Lustig v. Lustig

• Decision Date: 05 December 1996
• Docket Number: No. 19655,19655
• Parties: Karl A. LUSTIG, Plaintiff and Appellant, v. Susan LUSTIG, Defendant and Appellee. . Considered on Briefs on
• Court: South Dakota Supreme Court

Page 239

560 N.W.2d 239

1997 SD 24

Karl A. LUSTIG, Plaintiff and Appellant, v. Susan LUSTIG, Defendant and Appellee.

No. 19655.

Supreme Court of South Dakota.

Considered on Briefs on Dec. 5, 1996.

Decided March 5, 1997.

Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for plaintiff and appellant.

Lester Nies of Richards, Hood & Nies, Spearfish, for defendant and appellee.

KONENKAMP, Justice.

¶1 Under the Uniform Child Custody Jurisdiction Act (UCCJA), if a court finds it is an inconvenient forum for a custody determination, it may decline jurisdiction when another state provides a more appropriate forum. In this case, the circuit court found Minnesota the suitable forum not only for custody, but also for the entire divorce. May South Dakota courts dismiss a valid divorce action if another state provides a more appropriate forum? We hold they cannot, and reverse the dismissal of the divorce, but affirm the order declining custody jurisdiction.

Background

¶2 Karl and Susan Lustig married in Watertown on August 18, 1968, and raised five children. Karl is a physician and Susan, though not presently employed, is an occupational therapist. They lived in Minnesota from 1983 to 1992 and then moved to Lawrence County, South Dakota. The Lustigs kept a high-priced lake shore home in Beltrami County, Minnesota, but they also acquired substantial property in Lawrence County. In September 1995, Susan and the two youngest children, Amy and David, moved back to Beltrami County. On February 20, 1996, Karl commenced divorce proceedings in Lawrence County. By then, Amy was age 15 and David had turned 18. After making written demand as required by SDCL 15-5-10, Susan sought a change of venue to her county of residence based upon SDCL 15-5-11 and SDCL 26-5A-7. In March, she filed for marital dissolution in Minnesota and had Karl personally served. Karl moved to dismiss the Minnesota action asserting lack of jurisdiction, but his motion was denied.

¶3 In circuit court, Susan asserted it would be more difficult for her and the witnesses to attend trial in Lawrence County than it would be for Karl to appear in Minnesota. The minor child lived there, and Susan had at least twelve local witnesses who would testify on custody issues. Beltrami and Lawrence counties are over 650 miles apart.

¶4 While concluding it had subject matter and personal jurisdiction over the parties, the circuit court ruled Susan was entitled to a change of venue to her county of residence. ¹ Declining jurisdiction, the circuit court dismissed the entire divorce action and deferred to the Beltrami County court, noting:

By telephone conferences of May 1 and 2, 1996, the Honorable Paul E. Rasmussen, Judge of the District Court in and for Beltrami County, Minnesota, has agreed that his Court is the more appropriate forum for this litigation and has indicated a willingness to hear and determine the issues. This Court takes judicial notice of the FINDINGS OF FACT and ORDER of the District Court, dated May 2, 1996, denying Plaintiff's [Karl's] Motion to Dismiss the Minnesota divorce action for lack of jurisdiction (File NO. # F8-96-341).

Karl appeals, alleging the court had no authority to change venue to Minnesota under SDCL 25-4-30.1, transfer jurisdiction there pursuant to SDCL 15-5-11(3), or dismiss the whole divorce action in South Dakota as an inconvenient forum pursuant to SDCL 26-5A-7.

Standard of Review

¶5 We review questions of fact under a clearly erroneous standard. Therkildsen v. Fisher Bev., 1996 SD 39, p 8, 545 N.W.2d 834, 836; Lindquist v. Bisch, 1996 SD 4, p 16, 542 N.W.2d 138, 141. Questions of law, including statutory construction, we review de novo. West Two Rivers Ranch v. Pennington County, 1996 SD 70, p 6, 549 N.W.2d 683, 685. As the questions here are primarily matters of statutory interpretation, we review them under the de novo standard. Wharf Resources v. Farrier, 1996 SD 110, p 5, 552 N.W.2d 610, 612. A court's failure to consider the factors relevant to the principle of inconvenient forum under the UCCJA is an abuse of discretion. 1 Homer H. Clark, Jr. The Law of Domestic Relations in the United States § 13.5, at 795 (2d ed 1987)(citing cases); see Winkelman v. Moses, 279 N.W.2d 897 (S.D.1979).

