In Re The Marriage Of: Simon Pedersen v. Lone Pedersen ( 2014 )

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON to 0^
In the Matter of the Marriage of No. 69265-8-1
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SIMON PEDERSEN, DIVISION ONE
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Respondent, UNPUBLISHED OPINION
and
LONE PEDERSEN, FILED: February 3, 2014
Appellant.
Leach, C.J. — Lone Pedersen1 appeals a trial court order that no further
proceedings in this case shall be brought in Snohomish County Superior Court.
Lone claims that by declining all jurisdiction following her daughter's relocation to
Norway to live with her, the trial court has unfairly denied her access to the court.
The child's father, Simon Pedersen, responds that the court's order was proper
under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
chapter 26.27 RCW, because after July 5, 2012, no party lived in Washington
and Norway assumed jurisdiction over matters of "child custody and support."
Because the court erred in determining it no longer had jurisdiction to enforce its
child support order, we reverse and remand for further proceedings consistent
with this opinion.
1For clarity we will refer to the parties by their first names.
No. 69265-8-1 / 2
Background
Simon Pedersen and Lone Pedersen have three children, the youngest of
whom, Nora, is 16. Simon is a dual citizen of Norway and the United States,
Lone is a citizen of Norway, and Nora is a citizen of the United States. When
Simon filed this dissolution action in 2006, the family lived together in Edmonds,
Washington. The trial court entered a decree finalizing the parties' dissolution in
2007.
In 2011, Lone filed a notice of intended relocation, which stated her plans
to move with Nora to Oslo, Norway. Simon objected to the relocation, and a
hearing followed in Snohomish County Superior Court on October 5 and 6, 2011.
Lone moved with her fiance to Oslo on November 1, 2011. On November 17,
2011, the court entered an order permitting Nora's relocation. The trial court
ruled that on July 5, 2012, after Nora finished her freshman year of high school,
she would move to Norway, provided that Lone had secured employment and
established a stable environment for Nora by then. The court expressly reserved
the question of child support. The court directed in the accompanying parenting
plan that Nora would live with Simon in Edmonds until her departure to Norway
on July 5, 2012.
On February 17, 2012, the court entered an order of child support
"pursuant to an agreement of the parties based on entry of an agreed parenting
plan that changes the primary residence of the child to the father's residence."
Based on imputed income, the court ordered Lone to pay $466.08 a month for
No. 69265-8-1 / 3
Nora's support. The order stated that Lone's move to Norway occurred August
17, 2011, and ruled that her child support obligation commenced September 1,
2011. A March 30, 2012, order denied Lone's motion for reconsideration in part,
granted it in part, and corrected a scrivener's error.2 The court concluded by
directing, "Further proceedings in that regard, if there are any, should be
presented through the normal course, that being the Commissioner's Family Law
calendars. They should not be directed to the undersigned."
At a hearing on May 9, 2012, Simon told the court that because of his
work, he would be moving from Edmonds to Florida that summer and asked the
court "what would happen to jurisdiction" when Lone and Nora lived in Norway
and he resided in Florida. The court responded that it did not have an answer to
that question. Simon emphasized, "I'd like to have all these matters brought to
an end so that if Nora leaves and when I move there's no open issue as far as
the child support goes."3 The court set a review hearing for June 13, 2012.
At the review hearing, Simon appeared pro se, and Lone appeared
through her attorney and by telephone from Oslo. Over Lone's objection, Nora
also attended and testified that she did not want to move to Norway—that she
2 The court denied Lone's motions to reconsider the court's imputation of
her income, the start date of her child support obligation, and presentation of the
child support order. The court granted reconsideration of allocation of long
distance transportation expenses and stated, "Petitioner [Simon] has satisfied the
Court that he is entitled to the health insurance credit." The court corrected the
child support order to delete a sentence: "A deviation was ordered."
3The court responded, "What I've decided is that the non-custodial parent
owes a child support obligation that I expect to be paid, much like I expect every
mother and father in this whole system to live up to their obligation."
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No. 69265-8-1 / 4
wished to finish high school in the United States, even if Simon relocated to
Florida. The trial court determined that Lone had satisfied the court's conditions
concerning financial stability and ordered that Nora relocate to Lone's residence
in Norway on July 5, 2012. The court's June 13 order also provided,
7. No further proceedings shall be brought in this court after
Nora relocates to Norway on July 5, 2012.
