Matter of Marriage of Medill

40 P.3d 1087, 179 Or. App. 630, 2002 Ore. App. LEXIS 301

• Court: Court of Appeals of Oregon
• Decided: February 20, 2002
• Docket: DR 98-04-163; A112620
• Status: Published

Opinions

BREWER, J.

Father appeals from the trial court’s dismissal, for lack of subject matter jurisdiction, of father’s motions to modify the child custody and parenting plan provisions of a dissolution judgment; to terminate, modify, or suspend his child support obligation; and to hold mother in contempt of court for violating the parenting plan. Father also assigns error to the entry of an order denying his motion to set aside the order of dismissal.¹ Father contends that the court had subject-matter jurisdiction over the initial child custody determination under the Uniform Child Custody Jurisdiction Act (UCCJA), former ORS 109.700 to ORS 109.930, repealed by Or Laws 1999, ch 649, § 55, and that it had authority to modify that determination under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), ORS 109.701 to ORS 109.834 (1999).² In addition, father contends that the court had jurisdiction to terminate, modify, or suspend his child support obligation, and to enforce the parenting plan by contempt proceedings. We reverse and remand in part; otherwise, we affirm.

While serving in the United States military, father met and married mother in Denmark in 1985. The parties lived in Germany after their marriage until 1997. Their two children were born in Germany in 1986 and 1988, respectively. Father moved to Oregon in the fall of 1997, expecting that mother and the children would move to Oregon. Mother later informed father that she and the children would remain in Germany. The parties agreed that father would file a dissolution action in Oregon. In May 1998, the Clackamas County Circuit Court entered, with mother’s consent, a dissolution judgment that included a parenting plan. The parenting plan called for joint custody of the children, with mother retaining physical custody, and it awarded father parenting time with the children during any school vacation period lasting at least two weeks.

In July 1998, the children traveled to Oregon to visit father. Based on information he obtained from the children during the visit, father obtained a temporary protective order that prevented the children from returning to Germany as scheduled. Mother came to Oregon to contest the protective order. After a hearing, the trial court vacated the order in September 1998, and the children returned to Germany with mother. The vacating order specified the timing and frequency of telephonic access between father and the children, reaffirmed father’s rights to parenting time with the children, and provided that the court should be notified of any further parenting time violations by mother.

In December 1998, father filed a contempt proceeding against mother, alleging that she had repeatedly violated the parenting plan. In April 1999, the trial court entered a judgment finding mother in contempt, sentencing her to one-year court probation, and modifying the parenting plan once more to clarify the terms of father’s parenting time. Later in 1999, father sent a series of affidavits to the court, reporting additional alleged violations of the parenting plan by mother. In October 1999, mother initiated custody proceedings in a German family court, asserting that father had engaged in a bad-faith campaign to undermine her custody of the children throughout the previous court proceedings. In her pleadings, mother asserted — for the first time in any legal proceeding— that the German court had exclusive jurisdiction over custody and parenting plan issues regarding the children.

In December 1999, father initiated the current modification proceeding in the trial court. His third amended motion and order to show cause sought a change of custody or, alternatively, modification of the parenting plan, as well as modification or termination of his child support obligation, suspension of child support based on mother’s interference with the parenting plan, a judgment of contempt based on mother’s alleged violations of the parenting plan, and various sanctions for those violations. The trial court held a hearing on father’s motion in August 2000. Mother did not appear. In November, the court entered an order dismissing father’s motions, holding sua sponte that it lacked subject-matter jurisdiction over them. The court’s written findings focused on the custody determination:

“That [mother] has at all material times been, and remains, a citizen and resident of Germany;

“That the children of the parties have always been and remain residents of Germany;

“That [mother] submitted herself to the jurisdiction of the Court for purposes of dissolving her marriage to [father], though never present within Oregon;

“That thereafter [father] withheld the children from [mother] after a summer visitation forcing [mother] to travel to Oregon from Germany to secure the return of the children;

“That [mother] participated in those proceedings in Oregon which resulted in the Court finding [mother] in contempt for violating a Temporary Order of Restraint regarding [father’s] phone contact with the children, and which returned custody of the children to [mother];

