Nevares v. Adoptive Couple

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 39
IN THE
SUPREME COURT OF THE STATE OF UTAH
BOBBY NEVARES,
Appellant,
v.
ADOPTIVE COUPLE,
Appellees.
No. 20151073
Filed August 26, 2016
On Certification from the Court of Appeals
Fourth District, Provo
The Honorable Claudia Laycock
No. 104402485
Attorneys:
Wesley D. Hutchins, West Jordan, for appellant
Brent D. Wride and Tiffany M. Brown, Salt Lake City, for appellees
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE HIMONAS joined.
JUSTICE PEARCE, opinion of the Court:
¶1 The district court dismissed Bobby Nevares’s action seeking
to establish his paternity in and custody of a child he believes to be
his son (Child). Child’s prospective adoptive parents (Adoptive
Couple) intervened and moved to dismiss, arguing that the district
court lacked subject matter jurisdiction under the Utah Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA). See
UTAH CODE § 78B-13-101 to -318. We agree that the district court
does not have subject matter jurisdiction to resolve custody issues
involving Child and therefore affirm the district court.
NEVARES v. ADOPTIVE COUPLE
Opinion of the Court
BACKGROUND
¶2 Nevares filed this action to establish paternity and custody
over Child. Both Nevares and Mother were, and remain, residents of
Colorado. According to Nevares, Child was conceived during a brief
relationship with Mother. Nevares did not become aware of the
pregnancy until August 2010—approximately six weeks before
Child’s birth. At that time, Mother informed Nevares of her intention
to place Child for adoption. In mid-September, Nevares visited a
Colorado-based adoption agency and indicated on an “Anticipated
Relinquishment Reply Form” that he intended to contest the
termination of his parental rights.
¶3 Mother knew of Nevares’s efforts to preserve his parental
rights. But Mother nevertheless travelled to Utah two days before
Child’s birth without telling Nevares. Mother gave birth to Child in
Utah on September 29, 2010, and on the next day she relinquished
Child to Adoption Center of Choice, a Utah-based adoption agency.
¶4 Nevares learned Child had been born in Utah, and filed a
petition in Utah district court to establish paternity. The petition,
filed in October 2010, asked for immediate and sole custody of Child.
Mother and Adoption Center of Choice opposed his petition,
arguing that Nevares was precluded from establishing paternity
because Mother was underage at the time of Child’s conception. See
UTAH CODE § 78B-6-111 (depriving unmarried biological fathers of
notice and any right to consent to an adoption involving a child
conceived as the result of a sexual offense). They also argued that
Nevares had failed to perfect his paternal rights as Utah law
requires. See id. § 78B-6-122. The district court agreed with Adoptive
Couple’s second argument and dismissed the case.
¶5 Nevares appealed the dismissal. In Nevares v. M.L.S.
(Nevares I), 2015 UT 34, 345 P.3d 719, this court affirmed the district
court’s ruling that Utah Code section 78B-6-111 did not apply
because the allegedly illegal sexual activity occurred between two
Colorado residents in Colorado and therefore lacked a sufficient
nexus to Utah to allow the application of section 78B-6-111. Nevares I,
2015 UT 34, ¶ 28. We concluded that Nevares would not have been
held liable for a sexual offense under Utah law and was therefore not
prevented from petitioning the court to establish his parental rights
to Child. Id. However, we also held that the district court erred when
it dismissed the case based upon Nevares’s failure to take certain
affirmative steps to perfect his parental rights. We concluded that the
district court erroneously interpreted Utah law to require Nevares to
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Opinion of the Court
avail himself of opportunities to establish his paternity under
Colorado law, when Colorado law permitted, but did not require,
such steps. Id. ¶ 24. We held that the district court’s interpretation of
Utah Code section 78B-6-122 violated due process principles because
“[i]f we construed Utah law to require Nevares to fulfill
requirements not imposed on him by Colorado law, we would be
holding him to a legal regime to which he could not reasonably have
expected to be bound.” Id. ¶ 25. We therefore reversed the district
court’s dismissal order and remanded for further proceedings. Id.
¶ 47.
