West v. West

216 S.W.3d 557, 364 Ark. 73
Supreme Court of Arkansas·Decided November 3, 2005·No. 04-393·Published·Cited by 21 cases

Opinion

Robert L. Brown, Justice.

Appellant Melissa West appeals from the circuit court’s initial order retaining exclusive, continuingjurisdiction over the parties and subject matter under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Melissa West further appeals the court’s subsequent order continuing joint custody of the children but awarding primary physical custody of the female child, N.W., to herself and awarding primary physical custody of the male child, J.W., to the appellee, James Edward West. Her sole point on appeal is that the circuit court erred in concluding that it had exclusive, continuing subject-matter jurisdiction to determine a modification of a previous Arkansas custody order under the UCCJEA. We affirm the circuit court.

On July 10, 2000, a divorce decree for Melissa West and James Edward West was entered. 1 In that decree, the chancery court ordered that Melissa and James Edward would have joint custody of the two children. It further awarded Melissa West the exclusive right to determine the primary residence of the children and awarded James Edward certain rights of visitation when the two parents resided 300 miles or more from each other.

On June 11, 2003, James Edward filed a motion for change of custody in what is now the circuit court due to the approval of Amendment 80 to the Arkansas Constitution. The motion alleged that since the date of the decree, there had been a material change of circumstances and specifically that (1) Melissa was openly cohabitating with her live-in boyfriend in the presence of the two children; (2) that Melissa had used inappropriate disciplining measures on the children; (3) that Melissa had moved her residence three times within the last three years; (4) that Melissa maintained a dirty and unkept living environment and that the children arrived for visitation in unwashed and dirty clothes; (5) that Melissa’s electrical service had been shut off four or five times since the divorce; and (6) that the children had expressed a strong desire to live with James Edward. James Edward asserted that in addition to these reasons, he had remarried and that he and his wife could offer two steady incomes to pay for the children’s needs. For these reasons, he contended that it was in the best interest of the children for them to be placed in his sole custody.

On July 9, 2003, Melissa moved to dismiss James Edwards’s motion for lack of subject-matter jurisdiction. She stated that the children had resided in the state of Oregon with her since July 2000, and that six months from that date, Oregon became the children’s home state. She further stated that all of the children’s school and medical records were in Oregon. She contended that under the UCCJEA, the circuit court no longer had exclusive, continuing jurisdiction over the children, and for that reason, the court should dismiss the pending motion. She further denied the allegations in the change-of-custody motion.

On July 21, 2003, the circuit court held a hearing on the issue of subject-matter jurisdiction.After hearing the testimony of both Melissa and James- Edward and hearing the arguments of counsel, the circuit court ruled:

I’ve listened to all of the evidence and I, also, read the cases from the other jurisdictions, as well as, those from the State of Arkansas, regarding the UCCJEA, and I’ve had this issue come up a number of times since the enactment of the UCCJEA. In ruling, I am ruling that Arkansas will retain jurisdiction of this case. I do recognize that the home state would be, at this time, considered to be the State of Oregon instead of the State of Arkansas, because the child has resided there for in excess of six months — or children. The children are now eleven and almost fourteen years of age. They have spent a majority of their lifetime in the State of Arkansas and Arkansas had previously entered an order regarding custody. UCCJEA does require the Court to consider whether or not there are significant relationships or contacts or evidence, as I interpret it, with the State of Arkansas. I think that there are more than enough significant contacts, here, still, at the present time, and have been since the mother and the children have moved to the State of Oregon. Up to twenty-five percent — and I think that it’s a question of whether or not there are significant contacts, not the question of whether or not there are more, and I think that’s the issue that has to be considered by the Court. There are significant contacts and relationships and evidence in the State of Arkansas. The child spends somewhere between twenty and twenty-five percent of its time in — children spend twenty to twenty-five percent of their time in the State of Arkansas. The father and his family live here. He’s remarried. The college classes, Karate and other things, and therefore, I am going to retain jurisdiction of this matter at the present time. I’m going to recess until 1:15 and we will have a temporary hearing after lunch, rather than starting it at this time.

On September 2, 2003, a hearing was then held on the merits of the motion to change custody. Following the testimony by the witnesses and the arguments of counsel, the circuit court issued its final order on September 18, 2003. In that order, the circuit court reiterated and reaffirmed its finding of exclusive, continuing jurisdiction pursuant to the UCCJEA. It further found a material and significant change in circumstance and relied on the following facts to support that finding: (1) that Melissa moved to Oregon after the divorce; (2) the desires of both children as stated during the hearing; (3) that James Edward had remarried; and (4) that Melissa had been cohabitating with a man for more than two years. The court concluded that it was in the best interest of the children for Melissa and James Edward to continue sharing joint custody, but the court ordered that Melissa be the primary physical custodian of N.W. and James Edward be the primary physical custodian of J.W., subject to visitation.

Melissa initially contends in this appeal that under the UCCJEA, the children’s home state is now Oregon and that that is the preferred jurisdiction. She asserts that court-ordered visitation and any activities occurring within that time period of visitation, standing alone, cannot be deemed sufficient to sustain a finding of a significant connection to the original-decree state. She maintains that all the children’s school records, medical records, and a substantial extended family exist only in Oregon. She cites to other jurisdictions to support her proposition that Oregon has long been the home state of the children and urges that Oregon is preferred under the UCCJEA and can only be overcome for jurisdiction purposes by a showing and finding of “significant connections” and “substantial evidence.”

Our standard of review in this case is de novo, although we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. See Arkansas Dep’t of Human Servs. v. Cox, 349 Ark. 205, 82 S.W.3d 806 (2002).

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West v. West, 216 S.W.3d 557, 364 Ark. 73 (Ark. 2005).

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