Dowhanik v. Dowhanik

Court of Appeals of Oregon

Dowhanik v. Dowhanik

602 P.2d 1127, 43 Or. App. 379, 1979 Ore. App. LEXIS 3414

CourtCourt of Appeals of Oregon

DecidedNovember 26, 1979

Docket78-5436, CA 14711

StatusPublished

Cited by5 cases

This text of 602 P.2d 1127 (Dowhanik v. Dowhanik) 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.

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Dowhanik v. Dowhanik, 602 P.2d 1127, 43 Or. App. 379, 1979 Ore. App. LEXIS 3414 (Or. Ct. App. 1979).

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Opinion

*381 BUTTLER, P. J.

This is a proceeding brought under the Uniform Ihild Custody Jurisdiction Act, ORS 109.700 to .09.930. The father filed a petition asking the Oregon ourt to exercise its jurisdiction, and to modify the .973 North Dakota decree, which dissolved the parties’ marriage, by changing the custody of one of the hildren of the parties from the mother to the father. ’he trial court "declined” jurisdiction. The father ippeals. We reverse and remand.

In Smith and Smith, 40 Or App 257, 259, 594 P2d 292 (1979), we emphasized that

"When a petition is filed under the Uniform Child Custody Jurisdiction Act to modify the custody decree of a court of another state two separate and distinct questions are presented which must be resolved in order: (1) does the Oregon court have jurisdiction under the Act, and (2) if so, should the Oregon court exercise its jurisdiction. Settle and Settle, 276 Or 759, 764-65, 556 P2d 962 (1976), Williams v. Zacher, 35 Or App 129, 581 P2d 91 (1978). * * *”

In this case, as in Smith, the trial court had suffi-ient information to determine that Oregon may exercise jurisdiction, but not enough to determine whether Oregon should do so.

Oregon may exercise jurisdiction because, at the me of commencement of this proceeding, this state ras the "home state” of the child, who had lived in regon with his father for more than a year. ORS 09.730(1)(a); 109.710(5).

However, on the record made before the trial court, íe court should have gone no further than to deter-line that Oregon has jurisdiction: it needed more lformation to decide whether it should exercise its irisdiction, a decision which turns on the best interest of the child. Smith and Smith, supra, 40 Or App at 261. We reverse and remand so that the court may jtain the needed information, noting, as we did in Smith, that the Act authorizes the use of a variety of *382 procedures for gathering the information, including the taking of testimony in another state. ORS 109.880, 109.890.

Reversed and remanded.

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*381 BUTTLER, P. J.

This is a proceeding brought under the Uniform Ihild Custody Jurisdiction Act, ORS 109.700 to .09.930. The father filed a petition asking the Oregon ourt to exercise its jurisdiction, and to modify the .973 North Dakota decree, which dissolved the parties’ marriage, by changing the custody of one of the hildren of the parties from the mother to the father. ’he trial court "declined” jurisdiction. The father ippeals. We reverse and remand.

In Smith and Smith, 40 Or App 257, 259, 594 P2d 292 (1979), we emphasized that

"When a petition is filed under the Uniform Child Custody Jurisdiction Act to modify the custody decree of a court of another state two separate and distinct questions are presented which must be resolved in order: (1) does the Oregon court have jurisdiction under the Act, and (2) if so, should the Oregon court exercise its jurisdiction. Settle and Settle, 276 Or 759, 764-65, 556 P2d 962 (1976), Williams v. Zacher, 35 Or App 129, 581 P2d 91 (1978). * * *”

In this case, as in Smith, the trial court had suffi-ient information to determine that Oregon may exercise jurisdiction, but not enough to determine whether Oregon should do so.

Oregon may exercise jurisdiction because, at the me of commencement of this proceeding, this state ras the "home state” of the child, who had lived in regon with his father for more than a year. ORS 09.730(1)(a); 109.710(5).

However, on the record made before the trial court, íe court should have gone no further than to deter-line that Oregon has jurisdiction: it needed more lformation to decide whether it should exercise its irisdiction, a decision which turns on the best interest of the child. Smith and Smith, supra, 40 Or App at 261. We reverse and remand so that the court may jtain the needed information, noting, as we did in Smith, that the Act authorizes the use of a variety of *382 procedures for gathering the information, including the taking of testimony in another state. ORS 109.880, 109.890.

Reversed and remanded.

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602 P.2d 1127, 43 Or. App. 379, 1979 Ore. App. LEXIS 3414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowhanik-v-dowhanik-orctapp-1979.

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