Hangsleben v. Oliver

• Decision Date: 01 July 1993
• Docket Number: No. 920366,920366
• Citation: 502 N.W.2d 838
• Parties: Gary A. HANGSLEBEN, Sr., Plaintiff and Appellant, v. Delores Haugo OLIVER, Vincent Haugo, and Alice Haugo, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 838

502 N.W.2d 838

62 USLW 2063

Gary A. HANGSLEBEN, Sr., Plaintiff and Appellant, v. Delores Haugo OLIVER, Vincent Haugo, and Alice Haugo Defendants and Appellees.

Civ. No. 920366.

Supreme Court of North Dakota.

July 1, 1993.

Jonathan Garaas of Garaas Law Firm, Fargo, for plaintiff and appellant.

Delores Haugo Oliver, no appearance.

VANDE WALLE, Chief Justice.

Gary S. Hangsleben, Sr., appealed from a district court order which dismissed his action brought under the Uniform Child Custody Jurisdiction Act [UCCJA] to modify a Minnesota custody order. We affirm.

Delores H. Oliver and Gary were married in 1980, and a daughter, Christine, was born in 1981. Delores and Gary received a divorce in Clay County, Minnesota, in 1982. Delores was awarded the sole care, custody and control of Christine.

In violation of an order awarding Delores temporary custody, Gary absconded with Christine in August 1982 and failed to return her until June 1983. During the interim, Gary took Christine to various states and foreign countries. It was later determined that Christine was subjected to emotional and sexual abuse, and that "[t]he preponderance of [the] evidence was that the sexual abuse was sustained by the child at the hands of the Respondent [Gary]." Gary was charged with kidnapping in a Minnesota trial court, found guilty, and received a stayed imposition of sentence. Thereafter, a restraining order was issued against him.

Gary sought a modification of the divorce order, and, in late 1984, a Minnesota trial court continued Delores's exclusive custody without visitation afforded to Gary, prohibited Gary from harassing Delores or seeing Christine, and further provided that "The Court shall consider modification of the Judgment and Decree with respect to visitation ... only upon it having been shown to the Court that the Respondent [Gary] has undergone intensive psychotherapy by competent experts in the field of intrafamilial abuse."

Gary appealed to the Minnesota Court of Appeals, which ruled that the evidence of the repeated and extreme sexual abuse which Gary inflicted upon Christine supported the trial court's restriction of visitation. In re Marriage of Haugo, No. C2-89-562, 1989 WL 109334 (Minn.Ct.App. Sept. 26, 1989).

Delores and Christine moved to Hawaii in 1987. Against Delores's wishes, Gary followed Delores and Christine to Hawaii, resided within one block of them, and began attending their church. A Hawaii court later termed this action by Gary "extreme insensitivity." Gary currently resides in East Grand Forks, Minnesota. ¹

In 1987, Gary again filed a motion for modification in Minnesota. The trial court continued Gary's modification motion until August 15, 1987, to permit Gary to identify an expert for an evaluation touching upon his fitness in regard to visiting Christine. In 1988, a Minnesota trial court concluded that Gary had not undergone therapy, and that the best interests of Christine did not dictate either supervised or unsupervised visitation with Gary.

In 1989, Gary again filed a motion for modification in Minnesota, and the motion was again denied because Gary did not present any new evidence of compliance with the 1984 counseling order.

On October 4, 1990, Gary registered the 1989 Minnesota order in Hawaii and filed a motion asking the Hawaii court to modify the order under the UCCJA to allow for visitation. On October 25, 1990, a Minnesota court issued an order which relinquished its jurisdiction in favor of the State of Hawaii. Gary's motion was withdrawn without prejudice on October 29, 1990, because Gary did not supply proof of the required counseling with the motion.

In June 1991, Christine was sent to live with Delores's parents on their farm in North Dakota due to Gary's proximity in Hawaii and the adverse effect he was apparently having upon her. Christine attended school in North Dakota that fall and took part in various extra-curricular, community, and church activities.

In August 1991, Gary filed a motion in Hawaii seeking again to modify the Minnesota order. Accompanying the motion was a one-page letter from a qualified expert in sexual abuse stating that Gary had completed his individualized intensive psychotherapy in the field of intrafamilial abuse. The psychotherapist's full report received into evidence at the hearing was rather guarded in its diagnosis. The report noted that Gary scored significantly below the average on one measure of general credibility tests and that he demonstrated some cognitive distortions regarding sexual-offense behavior. There was no evidence presented to indicate that Gary has ever acknowledged responsibility for traumatizing Christine by sexual abuse or by the extended abduction. The court noted that although the Minnesota restraining orders prohibiting Gary from harassing Delores, prohibiting him from living within one mile of Delores, and prohibiting him from seeking to visit the child, "may no longer be in effect," Gary "manifested extreme insensitivity to the child's best interest by moving so close that she must be afraid to leave her house without an escort and is likely to see him 'in the neighborhood.' " Further, the Hawaii court observed that because of Gary's move to Hawaii and the indifference he has shown, Delores "acted appropriately under the circumstances in sending Christine to spend this coming school year in North Dakota with family members." The Hawaii court issued an order denying Gary's motion to modify visitation.

