Marriage of Murphy, In re, 15910-8-III

• Decision Date: 12 March 1998
• Docket Number: No. 15910-8-III,15910-8-III
• Citation: 952 P.2d 624,90 Wn.App. 488
• Parties: In re the MARRIAGE OF Cassandra Cage MURPHY, Appellant, and Kenneth Michael Murphy, Respondent.
• Court: Washington Court of Appeals

Page 488

90 Wn.App. 488

952 P.2d 624

In re the MARRIAGE OF Cassandra Cage MURPHY, Appellant,

and

Kenneth Michael Murphy, Respondent.

No. 15910-8-III.

Court of Appeals of Washington,

Division 3,

Panel Five.

March 12, 1998.

Lisa L. Dow, Yakima, for Appellant

Edward F. Shea, Jr., Pasco, for Respondent.

KURTZ, Judge.

When deciding whether to recognize and

enforce a custody order entered in another state, Washington courts must consider both the Uniform Child Custody Jurisdiction Act (UCCJA), RCW 26.27, and the Parental Kidnaping Prevention Act (PKPA), 28 U.S.C.A. § 1738A. The trial court dismissed Cassandra Cage Murphy's petition finding that all matters related to the dissolution of her marriage to Kenneth M. Murphy, including custody issues, had been resolved by a consent decree entered in Ohio. The trial court based its decision on the UCCJA and a stipulation included in the Ohio decree that consented to jurisdiction. We conclude the trial court erred in applying the UCCJA standards to this matter without conducting an analysis under the PKPA. For that reason, we reverse and remand the matter to the trial court for further proceedings.

FACTS

Cassandra Cage Murphy and Kenneth Michael Murphy were married in Rock Springs, Wyoming, in August 1993. They are the parents of two children, Lacee Murphy, born on January 13, 1988, and Colt Cage, born on April 25, 1990.

In her affidavit, Ms. Cage Murphy states that the family lived in Wyoming until March 1994, when they moved to Tucson, Arizona. While there, Mr. Murphy abandoned the family on April 25, 1994. Ms. Cage Murphy and the children then returned to Rock Springs, Wyoming, and lived there from June 1994 until June 1995, when they moved to Washington. According to Ms. Cage Murphy, the children have been in Washington since June 1995; this is substantiated by Department of Health and Human Services records. Mr. Murphy concedes Ohio has never been the home state of the children.

On March 1, 1996, Mr. Murphy commenced a dissolution proceeding in the Court of Common Pleas of Union County, Ohio, seeking dissolution of the marriage, a division of property and debts, and the establishment of his parental rights and responsibilities with respect to the children. Ms Noting the "implicit overruling" of the motion to dismiss, Ms. Cage Murphy then filed an answer in the Ohio court. Trial in the matter was set for June 3. On May 21, Ms. Cage Murphy filed a motion for a continuance on the basis that she, along with her children and other witnesses, would need to travel to Ohio from Washington to take part in court proceedings. This request was denied on May 24. On that same date, Ms. Cage Murphy filed a petition for dissolution in Benton County, Washington, and requested custody of her children. Ms. Cage Murphy also obtained an ex parte restraining order against her husband. In her proposed parenting plan, Ms. Cage Murphy requested that Mr. Murphy's residential time with their children be restricted based on allegations of spousal abuse.

Cage Murphy retained an attorney in Ohio and filed a motion to dismiss Mr. Murphy's complaint insofar as it requested the court to make determinations of parental rights. Ms. Cage Murphy argued in her motion that Ohio was not the children's home state and, therefore, the Ohio court lacked jurisdiction under Ohio law. While the record is unclear, it appears that this motion was denied without a hearing on May 8.

On June 3, Ms. Cage Murphy, accompanied by her Ohio attorney, appeared in the Ohio court and entered into an agreement resolving all issues related to the dissolution proceedings, including those related to the rights and responsibilities concerning the children. In the agreed divorce decree, Ms. Cage Murphy is designated as the residential parent and the legal custodian of the children. Mr. Murphy is granted extensive visitation rights. The agreement also contains a stipulation consenting to jurisdiction in Ohio. Ms. Cage Murphy contends that she entered this agreement under duress and that she believed that if she refused to accept the agreement, she would lose custody of the children.

After the hearing in Ohio, Ms. Cage Murphy filed a flurry of affidavits in the Benton County Superior Court in an attempt to convince the Washington court to retain jurisdiction.

The trial court in Washington issued an order dismissing the petition for dissolution of marriage based upon the UCCJA, the stipulation entered in the Ohio action, and the fact that the Ohio action was filed first. On appeal, Ms. Cage Murphy contends the trial court erred by declining to exercise jurisdiction over this custody matter.

ANALYSIS

The trial court determined that the issues related to the custody of the Cage Murphy children were resolved by the Ohio decree and that the Washington courts must recognize and enforce this decree pursuant to the full faith and credit provisions of the UCCJA. The trial court's decision to decline jurisdiction in this matter presents an issue of law that we review de novo. Bour v. Johnson, 80 Wash.App. 643, 647, 910 P.2d 548 (1996).

The PKPA establishes the conditions under which a state must give full faith and credit to the custody orders of another state. It provides:

The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.

28 U.S.C.A. § 1738A(a) (West 1994). The PKPA, likewise, establishes the conditions under which a state must refrain from exercising jurisdiction over a child custody proceeding when a proceeding in the same matter is pending in another state. It provides:

A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.

28 U.S.C.A. § 1738A(g) (West 1994). Both sections use the phrase "consistently with the provisions of this section." Only those orders that meet this requirement qualify for the PKPA's operative effect.

A child custody determination is consistent with the provisions of the PKPA if two requirements are met. First, under § 1738A(c)(1), the court issuing the order must have jurisdiction under its own state laws. Jurisdiction in each state is determined by reference to the UCCJA as adopted in that state. In re Marriage of Greenlaw, 123 Wash.2d 593, 598, 869 P.2d 1024 (1994). Second, one of five conditions enumerated in § 1738A(c)(2) must be met. They are:

(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;

(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or (E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

28 U.S.C.A. § 1738A(c)(2). These conditions are modeled after the jurisdictional standards of the UCCJA.

There is one significant difference between the UCCJA and PKPA. Unlike the UCCJA, the PKPA grants priority to home state jurisdiction over significant connections jurisdiction. First priority is given in subsection (A) to the child's home state. If no state has jurisdiction under the "home state" provision, a state may take jurisdiction under subsection (B) on the grounds that it has significant connections with the child and at least one parent. Subsections (C) and (D) state other independent grounds for obtaining jurisdiction that are not applicable in this case. To the extent there are conflicts between the UCCJA and PKPA, the PKPA preempts state law under the supremacy clause. In re Marriage of Kastanas, 78 Wash.App. 193, 197, 896 P.2d 726 (1995).

"Home state" is defined in the PKPA and the UCCJA as the state in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months. 28 U.S.C.A. § 1738A(b)(4) (West 1994); Ohio Rev.Code Ann. § 3109.21(E) (Banks-Baldwin 1997); RCW 26.27.020(5). Significantly, under the structure of the PKPA, if any state qualifies as the "home state," the orders of any other state attempting to exercise significant connections jurisdiction over the same custody matter will not be entitled to full faith and credit. The custody order entered in the second state would not be consistent with the "home state" priority granted in the PKPA and, therefore, would not qualify as an exercise of...