8. Upon filing of proof/documents that verifying (sic) that
Norway will assume primary jurisdiction over parenting plan/child
support issues involving these parties and Nora, Snohomish
County will decline to hear any further motions in this case, as the
parties and the child will have no connection to Washington State.
9. Judge Cowsert no longer retains jurisdiction in this case.
On June 21, 2012, the trial court entered an agreed temporary/interim
order of child support that required Lone to pay $367.22 a month for Nora's
support, beginning November 1, 2011. The order stated, "[Bjack child support, if
any, and back interest, if any, owed by respondent Lone Pedersen under the
terms of this order shall be determined in the adjustment/modification of child
support which is to be effective on July 1, 2012."4 Proposed adjustment or
modification "shall be submitted to the court on the Commissioner's Family Law
Motions Calendar pursuant to statute and local court rules."
On June 25, 2012, Lone filed a motion for reconsideration, requesting that
the trial court "reconsider and eliminate" paragraphs 7 and 8 of its June 13 order.
On August 9, 2012, the trial court denied the motion for reconsideration,
explaining its reasons as follows:
This adjustment/modification was to be prospective only.
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No. 69265-8-1 / 5
Respondent was given adequate notice of Petitioner's concerning
issues of jurisdiction.
Respondent removed herself from the physical jurisdiction of this
court over a year ago.
Petitioner has relocated to Florida.
This court has been advised that proceedings have been
commenced in Norway, where Respondent and the child, Nora,
currently reside, which is the most appropriate forum for further
litigation in this matter.
In its August 9 order, the court did not state the basis for its knowledge of
proceedings in Norway. Simon filed a declaration on August 13, 2012, to which
he attached a letter, dated August 10, 2012, from a Norwegian attorney, stating
that Nora "keeps a permanent residence in Norway" and "[ajccording to
Norwegian regulations Norway has jurisdiction over Nora."
On September 4, 2012, Lone sought review by this court of the trial court's
order denying her motion for reconsideration and of paragraphs 7 and 8 of the
court's June 13, 2012, order. On February 14, 2013, after a hearing at which
both Lone and Simon were present and represented by counsel, the Oslo District
Court entered an agreed5 "Court Settlement" regarding "permanent residence
and custody." The Oslo court ruled that Nora would live with Lone until July 21,
5 A section of the settlement titled "Comments from each party"
includes the following:
On the mother's side it was noted that the settlement is entered
into as she realizes the court would otherwise make a verdict for
them.
The mother's opinion is that it would be best for Nora to remain
in Norway with her the way it was decided by Snohomish County
Superior Court in June 2012.
No. 69265-8-1 / 6
2013, after which time she would move to Florida to live with Simon. The
settlement made provision for visitation, travel expenses, and contact between
Nora and Lone, but stated, "This agreement does not regulate the parties' rights
and obligations related to child support."
On February 28, 2013, Simon filed a motion to dismiss Lone's appeal,
which a three-judge panel of this court denied on June 18, 2013. The panel also
denied the parties' requests for attorney fees or sanctions.
Analysis
Lone argues that paragraphs 7 and 8 of the trial court's June 13, 2012,
order on relocation constitute a "blanket denial of access to the court" and asks
that they "be vacated and stricken from the order." She contends that these
provisions have prevented her from pursuing necessary adjustments or
modifications to child support. Simon counters that because "[n]o party lives,
works or does business in Washington," there is a "lack of jurisdiction" and this
court should affirm the trial court's order. Alternatively, he argues that the appeal
should be dismissed for mootness or forum non conveniens.
As an initial matter, we note that the Washington Constitution grants broad
original subject matter jurisdiction to the superior court, which includes "all
matters" of dissolution.6 "The critical concept in determining whether a court has
6 Wash. Const, art. IV, § 6. "The superior court shall also have original
jurisdiction in all cases and of all proceedings in which jurisdiction shall not have
been by law vested exclusively in some other court."