¶6 At the time of the Nevares I decision, neither this court nor
Nevares knew Child’s whereabouts. Adoptive Couple first appeared
in the Utah litigation after remand from this court when Adoptive
Couple intervened in Nevares’s action to request that his suit be
dismissed. Invoking the UCCJEA, Adoptive Couple argued that
Illinois, and not Utah, had subject matter jurisdiction to make
custody determinations concerning Child. See UTAH CODE § 78B-13-
201. Adoptive Couple’s district court pleadings brought to light a
number of facts that the Utah courts, and presumably Nevares, had
not previously known.
¶7 Adoptive Couple explained that Adoption Center of Choice
placed Child with Adoptive Couple on the same day that Mother
relinquished her rights to Child. Adoptive Couple had travelled to
Utah from Illinois to accept Child into their lives. They remained in
Utah for another week before they returned to Illinois with Child.
Child was living in Illinois when Nevares filed his Utah paternity
suit on October 18, 2010. Except for the first eight days of his life,
Child has resided in Illinois. Adoptive Couple filed an adoption
action in an Illinois court on November 4, 2010, and that same day
the Illinois court issued an interim custody order granting them
physical custody of Child. Adoptive Couple’s Illinois adoption case
remains pending.
¶8 After Adoptive Couple made the district court aware of this
factual history, the district court granted their motion to dismiss. The
district court concluded that Utah was not Child’s home state for
purposes of Utah Code section 78B-13-201, as Child was not living in
Utah with a parent or person acting as a parent at the time Nevares
filed his action. The district court therefore dismissed the case for
lack of subject matter jurisdiction. The district court also determined
that even if Utah had been Child’s home when Nevares filed his
action, Utah is no longer a convenient forum to resolve the dispute.
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NEVARES v. ADOPTIVE COUPLE
Opinion of the Court
For this reason, the district court ruled that even if it possessed
jurisdiction, it would decline to exercise it. See id. § 78B-13-207.
¶9 Nevares appeals.
ISSUES AND STANDARD OF REVIEW
¶10 Nevares raises multiple arguments challenging the district
court’s dismissal order, but we resolve his appeal on the threshold
question of Utah’s subject matter jurisdiction under the UCCJEA. 1
“‘Whether a district court has subject matter jurisdiction is a question
of law’ and we review the district court’s determination for
correctness.” Summerhaze Co. v. Federal Deposit Insurance, 2014 UT 28,
¶ 8, 332 P.3d 908 (citation omitted).
ANALYSIS
¶11 The UCCJEA closely follows a model act that has been
adopted in Utah, Illinois, and every other state except for
Massachusetts. See UNIFORM CHILD CUSTODY JURISDICTION &
ENFORCEMENT ACT, 9 U.L.A. 655 (1997). 2 The model act exists to
“[a]void jurisdictional competition and conflict with courts of other
States in matters of child custody.” Id. § 101 cmt.; see also Stephens v.
Fourth Judicial District Court, 128 P.3d 1026, 1029 (Mont. 2006)
(identifying one of the UCCJEA’s primary purposes as “avoiding the
jurisdictional competition and conflict that flows from hearings in
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1 Because we conclude that Utah lacks subject matter jurisdiction,
we need not address the district court’s alternate ruling that Utah is
an inconvenient forum to litigate Nevares’s claims.
2 Nevares asserts that the UCCJEA does not control because it
“does not govern . . . an adoption proceeding.” See UTAH CODE
§ 78B-13-103(2). The district court was asked to examine whether the
UCCJEA gave it jurisdiction over the paternity and custody action
before it. And the custody determination that Nevares sought from
the district court falls squarely within the UCCJEA’s orbit.
At oral argument, Nevares suggested for the first time that the
UCCJEA would permit him to bifurcate the paternity action from the
custody determination and continue to litigate the question of
paternity in Utah. Whether the UCCJEA would permit that course of
action had Nevares requested it in the district court is an issue that
was not preserved, nor was it argued in the briefs. Accordingly, we
do not resolve it.
