Luna v. Luna, 980204

• Decision Date: 27 April 1999
• Docket Number: No. 980204,980204
• Citation: 1999 ND 79,592 N.W.2d 557
• Parties: Michael LUNA, Plaintiff and Appellant, v. Darla LUNA, n/k/a Darla Allen, Defendant and Appellee.
• Court: North Dakota Supreme Court

Page 557

592 N.W.2d 557

1999 ND 79

Michael LUNA, Plaintiff and Appellant, v. Darla LUNA, n/k/a Darla Allen, Defendant and Appellee.

No. 980204.

Supreme Court of North Dakota.

April 27, 1999.

Tom P. Slorby, Minot, N.D., for plaintiff and appellant.

Debra K. Edwardson, Edwardson Law Office, Minot, N.D., for defendant and appellee.

SANDSTROM, Justice.

¶1 Michael Luna appeals from an amended judgment modifying and awarding custody of a minor child to Darla Luna. Because the district court had jurisdiction, and the change of custody was in the child's best interests, we affirm the decision of the district court.

I

¶2 Michael and Darla Luna were married in 1988 and divorced in February 1994 in Minot, North Dakota. The parties were granted "joint custody" of their daughter, born on November 8, 1988, with primary physical custody awarded to Michael Luna. ¹ In December 1994, upon his separation from active Air Force duty, the district court granted Michael Luna's motion to change the residence of his daughter to New Hampshire. Following the divorce, Michael Luna married Lori Luna, who also had a child from a previous marriage. The couple eventually moved to Pennsylvania.

¶3 In February 1997, Northwest Judicial District Court Judge Gary Holum issued an interim ex parte order granting temporary custody to Darla Luna, based upon her claim that her daughter, who was not in North Dakota at that time, had been abandoned. Darla Luna went to Pennsylvania and brought her back to North Dakota. Michael Luna requested a hearing on the necessity of the order, requested a change of judge, and moved the court to dismiss for inconvenient forum. A hearing on Michael Luna's motion regarding the necessity of the interim order and motion to dismiss the temporary order was held before Northwest Judicial District Court Judge Wallace Berning on May 9, 1997.

¶4 The district court found North Dakota had jurisdiction and was not an inconvenient forum. Darla Luna then moved for a continuance of 30 days for discovery. Ultimately, she did nothing but rest upon the temporary order, and never filed a petition or motion for a change of custody. On November 25, 1997, upon Michael Luna's motion, the court dismissed the action for failure to prosecute the matter. On December 8, 1997, Michael Luna returned to Pennsylvania with his daughter.

¶5 On December 15, 1997, Darla Luna again moved for change of custody, and the motion was tried before Northwest Judicial District Court Judge Robert Holte. The matter came before the district court in Ward County on February 13, 1998. Michael Luna appeared by telephone, and his recently divorced wife, Lori Luna, was allowed to testify by deposition. In her deposition, Lori Luna testified she and Michael Luna were married for approximately 3 1/2 years. She also testified she was the primary caretaker of Michael Luna's daughter--preparing her meals, bathing her nightly, doing her laundry, seeing to it that she got to school, and taking her to the doctor when necessary. Lori Luna also testified regarding Michael Luna's reluctance to grant Darla Luna her court-ordered visitation.

¶6 Lori Luna further testified that between 1995 and 1997, Michael Luna was working and going to school and frequently did not come home after work. When Michael and Lori Luna separated, Michael Luna's daughter stayed with Lori Luna and her child. Further, Lori Luna testified she was physically abused by Michael Luna. She eventually sought and was granted a court protection order. Although the protection order was issued without making any findings, Lori Luna was granted the family residence, and Michael Luna was ordered to stay away from the residence for the term of the order, which was to expire in March 1998.

¶7 Darla Luna testified Lori Luna contacted her through an attorney, who advised her that Michael and Lori Luna were separated and her daughter was living with Lori Luna, who was concerned because she had no legal right to the child's custody. The district court determined it had jurisdiction and applied the test to modify custody. The court found a significant change in circumstances and found it in the daughter's best interests to modify custody and make Darla Luna the custodial parent.

