In re A.A. 113148 - Sheils v. Wright.

Nos. 112,133
112,134
112,154
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of:
A.A.
(D.O.B. 4-21-06)
and
J.S.A.
(D.O.B. 6-19-04).
SYLLABUS BY THE COURT
1.
Kansas district courts have original jurisdiction of all matters that a court might
properly address, whether civil or criminal, unless otherwise provided by law. The
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is one such
limitation on the subject-matter jurisdiction of the Kansas district courts.
2.
The UCCJEA applies to child-in-need-of-care proceedings under the Revised
Kansas Code for Care of Children. Accordingly, a Kansas court errs by assuming subject-
matter jurisdiction over a child-in-need-of-care case that has interstate connections
without making sure that the provisions of the UCCJEA have been satisfied.
3.
Emergency jurisdiction under the UCCJEA is intended to be temporary in nature
and, unless a child has been abandoned, requires the existence of an actual emergency
requiring immediate court intervention. A finding that a child is in need of care under the
Revised Kansas Code for Care of Children is not sufficient, by itself, to support the
exercise of emergency jurisdiction under the UCCJEA.
4.
On the facts of this case, in which an initial custody determination had been made
in Mississippi, one parent remained in Mississippi, no emergency required immediate
action in Kansas, and there is no record that the Mississippi court made the
determinations required under the UCCJEA for the Mississippi court to have transferred
custody jurisdiction to Kansas, the Kansas district court lacked subject-matter jurisdiction
over child-custody matters.
Appeal from Johnson District Court; KATHLEEN SLOAN, judge. Opinion filed August 14, 2015.
Reversed and remanded with directions.
Joseph W. Booth, of Booth Family Law, of Lenexa, and Melissa Kelley Schroeder, of The Kelly
Law Firm, of Overland Park, for appellant natural mother.
Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney, for appellee
State of Kansas; Lori L. Gilmore, guardian ad litem, of Overland Park; and Randy McCalla, of Olathe, for
appellee natural father.
Before HILL, P.J., GREEN and LEBEN, JJ.
LEBEN, J.: The mother of two children appeals the child-custody orders entered by
a Kansas district court on the ground that it lacked subject-matter jurisdiction under the
Uniform Child Custody Jurisdiction and Enforcement Act. (That act is frequently referred
to in court opinions, including this one, by its somewhat unwieldy acronym, the
UCCJEA.) The Kansas court entered orders in a child-in-need-of-care proceeding, but a
Mississippi court had previously entered custody orders concerning these children in the
divorce case between their parents.
2
We conclude that the Kansas court lacked subject-matter jurisdiction to enter the
orders it did, which included a permanent transfer of custody of the children from mother
to father. The Mississippi courts had continuing and exclusive jurisdiction in the case,
and the Kansas court orders were neither necessary due to an emergency nor the result of
a proper forum transfer under the UCCJEA. Accordingly, we reverse the district court's
judgment, direct that the district court vacate its orders, and remand for further
proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The issues before us require us to determine whether a Kansas court had subject-
matter jurisdiction over child-custody matters that were already governed by a
Mississippi court's divorce decree. We therefore will need to set out in some detail the
proceedings that took place in each state. In addition, all of the parties recognize that a
Kansas court could have authority to take some action in an emergency, so we must also
set out the factual circumstances in sufficient detail that we can assess whether any
emergency could have provided authority for the Kansas court's orders.
Mother and Father married in Kansas in June 2002, but they lived throughout the
marriage in Mississippi, where they had two children: J.A., a son born in 2004, and A.A.,
a daughter born in 2006. In January 2007, Mother filed for divorce in Mississippi; she
then moved with the children to Kansas.
Mother's divorce petition claimed that Father had treated her cruelly and
inhumanely as a ground for the divorce, but the parties eventually stipulated to a divorce
based on irreconcilable differences. The case was pending in the Chancery Court of
Marshall County, Mississippi, for nearly 4 years before trial; during that time, several
hearings were held regarding custody and visitation matters, and a guardian ad litem was
appointed to represent the children's interests.
3
The Mississippi court held a 2-day trial in December 2010. The court then entered
its "Judgment of Divorce," granting Mother sole legal custody and physical custody of
the children, subject only to supervised visitation with Father one weekend a month. The
court designated Father's parents to supervise those visits.
The Mississippi court also provided a written opinion to accompany its judgment.
