Joliff v. Joliff, 73986
| Decision Date | 24 March 1992 |
| Docket Number | No. 73986,73986 |
| Citation | 1992 OK 38,829 P.2d 34 |
| Parties | Robin Ann JOLIFF, Appellee, v. Dennis Steven JOLIFF, Appellant. |
| Court | Oklahoma Supreme Court |
Certiorari to the Court of Appeals, Division No. 2, Appeal from the District Court of Muskogee County; Lyle Burris, Trial Judge.
In an Oklahoma divorce decree, Judge awarded custody of two minor children to mother. Mother was living here with daughter, however, son had remained in Idaho. Father challenged subject matter jurisdiction and petitioned for a new trial on the basis of newly discovered evidence. Trial judge denied motions and father appealed. Court of Appeals affirmed.
Certiorari Previously Granted; Court of Appeals' Opinion Vacated; Judgment of Trial Court Reversed in Part and Affirmed in Part.
Jim McClure, Muskogee, for appellee.
Juliet Netcher Brennan, Bonds, Matthews, Bonds & Hayes, Muskogee, for appellant.
Two questions are presented for our determination: first, does a court have subject matter jurisdiction to decide a custody issue where none of the prerequisites required for jurisdiction as set forth in the Uniform Child Custody Jurisdiction Act 1 have been met; and two, was there an abuse of discretion in failing to grant father's Motion for New Trial. We rule the answer to both questions is no. 2
Herein are the pertinent facts. Sometime in January, 1988, Robin Ann Joliff (Appellee/mother) moved to Muskogee, Oklahoma with her nine (9) month old daughter. Robin's husband Dennis (Appellant/father) and two (2) and one-half ( 1/2) year old son remained in Lewiston, Idaho. In February, 1989, in Muskogee County, Oklahoma mother filed her Petition for Divorce asserting Oklahoma was the home state of the children and requesting she be awarded custody of them. Father, thereafter, filed his Answer and Cross-petition arguing that Oklahoma did not have subject matter jurisdiction over his son in that the boy has never resided in Oklahoma. Father further maintained that it would be in the best interest of both children if he were awarded custody.
The trial court overruled father's objection to jurisdiction. The court reasoned that as it had jurisdiction over the father in the divorce action, it likewise had jurisdiction over the child. Finally, after hearing Whereupon, father filed a Motion for New Trial asserting error as to the court's exercise of jurisdiction over his minor son. However, prior to this hearing, father filed a Supplemental Motion for New Trial on the basis of newly discovered evidence. This evidence consisted primarily of information obtained from a case worker for the Department of Human Services during an investigation of the mother and her boyfriend. The report contained numerous adverse allegations including child abuse by the boyfriend. Nevertheless, the trial court denied father's motion and maintained custody of the children with the mother.
evidence, the court granted mother custody of the two children.
The Court of Appeals affirmed the lower court's ruling. We previously granted certiorari.
First and foremost, a court must decide whether it has jurisdiction such as would satisfy the UCCJA's jurisdictional prerequisites. 3 The Uniform Child Custody Jurisdiction Act (UCCJA) 4 established mandatory prerequisites for determining subject matter 5 jurisdiction in custody cases in Oklahoma.
It is implicit in the scheme of the UCCJA that the court make an initial determination of jurisdiction by express findings of fact before proceeding to the substantive issue of custody. That is because the efficacy of the UCCJA to accomplish its purpose, to avoid the harm that comes to children from competition between states for jurisdiction in custody adjudications, depends upon a judgment that is fully informed--and valid. It is only "[a] custody decree rendered by a court of this state which had jurisdiction ... that binds the parties under the UCCJA. It is only a custody decree of a court which "ha[s] assumed jurisdiction under statutory provisions substantially in accordance with [the UCCJA], or which was made under factual circumstances meeting the jurisdictional standards of [the UCCJA]" that the courts of another state are bound to recognize and enforce. Thus, a ruling of jurisdiction by a court that is merely conclusory or that assumes jurisdiction, but is tacit as to the factual basis for that adjudication, does not meet the objectives of the Act. 6
"Though, perhaps, parties may waive the statutory jurisdictional predicates, we are mindful that parties may not confer subject-matter jurisdiction on a court when such jurisdiction does not exist." 7 "Jurisdiction Section 505 of our Act states:
exists only if it is in the child's interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state." 8 Thus, adherence to the UCCJA's jurisdictional requirements must be satisfied before an Oklahoma court may consider the issue of custody. Further, this is true regardless of whether it is an initial or modification determination. We, therefore, are not bound by the trial court's findings but must independently judge the basis for exercising jurisdiction
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:
1. This state:
a. is the home state of the child at the time of commencement of the proceeding, or
b. had been the child's home state within six (6) 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; or
2. It is in the best interest of the child that a court of this state assume jurisdiction because:
a. the child and his parents, or the child and at least one contestant, have a significant connection with this state, and
b. there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships; or
3. The child is physically present in this state and:
a. the child has been abandoned, or
b. 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
4. a. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs 1, 2 or 3 of this subsection, 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
b. it is in the best interest of the child that this court assume jurisdiction.
These prerequisites "are alternative, and if the requirements of any one of the four are met an Oklahoma court has jurisdiction." 9
As the son has never lived in Oklahoma, obviously home state jurisdiction pursuant to section 505(1)(a) or (b) cannot be a basis for assuming jurisdiction. However, under 505(2)(a) & (b) jurisdiction may exist if the child and a contestant have a "significant connection" to the state and there is within the state substantial evidence concerning the child's welfare. In this case, the mother sued for divorce in Oklahoma because she now resides here. The Court of Appeals determined that the divorce proceedings constituted a "significant connection" such that it had jurisdiction over the minor son.
Even if it were true that a divorce action would constitute a "significant connection" as between the child, a contestant and the state, 10 43 O.S.Supp. 1990 § 505(2) further There are alternative instances in which a court may have jurisdiction under the UCCJA. For example, the Act supports a state assuming jurisdiction where no other state has jurisdiction under any of the tests enumerated or where one state has declined to exercise jurisdiction on the grounds that another state is the more appropriate forum. The Court of Appeals impliedly invoked this section as justification for assuming jurisdiction by their observation that there was no custody determination pending in another state court. However, this is not what § 505(4)(a) maintains. Moreover, the facts manifest a different conclusion.
holds that there be available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships.... In that the child had never been in Oklahoma prior to the trial court's custody decision, the information required by the statute was not available. Rather, all the information pertaining to the son's present and future care, protection, training and personal relationships was in Idaho. Thus, Oklahoma had no grounds for assuming jurisdiction.
In the present case there is a state that has jurisdiction; Idaho would have both home state and significant contact jurisdiction and there is no intimation that Idaho would decline to exercise it. The fact, therefore, that no proceeding had been initiated in Idaho does not in itself accord Oklahoma the right to assume jurisdiction.
The Court of Appeals held that according to 12 O.S.Supp.1988 § 1277 (now 43 O.S.1991 § 112) However, it is a well settled principle of law that a specific statute will always prevail over a general one and section 505 specifically states what prerequisites must be satisfied prior to a court assuming jurisdiction to determine custody. Thus, provisions of the Act supersede any contrary decisional and statutory laws.
When considering the relevant jurisdictional grounds for assessing a child custody...
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