 145 Cal. Rptr. 190 (1978), which is relied on by the appellant in this case. In Schlumpf the court recognized that California had jurisdiction over the motion for change of custody where California had rendered the original decree and the mother had continued to reside there, even though for the nine years preceding the motion the children had lived with their father in Wyoming. However, recognizing that evidence concerning the best interest of the children was more readily available in Wyoming, including the relationship between them and their father, their relationship to their community, their education and the effect a change of custody would have on them, the California court declined to exercise jurisdiction until a determination could be made in Wyoming. 79 Cal. App. 3d at 901.

In applying the statutory factors set out in 38-1307(c), the Court of Appeals in Larsen determined that because the children had lived with their father in Minnesota for the five years preceding the motion, Minnesota probably had a closer connection with the children and evidence concerning them was more readily available there. However, evidence concerning the children’s present and future care, protection, training and personal relationships was available in both states, and evidence regarding the mother was more available in Kansas. Declining to follow the conclusion in Schlumpf, the court held that the trial court’s determination to exercise its jurisdiction under the provisions of 38-1307 was discretionary and would be upheld where the determination did not contravene the purpose of the UCCJA as set out in 38-1301. 5 Kan. App. 2d at 292-93.

Larsen appears to have been a borderline case, one in which a determination going either way could have been made. The obvious determining factor in the court’s decision, after careful consideration of cases from other jurisdictions going both ways, was the fundamental rule of appellate review — that where a trial court exercises a discretionary function, that determination will be upheld on appeal absent abuse in the exercise of that power of discretion. A similar conclusion was reached in In Re Marriage of Leonard, 122 Cal. App. 3d 443, 175 Cal. Rptr. 903 (1981). In that case California was the home state and the trial court found it was in the child’s best interest to exercise jurisdiction over the custody issue, even though a prior decree had been rendered by a Georgia court. The court held that because concurrent jurisdiction existed in California it was not error for the trial court to refuse to defer jurisdiction to Georgia, for the reason that whether a court chooses to accept jurisdiction or dismiss the proceeding on the ground of inconvenient forum is discretionary and will not be reversed on appeal absent abuse of that discretion. 122 Cal. App. 3d at 468-69. Other states have recognized where two states can exercise jurisdiction under the UCCJA exclusive jurisdiction is conferred on the court in which the matter is first raised. Petition of Edilson, 637 P.2d 362, 365 (Colo. 1981). See also K.S.A. 38-1306. This rule has been applied by this court in divorce proceedings where a custody determination is involved. Nixon v. Nixon, 226 Kan. 218, 221-22, 596 P.2d 1238 (1979), and cases cited therein. A thorough discussion of cases which have struggled with the jurisdiction and inconvenient forum provisions of the UCCJA can be found in Annot., Validity, Construction and Application of Uniform Child Custody Jurisdiction Act, 96 A.L.R.3d 968, §§ 5-7.

The facts in Beebe v. Chavez, 226 Kan. 591, 602 P.2d 1279 (1979), which is relied on by the appellant, are substantially different from those involved here. Following an Arizona decree awarding custody of the parties’ child to the mother, the mother moved with the child to Mexico and the father moved to Nebraska. While the mother was in Kansas visiting her parents, the father first instituted a neglect proceeding to have the child taken away from the mother, and then brought a habeas corpus action to have the child placed in his custody. It was held that the district court abused its discretion in holding an evidentiary hearing and changing custody to the father where no emergency situation existed, the mother and child were temporary visitors in the state, and Arizona had continuing jurisdiction over the matter. The court pointed out that under the UCCJA, enacted after the trial court’s determination was made, jurisdiction could not be conferred by mere presence in the state unless certain conditions existed requiring the court to exercise jurisdiction, such as in an emergency where the child needs to be protected or where no other state has jurisdiction. 226 Kan. at 599. The court further recognized that under the principle of comity where a sister state has previously assumed jurisdiction over a custody issue and no emergency exists, a Kansas court should decline jurisdiction.

