In re Jorgensen, 98-1385.

• Decision Date: 21 March 2001
• Docket Number: No. 98-1385.,98-1385.
• Citation: 627 N.W.2d 550
• Parties: Upon the Petition of Karna Leigh JORGENSEN, Appellee, and Concerning Maurice Joseph Vargas, Appellant.
• Court: Iowa Supreme Court

627 N.W.2d 550

Upon the Petition of Karna Leigh JORGENSEN, Appellee, and

Concerning Maurice Joseph Vargas, Appellant.

No. 98-1385.

Supreme Court of Iowa.

March 21, 2001.

Rehearing Denied May 30, 2001.

Maurice J. Vargas, Babylon, NY, pro se.

Diane L. Dornburg, Des Moines, for appellee.

Considered en banc.

LAVORATO, Chief Justice.

Maurice Joseph Vargas appealed from a district court judgment modifying a custody provision of a New York judgment of divorce from Karna Leigh Jorgensen. Vargas contended that, under Iowa Code chapter 598A (1997), the Uniform Child Custody Jurisdiction Act (UCCJA), the Iowa district court lacked subject matter jurisdiction to modify the New York judgment. We transferred the case to the court of appeals, which reversed and dismissed Jorgensen's application for modification. On further review, we vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts and Proceedings.

Maurice and Karna were married in California on August 1, 1985. The following month the couple moved to New York. Their child, Isaiah, was born on December 10, 1989.

In July 1992, Karna left Maurice. She and Isaiah came to Iowa, where Karna was born and graduated from high school. A month later, Karna and Isaiah returned to New York, where they stayed in a shelter for a brief time. In October, mother and son stayed with a friend before returning home to Maurice.

In January 1993, Karna and Isaiah— with Maurice's knowledge—moved to Iowa, where Karna and Isaiah have resided ever since.

Meanwhile, in November 1993, Maurice filed for divorce in the Supreme Court of New York, County of Dutchess. Prior to that time, in September 1993, he filed a petition for custody in the Family Court of New York, County of Dutchess. The parties reached a settlement of the divorce action and entered into a stipulation providing for joint legal custody of Isaiah with a schedule specifying visitation in alternating periods of time.

On May 25, 1994, the New York Supreme Court entered a judgment of divorce that embodied the stipulation. A week later, the Family Court issued a decision on Maurice's September 1993 petition for custody, finding that (1) New York was not the child's home state at the time Maurice commenced the action in that court, and (2) Iowa was the child's home state. Concluding it had no subject matter jurisdiction, the Family Court dismissed Maurice's custody petition.

When the judgment of divorce was entered, Karna and Isaiah resided in Iowa. The stipulation expressly stated that Karna resided in Iowa.

From June 1994 to October 1994, Isaiah was in New York with Maurice. From the end of October to mid-December 1994, Isaiah was with Karna in Iowa. From December 1994 until May 1995, the child was with Maurice in New York, and then with his mother in Iowa from June to September 1995.

In early September, Isaiah was with his father in New York. At this time, Isaiah entered kindergarten. In April 1996, Isaiah traveled with his father to the Philippines. They returned to New York, where Isaiah completed kindergarten in June 1996. After he completed kindergarten, Isaiah returned to Iowa with his mother.

Except for a visit with his father in New York from May to August of 1997, Isaiah lived continuously with Karna in Iowa from June 1996 to June 1998. The child completed first and second grades in Des Moines. On June 2, 1998, Maurice took Isaiah to New York. At the time of trial, Isaiah was in New York, but he had not attended school in New York in over two years.

Isaiah received most of his medical care in Iowa, he was involved in school and church activities in Iowa, and he saw a counselor in Des Moines.

On January 14, 1998, Karna commenced the present action to modify the New York judgment of divorce. She asked the court to provide for (1) joint legal custody of Isaiah to the parties with primary physical care to Karna, (2) supervised visitation to Maurice, and (3) Maurice to pay child support to Karna. Maurice moved to dismiss the application, alleging lack of subject matter jurisdiction under the UCCJA. The district court, Judge Scott Rosenberg, overruled Maurice's motion to dismiss.

Following a hearing on Karna's modification application, Karna moved to amend to conform to the evidence. She contended the New York custody order was invalid because New York did not have subject matter jurisdiction to determine Isaiah's custody.

