A.E.H., In Interest of

• Citation: 468 N.W.2d 190,161 Wis.2d 277
• Decision Date: 17 April 1991
• Docket Number: No. 88-2022,88-2022
• Parties: , 59 USLW 2694 In the Interest of A.E.H., a Person under the Age of 18. P.C. and J.H., Appellants-Cross Respondents-Petitioners, v. C.C., Respondent-Cross Appellant. d
• Court: United States State Supreme Court of Wisconsin

Page 190

468 N.W.2d 190

161 Wis.2d 277, 59 USLW 2694

In the Interest of A.E.H., a Person under the Age of 18.

P.C. and J.H., Appellants-Cross Respondents-Petitioners, v. C.C., Respondent-Cross Appellant. ^d

No. 88-2022.

Supreme Court of Wisconsin.

Argued Nov. 27, 1990.

Decided April 17, 1991.

Linda S. Balisle, argued, Michael S. Heffernan and Stolper, Koritzinsky, Brewster & Neider, S.C., on the brief, Madison, for appellants-cross respondents-petitioners.

Michael R. Fitzpatrick, argued, and Brennan, Steil, Basting & MacDougall, S.C., on the brief, Janesville, for respondent-cross appellant.

Daniel T. Dillon, argued, and Nowlan & Mouat, Janesville, guardian ad litem, for A.E.H.

DAY, Justice.

This case is before the court on a petition for review of a court of appeals decision, In Interest of A.E.H., 152 Wis.2d 182, 448 N.W.2d 662 (Ct.App.1989). The court of appeals affirmed an order of the circuit court for Rock County, the Honorable Patrick J. Rude, presiding. The circuit court dismissed an action for custody of A.E.H. on the basis that California, not Wisconsin, has jurisdiction over the custody of the child under the "home state" provision of the Uniform Child Custody Jurisdiction Act (UCCJA). ¹ Prior to the Wisconsin custody action, the Wisconsin court had assumed and exercised jurisdiction in temporary guardianship, guardianship, and termination of parental rights (TPR) proceedings involving the child. Also prior to the Wisconsin custody proceeding, the California court had assumed and exercised jurisdiction in its own custody proceeding.

The court of appeals affirmed the circuit court's order of dismissal. Id. at 199, 448 N.W.2d 662. It held that the circuit court's prior guardianship and TPR proceedings were "custody" determinations within the meaning of sec. 822.02(3), Stats.1987-88, ² and are governed by the UCCJA. Id. at 194, 448 N.W.2d 662. It held further, that the subject matter in the guardianship and TPR proceedings was so beyond the circuit court's jurisdiction, that "entertaining the actions was a manifest abuse of authority," pursuant to Restatement (Second) of Judgments, sec. 12 (1982). ³ Id. at 196, 448 N.W.2d 662. Under this exception to the doctrine of collateral estoppel, the court of appeals held that the jurisdiction issue could be relitigated. Id. at 195, 448 N.W.2d 662.

The issue presented for review is whether or not Wisconsin has jurisdiction, under the UCCJA, sec. 822.03(1), Stats., over the custody of A.E.H. We hold that the guardianship and TPR proceedings were "custody" proceedings under the UCCJA. We agree with this portion of the court of appeals decision. Additionally, we hold that the circuit court's assumption and exercise of jurisdiction in the guardianship proceeding was in accordance with the UCCJA. The court of appeals held that this was a "manifest abuse of authority." We disagree with the court of appeals that this was a "manifest abuse of authority." Finally, we hold that the circuit court had jurisdiction under the UCCJA to "modify" the California custody decree. Therefore, the court had jurisdiction under the UCCJA over the custody of the child.

The facts of this case are undisputed, and their sequence is critical. On August 2, 1983, A.E.H. was born to H.H. in the state of California. C.C. was named as the father on A.E.H.'s birth certificate, but he did not marry the child's mother, nor did he live with her after the child was born. A.E.H. also has a half-brother who is eighteen months older than she is. The case before us concerns only the jurisdiction over the custody of A.E.H., not her brother.

A.E.H. resided with her mother and brother in Santa Clara County, California, from her birth until May, 1984. From May, 1984, through May, 1985, the children resided with their maternal grandfather and his wife in Missouri, while her mother was on duty at sea with the United States Navy. During that year, the children visited their maternal relatives in Wisconsin several times, including a ten day visit to the farm of their maternal aunt and uncle, P.C. and J.H.

In May, 1985, the children moved back to California to live with their mother. On February 23, 1986, their mother was murdered. The Navy placed the children in temporary custody with the Santa Clara County juvenile authorities, who placed them in separate foster homes in California. Because the Santa Clara County court did not obtain either child's birth certificate, it did not give notice to the putative fathers of any proceedings involving the children.

