In re the Parental Responsibilities of L.S., 09SC989.

• Citation: 257 P.3d 201
• Decision Date: 15 August 2011
• Docket Number: No. 09SC989.,09SC989.
• Parties: In re the Parental Responsibilities of L.S., Child,andConcerning, Tatanjia Willyard Spotanski McNamara, PetitionerandStacy Joe Spotanski, Respondent.
• Court: Supreme Court of Colorado

257 P.3d 201

In re the Parental Responsibilities of L.S., Child,andConcerning, Tatanjia Willyard Spotanski McNamara, PetitionerandStacy Joe Spotanski, Respondent.

No. 09SC989.

Supreme Court of Colorado, En Banc.

June 27, 2011.Rehearing Denied Aug. 15, 2011.*

The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, Attorneys for Petitioner.William E. Zimsky, P.C., William E. Zimsky, Durango, Colorado, Attorneys for Respondent.Chief Justice BENDER delivered the Opinion of the Court.

I. Introduction

This case concerns a child custody dispute between a divorced mother and father. The child currently lives in Colorado with her mother, Tatanjia Willyard Spotanski McNamara. The father, Stacy Joe Spotanski, lives in Nebraska. Seeking to gain custody of his daughter, the father filed a custody action in Nebraska. Although the mother objected to Nebraska's exercise of jurisdiction, a Nebraska district court entered an initial child custody determination awarding custody to the father. Subsequently, the mother filed her own custody action in Colorado. A Colorado district court awarded custody to the mother, refusing to enforce the prior Nebraska custody determination on the basis that Nebraska did not have jurisdiction. Reversing the district court, the Colorado Court of Appeals held that, although Nebraska did not have jurisdiction over the custody determination, Colorado must nevertheless accord that determination full faith and credit. In re L.S., 226 P.3d 1227, 1234 (Colo.App.2009).

This interstate child custody dispute requires us to determine whether Colorado is obligated to recognize and enforce the prior child custody determination rendered by the Nebraska court. To reach this determination, we focus on the Parental Kidnaping Prevention Act of 1980, 28 U.S.C. § 1738A (2010) (PKPA), which extends the requirements of the Full Faith and Credit Clause to custody determinations and, thereby, furnishes a rule of decision for courts to use in adjudicating interstate custody disputes. We conclude that, because Nebraska failed to exercise jurisdiction in accordance with the requirements of the PKPA, the PKPA does not require Colorado to give full faith and credit to the Nebraska custody determination. Hence, we hold that Colorado does not have to enforce the Nebraska custody determination.

Consequently, we reverse the judgment of the court of appeals and remand the case to that court to return the case to the trial court for proceedings consistent with this opinion.

II. Facts and Procedural History

The child who is the subject of this case was born in 2001 and resided in Colorado with her mother and father beginning in August 2003. The parties separated in January 2004, and the father moved to Nebraska. In May 2004, the mother and father signed a written agreement, which stated that all custody matters would be under Colorado jurisdiction, that the child would continue to live in Colorado with her mother, and that the father would be allowed visitation rights.

In the summer of 2004, the father took the child to Nebraska for an agreed-upon visit. At the conclusion of the visit, the father refused to return the child to Colorado. In November 2004, the father filed in the district court for Howard County, Nebraska an action for dissolution of marriage and asked to be awarded custody of the child. In a pro se answer to the dissolution action, the mother alleged that the child had resided in Colorado for almost two years and that she was supposed to visit her father in Nebraska for no more than three months, “not to establish residency for a court action.” The next month, the mother filed a pro se dissolution action in the district court for Adams County, Colorado. She then filed in the Nebraska district court a motion to dismiss the Nebraska dissolution action based on the pending dissolution action in Colorado. Meanwhile, in the Adams County district court action, after a January 2005 hearing in which the mother appeared pro se, the district court issued a minute order dismissing the dissolution action. By way of explanation, the district court's minute order stated only that “the State of Nebraska has jurisdiction over the matter.” It made no reference to child custody.