The court found that spousal "abuse" had occurred during the marriage, noting that Father
admitted he had hit Mother at least once and that there had been "many fights" between
the parties. The court said that Mother had hit Father at least once too. Of greater concern
was "evidence of sexual abuse" against J.A. The court cited testimony from Dr. Fred
Steinberg about "extensive evaluations" he had done, leading Dr. Steinberg to conclude
that J.A. had been sexually abused and to recommend that Father have only supervised
visitations. Another expert, Dr. Frankie Preston, testified that Father was unlikely to have
abused J.A., but the court said that "Dr. Preston failed to read Dr. Steinberg's report in its
entirety and that these deficiencies compromise the reliability of Dr. Preston's
evaluation." (The court also favorably cited and relied upon Dr. Steinberg's report when it
assessed the skills of Father as a parent.) The court said that "the children's behavior
appeared to improve" while visitations with Father were initially suspended altogether.
In April 2011, a few months after the divorce action had ended, Mother filed a
protection-from-abuse action on behalf of the children in Johnson County District Court.
She sought an order preventing Father from contacting the children; in support, she
alleged that Father had sexually abused the children in 2008 or 2009. The judge who
heard her claim concluded that she had not satisfied her burden of proof and dismissed
the petition; the judge also noted that the Mississippi court retained subject-matter
jurisdiction over the children under the UCCJEA.
4
In October 2011, the State of Kansas filed child-in-need-of-care petitions in
Johnson County District Court regarding the children. The petitions alleged that the
children were in need of care because both parents had reported possible abuse of the
children to social-service agencies. The State alleged that it would be against the
children's welfare to remain in their homes. The factual allegations included reports that
Father had sexually molested the children and that Mother was telling the children
inappropriate things about Father and thereby harming them emotionally. The State's
petition made several specific allegations: (1) that J.A. was acting out by simulating oral
sex on other boys at day care, asking why boys had to put their genitals in their fathers'
mouths, and expressing signs of posttraumatic stress disorder; (2) that Mother had
reported J.A. as suicidal; (3) that Mother had reported that A.A. had made allegations of
sexual abuse against Father; (4) that A.A. had told a social worker that she did not like
visiting Father but did not feel uncomfortable doing so; and (5) that Father had reported
to police that the children said Mother would no longer let them see Father because he
was a liar.
Mother filed a written response, asking that the State's petition be dismissed with
respect to her. She made several references in her response to Mississippi court
proceedings and orders, noted the evaluations done by Dr. Steinberg and Dr. Preston, and
quoted the Mississippi court's statement that Dr. Preston's report had deficiencies that
compromised its conclusions. Mother also provided other details about her claims that
Father had abused the children.
The same day Mother filed that response, November 14, 2011, the case first came
before the Johnson County District Court for a hearing. A pro tem judge (an attorney
appointed to act as a judge in place of the assigned judge) presided. That judge
determined that the court had subject-matter jurisdiction over the case, but neither the
transcript nor the written order tells us what basis, if any, the judge had for that ruling. No
5
mention was made of the UCCJEA. The court set a pretrial conference for January 24,
2012.
When the parties appeared for the pretrial conference, the parents indicated that
they planned not to contest the State's allegation that the children were in need of care.
The State's attorney noted that there was a Mississippi court action concerning the family
and that the Mississippi court remained involved, though the attorney said he hoped the
Mississippi case would be resolved soon so that the Kansas case could "start[] clean."
At the next hearing, held February 23, 2012, both Mother and Father entered no-
contest statements under which they agreed not to contest the State's factual claim that
the children were in need of care, as defined in the Revised Kansas Code for Care of
Children. See K.S.A. 2014 Supp. 38-2202(d). A child-in-need-of-care finding allows a
court to take continuing acts to protect the children and provide for their welfare. The
court accepted the no-contest statements, adjudicated the children in need of care, and set
the case over until April to allow a case manager to familiarize himself with the case and
make recommendations.
After this, the Kansas district court held a number of hearings. In general, for the
next 18 months, the court and the parties postponed final resolution of the case. During
this time, the court made some changes in visitation orders and allowed the case manager
further time to assess matters and make recommendations—but the children were not
removed from Mother's home. We will set out some of the more significant
developments.
At a June 4, 2012, hearing, the court ordered that Father have unsupervised visits
over Father's Day weekend. Several comments were made at that hearing about the
Mississippi and Kansas court proceedings. The State's attorney said this was not "a
typical Child [in] Need of Care case," saying that the case "needs to move more into a
6
more traditional post—typical post-divorce. We have two parents who I think—who I
think are capable of each parenting these children appropriately if they will do so."
Mother's attorney responded to the case manager's recommendation that Father have
unsupervised visitation, arguing that the Mississippi court had spent 4 years on the case
and had ordered only supervised visitation for Father while the Kansas court had ordered
unsupervised visitation after only a few months of involvement. Father's attorney then
denigrated the Mississippi courts and expressed trust in the Kansas judge:
"Judge, I don't care what the courts in Mississippi found. My respect for how
those courts work is minimal after learning what I have learned about that system down
there. Judge, I trust this court. I trust the professionals in this court, and so I don't really
care how long Mississippi has had this case. Sadly it has taken us a much shorter time to
figure out what is really going on."