No. 69265-8-1 / 7
subject matter jurisdiction is the type of controversy."7 "If the type of controversy
is within the subject matter jurisdiction, then all other defects or errors go to
something other than subject matter jurisdiction."8 It is important not to confuse
the term "subject matter jurisdiction" with a court's authority to rule in a particular
matter.9 "The UCCJEA, as adopted by the Washington legislature, does not—
and cannot—divest a superior court of subject matter jurisdiction" over custody
matters.10 As for child support, by adopting the Uniform Interstate Family
Support Act (UIFSA), chapter 26.21A RCW, "[tjhe legislature has limited the
superior court's authority—not the superior courts' jurisdiction—to modify another
state's child support order."11
We must decide whether the trial court appropriately declined to exercise
further its statutory authority to rule on issues related to a matter within its
constitutional subject matter jurisdiction: the Pedersens' dissolution. This really
involves two issues: custody and child support. These involve mixed questions
of law and fact; we review a trial court's denial of a motion for reconsideration for
abuse of discretion12 and a trial court's findings for substantial evidence.13 A
7Cole v. Harvevland. LLC. 163 Wash. App. 199, 209, 258 P.3d 70 (2011).
8 Cole, 163 Wn. App. at 209 (citing Marlev v. Dep't of Labor & Indus., 125
Wash. 2d 533, 539, 886 P.2d 189 (1994)); see also Hous. Auth. v. Bin, 163 Wn.
App. 367, 377, 260 P.3d 900 (2011).
9 Marlev, 125 Wn.2d at 539.
10 In re Marriage of McDermott. 175 Wash. App. 467, 479, 307 P.3d 717,
review denied, No. 89196-6 (Wash. Dec. 11, 2013).
11 In re Marriage of Schneider, 173 Wash. 2d 353, 360, 268 P.3d 215 (2011).
12 Brinnon Grp. v. Jefferson County, 159 Wash. App. 446, 485, 245 P.3d 789(2011) (citing Lilly v. Lynch, 88 Wash. App. 306, 321, 945 P.2d 727 (1997)).
13 State v. Ross, 106 Wash. App. 876, 880, 26 P.3d 298 (2001).
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No. 69265-8-1 / 8
court abuses its discretion when its decision is manifestly unreasonable or based
upon untenable grounds or reasons.14 Substantial evidence exists if it is
sufficient to persuade a fair-minded, rational person of the truth of the matter
asserted.15 A superior court's subject matter jurisdiction and statutory authority
are questions of law which we review de novo.16
Mootness and Forum Non Conveniens
Simon contends that we should dismiss Lone's appeal based on
mootness. "An appeal is moot where it presents purely academic issues and
where it is not possible for the court to provide effective relief."17 The disputed
issue of child support in this case is not moot, and should we find error in the trial
court's orders, we can still provide effective relief.
Simon also argues the appeal should be dismissed based on forum non
conveniens. We disagree. Under this doctrine, which the UCCJEA incorporates,
a court of this state may defer to the jurisdiction of a court of another state
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 request of
another court.[18]
14 State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775 (1971).
15 State v. Lew, 156 Wash. 2d 709, 733, 132 P.3d 1076 (2006) (quoting
State v Mendez. 137 Wash. 2d 208, 214, 970 P.2d 722 (1999)).
16 Schneider, 173 Wn.2d at 358 (citing Okeson v. City of Seattle, 150
Wash. 2d 540, 548-49, 78 P.3d 1279 (2003)); McDermott, 175 Wn. App. at 479.
17 Klickitat County Citizens Against Imported Waste v. Klickitat County,
122 Wash. 2d 619, 631, 860 P.2d 390 (1993), 866 P.2d 1256 (1994).
18 RCW 26.27.261(1).
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While the doctrine of inconvenient forum may apply to custody issues under the
UCCJEA, it does not apply to the issue of child support in this case. "UIFSA is
designed to facilitate registration and enforcement of decrees in non-issuing
states. As such, it inherently contemplates that the forum may not be convenient
for all parties."19 We decline to dismiss this appeal on either mootness or forum
non conveniens grounds.
The UCCJEA and Child Custody
Under the UCCJEA, Washington courts may properly exercise jurisdiction
to enter an initial child custody determination when Washington is the child's
"home state."20 "'Home state' means the state in which a child lived with a
parent... for at least six consecutive months immediately before the
commencement of a child custody proceeding."21 "[Ojnce jurisdiction is acquired
over the subject matter and the parties in a dissolution of marriage action,
jurisdiction over the parties and jurisdiction to modify child placement decisions,
awards of spousal maintenance, and child support generally continue."22 Acourt
that has made a valid initial custody determination has exclusive, continuing
jurisdiction until
(a) A court of this state determines that neither the child, the
child's parents, and any person acting as a parent do not have a
19 In re Marriage of Owen, 126 Wash. App. 487, 504, 108 P.3d 824 (2005).
20 RCW 26.27.201.
21 RCW 26.27.021(7).
22 In re Marriage of McLean, 132 Wash. 2d 301, 305, 937 P.2d 602 (1997);
Teitzel v. Teitzel, 71 Wash. 2d 715, 718, 430 P.2d 594 (1967); Sherwood v.
