Marriage of Mosier, Matter of

• Decision Date: 10 July 1992
• Docket Number: No. 66704,66704
• Citation: 836 P.2d 1158,251 Kan. 490
• Parties: In the Matter of the MARRIAGE of Mark E. MOSIER, Appellee, and Kathleen M. Mosier, Appellant.
• Court: Kansas Supreme Court

Page 1158

836 P.2d 1158

251 Kan. 490

In the Matter of the MARRIAGE of Mark E. MOSIER, Appellee and Kathleen M. Mosier, Appellant.

No. 66704.

Supreme Court of Kansas.

July 10, 1992.

Syllabus by the Court

1. If a court lacks subject matter jurisdiction, the parties cannot ordinarily confer such jurisdiction upon the court by consent, waiver, or estoppel.

2. The Kansas Uniform Child Custody Jurisdiction Act, K.S.A. 38-1301 et seq., is the Kansas counterpart of the Uniform Child Custody Jurisdiction Act (UCCJA) adopted by the National Conference of Commissioners on Uniform State Laws.

3. K.S.A. 38-1303 sets forth the jurisdictional requirements for both initial and modification decrees determining child custody. However, K.S.A. 38-1314 limits this state's jurisdiction when another state has previously issued a valid child custody decree and that state continues to have jurisdiction 4. Under the UCCJA unless there is a showing that the court which issued an initial valid child custody order no longer has jurisdiction under the terms of the act or has relinquished its jurisdiction to another court, the general rule is that exclusive jurisdiction remains with the initial court and no other court has jurisdiction to modify the initial custody decree.

under provisions of its law comparable to those of K.S.A. 38-1303.

5. Under the Kansas counterpart of the UCCJA, initial jurisdiction is determined primarily by K.S.A. 38-1303. Modification jurisdiction, on the other hand, is governed primarily by K.S.A. 38-1314, reinforced where necessary by the stronger clean hands rules of K.S.A. 38-1308.

Sally Pokorny, Coffeyville, argued the cause and was on the brief, for appellant.

Curt T. Schneider of Schneider & Casebeer, Coffeyville, argued the cause and was on the brief, for appellee.

HOLMES, Chief Justice:

This is an interlocutory appeal in a child custody dispute from an order of the district court finding that it had jurisdiction under the Kansas Uniform Child Custody Jurisdiction Act (the Kansas Act), K.S.A. 38-1301 et seq. References to the Uniform Child Custody Jurisdiction Act (UCCJA), 9 U.L.A. 115 (1968), as adopted by the National Conference of Commissioners on Uniform State Laws will be to the appropriate sections of that act.

The facts are not in dispute and will be set forth sufficiently to consider the jurisdictional issue. Mark and Kathleen Mosier were married in 1985 in Kansas City, Missouri, and thereafter moved to Iowa. A son, Grant, was born on June 16, 1988. For simplicity and clarity the parties will be referred to by their first names. In the summer of 1989, the parties separated and later that year Kathleen and Grant moved to Coffeyville, Kansas. Although the record does not reflect the date a petition for dissolution of marriage was filed in Iowa, the marriage was dissolved by the Iowa court on March 26, 1990. Both parties were represented by counsel, and as a part of the dissolution proceedings the Iowa court entered a lengthy order, based upon an agreement of the parties, resolving all matters "including without limitation child custody and visitation, child support, spousal maintenance, allocation of assets and liabilities, attorney's fees and court costs." At the time of the dissolution, Mark continued to be a resident of Iowa and Kathleen and Grant were residing in Montgomery County, Kansas. The Iowa decree awarded the parties joint custody of Grant with primary residential custody to Kathleen and liberal rights of visitation to Mark.

On June 21, 1990, the parties filed a joint petition requesting the District Court of Montgomery County, Kansas, to assume jurisdiction over the parties and the subject matter. The petition alleged that Kansas was vested with jurisdiction pursuant to K.S.A. 38-1303, as Kansas was the "home state" of the child as defined in K.S.A. 38-1302(e). No affirmative relief was sought in the petition. On the same day, the District Court of Montgomery County entered an order determining that it had jurisdiction of the parties and the subject matter. The order was signed by each party's counsel and appears to have been an agreed order.

