Catlin v. Catlin
| Decision Date | 23 December 1992 |
| Docket Number | No. 920167,920167 |
| Citation | 494 N.W.2d 581 |
| Parties | Shannon B. CATLIN, n/k/a Shannon B. Klein, Plaintiff and Appellee, v. Joseph F. CATLIN, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Richard R. LeMay (argued), Legal Assistance of North Dakota, Minot, for plaintiff and appellee.
Robert S. Rau (argued), of Bosard, McCutcheon & Rau, Ltd., Minot, for defendant and appellant. Appearance by appellant Joseph F. Catlin.
Joseph Catlin appeals from a divorce judgment awarding custody of the parties' son, Christopher, to Shannon Catlin. We affirm.
Joseph and Shannon were married in North Dakota on June 4, 1987. Joseph was in the Air Force, stationed at the Minot Air Force Base. Christopher was born in Minot on July 23, 1988. The family lived in North Dakota until July 1989, when Joseph was transferred to Turkey. En route to Turkey, Joseph, Shannon, and Christopher spent several weeks in Canton, New York, visiting Joseph's parents. Joseph proceeded to Turkey, and Shannon and Christopher followed upon receiving their passports approximately two weeks later.
The family lived together at Incirlik Air Force Base in Turkey for approximately nine months. The marriage grew increasingly strained and Shannon decided to return to North Dakota. Although she wanted to take Christopher with her, she was told by military authorities that Christopher could not leave Turkey without Joseph's authorization. When Joseph refused to consent to Christopher's departure with Shannon, she returned to North Dakota alone in March 1990.
On August 6, 1990, Shannon commenced this divorce action in the District Court of Ward County. Joseph was served by certified mail in Turkey. On August 23, 1990, the court received a letter from Joseph requesting a stay of the proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act. On October 31, 1990, Shannon filed an application for temporary custody after learning that military dependents were being moved out of Turkey because of rising tensions in the Middle East region, incident to the subsequent war with Iraq.
On November 6, 1990, the court issued an order denying Joseph's request for a stay, and issued an interim order awarding temporary custody to Shannon and ordering Joseph to return Christopher to North Dakota. Shannon attempted to serve the orders upon Joseph by certified mail. He refused delivery on December 27, 1990.
Shannon was unaware that Joseph had traveled to England in October 1990 to deliver Christopher to Joseph's parents, Roger and Barbara Catlin. Christopher then returned with his grandparents to Canton, New York. Throughout late 1990 and early 1991, as military conflict in the Middle East became a reality, Shannon attempted to learn of Christopher's location. Roger and Barbara Catlin told Shannon in numerous telephone conversations that they did not know where Christopher was, when in fact he was living with them in New York. In several letters, Joseph left the impression that Christopher was still living in Turkey. Finally, in March 1991, Shannon learned through Senator Quentin Burdick's office that Christopher was living with Roger and Barbara in New York.
Shannon obtained counsel in New York and sought enforcement of the interim custody order. The New York Family Court held that North Dakota was Christopher's "home state" and had subject matter and personal jurisdiction to determine custody. Noting that a hearing was scheduled in Ward County for July 1, 1991, the New York court stated that it would retain jurisdiction only until the scheduled hearing took place, and further ordered that Christopher be returned to North Dakota for the hearing.
Joseph was discharged from the Air Force on June 30, 1991, and he appeared at the scheduled hearing in Ward County the next day. He did not, however, bring Christopher back to North Dakota. At the July 1 hearing, Joseph asserted that the court lacked subject matter and personal jurisdiction. The court held that it had subject matter and personal jurisdiction, and it again ordered that Christopher be returned to North Dakota, with temporary custody awarded to Shannon. Christopher was finally returned to Shannon in North Dakota on July 14, 1991.
The trial was held on August 14. At the conclusion of the hearing, the court ordered a divorce but delayed its ruling on custody pending the outcome of psychological testing. At a hearing on February 5, 1992, a court-appointed psychologist offered his opinion that custody should be awarded to Shannon. Two expert witnesses retained by Joseph, a psychologist and a professor in social work, concluded that both Shannon and Joseph would be fit custodians for Christopher and recommended joint custody. The trial court awarded custody to Shannon. Judgment was entered on April 13, 1992, and Joseph appealed.