The parties were in court again on June 18, 2012. The State recommended a
coparenting plan but asked that the case be postponed until the parents made more
progress. The court set the case over. The court also advised Mother that if she wanted to
collect child support, she would have to do that in Mississippi.
The court held a review hearing on the family's progress in August 2012. The
State complained that Mother had begun using her last name for the children; the court
ordered Mother to use Father's last name for them and threatened to take the children
from her if she continued behaviors that would alienate them from Father. That month the
court also approved a written order increasing Father's contact with the children and
continuing his visits unsupervised.
The court next met with the parties in November 2012. It ordered a 90-day home-
maintenance plan to be prepared by the case manager and continued the case until
February 2013 (though no February hearing was held). The court entered an updated
7
parenting-time plan in January 2013 and in April 2013 ordered the parties to participate
in mediation over custody and visitation issues.
At an April 18, 2013, hearing, the court asked the parties if they were going to
register the Mississippi court's orders in Kansas. That brought an exchange about
jurisdiction between counsel and the court. Mother's counsel said that Mother "would
desire to keep the case with the original jurisdiction in Mississippi." Father's counsel
responded that Mother's position "may have something to do with the fact things were
going her way in Mississippi, Judge." The judge expressed an apparent preference to
keep the case in Kansas:
"All I'm going to say is child support issues can easily be addressed here. . . .
History of the case? We have been at this two years. I believe there is equanimity in what
a Mississippi judge and what a Kansas judge knows."
Father then filed a petition to register the Mississippi court's divorce judgment in
Kansas in August 2013.
The State filed a motion in September 2013—nearly 2 years after it had filed the
child-in-need-of-care petition—seeking an emergency review of the children's placement
with Mother. The children had been primarily residing with her, but the court had given
Father regular, unsupervised visitation, including for almost the entire summer that year.
The State's motion alleged that the children had sent Father videos saying that they
didn't want to visit him again. According to the motion, the case manager had reviewed
the videos and then had talked with A.A., who had said that Mother had told her that
Father had kicked Mother, bit her, and pulled her hair; A.A. also allegedly told the case
manager that she liked to see Father, causing the case manager to conclude that Mother's
continued negative comments about Father were harming the children.
8
The district court set a hearing for September 12, 2013, and Mother filed a motion
to dismiss the motion for lack of subject-matter jurisdiction under the UCCJEA. At the
September 12 hearing, the judge noted that she had not yet read Mother's motion but said
that such a motion made no sense and that she was going to proceed to hear the State's
motion:
"We are here on the State's motion for an emergency review, and I have not had a chance
to read it. I also see that mother filed a response to the motion for review hearing and
mother's Motion to Dismiss State's Motion for Review Hearing, which doesn't make any
sense because we are going to have a review hearing. We are going to have a review
hearing. But I haven't had a chance to read it. It is quite long."
The court then asked the attorneys to summarize their positions. The State's
attorney explained that the State was seeking a change in custody from Mother to Father.
He noted Mother's motion on jurisdiction but said that if Mother was correct, then
everything the Kansas court had already done had been illegal. Before hearing from
Mother's attorney, the court responded that it had "been at this for two years" and that it
considered Mother's motion "without merit." The court heard from each party as to how
many witnesses each planned to call and set the case for trial on October 1, 2013.
At trial, Mother again objected to jurisdiction, but the court proceeded to hear the
parties' evidence. The case manager, Craig Waddle, recommended that the children's
primary residence be changed from Mother's home to Father's because he felt that Mother
was creating conflict with Father that was negatively impacting the children. Even so, he
testified that he had not seen any situation he would consider an emergency with the
children while he had been working with the family:
"Q. Have you seen anything that you felt was an emergency with respect to these
children over the past two years?
9
"A. Urgency?
"Q. Emergency.
"A. Emergency. I believe that the—I think that is hard to answer honestly. I
would consider emergency a physical threat, those types of things. I haven't seen any, you
know, emergency. My concern is more the ongoing developmental needs of the
children."
The court also heard testimony from Mother and Mother's sister. The court gave
the parties time to file posttrial briefs and said it would rule after receiving them. The
court told the parties that before it ruled it would confer with the Mississippi judge now
assigned to the parties' divorce case regarding jurisdictional issues.
The Kansas and Mississippi trial judges spoke by telephone on November 21,
2013, and a transcript was prepared. Central to their discussion was an order the
Mississippi court had entered regarding child-support matters in December 2012.
