Larsen v. Larsen, 51475

• Decision Date: 15 August 1980
• Docket Number: No. 51475,51475
• Citation: 5 Kan.App.2d 284,615 P.2d 806
• Parties: Lynda C. LARSEN now Lynda C. White, Appellee, v. Larry J. LARSEN, Appellant.
• Court: Kansas Court of Appeals

Page 806

615 P.2d 806

5 Kan.App.2d 284

Lynda C. LARSEN now Lynda C. White, Appellee, v. Larry J. LARSEN, Appellant.

No. 51475.

Court of Appeals of Kansas.

Aug. 15, 1980.

Syllabus by the Court

1. The question of jurisdiction conferred by K.S.A. 1979 Supp. 60-1610(a) must now be considered in conjunction with the Uniform Child Custody Jurisdiction Act, K.S.A. 1979 Supp. 38-1303.

2. The district court has jurisdiction under K.S.A. 1979 Supp. 38-1303(a)(2) where one of the parties and the child or children meet the provisions of that statute, even though another state is the "home state" of the child or children under K.S.A. 1979 Supp. 38-1302(e).

3. Generally, the state which granted the original divorce has preference unless the facts demonstrate that state to be an inconvenient forum.

4. Since Kansas has jurisdiction under this act, whether it should exercise that jurisdiction under the inconvenient forum provisions of K.S.A. 1979 Supp. 38-1307 is discretionary with the trial court.

5. Joint custody of children may be awarded only if the parties agree and if the court finds it to be in the best interest of the children.

Wallace W. Underhill, of Sawhill & Underhill, of Haysville, for appellant.

Lester A. Holloway, of Vaughn, Updegraff, Allison, Holloway & Weaver, Wichita, for appellee.

Before REES, P. J., and SPENCER and MEYER, JJ.

MEYER, Judge:

This appeal is by Larry J. Larsen (appellant) from a post-divorce change of custody of his children to Lynda C. White (appellee).

The parties were married in Kansas on July 24, 1964. They were divorced in Kansas on February 6, 1974. Appellant husband was granted custody of the parties' two minor sons subject to reasonable visitation rights by appellee. The children were ages 9 and 14 at the time of the change of custody hearing.

In August, 1975, appellant moved to Minnesota, taking his two sons with him. He subsequently remarried. His present wife has custody of a child from a previous marriage.

Appellee continued to live in Kansas and is also remarried. She and her new husband have no children.

The apparent practice was for appellee to have custody for visitation purposes for some period during the summer of each year. In August of 1976 and again on August of 1977, appellee filed motions for change of custody which were denied.

The instant motion for change of custody was filed July 20, 1979. Appellant moved to dismiss for lack of jurisdiction under the Uniform Child Custody Jurisdiction Act, K.S.A. 1979 Supp. 38-1301 et seq. The trial court denied the motion to dismiss and proceeded to hear the change of custody motion on the merits.

At the time of the hearing, the children had been with their mother for two months for summer visitation.

Appellee testified that when the boys arrived for the summer they were tense and withdrawn and that by the end of the visit they had loosened up significantly. She talked of the activities she and her new husband share with the boys. She indicated the boys had told her that their father is not available as much as they would like, in that he travels. They are supervised normally by their stepmother who makes distinctions between them and her own son. Appellee stated the boys told her they wanted a change of custody.

On cross-examination, she admitted she had given custody of the boys to the father at the time of the divorce and that she was having psychological problems at that time.

Grover White, appellee's new husband, testified as to his financial ability to support the boys and to the father-son type of relationship he had with them. He indicated that Don, the oldest, was especially introverted when he arrived for visits and that he had tried to teach Don self-respect through various activities.

Appellant testified that when the boys leave at the first of the summer for a visit they are happy and well adjusted and that they return agitated and troubled. He stated that they told him they were afraid that their mother would once again try and talk them into staying with her. He indicated that Don has always had learning and emotional problems, that he was receiving help in the Minnesota schools and had improved in the past year. He stated he is out of the home approximately two nights a week, and that his new wife loves the boys.

At the close of the testimony, the trial judge indicated he had talked to the boys. While indicating that the boys loved both parents and that each parent could love and care for the boys, he stated that "(t)hey have had a bee in their bonnet to reside with their mother for some time. There will never be peace and harmony with these people until that is accomplished." He then modified custody to provide that the boys would live with their mother during the school year and with their father during the summer.

The first two issues are whether the court erred in finding it had jurisdiction, and, if not, did the court err in failing to find that Kansas was an inconvenient forum. We consider these two issues together because they are so closely related.

The parties were divorced in Kansas and the court at that time determined custody as an incident to the decree. Since 1963, our statutes have provided that Kansas has continuing jurisdiction over custody matters under such circumstances. K.S.A. 60-1610(a). It has been held that such jurisdiction exists even though the child has moved to another state with the custodial parent. Lyerla v. Lyerla, 195 Kan. 259, 403 P.2d 989 (1965).

Effective January 1, 1979, however, Kansas joined the ranks of those states which have adopted the Uniform Child Custody Jurisdiction Act, K.S.A. 1979 Supp. 38-1301 et seq. Incident to the adoption of the act, K.S.A. 60-1610(a) was amended to provide (as emphasized):

"The court . . . shall always have jurisdiction to make any . . . order to advance the welfare of a minor child if . . . (iii) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state. The court shall make provision for the custody of the minor children only when the court has jurisdiction to make a child custody decree under the provisions of the uniform child custody jurisdiction act." K.S.A. 1979 Supp. 60-1610(a).

The question of jurisdiction conferred by K.S.A. 1979 Supp. 60-1610(a) must now be considered in conjunction with the Uniform Child Custody Jurisdiction Act, K.S.A. 1979 Supp. 38-1303, which provides in pertinent part:

"(a) 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 months before commencement of the proceeding and the child is absent from this state because of the child's removal or retention by a person claiming the child's 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 the child's 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 . . . ."

K.S.A.1979 Supp. 38-1302(e) defined "home state" as follows:

"(e) 'home state' means the state in which the child immediately preceding the time involved lived with his or her parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period . . . ."

In the present case, appellant father contends that Kansas courts lack jurisdiction to determine the modification of custody. The pertinent portions of K.S.A. 1979 Supp. 38-1303 for purposes of this case are subsections (a)(1) and (2). Appellant essentially relies on the fact that Kansas is not the "home state" under subsection (a)(1). Appellee does not contest this fact but argues that jurisdiction is present under subsection (a)(2) in that she and the children have a "significant connection" with Kansas and "substantial evidence" is available here as to their present or future well-being. The trial court's reasoning in finding jurisdiction is not present in the record; it is to be presumed that the court found jurisdiction under subsection (a)(2).

At the outset it is clear that appellant is correct at least in his contention that jurisdiction does not exist under the "home state" provision of subsection (a)(1). The evidence is uncontradicted that the children had resided with appellant in Minnesota since 1975 and had not resided in Kansas for any period of six consecutive months at any time since then.

Jurisdiction can exist under subsection (a)(2), however, if the children and at least one of the contesting parents have a "significant connection" with Kansas and "substantial evidence" is available here as to the children's present or future care, protection, training, and personal relationships. Under this test it would appear that Kansas does have jurisdiction. In this regard it can be noted that the children were apparently born in Kansas and spent the early years of their lives here. Appellee mother has continued to live here. There is undoubtedly substantial evidence as to the children's present and future well-being in this state. None of the cases cited by appellant under his jurisdiction argument stand for the proposition that a state with ties to children such as Kansas has in this case is without jurisdiction under the act. In fact all of the...