“That [mother] makes credible claims in her correspondence, and that of her German attorney, which may constitute a defense to this contempt proceeding;

“That the local German Youth Office has been involved in providing counseling and other services to [mother] and the children related to what [mother] claims are [father’s] ongoing efforts to undermine [mother’s] relationship with the children and engineer a change of custody;

“That all of the witnesses necessary to resolve the issues presented and fashion an appropriate judicial response, except [father], are residents of Germany;

“That there were pending at the time of the hearing date herein proceedings in the Bayreuth, Germany Family Court relating to these same general issuesf]”

From those findings, the trial court concluded that Oregon was not and never had been the children’s home state for purposes of either the UCCJA or the UCCJEA and that the German family court was an available forum in which to litigate the parties’ ongoing dispute. The trial court also concluded that it lacked jurisdiction over the custody and parenting time issues raised by father and, therefore, lacked authority to enforce any order it might enter. On November 14, the court entered an order dismissing father’s motion and order to show cause in its entirety.

Unknown to the trial court at that time, the German family court previously had entered an order declining to exercise jurisdiction over custody issues involving the parties’ children. In its decision, the German court explained:

“In this connection, it is important to recognize that [mother] previously consented to the American Court’s divorce decision, which also dealt with parental custody. The divorce decision’s provision that [mother] would have the actual parental custody for the minor children and otherwise both parties would have joint legal custody with the caveat that [mother] has the sole right to determine the children’s permanent place of residence, is a decision that could have also been reached under German law. It corresponds approximately to German law, which allows the parents joint custody and gives the mother the right to determine permanent residence. In this case, [mother] can, in accordance with [German law], exercise ‘actual custody.’

“In view of the previous proceeding regarding parental custody in the USA and in view of the pending custody proceeding in the Oregon Circuit Court, which can be recognized under German law, the [German court] considers a custody decision to be impermissible.”

After receiving a copy of the German court’s decision on November 28, father filed a motion to set aside the trial court’s order of dismissal. Father argued that the German court’s failure to assert jurisdiction over the children freed the Oregon court to do so. On January 8,2001, the trial court denied the motion to set aside the dismissal. In a written order, the court explained:

“The German Court’s decision to defer to the Court here based on [father’s] objection to jurisdiction, its determination that the proceeding here had been initiated prior to the proceeding there, and its mistaken belief that [mother] had petitioned this Court for a modification of judgment within this proceeding cannot create jurisdiction in this Court where none exists by application of the governing statutes. The German Court’s ruling was only that they should not proceed on the petition filed by [mother] over [father’s] objections, not the converse.”

The court determined that “Oregon never had jurisdiction to make an ‘initial child custody determination.’ ” However, the court also concluded that, if Oregon had jurisdiction to make an initial child custody determination, “Oregon would have lost that jurisdiction pursuant to ORS 109.744(1)(a) by the time of this hearing.” As noted, father appeals from the trial court’s dismissal of his motion and order to show cause and its denial of his motion for reconsideration of the dismissal.

We first address father’s contention that the trial court erred in concluding that it lacked jurisdiction to make the initial custody determination. Father urges that the trial court had jurisdiction under ORS 107.105, which provides, in part:

“(1) Whenever the court grants a decree of marital annulment, dissolution or separation, it may further decree * * *.

“(a) For the future care and custody * * * of all minor children * * * ”

However, the trial court did not have jurisdiction over the custody determination under ORS chapter 107 if it lacked jurisdiction under the UCCJA, which was in effect at the time of the initial custody determination. Mackie and Mackie, 113 Or App 273, 277, 832 P2d 1240 (1992) (holding that a trial court must examine its jurisdiction under ORS 109.730 (1991) before making any cldld custody award in a situation where more than one state might exercise jurisdiction); State ex rel Pennsylvania v. Stork, 56 Or App 335, 340, 641 P2d 660, rev den 293 Or 190 (1982) (holding that the jurisdictional requirements of the UCCJA prevail over those in ORS chapter 107).³

When the trial court made its initial custody determination, ORS 109.730 (1997) was the governing jurisdictional statute under the UCCJA.⁴ It is undisputed that the children and mother, their physical custodian, have never resided in Oregon and that only father had any connection with this state when the initial custody determination was made. Accordingly, it is readily apparent that the trial court did not acquire jurisdiction to make an initial custody determination under ORS 109.730(1)(a), (b), or (c) (1997).

