Crump v. Crump

821 P.2d 1172, 174 Utah Adv. Rep. 20, 1991 Utah App. LEXIS 171, 1991 WL 245490

• Court: Court of Appeals of Utah
• Decided: November 22, 1991
• Docket: 900362-CA
• Status: Published

Opinions

OPINION

JACKSON, Judge:

Robert Crump appeals the lower court’s denial of his petition to modify a Montana court’s award of joint custody to him and Carolyn Crump, of their four children. We dismiss the appeal.

FACTS

Mr. and Mrs. Crump were granted a decree of divorce on December 7, 1983, by a Montana district court. Prior to a hearing on the issue of child custody, Mrs. Crump moved with the parties’ four children from Montana to Utah. In August 1985, the Montana district court awarded Mr. Crump and Mrs. Crump joint legal custody of the children, with primary physical custody awarded to Mrs. Crump. In February 1989, Mr. Crump filed a petition in Utah to modify the Montana custody decree. The petition alleged a material change of circumstances, and urged that Mr. Crump be awarded primary physical custody of the children. Mr. Crump resided in Montana at the time he filed his petition, and has been a resident of that state at all times relevant to the present case. On April 24 and May 4 of 1990, the trial court in Utah heard evidence and denied the petition to modify the prior custody decree. However, the court made a slight change in the visitation provisions and modified the child support provisions of that decree.

Mr. Crump appeals the trial court’s denial of his petition to modify the custody order. On appeal, Mr. Crump raises three issues, claiming: (1) the trial court committed error in applying the standard for reviewing a petition to modify a child custody award; (2) the trial court abused its discretion in not modifying the award; and (3) the trial court committed error in failing to admit certain evidence.

JURISDICTION

A threshold issue is whether or not this court has jurisdiction to hear the appeal. If a court lacks jurisdiction “it has not power to entertain the suit.” Curtis v. Curtis, 789 P.2d 717, 726 (Utah App.1990) (citation omitted). Not only can a court not entertain the suit, the parties cannot cure the jurisdictional defect by waiver or consent. Mrs. Crump’s argument, and the dissent’s assertion that because “Mr. Crump voluntarily and affirmatively engaged the Utah courts ... he waived any question regarding authority of the Utah courts to decide the issue ... and has thus waived any objection to the district court's authority to exercise its jurisdiction,” is without merit. We have held that

while defects in personal jurisdiction can be waived, subject matter jurisdiction goes to the very power of a court to entertain an action. A lack of subject matter jurisdiction cannot be stipulated around nor cured by a waiver. A lack of subject matter jurisdiction can be raised at any time and when subject matter jurisdiction does not exist, neither the parties nor the court can do anything to fill that void.

Id. (citations omitted) (emphasis added). The issue of waiver has been addressed by this court, see id., by our supreme court, and by the federal courts of appeal. See, e.g., McDougald v. Jenson, 786 F.2d 1465, 1484-85 (11th Cir.), cert. denied by Jenson v. McDougald, 479 U.S. 860, 107 S.Ct. 207, 93 L.Ed.2d 137 (1986) (No waiver of jurisdictional defect in modification of child custody case even where father had consented to jurisdiction of Washington court, which court did not have jurisdiction); A.J. Mackay Co. v. Okland Constr. Co., Inc., 817 P.2d 323, 325 (Utah 1991) (“[Acquiescence of the parties is insufficient to confer jurisdiction on the court, and a lack of jurisdiction can be raised by the court or either party at any time.”); see also Annotation, Child Custody: When Does State That Issued Previous Custody Determination Have Continuing Jurisdiction Under Uniform Child Custody Jurisdiction Act (UCCJA) Or Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A, 83 A.L.R.4th 742, 748 (1991) [hereinafter Annotation] (citation omitted) (“[Sjubject matter jurisdiction under [the relevant child, custody statutes] cannot be vested by agreement of the parties, even though all of the parties desire an adjudication on the merits, and such jurisdiction cannot be conferred on the court by a party’s failure to interpose a timely objection to the court’s assumption of jurisdiction.”). Therefore, we must determine if, under the applicable statutes, the courts of this state have jurisdiction to modify the Montana child custody award, and not ignore this issue on the basis of waiver simply because Mr. Crump came to Utah to initiate the action.

