Brandt v. Brandt

Decision Date23 January 2012
Docket NumberNo. 11SA248.,11SA248.
Citation268 P.3d 406,2012 CO 3
PartiesIn re the Marriage of George T. BRANDT, Petitioner v. Christine BRANDT, Respondent.
CourtColorado Supreme Court

OPINION TEXT STARTS HERE

Litvak Litvak Mehrtens & Epstein, P.C., Stephanie M. Holder, Ronald D. Litvak, Denver, Colorado, Attorneys for Petitioner.

Law Office of Stephen J. Harhai, Stanley G. Lipkin, Patricia A. Cooper, Denver, Colorado, Attorneys for Respondent.

Justice HOBBS delivered the Opinion of the Court.

¶ 1 Pursuant to C.A.R. 21, we issued our rule to show cause in this original proceeding to determine whether the district court erred in assuming jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), sections 14–13–101 to –403, C.R.S. (2011), to modify a child custody order that the State of Maryland had issued.1

¶ 2 This proceeding arises out of an order issued by the Arapahoe County District Court on May 25, 2011 in which the court, acting upon a petition filed by George Brandt, registered a child custody determination originally entered in Maryland and assumed jurisdiction to modify the custody order. Petitioner in this proceeding, Christine Brandt, seeks relief from the district court order assuming jurisdiction. The district court determined that, because neither the child nor either parent “currently reside[d] in Maryland at the time George Brandt filed the petition to modify, Maryland had lost exclusive continuing jurisdiction under the UCCJEA.

¶ 3 We hold that the district court erred by failing to apply the appropriate standard of review when assuming jurisdiction to modify Maryland's child custody order. The operative statutory term “presently reside” contained in sections 14–13–202(1)(b) and 14–13–203(1)(b) is not equivalent to “currently reside” or “physical presence,” the two notions upon which the trial court incorrectly assumed jurisdiction. Instead, “presently reside” necessitates an inquiry broader than “technical domicile” into the totality of the circumstances that make up domicile—that is, a person's permanent home to which he or she intends to return to and remain. The appropriate legal standard to be applied in determining whether the issuing state lost exclusive continuing jurisdiction based on non-residency involves application of a totality of the circumstances test. Factors to be weighed in making the residency determination, a mixed question of fact and law, include but are not limited to the length and reasons for the parents' and the child's absence from the issuing state; their intent in departing from the state and returning to it; reserve and active military assignments affecting one or both parents; where they maintain a home, car, driver's license, job, professional licensure, and voting registration; where they pay state taxes; the issuing state's determination of residency based on the facts and the issuing state's law; and any other circumstances demonstrated by evidence in the case. The party asserting that the issuing state has lost exclusive continuing jurisdiction bears the burden of proof.

¶ 4 Accordingly, we reverse and vacate the district's court's order assuming jurisdiction, make our rule absolute, and remand this case for further proceedings consistent with this opinion.

I.

¶ 5 Petitioner Christine Brandt and Respondent George Brandt were divorced in Montgomery County, Maryland on May 25, 2006. At that time, the terms of the parties' Voluntary Separation and Property Settlement Agreement were incorporated into the divorce decree. The agreement provided that the couple would have joint custody of their child, C.B., with Christine Brandt having primary physical custody. At the time of the divorce, George Brandt was an active duty member of the Army, having just returned from a tour of duty in Iraq. From 2006 to 2008, Christine Brandt and George Brandt lived in Maryland and shared custody of C.B.

¶ 6 In 2008, the Army transferred George Brandt to Fort Carson, Colorado Springs, Colorado. The parties divided time with C.B. equally during the summer of 2008, and C.B. returned to Maryland for the 2008–09 school year. George Brandt served at Fort Carson until 2010 when he retired, re-married, and settled with his new wife in Littleton, Colorado.

¶ 7 Christine Brandt was commissioned into the Army in 2009, serving in the Nursing Corps. Following training, she was stationed at Fort Hood, Texas, where she moved with C.B. from Maryland in March of that year. C.B.'s 2009 summer was also split between his parents. Christine Brandt was deployed to Iraq on active duty in April 2010. The parties mutually agreed that, while she was in Iraq, C.B. would live with George Brandt in Colorado. Christine Brandt returned from Iraq on October 10, 2010, and was reassigned to Fort Hood, Texas. She and George Brandt agreed to let C.B. complete the remainder of the 2010–11 school year in Colorado at which point George Brandt would return C.B. to Christine Brandt.

