Friedman v. the Eighth Judicial Dist. Court of State

• Decision Date: 23 November 2011
• Docket Number: No. 57245.,57245.
• Citation: 127 Nev. Adv. Op. 75,264 P.3d 1161
• Parties: Daniel E. FRIEDMAN, Petitioner,v.The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and the Honorable T. Arthur Ritchie, Jr., District Judge, Family Court Division, Respondents,andKevyn Q. Friedman, Real Party in Interest.
• Court: Nevada Supreme Court

264 P.3d 1161

127 Nev. Adv. Op. 75

Daniel E. FRIEDMAN, Petitioner,

v.The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and the Honorable T. Arthur Ritchie, Jr., District Judge, Family Court Division, Respondents,andKevyn Q. Friedman, Real Party in Interest.

No. 57245.

Supreme Court of Nevada.

Nov. 23, 2011.

Willick Law Group and Marshal S. Willick, Las Vegas, for Petitioner.Jolley Urga Wirth Woodbury & Standish and Thomas J. Standish and Jennifer Poynter–Willis, Las Vegas, for Real Party in Interest.BEFORE THE COURT EN BANC.

OPINION

By the Court, PICKERING, J.:

This interstate child custody dispute traces back to a stipulated Nevada divorce decree. The decree incorporated the parents' agreement that Nevada would have exclusive jurisdiction over future child custody disputes. When such a dispute arose, the mother returned to the Nevada decree court to resolve it. By then, both parents and their children had moved to California. With everyone gone from Nevada, the father maintains that Nevada lacks subject matter jurisdiction. He has initiated competing custody proceedings in California.

The question presented is whether the Nevada district court can proceed or should defer to California. The answer lies in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which Nevada and California have both adopted. Under the UCCJEA, California appears to have jurisdiction as the children's “home state,” and Nevada cannot proceed unless California determines that Nevada is the more convenient forum. If asked to make an inconvenient/more appropriate forum determination, the California court could, under the UCCJEA, consider a number of factors, the parties' agreement to litigate in Nevada being one of them. But under the UCCJEA, the decision is California's. Because California has not declined jurisdiction, the Nevada district court erred in asserting it. We therefore grant writ relief.

I.

Daniel Friedman and Kevyn Wynn, formerly known as Kevyn Friedman, were divorced in Nevada in November 2008. They had three young children. The decree, which was stipulated, provided for joint legal custody. Addressing relocation and physical custody, the decree provided for Kevyn and the children to move from Nevada to Idaho and, perhaps eventually, California. While in Idaho, Kevyn was to have primary physical custody. However, per the agreement incorporated into the original decree, this would change to joint physical custody, with Kevyn and the children to move from Idaho to California, when and if Daniel obtained work in California.

All ran smoothly for a time. Daniel found work in California and moved there from Nevada; Kevyn and the children followed. However, the parents were not able to work out a schedule for joint physical custody. On August 12, 2010, almost two years after the original decree was entered, Kevyn applied to Nevada's district court for an order awarding her primary physical custody of the children. Daniel opposed Kevyn's motion and challenged the district court's jurisdiction to adjudicate the child custody dispute. On August 30, 2010, Daniel registered the original decree in California, seeking joint physical custody.

The Nevada district court rejected Daniel's challenge to its subject matter jurisdiction and, on September 1, 2010, provisionally granted Kevyn the primary physical custody order she sought.¹ A written order followed on November 9, 2010. The order found, among other things, that Daniel “moved from the State of Nevada no later than September 2009, but more likely in June or July 2009 [and that Kevyn] and the children have resided in the State of California at least from September 2009 forward. Therefore, the children and Mother and Father have not lived in Nevada since September 2009.”

Under section 202(a)(2) of the UCCJEA (NRS 125A.315(1)(b), reprinted infra note 3), a court loses exclusive, continuing jurisdiction over a prior child custody determination on finding that “the child, the child's parents and any person acting as a parent do not presently reside in th[e] State.” The district court recognized that, under the UCCJEA, its finding that Kevyn, Daniel, and the children had become California residents “would suggest that Nevada would lose jurisdiction.” But the court deemed the parents' agreement to a Nevada forum controlling. In this regard, the original decree stated: “[T]he parties have agreed that the children's ‘home state’ shall always be considered to be Nevada, and jurisdiction over all issues pertaining to the custody of and each party's timeshare with the children shall be exclusively with ... this Court (i.e., the Family Court in Clark County, Nevada).” The underlying settlement agreement amplified this provision: “Specifically, it is the parents' intent that no court other than this Court and the courts of the State of Nevada shall have jurisdiction over the parties or the subject matter to consider any issue pertaining to the custody and/or support of the parent[s'] minor children, including, but not necessarily limited to, any motion or action that may be filed by either parent seeking a change of custody [or] a change in the parent[s'] timeshare arrangement as set forth in this ... Agreement.”

