A.E.H., In Interest of

• Decision Date: 01 August 1989
• Docket Number: No. 88-2022,88-2022
• Citation: 448 N.W.2d 662,152 Wis.2d 182
• Parties: In the Interest of A.E.H., a Person Under the Age of 18. P.C., and J.H., Appellants-Cross Respondents, d v. C.C., Respondent-Cross Appellant.
• Court: Wisconsin Court of Appeals

Page 662

448 N.W.2d 662

152 Wis.2d 182

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

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

No. 88-2022.

Court of Appeals of Wisconsin.

Submitted on Briefs June 22, 1989.

Opinion Released Aug. 1, 1989.

Opinion Filed Aug. 1, 1989.

Lee Erlandson, Madison, on briefs, for appellants-cross respondents.

Michael R. Fitzpatrick of Brennan, Steil, Basting & MacDougall, S.C., Janesville, on briefs, for respondent-cross appellant.

Daniel T. Dillon of Nowlan & Mouat, Janesville, on brief, for guardian ad litem.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

P.C. and J.H. appeal an order dismissing a custody action on the basis the court lacked subject matter jurisdiction. The issue is whether the doctrine of collateral estoppel bars the relitigation of the jurisdiction question because the circuit court earlier determined that it had subject matter jurisdiction in a guardianship action and a termination of parental rights (TPR) action involving the same parties. We conclude that collateral estoppel does not bar relitigation, and we affirm the order of dismissal.

A.E.H. was born to C.C. and H.H. in California on August 2, 1983. The father and mother never married and did not cohabitate after the child's birth. The child resided with her mother in California from birth until May, 1984. From May, 1984, until May, 1985, she resided with her maternal grandfather and his wife in Missouri while her mother was on duty at sea with the United States Navy. During that year, the child visited relatives in Wisconsin, including J.H. and P.C., her maternal aunt and uncle.

The child resumed residence in California with her mother in May, 1985. On February 23, 1986, her mother was murdered and she was taken into the custody of the Santa Clara County, California, juvenile authorities. The child's relatives, including her aunt and uncle, sought temporary custody of her. Because the Santa Clara Juvenile Court believed that the child's father was unknown, the court placed physical custody with the aunt and uncle who returned to Wisconsin with the child. She has resided here since February 26, 1986.

On March 17, 1986, the aunt and uncle petitioned for guardianship of the child in Rock County, Wisconsin. Judge John Lussow granted them temporary guardianship. On April 1, 1986, the father filed a paternity and custody action concerning the child in San Bernardino County, California.

After a telephone conference between the California and Wisconsin trial courts, each court issued simultaneous rulings. The court in Rock County ruled that Wisconsin had subject matter jurisdiction under sec. 822.03(1)(b), (c) and (d), Stats. (1985-86), ¹ the Uniform Child Custody Jurisdiction Act (UCCJA), to make child custody determinations concerning the child. It ordered that the proceedings in California be stayed and directed that court to cease any further action concerning the child. On the other hand, the California court ruled, among other things, that California had jurisdiction over the custody of the child under sec. 822.03(1)(a) and (b) ² of the UCCJA; that California had invoked jurisdiction in February, 1986; that California never declined jurisdiction; and that Wisconsin should not assume jurisdiction. It awarded temporary custody of the child to her father. On June 26, 1986, Rock County held a guardianship hearing where the father appeared specially, objecting to the court's subject matter jurisdiction. The court continued with the hearing and appointed the aunt and uncle permanent guardians of the child.

On November 26, 1986, the aunt and uncle filed an action in Rock County to terminate the father's parental rights. In response, the father filed a motion to dismiss the action, again arguing that Wisconsin lacked subject matter jurisdiction. Judge Patrick Rude denied the motion to dismiss, concluding that Wisconsin had jurisdiction because Judge Lussow's jurisdiction decree in the guardianship case was res judicata as to the jurisdiction issue. Judge Rude also made his own determination that Wisconsin had jurisdiction under the UCCJA because Wisconsin was the child's "home state." See sec. 822.03(1)(a), Stats.

The TPR trial in Wisconsin took place on May 16, 1987. The jury found C.C. to be the father of the child and concluded that there were no grounds to terminate his parental rights. Following those proceedings, the aunt and uncle filed a custody motion in Rock County, claiming they should be awarded custody of the child even though the father's parental rights were not terminated.