On February 24, 1986, the Navy informed the children's grandmother of H.H.'s death. She told the children's uncle, not P.C., who contacted the California authorities and inquired about the children's fathers. The authorities stated that they had no information which identified the fathers.

On February 26, 1986, the children's uncle appeared before the Santa Clara juvenile court. He presented H.H.'s will, which named the children's aunt and uncle, P.C. and J.H., as guardians of the children. The "Findings and Order of Referee," signed by Kristine Mackin McCarthy, referee of the juvenile court, shows that the court dismissed the original petition which was filed on February 25, 1986; released the children from the children's shelter to the custody of their uncle; and set aside a jurisdictional hearing which was to have been held on March 14, 1986. The uncle's affidavit describing the return of the children to Wisconsin states:

At that time I presented the documentation I had with me (H.H.'s will and a signed authorization from J.H. to take control, of the children and return them to Wisconsin) to the court and answered their questions to the best of my ability and the extent of my knowledge. The judge then commended my actions on behalf of the children and stated that in her experience she had not seen a family respond so quickly to the type of emergency facing the children. She advised me that any further guardianship procedures would have to be sought in Wisconsin and that the hearing scheduled for March that was indicated on the release order was no longer necessary and it would not be necessary to return the children. As I stated she advised me that all further action would need to occur in Wisconsin. ⁴

The children have resided in Wisconsin with their aunt and uncle, P.C. and J.H., since February 26, 1986.

On March 14, the children's uncle contacted the United States Navy in order to obtain the personal effects of the children and their deceased mother. The Navy informed him that a man had appeared on the base, looking for A.E.H. and claiming to be her father. On March 17, 1986, the children's aunt and uncle petitioned the Rock County court of Wisconsin for guardianship of the children. That same day, the children's uncle phoned the United States Naval base and obtained the name and address of the man claiming to be A.E.H.'s father. The uncle then telephoned the Recorder of San Diego County, California, and requested a certified copy of the children's birth certificates.

On March 18, 1986, the Rock County court (Judge Lussow) awarded the aunt and uncle temporary guardianship of the children and scheduled a hearing for guardianship for May 6, 1986. On March 25, 1986, the aunt and uncle's attorney sent the children's fathers, by regular mail, a copy of the notice for hearing on the petition for guardianship. Notice by publication appeared in a San Diego newspaper on April 2, 9, and 16, 1986. In addition, the San Bernardino County Sheriff's Department tried, unsuccessfully, to personally serve A.E.H.'s father. ⁵ On June 20, 1986, A.E.H.'s father received notice of the petition and hearing for guardianship by express mail, return receipt requested.

Meanwhile, on April 1, 1986, A.E.H.'s father had filed a paternity and custody action in the San Bernardino Superior Court, California. In the petition to the court, the father stated that he had no information concerning any pending custody proceeding, and that he did not know of any party to the proceeding who had physical custody of A.E.H. or visitation rights with respect to her. Notice of the California custody proceeding was filed with the Rock County court on May 6, 1986. On behalf of the estate of H.H., the children's aunt and grandmother made a special appearance in the California court, objecting to the court's jurisdiction and venue.

On April 14, 1986, the Rock County court filed a notice under the UCCJA, sec. 822.06(3), Stats. ⁶ The notice stated that the Rock County court assumed jurisdiction over the children on March 17, 1986, and appointed their aunt and uncle as temporary guardians. It also stated that the California custody proceeding should be stayed pending determination of the appropriate forum for determination of the child custody issue.

On June 23, 1986, Judge John H. Lussow, Rock county circuit court judge, participated in a telephone conference concerning jurisdiction under the UCCJA with Judge Frank O. Tetley, a court commissioner serving as judge pro tempore of the San Bernardino Superior Court, California. Both judges made findings on the record that their respective courts had jurisdiction over the custody issue of the children. Judge Lussow asserted jurisdiction under sec. 822.03(1)(b) and (c), Stats. Judge Tetley made a finding that the California paternity action was a form of a custody case, and that it was governed by the UCCJA. He asserted jurisdiction over the custody of the children because California is their "home state" and they had significant contacts with that state.

The Rock County court entered a decree of jurisdiction and convenient forum in favor of P.C. and J.H. on July 3, 1986 (nunc pro tunc, June 17, 1986). The decree contained thirty-three findings of fact detailing Judge Lussow's chronology of the events leading to the jurisdictional dispute, along with a series of conclusions of law. The court took jurisdiction over the children...