Ford v. Ford, 22313.

• Decision Date: 26 November 2002
• Docket Number: No. 22313.,22313.
• Parties: Michelle Ann Krause FORD, Plaintiff and Appellee, v. Scott Harold FORD, Defendant and Appellant.
• Court: South Dakota Supreme Court

655 N.W.2d 85

2002 SD 147

Michelle Ann Krause FORD, Plaintiff and Appellee, v. Scott Harold FORD, Defendant and Appellant.

No. 22313.

Supreme Court of South Dakota.

Considered on Briefs November 18, 2002.

Decided November 26, 2002.

Karen A. Hattervig, Sioux Falls, South Dakota, Attorney for plaintiff and appellee.

Richard L. Johnson, Sioux Falls, South Dakota, Attorney for defendant and appellant.

PER CURIAM.

[¶ 1.] Scott Harold Ford (father) appeals an order declining jurisdiction over his motion to modify custody of his seven year old daughter, M.F. We affirm.

FACTS

[¶ 2.] Father and Michelle Anne Krause Ford (mother) were married in Sioux Falls in 1994 and divorced in 1996. One child, M.F., was born during the marriage. The parties entered into a divorce stipulation and settlement agreement granting custody of M.F. to mother with visitation rights granted to father. The stipulation was incorporated into a divorce decree entered in October 1996.

[¶ 3.] The parties engaged in series of minor legal disputes after their divorce. Most of these disputes were eventually resolved by stipulation and agreement. In August 1999, the parties entered into a stipulation permitting mother to move with M.F. from Sioux Falls to the State of Michigan. In exchange, father was granted extended summer and holiday visitations. The stipulation was approved by the circuit court on August 31, 1999. In October 2000, father filed a petition for modification of child support. The petition was referred to a referee whose recommendations were adopted in an order entered in December. In August 2001, the parties averted another child support dispute with their entry into a stipulation and agreement allowing for an abatement of a portion of father's support obligation during his extended visitations with M.F. That stipulation was adopted by a court order also entered in August.

[¶ 4.] On November 7, 2001, father filed a motion to modify M.F.'s custody. In support of his motion, father filed an affidavit alleging that M.F. had suffered repeated bladder infections that he had noted during his visitation periods. Father further alleged that he had obtained medical treatment for M.F., but that mother had resisted further testing. Father also alleged that mother was failing to provide proper dental care for M.F. and that M.F. was exhibiting unusual behavior patterns including anxiousness over use of the bathroom, anxiousness at discussions about returning to mother's home and the destruction of some of her toys. Father consulted a counselor about M.F.'s behavior and the counselor conducted four therapy sessions with M.F. At the conclusion of these sessions, the counselor expressed concerns for M.F.'s safety and well being while in mother's care. The counselor relayed these concerns to Child Protection Services in Michigan and recommended that a home study be completed at the home of M.F.'s mother and new stepfather.

[¶ 5.] Mother resisted father's motion to modify custody and filed a "reply affidavit" and motion to dismiss for lack of jurisdiction. Mother requested that the circuit court decline jurisdiction over the case alleging that most of the evidence concerning M.F.'s best interests would be in the State of Michigan. The circuit court conducted a hearing on December 12, 2001 and later entered findings of fact, conclusions of law and an order declining jurisdiction in the case and yielding jurisdiction to Michigan pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA). Father appeals.

ISSUE

[¶ 6.] Did the circuit court abuse its discretion in declining jurisdiction over the motion to modify custody?

[¶ 7.] Father argues that the circuit court erred in declining jurisdiction under the UCCJA over his motion to modify M.F.'s custody. The standards for reviewing this argument were set forth in Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 20, 591 N.W.2d 798, 805:

A court may nonetheless decline its jurisdiction "if it finds that it is an inconvenient forum to make a custody determination... and that a court of another state is a more appropriate forum." SDCL 26-5A-7. Ultimately, the question comes down to whether "it is in the interest of the child that another state assume jurisdiction." Id. In making this decision, a court should consider the following nonexclusive factors:

(1) If another state is or recently was the child's home state;

(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;

(3) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state;

(4) If the parties have agreed on another forum which is no less appropriate.

This Court reviews decisions under SDCL 26-5A-7 under the abuse of discretion standard of review. See Fuerstenberg, 1999 SD 35 at ¶ 21, 591 N.W.2d at 806.

[¶ 8.] Here, the circuit court entered the following findings pertinent to the above factors: that the allegations made by father surround M.F.'s living conditions in Michigan and the medical and dental care provided to M.F. in Michigan; that most of the witnesses and evidence needed to make a well reasoned custody determination are in Michigan; that Michigan has a closer connection to M.F., mother and M.F.'s stepfather; and, that M.F.'s contacts with South Dakota since 1999 have been for short periods of visitation with father. Based upon these findings, the circuit court determined that South Dakota is an inconvenient forum for determining custody in this matter and that Michigan provides the more convenient forum to determine father's motion to modify custody.

[¶ 9.] Father challenges none of the circuit court's findings as clearly erroneous and they appear to be supported by the record and reasonable inferences drawn from the record. Nevertheless, father argues that Fuerstenberg, supra should control this case. In Fuerstenberg, this Court upheld the circuit court's exercise of jurisdiction over a custody modification proceeding despite the fact that the child had lived in Minnesota with his mother for ten years after the divorce. This Court reached that result largely on the basis that the circuit court had entertained, without objection, many earlier legal proceedings concerning the child even though he was living in Minnesota with his mother. Father argues a similar record of legal proceedings exists here including child support and visitation disputes.

[¶ 10.] There is an important distinction between this case and Fuerstenberg. In Fuerstenberg, the circuit court determined that it would exercise jurisdiction over the case. Here, the circuit court declined jurisdiction. This is an important distinction because of the discretion a circuit court exercises in this area. That discretion was emphasized in Fuerstenberg as follows:

[W]e recognize that this is a close question, considering that [the child's] home state for a decade was

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