Biggers v. Biggers
| Decision Date | 08 September 1982 |
| Docket Number | No. 13524,13524 |
| Citation | 103 Idaho 550,650 P.2d 692 |
| Parties | Homer L. BIGGERS, Plaintiff-Respondent, v. Mary W. BIGGERS, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Monte R. Whittier of Whittier & Souza, Pocatello, for defendant-appellant.
Douglas Nelson of Sharp, Anderson & Bush, Idaho Falls, for plaintiff-respondent.
Homer L. Biggers, plaintiff respondent, and Mary W. Biggers, defendant appellant, having resided in Idaho Falls, Idaho, as husband and wife for approximately eleven years, were divorced in June, 1977. In the stipulation and the decree of divorce entered that day, the custody of the two minor sons, then approximately ages 10 and 11 years, was awarded to Mrs. Biggers. Mr. Biggers was granted "the right to see and visit said children and to have said children with him at all reasonable times and places and for all reasonable periods of time, and further including temporary Summer custody during the children's Summer school vacation for a period not to exceed four weeks ...."
The record discloses that Mr. Biggers continued frequent and active contact with the children after the divorce until August, 1978, when Mrs. Biggers moved with the two boys to New Jersey. Thereafter, the parties were unable to agree on a satisfactory period of summer visitation with Mr. Biggers, and on May 2, 1979, he filed a motion to modify the decree of divorce to change custody, or, in the alternative, to extend his summer and vacation visitations.
The trial court denied Mrs. Biggers' motion to dismiss, in which she challenged the jurisdiction of the Idaho court and claimed that Mr. Biggers had failed to allege any substantial and permanent change of circumstances, but granted her two motions for continuances. Upon granting the second continuance, the trial court stated that the hearing logically should be held at the end of the regular summer visitation period, scheduled to end on July 18, 1979 when Mrs. Biggers would be in Idaho to retrieve the children.
Mr. Biggers then filed a revised motion for modification on June 28, 1979, dropping his request for a change of custody, instead seeking extended summer visitation rights for a period of eleven weeks. The hearing on this motion was set to coincide with the end of his normal summer visitation period.
Shortly before the hearing, Mrs. Biggers moved for her third continuance. Mr. Biggers then filed a motion for extended visitation pending the modification hearing, and Mrs. Biggers filed a motion to compel enforcement of the original divorce decree, seeking return of the children. These matters were heard on July 19 and 20, 1979, whereupon the court granted temporary physical custody to Mrs. Biggers and allowed the children to return to New Jersey with her. The court, however, ordered that the custody of the minor children be placed with the clerk of the district court and required that Mrs. Biggers post a bond to ensure her return to Idaho Falls with the children at the time of the hearing, then scheduled for August 30, 1979.
On August 30, 1979, the parties appeared on Mr. Biggers' revised motion for modification, in which he sought extended visitation during the summer and during a portion of the Christmas holiday. Mr. Biggers also requested that each party pay one-half of the cost of transporting the children from New Jersey for each visitation period. The parties were unable to reach a compromise on the issue of extended visitation, and the trial court entered an order modifying the child custody provisions of the decree of divorce. As amended, the decree essentially awards Mrs. Biggers custody of the children during minority and provides:
The amended decree also provides that the children shall visit Mr. Biggers during Christmas vacation, including Christmas Day on alternate years, and that Mrs. Biggers shall pay the transportation costs of each child for each visitation period from New Jersey to Denver, where Mr. Biggers offered to meet the children. Mrs. Biggers appeals from that order. We affirm.
The first issue raised on appeal is whether the district court had jurisdiction to hear Mr. Biggers' motion to modify the decree of divorce as it relates to child custody. Mrs. Biggers claims that under the Uniform Child Custody Jurisdiction Act (UCCJA), enacted in Idaho as I.C. §§ 5-1001 et seq., see 1977 Idaho Sess. Laws ch. 214, § 1, the district court was without jurisdiction to hear the motion. We disagree.
This appeal presents this Court with the first opportunity to construe and apply the provisions of the UCCJA as they relate to the jurisdiction of an Idaho court to hear child custody matters. See Baker v. Baker, 100 Idaho 635, 603 P.2d 590 (1979) (UCCJA determined inapplicable); Mitchell v. Pincock, 99 Idaho 56, 577 P.2d 343 (1978) (UCCJA determined inapplicable). The section of the UCCJA that primarily establishes a court's jurisdiction is I.C. § 5-1003. The provisions of I.C. § 5-1003 relevant to the jurisdictional bases at issue in this appeal are as follows:
A child's "home state", as the term appears in I.C. § 5-1003(a)(1) is defined in I.C. § 5-1002(5) as "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 (6) consecutive months ...."
Mrs. Biggers argues that since the minor children lived with their mother in New Jersey for more than ten months immediately preceding the instigation of this action, New Jersey was the children's home state under I.C. § 5-1003(a)(1) and the only forum which could properly entertain jurisdiction over the motion to modify the original divorce decree as it related to child custody. The defendant appellant also asserts that all the evidence relating to the present and future care, protection, training and personal relationships is available in New Jersey rather than in Idaho.
We agree with Mrs. Biggers and under the provisions of I.C. § 5-1003(a)(1), New Jersey is the home state of the children, thus establishing a jurisdictional basis in New Jersey. We disagree, however, that the existence of jurisdiction in New Jersey in itself precludes the exercise of jurisdiction by an Idaho court. In arguing that New Jersey is the only state which may assert jurisdiction, the appellant ignores the language of I.C. § 5-1003 wherein the forums capable of asserting jurisdiction are set out in the disjunctive. Thus, the courts of more than one state may have jurisdiction over a given child custody determination. We have just such a situation before us in this appeal.
Under I.C. § 5-1003(a)(2), the Idaho district court could assume jurisdiction if the children and at least one parent had a significant connection with this state, and substantial evidence concerning the children's protection, training, personal relationships and present and future care was available within the state. Prior to the date the petition to modify the decree of divorce was filed, the minor children had lived their entire lives, with the exception of the ten or eleven months immediately preceding the filing of the action, in the State of Idaho. Mr. Biggers continued to reside in Idaho at the time of filing the motion to modify and maintains a residence and business in Idaho. The trial court determined that significant contacts existed between the state and the children and that there was evidence in Idaho concerning the present and future care and protection of the children. There is substantial and competent evidence contained in the record to support the trial court's conclusion, and under the provisions of I.C. § 5-1003(a)(2), the Idaho district court was also entitled to assert jurisdiction over the petition to modify the original decree.
One of the purposes of enacting the UCCJA was to "[a]void jurisdictional competition and conflict with courts of other states in matters of child custody," alleviating the harmful effects on the children involved of being shuffled from state to state like mere pawns on a chessboard. See I.C. § 5-1001(a)(1). Where concurrent jurisdiction exists in more than one state in a child custody determination under the UCCJA, the problem is one of determining which state is the most appropriate forum to hear the matter, thus avoiding the jurisdictional conflicts the act was intended to eliminate. See Palm v. Superior Court, 158 Cal.Rptr. 786, 97 Cal.App.3d 456 (1979).
I.C. § 5-1014, UCCJA, is determinative of the question before us of whether the district court erred in assuming jurisdiction...
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