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Opinion of the Court
competing states when each state substantively reviews subjective
factors, such as ‘best interest,’ for purposes of determining initial
jurisdiction.”). To that end, the UCCJEA promotes a framework
wherein a single state is vested with jurisdiction to make child
custody determinations and a uniform set of rules to determine
which state is best positioned to adjudicate custody disputes. See
People ex rel. A.J.C., 88 P.3d 599, 615 (Colo. 2004) (“Because the
jurisdictional provisions of the UCCJEA were crafted specifically to
preclude simultaneous claims of jurisdiction by more than one state,
it is clear under its provisions that a single jurisdiction has priority of
jurisdiction.”).
¶12 The UCCJEA centers much of its analytical weight on the
concept of “an initial child custody determination.” See UTAH CODE
§ 78B-13-201(1). Before a court can make an initial child custody
determination, it must assess whether it has jurisdiction under the
UCCJEA. Id. § 78B-13-201(1); see also id. § 78B-13-102(8) (“‘Initial
determination’ means the first child custody determination
concerning a particular child.”). Once a state makes an initial child
custody determination, that state obtains exclusive, continuing
jurisdiction, which exists until that state relinquishes or is divested of
its exclusive jurisdiction in accordance with the UCCJEA or a similar
act. See id. § 78B-13-202.
¶13 Despite the fact that this case has been pending in Utah for
more than five years, it appears that Utah has never made an initial
child custody determination with respect to Child. At least no party
has directed this court’s attention to any order that the UCCJEA
would deem to be an initial custody determination. So, when
Adoptive Couple moved to dismiss, the question for the district
court was whether it had jurisdiction to make an initial custody
determination. 3
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3 It is less clear whether the Illinois courts have made an initial
custody determination. The Illinois case bounced between at least
five different judges over a number of years. And our district court
concluded that “[o]n November 10, 2010, Illinois made an interim
custody order granting [Adoptive Couple] physical custody of
Child.” If the November 2010 Illinois order is a valid initial custody
order, then Illinois gained exclusive jurisdiction over Child, and
Illinois would have exclusive, continuing jurisdiction. See 750 ILL.
COMP. STAT. 36/202; UTAH CODE § 78B-13-203 (providing that Utah
(continued . . .)
5
NEVARES v. ADOPTIVE COUPLE
Opinion of the Court
¶14 Utah Code section 78B-13-201 defines when a Utah court
“has jurisdiction to make an initial child custody determination.”
UTAH CODE § 78B-13-201(1). Except in circumstances implicating
temporary emergency jurisdiction, a Utah court can make an initial
child custody determination only if
(a) this state is the home state of the child on the
date of the commencement of the proceeding, or was
the home state of the child within six months before the
commencement of the proceeding and the child is
absent from this state but a parent or person acting as a
parent continues to live in this state;
(b) a court of another state does not have
jurisdiction under Subsection (1)(a), or a court of the
home state of the child has declined to exercise
jurisdiction on the ground that this state is the more
appropriate forum under Section 78B-13-207 or 78B-13-
208; and
(i) the child and the child’s parents, or the child
and at least one parent or a person acting as a
parent have a significant connection with this state
other than mere physical presence; and
(ii) substantial evidence is available in this state
concerning the child’s care, protection, training, and
personal relationships;
(c) all courts having jurisdiction under Subsection
(1)(a) or (b) have declined to exercise jurisdiction on the
ground that a court of this state is the more appropriate
forum to determine the custody of the child under
Section 78B-13-207 or 78B-13-208; or
_____________________________________________________________
cannot modify a child custody determination entered by another
state unless, in addition to other requirements, Utah has jurisdiction
under Utah Code section 78B-13-201(1)(a) or (b)). Neither party,
however, addressed this basis for potential affirmance. We will
proceed, as the district court did, under the assumption that Nevares
has asked the Utah courts to make the initial custody decision with
respect to Child.
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Opinion of the Court
(d) no state would have jurisdiction under
Subsection (1)(a), (b), or (c).
Id. To evaluate whether the district court has UCCJEA jurisdiction
over Nevares’s action, we must walk through subsections (1)(a),
(1)(b), and (1)(c). If none of those subsections provide a basis for
Utah to exercise jurisdiction, we must determine under subsection
(1)(d) whether any other state—in this case, Illinois—would have
jurisdiction under subsections (1)(a), (1)(b), or (1)(c).
