In Re the Marriage of Cervetti

497 N.W.2d 897, 1993 Iowa Sup. LEXIS 76, 1993 WL 81967
CourtSupreme Court of Iowa
DecidedMarch 24, 1993
Docket92-1294
StatusPublished
Cited by6 cases

This text of 497 N.W.2d 897 (In Re the Marriage of Cervetti) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Cervetti, 497 N.W.2d 897, 1993 Iowa Sup. LEXIS 76, 1993 WL 81967 (iowa 1993).

Opinion

NEUMAN, Judge.

This case reaches us following the district court’s denial of petitioner’s pre-an-swer motion to dismiss on jurisdictional grounds. The question is whether the Iowa district court should exercise jurisdiction in this child custody modification action, or defer to the children’s home state of North Carolina. We granted interlocutory appeal to consider petitioner’s challenge to the district court’s decision and now reverse.

The dispositive facts are not in controversy. Debra and Ron Cervetti were divorced in Black Hawk County, Iowa, on March 9, 1989. Their three daughters — then aged seven, six and three — were placed in the parties’ joint legal custody with Debra giv *899 en their primary care. It was anticipated at the time of the decree that Debra, an engineer, would move away from Iowa to pursue better career opportunities elsewhere. Thus the dissolution decree specifically retained jurisdiction in the Iowa district court to adjust visitation in that event.

In March 1990 Debra and the children moved to North Carolina. On Ron’s motion, the court modified the dissolution decree to permit Ron seven weeks visitation in the summer, one-half of the Christmas and spring breaks, and other visitation throughout the year not to exceed five days at a time. The girls have traveled frequently to Iowa to enable Ron to exercise these visitation privileges.

Debra and the children have lived continuously in North Carolina since March 1990. Ron, a physician, remarried in 1990. Debra remarried in March 1992.

The current controversy began in June 1992 just prior to the girls’ summer visit with Ron. Ron filed a petition in the Iowa district court to modify the custody provisions of the parties' dissolution decree. Debra, personally served in North Carolina, responded with a pre-answer motion to dismiss for lack of Iowa subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act, Iowa Code chapter 598A (1991) (hereafter “UCCJA”). Following hearing, the district court denied Debra’s motion.

Later in the summer Ron sought an ex parte order for the girls’ temporary custody based on allegations of abuse surrounding Debra’s use of corporal punishment. Although the district court granted the ex parte order, it later reversed its decision upon full hearing and directed that the children be returned to Debra’s care in North Carolina. Meanwhile we granted Debra’s application for interlocutory appeal to consider her jurisdictional challenge in the pending modification proceeding.

The jurisdictional dispute centers on the tension between Iowa’s role as the “decree” state and North Carolina’s status as the girls’ “home state.” Ron convinced the district court that the UCCJA — and our cases interpreting it — reveal a jurisdictional bias favoring the decree state so long as any continuing contact with that state can be shown. Debra urges reversal on the ground that the jurisdictional decision is not automatic and should be made in accordance with section 598A.3 of the UCCJA which lists factors to be considered whether “by initial or modification decree.” (Emphasis added.) Even if a decree state preference exists, she argues, it would be outweighed in this case by the fact that all of the girls’ significant relationships with respect to school, church, friends, medical care and family life are now established in North Carolina.

I. Our resolution of this controversy is guided by well-settled principles. First, our scope of review differs in this case from that customarily associated with jurisdictional disputes. Because the underlying action involves child custody, equitable principles apply and our review is de novo. St. Clair v. Faulkner, 305 N.W.2d 441, 445 (Iowa 1981). The fundamental question of which state is best suited to resolve custody quickly, permanently, and on the merits, is decided by us anew. Id.

Second, Iowa cases reflect an undeniable bias favoring continuing jurisdiction of the decree state when modification is sought. In re Marriage of Leyda, 398 N.W.2d 815, 819 (Iowa 1987); In re Marriage of Hubbard, 315 N.W.2d 75, 80 (Iowa 1982); Pierce v. Pierce, 287 N.W.2d 879, 883 (Iowa 1980); In re Marriage of Ross, 471 N.W.2d 889, 892 (Iowa App.1991); In re Marriage of McEvoy, 414 N.W.2d 855, 857 (Iowa App.1987). The children’s residency in another state for more than six months does not diminish the preference. Leyda, 398 N.W.2d at 819; Ross, 471 N.W.2d at 892. The rule stems from a belief expressed by the UCCJA drafters that greater stability in custody arrangements will be achieved, and forum shopping minimized, by faithful adherence to the preference. Uniform Child Custody Jurisdiction Act § 14 cmt., 9 U.L.A. 292 (1988).

The UCCJA reinforces this preference by providing that a court of this state shall *900 not modify the decree of another state unless the decree state no longer retains jurisdiction under standards comparable to our own, or declines jurisdiction. Iowa Code § 598A.14. Similarly, the Federal Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A(d) (1990), states that jurisdiction in the decree state continues as long as that state has jurisdiction under its own law and either contestant or the child still resides there. Although no other state is asserting jurisdiction here, the preemptive spirit underlying these statutes is widely recognized as a means of protecting the exclusive jurisdiction of the decree state. Leyda, 398 N.W.2d at 819. 1

II. Despite the strength of this decree state bias, common sense suggests that, over time, a child’s ties to the decree state may become too tenuous to justify Continuing jurisdiction. The question is at what point the link is broken. One frequently quoted commentator goes so far as to suggest that “[cjontinuing jurisdiction ends only if all the parties and the child have taken up residence in other states, or if the state of the decree has declined to modify its modification jurisdiction....” Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 Fam.L.Q. 203, 204-05 (1981) (emphasis added). A more moderate position is reflected in the UCCJA commentary which notes that “all petitions for modification are to be addressed to the prior state if that state has sufficient contact with the case to satisfy section [598A.]3.” Uniform Child Custody Jurisdiction Act § 14 cmt., 9 U.L.A. 292 (1988) (emphasis added).

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497 N.W.2d 897, 1993 Iowa Sup. LEXIS 76, 1993 WL 81967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-cervetti-iowa-1993.