Only custody and related issues are challenged on appeal. The essential issues are:
(1) Did the trial court's allegedly erroneous refusal to stay the proceedings prejudicially affect the decision on permanent custody?
(2) Did the trial court properly exercise personal and subject matter jurisdiction?
(3) Were the trial court's findings of fact on custody clearly erroneous?
(4) Did the trial court err in failing to award extended summer visitation?
Joseph asserts that the trial court abused its discretion in denying his request for a stay, and the court's error prejudicially affected the final decision on custody.
Joseph requested a stay under the Soldiers' and Sailors' Civil Relief Act of 1940.
"At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act [sections 501 to 591 of this Appendix] unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service." 50 U.S.C. App. Sec. 521.
The Act leaves it within the trial court's discretion to determine whether a service member's ability to defend or prosecute will be materially affected by his or her service. Boone v. Lightner, 319 U.S. 561, 565-570, 63 S.Ct. 1223, 1226-1228, 87 L.Ed. 1587, 1591-1593 (1943).
Even if we assume that the trial court abused its discretion in denying Joseph's request for a stay, 1 Joseph has failed to show how that error affected the ultimate decision on custody. 2 Joseph's argument is essentially twofold: (1) The trial court was biased against Joseph because of his attempt to invoke the stay provisions; and, (2) The denial of the stay led to an unjust interim order which was ultimately adopted by the court as its final determination on custody.
Joseph attempts to support his assertion of trial court bias upon one short reference in the transcript in which the court noted that "there has been a lot of dillydally, there's been lots of circumvention here, letters unanswered and things like that." There is no reference, however, to Joseph's attempt to invoke the stay provisions of the Act, and it is clear that the "dillydally" and "circumvention" cited by the court related to the actions of Joseph and his parents in concealing Christopher's location from Shannon for nearly a year. The court's memorandum opinion clarifies the court's concerns, stressing that the "clandestine exchange" of the child in Europe and the grandparents' holding of the child "incommunicado" demonstrated a "perverse alliance to separate the boy from his mother which could continue" if Joseph received custody. It was not Joseph's attempt to invoke the Act or the interim order which influenced the court's ultimate decision on custody, but rather the conduct of Joseph and his parents.
Joseph also asserts prejudice in the denial of the stay and the subsequent issuance of an interim custody award because, as we recognized in Odegard v. Odegard, 259 N.W.2d 484, 485-486 (N.D.1977), "temporary-custody orders have a tendency to become permanent-custody orders." We stressed in Odegard, however, that a substantial reason for that phenomenon is concern for the physical and psychological stability of the child. One parent's custody of the child while the divorce is pending may result in the creation of emotional bonds and security in one's surroundings which are desirable to perpetuate in the permanent custody order.
The facts in this case demonstrate that no such stability was created as a result of the interim order. Joseph ignored the court's interim order to return Christopher to Shannon, and instead secreted the child at his parents' home in New York. Because Joseph did not comply with the interim order, Shannon was not allowed to establish the stability with Christopher during the pendency of the divorce action which could have become a factor in the court's final custody determination. Joseph's assertion that the interim order would have a tendency to affect the determination of permanent custody is unpersuasive.
Joseph asserts that the trial court lacked both subject matter jurisdiction and personal jurisdiction to hear this case.
A district court's subject matter jurisdiction to adjudicate an interstate child custody dispute in an initial divorce proceeding is governed by the Uniform Child Custody Jurisdiction Act [UCCJA] (Chapter 14-14, N.D.C.C.) and is also affected to some extent by the Parental Kidnapping Prevention Act [PKPA] (28 U.S.C. Sec. 1738A). Byzewski v. Byzewski, 429 N.W.2d 394, 398 (N.D.1988). Joseph asserts that New York, rather than North Dakota, was the appropriate state to adjudicate custody under the jurisdictional provisions of the UCCJA and the PKPA. 3
The relevant UCCJA provision is ...
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