Escobar v. Reisinger

• Court: Court of Appeals of New Mexico
• Writing for the Court: ALARID.
• Citation: Escobar v. Reisinger, 133 N.M. 487, 64 P.3d 514, 2003 NMCA 47 (N.M. App. 2003)
• Decision Date: 13 January 2003
• Docket Number: No. 22,869.,22,869.
• Parties: Guadalupe ESCOBAR, Petitioner-Appellee, v. Christian Gerhardt REISINGER, Respondent-Appellant.

64 P.3d 514

133 N.M. 487

2003 NMCA 47

Guadalupe ESCOBAR, Petitioner-Appellee, v. Christian Gerhardt REISINGER, Respondent-Appellant.

No. 22,869.

Court of Appeals of New Mexico.

January 13, 2003.

H.R. Quintero, Robinson, Quintero & Lopez, P.C., Silver City, NM, for Appellee.

F. Gene Gruber, Silver City, NM, for Appellant.

OPINION

ALARID, Judge.

{1} Respondent-Appellant, Christian Gerhardt Reisinger (Father), appeals the trial court's determination that it had jurisdiction to determine custody of his minor child, (Child), and the trial court's award of temporary custody to Petitioner-Appellee, Guadalupe Escobar (Mother). As we explain below, the trial court erred by exercising jurisdiction when child custody proceedings were previously filed and pending in Child's home state, Missouri. Accordingly, we reverse.

BACKGROUND

{2} Father and Mother were married in New Mexico in August 1998. They moved to Missouri shortly after the wedding. Mother became pregnant. Before the birth of Child, Father and Mother separated, and in April 1999 Mother moved from Missouri to New Mexico. Child was born in Silver City, New Mexico on May 29, 1999.

{3} After Mother's move to New Mexico, but prior to Child's birth, Father filed for dissolution of marriage in the Circuit Court of St. Charles County, Missouri. Following the birth of Child, Father filed a motion for temporary custody of Child. Mother, through Missouri counsel, entered a special appearance in the Missouri divorce proceeding to contest the sufficiency of service of process. The Missouri court overrruled Mother's objection to insufficient service of process. In November 1999, the Missouri court ordered Mother and Child to reside in Missouri. Mother moved to Missouri in November 1999 in order to comply with the Missouri court's custody orders. On January 10, 2000, the Missouri court entered a decree awarding Father custody, but allowing Mother visitation. Mother appealed. During the course of the appeal, Mother and Child remained in Missouri. On March 13, 2001, the Missouri Court of Appeals held that Mother was never properly served. The Missouri Court of Appeals remanded the case to the trial court with instructions to dismiss the Missouri proceeding for lack of personal jurisdiction.

{4} On March 14, 2001, the day after the Missouri Court of Appeals issued its decision, Father filed a second petition for dissolution of marriage with the Circuit Court of St. Charles County. In his petition, Father requested that the court award him custody of Child. Later in the day, on Father's motion, the Missouri court entered an ex parte order and judgment awarding custody of Child to Father and restraining Mother from having custody of Child or removing Child from Missouri.

{5} On March 14, 2001, Child was picked up by Mother's sister to carry out a scheduled visitation with Mother. Before Father was able to serve Mother with the restraining order, Mother left Missouri with Child and returned to New Mexico. On March 19, 2001, Mother filed a petition for custody in the District Court of Grant County, New Mexico. On March 23, 2001, the Grant County district court entered an order granting custody of Child to Mother, pendente lite.

{6} On April 17, 2001, Father, through New Mexico counsel, filed a response to Mother's petition for custody. Father attached his affidavit stating that he had filed a petition for dissolution of marriage in Missouri on March 14, 2001, and that for fourteen months prior to March 14, 2001, Child had resided in the primary physical custody of Father in Missouri. Father also attached copies of the second Missouri petition for dissolution of marriage and the March 14, 2001 order of the Missouri court granting Father custody of Child.