A. Jurisdiction under the PKPA

Congress adopted the Parental Kidnapping Prevention Act (PKPA), the jurisdictional provisions of which are codified at 28 U.S.C. § 1738A (1989), to create a national standard that the states could look to in interstate child custody disputes. See generally Parental Kidnapping Prevention Act of 1980, Pub.L. No. 96-611, § 7, (1980), 94 Stat. 3569. The PKPA was created in part to solve problems that the Uniform Child Custody Jurisdiction Act (UCCJA) had not successfully addressed. State in Interest of D.S.K, 792 P.2d 118, 128 (Utah App.1990) (citations omitted). “Where the PKPA and the state’s version of the UCCJA conflict, the PKPA preempts state law.” Id. (citations omitted). Because the PKPA “directly address the issues before this court, creates a very manageable two-prong test for determining modification jurisdiction, and would govern in the event of conflict with the UCCJA or other state law,” Curtis, 789 P.2d. at 720, we focus our analysis on this federal statute.¹

One problem that the UCCJA failed to address was a specific provision for continuing jurisdiction. Annotation, 83 A.L.R.4th at 748.² Therefore, the potential existed for concurrent jurisdiction between two states. Dickens, The Parental Kidnapping Act: Application and Interpretation, 23 J.Fam.L. 419, 426-27 (1984-85) [hereinafter Dickens]. The PKPA eliminates “the possibility of concurrent jurisdiction by conferring exclusive modification jurisdiction upon the home state of the child (i.e., the state which rendered the initial decree).” Id. at 426 (citing The Effect of the Parental Kidnapping Prevention Act of 1980 on Child Snatching, 17 New Eng.L.Rev. 499, 511 (Spring 1982)).

Unlike the UCCJA, the PKPA “anchors exclusive continuing jurisdiction to modify a previous custody decree in the original home state as long as the child or one of the contestants remains in that state.” Annotation, 83 A.L.R.4th at 748 (emphasis added). See also Dickens, 23 J.Fam.L. at 426. “While under the UCCJA scheme some states profess to find modification jurisdiction so long as they can properly exercise initial custody jurisdiction, the PKPA prevents a second state from modifying an initial state’s order except in carefully circumscribed situations.” Meade v. Meade, 812 F.2d 1473, 1476 (4th Cir.1987). This is clear from section (f) of the PKPA which states that

A court of a State may modify a determination of the custody of the same child made by a court of another State, if—

(1) it has jurisdiction to make such a child custody determination; and

(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

28 U.S.C. § 1738A (1989) (emphasis added).

This section explicitly limits when a state, which would otherwise have jurisdiction over a child custody dispute, must defer to the state which originally issued the custody order.³ “The PKPA is a departure from the jurisdictional requirements of the UCCJA and this departure is critical to the efficacy of the new Act because a state court may no longer modify existing decrees of other states pursuant to the various and flexible bases of jurisdiction provided in the UCCJA.” Dickens, 23 J.Fam.L. at 426. Further, this court has held “the language [of the PKPA] clearly eliminates the possibility of concurrent jurisdiction by conferring exclusive jurisdiction upon the state which rendered the initial decree[.]” State in Interest of D.S.K., 792 P.2d at 129. See also Dickens, 23 J.Fam.L. at 426-27 (PKPA precludes a state court from modifying existing decrees of other states when state which issued decree maintains jurisdiction).

In the present case, both prongs of the jurisdictional test must be addressed. While a state may “have jurisdiction to make such a child custody determination^] ...” 28 U.S.C. § 1738A (1989), it must decline to exercise that jurisdiction unless “the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.” Id.4 While Utah may have had jurisdiction to issue the original order in this case, e.g., meeting the requirements of subsection (1), Utah does not have jurisdiction to modify an order from Montana because Montana has continuing exclusive jurisdiction.

B. Jurisdiction under the UCCJA

The decision we have reached conforms with comparable provisions of the UCCJA. The UCCJA was created to “avoid jurisdiction competition and conflict with courts of other states in matters of child custody,” Utah Code Ann. § 78-45c-l (1987), “promote cooperation with the courts of other states,” id.,

litigate custody where the child and family have the closest connections and where significant evidence concerning the child is most readily available, discourage conflict over custody, deter abductions and unilateral removals of children, avoid relitigation of another state’s custody rulings, and promote the exchange of information and mutual assistance between different states[,]

State in Interest of D.S.K., 792 P.2d 118, 123 (Utah App.1990) (citing Utah Code Ann. § 78-45c-1 (1987)), or put more succinctly, “to bring some semblance of order into the existing chaos.” Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Fam.L.Q. 203, 214 (1981) [hereinafter Bodenheimer] (quoting UCCJA, Commissioners’ Prefatory Note, 9 U.L.A. 114 (1979)). All fifty states and the District of Columbia have adopted the UCCJA.