In the district court's view, the parties' agreement to a Nevada forum trumped the UCCJEA. It therefore “reject[ed] the notion that it lacks subject matter jurisdiction ... to resolve disputes arising out of custody.” It further held that Daniel was judicially estopped to deny jurisdiction. The district court noted the pending California proceeding, but dismissed its significance, stating that “[t]he California Court can determine that it may request this Court to defer jurisdiction.”

Daniel petitions this court for a writ of prohibition and/or mandamus, directing the Nevada district court to stand down from its assertion of jurisdiction in this case.

II.

A.

The National Conference of Commissioners on Uniform State Laws promulgated the UCCJEA in 1997 “to deal with the problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered by parties where multiple states are involved.” In re Custody of A.C., 165 Wash.2d 568, 200 P.3d 689, 691 (2009) (citing UCCJEA prefatory note, 9/1A U.L.A. 651; UCCJEA § 101 cmt., 9/2A U.L.A. at 657). The UCCJEA prescribes “uniform standards to be applied to determine whether a state has jurisdiction—initial or exclusive and continuing—over custody matters.” Sidell v. Sidell, 18 A.3d 499, 505 (R.I.2011). It “ ‘seek[s] a world in which there is but one order at a time for child ... custody and visitation.’ ” Id. (quoting Model Unif. Interstate Family Support Act, comment to art. 6, § 611 (2008)); see In re Marriage of Nurie, 176 Cal.App.4th 478, 98 Cal.Rptr.3d 200, 217 (2009) (avoiding concurrent jurisdiction is a “major aim” of the UCCJEA).

Every state except Massachusetts has adopted the UCCJEA. 9/LA U.L.A. 113–14, Table of Jurisdictions Wherein Act Has Been Adopted (Supp.2011). ² Nevada did so in 2003, codifying the UCCJEA as NRS Chapter 125A. 2003 Nev. Stat., ch. 199, §§ 1–59, at 990–1004. Unless the jurisdictional facts are disputed—they are not in this case—subject matter jurisdiction under the UCCJEA involves questions of law, which receive de novo review. Ogawa v. Ogawa, 125 Nev. ––––, ––––, 221 P.3d 699, 704 (2009). Although de novo, our review properly includes decisions from other UCCJEA states so as to harmonize our law with theirs. See NRS 125A.605 (“In applying and construing the Uniform Child Custody Jurisdiction and Enforcement Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.”).

B.

The UCCJEA forms the exclusive basis for determining jurisdiction of this interstate child custody dispute. NRS 125A.305(2); Cal. Fam.Code § 3421(b); see In re Custody of A.C., 200 P.3d at 691. Nobody disputes that Nevada had jurisdiction under NRS 125A.305 to make the initial child custody determination when it entered the divorce decree. Ordinarily, this would give Nevada “exclusive, continuing jurisdiction” under NRS 125A.315.³ However, NRS 125A.315(1)(b) provides that exclusive, continuing jurisdiction ceases when “[a] court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state.” The district court made such a jurisdiction-ending determination in this case when it found that Kevyn, Daniel, and the children no longer resided in Nevada.⁴

Once exclusive, continuing jurisdiction ceases, a court can modify its prior child custody determination “only if it has jurisdiction to make an initial [child custody] determination pursuant to NRS 125A.305.” NRS 125A.315(2); see UCCJEA § 202 cmt., 9/IA U.L.A. 673 (1999) (“[U]nless a modification proceeding has been commenced, when the child, the parents, and all persons acting as parents physically leave the State to live elsewhere, the exclusive, continuing jurisdiction ceases.”). Under NRS 125A.305(1), with certain exceptions not relevant here, a Nevada court has jurisdiction to make an initial child custody determination only if Nevada “is the home state of the child on the date of the commencement of the proceeding,” NRS 125A.305(1)(a), or “a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum pursuant to NRS 125A.365 or 125A.375,” NRS 125A.305(1)(b), and the criteria established in NRS 125A.305(1)(b)(1) and (2) are met. ⁵ NRS 125A.315(2), in other words, directs the parties back to NRS 125A.305(1), once continuing, exclusive jurisdiction ceases. But NRS 125A.305(1) is phrased in terms of “the commencement of the proceeding,” raising a further question,...