Carson v. Carson

565 P.2d 763, 29 Or. App. 861, 1977 Ore. App. LEXIS 2459
CourtCourt of Appeals of Oregon
DecidedJune 13, 1977
Docket76-5582, CA 7600
StatusPublished
Cited by32 cases

This text of 565 P.2d 763 (Carson v. Carson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carson v. Carson, 565 P.2d 763, 29 Or. App. 861, 1977 Ore. App. LEXIS 2459 (Or. Ct. App. 1977).

Opinions

[863]*863JOHNSON, J.

The father seeks custody of his daughter, age 6, under the Uniform Child Custody Jurisdiction Act, ORS 109.700 to 109.930. He appeals the decision of the trial court declining jurisdiction on the grounds that Oregon is an inconvenient forum. The matter is before us on the pleadings and affidavits of the parties and there is no dispute as to the facts.

The marriage of the mother and father was dissolved by decree of the California Superior Court, Los Angeles County, on November 26, 1973. The decree awarded the father custody of the daughter, and the father and daughter have resided in Oregon ever since. The mother continues to be a California resident. Until June 1976 visitation by the mother was infrequent. At that time the father sent the child to California to visit the mother for an agreed period of approximately two months. The father subsequently arranged to have his brother pick up the child in Los Angeles to bring her to Oregon, but the mother refused to turn over the child to the brother. She advised the father that she would turn over the child if he would personally come to Los Angeles and that she intended to have him served with process in order to institute change of custody proceedings. While in California the father was personally served to appear before the Los Angeles Superior Court upon the mother’s motion to modify the original custody decree. The husband returned to Oregon with the daughter.

Subsequently, the Los Angeles Superior Court held a hearing at which both the mother and father appeared and testified. On October 15, 1976 the Los Angeles Superior Court entered an order awarding custody to the mother. Four days later the father instituted this proceeding in Oregon. Concurrently he filed a notice of appeal in California, but later abandoned the appeal on December 21,1976. On November 24,1976 the trial court allowed the mother’s motion to decline jurisdiction. Following abandonment of his [864]*864appeal in California the father moved for a reconsideration of the trial court’s order declining jurisdiction. This motion was also denied, and the father appeals the denial. In addition the trial court has entered orders restraining the mother from removing the child from Oregon during these proceedings during the pendency of the appeal.

The purposes of the Uniform Child Custody Jurisdiction Act are set forth in ORS 109.720 which provides:

"(1) The general purposes of ORS 109.700 to 109.930 are to:
"(a) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
"(b) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
"(c) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
"(d) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
"(e) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;
"(f) Avoid relitigation of custody decisions of other states in this state in so far as feasible;
"(g) Facilitate the enforcement of custody decrees of other states;
"(h) Promote and expand the exchange of information and other forms of mutual assistance between the [865]*865courts of this state and those of other states concerned with the same child; and
"(i) Make uniform the law of those states which enact it.
"(2) ORS 109.700 to 109.930 shall be construed to promote the general purposes stated in this section. <<*****”

Under the Act the court must go through a multistep process in determining whether to exercise jurisdiction. First it must ascertain whether it has jurisdiction under ORS 109.730. If it finds that there is jurisdiction, then the court must determine whether there is a custody proceeding pending or a decree in another state which presently has jurisdiction. If so, the Oregon court must decline to exercise its jurisdiction. ORS 109.760C1)1 and 109.840(1).2 Finally, assuming the court has jurisdiction and there is not a proceeding pending or a decree, the court then must determine under ORS 109.770 and 109.780 whether to exercise its jurisdiction because of convenient forum.

An Oregon court has jurisdiction of this case by virtue of ORS 109.730(l)(a) because "this state * * * had been the child’s home state within six months before commencement of the proceeding * * There is not a pending proceeding in California that would preclude jurisdiction under ORS 109.760 because the [866]*866husband had abandoned his appeal in that state. The husband also argues that Oregon is not precluded under ORS 109.840 from exercising jurisdiction because of the existing California modification decree because California does "not now have jurisdiction” as provided in that state. We need not reach this question because California did have jurisdiction at the time of the modification proceeding and Oregon is an inconvenient forum under ORS 109.770.

The father argues that since Oregon was at the time of the modification the child’s home state, California did not have jurisdiction. We would agree that if California did not have jurisdiction, then Oregon may have been an appropriate forum. However, we conclude that California did have jurisdiction. California, like Oregon, has the Uniform Act, Cal Civ Code, §§ 5150-5174 (West 1970).

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Bluebook (online)
565 P.2d 763, 29 Or. App. 861, 1977 Ore. App. LEXIS 2459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carson-v-carson-orctapp-1977.