¶15 Utah lacks jurisdiction under section 78B-13-201(1)(a), which
requires us to decide whether Utah was Child’s “home state” on the
day Nevares filed his petition. UCCJEA defines a child’s home state
as
the state in which a child lived with a parent or a
person acting as a parent for at least six consecutive
months immediately before the commencement of a
child custody proceeding. In the case of a child less
than six months of age, the term means the state in
which the child lived from birth with any of the
persons mentioned. A period of temporary absence of
any of the mentioned persons is part of the period.
Id. § 78B-13-102(7).
¶16 Child was born in Utah and remained here for the first eight
days of his life. During those eight days, Utah was arguably Child’s
home state for UCCJEA purposes. But Utah ceased to be Child’s
home state once he moved to Illinois with Adoptive Couple. At that
point, no state met the UCCJEA’s definition of Child’s home state.
But once Child had resided in Illinois for six months, it became
Child’s home state. 4 See Doe v. Baby Girl, 657 S.E.2d 455, 463 (S.C.
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4 Nevares claims that “Utah has been determined to be the ‘home
state’ of [Child], as recognized by the Colorado court, and by all the
proceedings that have occurred thus far over a period of years in
Utah, including a Utah Supreme Court decision in favor of [Nevares]
in Nevares I.” Nevares provides no record citation for this assertion
and we could find no reference to anything in the record suggesting
that any Utah court has, at any time, determined that Utah met the
UCCJEA’s definition of home state. We are confident, however, that
Nevares I did not ask this court to determine Child’s home state. We
(continued . . .)
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NEVARES v. ADOPTIVE COUPLE
Opinion of the Court
2008) (“[C]ourts in several jurisdictions have decided that when a
baby who is born in one State, but within days of birth is transported
to another State, the baby simply has no home State.”); In re Baby
Girl F., 932 N.E.2d 428, 440 (Ill. App. Ct. 2008) (“Because Baby Girl
was born in Illinois, but within four days of birth was transported to
South Carolina, the South Carolina Supreme Court found that Baby
Girl had no home state. The Illinois trial court agreed.”). But see, e.g.,
Adoption House, Inc. v. A.R., 820 A.2d 402, 409 (Del. Fam. Ct. 2003)
(concluding that a two-month-old, although born in a Pennsylvania
hospital, had “lived from birth” in Delaware for purposes of a
UCCJEA home-state determination).
¶17 Section 78B-13-201(1)(a), which examines whether Utah has
“home state” jurisdiction, grants Utah the jurisdiction to make an
initial child custody determination over Child in this proceeding
only if (1) Utah was Child’s home state at the date of commencement
of the proceeding or (2) Utah was Child’s home state within six
months of commencement and a parent or person acting as a parent
continues to live in Utah. Utah was not Child’s home state when
Nevares commenced his action on October 18, 2010, because Child
had moved to Illinois twelve days earlier. And even if Utah was
Child’s home state for the first eight days of his life, neither a parent
nor a person acting as a parent continues to live in Utah. Thus, Utah
does not have UCCJEA jurisdiction to make an initial child custody
determination under section 78B-13-201(1)(a).
¶18 Utah also lacks jurisdiction under section 78B-13-201(1)(b),
which requires a significant connection between a child and the state
of Utah. Even if its other requirements are met, section 78B-13-
201(1)(b) does not confer UCCJEA jurisdiction on Utah unless Child,
as well as at least one parent or person acting as a parent, currently
has “a significant connection with this state other than mere physical
presence.” UTAH CODE § 78B-13-201(1)(b)(i). Child has not resided in
Utah for over five years and has no apparent connection with Utah
aside from it being his birthplace and the home of Nevares’s
paternity litigation. And Nevares has not identified any “substantial
evidence . . . available in this state concerning [Child’s] care,
protection, training, and personal relationships.” Id. § 78B-13-
_____________________________________________________________
are also confident that, contrary to Nevares’s counsel’s
representation, we did not do so.