As we previously noted, the Kansas court told Mother in June 2012 that she could
pursue collection of Father's past-due child support in Mississippi. She brought a
contempt action against Father, which the Mississippi court heard on December 6, 2012.
The court held that Father was in contempt for willful failure to pay child support; it
found that he owed Mother $10,224 in back child support and $2,876 in medical-expense
reimbursements. The court also acknowledged that another $1,083 in medical-expense
reimbursements remained in dispute and said these could be submitted to a Kansas court:
"This Court finds that this dispute is held in abeyance and will fall under the jurisdiction
of the Kansas Court should proper action be taken to raise the issue and should they
choose to address it." The Mississippi court's written order, filed December 14, 2012, also
said that any other contempt issues that had been previously raised in Mississippi but not
addressed in the decision, as well as any other issues that had been pled in the Mississippi
court but not yet ruled upon, could now be heard in Kansas "upon the proper pleadings by
10
either party." As far as we can tell, however, the parties had not filed any pleadings
before the Mississippi court asking that it change the existing child-custody orders.
When the Kansas and Mississippi judges spoke by telephone, they concluded that
the Mississippi court had "transferred jurisdiction with regard to the divorce case to
Kansas" in the December 2012 order:
"[THE KANSAS COURT (JUDGE SLOAN):] I took emergency subject-matter
jurisdiction under our Child In Need of Care case.
"[MISSISSIPPI] JUDGE WHITWELL: Okay.
"THE [KANSAS] COURT: I believe that in fact then sometime in December of
2012 there is a pleading in your divorce case that talks about finding the father, I believe,
in contempt of court with regard to child support and I think some medical arrears, and
then there is a—that order—I think I have got it in front of me.
"JUDGE WHITWELL: December 14th, 2012.
"THE [KANSAS] COURT: Paragraph 8 says, 'All other issues of contempt
raised herein and in previous pleadings not specifically addressed are hereby transferred
to the proper jurisdiction in Kansas where the children now reside. Any issues pled not
herein ruled upon may be heard in that jurisdiction upon the proper pleadings by either
party.'
....
"THE [KANSAS] COURT: So what you and I—I want to discuss and have a
record made so that the attorneys here can see the record of our conversation. I believe
now that Mississippi has conceded and transferred jurisdiction with regard to the divorce
case to Kansas.
"JUDGE WHITWELL: I agree.
"THE [KANSAS] COURT: Okay. And that was really effective as of December
of last year, December 14th[, 2012].
"JUDGE WHITWELL: That is correct."
The district court in Kansas ruled in December 2013 that it had proper subject-
matter jurisdiction over child-custody issues involving J.A. and A.A. The court
11
concluded that it had exercised emergency jurisdiction over the case at the outset and that
its jurisdiction was confirmed in December 2012 when the Mississippi court transferred
full jurisdiction to Kansas. Accordingly, the court denied Mother's motion to dismiss the
case for lack of jurisdiction.
In January, the court ordered a change in custody, granting Father sole legal
custody and primary residential placement subject to supervised telephone and in-person
visitation with Mother. The court found that Mother had shown a "history and pattern of
alienation" during the 2 years the case had been pending in Kansas. After Mother filed a
motion to reconsider, the court consolidated Mother's parenting time into three 1-week
periods in June, July, and August, with another plan to be submitted for approval later.
The court's written findings were finalized on June 26, 2014. Mother filed an appeal to
this court the following day.
ANALYSIS
Our case turns on whether the district court had subject-matter jurisdiction over
the dispute before it, so we begin by explaining what we mean by subject-matter
jurisdiction. By jurisdiction, we refer to a court's power or authority to act; here, for
subject-matter jurisdiction, we refer to its authority to act on the type of claim (i.e., the
subject matter) at issue before it.
In state courts, a trial court will be designated to have broad subject-matter
jurisdiction to hear claims. In Kansas, our district courts by statute "have general original
jurisdiction of all matters, both civil and criminal, unless otherwise provided by law."
K.S.A. 20-301. As a general matter, then, our district courts have the subject-matter
jurisdiction to consider disputes that a court might address unless some other statute
limits that authority. See In re Estate of Heiman, 44 Kan. App. 2d 764, 766, 241 P.3d 161
12
(2010); City of Overland Park v. Niewald, 20 Kan. App. 2d 909, 910-11, 893 P.2d 848,
aff'd as modified 258 Kan. 679, 907 P.2d 885 (1995).
The UCCJEA is one source of such statutory limits. All but one state has adopted
it (and that state, Massachusetts, has adopted an earlier, similar uniform act, the Uniform
Child Custody Jurisdiction Act). Kansas adopted the UCCJEA in 2000, and Mississippi
adopted it in 2004. We will cite in our opinion to provisions of the Kansas statutes, but
Mississippi has the same provisions.
