Marriage of Schmidt, In re

• Decision Date: 24 February 1989
• Docket Number: No. C5-87-2401,C5-87-2401
• Citation: 436 N.W.2d 99,81 A.L.R.4th 1085
• Parties: In Re the MARRIAGE OF Janet SCHMIDT, Respondent, and Donald Schmidt, Appellant.
• Court: Minnesota Supreme Court

Page 99

436 N.W.2d 99

81 A.L.R.4th 1085

In Re the MARRIAGE OF Janet SCHMIDT, Respondent and Donald Schmidt, Appellant.

No. C5-87-2401.

Supreme Court of Minnesota.

Feb. 24, 1989.

Syllabus by the Court

1. Appropriate jurisdictional fact findings are a prerequisite to assertion of jurisdiction under the Uniform Child Custody Jurisdiction Act, Minn.Stat. Secs. 518A.01-25 (1988).

2. A family court's ex parte orders purporting to award temporary custody of a minor child to one parent, absent a finding that the affected child was in danger, must be set aside when the other parent was not given notice of hearing or afforded opportunity to be heard as required by Minn.Stat. Secs. 518A.04, 518.131, subd. 3(b) (1988) and Rule 7.05 of the Minnesota Rules of Family Court Procedure.

Lawrence Hammerling, St. Paul, for appellant.

Brian D. Roverud, Blue Earth, for respondent.

Heard, considered and decided by the court en banc.

KELLEY, Justice.

The court of appeals affirmed family court orders which, after asserting jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), ¹ awarded temporary custody of the parties' minor son to the respondent. ² Appellant Donald Schmidt in this appeal challenges that assertion of jurisdiction; and, further, contends that the family court's various orders awarding his wife temporary custody of their minor child were invalid because rendered ex parte without notice or opportunity to be heard and without particularized findings in contravention of Minn.Stat. Secs. 518A.04, 518.131 (1988) and Rule 7.05 of the Minnesota Rules of Family Court Procedure. We reverse both courts, but observe that had the family court supported its assertion of jurisdiction by appropriate written findings, facts existed which, if adopted by the family court, would have provided a statutory basis for such assertion under the UCCJA. We hold, however, that the family court's orders purporting to award temporary custody to respondent were invalid for noncompliance with statutory and rule requirements of notice and opportunity to be heard and supporting findings. We remand to the family court of Faribault County for appropriate jurisdictional fact findings, and for reinstitution of the collateral temporary custody proceedings in compliance with the statute and the rules. ³

Donald Schmidt, appellant, married Janet Schmidt, respondent, in Mankato, Minnesota, on November 12, 1985. They lived and worked in Mankato until July, 1986, when they moved to Valdosta, Georgia. In Valdosta, the parties lived with Donald's parents until February, 1987, after which they rented a house. Their son, Jamie, whose custody is the subject of this action, was born on September 5, 1986, in Valdosta. In Valdosta both parents were employed full time. In May, 1987 the family left Georgia for Minnesota to be with Janet's father during his scheduled kidney surgery. For several weeks following their arrival in Minnesota, the parties resided with Janet's parents. Throughout these proceedings Donald has asserted the move was intended to be only temporary and that Georgia remained the family's state of residence. To the contrary, Janet has maintained that the move was meant to be permanent. She notes that appellant secured a job in Minnesota, and later, on July 1, 1987, moved out of her parents' home and into a rented apartment in Mankato. She did not join in the move as their marriage appeared to be deteriorating. On July 6, Donald and Janet spent several hours talking about the state of their marriage and discussing the future of their child. Donald claims that, during this conversation, Janet told him he could have custody of Jamie, and, further, that she, herself, suggested that he and Jamie return to Georgia. Janet, although admitting that the subject was discussed, contends she told Donald she was only thinking about giving Jamie's custody to him, but she denies making any suggestion that Donald be permitted to take Jamie from Minnesota to Georgia. When Donald consulted an attorney the next day, he was advised that he had resided in Minnesota an insufficient time to meet the Minnesota jurisdictional residency requirements necessary to commence a marital dissolution action.

On July 8, Janet brought Jamie over to Donald's apartment, along with one change of clothes, a diaper bag, toys, stroller and a car seat. Donald insists Jamie was brought over pursuant to his wife's previous decision to turn Jamie's custody over to him, and points out that in addition to the other items left with him, two baby books were given to him when he walked Janet to her car to unload the items. Respondent's version of what then occurred differs in substantial respects. She claims the baby was brought over to Donald merely for a visit, but that upon arrival appellant took Jamie from her and "threw" her out of the house. As support for her version, she emphasizes that she had brought along only one change of clothes, a few diapers and food for Jamie sufficient for no more than two meals.

