Ogawa v. Ogawa

• Decision Date: 12 November 2009
• Docket Number: No. 48571.,48571.
• Citation: 221 P.3d 699
• Parties: Shinichi OGAWA, Appellant, v. Yoko OGAWA, Respondent.
• Court: Nevada Supreme Court

221 P.3d 699

Shinichi OGAWA, Appellant, v. Yoko OGAWA, Respondent.

No. 48571.

Supreme Court of Nevada.

November 12, 2009.

McFarling Law Group and Emily M. McFarling Benson, Las Vegas, for Appellant.

Xavier Gonzales, Las Vegas, for Respondent.

Robert Cerceo, Reno; Katherine L. Provost, Las Vegas; and Marshal S. Willick, Las Vegas, for Amicus Curiae State Bar of Nevada, Family Law Section.

Before HARDESTY, C.J., PARRAGUIRRE, DOUGLAS, CHERRY, SAITTA, GIBBONS and PICKERING, JJ.

OPINION

PER CURIAM.

This appeal involves an international child custody dispute and divorce action between appellant, who resides in Japan with the parties' three children, and respondent, who lives in Henderson, Nevada. The first of three issues in this appeal is whether the district court had home-state jurisdiction to make child custody determinations under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at NRS Chapter 125A, when respondent did not file her divorce complaint and motion regarding child custody until eight months after the children left the State of Nevada. The second issue concerns whether the district court properly found that Nevada was the children's state of "habitual residence" and granted respondent's motion for the immediate return of the children, when Japan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction—a treaty aimed at ensuring the prompt return of children who have been wrongfully removed from their state of habitual residence to a signatory country. The final issue in this appeal pertains to the divorce decree and whether the district court properly entered the decree by default, awarding respondent all of the community property, spousal and child support, and attorney fees and costs, even though appellant filed an answer to the divorce complaint and a countercomplaint for divorce, and he made an appearance through counsel at the divorce hearing.

Addressing the first issue, the district court properly determined that it had jurisdiction to make custody decisions because Nevada is the children's "home state" under the UCCJEA. Although the children had been absent from the state for eight months when respondent filed her custody action, the testimony and evidence supported that the children left Nevada for a temporary three-month vacation, and under the UCCJEA, temporary absences do not interrupt the six-month pre-complaint residency period necessary to establish home state jurisdiction. Thus, taking into account the temporary absence, the action was filed timely under the UCCJEA, and the Nevada district court had home-state jurisdiction in this matter.

As for appellant's challenge to the order directing the children's return to the United States, the district court properly entered the order to the extent that it relied on its authority to enter custody orders under the UCCJEA. Although the order is unenforceable under the Hague Convention, as implemented in the United States by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-11611 (1988), since Japan has not signed the Hague Convention, the district court nevertheless properly entered the order in the context of the custody proceeding. While the Hague Convention does not apply here, the parties remained free to pursue other remedies and the Convention's nonapplicability did not limit the district court's authority to order the children's return. Accordingly, although the district court erred to the extent that it relied on the Hague Convention, it otherwise properly exercised its jurisdiction over the custody matter in granting respondent's motion seeking the children's immediate return.

Finally, regarding the default divorce decree, because appellant made an appearance and answered the complaint, evidencing his intent to defend against the action, default was inappropriate. The district court therefore erred by entering a default judgment against appellant, awarding respondent all of the community property and child and spousal support in amounts not supported by the evidence, and awarding respondent sole legal and physical custody of the children and attorney fees and costs, without considering the merits of the case.

PROCEDURAL HISTORY AND FACTS

Appellant Shinichi Ogawa and respondent Yoko Ogawa were married in Japan in 1997 and, beginning a series of transpacific moves, entered the U.S. shortly thereafter. Between 1998 and 2002, the parties had three children, all born in Japan, and purchased a home in Henderson, Nevada; Yoko became a lawful permanent resident of the U.S. After several moves back and forth between the U.S. and Japan, the parties resided in Japan with the children.

