Mace v. Mace

341 N.W.2d 307, 215 Neb. 640, 1983 Neb. LEXIS 1320

• Court: Nebraska Supreme Court
• Decided: November 18, 1983
• Docket: No. 82-559
• Status: Published

Opinions

Boslaugh, J.

This is an appeal in a proceeding for a writ of habeas corpus to enforce a Mississippi judgment changing child custody between the parties.

The plaintiff, James Austin Mace, and the defendant, Jerri Lynne Hanson Mace, were married on September 28, 1972, in Elk Point, South Dakota. Two children were born of the marriage: Michelle Lynne, born May 2, 1973, and Adriane Lee, born October 12, 1977. The parties were divorced on September 12, 1980, by a decree of the chancery court of Jones County, Mississippi, the site of the couple’s marital home.

The decree awarded custody of Michelle and Adriane to Jerri, subject to the reasonable visitation rights of James. James was ordered to pay child support. The decree did not prohibit Jerri from relocating to another state with the children.

Several members of Jerri’s family reside in the Omaha area. Jerri and the two children moved to Omaha, Nebraska, just a few days after the divorce decree was entered. James and his father helped Jerri pack, and the record shows no objection by James to this move. Jerri has resided in Omaha since that time, and Michelle has attended school in Omaha.

In December 1981 the children went to Mississippi to visit their father. Although the parties had agreed that James would return the children to Omaha, he told Jerri that she would have to come to Mississippi to get them. Shortly after her arrival at James’ parents’ house to get the children, James arrived with an officer, who served Jerri with a summons to appear in the Jones County Chancery Court in an action to modify the decree. She then returned to Omaha with the children.

At the modification hearing in Mississippi, Jerri appeared through counsel, who objected that the chancery court lacked jurisdiction over Jerri and the children. The Mississippi court held that since Jerri had been served with process, it had jurisdiction to modify its original decree. Jerri presented no evidence. James and his mother testified regarding Jerri’s fitness as a custodial parent. The court found a material change in circumstances and awarded custody of the two children to James. Judgment was entered on March 24, 1982. On April 9, 1982, Jerri filed a petition for a rehearing, which is still pending. In correspondence with the Douglas County District Court, the presiding judge in Jones County, Mississippi, stated: “No hearing has been requested by that attorney on that petition. Under our procedure, until the attorney requests a hearing and gives proper notice to opposing counsel, the matter will lie dormant.’’

On April 9, 1982, James filed a petition for a writ of habeas corpus in Douglas County, demanding that Jerri turn the children over to him pursuant to the March 24, 1982, Mississippi judgment modifying the decree of September 12, 1980. Jerri responded to the writ, requesting that the Nebraska court examine the jurisdiction of the Mississippi court in modifying the decree, and requesting that she be awarded custody.

On April 12, 1982, after an altercation with Jerri’s brother and upon showing a copy of the Mississippi decree to school officials, James took Michelle from her school and returned to Mississippi. Adriane remained in Omaha with Jerri.

At the hearing in this case the trial court ordered James to return Michelle to Douglas County, and James complied. The court then heard evidence regarding the fitness of the parents, and interviewed the children. The court dismissed the petition for a writ of habeas corpus and awarded custody of the children to Jerri. James appeals.

Habeas corpus proceedings may be used to enforce a foreign judgment regarding child custody. See Slidell v. Valentine, 298 N.W.2d 599 (Iowa 1980). The Uniform Child Custody Jurisdiction Act, 9 U.L.A. 116-70 (1979) (UCCJA), is applicable in the present case.

James argues that the UCCJA, enacted in Nebraska and codified as Neb. Rev. Stat. §§ 43-1201 et seq. (Cum. Supp. 1982), required the District Court to summarily enforce the March 24, 1982, Mississippi modification judgment and precluded the District Court from making a modification decree.

There is some doubt as to whether the 1982 Mississippi judgment modifying the 1980 decree was a final order such that we might be required to enforce under any theory. See 50 C.J.S. Judgments § 889(3) (1947). However, neither party has raised an issue regarding its finality, and the plaintiff could not be heard to assert its lack of finality, since he seeks to enforce the judgment. Furthermore, we conclude that the Mississippi court did not exercise jurisdiction substantially in conformity with the act, as required by § 43-1206, and the Mississippi judgment is not enforceable in Nebraska under the terms of our statute.

The general purposes of the UCCJA are set forth in § 43-1201. Of the nine purposes listed the most significant to the present case is set out in subdivision (c): “Assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.”

The UCCJA requires the enforcement of a decree of another state under certain conditions: “The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with sections 43-1201 to 43-1225 or which was made under factual circumstances meeting the jurisdictional standards of the act, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of sections 43-1201 to 43-1225.” §43-1213.

