Marriage of Hubbard, In re
| Decision Date | 20 January 1982 |
| Docket Number | No. 66786,66786 |
| Citation | 315 N.W.2d 75 |
| Parties | In re the MARRIAGE OF Ronald William HUBBARD and Regina Lorrae Hubbard Upon the Petition of Ronald William Hubbard, Appellee, and Concerning Regina Lorrae Hubbard, Appellant. |
| Court | Iowa Supreme Court |
Kathleen S. Bean and Kathleen E. Keest of Legal Services Corp. of Iowa, Des Moines, for appellant.
Donald G. Beattie of Ed Skinner, P.C., Altoona, for appellee.
Considered by LeGRAND, P. J., and McCORMICK, ALLBEE, McGIVERIN and LARSON, JJ.
Respondent, Regina Lorrae Hubbard, appeals from trial court's modification of a dissolution of marriage decree to change custody of three children from herself to petitioner, Ronald William Hubbard. The appeal raises three issues: 1) Did trial court have jurisdiction under chapter 598A, The Code, The Uniform Child Custody Jurisdiction Act; 2) Was there a sufficient change in circumstances to justify the modification; and 3) Did trial court properly restrict respondent's rights of visitation to the State of Iowa? We resolve the first two issues favorably to petitioner and modify trial court's ruling as to the third.
Petitioner and respondent were married November 16, 1969, in Binghampton, New York. Regina had a child from a previous marriage, Kesia Leigh Hubbard born May 14, 1966. Ronald adopted Kesia during the marriage. Two children were born of the marriage, Ronell Jean Hubbard, born December 15, 1970, and Lloyd William Hubbard, born May 23, 1973.
The marriage was dissolved on January 26, 1976, by decree in Poweshiek County, Iowa District Court. At that time both parties were residents of Grinnell, Iowa. Regina obtained custody of the three children pursuant to a stipulation incorporated into the dissolution decree. She subsequently moved to California with the children and remarried. Petitioner remained in Iowa and also remarried.
Ronald filed a petition for modification of the 1976 dissolution decree on October 12, 1979. He sought to have custody of the three children transferred to him. Regina challenged the subject matter jurisdiction of the Iowa district court, but on January 23, 1981, trial court ruled it had jurisdiction under chapter 598A, The Code. On May 22, after a hearing on the merits of the custody issue, trial court modified the original decree by granting Ronald custody of the three children, terminating his child support obligation to Regina, and allowing her reasonable visitation in Iowa. Regina appeals, but only as to the custody of Ronell and Lloyd.
I. Subject matter jurisdiction under chapter 598A, The Code. Regina raises several contentions that trial court did not have subject matter jurisdiction of this custody dispute under chapter 598A, The Code. We find none of these persuasive and affirm trial court's finding that there was subject matter jurisdiction in Iowa.
We exercise de novo review of jurisdictional issues raised under chapter 598A. 1 St. Clair v. Faulkner, 305 N.W.2d 441, 445 (Iowa 1981). Generally, trial court has continuing subject matter jurisdiction to modify a child custody provision of a dissolution decree. § 598.21, The Code, 1979. 2 However, "(o)rders relating to custody of children shall be subject to the provisions of chapter 598A." § 598.21, The Code 1979. 3
The basic jurisdictional provision of chapter 598A is section 598A.3 which provides:
1. 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:
a. This state is the home state of the child at the time of commencement of the proceeding, or 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 removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
b. It is in the best interest of the child that a court of this state assume jurisdiction because the child and the child's 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; or
c. The child is physically present in this state, and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
d. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs "a", "b", or "c", 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 it is in the best interest of the child that this court assume jurisdiction.
2. Except under paragraphs "c" and "d" of subsection 1, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child-custody determination.
3. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine custody.
A key phrase to resolution of the jurisdictional dispute in the present case is "home state" which is defined by section 598A.2:
5. "Home state" means the state in which the child, immediately preceding the time involved, lived with the child's 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.
Regina contends trial court erred by finding it had jurisdiction under "section 598A.3(1)(b) and/or (d)." Upon our de novo review of the record we find trial court did not err.
The gravamen of respondent's contention is that California is the home state of the children pursuant to section 598A.2(5), and that California would be the forum with the appropriate jurisdiction for resolution of this modification proceeding. She reasons that if California would have jurisdiction under section 598A.3(1)(a), Iowa cannot have jurisdiction under section 598A.3(1)(d), nor should Iowa exercise its jurisdiction under section 598A.3(1)(b) because it is an inconvenient forum under section 598A.7. 4
Her argument fails because California is not the home state pursuant to section 598A.3(1)(a). In fact, there is no home state in this case. The record reveals that respondent has moved at least twenty times since the dissolution decree in 1976. The children accompanied her on most of these moves, several of which were interstate. We detail these moves in this division of the opinion because they relate to jurisdiction under section 598A.3(1)(a), (b) and (d). The moves also relate to the best interests of the children as discussed in division II.
Although there is some conflicting evidence in the record, we find it indicates the following chain of residences, disregarding visitation, for Regina, Ronald and most importantly, the three minor children. At the time of the dissolution decree, January 26, 1976, all five persons were residents of Iowa, living in or near Grinnell. Immediately after the decree Ronell, Lloyd and respondent moved to California. To enable Kesia to finish the school year in Grinnell, she remained in Grinnell under the guardianship of Barbara Cole until July 1976. In July, Kesia joined her two siblings in California where they remained until October, when respondent moved with Tom Dickover, her husband, and the children to Washington. They remained in Washington until July 1978.
In July 1978 Regina and the three minor children moved to Grinnell, Iowa, living there or in nearby towns until September. In September, she returned with the children to Washington where they resided until mid to late April 1979. 5 They then vacationed briefly in Arizona, and moved to California. Kesia left California to live with Ronald in Ankeny, Iowa, in June 1979. Ronell and Lloyd resided in California with respondent until September 1979 when she again moved to Grinnell, Iowa, with the children. Ronell, Lloyd and Regina resided in Grinnell until November when they moved back to California. Kesia has resided with petitioner in Ankeny since June 1979.
Since July 1980 Ronell has resided in Ankeny with petitioner. Lloyd has resided in Ankeny since the May 1981 modification. Respondent continues to reside in California. Petitioner has resided in Iowa since the dissolution decree.
A. Section 598A.3(1)(a). Trial court found that because of the children's move from Washington to California in mid to late April 1979 there was no "home state" within the definition of section 598A.2(5). The record supports this conclusion. The three children did not live with their parents or a parent in any one state for six consecutive months prior to the commencement of this proceeding on October 12, 1979. §§ 598A.3(1)(a); 598A.2(5).
Trial court's finding of no home state is additionally buttressed by our finding that Regina and the children were residents of Iowa for the period from September to November 1979. During this period Regina was employed in Iowa, drew food stamps here and rented living accommodations for herself and the children. She had no home whatsoever in California during this period. The children were enrolled in the Grinnell-Newburg school district.
Because there was no "home state," there was no jurisdiction of this matter pursuant to section 598A.3(1)(a) in either California or Iowa as of October 12, 1979, when this modification action was filed. Pierce v. Pierce, 287 N.W.2d 879, 883 (Iowa 1981).
B. Section 598A.3(1)(b). Respondent contends trial court...
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