Whichever version may be correct, it seems clear that each sought legal advice thereafter. Appellant's attorney apparently advised him that it would not be illegal for him to take the child with him to Georgia. Respondent, accompanied by her father, likewise consulted with an attorney concerning the parties' marital and custody problems.

After consulting with counsel, appellant unsuccessfully attempted to discuss their problems further with respondent. Thereafter, the next day, on June 9, he left Minnesota with Jamie and returned to Georgia to his parents' home in Valdosta.

On July 10, respondent commenced a legal separation action, and, ancillary thereto, a Faribault County court judge signed an ex parte show cause order returnable July 27 in which the court awarded temporary custody of Jamie to respondent. As noted by the court of appeals panel, this order was defective for failure to provide for proper notice or make appropriate findings. See Minn.Stat. Secs. 518A.04-.05 (1988); Minn.Stat. Sec. 518.131, subds. 1 and 3(b) (1988). Several days later, respondent and her mother journeyed to Georgia to attempt to acquire physical custody of the child, but appellant refused to either surrender custody or allow visitation. Following respondent's subsequent return to Minnesota, apparently as a result of information furnished by her to law enforcement officials, a Faribault County attorney issued a criminal complaint charging appellant with kidnapping in violation of Minn.Stat. Sec. 609.26, subd. 1(1) (1988). On July 17, the Faribault County Family Court issued a new order in which it purported to assert jurisdiction pursuant to Minn.Stat. ch. 518A (UCCJA), again awarded temporary custody of Jamie to respondent, and ordered appellant to deliver the child to respondent. This order, like the July 10 order, was ex parte. Again, none of the findings required by chapter 518, by chapter 518A, nor by Family Court Rules accompanied the issuance of this order. Both the July 10 and the July 17 orders were served on appellant in Georgia on July 24. Later, on August 7, appellant was arrested in Georgia on the criminal complaint. Thereafter, both appellant and Jamie returned to Minnesota at which time respondent obtained physical custody of the child.

On August 14, the Faribault County Family Court issued yet another show cause order substantially identical to its July 10 order. It, likewise, purported to award temporary custody of the child to respondent, but it, too, was issued ex parte without notice of hearing or opportunity having been given appellant to be heard. That order likewise was not accompanied by appropriate findings. Thus, it, like its predecessors, was subject to the same legal infirmities as the July 10 order. That order, however, was served on appellant, who, by then, was in the Faribault County jail.

In due course appellant moved to dismiss the original legal separation proceeding. He also challenged the legality of the various temporary custody orders on the ground that the Faribault County Family Court lacked jurisdiction under the UCCJA. Alternatively, he asserted that if the Minnesota family court did have jurisdiction under the Act, in this instance, it had improperly gone about asserting it. Finally, appellant challenged the orders on the ground the temporary custody orders were invalid because they were issued in violation of his due process notice and hearing rights, and without compliance with relevant statutes and rules. On November 13, 1987, appellant filed for divorce in Georgia. The Georgia court awarded temporary custody of Jamie to respondent until it determined whether jurisdiction was available under the UCCJA. By order entered November 13, the Faribault County Family Court denied appellant's dismissal motion. It failed to further address the validity of the custody orders, but instead ordered a custody investigation, the result, of which, of course, was continuation of the temporary custody of Jamie in respondent as originally ordered in the prior ex parte orders.

(1) We first address appellant's claim that the Minnesota court lacked jurisdiction under the UCCJA. The Act provides that a Minnesota court has jurisdiction to make initial or modified child custody decrees if one or more of four factual circumstances have been found to exist. ⁴ The UCCJA seeks to address recurring problems seemingly indigenous to interstate custody disputes by providing a mechanism designed to resolve claims of concurrent jurisdiction by (a) attempting to identify the most appropriate forum in which to resolve custody issues in order to avoid or minimize interstate conflict; (b) seeking to deter parental abductions and other unilateral movement of children to gain advantage in custody disputes; and by serving the best interest of the child. UCCJA, Sec. 1, 9 U.L.A. at 123-4, codified at Minn.Stat. Sec. 518A.01 (1988). To facilitate the stated goals, the act...