However, the court did have jurisdiction to make an initial custody determination under ORS 109.730(1)(d) (1997). That subsection applied because no other state had jurisdiction over the custody determination under ORS 109.730(1)(a), (b), or (c) (1997), and it was in the best interests of the children that Oregon assumed jurisdiction. Under the UCCJA, “state” meant “any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.” ORS 109.710(10) (1997). Because it is a foreign nation, Germany was not “a state” within the meaning of the UCCJA. Horiba and Horiba, 151 Or App 489, 499-500, 950 P2d 340 (1997), rev den 326 Or 627 (1998). There is no evidence in the record that any other state, territory, or possession of the United States had jurisdiction over the initial child custody determination. Therefore, it is of no consequence, for purposes of ORS 109.730(1)(d) (1997), that the children resided in a foreign country when the initial custody determination was made. Likewise, it was in the best interests of the children for Oregon to assume jurisdiction over the custody determination at that time. Their parents agreed that Oregon should assume jurisdiction, and a custody determination by some court was required in order to provide the children with the stability of a predictable parenting plan. Because no German court had made a custody determination when the trial court made its initial determination, none of the policies of the UCCJA relating to the enforcement of foreign custody judgments was infringed by the trial court’s assertion of jurisdiction. See ORS 109.720(3) (1997); Dagan and Dagan, 103 Or App 453, 455-57, 798 P2d 253 (1990) (construing ORS 109.830 (1989), providing for the recognition and enforcement of the custody judgments of foreign nations). Therefore, the trial court had subject matter jurisdiction to make the initial custody determination under ORS 109.730(1)(d) (1997). The same conclusion follows with respect to the orders modifying the parenting plan that the trial court entered under the UCCJA in October 1998 and April 1999.

However, we conclude that the trial court did not have jurisdiction to decide the portions of father’s current motion and order to show cause seeking to modify the custody determination and the parenting plan under the UCCJEA, the law in effect when that motion was filed. A controlling provision of that Act, ORS 109.744, provides:

“(1) Except as otherwise provided in ORS 109.751, a court of this state that has made a child custody determination consistent with ORS 109.741 or ORS 109.747 has exclusive, continuing jurisdiction over the determination until:

“(a) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training and personal relationships; or

“(b) A court of this state or a court of another state determines that the child, the child’s parents and any person acting as a parent do not presently reside in this state.

“(2) A court of this state that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if the court has jurisdiction to make an initial determination under ORS 109.741.”

ORS 109.744(1)(a) makes clear that an Oregon court does not have exclusive jurisdiction over a custody determination where the child lacks a significant connection with this state and substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available in this state. In its order of dismissal, the trial court found that the children have never resided in Oregon and that all of the witnesses with information concerning the children’s welfare resided in Germany. Further, in its order denying reconsideration, the trial court stated that it did not have exclusive continuing jurisdiction under ORS 109.744(1)(a), a conclusion that depended on the court having found that the children did not have a significant connection to this state and that substantial evidence concerning their welfare was not available here. Father does not challenge those findings, and our review of the record discloses that they are beyond reasonable dispute.

The dissent disagrees, asserting that Oregon holds exclusive jurisdiction over the custody determination. The dissent apparently believes that it is possible for Oregon to retain exclusive continuing jurisdiction under ORS 109.744 and, at the same time, for Germany to have “home state” jurisdiction under ORS 109.741. 179 Or App at 657 (Edmonds, J., dissenting).⁵ That conclusion is perplexing. The word “exclusive” is not ambiguous. Its common meaning is “single, sole <an ~ agent> <~ jurisdiction^” Webster’s Third New Int'l Dictionary, 793 (unabridged ed 1993). Nothing in the context of ORS 109.744 indicates a different meaning. Because Oregon’s jurisdiction simply could not be sole if Germany could exercise “home state” jurisdiction, there is no ambiguity. Thus, the necessary implication of the dissent’s view that Oregon retains exclusive jurisdiction is that Germany — the children’s lifelong home — lacks any jurisdiction at all. As the dissent agrees, the UCC JEA expressly prefers jurisdiction to be exercised in a child’s “home state.” 179 Or App at 655-56 (Edmonds, J., dissenting); see also ORS 109.741(b), (c), and (d) (deferring other types of jurisdiction in favor of courts with “home state” jurisdiction). The dissent’s belief that Oregon’s courts retain exclusive jurisdiction over the custody determination in this case necessarily contravenes that preference.