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Opinion of the Court
201(1)(b)(ii). For these reasons, UCCJEA jurisdiction does not exist
under section 78B-13-201(1)(b).
¶19 Utah also lacks jurisdiction under section 78B-13-201(1)(c),
which confers jurisdiction on Utah if “all courts having jurisdiction
under Subsection (1)(a) or (b) have declined to exercise jurisdiction
on the ground that a court of this state is the more appropriate forum
. . . .” Id. § 78B-13-201(1)(c). There is no indication that any state that
may have jurisdiction under subsection (1)(a) or (b)—particularly,
Illinois—has declined to exercise jurisdiction on the ground that
Utah is a more appropriate forum.
¶20 Because Utah lacks UCCJEA jurisdiction under the first
three subsections of section 78B-13-201(1), the district court may
issue an initial custody determination only if “no state would have
jurisdiction under Subsection (1)(a), (b), or (c).” Id. § 78B-13-
201(1)(d). No other state, including Illinois, would have jurisdiction
under subsection (1)(a) for the same reason that Utah does not. Child
had no “home state” at the time Nevares commenced this
proceeding because, at that time, seventeen-day-old Child had not
lived “from birth” in any one state, having split his short time on
earth between Utah and Illinois. See id. § 78B-13-102(7).
¶21 But Illinois does have jurisdiction under section 78B-13-
201(1)(b). No other state has jurisdiction under subsection (1)(a), nor
is there a home state that has declined to exercise jurisdiction. See id.
§ 78B-13-201(1)(b), (c). Both Adoptive Couple—each of whom
qualifies as a person acting as a parent to Child 5—and Child himself
“have a significant connection with [Illinois] other than mere
physical presence,” as Illinois has been their domicile for more than
five years. Id. § 78B-13-201(1)(b)(i); 750 ILL. COMP. STAT. 36/201.
There is also substantial evidence available in Illinois regarding
_____________________________________________________________
The UCCJEA defines a “person acting as a parent” as
5
a person, other than a parent, who: (a) has physical
custody of the child or has had physical custody for a
period of six consecutive months, including any
temporary absence, within one year immediately
before the commencement of a child custody
proceeding; and (b) has been awarded legal custody by
a court or claims a right to legal custody under the law
of this state.
UTAH CODE § 78B-13-102(13).
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NEVARES v. ADOPTIVE COUPLE
Opinion of the Court
Child’s “care, protection, training, and personal relationships.” UTAH
CODE. § 78B-13-201(1)(b)(ii). Thus, Illinois has jurisdiction to decide
Child’s custody consistent with the UCCJEA’s “premise that the
jurisdiction with the most evidence should make the custody
decision . . . .” Kelly Gaines Stoner, The Uniform Child Custody
Jurisdiction & Enforcement Act (UCCJEA)—A Metamorphosis of the
Uniform Child Custody Jurisdiction Act (UCCJA), 75 N.D. L. REV. 301,
314 (1999).
¶22 Because Illinois would have jurisdiction to make an initial
child custody decision over Child under Utah Code section 78B-13-
201(1)(b), Utah lacks UCCJEA jurisdiction. For these reasons, the
district court correctly dismissed the action for lack of subject matter
jurisdiction. See Ramsay v. Kane Cty. Human Res. Special Serv. Dist.,
2014 UT 5, ¶ 17, 322 P.3d 1163 (“[W]hen a court determines it lacks
subject matter jurisdiction, it ‘retains only the authority to dismiss
the action.’” (citation omitted)).
¶23 The lack of subject matter jurisdiction resolves this appeal as
a matter of law. We acknowledge that a reader might question why
five years into litigation we now address the issue of subject matter
jurisdiction, especially in light of the fact that we have already
considered and ruled on the substantive issues presented in Nevares
I—a case that issued long after Child left Utah in 2010. See 2015 UT
34, 345 P.3d 719. Had the district court been aware of Child’s
relocation prior to Nevares I—or had we become aware of that fact
during the pendency of Nevares I—it is quite likely that the question
of subject matter jurisdiction would have been resolved earlier. See
Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1151 (Utah 1995)
(“[S]ubject matter jurisdiction is an issue that can and should be
addressed sua sponte when jurisdiction is questionable.”); Barnard v.
Wassermann, 855 P.2d 243, 248 (Utah 1993) (“[C]hallenges to subject
matter jurisdiction may be raised at any time . . . .”). Unfortunately
for all parties involved, no party informed this Court that Child had
been moved to Illinois.6
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6 There is no indication in the record that either Nevares or the
district court had reason to believe that Child had relocated to
Illinois until after we decided Nevares I. The UCCJEA seeks to
harmonize the efforts of courts located in different states by
encouraging communication between those courts. See UTAH CODE
§ 78B-13-110; 750 ILL. COMP. STAT. 36/110. Time and resources could
(continued . . .)
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Opinion of the Court
¶24 Nevares’s remaining arguments can be divided into two
categories: those that attack the district court’s dismissal and those
that ask Utah to assume jurisdiction based upon perceived issues
with litigation in Illinois and Adoptive Couple’s conduct.
¶25 As to the first category, Nevares primarily argues that the
district court prematurely granted Adoptive Couple’s motion to
dismiss by converting it into a motion for summary judgment and
disregarding his pleas for additional discovery under Utah Rule of
Civil Procedure 56(f). A district court can consider evidence outside
the pleadings on a rule 12(b)(1) motion without converting it to a
motion for summary judgment. See Wheeler v. McPherson, 2002 UT 16,
¶ 20, 40 P.3d 632 (stating that rule 12 “does not convert motions
based on subsections (b)(1) through (5) . . . into motions for summary
judgment simply because they include some affirmative evidence
relating to the basis for the motion.” (omission in original) (citation
omitted)). 7 And while there may be factual disputes between the
_____________________________________________________________
have been saved—and lengthy uncertainty for both Child and the
parties, each of whom wish to be Child’s legal parent, prevented—
had the Illinois court communicated with the Utah district court as
the UCCJEA contemplates or if the Utah courts had been made
aware earlier of the pending action in Illinois.
7 We confess some frustration with Nevares’s briefing on this
issue. Nevares cites a number of cases discussing rule 12(b)(6) to
support his argument. But Nevares never bothers to analyze how
those cases might apply to a rule 12(b)(1) motion, nor does he
acknowledge, let alone seek to distinguish, our case law that directly
contradicts the argument he seeks to make. See Wheeler, 2002 UT 16,
¶ 20. If an attorney believes he can meet the burden of convincing
this court to overturn its precedent, he should make that argument.
See ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65, ¶ 23,
245 P.3d 184 (“Any party asking a court ‘to overturn prior precedent
ha[s] a substantial burden of persuasion . . . . mandated by the
doctrine of stare decisis.’” (first alteration in original) (citation
omitted)); State v. Menzies, 889 P.2d 393, 399 (Utah 1994) (“[We] will
follow the rule of law which [we have] established in earlier cases,
unless clearly convinced that the rule was originally erroneous or is
no longer sound because of changing conditions and that more good
than harm will come by departing from precedent.” (citation
omitted)). An attorney should not, however, ignore and
(continued . . .)
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NEVARES v. ADOPTIVE COUPLE
Opinion of the Court
parties, the facts pertaining to UCCJEA jurisdiction—primarily,
Child’s long-term residence in Illinois—are not in dispute.
¶26 Nevares also argues that the federal Parental Kidnapping
Prevention Act (PKPA) grants Utah jurisdiction because Nevares
filed his action in Utah before Adoptive Couple filed in Illinois. See
28 U.S.C. § 1738A(g) (“A court of a State shall not exercise
jurisdiction in any proceeding for a custody or visitation
determination commenced during the pendency of a proceeding in a
court of another State where such court of that other State is
exercising jurisdiction consistently with the provisions of this section
to make a custody or visitation determination.”). But Nevares fails to
account for the fact that the model act that forms the basis of the
UCCJEA “was promulgated after the PKPA and intended to
harmonize state law with the provisions of the PKPA.” In re L.S., 257
P.3d 201, 205 (Colo. 2011). Indeed, the UCCJEA and the PKPA
contain “the same bases to establish initial jurisdiction . . . .” Id. at
206; compare UTAH CODE § 78B-13-201(1), with 28 U.S.C. § 1738A(c). 8
Consistent with our UCCJEA analysis, and in light of Child’s five-
plus years of residency in Illinois, Utah is not presently “exercising
jurisdiction consistently with the provisions of [the UCCJEA and
PKPA] to make a custody or visitation determination.” See 28 U.S.C.