The UCCJEA seeks to avoid jurisdictional competition between the courts of
different states over child-custody matters. It does so through rules that generally make
sure that only one state at a time has jurisdiction (authority) over child-custody matters in
any particular family.
Central to the UCCJEA's method of keeping order between potentially conflicting
state proceedings are two provisions. First, an initial custody determination generally
must be made by the child's "home state," which is where the child has lived for at least 6
consecutive months before a court proceeding over custody was filed. See K.S.A. 2014
Supp. 23-37,201(a), (b); K.S.A. 2014 Supp. 23-37,102(8). Second, once an initial custody
determination has been made, the state that made it generally retains exclusive
jurisdiction over later custody issues until an event listed in the UCCJEA (such as a
determination that neither parent nor the child still lives in the state) occurs. See K.S.A.
2014 Supp. 23-37,202(a).
In addition to these listed events, there are two other ways that a second state may
properly enter custody orders after initial orders have been entered by the child's home
state. The first is the emergency exception, which allows another state's court to exercise
temporary authority when a child has been abandoned or there's some other emergency
need to immediately protect the child. See K.S.A. 2014 Supp. 23-37,204(a), (c), and (d).
13
The second is a valid transfer of the case from Mississippi to Kansas, either based on a
finding that Mississippi had become an inconvenient forum for the litigation, see K.S.A.
2014 Supp. 23-37,207, or a finding that Mississippi no longer had continuing exclusive
jurisdiction. See K.S.A. 2014 Supp. 23-37,203.
In our case, no one disputes that Mississippi was the home state for the children
when Mother filed for divorce against Father. Nor is there any dispute that the
Mississippi court made an initial custody determination when it granted the parties'
divorce or that Father continued to reside in Mississippi. Accordingly, the Kansas court
lacked subject-matter jurisdiction unless one of the listed events under K.S.A. 2014 Supp.
23-37,202(a) had occurred, there was an emergency, or the Mississippi court properly
transferred the case to Kansas. We will consider each of those possibilities.
Before we do so, however, we want to eliminate two other potential bases—not
involving the UCCJEA—for the Kansas court's authority to act.
First, Father and the State contend that we should not reach the jurisdictional issue
at all; they base this argument either on waiver (that Mother failed initially to object to
the Kansas proceedings on jurisdictional grounds) or equitable principles (that Mother
should not be allowed to complain because she has "unclean hands" in the litigation). But
a party cannot waive the objection to subject-matter jurisdiction or be prohibited on
equitable grounds from raising the issue. Fox v. Fox, 50 Kan. App. 2d 62, Syl. ¶ 4, 322
P.3d 400 (2014). Indeed, even if a party could waive the issue, the court has an
independent duty to question its subject-matter jurisdiction even when the parties have
not done so, Ryser v. Kansas Bd. of Healing Arts, 295 Kan. 452, 456, 284 P.3d 337
(2012), and subject-matter jurisdiction may be challenged at any time. State v. Williams,
299 Kan. 509, 532, 324 P.3d 1078 (2014). So we must address the subject-matter-
jurisdiction issue on its merits.
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Second, Father and the State contend that Kansas and Mississippi have concurrent
subject-matter jurisdiction here—Mississippi under the UCCJEA and Kansas under the
Revised Kansas Code for Care of Children. Father and the State note that the Revised
Kansas Code for Care of Children, under which child-in-need-of-care proceedings take
place, provides for jurisdiction over proceedings "concerning any child who may be a
child in need of care," K.S.A. 2014 Supp. 38-2203(a), and places venue in the county
where the child resides. K.S.A. 2014 Supp. 38-2204(a). Based on these provisions, Father
and the State say that both states had subject-matter jurisdiction to enter custody orders
involving these children, in which case they contend that Mother's initial failure to object
to the Kansas proceedings should be construed as a waiver.
But Father and the State ignore a key provision of the Revised Kansas Code for
Care of Children—one that makes jurisdiction under it "[s]ubject to" the UCCJEA:
"Subject to the uniform child custody jurisdiction and enforcement act, . . . the district
court shall have original jurisdiction of proceedings pursuant to this code." K.S.A. 2014
Supp. 38-2203(b).
As we have noted in other cases, the UCCJEA applies to child-in-need-of-care
proceedings. See In re E.T., 36 Kan. App. 2d 56, 64, 137 P.3d 1035 (2006), overruled on
other grounds by In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008); In re Z.E.H., No.
109,799, 2013 WL 5975324, at *7-8 (Kan. App. 2013) (unpublished opinion).
