Harter v. Szykowny

2014 Ark. App. 701, 451 S.W.3d 215, 2014 Ark. App. LEXIS 1030
CourtCourt of Appeals of Arkansas
DecidedDecember 10, 2014
DocketCV-14-185
StatusPublished
Cited by26 cases

This text of 2014 Ark. App. 701 (Harter v. Szykowny) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harter v. Szykowny, 2014 Ark. App. 701, 451 S.W.3d 215, 2014 Ark. App. LEXIS 1030 (Ark. Ct. App. 2014).

Opinion

DAVID M. GLOVER, Judge.

|; Heidi Harter appeals the trial court’s October 25, 2013 dismissal of her petition for registration and enforcement of an April 12, 2011 judgment from the State of Kansas, which was a decree of divorce 1 concerning Heidi and appellee, David Szy-kowny. Heidi raises three points of appeal: 1) the trial court erred in sua sponte dismissing her petition without any dispos-itive motions from David; 2) the trial court’s actions in sua sponte dismissing her petition violated both the Full Faith and Credit Clause of the United States Constitution and the Uniform Enforcement of Foreign Judgments Act of the State of Arkansas; and 3) the trial court’s actions in sua sponte dismissing her petition violated the Uniform Child Custody Jurisdiction and Enforcement Act of the State of Arkansas. We reverse the trial court’s dismissal and remand for proceedings consistent with this opinion.

|⅞>Background,

The Kansas decree granted joint custody of the parties’ two minor children to Heidi and David, with Heidi having primary custody of the children. Paragraph 7 of the decree, titled “Children,” provides in part: “The State of Kansas and this Court have continuing jurisdiction over the minor children of the parties pursuant to the Uniform Child Custody Jurisdiction Act. K.S.A. 38-1301 et seq.” (Emphasis added.) Paragraph 10. i. of the decree provides: “Continuing Jurisdiction of the Court for Modification. The parties are advised and understand that any provision related to legal custody, residential custody, parenting time, child support, education and other matters related to the minor children shall be subject to the continuing jurisdiction of this Court as provided by law.” (Emphasis added.) Paragraph 12 of the Kansas decree provides:

12. PRETENTION OF CHILD CUSTODY JURISDICTION. Recognizing this Court to have jurisdiction over child custody matters to avoid future jurisdictional competition or conflict and to discourage continuing controversies over child custody and avoid re-litigation of custody decisions and to build stability and consistency for the minor children, the parties agree and this Court Orders, that until this Court orders otherwise, the State of Kansas and this Court shall retain jurisdiction over future proceedings involving custody and visitation. This Agreement in no way limits the right of either parent having Primary Residential Custody of their child, to petition any Court for a change of jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UC-CJEA).

(Emphasis added.) Paragraph 14 provides in part that “[t]he Respondent shall make child support payments payable and send to: Kansas Payment Center, P.O. Box 758599, Topeka, Kansas 66675-5722.” Paragraph 16 c. provides:

c. A change of the residence or the removal of a child as described in subsection (a) may be considered a material change of circumstances which justifies modification of prior order of legal custody, residency, child support or parenting time. In determining any motion seeking a modification of a prior order based on|schange of residence or removal as described in (a), the court shall consider all factors the court deems appropriate including, but not limited to: (1) The effect of the move on the best interests of the child; (2) the effect of the move on any party having rights granted pursuant to K.S.A. 60-1610, and amendments thereto; and (3) the increased cost the move will impose on any party seeking to exercise rights granted under K.S.A. 60-1610, and amendments thereto.

Heidi filed her petition to register and' enforce the Kansas decree in Arkansas on May 6, 2013. In paragraph 6 of the petition, she states, “Petitioner merely seeks to file the judgment and decree of the State of Kansas in the Circuit Court of Carroll County, Arkansas, and have it enforced pursuant to the provisions of the Arkansas Uniform Child Custody Jurisdiction and Enforcement Act, ACA § 9-19-101 et seq., including the provisions found at ACA § 9-19-303.” The petition further provided that David was current on his child-support obligation at that time and that “all future child support payments should be made through the Arkansas Child Support Clearinghouse, P.O. Box 8124, Little Rock, Arkansas 72203.”

David responded, asserting that jurisdiction should remain with the Kansas court in accordance with the terms of the original decree. It is undisputed that, at the time the petition was filed, Heidi and the children had lived in Arkansas for more than one year and David had lived in Utah for more than one year. Thus, neither of the parties or their children had lived in Kansas for over a year.

Letters between counsel for the parties and the Arkansas trial court indicated that the question of appropriate jurisdiction was being pursued in the Kansas court. In his letter, David’s counsel also noted that Heidi had informed David by email that she planned to move to Hawaii; and Heidi’s counsel, in his letter, countered that Heidi did not plan to go to ^Hawaii. By “Journal Entry of September 28, 2013,” filed October 8, 2013, the Kansas court made the following pertinent findings: that David had previously filed a motion to modify custody and other relief; that subsequent to the motion being filed, Heidi filed a motion for the Kansas court to relinquish jurisdiction to the State of Arkansas; that it was not disputed that neither the parties nor the children presently resided in Kansas; that “the parties essentially contracted themselves out of requesting another state to seize jurisdiction of this matter without this Court first releasing the same pursuant to their Decree of Divorce agreement”; that, “further, the Court finds that it would not be appropriate to release jurisdiction of this matter to Arkansas as it would be an inconvenient forum”; and that “as such, [David’s] pending motion shall proceed to evidentiary hearing and the same shall be considered by the court under Kansas law.”

As mentioned at the outset, the Arkansas trial court then filed its order, “on its own motion,” recognizing that the Kansas court had denied Heidi’s motion for the Kansas court to relinquish jurisdiction of the matter to Arkansas, and that

while recognizing its authority to exercise jurisdiction, this court in accordance with ACA § 9-19-207(b) hereby declines to exercise its jurisdiction in the matter sought to be registered and enforced by [Heidi] as it finds the State of Kansas is the more appropriate forum to continue to exercise jurisdiction as the State of Arkansas is an inconvenient forum, having considered all relevant factors enumerated.

The Arkansas court then denied Heidi’s petition for registration and enforcement and dismissed the action. This appeal from that order followed.

I. The trial court erred in sua sponte dismissing Heidi’s petition without any dispositive motions from David.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 Ark. App. 701, 451 S.W.3d 215, 2014 Ark. App. LEXIS 1030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harter-v-szykowny-arkctapp-2014.