In re Marriage of Payne

899 P.2d 1318, 79 Wash. App. 43
CourtCourt of Appeals of Washington
DecidedAugust 15, 1995
DocketNo. 17431-6-II
StatusPublished
Cited by5 cases

This text of 899 P.2d 1318 (In re Marriage of Payne) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Marriage of Payne, 899 P.2d 1318, 79 Wash. App. 43 (Wash. Ct. App. 1995).

Opinion

Houghton, J.

Heather Payne appeals the trial court’s refusal to revise a superior court commissioner’s declination of jurisdiction over her action to dissolve her marriage to David Payne. The court in both instances found the State of Virginia to be a more convenient forum because of its significant contacts with the Paynes’ two children. We affirm.

David and Heather Payne1 were married on May 19, 1990. The parties’ first child, Melanie Ryan Payne, was born in Virginia on August 12, 1990. Their second child, Austin Montana Payne, was born in Virginia on November 3, 1991.

At a March 3, 1993 hearing in Virginia regarding jurisdiction, David testified that he was born in Virginia in 1962, moved about due to his father’s military service, returned to Virginia in 1969, and resided there continuously until June 1992. At the same hearing, David’s niece and a friend of David’s and Heather’s each testified that Heather had lived in Virginia since approximately 1987.

David’s mother and father, Heather’s father and stepmother, and Melanie’s and Austin’s grandmother, all reside in Virginia. Heather’s mother, stepfather, aunt and uncle live in Washington.

[45]*45At the Virginia hearing, David presented testimony of several persons suggesting Heather told them, on numerous occasions during the marriage, that she married David only to "see what she could get out of him” and to have children; that their marriage would not last; and that she was going to take the children and go to Washington to be with her mother "with or without” David.

According to David, in June 1992, Heather convinced him to leave the job he had held for twelve years and move to Washington. They cashed out his retirement. They planned to move in with Heather’s mother; Heather’s uncle and stepfather had each promised David a job. The Paynes arrived in Washington on June 21, 1992.

David further testified at the Virginia hearing that he was never given a key to Heather’s mother’s home, that Heather and her mother immediately began to exclude him from decisions regarding the children, and that the marriage immediately began to deteriorate. The pay David received from Heather’s stepfather was only half what David had been promised. David did, however, work in construction for Heather’s uncle.

David also testified Heather ordered him to leave the home one month after they arrived in Washington. He then moved in with Heather’s uncle, and stayed in Washington until late September 1992, attempting to reconcile with Heather and see the children. According to David, Heather did not cooperate and David was able to "go out with” her and the children only one time in those months.

Heather has not denied or responded specifically to the above allegations. She instead asserts via affidavit that David uses drugs, pays no attention to the children, and is "domineering, unreasonably jealous and demanding.” She further asserts that David only left Washington due to his "dissatisfaction with the area.” Moreover, she asserts David abandoned her and the children, returned to Virginia in late September 1992, and never paid child support or attempted to contact them. David responds that he did [46]*46call and talk to Heather. Although she works, Heather asserts she has had to rely on public assistance.

On December 4,1992, David filed a custody petition with the Juvenile and Domestic Relations Court of Prince William County, Virginia. As Heather acknowledges, this was approximately five and one-half months after the family moved to Washington. David did not, however, serve Heather until February 19, 1993, nearly eight months after the move.

In the meantime, according to Heather, David attempted to forcibly abduct the children on December 18, 1992, assaulting Heather, the children, and Heather’s mother in the process. He apparently left when the police were called. David admits generally that an "altercation” occurred, testifying that "[i]n the mid-part of December I made a failed attempt to go back [to Washington] and get my children.”

On the same day as the "altercation,” Heather, acting pro se, filed a petition for dissolution and obtained a domestic violence protection order. Heather asserted she had previously called the police in August when David tried to break into her aunt’s home "to get” her and that he was armed at that time. She filed an amended petition through an attorney on February 24, 1993, and obtained an ex parte restraining order the same day. Heather asserted she had no "information of any . . . [other] custody proceeding concerning” her children, even though she admits she had been served in the Virginia action on February 19, five days earlier. She filed an objection to the Virginia jurisdiction immediately prior to a hearing on March 3, 1993.

David testified at the March 3 hearing in Virginia that he had never been served with a dissolution or custody petition from Washington and that he first became aware of the Washington action on the morning of the Virginia hearing. Heather does not contradict this assertion.

The hearing on Heather’s Washington petition was apparently continued several times. On March 26, 1993, Da[47]*47vid filed a special appearance through counsel contesting Washington jurisdiction, and a motion to dismiss for lack of jurisdiction. His supporting materials included a transcript of the March 3 Virginia hearing.

A superior court commissioner heard the argument on briefs. On April 28, 1993, the commissioner spoke by telephone with a judge of the Virginia Juvenile and Domestic Relations Court. In his letter decision dated May 19, 1993, the commissioner related that the court did not, "in any way, [ ] condone the attempted abduction by Mr. Payne.” Nonetheless, the commissioner concluded "Virginia is the more appropriate forum to determine custody of these children” based upon the facts that

1. both children were born in the State of Virginia,
2. the children spent all of their lives until late June 1992 in . . . Virginia, and
3. . . . Virginia had been the children’s home state within 6 months of the commencement of the custody action in . . . Virginia.

An order of dismissal was entered on June 23, 1993, which echoed the above findings and conclusion. Heather moved for revision by the superior court. Following oral argument, the court concluded that Washington

has jurisdiction; it’s a question of whether . . . Washington should exercise . . . jurisdiction .... Virginia is a home state. ... I think in this case there are significant contacts in . . . Virginia. I will deny the motion for revision.

Heather appeals the denial of the motion to revise.

We note initially that 28 U.S.C. § 1738A,

[t]he PKPA [Parental Kidnaping Prevention Act of 1980] should be considered whenever the court is asked to determine which of two or more states has jurisdiction to decide a custody dispute.

In re Greenlaw, 123 Wn.2d 593, 604, 869 P.2d 1024, cert. denied, 115 S. Ct. 333 (1994) (citing In re Thorensen, 46 [48]*48Wn. App. 493, 497

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Cite This Page — Counsel Stack

Bluebook (online)
899 P.2d 1318, 79 Wash. App. 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-payne-washctapp-1995.