Accordingly, a Kansas district court errs by assuming subject-matter jurisdiction over a
child-in-need-of-care case that has interstate connections without making sure that the
provisions of the UCCJEA have been satisfied. In re Z.E.H., 2013 WL 5975324, at *7-9.
That mistake was made in this case when a pro tem judge concluded in November 2011
that the Kansas court had proper subject-matter jurisdiction without considering the
UCCJEA, even though Mother had filed a response mentioning the Mississippi court
proceedings.
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We will proceed now to consider the three possible ways in which the Kansas
court might have had proper jurisdiction under the UCCJEA.
We can quickly eliminate the listed-events exception of K.S.A. 2014 Supp. 23-
37,202(a). Father continues to reside in Mississippi, and substantial evidence about the
parties remains available there. Neither Father nor the State contends that this exception
applies. They instead contend that the Kansas court had proper emergency jurisdiction
and that the Mississippi court effectively transferred the case to Kansas with its
December 2012 order.
Emergency jurisdiction under the UCCJEA allows courts to enter temporary
orders to protect a child—but absent child abandonment, the situation must indeed be an
emergency:
"A court of this state has temporary emergency jurisdiction if the child is present
in this state and the child has been abandoned or it is necessary in an emergency to
protect the child because the child, or a sibling or parent of the child, is subjected to or
threatened with mistreatment or abuse." K.S.A. 2014 Supp. 23-37,204(a).
An emergency is "[a] serious situation or occurrence that happens unexpectedly and
demands immediate action." American Heritage Dictionary 583 (5th ed. 2011).
Under the predecessor to the UCCJEA, the Uniform Child Custody Jurisdiction
Act, we had explained that its emergency-jurisdiction provision was meant to be "very
limited [in] scope and to be reserved for extraordinary circumstances." In re Marriage of
Anderson, 25 Kan. App. 2d 754, Syl. ¶ 5, 969 P.2d 918 (1998). But the earlier act had
broader authority for courts to act under its emergency provisions than the UCCJEA
does. It allowed emergency action any time a child was deemed "in need of care" under
child-in-need-of-care statutes. See K.S.A. 38-1303(a)(3)(B) (Furse 1993) (stating that a
16
court could exercise jurisdiction if it was "necessary in an emergency to protect the child
because the child has been subjected to or threatened with mistreatment or abuse or is
otherwise a child in need of care" [Emphasis added.]). The UCCJEA omits the "child in
need of care" basis for emergency jurisdiction and clearly provides only limited
emergency jurisdiction. See K.S.A. 2014 Supp. 23-37,204(a); In re A.C., 130 Cal. App.
4th 854, 863-64, 30 Cal. Rptr. 3d 431 (2005); Kalman v. Fuste, 207 Md. App. 389, 406-
07, 52 A.3d 1010 (2012); Parentage of Ruff, 168 Wash. App. 109, 120, 275 P.3d 1175
(2012).
There was no emergency in this case. As we've noted, a child-in-need-of-care
finding by itself does not invoke emergency jurisdiction under the UCCJEA. The State's
attorney told the court more than 5 months after the case had been filed that this wasn't a
typical child-in-need-of-care case and that it "need[ed] to move into a more . . . typical
post-divorce [posture]." At that time, he characterized both parents as "capable of . . .
parenting these children appropriately if they will do so." The State's motion seeking to
move the children from Mother's home wasn't even filed until nearly 2 years after it had
filed the Kansas case, and the district court's order changing placement from Mother to
Father didn't come for another 4 months (and 3 months after the court had heard the
parties' evidence). Even at trial, the case manager who worked closely with the parties
would not characterize the situation as an emergency. This was not an extraordinary and
serious situation that demanded immediate action.
Even if there had been an emergency as defined by the UCCJEA, the district court
still would have been limited by that statute in what it could do. The UCCJEA provision
provides for temporary emergency jurisdiction. See K.S.A. 2014 Supp. 23-37,204(a). As
our court noted in In re Z.E.H., this requires "ultimate deferral to the authority of another
state if that state had initial child-custody jurisdiction," so the Kansas court must
"immediately communicate" with the other court and must "set a specific duration of any
temporary orders." 2013 WL 5975324, at *8-9 (citing K.S.A. 2012 Supp. 23-37,204[c]
17
and [d]). The duration of a temporary order has a specific, but limited, purpose—allowing
time to bring the matter to the attention of the court that has already entered the initial
custody order. Accordingly, the duration should be "adequate to allow the person seeking
an [emergency] order to obtain an order from the state having jurisdiction under [the
UCCJEA]," not indefinite. See K.S.A. 2014 Supp. 23-37,204(c). The Kansas court did
not set a limited duration on its orders and did not contact the Mississippi court until
more than 2 years after Mother had filed a response noting the Mississippi court
proceedings. Furthermore, a court exercising emergency jurisdiction under the UCCJEA
cannot make permanent modifications to another state's custody order. See K.S.A. 2014
Supp. 23-37,313; Steven v. Nicole, 308 P.3d 875, 882-83 & n.24 (Ala. 2013); Beauregard
v. White, 972 A.2d 619, 626-27 (R.I. 2009). In sum, the UCCJEA's emergency-
jurisdiction provision could not have provided authority for the broad orders entered by
the Kansas court even if there had been a true emergency.