In aid of its conclusion that Oregon retains exclusive jurisdiction, the dissent relies on four factors — without differentiation — to support its assertions both that Oregon has a “significant connection” to the children and also that it harbors “substantial evidence” concerning their care, protection, training, and personal relationships. ORS 109.744(1)(a). The first factor is the time that the children spent in this state in 1998. That visit commenced in July and was to have been a five-week parenting time period. As noted, father kept the children in Oregon until September, when the trial court ordered their return to Germany. Apart from that period, the children have never been present in this state. Second, the dissent relies on father’s residence in this state since 1997 and the presence of members of his family, including his present wife, in this state. Third, the dissent relies on one— or perhaps, two — psychological evaluations of the children performed in Oregon in 1998. Fourth, the dissent points to a court-ordered custody evaluation performed in 1998.⁶ The dissent’s argument thus boils down to an assertion of exclusive Oregon jurisdiction based on the presence of father, his wife, and parents in this state, and events occurring in 1998, consisting of the children’s visit and evidence that apparently was obtained during that visit.⁷ However, the visit and evidence derived from it constitute limited contacts, rather than significant connections, between the children and this state. Those contacts, coupled with father’s and his family’s presence in Oregon, are not the sort of “maximum rather than minimum contacts]” that may confer exclusive jurisdiction on the courts of this state. See, e.g., Stubbs v. Weathersby, 320 Or 620, 627-28 n 4, 892 P2d 991 (1995) (holding, under similar UCCJA requirement, that “significant connection” jurisdiction requires “maximum rather than minimum contact with the state,” and that a child’s short-term physical presence is not enough to establish such jurisdiction); State ex rel State of Washington v. Bue, 117 Or App 477, 480-81, 844 P2d 278 (1992) (holding, under similar UCCJA requirement, that children did not have a significant connection to Oregon where their only connections consisted of “the fact that father and other family relatives live in Oregon and that the children make occasional visits to Oregon with their mother”).

Even if that were not so, the trial court would not have exclusive continuing jurisdiction under ORS 109.744(1)(a), the applicable provision of the UCCJEA, unless substantial evidence concerning the children’s care, protection, training, and personal relationships also existed in Oregon. The dissent asserts that the testimony of father and his family members constitutes such evidence, together with the 1998 evaluations. We disagree. “[T]he requirement of the availability of ‘substantial evidence’ should be understood to require optimum access to relevant evidence.” Settle and Settle, 276 Or 759, 767, 556 P2d 962 (1976).⁸ The fragmentary assortment of information upon which the dissent relies does not nearly approach the optimal mass of substantial evidence that is required for the assertion of exclusive continuing jurisdiction. The children were present in Oregon for less than four months — but they lived in Germany for 14 and 12 years, respectively. Evidence of the vast majority of their care, protection, training, and personal relationships— past, present and future — necessarily is situated in Germany. The minimal quantity of Oregon contacts cited by the dissent cannot be understood to create more than negligible relevant evidence to which Oregon could provide “optimum access.” See Efaw, 117 Or App at 480-81 (holding that, despite residence of father and other family members in Oregon, there was “no indication that substantial evidence * * * is available in Oregon”). In its order denying reconsideration, the trial court necessarily found — and we agree— that substantial evidence concerning the children’s care, protection, training, and personal relationships does not exist in this state. Like the absence of significant connections, that finding provides an independent basis divesting Oregon of exclusive jurisdiction. ORS 109.744(1).⁹