On August 3, 1990, Mark filed a motion for change of custody in the District Court of Montgomery County. The motion requested that residential custody be changed to the father, with liberal rights of visitation to the mother. After a hearing held November 29, 1990, the court, on December 21, 1990, issued a memorandum decision granting sole custody to each party for alternate six-month periods with Mark receiving custody for the first period from Christmas Eve, December 24, 1990, through the afternoon of Grant's birthday, June 16, 1991. The decision also made provisions for periodic visitation with the noncustodial parent during each six-month period. The terms of the memorandum decision were included in an order and journal entry filed January 9, 1991. Kathleenfiled On March 19, 1991, Kathleen moved to Missouri. At the time Grant was living with his father in Iowa, apparently in accordance with the provisions of the December 1990 memorandum decision.

a notice of appeal from the court's decision but subsequently withdrew that appeal.

On April 30, 1991, Mark filed another motion in the District Court of Montgomery County, asking that the court modify its previous child custody modification order. He alleged Kathleen's change in residence and employment constituted a material change in circumstance sufficient to warrant modification of the court's previously entered orders. On May 13, 1991, Kathleen filed a motion to dismiss the motion for modification pending in Montgomery County, Kansas, claiming inter alia, that the Kansas district court had no jurisdiction to decide a modification of its earlier decree because "Kansas is not the home state of the child and no parent lives in [Kansas]." On May 30, 1991, the Kansas district court denied the motion to dismiss. The court found it had jurisdiction, under the Kansas Act, to decide the modification motion.

On May 29, 1991, Kathleen filed a motion to modify custody in the Circuit Court of Jackson County, Missouri. Mark filed a motion to dismiss that action for lack of jurisdiction. The Missouri court has taken the question of jurisdiction under advisement pending the outcome of this appeal.

On June 5, 1991, the Kansas district court entered an order authorizing an interlocutory appeal of its order denying the motion to dismiss. The Court of Appeals denied Kathleen's application for an interlocutory appeal. On July 30, 1991, Kathleen filed a petition for review of the denial of the application for interlocutory appeal. This court granted the petition for review and directed the parties to brief the issues for argument to, and consideration by, the Supreme Court.

On appeal, Mark's position is that the Kansas district court retains jurisdiction to modify its previous custody modification order. Kathleen's position is that the Kansas court does not have continuing jurisdiction to hear future custody matters pursuant to the Kansas Act, as neither the mother, the father, nor the child reside in Kansas, and that Missouri is the proper forum.

Unfortunately, the parties totally ignore the threshold question of whether, under the terms of the UCCJA and its Kansas counterpart, Kansas ever had jurisdiction of this matter. There can be no doubt but that the parties, by their joint motion to the Montgomery County court in June 1990, submitted to the personal jurisdiction of the court. It is equally clear that if the court lacked subject matter jurisdiction the parties could not, ordinarily, confer such jurisdiction upon the court by consent, waiver, or estoppel. In re Miller, 228 Kan. 606, Syl. p 1, 620 P.2d 800 (1980); In re Estate of Freshour, 177 Kan. 492, 499-500, 280 P.2d 642 (1955).

Throughout this opinion there will be references to not only the Kansas Act but also to the UCCJA. The two acts are essentially identical and the sections relevant to the issues here have no material differences and may be considered interchangeable.

K.S.A. 38-1314 provides:

"Modification of custody decree of another state. (a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree and (2) the court of this state has jurisdiction.

"(b) If a court of this state is authorized under subsection (a) and K.S.A. 38-1308 to modify a custody decree of another state it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with K.S.A. 38-1322." (Emphasis added.)

K.S.A. 38-1303 sets forth the jurisdictional requirements for both initial and modification decrees determining child custody.

However, K.S.A. 38-1314 limits this state's jurisdiction when another state has previously issued a valid child custody decree and that state continues to have jurisdiction under provisions of its law comparable to those of K.S.A. 38-1303.

On March 26, 1990, the Iowa district court granted a dissolution of marriage decree and, as part of that decree, issued a valid child custody order. Pursuant to K.S.A. 38-1314(a) (UCCJA § 14[a] ), the Iowa district court retains exclusive continuing jurisdiction as to any modification of custody so long as Iowa continues to meet jurisdictional prerequisites substantially in accordance with the requirements of K.S.A. 38-1303.

First, it appears that Iowa continues to have jurisdiction under "jurisdictional prerequisites substantially in accordance with this act." K.S.A. 38-1314(a)(1). That is, Iowa continues to meet the jurisdictional requirements of K.S.A. 38-1303 and UCCJA § 3. Grant's connections to Iowa...