In November 1991, Gary filed an ex-parte petition for a temporary restraining order against Delores. This resulted in a temporary order which was later vacated and dissolved by a Hawaii court.

On April 23, 1992, Gary filed a motion in the District Court of Griggs County, North Dakota. He sought a modification of the Minnesota order pursuant to the UCCJA, codified at Chapter 14-14, NDCC, to grant him the physical care, custody and control of Christine. Gary alleged that because Christine had been in North Dakota for more than six months, North Dakota courts had acquired "home state" jurisdiction over Christine. NDCC Sec. 14-14-03 [UCCJA Sec. 3]. Gary also sought the appointment of a guardian ad litem and submitted a separate motion of change in custody on March 31, 1992. Delores filed a motion to dismiss for lack of jurisdiction under the UCCJA, which the court granted after a hearing was held.

Christine returned to Hawaii in the summer of 1992.

Gary's appeal presents the single question of whether the court erred in declining jurisdiction under the UCCJA.

This case involves an interstate custody dispute. Before a court can proceed to the merits of an interstate custody dispute, it must first determine whether it has jurisdiction under the UCCJA, codified at NDCC 14-14 ², and the Parental Kidnapping Prevention Act [PKPA], codified at 28 U.S.C. Sec. 1738A. ³ Catlin v. Catlin, 494 N.W.2d 581 (N.D.1992); Larson v. Dunn, 474 N.W.2d 34 (N.D.1991).

Under the UCCJA and the PKPA, a court must go through a multi-step process in determining whether to exercise jurisdiction. ⁴ First, a court must determine whether it has jurisdiction, and, if it finds that it does, it must then determine whether there is a custody proceeding pending or a decree made by another state which has jurisdiction. If there is a pending custody proceeding in another state, the petitioned state must stay its proceedings or decline jurisdiction. NDCC Sec. 14-14-06 [UCCJA Sec. 6], PKPA Sec. 1738A(g). If another state has issued a decree, the court, in order to modify that decree, must apply the multi-step process contained in section 14-14-14, NDCC [UCCJA Sec. 14], ⁵ and PKPA sections 1738A(c), ⁶ and (f). ⁷ Finally, assuming there is neither a proceeding pending in another state nor a decree by which another state retains jurisdiction, a determination must be made by the forum state whether it is appropriate to exercise jurisdiction in light of the convenience of the forum and the conduct of a parent. NDCC Secs. 14-14-07, 08 [UCCJA Secs. 7, 8]. Dennis v. Dennis, 387 N.W.2d 234 (N.D.1986) [Dennis II ]. E.g., Moore v. Moore, 186 Mich.App. 220, 463 N.W.2d 230 (1990); In re Marriage of Schmidt, 436 N.W.2d 99 (Minn.Ct.App.1989); Neger v. Neger, 187 N.J.Super. 133, 453 A.2d 1337 (1982); In re Marriage of Hopson, 110 Cal.App.3d 884, 168 Cal.Rptr. 345 (1980); Carson v. Carson, 29 Or.App. 861, 565 P.2d 763 (1977), aff'd 282 Or. 469, 579 P.2d 846 (1978); 1 John P. McCahey et al., Child Custody & Visitation Law and Practice, Sec. 4.01 (1993).

I.

If the state in which the child resides at the time of the commencement of the proceeding in that state becomes the child's home state, it has jurisdiction over the proceeding. NDCC Sec. 14-14-03 [UCCJA Sec. 3], PKPA Sec. 1738A(c). Section 14-14-02(5), NDCC [UCCJA Sec. 2(5) ], defines "home state" as:

"... the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period." ⁸

A "person acting as a parent" is defined as a "person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody." NDCC Sec. 14- 14-02(8) [UCCJA Sec. 2(9) ]; PKPA Sec. 1738A(b)(6).

Because Christine was living with her grandparents, and not her "parents, a parent, or a person acting as a parent", the district court reasoned that North Dakota did not become her home state. This is too narrow a reading of the language of the UCCJA.

Christine was placed with Delores's parents by Delores's own action and initiative. Through the voluntary action of Delores, her parents fed, clothed, and cared for Christine....