Kimmons v. Heldt , 1983 Alas. LEXIS 457 ( 1983 )

RABINOWITZ, Justice,

joined by MATTHEWS, Justice, dissenting.

In my view, the California court lacked jurisdiction. Thus, it was erroneous for the superior court of Alaska to defer to the California court. The effect of the majority’s ruling in the instant case is to emasculate portions of the Uniform Child Custody Jurisdiction Act, which was devised in part to prevent a result such as that reached by the majority here.

The Uniform Child Custody Jurisdiction Act (Uniform Act) seeks to avoid jurisdictional conflicts by establishing specific rules which the adopting states are required to observe. In this case Heldt initiated custody modification proceedings in the California superior court only five weeks after Kimmons had sent Colin from Alaska to California. The only basis for jurisdiction in California is under § 3(a)(2) of the Uniform Act, which was omitted from the analogous section in Alaska’s version of the Uniform Act. See AS 25.30.020. This section reads:

A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(2) It is in the best interests of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships ....

9 U.L.A. 122 (1979). In Rexford v. Rexford, 631 P.2d 475, 478 (Alaska 1980) we said in part:

[Sjubject matter jurisdiction either exists or does not exist at the time when the petition is filed with the court.... Facts developed after that, such as the length of time the [child has] now been in California, cannot be considered when determining whether the court initially had jurisdiction to hear the action.¹

(Citation omitted.)

Thus, California jurisdiction must be tested as of January 7,1981.² The Commissioners’ Note to § 3 of the Uniform Act makes it clear that the exercise of jurisdiction by California as an alternative to home state jurisdiction in Alaska was erroneous, because the five-week history of the child in California provides a great deal less access to relevant evidence about Colin and his family than the immediately preceding thirty-four-month period he was living with his mother in Alaska. An observation in the Commissioners’ Note is of particular significance here:³

Paragraph 2 perhaps more than in any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in section 1. The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state. (Emphasis supplied in last two sentences.)

9 U.L.A. 124 (1979).

In my opinion, the question of optimum access and maximum rather than minimum contact as of January 7, 1981, can only reasonably be resolved in favor of Alaska.⁴

The question which remains is whether the superior court of Alaska properly deferred to the California court, despite the fact that California lacked jurisdiction. Under circumstances where California had no jurisdiction at all, it is inappropriate for the courts of Alaska to defer to the California courts.⁵ Rexford v. Rexford, 631 P.2d 475 (Alaska 1980), does not address this question. In Rexford we held that the deferral to California in a situation in which the California court did not have jurisdiction was appropriate. In Rexford we relied on the following Commissioners’ Note to § 6 of the Uniform Act.

While jurisdiction need not be yielded under subsection (a) [AS 25.30.050 in this state] if the other court would not have jurisdiction under the criteria of this act, the policy against simultaneous custody proceedings is so strong that it might in a particular situation be appropriate to leave the case to the other court even under such circumstances.

631 P.2d at 479, quoting 9 U.L.A. 135 (1979). Rexford failed to distinguish between the situation in which the court of another state has jurisdiction but is not exercising its jurisdiction under provisions substantially in conformity with the Alaska act, on the one hand, and where it does not have jurisdiction at all, on the other. Only in the first situation would deference by the Alaska courts be appropriate.⁶

1 . The fact that Kimmons participated in the California proceedings without objection has no bearing on the propriety of the California court’s assertion of subject matter jurisdiction. The conduct of a party cannot confer upon the court power to decide a case which it would not otherwise enjoy. Rexford v. Rexford, 631 P.2d 475, 478 (Alaska 1980).

2 . Alaska clearly has home-state jurisdiction under § 3(a)(1), AS 25.30.020(a)(1), since it was Colin’s home state for nearly three years (February 1978 through December 1, 1980), a period ending only five weeks before the petition was filed by Heldt in California.

3 .See also the following example given in the Commissioners’ Note:

If State 2, for example, was the state of the matrimonial home where the entire family lived for two years before moving to the “home state” for 6 months, and the wife returned to State 2 with the child with the consent of the husband, State 2 might weil have jurisdiction upon petition of the wife. The same may be true if the wife returned to her parents and her former home state where the child had spent several months every year before.

9 U.L.A. 124 (1979). In this example, the home state has only six months of contact while State 2 has more contact than the home state, even though it is not technically the home state. In the present case, that is not so, since the comparison is home state 34 months— State 2, five weeks.

4 . See Davis v. Davis, 53 N.C.App. 531, 281 S.E.2d 411, 416 (1981) (four weeks in California does not confer jurisdiction).

5 . In this situation, the judgment rendered by the second state is void and subject to collateral attack. Restatement (Second) of Conflicts of Laws § 105 (1971).

6 . In light of my conclusion that the California court lacked jurisdiction and that Kimmons properly commenced custody proceedings in Alaska, I would reverse the award of attorney’s fees to Heldt. I disagree with the majority that á remand on this issue is appropriate.