After that, in February 2005, the Nebraska district court, following a hearing in which both parties were represented by counsel, awarded temporary custody to the mother and ordered the father to return the child to the mother in Colorado. On September 21, 2006, the Nebraska district court issued a final decree, dissolving the marriage and awarding custody of the child to the father. The decree stated that the court had jurisdiction, but it only made findings regarding jurisdiction over the dissolution action and failed to find whether the court had jurisdiction over the custody determination or whether Nebraska is the child's home state.

The mother appealed the custody determination to the Nebraska Court of Appeals, but that court dismissed the mother's appeal on procedural grounds. Then, the mother filed a motion to dismiss in the Nebraska district court, contending that Nebraska was not the child's home state and, thus, did not have jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). At a hearing on the motion to dismiss, the father testified that the child had only been living in Nebraska for five months and four days when he commenced the child custody action, which is an insufficient amount of time to establish home state jurisdiction under the UCCJEA. In an order issued April 13, 2007, the Nebraska district court acknowledged that the child had not been living in Nebraska for six months prior to the father's commencement of the child custody action and, therefore, that it “may have asserted jurisdiction based on facts that were not presented accurately and/or facts that were not presented at all.” Nevertheless, citing the minute order of the Adams County district court, the Nebraska district court concluded that Nebraska properly exercised jurisdiction based on the fact that the child's home state, Colorado, had declined to exercise jurisdiction. The mother appealed, and the Nebraska Court of Appeals again dismissed the mother's appeal on procedural grounds.

In October 2006, the mother filed a second dissolution action in the district court for La Plata County, Colorado. The court converted the action into a custody proceeding. After a hearing on December 7, 2006, the La Plata County district court held, in a minute order, that Colorado, not Nebraska, had jurisdiction under the UCCJEA as the child's home state and, therefore, refused to enforce the Nebraska custody determination. Later, after a permanent orders hearing on July 31, 2008, the district court granted custody to the mother, ordered that the father may not remove the child from Colorado without the mother's express written consent, and limited the father to supervised visitations so that he could not remove the child outside the state.

The father appealed to the Colorado Court of Appeals, and that court reversed. The court of appeals determined that, when the father commenced the custody proceeding, Colorado was the child's home state under the UCCJEA and, therefore, Nebraska did not have jurisdiction. L.S., 226 P.3d at 1232. However, the court of appeals concluded that, even though Nebraska did not have jurisdiction over the custody action, Colorado must nevertheless accord the Nebraska custody determination full faith and credit. Id. at 1234. It applied the “general rule” that “a judgment is entitled to full faith and credit ... when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.' ” Id. (quoting Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963)). It reasoned that the Nebraska determination was entitled to full faith and credit because the issue of jurisdiction was fully and fairly litigated and the Nebraska court based its ruling “on a legal ground allowed by the PKPA and UCCJEA”—that Colorado, the child's home state, declined jurisdiction—even if the Nebraska court's jurisdictional ruling was factually erroneous. Id. The court of appeals remanded the case to the trial court with instructions to communicate its view of jurisdiction to Nebraska under a provision of the UCCJEA that allows such communications in custody disputes. Id. at 1235. The mother now appeals.

Currently, the child lives with the mother in Colorado, and the mother refuses to comply with the Nebraska district court order awarding custody to the father. Because the mother refuses to comply with its order, the Nebraska district court issued a warrant for the mother's arrest in May 2008. The warrant orders law enforcement to take physical custody of the child and return the child to the father.

III. Analysis

A. Summary

This case involves competing custody determinations entered by Colorado and Nebraska. Nebraska first exercised jurisdiction over this matter and first entered a custody determination. Therefore, the PKPA—a federal law which dictates whether a state must give full faith and credit to a custody determination entered by a court of a sister state—and Colorado law require us to inquire whether Colorado must recognize and enforce the Nebraska custody determination, not whether Colorado may exercise jurisdiction over this matter. People ex rel. A.J.C., 88 P.3d 599, 611 (Colo.2004).

The mother argues that the Nebraska court failed to exercise jurisdiction in accordance with the PKPA, and, therefore, the court of appeals erred when it held that Colorado must enforce the Nebraska determination. The father argues that the court of appeals correctly held that the Nebraska district court's exercise of jurisdiction complied with the PKPA, and, consequently, the PKPA obligates Colorado to enforce the Nebraska custody...