The jurisdictional provisions of the UCCJA are set forth in § 43-1203: “(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

“(a) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

“(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships ;

“(c) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or

“(d) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (a), (b), or (c) of this section, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

“(2) Except under subdivisions (c) and (d) of subsection (1) of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

“(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.’’

Section 43-1213 does not require automatic enforcement of a foreign decree or a foreign modification of a decree simply because it is shown to the court that it exists. Rather, the statute requires that the court in which enforcement is sought examine the jurisdictional foundation upon which the foreign court acted. See In re Marriage of Hopson, 110 Cal. App. 3d 884, 168 Cal. Rptr. 345 (1980). If the foreign court has assumed jurisdiction under statutory provisions substantially in accordance with the UCCJA or under factual circumstances meeting the UCCJA jurisdictional standards, then the court must recognize and enforce the foreign decree.

Mississippi had not adopted the UCCJA at the time of the modification decree. However, this does not preclude the application of the UCCJA jurisdictional standards to the Mississippi decree. Bergstrom v. Bergstrom, 271 N.W.2d 546 (N.D. 1978). In this regard we consider the factual circumstances under which the Mississippi court assumed jurisdiction in light of the UCCJA standards as set forth in § 43-1203.

Primarily, the UCCJA is concerned with subject-matter jurisdiction and not personal jurisdiction. Submission of a person to the jurisdiction of the court does not alone confer jurisdiction under the act. § 43-1203(2). The jurisdictional standards of the act are designed to achieve both certainty and predictability in the enforcement of child custody decrees while assuring that a court which assumes jurisdiction acts in the child’s best interests. See, Slidell v. Valentine, 298 N.W.2d 599 (Iowa 1980); Hafer v. Superior Court, County of San Diego, 126 Cal. App. 3d 856, 179 Cal. Rptr. 132 (1981).

Section 43-1203(1) (a) provides that the court of the “home state” of the child has jurisdiction. Section 43-1202(5) defines “home state” as follows: “Home state shall mean the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.”

The evidence in this case shows that Jerri and the children lived in Omaha for 18 months prior to the commencement of this action. Nebraska, not Mississippi, is therefore the home state of the children. Because the children had not lived in Mississippi within 6 months prior to the commencement of this action, § 43-1203(1) (a) (ii) does not apply.

Section 43-1203(1) (b) provides that a court may assume jurisdiction as in the best interests of the child because the child and one or both of his parents has a significant connection with the state and there is available in that state substantial evidence regarding the child’s present or future care, protection, training, and personal relationships. The following statement in In re Marriage of Hopson, supra, is relevant: “In commenting on the application of subdivision (1) (b), the commissioners expressed that ‘perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislature purposes expressed’ in section 5150 (quoted below at footnote 14 on page 353). ‘The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state’ (9 U. Laws Ann. Commrs.’ Note Foil. § 3, emphasis included). . . .

“Analyzing the dilemma created by the application of section 5152, subdivision (l)(b) under the circumstances we note that . . . we are told that the best interest of the child is served if jurisdiction is exercised by the forum with which he has maximum contact and which there is substantial evidence concerning his relationship with others.’’ 110 Cal. App. 3d at 895-96, 168 Cal. Rptr. at 353-54.

James was a resident of Mississippi at the time the action to modify the decree of 1980 was commenced. Evidence regarding the father’s ability to care for his children and regarding the father’s present and extended families was available in Mississippi.

However, before we could conclude that this was sufficient under § 43-1203(1) (b) to warrant jurisdiction in conformity with the act so that we are required to enforce the Mississippi judgment, we must consider whether the Mississippi court acted in the best interests of the children when it assumed jurisdiction.

In Both v. Superior Ct., in & for Cty. of Mohave, 121 Ariz. 381, 384, 590 P.2d 920, 923 (1979), the court said: “Usually the best interest of the child is served by having a determination in the state where the parties both reside and where the facts concerning the custody of the child are more readily available to the court.”

In Hafer v. Superior Court, County of San Diego, 126 Cal. App. 3d 856, 866, 179 Cal. Rptr. 132, 138 (1981), the court said: “In re Marriage of Carney, 24 Cal.3d 725, 730-731, 157 Cal. Rptr. 383, 598 P.2d 36, strongly emphasizes children’s needs for stability and continuity. So also does the Act. The home state concept is therefore of the utmost importance in the Act, requiring the courts, when possible, to choose that forum to adjudicate custody disputes. The children’s home is the presumptively correct forum. A showing of need to change custody does not alter the fact the modification process will be less harmful to the children if conducted near their present home.”

Although Mississippi had some contacts with the children, it is Nebraska which has the maximum contact. The evidence concerning the children’s schooling, their present care, their present relationships, and their extended family is more readily available in Douglas County. Moreover, Omaha, as the children’s home state for the entire 18-month period since the divorce, is the “presumptively correct” forum. Hafer, supra. We also note that the evidence regarding Jerri’s fitness as a mother, the crux of James’ allegations that he should be the custodial parent, is more readily available in Douglas County.

