In re Marriage of Rader, 121520 OKSC, 118344

Docket Nº118344
Opinion JudgeKANE, J.
Party NameIN RE THE MARRIAGE OF: TY L. RADER, Petitioner/Appellant, v. BRENDA Y. RADER, Respondent/Appellee.
AttorneyJim Loepp, Jim Loepp Law Office, Oklahoma City, Oklahoma, for Appellant. David W. West, Liberal, Kansas, for Respondent.
Judge PanelGurich, C.J., Darby, V.C.J., Winchester, Edmondson, Kane and Rowe, JJ., concur; Colbert and Combs, JJ., concur in result; Kauger, J., dissents.
Case DateDecember 15, 2020
CourtSupreme Court of Oklahoma

2020 OK 106

IN RE THE MARRIAGE OF: TY L. RADER, Petitioner/Appellant,

v.

BRENDA Y. RADER, Respondent/Appellee.

No. 118344

Supreme Court of Oklahoma

December 15, 2020

UNPUBLISHED OPINION

ON APPEAL FROM THE DISTRICT COURT OF BEAVER COUNTY, STATE OF OKLAHOMA HONORABLE RYAN D. REDDICK, DISTRICT JUDGE

Jim Loepp, Jim Loepp Law Office, Oklahoma City, Oklahoma, for Appellant.

David W. West, Liberal, Kansas, for Respondent.

KANE, J.

¶0 Petitioner/Appellant Ty L. Rader ("Father") appeals from the trial court's order finding Kansas has exclusive, continuing child custody jurisdiction and that Oklahoma does not have jurisdiction to make an initial child custody determination under Oklahoma's Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), 43 O.S.2011 §§ 551-101 to 551-402. We hold that because the Kansas child custody proceeding was dismissed by the parties, it was of no effect in the present matter, and the Oklahoma judge erred in failing to determine whether or not Oklahoma had become the minor child's new home state under the UCCJEA at the commencement of this proceeding. We reverse the part of the trial court's order finding the Oklahoma court does not have jurisdiction over child custody and remand to the trial court to consider whether or not Oklahoma became the minor child's new home state, and, if so, to consider Respondent/Appellee Brenda Y. Rader's ("Mother") forum non conveniens argument, pursuant to 43 O.S. § 551-207. If Petitioner fails to establish Oklahoma as the new home state, the trial judge shall transfer the matter to Kansas, pursuant to the UCCJEA.

¶1 Here we have a child custody dispute between divorced parents where divorce actions have been filed in two different states at different times. The primary question on appeal is whether the state of Kansas retains exclusive, child custody jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") 1 after a Kansas court issued temporary orders concerning child custody but then the parents, for reasons unrelated to jurisdiction, jointly dismissed the Kansas divorce and child custody proceeding.

¶2 While the Kansas divorce court was the first court to make an initial child custody determination under the UCCJEA, the parties jointly dismissed that action without prejudice before Petitioner/Appellant Ty L. Rader ("Father") filed the present divorce action in Oklahoma. As a result, there were not simultaneous child custody proceedings pending in a sister state. 2 The only pending child custody proceeding is in Oklahoma. The record is silent as to the trial court making a finding that the minor child had or had not resided with a parent for at least six (6) months in Oklahoma prior to the filing of Oklahoma Petition, relying instead upon the existence of a dismissed Kansas case to reject child custody jurisdiction. Thus, we reverse and remand for such a determination of whether or not Oklahoma is the minor child's new "home state" 3 under the UCCJEA. If the trial court finds that Oklahoma is the home state, then the custody case will proceed in Oklahoma, and the trial court will need to rule upon the forum non conveniens issue pursuant to 43 O.S. § 551-207. 4 If the Petitioner cannot establish residency under the UCCJEA sufficient to establish Oklahoma as the new home state, then the case should be transferred to Kansas pursuant to the temporary jurisdiction provided for in 43 O.S. § 551-204 (B). 5

I. FACTS AND PROCEDURAL HISTORY

¶3 This case is the third divorce attempted by these parties. They have one minor child. Father first filed for divorce in Seward County, Kansas ("Kansas Divorce"), on September 13, 2017 and received a default judgment on December 1, 2017. Upon learning of the default divorce judgment obtained by Father, Respondent/Appellee Brenda Y. Rader ("Mother") filed a Motion to Set Aside the Default Decree of Divorce in Kansas. Mother's motion was granted by the Kansas divorce court on January 26, 2018. The Journal Entry from the hearing provides, in relevant part: "[T]he court orders that the Journal Entry and Decree of Divorce in this matter, file stamped December 1, 2017, be set aside in its entirety. All orders contained therein are hereby set aside and the parties' marriage is reinstated." Mother then moved to file her answer to the divorce action out of time, without objection from Father. As part of the Journal Entry, the Kansas divorce court noted there were no temporary orders on file and "set [the] matter for Temporary Orders hearing on February 16, 2018."

