In re Schwartz

410 P.3d 319, 289 Or. App. 332
CourtCourt of Appeals of Oregon
DecidedDecember 13, 2017
DocketA158348
StatusPublished
Cited by45 cases

This text of 410 P.3d 319 (In re Schwartz) 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
In re Schwartz, 410 P.3d 319, 289 Or. App. 332 (Or. Ct. App. 2017).

Opinion

LAGESEN, J.

*321*334The issue in this child custody appeal is whether the trial court had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).1 Answering that question requires us to determine, as a matter of first impression in this state, what legal test governs the determination whether a child's absence from a putative "home state" is a "temporary absence" within the meaning of ORS 109.704(7), such that the time away is counted toward the child's residence in the putative home state. The question is a significant one, because it is pivotal to the issue of whether a particular court has subject matter jurisdiction over a custody dispute under the jurisdictional provision of the UCCJEA, ORS 109.741. And although the UCCJEA, a uniform act, is meant to be interpreted uniformly across jurisdictions, ORS 109.831,2 the question is one that has divided appellate courts across the country. See Andrea Charlow, There's No Place Like Home: Temporary Absences in the UCCJEA Home State , 28 J. Am. Acad. Matrim Law 25 (2015) (identifying the different legal tests that appellate courts have adopted to determine whether an absence is a "temporary absence" under the UCCJEA). Having sought and received thoughtful supplemental briefing from both parties, we conclude that the "totality of the circumstances" test adopted by the majority of the jurisdictions to consider the question is the appropriate legal test to determine whether a child's absence from a putative UCCJEA home state is a "temporary absence." For reasons to be explained, we further conclude that the application of that test to the undisputed facts in this case means that the trial court ultimately was correct to conclude that it had subject matter jurisdiction over the parties' child custody dispute. We therefore affirm the judgments of the trial court.

I. BACKGROUND

We draw the facts from the record, as supplemented by materials judicially noticed on father's motion. Mother, *335a United States citizen from Oregon, and father, a French national, were married in France in 2010. In March 2011, the parties came to Oregon to stay with mother's family shortly before mother gave birth to L in April of the same year. After L's birth, the parties hopscotched among Oregon, France, and Indonesia, staying no more than seven months in one place. The parties remained in Oregon until L was five or six months old, at which time they traveled to Aix-en-Provence, France, where they stayed for five months. They then returned to Oregon for three months. Next the family went to Bali, Indonesia, where mother's parents have a home in which they live half time. Parents and L stayed for two months and followed up with a trip to Paris, where they remained for seven months. They then returned to Bali, where they remained for a few days shy of six months. Then, on September 27, 2013, mother flew from Bali to the United States to see friends and family. Father remained in Bali but relocated to Singapore shortly thereafter. The parties had been contemplating moving to Singapore, where father had been pursuing employment, but were also contemplating a move to New York.

Around that same time, mother decided to separate from father and did not return to *322Bali. On or around November 10, 2013, father traveled to the United States from Bali. Two days later, on November 12, 2013, mother petitioned the Lane County Circuit Court for a judgment of unlimited legal separation.

Father responded initially by filing a child custody action in a French court. The parties negotiated a settlement under which they stipulated that Oregon had jurisdiction under the UCCJEA to adjudicate issues regarding L's custody, and father agreed to dismiss the custody proceeding that he had filed in France. Among other things, the parties agreed that neither would invoke the jurisdiction of a court outside of Oregon to resolve future issues relating to L's custody. Based on the parties' agreement, the trial court entered a general judgment of unlimited legal separation. That judgment, which was entered in January 2014, resolved the issues related to L's custody and incorporated the parties' agreed-upon parenting plan.

*336Several months later, both parties had second thoughts about their agreement. Mother petitioned the trial court to modify the agreement, alleging that father's drug use and other conduct were making the arrangement unworkable. Father-who, contrary to the parties' agreement, had initiated a new child custody proceeding in France and filed an international child abduction case in the United States District Court of Oregon, alleging violations of The Hague Convention-moved the trial court under ORCP 71 B(1)(d) to vacate the judgment of unlimited legal separation (at least insofar as it resolved the child custody issues) on the ground that the court lacked subject matter jurisdiction under the UCCJEA. Father contended that France, not Oregon, had jurisdiction under the UCCJEA, submitting a declaration in support of that argument. Mother opposed the motion, arguing that Oregon, not France, had jurisdiction under the UCCJEA-a contention that she supported with her own affidavit.

The trial court denied the motion. Based on the arguments and evidence presented by the parties, the court determined that it had subject matter jurisdiction under the UCCJEA at the time that it had entered the general judgment of unlimited legal separation:

"The General Judgment was filed on December 23, 2013, and entered on January 2, 2014. At that time, no state or country had 'home state' jurisdiction as that term is defined in the UCCJEA. Oregon had jurisdiction pursuant to ORS 109.741(1)(b) and the parties, both of whom were represented by counsel, stipulated to the necessary facts for the Court's jurisdiction."

The court thereafter entered a supplemental judgment awarding mother attorney fees incurred in responding to father's motion. A short while later, the trial court found father to be in contempt for violating the parenting plan by using marijuana or hashish while L was in his care and for filing the second child custody proceeding in France. The court further found that father's contemptuous conduct caused mother to incur $16,038.78 in damages and entered a supplemental judgment for that amount. The court subsequently ordered father to pay the attorney fees mother incurred to prosecute the contempt.

*337Father has appealed.

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Bluebook (online)
410 P.3d 319, 289 Or. App. 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-schwartz-orctapp-2017.