The evidence shows no factual basis to support an assumption of jurisdiction by Mississippi under § 43-1203(1) (c) or (d). Its assumption of jurisdiction did not serve the best interests of the children. Nebraska has jurisdiction under both the “home state” test and the “best interests” test, and it is now the more appropriate forum for litigation of the child custody issue.

“The Act contemplates concurrent jurisdiction and contains three provisions to assist a court in determining which forum to choose.” In re Marriage of Leonard, 122 Cal. App. 3d 443, 468, 175 Cal. Rptr. 903, 917 (1981). The only such provision relevant in this appeal is § 43-1207(1), (2), and (3): “(1) A court which has jurisdiction under sections 43-1201 to 43-1225 to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

“(2) A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.

“(3) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:

“(a) If another state is or recently was the child’s home state;

“(b) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;

“(c) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;

“(d) If the parties have agreed on another forum which is no less appropriate; and

“(e) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section IfS-1201.” (Emphasis supplied.)

We believe that if the Mississippi court had analyzed its jurisdictional basis in conformity with the above-quoted section, it would have concluded that its assumption of jurisdiction would defeat the purposes of the act, i.e., that litigation should take place in the forum with maximum contact and that Nebraska is the “more appropriate forum.”

We conclude that because Nebraska has jurisdiction under the act and is the more appropriate forum, it may modify the original divorce decree with regard to child custody. § 43-1214.

James assigns as error the denial of his request for pretrial discovery as provided by §§ 43-1218 through 43-1222. The record does not reflect any request for discovery, nor that such a request was denied by the court. Evidence which does not appear in the record cannot be considered on appeal by the Supreme Court. Weeks v. State Board of Education, 204 Neb. 659, 284 N.W.2d 843 (1979). The hearing took place over an 8-day period, some 2 weeks after James’ petition was filed. It appears from the record that all witnesses germane to his allegations regarding Jerri’s fitness appeared and testified.

James’ final assignment of error is that it was error to determine that it was in the best interests of the children to award custody to Jerri. The review of a determination of child custody is de novo on the record; however, weight is given to the fact that the trial court observed the witnesses and their manner of testifying and that the court accepted one version of the facts rather than another. Hicks v. Hicks, 214 Neb. 588, 334 N.W.2d 807 (1983); Elsasser v. Elsasser, 206 Neb. 128, 291 N.W.2d 260 (1980).

The controlling consideration in a child custody determination is the best interests and welfare of the children. Krueger v. Krueger, 211 Neb. 568, 319 N.W.2d 445 (1982). Among the factors to be considered in determining the best interests of the children are the moral fitness of the parents, respective environments offered by each parent, emotional relationships between the children and parents, and the age, sex, and health of the children. Sexual misconduct, while not determinative, may be considered. Koch v. Koch, 209 Neb. 896, 312 N.W.2d 294 (1981); Kringel v. Kringel, 207 Neb. 241, 298 N.W.2d 150 (1980); Hicks v. Hicks, supra. A child’s statement of preference of custody may be considered. State ex rel. Speal v. Eggers, 181 Neb. 558, 149 N.W.2d 522 (1967). Other considerations are the effect on the children of continuing or disrupting an existing relationship, attitude and stability of each parent, and the capacity to furnish physical care, education, and needs of the children. Duff v. Duff, 203 Neb. 767, 280 N.W.2d 69 (1979).

In the present case the father’s main concern was what effect Jerri’s former boyfriend, who lived with Jerri and the children for several months in 1980, may have had on the children.

After hearing testimony in this case from the children, the boyfriend, and Jerri, the District Court concluded that the relationship which terminated in December 1980 had no detrimental effect upon the children. The record discloses that the live-in relationship was of but a brief duration, and has now ended. Although Jerri had planned to marry this man, she has since reconsidered those plans. This evidence alone did not establish that Jerri was an unfit parent.

The ages and sex of the children, a 6-year-old girl and a 10-year-old girl, and the long relationship they have had with their mother must be considered. The mother is able to spend more time with the children than is their father, a medical student with several years of residency training ahead of him. The trial court interviewed the children, both of whom indicated a preference to be with their mother and indicated a reluctance to leave their established friendships in Omaha. In granting custody to the mother, Jerri, the trial court said: “[I]n this case it is important to note that the upbringing of the children has been for the most part the responsibility of the [mother]. In view of the circumstances the [mother] has done a commendable job in raising these children. These children are evidence enough to support the premise that the respondent has and will give the children both the quantity and quality of time necessary for their well-being.”

As we view the record, custody was properly awarded to the mother. We find no basis upon which to disturb the order of the trial court in that regard.

The judgment of the District Court is affirmed.

Affirmed.