District Judge Robert A. Hutchison ruled that the Iowa district court had jurisdiction to modify the New York custody order. The court declined to rule on Karna's motion to conform to evidence. Instead, the court assumed—for the purposes of its ruling—that the New York judgment of divorce was valid in all respects and that the New York court had subject matter jurisdiction to enter the custody order. The court then modified the New York judgment of divorce, placing primary physical care of Isaiah with Karna and providing for a schedule of visitation for Maurice. The court also ordered Maurice to pay Karna child support in the amount of $345.39 per month.

On appeal, Maurice contended the district court erred in failing to conclude that it lacked subject matter jurisdiction to hear the custody dispute under Iowa's UCCJA. He also asserted that the child custody jurisdictional provisions of 28 U.S.C. § 1738A (1994), the Parental Kidnapping Prevention Act (PKPA), had not been satisfied, thereby additionally precluding the district court from proceeding to the merits of the case.

The court of appeals first ruled that the New York Supreme Court had jurisdiction to enter the custody order because the parties had agreed that the New York court should decide the issue of Isaiah's custody. The court concluded that Iowa may have been Isaiah's home state under Iowa Code sections 598A.2 and .3 at the time Karna filed her application to modify the New York custody order. The court nevertheless concluded that this was insufficient to confer jurisdiction on the Iowa district court to modify the custody order. Rather, the court determined that the jurisdictional requirements in Iowa Code section 598A.14, the continuing jurisdiction provision, applied and had not been satisfied. For this reason, the court dismissed the case.

We granted Karna's application for further review. The sole issue on further review is whether the district court had subject matter jurisdiction to modify the New York custody order.

II. Jurisdiction of the Iowa District Court.

The UCCJA and the PKPA set forth the jurisdictional requirements with regard to a custody determination. Whether those jurisdictional requirements have been met is a question of subject matter jurisdiction. St. Clair v. Faulkner, 305 N.W.2d 441, 445 (Iowa 1981). The question whether a court has subject matter jurisdiction may be raised at any time and is not waived even by consent. Id. We determine subject matter jurisdiction issues even though the parties have not raised them. Id. Additionally, we examine the grounds for subject matter jurisdiction on our own motion before we proceed further. Id. When we determine subject matter jurisdiction is lacking, the only appropriate disposition is to dismiss the custody petition. Id.

III. Scope of Review.

We give de novo review to questions of subject matter jurisdiction under the UCCJA and the PKPA however the issue comes before us. Id.

IV. Background.

Because this is an interstate custody dispute involving the UCCJA and the PKPA, we must initially determine whether the district court had subject matter jurisdiction to modify the New York custody order under both Acts. Before proceeding to the merits, we think some background discussion about how both statutes operate would be helpful in understanding this opinion.

A. Full faith and credit regarding custody orders. Article IV, section 1, of the Federal Constitution requires that each state give "Full Faith and Credit" to the "public Acts, Records, and judicial Proceedings of every other State," and authorizes Congress to "prescribe the Manner in which such Acts, Records and proceedings shall be proved, and the Effect thereof." U.S. Const. Art. IV, § 1. However, "custody orders [have] held a peculiar status under the full faith and credit doctrine." Thompson v. Thompson, 484 U.S. 174, 180, 108 S.Ct. 513, 516, 98 L.Ed.2d 512, 520 (1988). Because "custody orders characteristically are subject to modification as required by the best interests of the child ... some courts [have] doubted whether custody orders were sufficiently `final' to trigger full faith and credit requirements." Id.

However,

[e]ven if custody orders were subject to full faith and credit requirements, the Full Faith and Credit Clause obliges States only to accord the same force to judgments as would be accorded by the courts of the State in which the judgment was entered. Because courts entering custody orders generally retain the power to modify them, courts in other States were no less entitled to change the terms of custody according to their own views of the child's best interest. For these reasons a parent who lost a custody battle in one State had an incentive to kidnap the child and move to another State to relitigate the issue. This circumstance contributed to widespread jurisdictional deadlocks ... and more importantly to a national epidemic of parental kidnapping.

Id. at 180, 108 S.Ct. at 517, 98 L.Ed.2d at 521 (citations omitted).

"[I]n an effort to avoid these jurisdictional conflicts," many states joined in the adoption of the UCCJA. Id. at 181, 108 S.Ct. at 517,98 L.Ed.2d at 521. "The UCCJA was the first attempt at a comprehensive response to this problem and was meant, in part, to promote cooperation between the states and avoid jurisdictional competition and conflict between state courts in child custody matters." Holm v. Smilowitz, 83 Ohio App.3d 757, 768, 615 N.E.2d 1047, 1054 (1992). The UCCJA was a "legislative response[] to...