Nelson v. Nelson

910 P.2d 319, 121 N.M. 243
CourtNew Mexico Court of Appeals
DecidedOctober 16, 1995
Docket15985
StatusPublished
Cited by3 cases

This text of 910 P.2d 319 (Nelson v. Nelson) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Nelson, 910 P.2d 319, 121 N.M. 243 (N.M. Ct. App. 1995).

Opinion

OPINION

WECHSLER, Judge.

1. In this appeal from an order of the district court recognizing and enforcing a California order which awarded Mother sole custody, we review the application of the New Mexico Child Custody Jurisdiction Act, NMSA 1978, §§ 40-10-1 to -24 (Repl. Pamp.1994) (CCJA), and its California counterpart. We conclude that the district court, not the California court, had jurisdiction to modify the California order, and we reverse.

Procedural History and Relevant Facts

2. Marie Nelson (Mother) and Jeffrey Nelson (Father) were married in California in 1980. They have two minor children, Melissa, born in 1981, and Kevin, born in 1983. In 1982 both parties filed for divorce but no final action was taken at that time, and the parties later reconciled. In 1990 the couple again separated, and Mother moved to Albuquerque, New Mexico. Later that same year, Father took the children to Seattle, Washington, without Mother’s consent or knowledge.

3. On March 14, 1991, Mother resumed proceedings in her 1982 California divorce action and obtained a divorce from the Superior Court of California in Los Angeles. In conjunction with the divorce, the court awarded sole custody of the children to Mother and prohibited visitation rights to Father except as arranged through Mother’s counsel. The court reserved jurisdiction over the case to address issues not dealt with in the court’s entry of judgment. After obtaining the divorce, Mother travelled from Albuquerque to Seattle and brought the children back with her to Albuquerque. _ Father moved to Albuquerque later in 1991. Since that time, both parties and their children have been full-time, legal, permanent residents of New Mexico.

4. On June 17, 1993, Father filed a Petition to Establish Child Custody and Visitation in the Second Judicial District Court in New Mexico. District Judge James Blackmer, citing Section 40-10-7 of the CCJA, denied the petition on the ground that his court lacked jurisdiction because of the pendency of the custody issue in the California court. Judge Theresa Baca granted Father’s Motion for Reconsideration of Judge Blackmer’s 1993 order and referred the parties to the Second Judicial District Court Clinic (Court Clinic). Following numerous mediation sessions, therapy sessions, and clinical interviews, the Court Clinician, in an Advisory Consultation Report issued on April 5, 1994, formally recommended that the children reside primarily with Mother, but that a specific, significant time-sharing arrangement be established with both parents. On that same day, Mother filed a Motion to Recognize and Enforce California Order on Custody and Support and a Motion for Reconsideration. Judge Baca, citing the CCJA and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A (1994), and stating that she erred in her earlier determination that the district court has jurisdiction over the custody issue, granted Mother’s Motion and denied Father’s Petition to Establish Child Custody.

Jurisdiction Under the Child Custody Jurisdiction Act

5. All fifty states have now adopted the Uniform Child Custody Jurisdiction Act of 1968 (UCCJA). See Am.Jur.2d, Desk Book 872 (2d ed. 1992) (showing adoption by 49 states and noting that Massachusetts has enacted a “substantially similar version”). New Mexico adopted the Act in 1981. See 1981 N.M.Laws, ch. 119, § 1. California’s version is enacted as Cal.Fam.Code Sections 3400 to 3425 (West 1994). The Act is designed to avoid jurisdictional competition, to promote cooperation among state courts, and to assure that custody litigation ordinarily takes place in the state with which the child and the family have the closest connection. See § 40-10-2(A)-(C).

6. In carrying out the purposes of the CCJA, the district court decides if it has jurisdiction to modify a child custody decree issued by a court of another state. Section 40-10-4(A). One of the four grounds requisite for jurisdiction under Section 40-l(M(A) must exist for a New Mexico court to have in personam jurisdiction in a custody proceeding. See Olsen v. Olsen, 98 N.M. 644, 647, 651 P.2d 1288, 1291 (1982); Serna v. Salazar, 98 N.M. 648, 651, 651 P.2d 1292, 1295 (1982). Neither party disputes that New Mexico was the home state of the children at the time of commencement of this proceeding. Hence, a connection existed, and the district court had jurisdiction to make further jurisdictional inquiry. See § 40-l(M(A)(l)(a).

7. The district court must also determine if it is appropriate under the circumstances before it to exercise its jurisdiction over the case. Section 40-10-7(A). It is improper for a New Mexico district court to exercise its jurisdiction “if at the time of filing the petition a proceeding concerning the custody of the same child was pending in a court of another state exercising jurisdiction substantially in conformity with the [CCJA], unless the proceeding is stayed by the court of the other state because New Mexico is a more appropriate forum, or for other reasons.” Id. Mother argues that the district court correctly declined to exercise jurisdiction because California had jurisdiction under the UCCJA and, therefore, the New Mexico district court could not modify the California decree unless the California court relinquished or transferred jurisdiction to New Mexico. We cannot agree.

8. We begin with the assumption that the California decree is valid because the California court had jurisdiction over the subject matter and parties on March 14, 1991. As the court of original jurisdiction, the California court ordinarily retains continuing jurisdiction to modify a custody decree for as long as the original court has jurisdiction over the children or parents in a custody ease. Murphy v. Murphy, 96 N.M. 401, 406, 631 P.2d 307, 312 (1981). A New Mexico court may, however, modify a decree of the court of another state if the New Mexico court has in personam jurisdiction and it appears that the court rendering the decree no longer has jurisdiction “under jurisdictional prerequisites substantially in accordance with the [CCJA].” Section 40-10-15(A)(1).

9. California follows the same jurisdictional requirements under the UCCJA as New Mexico. Compare Cal.Fam.Code § 3403(a) with Section 40-10-4(A). For California to retain jurisdiction when a child and his or her parents are no longer residents of California and the petitioned court in another state has not declined jurisdiction, California law demands, at a minimum, that “the child and at least one contestant ... have a significant connection with [California], and [that] there is available in [California] substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” Cal.Fam.Code § 3403(a)(2). In construing the California jurisdictional requirements, we are guided by California interpretations of the UCCJA.

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Cite This Page — Counsel Stack

Bluebook (online)
910 P.2d 319, 121 N.M. 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-nelson-nmctapp-1995.