¶4 Mother and Father continued to litigate the divorce in Kansas for approximately two years. During this time period, the court issued temporary child custody orders, including a parenting plan. On June 19, 2018, the Kansas divorce court entered a Journal Entry wherein the parties announced to the court that they "had reached an agreement on the terms and conditions for a permanent parenting plan." The Kansas divorce court noted its subject matter jurisdiction in the Journal Entry and adopted the permanent parenting plan for the minor child. While the Kansas Divorce was actively pending, Father moved to Beaver County, Oklahoma, in late May or early June 2018. 6 The Kansas Divorce trial was set for October 16, 2018, but on October 15, 2018, the parties advised the Kansas divorce court that they had reconciled and the Kansas action was dismissed without prejudice at the request of both parties.

¶5 Three days later, on October 18, 2018, Father filed a new divorce in Beaver County, Oklahoma ("Oklahoma Divorce I"). Father dismissed Oklahoma Divorce I on January 24, 2019, and refiled on the same day in Beaver County, Oklahoma ("Oklahoma Divorce II"). After Father filed Oklahoma Divorce II, Mother filed in the Kansas divorce court a Motion to Set Aside Dismissal and Reinstate Proceedings. The Kansas divorce court subsequently denied Mother's motion on January 25, 2019, "due to the fact the parties were represented by attorneys at the time they filed their joint dismissal." In denying Mother's Motion to Set Aside the Dismissal, the Kansas divorce court opined in the Journal Entry it would "accept this case if the Oklahoma judge presiding over the current divorce action in Beaver County, Oklahoma requests or desires to transfer the case to Kansas."

¶6 Mother then filed a Motion to Dismiss the proceedings in Oklahoma Divorce II for lack of jurisdiction on March 8, 2019. The motion was heard on April 8, 2019. The trial court granted Mother's motion to dismiss in part, finding that it lacked jurisdiction over child custody and child support issues, but concluded it did have jurisdiction over the divorce proceedings and distribution of the martial estate. The Oklahoma trial court noted in its Order filed on September 26, 2019 that: (1) it was exercising the court's subject matter jurisdiction, but identified Seward County, Kansas, as the home state of the minor child under the UCCJEA; (2) Seward County, Kansas, was the first state to make an initial determination under the UCCJEA and to exercise initial child custody jurisdiction; and (3) "[a]s to the claim for child custody, visitation, and child support, this Court is not able to exercise initial child custody jurisdiction, and under Oklahoma law, Kansas has exclusive, continuing child custody jurisdiction." Father appealed. 7 This Court, on its own motion, retained the appeal.

II. STANDARD OF REVIEW

¶7 Whether a trial court has subject matter jurisdiction under the UCCJEA is a question of law this Court reviews de novo. See State ex rel. Cartwright v. Oklahoma Ordinance Works Auth., 1980 OK 94, ¶ 4, 614 P.2d 476, 479 (determination of jurisdiction is a question of law and on appeal, questions of law are reviewed de novo);

National Diversified Bus. Servs., Inc. v. Corporate Fin. Opportunities, Inc., 1997 OK 35, n. 18, 946 P.2d 662, 666 (an appellate court has plenary, independent and nondeferential authority to reexamine a trial court's legal rulings). The trial court's decision to exercise or decline jurisdiction under the UCCJEA is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. See G.S. v. Ewing, 1990 OK 1, ¶¶ 16-20, 786 P.2d 65, 72; McCullough v. McCullough, 2000 OK CIV APP 125, ¶ 10, 14 P.3d 576, 580.

III. DISCUSSION

A. Conceptual Underpinning of the UCCJEA

¶8 The purpose of the UCCJEA is to avoid jurisdictional competition and conflict with courts in matters of child custody and, to that end, the provisions of the Act were established to discourage the use of the interstate system for continuing controversies over child custody and to promote cooperation within the judicial system of state courts to render custody determinations in the state that can best decide the matter, while avoiding relitigation of custody determinations already decided by sister states. See 43 O.S. § 551-101, official cmts. 1-6. These uniform laws are necessary because of the mobility of Americans and the frequency of child custody disputes between parents, which arise when there is a divorce or when unmarried biological parents want to have custody adjudicated in a court. Id.

¶9 Prior to the enactment of the UCCJEA in 1980, the Legislature enacted the Uniform Child Custody Jurisdiction Act ("UCCJA"), 10 O.S.Supp.1980 §§ 1601-1627. 8 The main problems it attempted to address where "child snatching" and "multi-state jurisdictional squabbles." Holt v. District Court for Twentieth Judicial District, Ardmore County, Carter County, 1981 OK 39, ¶ 14, 626 P.2d 1336, 1340. The UCCJA addressed these problems in several ways, but did so primarily by limiting the jurisdiction of courts to act in child custody matters. See id...

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