Jones v. White (In re Jones)

• Decision Date: 29 October 2018
• Docket Number: Case No. 115,481
• Citation: 430 P.3d 544
• Parties: IN RE the MARRIAGE OF Gregory Robert JONES AND Samantha Lynn WHITE: Gregory Robert Jones, Petitioner/Appellee, v. Samantha Lynne White, Respondent/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

430 P.3d 544

IN RE the MARRIAGE OF Gregory Robert JONES AND Samantha Lynn WHITE:Gregory Robert Jones, Petitioner/Appellee,

v.Samantha Lynne White, Respondent/Appellant.

Case No. 115,481

Court of Civil Appeals of Oklahoma, Division No. 3.

FILED October 29, 2018

Mandate Issued: November 28, 2018

Steven E. Ferguson, CRABB, FERGUSON & RIESEN, Oklahoma City, Oklahoma, for Petitioner/Appellee,

Andrew R. Swartzberg, THE SWARTZBERG LAW GROUP, P.L.L.C., Oklahoma City, Oklahoma, for Respondent/Appellant.

Barbara G. Swinton, Presiding Judge:

¶ 1 Samantha White (Mother) appeals a trial court order finding Oklahoma has jurisdiction, dissolves the marriage between her and Gregory Jones (Father), and awards the parents joint custody of their two minor children with Father as primary custodian. We conclude jurisdiction in this child custody proceeding is contrary to Oklahoma's Uniform Child Custody Jurisdiction and Enforcement Act (OUCCJEA), 43 O.S. 2011 §§ 551-101 et seq. as applied to the record evidence. The dissolution of the marriage is affirmed but in all other respects, the order is reversed.

Facts Relevant to Jurisdiction

¶ 2 Mother and Father were married on February 14, 2012 in Las Vegas, Nevada. During their relationship two children were born, M.R.J and J.R.J. (the children). The family lived in Massachusetts with Father's adopted father between 2010-2012, then moved to New Hampshire for six months, and returned to the grandfather's home in Massachusetts where they resided until early 2015. Because Father wanted to find better work as a welder and to come back to his roots, the parties agreed to move to Oklahoma. The family arrived in Oklahoma City on or about March 2, 2015, where they resided with Father's aunt for six weeks and then moved into their own home in Del City, Oklahoma.

¶ 3 On or about May 19, 2015, the family traveled to New Hampshire for the funeral of Mother's grandfather. During their visit Mother told Father she wanted a divorce. She and the minor children remained at her mother's house, and Father returned to Oklahoma alone.

History of the Case

¶ 4 On May 27, 2015, Father filed a petition for separate maintenance alleging incompatibility, seeking a decree and equitable distribution of the parties' property. He also filed an application for temporary order, seeking an automatic temporary injunction and custody of the parties' two children, almost 4 and 3 years old at that time. Neither the petition nor the application includes the current location and addresses for the last five years for the minor children as required by § 551-209(A).¹

¶ 5 The hearing on Father's temporary custody order was held July 16, 2015. The court minute reflects Mother did not appear, Father was awarded custody of the minor children, Mother was awarded standard visitation, and child support was reserved. The "Court Order" filed July 29, 2015, repeats the court minute findings. There is no indication in the order or anywhere in the record that Father informed the trial court that the next weekday after Mother was served in New Hampshire, she filed for and obtained a Victims Protection Order (VPO) based on allegations of domestic abuse by Father, that he appeared at the scheduled hearing, or its status of the VPO at the time of the temporary order hearing.

¶ 6 On August 25, 2015, Father applied for and the trial court approved an Order Nunc Pro Tunc , which amended the July 29, 2015, Order by correcting the initials of one of the minor children. The Order Nunc Pro Tunc was filed August 25, 2015.

¶ 7 The record demonstrates Father obtained the children from Mother in mid-September, 2015, after help from his relatives and the local sheriff. It is undisputed that Mother had no prior notice of the temporary custody order until she was given a copy the day the minor children were removed from her custody.

¶ 8 On October 21, 2015, Mother filed a Motion to Vacate Custody and Support Order, contending "Oklahoma lacks jurisdiction pursuant to 43 O.S. § 551-201," because "the minor children were not residents of Oklahoma for six months before the commencement of the proceeding" and "Massachusetts has jurisdiction over the children." No response was filed.

¶ 9 By order filed December 21, 2015, the trial court granted Mother visitation over the Christmas holiday from 6 p.m. December 27, 2015 until January 4, 2016. On January 8, 2016, Mother filed a Motion to Modify Temporary Order filed July 29, 2015, alleging "substantial and material changes"² since the order was "entered by default." Mother further alleged "at the time Father knew [she] was living out of state and would be unable to exercise standard visitation with the minor children." The Certificate of Delivery states the notice of the motion hearing was faxed to Father's counsel on January 8, 2016.

