Holm v. Smilowitz

Decision Date25 September 1992
Docket NumberNo. 910594-CA,910594-CA
PartiesMargaret HOLM, Plaintiff and Appellant, v. Michael SMILOWITZ, Defendant and Appellee.
CourtUtah Court of Appeals

Hans Q. Chamberlain, Chamberlain & Higbee, Cedar City, Ellen Maycock (argued), Steven G. Loosle, Kruse, Landa & Maycock, Salt Lake City, for plaintiff and appellant.

Keith F. Oehler (argued), Keith F. Oehler, J.D., P.C., Cedar City, for appellee.



RUSSON, Judge:

Margaret Holm appeals the district court's denial of her motion for relief from judgment, filed pursuant to Rule 60(b) of the Utah Rules of Civil Procedure. We reverse and remand.


Michael Smilowitz and Margaret Holm were divorced in Ohio on July 27, 1989. Holm was awarded custody of the parties' sixteen month-old daughter. The following year, Holm filed a motion to modify the visitation provisions of the divorce decree, and Smilowitz filed a motion to change custody. Smilowitz moved to North Carolina, and Holm, with the parties' child, moved to Utah. On June 21, 1991, both parties attended a hearing on their pending motions in Ohio. At that hearing, the Ohio court discovered procedural defects in the parties' motions, namely that neither party had properly served the other, and ordered the parties to refile their motions. They were informed that they would receive written notice of the new hearing date, set for August 19. On June 27, Smilowitz refiled his petition, but did not serve Holm with the same until August 21. Holm never received written notice of the new hearing date from the Ohio court.

Meanwhile, on July 8, 1991, Holm filed the Ohio divorce decree in Utah, pursuant to the Utah Foreign Judgment Act, along with a motion for Utah to assume jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) and a petition to modify the divorce decree as to visitation. She contended that Utah had "significant connections with" and was now the child's "home state" under that act. On August 8, Holm's motion was heard by Domestic Relations Commissioner Marlynn Lema, who took the matter under advisement.

A deposition, which had been scheduled in Ohio in early August 1991, was cancelled because Holm had not yet been served with Smilowitz's latest petition. According to Holm's affidavit, Smilowitz's attorney then informed Holm's Ohio attorney that since Holm had not been served, the August hearing would not proceed as scheduled. On August 14, 1991, Holm's Utah attorney wrote a letter to the Ohio court, in which he informed the court that (1) Holm presently had a pending motion for Utah to assume jurisdiction pursuant to the "best interests" and "home state" provisions of the UCCJA, (2) Ohio was an "inconvenient forum" under the UCCJA since neither party nor the child resided there, (3) the same procedural problems that caused the June 21 hearing to be postponed still existed, and (4) Holm would not appear in Ohio until she had been properly served with Smilowitz's new petition and received notice from the court that the hearing would proceed as scheduled. On August 19, 1991, in spite of Holm's absence, the Ohio court held the hearing, ruled that it had jurisdiction, awarded Smilowitz custody of the parties' child, and issued an order to that effect.

On August 22, 1991, Smilowitz, accompanied by the Cedar City, Utah police, arrived at Holm's Utah residence with the recently issued Ohio order and demanded that he be given the child pursuant to the Ohio order. This Ohio order had not been domesticated in Utah. Holm contacted her Utah attorney, Hans Chamberlain, who told the police to see either Judge Eves, in whose court Holm had filed her motions, or his commissioner, Marlynn Lema. The police informed Chamberlain that the matter would be heard by Judge Eves the next morning. However, later that evening, Commissioner Lema called Chamberlain and informed him that she was denying Holm's motion for Utah to assume jurisdiction. Chamberlain requested a hearing from her on the Ohio order. The request was denied. Commissioner Lema then called a second time that evening and informed Chamberlain that she had talked to Judge Eves, and based on their conversation, it was her order that the Ohio order be enforced that very night. She then called the police, and without ever having seen the Ohio order, or the order ever having been filed in Utah, told them to enforce it. At 11:40 p.m., the police physically removed the child, screaming and vomiting, from her mother, and Smilowitz left the state with the child, now three and a half years old.