As to when a court in this state has jurisdiction over a particular child custody matter, Utah Code Ann. § 78-45c-3(l) (1987) provides:

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 the conditions as set forth in any of the following paragraphs are met:

(a) This state (i) is the home state of the child at the commencement of the proceeding, or (ii) 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;

(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

(c) The child is physically present in this state and (i) the child has been abandoned or (ii) 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)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (a), (b), or (c), or another has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

In the present case, under subsection (a), Utah is the home state⁵ of the children. However, the analysis does not end at determining whether these jurisdictional requirements are met. Section 78-45c-14(1) (1987)⁶ sets forth under what circumstances a court in Utah may modify an out-of-state custody decree:

(1) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (a) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree and (b) the court of this state has jurisdiction.

(Emphasis added.)⁷ Under this section, both the requirements of subsections (l)(a) and (b) must be met before Utah can modify a decree from another state. Section 15 provides that the second state will enforce the decree of the initial state as long as the initial state retains custody jurisdiction. “When both states have adopted the UCCJA, the apparent effect of §§ 14 and 15 is to give continuing exclusive jurisdiction to the initial state as long as that state retains a ‘significant connection’ basis for jurisdiction.” Meade v. Meade, 812 F.2d 1473, 1476-77 (4th Cir.1987). It makes no difference that Utah may have met the jurisdiction prerequisites of section 3; section 14 must also be satisfied in order for this state to modify the Montana award.⁸

It is clear that in the case at bar, the requirement of subsection (l)(a) is not met.

[T]he continuing jurisdiction of the prior court is exclusive. Other states do not have jurisdiction to modify the decree. They must respect and defer to the prior state’s continuing jurisdiction.

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Exclusive continuing jurisdiction is not affected by the child’s residence in another state for six months or more. Although the new state becomes the child’s home state, significant connection jurisdiction continues in the state of the prior decree where the court record and other evidence exists and where one parent or another contestant continues to reside. Only when the child and all parties have moved away is deference to another state’s continuing jurisdiction no longer required.

Bodenheimer, 14 Fam.L.Q. at 214-15 (quoted in State in Interest of D.S.K., 792 P.2d at 124) (emphasis added). See also Rawlings v. Weiner, 752 P.2d 1327, 1330-31 (Utah App.) (Bench, J., concurring), cert. denied, 765 P.2d 1278 (Utah 1988). “As long as the decree state retains jurisdiction there is no concurrent jurisdiction to modify a decree under the UCCJA,” State in Interest of D.S.K., 792 P.2d at 124 (citations omitted), and “as long as one parent continues to reside in the original state and maintains some contact with the child ... [,] ” Id. at 125, jurisdiction remains in the decree state.

Mrs. Crump's argument that jurisdiction automatically shifted to Utah, the new home state, when she and the children moved there, is without merit. Mr. Crump continues to reside in Montana, where the original custody decree was issued. Montana has not relinquished jurisdiction, nor have the parties sought to have Montana do so. Instead, Mr. Crump chose to petition the courts of Utah for a modification of custody.⁹ Therefore, under the UCCJA, Montana has continuing exclusive jurisdiction and has not declined to exercise its jurisdiction in this case.

CONCLUSION

While there is much confusion as to the applicability of the UCCJA and the PKPA in child custody modification proceedings, this is no excuse for counsel in these types of cases to totally ignore the law. In the present case, we have no choice but to dismiss the appeal because the courts of Utah do not have jurisdiction to modify the Montana decree. The dissent is disturbed that this result might require further proceedings. However, if the proper procedures had been followed at the outset, the dissent would have no basis for its complaint. Because the trial court lacked jurisdiction to modify Montana’s custody decree, we dismiss the appeal.

GARFF, J., concurs.

1 . In the present case, the result is the same under the UCCJA and the PKPA, although the PKPA uses language more specific than the UCCJA in addressing jurisdiction in the modification context.