It follows that the trial court lacked continuing jurisdiction to modify the custody determination unless, in December 1999, it would have had jurisdiction to make an initial custody determination under ORS 109.741. See ORS 109.744(2). ORS 109.741 provides:

“(1) Except as otherwise provided in ORS 109.751 [providing for temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial child custody determination only if:

“(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

“(b) A court of another state does not have jurisdiction under subsection (l)(a) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under ORS 109.761 [inconvenient forum] or 109.764 [jurisdiction declined by reason of conduct], and:

“(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

“(B) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships;

“(c) All courts having jurisdiction under subsection (l)(a) or (b) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under ORS 109.761 or 109.764; or

“(d) No court of any other state would have jurisdiction under the criteria specified in subsection (1)(a), (b) or (c) of this section.

“(2) Subsection (1) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

“(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a custody determination.”

We examine, in turn, each of the four possible grounds for asserting initial custody jurisdiction under ORS 109.741(1). Subsection (1)(a) is plainly inapplicable, because Oregon was not the children’s home state at any time. See ORS 109.704(7) (defining “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding”).

Subsections (1)(b) and (c) also would have been inapplicable because of a fundamental change in the definition of “state” under the UCCJEA. Unlike the UCC JA, the UCCJEA requires Oregon courts to “treat a foreign country as if it were a state of the United States for the purpose of applying ORS 109.701 to 109.771.” ORS 109.714(1). As a consequence, Germany is the children’s “home state,” and the trial court could not have asserted jurisdiction under either subsection (1)(b) or (c) unless the German court had declined jurisdiction on the ground that it was an inconvenient forum, ORS 109.761, or because mother had engaged in unjustifiable conduct, ORS 109.764. Neither reason was cited here. The German court deferred to the trial court because that court had made an initial custody determination under substantive legal principles that the German court believed were compatible with German law and because mother had consented to the trial court’s exercise of jurisdiction over the initial custody determination. Because the German court did not decline to exercise jurisdiction on the grounds specified in either ORS 109.761 or ORS 109.764, the trial court would not have had jurisdiction to make an initial custody determination under ORS 109.741(1)(b) or (c).

Finally, the trial court also would have lacked jurisdiction under subsection (1)(d), because Germany was the children’s “home state” under subsection (1)(a).

In short, the trial court could not — at the time it decided father’s motion and order to show cause — have exercised jurisdiction to make an initial custody determination under any paragraph of ORS 109.741(1), that is, under the UCCJEA. As a consequence, the trial court lacked jurisdiction under the UCCJEA to modify the custody determinations it had made under the UCCJA. ORS 109.744(2).

For two reasons, the German court’s rationale for declining to exercise jurisdiction does not affect our conclusion. First, although the compatibility of German law and Oregon law sensibly could Influence the German court’s willingness to recognize the effect of the trial court’s initial custody determination, it cannot override the statutory limitations on the trial court’s jurisdiction to modify that determination.¹⁰ Second, mother’s consent to the trial court’s jurisdiction over the initial determination would have had no effect if, indeed, the court had lacked jurisdiction to make that determination. See Chester, 172 Or App at 469 (holding that subject matter jurisdiction over child custody determinations cannot be conferred by consent, nor can the want of subject matter jurisdiction be remedied by waiver or estoppel).¹¹

To summarize, although the trial court had jurisdiction under the UCCJA to make its earlier custody and parenting time determinations, it did not have jurisdiction under the UCCJEA to modify the custody determination and parenting plan. Therefore, the court properly dismissed sua sponte the portion of father’s motion and order to show cause that sought to modify the custody determination and the parenting plan and, likewise, did not err in denying father’s motion to reconsider that dismissal.¹² See Rauda v. Oregon Roses, Inc., 329 Or 265, 268, 986 P2d 1157 (1999) (holding that a court must examine jurisdictional issues anew regardless of whether the parties have fully considered them).

However, that conclusion does not end our analysis, because father’s motion and order to show cause sought relief beyond a change of custody or modification of the parenting plan. Father also requested termination, modification, or suspension of his child support obligations and various contempt sanctions for alleged violations of the parenting plan, including recovery of expenses and attorney fees. We must analyze those requests for relief separately.