{7} On May 1, 2001, the Grant County court entered an order determining that it had jurisdiction to determine custody of Child. The court reasoned that as the result of the Missouri Court of Appeals' decision remanding the case with instructions to dismiss Father's first petition, any orders previously entered by the Missouri court were "of no effect." The court found that the only reason Mother had returned to Missouri with Child in November 1999 was in obedience to the Missouri court's "void" order. The court therefore declined to consider Child's presence in Missouri during the period from November 1999 to March 2001 in deciding whether Missouri or New Mexico was Child's home state. The court concluded that New Mexico was Child's home state.

{8} On June 29, 2001, the Missouri court entered a judgment and order determining that Missouri is the home state of Child and that Missouri "is the appropriate and convenient forum to adjudicate issues of child custody, visitation, [and] child support of [Child]." The court directed that a copy of the judgment and order be transmitted to the Grant County district court. On July 24, 2001, Mother filed a motion to set aside the June 29, 2001 judgment and order. On August 31, 2001, the Missouri court held a hearing on Mother's motion. On October 10, 2001, the Missouri court entered a judgment affirming its June 29, 2001 judgment and denying Mother's motion.

{9} On January 4, 2002, the Grant County district court entered a decision affirming its earlier rulings that New Mexico was Child's home state and that New Mexico, not Missouri, had jurisdiction to determine custody. On January 22, 2002, the Grant County district court entered a judgment conforming to its January 4 decision. On February 5, 2002, Father filed an application for interlocutory review. We granted Father's application on February 19, 2002.

DISCUSSION

{10} In reviewing a trial court's determination of jurisdiction under the New Mexico Child Custody Jurisdiction Act, NMSA 1978, §§ 40-10-1 to -24 (1981, repealed by 2001 N.M. Laws, ch. 114, § 404) (the CCJA), we apply deferential substantial evidence review to the trial court's findings of historical fact; we review de novo the trial court's application of the law to the facts so found. Barnae v. Barnae, 1997-NMCA-077, ¶ 11, 123 N.M. 583, 943 P.2d 1036. Although the CCJA has been superceded by the Uniform Child Custody Jurisdiction and Enforcement Act, NMSA 1978, §§ 40-10A-101 to -403 (2001) (the UCCJEA), the UCCJEA provides that "[a] motion or other request for relief made in a child-custody proceeding or to enforce a child-custody determination which was commenced before the effective date of the [UCCJEA] is governed by the law in effect at the time the motion or other request was made." Section 40-10A-403. We therefore apply the CCJA in deciding this appeal.

{11} As we explain below, the Grant County district court erred in not deferring to the jurisdiction of the Missouri court. Under the CCJA

[a] district court of New Mexico shall not exercise its jurisdiction under the [CCJA] if at the time of filing the petition a proceeding concerning the custody of the same child was pending in a court of another state exercising jurisdiction substantially in conformity with the [CCJA], unless the proceeding is stayed by the court of the other state because New Mexico is a more appropriate forum, or for other reasons.

Section 40-10-7(A). The CCJA further provides that

[i]f the district court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the New Mexico district court assumed jurisdiction, the court shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with Sections 20 through 23 [40-10-20 to 40-10-23 NMSA 1978] of the [CCJA].

Section 40-10-7(C).

{12} In applying these provisions, the first question we must answer is whether Father's second Missouri petition was pending when the Grant County district court exercised jurisdiction under the CCJA. There is no dispute that Father filed his second petition on March 14, 2001, and that the Missouri court had entered an ex parte order awarding Father custody prior to Mother's institution of custody proceedings in New Mexico on March 19, 2001. {13} The CCJA does not define "pending." The Grant County district court appears to have assumed that the critical date for purposes of Section 40-10-7(A) is the date that process is served on the respondent. In Elder v. Park, 104 N.M. 163, 168, 717 P.2d 1132, 1137 (Ct.App.1986), we held that where a custody petition had been filed in New Hampshire and the New Hampshire court had entered a temporary ex parte custody order prior to the filing of the competing New Mexico custody proceeding, the New Hampshire proceeding was pending as of date the New...