In Re the Marriage of Ross

471 N.W.2d 889, 78 A.L.R. 5th 719, 1991 Iowa App. LEXIS 36, 1991 WL 108331
CourtCourt of Appeals of Iowa
DecidedApril 23, 1991
Docket90-874
StatusPublished
Cited by10 cases

This text of 471 N.W.2d 889 (In Re the Marriage of Ross) is published on Counsel Stack Legal Research, covering Court of Appeals 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 Ross, 471 N.W.2d 889, 78 A.L.R. 5th 719, 1991 Iowa App. LEXIS 36, 1991 WL 108331 (iowactapp 1991).

Opinions

HAYDEN, Judge.

Paul and Lorette Ross’s marriage was dissolved by an Arkansas decree in 1986. Physical custody of the parties’ two young children was awarded to Paul. The children resided with Paul in Arkansas from 1986 until December 24, 1988. From December 24, 1988 to June 17, 1989, the children resided with Lorette in Iowa. They then returned to Arkansas.

While the children were visiting Lorette in Iowa during the summer of 1989, she obtained a temporary injunction from the Iowa district court preventing Paul from removing the children. She then filed for modification of the Arkansas decree in Iowa district court. When Paul consented to personal and subject matter jurisdiction, the district court ordered the writ quashed, and Paul was given temporary custody of the children. In a subsequent proceeding, the trial court modified the Arkansas divorce decree by granting custody to Lor-ette.

Because we find Iowa did not have jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), Iowa Code chapter 598A, we reverse the trial court and dismiss the Iowa modification petition.

I. The Facts

Paul and Lorette Ross were married in 1979. Two children were born of the marriage: Derek, born November 12, 1980; and Renee, born February 16, 1982. In 1984 the Rosses moved from Iowa to Arkansas. In August 1986 Paul Ross filed for divorce in Washington County, Arkansas. On October 6, 1986, a default decree was entered awarding custody of the children to Paul.

Paul was remarried in 1987. Lorette also remarried in 1987. In August 1988 Lorette moved back to Iowa. She resided with her parents while her husband was employed as an over-the-road truck driver.

Due to marital difficulties with his present wife, on December 24, 1988, Paul brought the children to stay with Lorette in Iowa. Paul returned to Arkansas. The parties dispute Paul’s intentions when he left the children in Iowa. Paul continued to send $100 a month child support. He paid their school lunch tickets and wrote them. They visited Paul in Arkansas for a week over spring break.

The children resided with Lorette at their grandparents’ home until sometime in May 1989. In March Lorette’s present husband, Max Hall, quit work as an over-the-road trucker. He and Lorette bought a home near Knoxville, Iowa, and moved there with the children.

On June 17, 1989, the children returned to Arkansas. On August 6, 1989, the children returned to Iowa for a two-week visit. On August 19, 1989, when Paul arrived in Iowa to pick up the children, he was served with a temporary writ of injunction restraining him from removing the children. He was also served notice of Lorette’s petition to modify the decree to change custody. The petition had been filed August 18, 1989.

On August 25, 1989, a hearing was held in Iowa. The parties consented to personal and subject matter jurisdiction. They agreed to quash the writ. They also agreed to allow the children to reside with Paul during the pendency of this action.

[891]*891In October 1989 Paul filed an application for child support.

Following a trial, the district court modified the decree by awarding Lorette custody of the children and ordering Paul to pay child support.

Paul appeals. He contends the Iowa courts do not have subject matter jurisdiction of this case under the Uniform Child Custody Jurisdiction Act, Iowa Code chapter 598A. He points out Arkansas had not declined to assume jurisdiction as required under section 598A. 14. Paul acknowledges Arkansas was not the “home state” of the children under section 598A.3(l)(a). However, he claims Arkansas would have “significant connection” jurisdiction under section 598A.3(l)(b). Therefore, according to Paul, the Iowa courts lack subject matter jurisdiction and should dismiss this matter and return custody of the children to Paul.

Alternatively, Paul argues Lorette failed to show a material and substantial change of circumstances justifying a change of custody. If he is awarded custody, Paul requests child support. He also requests an award of attorney fees pursuant to Iowa Code sections 598.36 and 598A.8(3).

II. Jurisdiction

The starting point of our inquiry is whether Iowa has subject matter jurisdiction. The jurisdictional issue in this case is governed by the Uniform Child Custody Jurisdiction Act, Iowa Code ch. 598A. This act is recognized both in Iowa and Arkansas. See Ark.Stat.Ann. §§ 9-13-201 to 9-13-227 (1991).

We conclude from reading of the leading Iowa cases, a two-track analysis must be made. First, the court must determine if the state which issued the original custody decree (Arkansas) still has jurisdiction. Second, the court must determine if the state in which the modification petition is filed has jurisdiction. Finally, if both have jurisdiction, the court must determine which is the proper state to assume jurisdiction under section 598A.3.

The Iowa Supreme Court has already spoken on this issue. We quote from the leading Iowa cases:

Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings belong. When a court acts without legal authority to do so, it lacks jurisdiction of the subject matter. The court’s jurisdiction of the subject matter however may be raised at any time and is not waived even by consent. We will determine subject matter jurisdiction even though not raised in the appellate briefs of either party. Also, we will examine the grounds for jurisdiction on our own motion before proceeding further. If we determine subject matter jurisdiction is absent, an order dismissing the petition is the only appropriate disposition. We therefore must determine whether the district court of Iowa lacked subject matter jurisdiction on any grounds.

Pierce v. Pierce, 287 N.W.2d 879, 881-82 (Iowa 1980) (citations omitted; quoted with approval in St. Clair v. Faulkner, 305 N.W.2d 441, 445 (Iowa 1981)).

A. Modification Jurisdiction.

Initial jurisdiction is determined by the guidelines of [section 598A.3], which point to the state with the closest connections to the child and to information about his present and future well-being. Modification jurisdiction is perhaps best viewed as an extension of the recognition and enforcement provisions of the Uniform Child Custody Jurisdiction Act. California is not effectively enforcing the New York decree if it modifies the decree as soon as the child has spent six months within its borders.

In re Marriage of Leyda, 398 N.W.2d 815, 819 (Iowa 1987) (emphasis in original; quoting the leading case of Kumar v. Superior Court, 32 Cal.3d 689, 652 P.2d 1003, 186 Cal.Rptr. 772 (1982)).

When dealing with a modification of a child custody decree of another state, the court must first consider the provisions of section 598A.14. That section in pertinent part provides:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re the Marriage of Word
Court of Appeals of Iowa, 2024
In the Interest of B.C., Minor Child, S.C., Mother
845 N.W.2d 77 (Court of Appeals of Iowa, 2014)
Stauffer v. Temperle
794 N.W.2d 317 (Court of Appeals of Iowa, 2010)
In Re the Marriage of Hocker
752 N.W.2d 447 (Court of Appeals of Iowa, 2008)
Manley v. Hoag
1996 OK CIV APP 45 (Court of Civil Appeals of Oklahoma, 1996)
In Re the Marriage of Cervetti
497 N.W.2d 897 (Supreme Court of Iowa, 1993)
In Re the Marriage of Ross
471 N.W.2d 889 (Court of Appeals of Iowa, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
471 N.W.2d 889, 78 A.L.R. 5th 719, 1991 Iowa App. LEXIS 36, 1991 WL 108331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-ross-iowactapp-1991.