Holm subsequently filed a motion for relief on the grounds that (1) Smilowitz had never domesticated the Ohio order in Utah, and (2) Holm was denied her right to contest the jurisdiction of the Ohio court. At a hearing held on September 4, 1991, Judge Eves stated that he had only told Lema that he agreed with her as to Utah's lack of jurisdiction, and that since Utah did not have jurisdiction, he couldn't interfere with the Ohio order. 1 On September 8, Judge Eves, by written order, denied Holm's motion for relief, holding that: (1) Ohio had original and continuing jurisdiction; (2) Utah declined jurisdiction after consultation with the Ohio court; (3) since the Ohio order was never filed in Utah, there was no order from which Holm was entitled to relief; and (4) Utah had no jurisdiction to enforce or prevent enforcement of the Ohio order.

Holm appeals the Utah district court's order denying her motion for relief from the Utah order enforcing the undomesticated Ohio child custody order. This appeal concerns the following errors by the district court: (1) concluding that it did not have jurisdiction in this matter; (2) enforcing the Ohio change of custody order that had not been filed in Utah, instead of the original Ohio divorce decree which had been so filed; (3) refusing Holm a hearing before enforcing the Ohio change of custody order; and (4) permitting Commissioner Lema to perform non-delegable judicial acts. Smilowitz seeks sanctions for a frivolous appeal.

Standard of Review

As a general rule, we will only reverse a denial of a motion to vacate an order or judgment under Rule 60(b) upon a showing of abuse of discretion by the trial court. State v. Vijil, 784 P.2d 1130, 1132 (Utah 1989). However, when the denial of such a motion rests on an underlying jurisdictional determination, as it does here, it "becomes a question of law upon which we do not defer to the district court." Id.

Jurisdiction under the UCCJA

As an initial matter, we address the district court's erroneous conclusion that it did not have jurisdiction in this case. The UCCJA, which has now been adopted in all fifty states and the District of Columbia, specifically recognizes that two states may have simultaneous concurrent jurisdiction, but only one state may exercise it. The purpose of the act, codified in Utah at Utah Code Ann. §§ 78-45c-1 to -26 (1992), is to direct when such jurisdiction shall be exercised. Utah Code Ann. § 78-45c-3 (1992) states:

(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the conditions as set forth in any of the following paragraphs are met:

(a) this state:

(i) is the home state of the child at the time of commencement of the proceeding; or

(ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

(b) it is in the best interest of the child that a court of this state assume jurisdiction because:

(i) the child and his parents, or the child and at least one contestant, have a significant connection with this state; and

(ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(c) the child is physically present in this state or this state is the most recent domicile of the mother prior to the birth of the child, and:

(i) the child has been abandoned; or

(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

(d) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with Subsections (a), (b), or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child; and

(ii) it is in the best interest of the child that this court assume jurisdiction.

Thus, State Two clearly has jurisdiction if it meets one of the bases established in that section, regardless of the fact that another state may also have jurisdiction.

Other sections of the UCCJA also indicate concurrent jurisdiction wherein they require that State Two shall stay proceedings if the matter is pending in another state, Utah Code Ann. § 78-45c-6(3) (1992); or may decline to exercise its jurisdiction if the first state is a more appropriate forum, Utah Code Ann. § 78-45c-7 (1992); or may decline to exercise its jurisdiction if the petitioner is guilty of improper conduct, Utah Code Ann. § 78-45c-8(1) (1992); and shall not exercise its jurisdiction to modify unless the interest of the child necessitates, Utah Code Ann. § 78-45c-8(2) (1992).

Utah case law also illustrates the existence of concurrent jurisdiction. In Coppedge v. Harding, 714 P.2d 1121 (Utah 1985), an action was filed by the Coppedges in Oregon, to make them guardians of their grandson, who was living with them in Oregon. In response, a custody action by the child's parents was subsequently filed in Utah. The Utah Supreme Court ordered the Utah...

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