¶ 10 The hearing on Mother's motion to modify the temporary custody order was held January 13, 2016. As noted therein, counsel announced and the trial court approved the parties' agreement for joint custody with rotating 6-week periods (first rotation scheduled to begin January 15 and last rotation would end August 12, 2016). The parties also agreed that "the receiving party shall pay transportation expenses" and "shall have a 1 day window for transportation w[ith] 7 days notice."

¶ 11 On January 29, 2016, Father filed an "Amended Petition for Divorce" based on the parties' incompatibility.³ He alleged the facts of his marriage to Mother, birth of their two minor children in Massachusetts, and that "[b]oth parties have resided in Oklahoma for more than six consecutive months immediately preceding the filing hereof." In a separate paragraph, Father alleged the court has jurisdiction "to hear and determine all issues pertaining to the [parties'] minor children" because "Oklahoma is the ‘home state’ ... as that phrase is defined by [OUCCJEA]."⁴ The paragraph intended for the minor children's residences for the past five years was left blank. Father requested, inter alia , an order for Mother to pay child support and for equitable division of the marital estate and debts.

¶ 12 On Feb. 23, 2016, the Journal Entry that details the parties' temporary joint custody agreement with the rotating 6-week schedule was filed. An order for appointment of a Guardian ad Litem (GAL) for the children was filed March 16, 2016.

¶ 13 On June 30, 2016, Mother filed a "Response and Cross-Claim" (Answer and Cross-Petition). Her Answer admits Father's jurisdictional allegations, i.e. , "both parties have resided in Oklahoma for six consecutive months" and "Oklahoma is the home state under the [OUCCJEA] ...," which same allegations she re-alleges in her Cross-Petition.

Hearing on Jurisdiction

¶ 14 At the one-day hearing on August 16, 2016, the trial judge requested counsel to announce what had first been brought to his attention that morning in chambers—"a jurisdictional issue." Mother's counsel stated no response had been filed to her motion to vacate the temporary custody order, but he thought the issue had been waived based on the parties' court-approved, temporary joint custody agreement and their subsequent pleadings that admitted Oklahoma has home state jurisdiction. The trial court asked to explain her admission, to which Mother's counsel responded, "my client would like to get this wrapped up today, would like to get it wrapped up in Oklahoma."

¶ 15 After asking if a hearing on his client's motion to vacate had been set and learning the reasons why there had been no hearing on the motion to determine jurisdiction,⁵ the trial judge voiced his concern that Father "has yet had the opportunity to respond to the jurisdictional challenge." Father's counsel responded, "quite frankly, we thought it was waived because we entered an agreement and then I filed my amended ... petition for divorce ... they agreed it's home state ... [in] a counter request for divorce in this Court."

¶ 16 After reminding counsel of his conversation with them in his chambers that morning,⁶ the trial judge stated "the UCCJEA governs these jurisdictional disputes." He inquired specifically about and was then told by Mother's counsel that "Nothing has been filed in any other jurisdiction." Through direct questions to Father, the trial judge next established that he still resides in Oklahoma and that Mother resides in Massachusetts.

¶ 17 The trial judge asked Mother about how long she had lived in that state, to which she replied, "about a year." After swearing in both parties, the judge's questions to Mother established that on May 27, 2015, she "was staying with her mother in New Hampshire" where she had been "about a month," and three months before that, Mother and the children were in Oklahoma, and before that, they were in Massachusetts for about five years.

¶ 18 The judge's questions to Father established the parties had lived together in Oklahoma and that they moved here "on March 1st, 2015, we lived [here] from March 1st until we went to her grandfather's funeral on May 19th where she did not return back to Oklahoma." The judge asked, "where was the child?" Father responded, "With her."

¶ 19 At the same hearing, the GAL reminded the court that subject matter jurisdiction cannot be waived, and the trial judge responded "even if it cannot be waived, there still has to be determination as to what state has jurisdiction." Counsel for the parties and the GAL agreed with the trial court's conclusion that "this matter has not been properly presented to the Court" and "the motion challenging jurisdiction should have been heard well before today."

¶ 20 The judge next asked Mother "Tell me how it is that you signed a verified petition swearing that the allegations contained therein on June 30, 2016, paragraph 3-A, which you state Oklahoma is the home state." She replied, "I tried to file in Massachusetts." The trial judge stated, "No you need to answer my question. Why did you do that?" Mother replied, "I thought it was the home state, sir." The trial judge...