Carson v. Carson

• Decision Date: 13 June 1977
• Citation: 565 P.2d 763,29 Or.App. 861
• Parties: Richard CARSON, Appellant, v. Barbara Jean CARSON, now known as Barbara Jean Mieir, Respondent.
• Court: Oregon Court of Appeals

Page 763

565 P.2d 763

29 Or.App. 861

Richard CARSON, Appellant, v. Barbara Jean CARSON, now known as Barbara Jean Mieir, Respondent.

Court of Appeals of Oregon.

Argued and Submitted May 24, 1977.

Decided June 13, 1977.

Michael F. Fox, Eugene, argued the cause for appellant. With him on the brief was Daughters & Fox, Eugene.

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

Before THORNTON, P. J., and TANZER and JOHNSON, JJ.

JOHNSON, Judge.

The father seeks custody of his daughter, age 6, under the Uniform Child Custody Jurisdiction Act, ORS 109.700 to 109.930. He appeals the decision of the trial court declining jurisdiction on the grounds that Oregon is an inconvenient forum. The matter is before us on the pleadings and affidavits of the parties and there is no dispute as to the facts.

The marriage of the mother and father was dissolved by decree of the California Superior Court, Los Angeles County, on November 26, 1973. The decree awarded the father custody of the daughter, and the father and daughter have resided in Oregon ever since. The mother continues to be a California resident. Until June 1976 visitation by the mother was infrequent. At that time the father sent the child to California to visit the mother for an agreed period of approximately two months. The father subsequently arranged to have his brother pick up the child in Los Angeles to bring her to Oregon, but the mother refused to turn over the child to the brother. She advised the father that she would turn over the child if he would personally come to Los Angeles and that she intended to have him served with process in order to institute change of custody proceedings. While in California the father was personally served to appear before the Los Angeles Superior Court upon the mother's motion to modify the original custody decree. The husband returned to Oregon with the daughter.

Subsequently, the Los Angeles Superior Court held a hearing at which both the mother and father appeared and testified. On October 15, 1976 the Los Angeles Superior Court entered an order awarding custody to the mother. Four days later the father instituted this proceeding in Oregon. Concurrently he filed a notice of appeal in California, but later abandoned the appeal on December 21, 1976. On November 24, 1976 the trial court allowed the mother's motion to decline jurisdiction. Following abandonment of his appeal in California the father moved for a reconsideration of the trial court's order declining jurisdiction. This motion was also denied, and the father appeals the denial. In addition the trial court has entered orders restraining the mother from removing the child from Oregon during these proceedings during the pendency of the appeal.

The purposes of the Uniform Child Custody Jurisdiction Act are set forth in ORS 109.720 which provides:

"(1) The general purposes of ORS 109.700 to 109.930 are to:

"(a) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;

"(b) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;

"(c) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;

"(d) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;

"(e) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;

"(f) Avoid relitigation of custody decisions of other states in this state in so far as feasible;

"(g) Facilitate the enforcement of custody decrees of other states;

"(h) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and

"(i) Make uniform the law of those states which enact it.

"(2) ORS 109.700 to 109.930 shall be construed to promote the general purposes stated in this section.

" * * * .".70

Under the Act the court must go through a multistep process in determining whether to exercise jurisdiction. First it must ascertain whether it has jurisdiction under ORS 109.730. If it finds that there is jurisdiction, then the court must determine whether there is a custody proceeding pending or a decree in another state which presently has jurisdiction. If so, the Oregon court must decline to exercise its jurisdiction. ORS 109.760(1) ¹ and 109.840(1). ² Finally, assuming the court has jurisdiction and there is not a proceeding pending or a decree, the court then must determine under ORS 109.770 and 109.780 whether to exercise its jurisdiction because of convenient forum.

An Oregon court has jurisdiction of this case by virtue of ORS 109.730(1)(a) because "this state * * * had been the child's home state within six months before commencement of the proceeding * * * ." There is not a pending proceeding in California that would preclude jurisdiction under ORS 109.760 because the husband had abandoned his appeal in that state. The husband also argues that Oregon is not precluded under ORS 109.840 from exercising jurisdiction because of the existing California modification decree because California does "not now have jurisdiction" as provided in that state. We need not reach this question because California did have jurisdiction at the time of the modification proceeding and Oregon is an inconvenient forum under ORS 109.770.

The father argues that since Oregon was at the time of the modification the child's home state, California did not have jurisdiction. We would agree that if California did not have jurisdiction, then Oregon may have been an appropriate forum. However, we conclude that California did have jurisdiction. California, like Oregon, has the Uniform Act, Cal.Civ.Code, §§ 5150-5174 (West 1970). Section 3 of the Uniform Act, ORS 109.730 and Cal.Civ.Code § 5152 (West Supp.1977), ³ sets forth the jurisdictional requirements under the Act "(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if * * * :

"(a) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.

"(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.

" * * *is

" * * * (P)hysical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

"(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody."

Paragraphs (1)(a) and (1)(b) set forth alternative jurisdictional tests whereby two states may have concurrent jurisdiction. The test under paragraph (1)(a) is mechanical. If the child and a parent have lived in a state for six months, then that state has jurisdiction because it is the "home state" as that term is defined in ORS 109.710(5). Under paragraph (1)(b), a non-home state may also have jurisdiction provided the more nebulous tests of that paragraph are met. In Settle and Settle, 276 Or. 759, 556 P.2d 962 (1976), the court stated:

"It is clear that the Commissioners intended to prevent the proliferation of jurisdiction. It is also clear, however, that they did not intend that the existence of 'home state' jurisdiction in one state * * * should automatically preclude the existence of jurisdiction in another state * * * ." 276 Or. 766-67, 556 P.2d 966.

See also 9 ULA Child Custody Jurisdiction 108, § 3 (1973).

The question presented is whether under paragraph (1)(b) California had jurisdiction in light of the best interests of the child, the child and one parent having a "significant connection" with California, and the availability in California of "substantial evidence concerning the child's present or future care, protection, training and personal relationships." The following comment of the Uniform Commissioners which is relied upon in Settle and Settle, supra, provides some guidance:

"Paragraph (2) perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in section 1. The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child's interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to...