Crump v. Crump

• Decision Date: 22 November 1991
• Docket Number: No. 900362-CA,900362-CA
• Parties: Carolyn CRUMP, nka Carolyn Forsgren, Plaintiff and Appellee, v. Robert CRUMP, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1172

821 P.2d 1172

60 USLW 2403

Carolyn CRUMP, nka Carolyn Forsgren, Plaintiff and Appellee, v. Robert CRUMP, Defendant and Appellant.

No. 900362-CA.

Court of Appeals of Utah.

Nov. 22, 1991.

Robert A. Echard, Gridley, Echard & Ward, Ogden, for defendant and appellant.

Stephen W. Jewell, Jeffrey "R" Burbank, Deputy Cache County Atty., Logan, for plaintiff and appellee.

Before GARFF, JACKSON and RUSSON, JJ.

OPINION

JACKSON, Judge:

Robert Crump appeals the lower court's denial of his petition to modify a Montana court's award of joint custody to him and Carolyn Crump, of their four children. We dismiss the appeal.

FACTS

Mr. and Mrs. Crump were granted a decree of divorce on December 7, 1983, by a Montana district court. Prior to a hearing on the issue of child custody, Mrs. Crump moved with the parties' four children from Montana to Utah. In August 1985, the Montana district court awarded Mr. Crump and Mrs. Crump joint legal custody of the children, with primary physical custody awarded to Mrs. Crump. In February 1989, Mr. Crump filed a petition in Utah to modify the Montana custody decree. The petition alleged a material change of circumstances, and urged that Mr. Crump be awarded primary physical custody of the children. Mr. Crump resided in Montana at the time he filed his petition, and has been a resident of that state at all times relevant to the present case. On April 24 and May 4 of 1990, the trial court in Utah heard evidence and denied the petition to modify the prior custody decree. However, the court made a slight change in the visitation provisions and modified the child support provisions of that decree.

Mr. Crump appeals the trial court's denial of his petition to modify the custody order. On appeal, Mr. Crump raises three issues, claiming: (1) the trial court committed error in applying the standard for reviewing a petition to modify a child custody award; (2) the trial court abused its discretion in not modifying the award; and (3) the trial court committed error in failing to admit certain evidence.

JURISDICTION

A threshold issue is whether or not this court has jurisdiction to hear the appeal. If a court lacks jurisdiction "it has not power to entertain the suit." Curtis v. Curtis, 789 P.2d 717, 726 (Utah App.1990) (citation omitted). Not only can a court not entertain the suit, the parties cannot cure the jurisdictional defect by waiver or consent. Mrs. Crump's argument, and the dissent's assertion that because "Mr. Crump voluntarily and affirmatively engaged the Utah courts ... he waived any question regarding authority of the Utah courts to decide the issue ... and has thus waived any objection to the district court's authority to exercise its jurisdiction," is without merit. We have held that

while defects in personal jurisdiction can be waived, subject matter jurisdiction goes to the very power of a court to entertain an action. A lack of subject matter jurisdiction cannot be stipulated around nor cured by a waiver. A lack of subject matter jurisdiction can be raised at any time and when subject matter jurisdiction does not exist, neither the parties nor the court can do anything to fill that void.

Id. (citations omitted) (emphasis added). The issue of waiver has been addressed by this court, see id., by our supreme court, and by the federal courts of appeal. See, e.g., McDougald v. Jenson, 786 F.2d 1465, 1484-85 (11th Cir.), cert. denied by Jenson v. McDougald, 479 U.S. 860, 107 S.Ct. 207, 93 L.Ed.2d 137 (1986) (No waiver of jurisdictional defect in modification of child custody case even where father had consented to jurisdiction of Washington court, which court did not have jurisdiction); A.J. Mackay Co. v. Okland Constr. Co., Inc., 817 P.2d 323, 325 (Utah 1991) ("[A]cquiescence of the parties is insufficient to confer jurisdiction on the court, and a lack of jurisdiction can be raised by the court or either party at any time."); see also Annotation, Child Custody: When Does State That Issued Previous Custody Determination Have Continuing Jurisdiction Under Uniform Child Custody Jurisdiction Act (UCCJA) Or Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A, 83 A.L.R.4th 742, 748 (1991) [hereinafter Annotation] (citation omitted) ("[S]ubject matter jurisdiction under [the relevant child custody statutes] cannot be vested by agreement of the parties, even though all of the parties desire an adjudication on the merits, and such jurisdiction cannot be conferred on the court by a party's failure to interpose a timely objection to the court's assumption of jurisdiction."). Therefore, we must determine if, under the applicable statutes, the courts of this state have jurisdiction to modify the Montana child custody award, and not ignore this issue on the basis of waiver simply because Mr. Crump came to Utah to initiate the action.