¶8 Michael Luna appealed in a timely manner under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

¶9 Michael Luna argues North Dakota does not have jurisdiction to decide the matter. Before the merits of an interstate custody dispute can be settled, jurisdiction must be determined. Dahlen v. Dahlen, 393 N.W.2d 765, 767 (N.D.1986). The threshold issue is whether the district court had jurisdiction to modify custody under the Uniform Child Custody Jurisdiction Act (UCCJA), codified as N.D.C.C. ch. 14-14, and the Parental Kidnapping Prevention Act (PKPA), codified as 28 U.S.C. 1738A. See Zimmerman v. Newton, 1997 ND 197, p 8, 569 N.W.2d 700 (citing Hangsleben v. Oliver, 502 N.W.2d 838, 841 (N.D.1993)). In Zimmerman, we outlined the multi-step analysis for jurisdiction in interstate custody disputes:

Under the UCCJA and the PKPA, a court must go through a multi-step process in determining whether to exercise jurisdiction. First, a court must determine whether it has jurisdiction, and, if it finds that it does, it must then determine whether there is a custody proceeding pending or a decree made by another state which has jurisdiction. If there is a pending custody proceeding in another state, the petitioned state must stay its proceedings or decline jurisdiction. NDCC § 14-14-06 [UCCJA § 6], PKPA § 1738A(g). If another state has issued a decree, the court, in order to modify that decree, must apply the multi-step process contained in section 14-14-14, NDCC [UCCJA § 14], and PKPA sections 1738A(c), and (f). Finally, assuming there is neither a proceeding pending in another state nor a decree by which another state retains jurisdiction, a determination must be made by the forum state whether it is appropriate to exercise jurisdiction in light of the convenience of the forum and the conduct of a parent. NDCC §§ 14-14-07, 08 [UCCJA §§ 7, 8].

Id. (quoting Hangsleben, at 842 (footnotes omitted)). "[P]rocedurally, a court must first consider whether it has jurisdiction to decide custody and, if it does, the court must then decide, within the framework of the UCCJA and the PKPA, whether to exercise its jurisdiction." Id.

¶10 Congress enacted the PKPA to create a national standard for states to look to in interstate custody disputes and to solve problems the UCCJA failed to successfully address. See Annotation, Child Custody: When Does State That Issued Previous Custody Determination Have Continuing Jurisdiction Under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 USCA § 1738A, 83 A.L.R.4th 742, 748 (1991). One problem the UCCJA failed to address was continuing jurisdiction and the potential for concurrent jurisdiction between two states. See Roger M. Baron, Child Custody Jurisdiction, 38 S.D. Law Review 479, 489 (1993) (in enacting the PKPA, Congress closed the loopholes which had evolved under the UCCJA, strengthening the exclusive nature of continuing jurisdiction). The PKPA addressed continuing jurisdiction, but a concern was whether it pre-empted state law because it has a specific provision for continuing jurisdiction, while the UCCJA has no specific equivalent. ² Annotation, 83 A.L.R.4th 742, 748 (1991) (citation omitted). The PKPA would govern in the event of conflict with the UCCJA or other state law. See Dahlen v. Dahlen, 393 N.W.2d 765, 767 (N.D.1986) (because the PKPA is federal legislation, it will govern where state law conflicts); see also Baron, Child Custody Jurisdiction, 38 S.D. Law Review at 484.

¶11 Under the PKPA:

The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection [28 USC § 1738A] (c)(1) ... continues to be met and such State remains the residence of the child or of any contestant.

28 USC § 1738A(d). Section (c)(1) allows a child custody determination to be made by a court in a state if that state would have jurisdiction under its own laws. In other words, the jurisdiction of the original decree-rendering state court continues, provided such court has not "lost" jurisdiction in the interim and either the child or one of the contestants continues to reside there.

¶12 This Court has interpreted subsection (d) of § 1738A of the PKPA as establishing three criteria that must be met for a court to retain jurisdiction. Dahlen, 393 N.W.2d at 768. The first consideration is whether the "original custody determination was entered consistently with the provisions of the PKPA," and the UCCJA. Id. at 768. The second requirement is that "subsection (c)(1) continues to be met." Id. And third, the State must remain the "residence of the children [child] or of any contestant." Id.

A

¶13 At the time of the original custody decree, both Michael and Darla Luna lived in North Dakota. North Dakota was their daughter's home state, and the requirements of both the UCCJA and PKPA were met.

B

¶14 The second criterion under the PKPA requires that subsection (c)(1) continue to be met. Subsection (c)(1) states:

(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if--

(1) such court has jurisdiction under the law of such State....

¶15 North Dakota district courts have jurisdiction to make custody decisions by initial decree or modification of an initial decree if North Dakota is the "home state," or there is a "significant connection" with this state. N.D.C.C. § 14-14-03. The relevant parts of N.D.C.C. § 14-14-03 state:

1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody...