Bakke v. DISTRICT COURT 4TH JUD. DIST.

719 P.2d 313
CourtSupreme Court of Colorado
DecidedMay 19, 1986
Docket85SA402
StatusPublished

This text of 719 P.2d 313 (Bakke v. DISTRICT COURT 4TH JUD. DIST.) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bakke v. DISTRICT COURT 4TH JUD. DIST., 719 P.2d 313 (Colo. 1986).

Opinion

719 P.2d 313 (1986)

Jennifer BAKKE, Petitioner,
v.
The DISTRICT COURT In and For the FOURTH JUDICIAL DISTRICT of the State of Colorado, and the Honorable William E. Rhodes, One of the Judges Thereof, Respondents.

No. 85SA402.

Supreme Court of Colorado, En Banc.

May 19, 1986.

*314 Stephanie H. Yukawa, Ranson, Thomas & Yukawa, Colorado Springs, for petitioner.

Judith Ward Mattox, Colorado Springs, for respondents.

DUBOFSKY, Justice.

In this original proceeding we issued a rule to show cause why the El Paso County District Court should not be required to reinstate a petition for enforcement of a *315 child custody decree and change of visitation in order to exercise its discretion regarding whether jurisdiction to consider the petition is in Colorado. We now make the rule absolute.

I.

On March 23, 1983, the District Court of Oklahoma County, Oklahoma, entered a decree of judgment declaring William C. Brandon to be the biological father of Angela Nicole Brandon and William Clark Brandon II. Brandon and Jennifer Bakke, the children's mother, had never been married, and the children had lived with their mother continuously since birth. On April 12, 1984, the court ordered Brandon to make support payments and awarded Brandon visitation rights. On October 11, 1984, Brandon filed an application for a contempt order, alleging that Bakke had refused to notify him regarding the children's school activities and caused the children to use the name "Bakke," not "Brandon." The Oklahoma court issued a contempt citation and ordered Bakke to appear November 14, 1984. When Bakke failed to appear on November 14, the court issued a bench warrant for her arrest. Bakke claims that she left Oklahoma between October 20 and October 22, 1984, and that she arrived in Colorado at the beginning of November. On January 2, 1985, Bakke wrote to the clerk of courts in Oklahoma, stating that she did not respond to the contempt citation because she moved to Colorado at the beginning of November and her finances would not allow her to travel back to Oklahoma.

On April 4, 1985, Brandon, who by then had resided in Arkansas for approximately two years, filed a motion in Oklahoma to modify child custody. In June, Bakke requested that the Oklahoma court deny jurisdiction, but the court refused to do so. On August 19, 1985, Bakke filed a petition in the District Court of El Paso County to enforce her Oklahoma custody decree and to modify visitation.[1] On August 20, 1985, after a hearing in Oklahoma on Brandon's motion, at which Bakke's attorney made a special appearance, the Oklahoma judge, purportedly acting under Oklahoma's Uniform Child Custody Jurisdiction Act, transferred custody to Brandon and issued a pick-up order for the children, requiring the appropriate law enforcement officer to take physical custody of the children, then ages 5 and 7, and to deliver them to a state department of human services or other licensed child welfare agency for safekeeping until Brandon presented himself to claim the children.[2]

After Brandon challenged the Colorado court's jurisdiction by filing a special appearance, the El Paso County district judge wrote a letter to the Oklahoma judge requesting that the Oklahoma court stay proceedings in Oklahoma because Bakke was in Colorado, it had been stipulated that the children had been residents of Colorado for more than six months, the children were both in school in Colorado, information concerning the children's well-being was in Colorado, and proceeding in Colorado would be in the best interest of the children.[3] The Oklahoma judge responded that Bakke had refused to provide Brandon with her Colorado address, that she had *316 changed the children's names to Bakke, that she had denied Brandon visitation since October 20, 1984, that she was seeking to destroy the children's relationship with their father, and that because Bakke had openly defied his court order, the Uniform Child Custody Act did not come into play. Contrary to statements in the letter from the Oklahoma judge, when Bakke left Oklahoma she was not under a contempt citation for failure to allow visitation. The contempt citation concerned her failure to provide Brandon with the children's school activity reports and her failure to use the children's correct legal names. Nothing in the application for the contempt citation nor the court's contempt order concerned visitation. On October 23, 1985, the El Paso County district court dismissed Bakke's petition, finding that Colorado did not have jurisdiction because the Oklahoma court refused to relinquish jurisdiction.

II.

Bakke asserts that the district court erroneously concluded that it could not proceed based on the Oklahoma judge's letter of October 1, 1985. In deciding whether a trial court erroneously dismissed a case because of lack of jurisdiction, this court inquires into whether jurisdiction exists in Colorado and whether the trial court should exercise jurisdiction. Barden v. Blau, 712 P.2d 481 (Colo.1986); McCarron v. District Court, 671 P.2d 953 (Colo.1983); see Johnson v. District Court, 654 P.2d 827 (Colo. 1982). Jurisdiction in child custody cases is governed by section 14-13-104(1), 6 C.R.S. (1973), which provides as follows:

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state is the home state of the child at the time of commencement of the proceeding, or had been the child's home state within six months before commencement of the proceeding, and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this state and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or
(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b), or (c) of this subsection (1), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.

In this case we believe that the El Paso County district court would have had jurisdiction under subsections 14-13-104(1)(a) or (1)(b).[4] The parties stipulated that the children had been residents of Colorado for more than six months; Colorado was therefore the home state of the children at the time of the commencement of the proceeding in the El Paso County *317 district court.

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719 P.2d 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bakke-v-district-court-4th-jud-dist-colo-1986.