A. Jurisdiction under the PKPA

Congress adopted the Parental Kidnapping Prevention Act (PKPA), the jurisdictional provisions of which are codified at 28 U.S.C. § 1738A (1989), to create a national standard that the states could look to in interstate child custody disputes. See generally Parental Kidnapping Prevention Act of 1980, Pub.L. No. 96-611, § 7, (1980), 94 Stat. 3569. The PKPA was created in part to solve problems that the Uniform Child Custody Jurisdiction Act (UCCJA) had not successfully addressed. State in Interest of D.S.K., 792 P.2d 118, 128 (Utah App.1990) (citations omitted). "Where the PKPA and the state's version of the UCCJA conflict, the PKPA preempts state law." Id. (citations omitted). Because the PKPA "directly address the issues before this court, creates a very manageable two-prong test for determining modification jurisdiction, and would govern in the event of conflict with the UCCJA or other state law," Curtis, 789 P.2d at 720, we focus our analysis on this federal statute. ¹

One problem that the UCCJA failed to address was a specific provision for continuing jurisdiction. Annotation, 83 A.L.R.4th at 748. ² Therefore, the potential existed for concurrent jurisdiction between two states. Dickens, The Parental Kidnapping Act: Application and Interpretation, 23 J.Fam.L. 419, 426-27 (1984-85) [hereinafter Dickens]. The PKPA eliminates "the possibility of concurrent jurisdiction by conferring exclusive modification jurisdiction upon the home state of the child (i.e., the state which rendered the initial decree)." Id. at 426 (citing The Effect of the Parental Kidnapping Prevention Act of 1980 on Child Snatching, 17 New Eng.L.Rev. 499, 511 (Spring 1982)).

Unlike the UCCJA, the PKPA "anchors exclusive continuing jurisdiction to modify a previous custody decree in the original home state as long as the child or one of the contestants remains in that state." Annotation, 83 A.L.R.4th at 748 (emphasis added). See also Dickens, 23 J.Fam.L. at 426. "While under the UCCJA scheme some states profess to find modification jurisdiction so long as they can properly exercise initial custody jurisdiction, the PKPA prevents a second state from modifying an initial state's order except in carefully circumscribed situations." Meade v. Meade, 812 F.2d 1473, 1476 (4th Cir.1987). This is clear from section (f) of the PKPA which states that

A court of a State may modify a determination of the custody of the same child made by a court of another State, if--

(1) it has jurisdiction to make such a child custody determination; and

(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

28 U.S.C. § 1738A (1989) (emphasis added).

This section explicitly limits when a state, which would otherwise have jurisdiction over a child custody dispute, must defer to the state which originally issued the custody order. ³ "The PKPA is a departure from the jurisdictional requirements of the UCCJA and this departure is critical to the efficacy of the new Act because a state court may no longer modify existing decrees of other states pursuant to the various and flexible bases of jurisdiction provided in the UCCJA." Dickens, 23 J.Fam.L. at 426. Further, this court has held "the language [of the PKPA] clearly eliminates the possibility of concurrent jurisdiction by conferring exclusive jurisdiction upon the state which rendered the initial decree[.]" State in Interest of D.S.K., 792 P.2d at 129. See also Dickens, 23 J.Fam.L. at 426-27 (PKPA precludes a state court from modifying existing decrees of other states when state which issued decree maintains jurisdiction).

In the present case, both prongs of the jurisdictional test must be addressed. While a state may "have jurisdiction to make such a child custody determination[,] ..." 28 U.S.C. § 1738A (1989), it must decline to exercise that jurisdiction unless "the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination." Id. ⁴ While Utah may have had jurisdiction to issue the original order in this case, e.g., meeting the requirements of subsection (1), Utah does not have jurisdiction to modify an order from Montana because Montana has continuing exclusive jurisdiction.

B. Jurisdiction under the UCCJA

The decision we have reached conforms with comparable provisions of the UCCJA. The UCCJA was created to "avoid jurisdiction competition and conflict with courts of other states in matters of child custody," Utah Code Ann. § 78-45c-1 (1987), "promote cooperation with the courts of other states," id.,

litigate custody where the child and family have the closest connections and where significant evidence concerning the child is most readily available, discourage conflict over custody, deter abductions and unilateral removals of children, avoid relitigation of another state's custody rulings, and promote the exchange of information and mutual assistance between different states[,]

State in Interest of D.S.K., 792 P.2d 118, 123 (Utah App.1990) (citing ...