Sherwood, 48 Wash. 2d 128, 130, 291 P.2d 674 (1955); Harris v. Harris, 71 Wash.
307, 308-09, 128 P. 673 (1912).
No. 69265-8-1/10
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
(b) 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.[23]
For purposes of the UCCJEA, Washington courts treat a foreign country as if it
were a state of the United States.24
At the time of the October 2011 hearing on relocation, Washington was
the home state of Simon, Lone, and Nora. In its November 2011 order on
relocation, the court noted that it had exclusive, continuing jurisdiction under
RCW 26.27.211, having previously made a child custody determination. But in
paragraphs 7 and 8 of its June 13, 2012, order, the trial court appeared to make
both of the determinations described in RCW 26.27.211: that after July 5, 2012,
the parties no longer would have a significant connection with this state and that
no party would reside in this state. For purposes of the UCCJEA, however,
Washington remained Nora's home state until January 5, 2013: the six-month
mark of Nora's residency in Norway.
On February 14, 2013, the Oslo District Court issued its order modifying
custody, which neither Lone nor Simon has challenged. On July 21, 2013, Nora
left Norway to live with Simon in Florida, which will be her new home state for
purposes of the UCCJEA on January 21, 2014. Given that the parties have
consented to the jurisdiction of the Oslo District Court for custody purposes and
23 RCW 26.27.211.
24 RCW 26.27.051.
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No. 69265-8-1 /11
that no one lives in Washington anymore, the trial court properly decided to
decline to further exercise its jurisdiction over matters related to Nora's custody.
UIFSA. Chapter 26.18 RCW, and Child Support
The trial court's orders, however, did not concern only custody under the
UCCJEA; they also related to issues of child support. In the matter of child
support enforcement, the trial court's orders regarding its jurisdiction are not
consistent with the requirements of Washington law.
RCW 26.18.040(3) states, "The court retains continuing jurisdiction under
this chapter until all duties of either support or maintenance, or both, of the
obligor, including arrearages, have been satisfied." RCW 26.18.050(5) reiterates
the court's continuing jurisdiction and provides that the court "may use a
contempt action to enforce a support or maintenance order until the obligor
satisfies all duties of support, including arrearages, that accrued pursuant to the
support or maintenance order."
Under the UIFSA, a court of this state may exercise personal jurisdiction
over a nonresident parent to establish or enforce a support order if the parent
"resided with the child in this state."25 In "two-state" child support proceedings,
the UIFSA provides that one state has continuing, exclusive jurisdiction over the
controlling order, with the goal of avoiding competing support orders and
ensuring fulfillment of child support obligations.26 To enforce this "one-order"
25 RCW 26.21A. 100(c).
26 Schneider, 173 Wn.2d at 358-59.
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system, the UIFSA provides that a parent may register an out-of-state order in
Washington for enforcement and/or modification.27 For support orders originating
in Washington, RCW 26.21A.125 provides for continuing jurisdiction to enforce:
(1) A tribunal of this state that has issued a child support order
consistent with the law of this state may serve as an initiating
tribunal to request a tribunal of another state to enforce:
(a) The order if the order is the controlling order and has not
been modified by a tribunal of another state that assumed
jurisdiction pursuant to the uniform interstate family support act; or
(b) A money judgment for arrears of support and interest on
the order accrued before a determination that an order of other
state is the controlling order.
Washington courts have held that the court that entered a decree of dissolution
and child support order, i.e., the "controlling order,"28 has continuing jurisdiction
not only to enforce but also to modify its child support order.29
Here, the superior court's child support order is the controlling order. In
his August 9, 2012, denial of Lone's motion for reconsideration, Judge Cowsert
attempts to transfer jurisdiction to Norway, having "been advised that
proceedings have been commenced in Norway," and Simon argues that "[bjoth
parties acquiesced to the Norwegian Court taking jurisdiction over the issues of
the child custody and support." However, the Oslo District Court explicitly ruled
that its order did not address "the parties' rights and obligations related to child
support." Nora now resides in Florida, but nothing in the record before us
indicates that Florida has assumed jurisdiction. Thus, the record reflects no state
27 Schneider, 173 Wn.2d at 359; RCW 26.21A.500-.570.
28 See RCW 26.21A.120, .130.
29 McLean, 132 Wn.2d at 305; Teitzel, 71 Wn.2d at 718; In re Marriage of
Sagner. 159 Wash. App. 741, 748, 247 P.3d 444 (2011).
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No. 69265-8-1/13
other than Washington has jurisdiction to enforce or modify the controlling
support order. If Snohomish County Superior Court does not retain jurisdiction to
enforce its order until another court assumes jurisdiction via registration or
consent of the parties, no court has authority to enforce the parents' obligations.
This would contravene the legislative intent expressed in chapter 26.18 RCW.30
Because both Simon and Lone resided with Nora in Washington, the
superior court may exercise personal jurisdiction over either or both of them as
nonresidents under RCW 26.21A.100(c). Alternatively, under RCW 26.21A.125,
it may serve as an initiating tribunal to request a court of another state to enforce
either its order or a judgment for arrears. And RCW 26.18.040(3) provides that
the court retains continuing jurisdiction until all duties of support, including back
support, are satisfied. We hold that the trial court erred in declining all further
jurisdiction related to child support issues.
Attorney Fees
Lone requests an award of attorney fees and costs incurred in this appeal.
As grounds for this request, she cites "Need vs. ability to pay. RCW 26.09.140.
Simon's intransigence." Simon counters that a "need vs. ability to pay" analysis
would support an award of costs and fees to him and that the record does not
demonstrate intransigence on his part.
30 "The legislature finds that there is an urgent need for vigorous
enforcement of child support . . . obligations, and that stronger and more efficient
statutory remedies need to be established." RCW 26.18.010.
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No. 69265-8-1 /14
RCW 26.09.140 provides that "after considering the financial resources of
both parties," the court may order a party to pay a "reasonable amount" of the
costs and attorney fees of the other party. RCW 26.27.511 directs that the court
"shall award the prevailing party . .. necessary and reasonable expenses." RCW
26.18.160 provides, "[T]he prevailing party is entitled to a recovery of costs,
including an award for reasonable attorney fees," but specifies that "[a]n obligor
may not be considered a prevailing party under this section unless the obligee
has acted in bad faith." Under RAP 18.1, a party must request "the fees or
expenses on review," "must devote a section of its opening brief to the request,"
and
where applicable law mandates consideration of the financial
resources of one or more parties regarding an award of attorney
fees and expenses, each party must serve upon the other and file a
financial affidavit no later than 10 days prior to the date the case is
set for oral argument or consideration on the merits.t31]
In a footnote, Simon asserts that though he proceeded pro se, he incurred
approximately $5,000 in fees for the assistance of an attorney in preparing his
brief and offers to file an affidavit to support an award to him. In his brief,
however, he does not specifically request an award of attorney fees but focuses
instead on reasons this court should deny an award to Lone. Lone's stated
grounds for an award—two sentence fragments without further support or
argument—do not constitute adequate briefing of this issue. A "bald request for
attorney fees on appeal" with no argument, citation to authority, or financial
31 RAP 18.1(a)-(c).
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No. 69265-8-1/15
documentation is insufficient.32 Moreover, if Nora now lives with Simon in
Florida, Lone is once again the obligor parent. In the absence of bad faith by
Simon, which we do not find here, we may not consider her the prevailing party.
Therefore, as both the superior court and a panel of this court did in earlier
proceedings, we deny Lone's request and decline to award costs or attorney fees
to either Lone or Simon for this appeal.
Conclusion
The trial court correctly concluded that for child custody purposes, it no
longer had continuing, exclusive jurisdiction after Nora, Lone, and Simon no
longer resided in Washington. But because the trial court had jurisdiction over
the parties and the subject matter in the Pedersens' dissolution and no other
court has assumed jurisdiction via registration or consent of the parties, the trial
court retains continuing, exclusive jurisdiction to enforce its child support order.
We therefore reverse the trial court's orders declining to hear "any further
motions in this case" and remand for further proceedings consistent with this
opinion.
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WE CONCUR:
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32 Thweatt v. Hommel, 67 Wash. App. 135, 148, 834 P.2d 1058 (1992).
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