Carson v. Carson

• Decision Date: 06 June 1978
• Parties: Richard CARSON, Petitioner, v. Barbara Jean CARSON, now known as Barbara Jean Mieirs, Respondent. . *
• Court: Oregon Supreme Court

Page 846

579 P.2d 846

282 Or. 469

Richard CARSON, Petitioner, v. Barbara Jean CARSON, now known as Barbara Jean Mieirs, Respondent.

Supreme Court of Oregon,In Banc. ^*

Argued and Submitted Jan. 10, 1978.

Decided June 6, 1978.

Michael F. Fox, Eugene, argued the cause for petitioner. With him on the petition for review was Hoffman, Morris, Van Rysselberghe & Giustina, Eugene. With him on the initial brief was Daughters & Fox, Eugene.

Roberta J. Lindberg, Lane County Legal Aid Service, Inc., Eugene, argued the cause and filed a brief for respondent.

HOLMAN, Justice.

This is a proceeding brought by a father under the Uniform Child Custody Jurisdiction Act (UCCJA), ORS 109.700-109.930, to modify a California child custody decree awarding custody to the mother. The trial court declined to exercise jurisdiction and father appealed. The Court of Appeals affirmed the trial court, 29 Or.App. 861, 565 P.2d 763 (1977), and this court granted review because it considered the opinion of the Court of Appeals misconstrued the UCCJA and this court's opinion in Settle and Settle, 276 Or. 759, 766-67, 556 P.2d 962 (1976) when it held that the California court had jurisdiction under the provisions of ORS 109.730(1)(b) (Sec. 3(a)(2)(i) and (ii) of the Uniform Act).

Father and mother were divorced in California in November 1973. The decree of dissolution awarded the custody of the female child in question, born August 27, 1970, to father. Father secured actual physical custody of the child in July 1974, and she has resided with him in Eugene, Oregon, since that time. In June 1976, upon the request of mother, the child was sent to Los Angeles, California, for a visit, the understanding being that the visit would last about two months. Upon the elapse of the visitation period, father asked mother to deliver the child to father's brother, who was traveling to Eugene, so the child might be transported home. Mother informed father that she would only deliver the child to him in Los Angeles and that when he arrived to take delivery of the child he would be served with process in a proceeding to change custody. Father went to California and secured the child and was so served. He appeared in the California proceeding and litigated custody.

On October 15, 1976, as a result of the litigation, the California court entered an order changing custody to mother. However, at the time of the entry of this order there was pending an undisposed-of motion by father requesting the California court to decline the exercise of jurisdiction, which motion was not disposed of until the entry of an order on October 21, 1976. This order reiterated the change of custody and denied the motion to decline the exercise of jurisdiction. Had the California court declined the exercise of jurisdiction, the order of October 15 would have been a nullity. It is therefore apparent that the litigation in California was at no time effectively terminated so as to result in an enforceable decree until October 21, 1976. The litigation was commenced in Oregon on October 19,...