The October, 1987, custody proceedings initiated by the father were held in California. The aunt and uncle participated in those proceedings through their attorney. The issue was raised as to whether California did, in fact, have "home state" jurisdiction of the child. The court found that California did have jurisdiction and that there was no reason to find that Wisconsin was in a position to assume jurisdiction. The court awarded custody of the child to her father. The aunt and uncle appealed the decision to the California Court of Appeals. That court affirmed the trial court's decision, finding that California had jurisdiction under the UCCJA.

The father filed a motion to dismiss the Rock County custody action based on California's award of custody to him. This time Judge Rude granted the motion to dismiss concluding that the California court, not the Wisconsin court, did indeed have jurisdiction over the custody of the child. Judge Rude denied the aunt and uncle's motion for reconsideration but granted their motion to stay the order of dismissal pending appeal.

The aunt and uncle argue that collateral estoppel precludes relitigation of subject matter jurisdiction under sec. 822.03 because of Judge Lussow's June 17, 1986, jurisdiction decree in the guardianship action. They also argue that res judicata ³ precludes relitigation of subject matter jurisdiction because of Judge Rude's denial of the motion to dismiss the TPR action after adopting Judge Lussow's finding of jurisdiction in the guardianship case.

Subject matter jurisdiction questions deal with whether a court has the power or competence to decide the kind of controversy involved. These are questions of law that we decide without deference to the trial court. Dragoo v. Dragoo, 99 Wis.2d 42, 43, 298 N.W.2d 231, 232 (Ct.App.1980). Subject matter jurisdiction is conferred by the constitution and statutes that grant the courts power to hear various kinds of actions. State ex rel. Prentice v. County Court, 70 Wis.2d 230, 237, 234 N.W.2d 283, 286 (1975). The statutes define and limit the circuit court's jurisdiction concerning actions involving guardianship, TPR, and custody proceedings.

Subject matter jurisdiction cannot be waived or conferred by consent. State ex rel. La Follette v. Raskin, 30 Wis.2d 39, 45, 139 N.W.2d 667, 670 (1966). Whenever want of jurisdiction appears at any stage of the case, it is the court's duty to dismiss the case from its consideration. However, the concept of subject matter jurisdiction must be applied in conjunction with, and in deference to, the well-established principle of collateral estoppel. H.N.T. v. State, 125 Wis.2d 242, 252, 371 N.W.2d 395, 400 (Ct.App.1985). The doctrine of collateral estoppel establishes that a party to a previous lawsuit may not relitigate an identical issue of fact or law that was actually adjudicated and necessarily decided in a suit in which there was a valid and final judgment.

The first question we consider is whether the UCCJA applies to guardianship and TPR proceedings. If it does not, the issue of jurisdiction under the UCCJA was not necessarily decided in those proceedings and collateral estoppel does not bar relitigation of that issue.

The UCCJA confers jurisdiction to make child custody determinations. Sec. 822.03, Stats. A custody determination is defined in part as "a court decision and court orders and instructions providing for the custody of a child, including visitation rights." Sec. 822.02(2), Stats. Section 822.02(3) states that a custody proceeding "includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings." The UCCJA does not explicitly include or exclude guardianship or TPR proceedings from its domain, nor does Wisconsin case law expressly address this question. However, other states that have adopted the UCCJA have ruled affirmatively as to the applicability of the Act to guardianship and TPR proceedings. ⁴

The Oklahoma Supreme Court found that a guardianship proceeding with respect to a minor must comply with the UCCJA. Walling v. Walling, 727 P.2d 586, 590 (Okl.1986). The court, in part, relied on the UCCJA commissioner's note stating that a custody proceeding "is to be understood in a broad sense. The term covers habeas corpus actions, guardianship petitions, and other proceedings available under general state law to determine custody." ⁵ The Ohio Supreme Court found that the UCCJA applies to a guardianship termination proceeding involving minors. Guardianship of Wonderly, 67 Ohio St.2d 178, 423 N.E.2d 420 (1981). It supported its decision by citing Ohio's guardianship statute, which indicates that a guardian shall have custody of the person and the estate of a minor. The court concluded that "the guardianship issue and the custody issues are inextricably intertwined, thus requiring compliance with the [UCCJA]." Id. 423 N.E.2d at 424. Wisconsin's guardianship statutes similarly demonstrate that a guardian has custody of the person of a minor. ⁶

As for TPR proceedings, an Indiana appellate court found that even though a termination of parental rights is the ultimate determination of child custody as to that parent, jurisdiction for TPR cases does not fall under...