The differences between the case at bar and Beebe v. Chavez are obvious. First the UCCJA was in effect at the time of the trial court’s decision in this case and is controlling. Secondly, the court in Reebe held that under Arizona law, Arizona had continuing jurisdiction over the matter. In this case, under the UCCJA, Wyoming no longer had jurisdiction. 38-1303. Thus, at the time this action was filed, no other state had assumed jurisdiction over the matter. Neither the rule of comity nor the UCCJA provision requiring a court to decline jurisdiction where a custody proceeding is pending in another state (38-1306) applies.

More importantly, the jurisdictional and procedural deficiencies found in the facts in Beebe are not present here. In Beebe the trial court apparently assumed jurisdiction on the sole fact the child was present in the state. Furthermore, the mother was denied fundamental rights of notice and an opportunity to be heard before the court’s decision was made. This is not the situation presented here. The father is a permanent resident of Kansas and the child has visited him here often, for periods of up to two months at a time. The child was residing in Kansas with the father at the time the custody motion was filed. The mother was served with process in Texas. A full evidentiary hearing was conducted and both parties were represented by counsel. The trial court specifically found:

“It should also be noted that the matter has been fully litigated within the State of Kansas and it would not seem to serve the interest of the child for it to be litigated within the State of Texas.”

The trial court closely followed the holding in Larsen. First a finding was made that Wyoming no longer had jurisdiction over the matter, and under 38-1314 a court with jurisdiction could modify the Wyoming order. The court next found specifically that it had jurisdiction under 38-1303(o)(2). In its journal entry these findings were stated in detail:

“[T]his court does have jurisdiction to render a decision concerning the custody of the parties’ minor child, in that the said minor child’s natural father lives in the state of Kansas, that the natural father has significant connections with the state of Kansas, that the minor child has significant connections with the state of Kansas, and that there is an ongoing and continuing parental relationship that exists within the state of Kansas concerning the said minor child.”

Thereafter, the trial court considered whether it should exercise jurisdiction, and specific findings of fact were made by the trial court. These are presented as they relate to the factors set out in 38-1307(c), the inconvenient forum provision.

(1) Texas was the child’s home state.

(2) No determination was made as to which state had a closer connection to the child or family. However, as the appellee points out, Texas arguably does not necessarily have a closer connection to the child and her family by reason of being the home state, in light of the number of times the mother’s family has moved within that state.

(3) Substantial evidence concerning the present or future care, protection, training and personal relationships was readily available in this state. The court had before it home study reports from each parent’s home, providing, among other things, information concerning the child’s home environment, family relationships, living conditions, the parties’ emotional stability, and care available for the child. Both parties had appeared in court with counsel and were given an opportunity to testify and present evidence concerning the interest and welfare of the child. It should be noted that although evidence concerning the mother was probably more readily available in Texas and evidence concerning the father more readily available in Kansas, it is doubtful that any additional evidence would have been available in a Texas proceeding that was not available or presented in the Kansas proceeding.

(4) Obviously no agreement had been reached by the parties to litigate the issue elsewhere.

(5) No determination was made by the court as to whether the exercise of jurisdiction would contravene the purpose of the UCCJA.

Based on these factors the court determined that it would serve the child’s best interest to make a final determination of the matter at that point, rather than to postpone a determination and allow the matter to be relitigated in Texas.

In conclusion, it is my opinion that Kansas has jurisdiction under the provisions of 38-1303, as determined by the trial court, and the decision whether to exercise or decline jurisdiction was within the discretion of the trial court. It is not shown that the trial court abused the exercise of its power of discretion.

A finding that another state may have a closer connection to the litigants is only one factor for the trial court to consider under 38-1307 in determining if it would be in the best interest of the child to defer jurisdiction to another forum. Although Texas arguably had a closer connection in this case, the trial court found that this state had sufficient interest in the issue and connection with the litigants to justify assuming jurisdiction. Where there is evidence to support the trial court’s findings, it is submitted this determination should be upheld.