2 . "However, the provisions of § 14 of the UCCJA, along with the Commissioners’ Notes to that section, have been interpreted to establish exclusive continuing jurisdiction of the state that made the initial custody determination.” Annotation, 83 A.L.R.4th at 748.

3 . Specifically the PKPA provides that states shall not modify custody orders of another state "except as provided in subsection (f) of this section," 28 U.S.C. § 1738A(a) (1989).

4 . See also Meade v. Meade, 812 F.2d 1473, 1476 (4th Cir.1987) (Virginia trial court properly exercised jurisdiction over modification of custody case as Virginia had continuing and exclusive jurisdiction); McDougald v. Jenson, 786 F.2d 1465, 1481 (11th Cir.), cert. denied by Jenson v. McDougald, 479 U.S. 860, 107 S.Ct. 207, 93 L.Ed.2d 137 (1986) (no question that under PKPA, Florida, the state which issued initial custody decree, and not Washington, where mother and child later resided, maintained and properly exercised jurisdiction to modify custody decree); Applegate v. Gant, 460 So.2d 1293, 1294 (Ala.Civ.App. 1984) (Alabama court had no jurisdiction to modify Texas custody decree where under PKPA state issuing original decree retains exclusive jurisdiction); Tufares v. Wright, 98 N.M. 8, 644 P.2d 522, 524 (1982) (PKPA precluded modification of Utah custody decree by New Mexico where first prong of test was met but second prong was not met).

5 . Utah Code Ann. § 78-45c-2 defines “home state” as "the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months_”

6 . While this court has decided jurisdictional disputes under the UCCJA without regard to section 14, see, e.g., Rawlings v. Weiner, 752 P.2d 1327 (Utah App.), cert. denied, 765 P.2d 1278 (Utah 1988), we believe that such questions are more easily answered by focusing on this section. See, e.g., Rawlings, 752 P.2d at 1330-31 (Bench, J., concurring).

7 . We note that subsection 14 contains language similar to that found in subsection (f) of the PKPA. While it was hoped that subsection 14 of the UCCJA would eliminate the erroneous assumption of concurrent jurisdiction, it proved to be an imperfect remedy. Meade v. Meade, 812 F.2d 1473, 1476 (4th Cir.1987); Bodenheimer, 14 Fam.L.Q. at 214. "While under the UCCJA scheme some states profess to find modification jurisdiction so long as they can properly exercise initial custody jurisdiction, the PKPA prevents a second state from modifying an initial state’s order_” Meade, 812 F.2d at 1476.

8 . To read section 3 of the UCCJA, which merely addresses under what circumstances a state may have jurisdiction, without the qualifying language of section 14, as the dissent would have us do, is to ignore the plain language of the Act. Scholars addressing this very issue have commented that prior to the UCCJA, "concurrent jurisdiction in several states to modify an existing custody judgment was a major cause of parental resort to kidnapping to gain a more favorable judgment in a new forum.” Boden-heimer, 14 Fam.L.Q. at 213-14. Therefore, section 14 is the key provision to carry out the UCCJA’s objective of preventing jurisdictional conflict. Id. at 214. This is especially true, when as here, the question is not simply, does a particular state have jurisdiction to make a custody decree, but, does a particular state have jurisdiction to modify an existing custody decree of another state.

While section 14 was overlooked by early cases under the UCCJA, see, e.g., Wheeler v. District Court, 186 Colo. 218, 526 P.2d 658 (1974), and Howard v. Gish, 36 Md.App. 446, 373 A.2d 1280 (1977), the majority of states, including Utah, now recognize the exclusive jurisdiction of the state which issued the original decree. See, e.g., State in Interest of D.S.K., 792 P.2d at 128; Curtis, 789 P.2d at 724-25; Rawlings v. Weiner, 752 P.2d 1327, 1330-31 (Utah App.) (Bench, J., concurring), cert. denied, 765 P.2d 1278 (Utah 1988). The dissent however, chooses to ignore Utah case law, and relies instead upon cases from Indiana and Illinois to make the point that concurrent jurisdiction does exist.

9 . The dissent correctly points out that had the "stay-at-home parent, of his or her own volition, moved from Montana, Utah would then be able to exercise its jurisdiction.” However, it does not follow that "had the stay-at-home parent, of his or her own volition, never asserted his or her custody rights in Montana, Utah would also be able to exercise its jurisdiction.”