Thereafter, in January 2003, Yoko, the three children, and Shinichi's parents traveled to the U.S. Shinichi, who had opened a card dealers' school in Japan, remained in that country, and apparently at that time, the parties intended that Yoko and the children would return to Japan at some future date. But in May 2003, Yoko decided that it would be better for her and the children to remain in the United States, and that fall, the older children were enrolled in and began attending school in Henderson. The children returned to Japan in June 2004. The circumstances surrounding that return are disputed by the parties. According to Yoko, the children returned to Japan at that time with Shinichi's mother for a summer vacation only.¹ Yoko maintained that it was not until August 2004, when the children were supposed to return from vacation, when Shinichi informed her that the children would not be returning to the U.S. According to Shinichi, however, the entire family, including Yoko, was preparing to reside in Japan permanently, and the children thus returned to Japan with Yoko's consent. At any rate, the children have remained in Japan with Shinichi since June 2004. In the meantime, Shinichi, with his father, purchased a home in Japan.

District court proceedings

Yoko's divorce complaint and motion for return of the children

Approximately eight months after the parties' children left for Japan, on February 3, 2005, Yoko filed in the Nevada district court a complaint for divorce, along with an emergency motion for the immediate return to the United States of internationally abducted minor children. In her motion, Yoko acknowledged that Japan is not a signatory to the Hague Convention but suggested that the treaty could guide the district court in deciding the child custody issues. The district court apparently held a hearing on the motion on March 5, 2005. In the resultant order, the court noted that only Yoko's attorney was present at the hearing and that Shinichi had yet to be served with any court documents. Nevertheless, the court determined that it had subject matter jurisdiction over the custody issue, since Nevada was the children's "habitual residence," and entered an ex parte order on March 29, 2005, awarding temporary sole custody of the children to Yoko and ordering Shinichi to surrender physical custody of the children to Yoko, effective upon service of the order.

Proof of service of the complaint, summons, motion, and order was not filed until January 10, 2006. Shortly thereafter, Shinichi, through U.S. counsel, filed motions to reconsider and vacate the March 29 order, to quash all issues related to the children, and for attorney fees and costs, arguing that the district court lacked subject matter jurisdiction over any custody issues. In February 2006, Yoko filed a motion for an order to show cause why Shinichi should not be held in contempt for failure to comply with the district court's March 29 order directing him to return the children to the U.S. At a hearing on the motions, at which Shinichi appeared through counsel only, the court entered an order reaffirming its March 29 order and confirming that it had jurisdiction over the custody matter under the UCCJEA.² The court found that Shinichi had wrongfully withheld the children in Japan without Yoko's permission between August 30, 2004, when they were supposed to return from summer vacation, and February 3, 2005, when Yoko filed the emergency motion for custody and return of the children. Therefore, the court determined that that time did not affect the children's Nevada residency. The court's order directed Shinichi to file his answer to the complaint, and it continued the contempt portion of the hearing until May 31, 2006, ordering Shinichi to appear and show cause why he should not be held in contempt for failing to return the children.³ Shinichi filed an answer and countercomplaint for divorce on May 16, 2006. Although Shinichi did not personally appear at the May 31 contempt hearing, his attorney was present. The court allowed Shinichi until July 5, 2006, to return the children to Yoko in the U.S. The parties later stipulated that Shinichi would have until July 24, 2006, to return the children.

On July 6, 2006, however, Shinichi filed a motion requesting, among other things, temporary custody of the children.⁴ In his motion, he stated that he had urged Yoko to return to Japan with the children. Shinichi also pointed out that when Yoko's emergency motion for the return of the children was heard and decided, he had not been served with any court documents. He asserted that it was in the children's best interests that he be awarded sole physical custody. The children were not returned, and Yoko later opposed Shinichi's motion for temporary custody, arguing that Shinichi had violated the court order and stipulation by failing to return the children by July 24.

After a hearing, at which Shinichi did not personally appear but at which his attorney was present, the court entered an order on October 6, 2006, finding Shinichi in contempt for not returning the children and directing him to do so immediately. The court also denied Shinichi's motion for temporary custody and awarded Yoko...