The UCCJEA’s jurisdictional primacy applies to “child custody determination[s].” ORS 109.741(2). By definition, a “ ‘[cjhild custody determination’ does not include an order relating to child support or other monetary obligation[s] of an individual.” ORS 109.704(3). The UCCJEA thus did not deprive the court of jurisdiction to terminate, modify, or suspend that provision of the dissolution judgment. See ORS 110.327(1)(a) (a tribunal of this state issuing a support order consistent with the laws of this state has continuing jurisdiction over the support order, as long as this state remains the residence of the obligor). Therefore, the trial court erred in dismissing father’s motions to terminate, modify, or suspend his child support obligation.

The trial court’s jurisdiction to hold mother in contempt for violations of the current parenting plan and to impose sanctions for those violations presents different issues. The UCCJEA does not expressly address the enforcement of a custody determination made, as here, by a court of a state that no longer has jurisdiction to modify that determination under ORS 109.744(2). However, UCCJEA does contain extensive provisions concerning the enforcement of child custody determinations made by another state. See ORS 109.774 to ORS 109.827. The statutory definition of “child custody proceeding” specifically excludes “enforcement under ORS 109.774 to 109.827.” ORS 109.704(4). That definition suggests that a child custody determination does not include an order enforcing an existing custody determination. That interpretation is bolstered by ORS 109.704(3), which provides that a “ ‘[cjhild custody determination’ means a judgment, decree or other order of a court providing for the legal custody, physical custody, parenting time or visitation with respect to a child.” (Emphasis added.) That definition logically excludes a contempt judgment that does not provide for custody or parenting time but, rather, merely enforces an existing custody determination. Such a conclusion is unsurprising, because the trial court’s loss of jurisdiction to modify the existing custody determination does not, by force of logic, render that determination unenforceable. If it did, the German court’s failure to exercise jurisdiction could leave the parties with no enforceable custody determination, a result that would serve no purpose of the UCCJEA.¹³

It follows that, unless and until a further custody determination is made by a count having jurisdiction to modify the custody determination, the trial court has authority to enforce by contempt proceedings the only custody determination and parenting plan that currently exists. See ORS 33.015(2)(b) (providing that contempt of court includes will-full “[disobedience of, resistance to or obstruction of the court’s * * * orders or judgments”); ORS 33.025 (the power to impose sanctions for contempt of court “is an inherent judicial power”). Accordingly, the trial court erred in dismissing for lack of subject matter jurisdiction the portions of father’s motion and order to show cause that sought to hold mother in contempt for violations of the existing custody determination and parenting plan and to impose contempt sanctions. Nothing we have said should be understood to suggest that the trial court is authorized to impose additional or different parenting time or a change of custody as a sanction for contempt. The judgment imposing any such sanction would constitute a child custody determination, because it would be a judgment providing for the legal custody, physical custody, parenting time, or visitation with respect to the parties’ children. ORS 109.704(3). Such a judgment would improperly modify the existing custody determination when the court lacked jurisdiction to do so. See ORS 109.704(11) (“ ‘Modification’ means a child custody determination * * * made after a previous determination concerning the same child * * *.”).

Reversed and remanded with respect to portions of father’s motion and order to show cause seeking termination, modification, or suspension of father’s child support obligation and judgment of contempt, including contempt sanctions; otherwise affirmed.

1 Mother has not appeared on appeal.

2 Effective October 23, 1999, the UCCJA was repealed and the UCCJEA was enacted in its place. Or Laws 1999, ch 649. As necessary, we will refer to the applicable provisions of each act in analyzing father’s arguments. References to the UCCJA are to the 1997 version of the Act, and references to the UCCJEA are to the 1999 version of that Act. Unless otherwise noted, statutory references are to the 1999 version of the ORS.

3 In Chester and Chester, 172 Or App 462, 466 n 4, 18 P3d 1111 (2001), we noted that neither this court nor the Supreme Court had “directly addressed” the issue of whether a trial court could exercise jurisdiction under the UCCJA when it had lost jurisdiction to modify a custody determination because of a pending appeal. See ORS 19.033(1) (1995). Father misunderstands our comment in Chester to mean that it is an open question whether ORS 109.730 (1997) provided the exclusive grant of jurisdiction over custody decisions where more than one state or nation might exercise jurisdiction. That question was decided in Mackie and Stork, at least with respect to dissolution actions arising under ORS chapter 107. Although those decisions directly refute his contention, father has not cited them in his brief or argument on appeal.