Analysis

A. Child Custody Jurisdiction--Inconvenient Forum

¶6 The UCCJA attempts to grant stability to custody litigation, discouraging "jurisdictional competition" and promoting communication between courts toward the goal of resolving disputes in the best interests of children. In re M.C.S., 504 N.W.2d 322, 329 n * (S.D.1993)(Sabers, J., concurring). Before a court may decide custody, it must possess jurisdiction. SDCL 25-4-45 (child custody jurisdiction granted in divorce actions). Courts must also adhere to the jurisdictional requirements of the UCCJA and the prohibitions of the Parental Kidnapping Prevention Act (PKPA). ² Under the UCCJA, a state court has jurisdiction to make a child custody determination by initial decree if it:

1) ... is the home state of the child ...; or

2) ... is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships....

SDCL 26-5A-3. The philosophical underpinning for subsection (2) is vital:

[I]ts purpose is to limit jurisdiction rather than proliferate it. The first clause of the paragraph is important: jurisdiction 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. The interest of the child is served when the forum has optimum access to relevant evidence about the child and the family. There must be maximum rather than minimum contact with the state.

Comment on Section 3, Jurisdiction, National Conference of Commissioner on Uniform State Laws.

¶7 The circuit court found that South Dakota was the "home state" of the minor child. SDCL 26-5A-2(5). Custody jurisdiction could be exercised here, as Amy had lived with her parents in Lawrence County "within six months before commencement of the proceeding," was "absent from this state because of" her "removal or retention by a person claiming" her custody, and her father "continues to live in this state...." SDCL 26-5A-3(1). Ryan v. Ryan, 301 N.W.2d 675 (S.D.1981)(authorizing South Dakota "home state" exercise of initial jurisdiction). Nonetheless, a court may decline jurisdiction A court which has jurisdiction under this chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

* * * * * *

In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, including:

1) If another state is or recently was the child's home state;

2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;

3) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state;

4) If the parties have agreed on another forum which is no less appropriate.

SDCL 26-5A-7. Under this section, declining jurisdiction is discretionary. Johnson v. Johnson, 477 N.W.2d 603, 606 (S.D.1991); Breneman v. Breneman, 92 Mich.App. 336, 284 N.W.2d 804 (1979); Dennis v. Dennis, 387 N.W.2d 234 (N.D.1986). See also Winkelman, 279 N.W.2d at 903 (Henderson, J., dissenting). Jurisdiction may be declined if a court finds: (1) "that it is an inconvenient forum to make a custody determination," and (2) "that a court of another state is a more appropriate forum" because child and family have "the closest connection [there] and where significant evidence concerning the child's care, protection, training and personal relationships is most readily available." Zappitello v. Moses, 458 N.W.2d 784, 786 (S.D.1990). See also In re M.C.S., supra; Ryan, supra; Johnson, 477 N.W.2d at 606; see generally, David Carl Minneman, Annotation, Inconvenience of Forum as Ground for Declining Jurisdiction Under § 7 of the Uniform Child Custody Jurisdiction Act (UCCJA), 21 ALR5th 396 (1994). "The dominant purpose of the inconvenient forum provision is to encourage restraint in the exercise of jurisdiction." Clark, The Law of Domestic Relations in the United States § 13.5, at 472.

¶8 Given the child's current residence in Minnesota, the number of witnesses available there, the Lustigs' ten-year history in the locale, and the child's enrollment in Beltrami County school and other activities, the circuit court found South Dakota would be an inconvenient forum for a child custody determination. In concluding that Minnesota was the more appropriate forum, the court took into account the Minnesota court's findings on jurisdiction. Cf. Van Norman v. Upperman, 231 Neb. 524, 436 N.W.2d 834 (1989)(Nebraska home state for two of three children, but Kansas more convenient forum); Merman v. Merman, 412 Pa.Super. 247, 603 A.2d 201 (1992). To serve the child's well-being, the UCCJA encourages custody to be decided where the best evidence regarding the child exists and in the jurisdiction where the child has the closest connections. In re M.C.S., 504 N.W.2d at 324. We see no abuse of discretion in deferring the child custody issue to the Minnesota court.

B. Divorce Jurisdiction--Inconvenient Forum and Venue

¶9 If child custody jurisdiction was appropriately deferred, did the...