We turn now to the final potential basis for subject-matter jurisdiction in Kansas—
a valid transfer of the case from Mississippi to Kansas. Father and the State make two
arguments here based on UCCJEA provisions that could apply in this factual situation.
First, the UCCJEA gives a second state the authority to modify the initial state's
custody order if (1) the second state is the child's home state when the new action begins
and (2) the court of the initial state "determines it no longer has exclusive, continuing
jurisdiction." K.S.A. 2014 Supp. 23-37,203(1). Second, the UCCJEA allows a case to be
transferred from the initial state to another if the initial state "determines that it [has
become] an inconvenient forum" for the dispute and that "a court of another state is a
more appropriate forum." K.S.A. 2014 Supp. 23-37,207. Father and the State contend that
the Mississippi court made these determinations in its December 2012 order (and
confirmed the determinations in the telephone call with the Kansas court).
18
But though Father and the State contend that the Mississippi court made these
determinations, it certainly has not done so explicitly in any document found in our
record. In the absence of findings that would authorize the transfer of the case from
Mississippi to Kansas under the UCCJEA—and faced with a record that strongly
suggests the appropriate determinations were not made—we conclude that Kansas lacked
subject-matter jurisdiction to enter custody orders.
For the Mississippi court to have determined that it no longer had exclusive,
continuing jurisdiction, it would have had to conclude that neither the child nor the child's
parents still had "a significant connection with [Mississippi] and that substantial evidence
[was] no longer available in [Mississippi] concerning the child's care, protection, training,
and personal relationships." See K.S.A. 2014 Supp. 23-37,202(a)(1). Father and the State
provide no suggestion about how the Mississippi court could have made that
determination. Father continued to reside in Mississippi, the children had been living
there full-time only a few years before, and the children continued to visit Father there.
For the Mississippi court to have determined that Mississippi had become an
inconvenient forum, the UCCJEA required that it first "allow the parties to submit
information" on the issue and that the court consider a list of relevant, nonexclusive
factors that should guide its consideration. See K.S.A. 2014 Supp. 23-37,207(b). Those
factors include the nature and location of evidence available in each state, the familiarity
of each state's court with the facts of the case, and the relative financial circumstances of
the parties. We have no indication that the Mississippi court ever advised the parties that
it was considering whether it had become an inconvenient forum or that it allowed the
parties to submit information on the question.
The Mississippi court's December 2012 order is ambiguous on our record. The
only reference to Kansas came in its final paragraph:
19
"All other issues of contempt raised herein and in previous pleadings not
specifically addressed are hereby transferred to the proper jurisdiction in Kansas where
the children no[w] reside. Any issues plead not herein ruled upon may be heard in that
jurisdiction upon the proper pleadings by either party."
On its face, the first sentence of that paragraph appears to transfer jurisdiction only over
contempt matters: "All other issues of contempt . . . are hereby transferred to the proper
jurisdiction in Kansas . . . ." (Emphasis added.) While the second sentence broadly refers
to "[a]ny issues plead [in Mississippi but] not herein ruled upon," saying that these issues
also may be heard in Kansas, we have no indication that any issues were before the
Mississippi court other than contempt proceedings over financial obligations. Neither the
State nor Father has cited any document that would have placed a custody issue for
pending action before the Mississippi court in 2012.
We recognize that appellate courts ordinarily presume that a trial court has made
the necessary findings to support its judgment. Here, though, the record is inconsistent
with that presumption, and we therefore refuse to make it. In similar cases, Kansas
appellate courts have refused to make the presumption and have remanded for proper
factual findings. See State v. Weber, 297 Kan. 805, 816, 304 P.3d 1262 (2013); Burch v.
Dodge, 4 Kan. App. 2d 503, 507, 608 P.2d 1032 (1980); City of Hutchinson v. Wegele,
No. 103,984, 2011 WL 4031511, at *2 (Kan. App. 2011) (unpublished opinion).
The record here is inconsistent with a presumption that either state's court made
the necessary findings to support a transfer of jurisdiction under the UCCJEA. There is
no indication that the Mississippi court had any matter related to child-custody before it
when it said in December 2012 that issues pled before it but not ruled upon should
thereafter be heard in Kansas. Nor do we have any indication that the Mississippi court
ever made any determination required under the UCCJEA to transfer child-custody
jurisdiction to Kansas. Nor do Father or the State cite any point at which the Mississippi
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court allowed the parties to be heard, as required by the UCCJEA, on whether Mississippi
had become an inconvenient forum.
Father and the State contend that any failure to make proper findings took place in
Mississippi, not Kansas, and that we should not be concerned with it. But the UCCJEA is
premised upon the coordination of courts in the two states. Here, the Kansas court could
not assume jurisdiction until it first had a sufficient basis to conclude that the Mississippi
court had made one of the two determinations required to transfer jurisdiction to
Kansas—either that Mississippi had become an inconvenient forum or that neither the
children nor the parents still had a significant connection with Mississippi and that
substantial evidence was no longer available in Mississippi about their care. The Kansas
court never had a sufficient basis to make that conclusion.
We recognize, of course, that in a telephone conversation, a Mississippi judge
(though not the one who had actually made the December 2012 order) told the Kansas
judge assigned to this case that he agreed that Mississippi had "conceded and transferred
jurisdiction" to Kansas. But he agreed that this had been done with the December 2012
order, and that order simply doesn't show that any of the required determinations were
made.
Because we have concluded that the Kansas court did not have subject-matter
jurisdiction, its orders were void as a matter of law and must be vacated. See In re
Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997); In re Adoption of
I.H.H.-L., 45 Kan. App. 2d 684, Syl. ¶ 6, 251 P.3d 651, rev. denied 292 Kan. 964 (2011).
But that doesn't necessarily end our case. Were we to order that the Kansas custody
orders be vacated and the Kansas action immediately dismissed, the Mississippi custody
order would immediately take effect, and the lives of two children could be disrupted
without appropriate transition or court action.
21
The Kansas court, like any other court, has the ability to consider whether it has
jurisdiction over the parties and over the subject matter of the litigation. See Gamblian v.
City of Parsons, 261 Kan. 541, 545-46, 931 P.2d 1238 (1997); Justus v. Justus, 208 Kan.
879, 881, 495 P.2d 98 (1972). As the United States Supreme Court once said: "Every
court of general jurisdiction has the power to determine whether the conditions essential
to its exercise exist." Texas & Pac. Ry. v. Gulf, Etc., Ry., 270 U.S. 266, 274, 46 S. Ct.
263, 70 L. Ed. 578 (1926).
In our case, whether the Kansas district court has subject-matter jurisdiction
continues to remain at issue. Although our record strongly suggests that the Mississippi
court never made the determinations required to transfer jurisdiction to the Kansas court,
it may have intended to make such findings. In a Kansas case, we would remand the
matter so that the district court could make the appropriate findings. See Weber, 297 Kan.
at 816; Burch, 4 Kan. App. 2d at 507; Wegele, 2011 WL 4031511, at *2. Given the
collaborative approach required of the courts in both states under the UCCJEA, a similar
remedy is appropriate here.
In addition, we cannot say whether any true emergency now exists; our factual
record ends at the time of the parties' trial in the Kansas district court.
Based on these considerations and our conclusion that the Kansas court did not
have subject-matter jurisdiction when it entered its judgment, we reverse its judgment,
order that it vacate the existing custody and visitation orders it had entered, and remand
for further proceedings consistent with this opinion. We have not vacated the orders
through this opinion because we want to allow the district court and the parties to confer
before some action is taken, recognizing that any action will have real consequences for
the children and their parents. On remand, the Kansas district court may exercise
jurisdiction over the case only if authorized under the UCCJEA. In making the
determination of its jurisdiction, the Kansas court may communicate with the Mississippi
22
court regarding any findings the Mississippi court may have already made or may need to
make if the Mississippi court seeks to transfer jurisdiction to Kansas.
We have published this opinion because we believe it will be instructive. Both the
judges and the attorneys who handle these cases often have heavy caseloads. Quite
reasonably, the cases are reviewed mostly at court hearings, and once a ruling is made on
one issue (e.g., that the court has jurisdiction or that the child is in need of care), the
parties move on to the next one. In both In re Z.E.H. and here, an early ruling was made
that the court had subject-matter jurisdiction without regard to the UCCJEA's provisions.
Both In re Z.E.H. and this case suggest that special care must be paid to these UCCJEA
jurisdictional issues; otherwise, a case may move on for an extended time period even
though the court lacks subject-matter jurisdiction. That is exactly what the UCCJEA's
provisions try to prevent.
We therefore reverse the district court's judgment, direct the district court to vacate
its existing custody and visitation orders, and remand the consolidated cases for further
proceedings consistent with the UCCJEA and this opinion.
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