4 ORS 109.730 (1997) provided, in part:

“(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 is the home state of the child at the time of commencement of the proceeding, or 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 removal or retention by a person claiming 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 the child and the parents of the child, or the child and at least one contestant, have a significant connection with this state, and 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 the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

“(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b) or (c) of this subsection, 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 it is in the best interest of the child that this court assume jurisdiction.”

5 The dissent contends that “Germany’s authority to exercise ‘home state’jurisidiction * * * does not deprive the trial court of the grant of‘exclusive, continuing jurisdiction.’ ” 179 Or App at 657 (Edmonds, J., dissenting). In support of that proposition, the dissent cites the UCCJEA commentary and states that, “[e]ven if the child has acquired a new home State, the original decree State retains jurisdiction, so long as the general requisites of the ‘substantial connection’ jurisdiction provisions * * * are met.” 179 Or App at 657 (Edmonds, J., dissenting) (quotingUniform Child Custody Jurisdiction and Enforcement Act § 202 Comment, 9 ULA 649, 674 (1997)). That portion of the commentary in no way suggests that one state may have exclusive jurisdiction while another has home state jurisdiction. Nor is it in any respect inconsistent with our conclusion — elaborated below — that Oregon courts lack exclusive continuing jurisdiction over the custody determination under ORS 109.744(1)(a) because “substantial connection” jurisdiction does not-exist in this state.

6 In a letter written to the German court, father explained:

“A custody hearing was held in September 1998. It was determined by a custody evaluator that there was not enough physical evidence to warrant a modification of custody.”

7 The dissent also mentions in passing the existence of Oregon court records relating to prior custody and parenting time proceedings. However, properly authenticated copies of those records are available for use in any jurisdiction-including Germany — where their legal effect may be recognized.

8 Although Settle construed the term “substantial evidence” under the UCC JA, drafters of the UCCJEA and the Oregon Legislature imported the term without modification. Nothing in the UCCJEA indicates an intent to modify the meaning of that term.

9 Focusing on the first sentence of ORS 109.744(1), the dissent strives at length to establish that the initial custody determination was “consistent with ORS 109.741.” However, a resolution of that issue — and the purported statutory ambiguity into which the dissent delves — is unnecessary. If the dissent is correct, for the reasons that we have explained Oregon nonetheless lacked continuing exclusive jurisdiction under ORS 109.744(1)(a) to make a further custody determination in the present proceeding. If the dissent were wrong, ORS 109.744 could not under any circumstances provide a basis for continuing exclusive jurisdiction over the children’s custody determination.

10 Perhaps recognizing that fact, the dissent asserts that the German court declined jurisdiction on the ground that it was an inconvenient forum. 179 Or App at 662-63 (Edmonds, J., dissenting). With respect, the record does not support that view. There is no indication that the German court considered the factors relevant to an inconvenient forum determination. Such an inquiry — for purposes of ORS 109.761 — would involve consideration of, for example, the nature and location of the evidence required to resolve the pending litigation, including the testimony of the children. ORS 109.761(2)(g). There is simply no evidence that the German court concluded that it was an inconvenient forum in which to litigate a custody determination involving children who had lived in Germany for their entire lives.

11 In any event, mother has not consented to the trial court’s exercise of jurisdiction in the present proceeding.

12 Of course, the German court is free to reconsider its jurisdictional determination in light of our conclusion. Unless and until it does so, the dissent’s suggestion that we — or, more properly, the legislature — have offered an “unfortunate result” to the parties is, at the least, premature.

13 Our conclusion is consistent with ORS 109.717, which provides:

“A child custody determination made by a court of this state that has jurisdiction under ORS 109.701 to 109.834 binds all persons who have been served in accordance with the laws of this state or notified in accordance with ORS 109.724 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.” (Emphasis added.)