¶ 8 On April 26, 2011, Christine Brandt received military orders to return to Maryland and finish her active duty in a non-deployable position at Fort Meade. Her orders required her to report there no later than August 1, 2011, and authorized her to report there on July 15, 2011. As previously agreed between the parties, C.B. returned on May 22, 2011, to live with Christine Brandt, who was still at Fort Hood.

¶ 9 Meanwhile, on May 6, 2011, George Brandt filed a petition in the Arapahoe County district court to register the Maryland custody order pursuant to section 14–13–305, C.R.S. (2011), and to request that the court assume jurisdiction to modify the custody order pursuant to section 14–13–203, C.R.S. (2011) (May 6 Petition”). Christine Brandt was served in Texas on May 18 with the May 6 Petition and a Notice of the Registration of the Maryland decree. On May 25, the district court entered its order registering the Maryland decree and assuming jurisdiction to modify it (May 25 Order”). The court based its assumption of modification jurisdiction on the fact that C.B. had resided in Colorado for more than one year and neither Christine Brandt nor George Brandt nor their child “currently reside[d] in Maryland.

¶ 10 On June 1, within the time allowed to contest the petition following service upon her, Christine Brandt filed a pro se motion to dismiss the petition George Brandt had filed. On June 8, Christine Brandt and C.B. returned to her home in Maryland pursuant to her military orders. On June 13, George Brandt simultaneously filed a petition to modify parenting time in the Arapahoe County District Court, together with an emergency motion for issuance of a writ of habeas corpus and writ of assistance in order to secure the return of C.B. In the latter motion, George Brandt claimed that Christine Brandt abducted C.B. to Maryland without his consent because he and Christine Brandt had previously agreed that C.B. would spend the second half of the summer (commencing on June 25) with him in Colorado. The district court issued both requested writs on June 16.

¶ 11 On June 20, Christine Brandt traveled back to Texas to out-process from Fort Hood, during which time she left C.B. in Maryland with his maternal grandmother. At some point during the next week, C.B. and his grandmother traveled to Pennsylvania.2 George Brandt, with the help of local law enforcement, exercised the Colorado writ, taking C.B. into his physical custody and returning to Colorado, where C.B. has resided with him since June 26.

¶ 12 In the meantime, Christine Brandt obtained counsel in Colorado and, on June 22, filed a motion for reconsideration and motion to dismiss the May 25 Order. She also filed an emergency motion for a telephone conference in Maryland, pursuant to which Judge Quirk in Montgomery County, Maryland held three teleconferences with Judge Russell in Arapahoe County during which both parties were represented by counsel.

¶ 13 On July 29, during the final teleconference, our district court said that: (1) Maryland had lost exclusive continuing jurisdiction due to Christine Brandt's presence in Texas, not Maryland; (2) under the UCCJEA, the preferred forum is where a child has lived for six months; and (3) Colorado was the most convenient forum to hear this case. Judge Quirk explicitly disagreed and reiterated his position from earlier teleconferences that Maryland retained exclusive continuing jurisdiction over the custody order:

[I]t would still be my decision that continuing exclusive jurisdiction is proper here because residence, quite frankly, within the meaning of our Maryland law, of Ms. Brandt has never been anywhere but Maryland, and has continued here, and there is a connection. That connection exists, as well as the connection of the child to Maryland.

¶ 14 The Maryland judge lamented that both states were now asserting jurisdiction, the very result the legislatures in both states had intended to avoid in enacting the uniform statute.

¶ 15 Christine Brandt petitioned us for a rule to show cause, which we issued. She claims that the district court erred in finding that she no longer resided in Maryland for purposes of determining modification jurisdiction under the UCCJEA. George Brandt argues that the district court properly assumed jurisdiction to modify the Maryland child custody order. George Brandt's motion to modify the child custody order awaits our decision.

II.

¶ 16 We hold that the district court erred by failing to apply the appropriate standard of review when assuming jurisdiction to modify Maryland's child custody order. The operative statutory term “presently reside” contained in sections 14–13–202(1)(b) and 14–13–203(1)(b) is not equivalent to “currently reside” or “physical presence,” the two notions upon which the trial court incorrectly assumed jurisdiction. Instead, “presently reside” necessitates an inquiry broader than “technical domicile” into the totality of the circumstances that make up domicile—that is, a...

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