§ 1738A(g). And the PKPA does not confer subject matter
jurisdiction that would not exist under the UCCJEA. In other words,
the PKPA did not prevent the district court from recognizing that it
lacked jurisdiction to make an initial custody determination.
¶27 Nevares’s second category of arguments, those that assert
Illinois lacks personal jurisdiction over him and attack Adoptive
Couple’s standing to bring their adoption action in Illinois, fail here
because they should be directed to the Illinois courts. The Illinois
court can determine whether it can properly assert personal
jurisdiction over Nevares, as well as the impact of the actions that
Nevares alleges Adoptive Couple have taken with unclean hands.
_____________________________________________________________
misrepresent precedent, no matter how inconvenient that law may
be to the argument he wishes to press.
8 We note that both the UCCJEA and its Illinois counterpart
contain language nearly identical to the PKPA provision that
Nevares cites. See UTAH CODE § 78B-13-206(1); 750 ILL. COMP. STAT.
36/206(a).
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Opinion of the Court
Those arguments cannot, as Nevares urges, serve as a sort of
philosopher’s stone to create subject matter jurisdiction where none
exists.
¶28 Finally, we reject Nevares’s argument that the district
court’s dismissal order deprives him of his substantive and
procedural due process rights. Nevares has not been denied the
opportunity to be heard, as he can still pursue his claims in the
Illinois courts. 9
CONCLUSION
¶29 The UCCJEA creates a uniform and predictable method for
determining which state has jurisdiction to make child custody
decisions. To that end, the UCCJEA will sometimes sacrifice a party’s
choice of forum on the altar of uniformity and predictability. Here,
the UCCJEA mandates that Utah has no subject matter jurisdiction,
despite the time and effort Nevares and the Utah court system have
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9 Adoptive Couple request an award of their attorney fees
incurred on appeal. Adoptive Couple’s request more closely
resembles an airing of grievances than an argument designed to
convince this court to award fees. We sympathize with some of
Adoptive Couple’s grievances—as noted above, Nevares
mischaracterizes the record and ignores precedent. Adoptive Couple
do not, however, tie their grievances to any Utah Rule of Appellate
Procedure that would authorize us to award fees. For example,
Adoptive Couple do not claim that the appeal was taken for delay or
was frivolous under rule 33 of the Utah Rules of Appellate
Procedure. UTAH R. APP. P. 33(a). Nor do they develop an argument
under rule 24(k) that Nevares’s briefs failed to “be concise, presented
with accuracy, logically arranged with proper headings and free
from burdensome, irrelevant, immaterial or scandalous matters.” Id.
at 24(k). The Utah Court of Appeals has awarded fees under rule
24(k) where the failure to file a rule 24-compliant brief “placed a
tremendous burden of factual and legal research on [opposing
counsel].” Simmons Media Grp., LLC v. Waykar, LLC, 2014 UT App
145, ¶ 48, 335 P.3d 885 (alteration in original) (citation omitted). But
Adoptive Couple do not explicitly contend that Nevares’s briefing
imposed this type of burden upon them. Recognizing that a brief
that “fails to do its job is, in a sense, its own sanction,” we deny
Adoptive Couple’s request for attorney fees. Demetropoulos v.
Vreeken, 754 P.2d 960, 962 (Utah Ct. App. 1988).
13
NEVARES v. ADOPTIVE COUPLE
Opinion of the Court
dedicated to adjudicating the dispute here, and the district court did
not err by dismissing Nevares’s complaint on that basis. We
emphasize that we are not resolving any of the substantive issues
that Nevares raises concerning paternity and custody. But because
we lack subject matter jurisdiction, Nevares must seek relief from the
Illinois court.
14