Marriage of Tonnessen, In re, 95CA1467

• Docket Nº: No. 95CA1467
• Citation: 937 P.2d 863
• Case Date: September 05, 1996
• Court: Court of Appeals of Colorado

Page 863

937 P.2d 863 In re the MARRIAGE OF Brenda K. TONNESSEN, n/k/a Brenda K.
Taylor, Appellee,
and
Peter T. Tonnessen, Appellant. No. 95CA1467. Colorado Court of Appeals,
Div. II. Sept. 5, 1996.
Rehearing Denied Nov. 14, 1996.
Certiorari Denied May 19, 1997.

Page 864

Brenda K. Taylor, pro se.

Peter T. Tonnessen, pro se.

Opinion by Judge NEY.

In this consolidated dissolution of marriage and paternity action, Peter T. Tonnessen (husband) appeals from the order, certified as final pursuant to C.R.C.P. 54(b), relinquishing custody jurisdiction to the state of Arizona. We affirm.

The relevant facts are undisputed. In November 1993, Brenda Kay Tonnessen (wife) filed a dissolution of marriage action in Colorado, indicating that no children had been born of the marriage and that she was not pregnant. Thereafter, the parties attempted to reconcile; however, wife left the marital home on February 9, 1994, and moved to Arizona, where she continues to reside.

On September 2, 1994, twin daughters were born to wife, and blood tests established that husband was the father of one of the twins and not the father of the other. Husband had amended his response to the dissolution when he learned of the pregnancy in March 1994. Husband filed a paternity action in Colorado in February 1995 and,

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later, the two Colorado actions were consolidated.

A temporary orders hearing was held over four days in May 1995, and although a written order was not entered, the bench order shows that wife was awarded temporary custody, husband was awarded certain visitation rights, and a custody evaluation was to be performed in preparation for permanent orders.

On June 20, 1995, wife initiated an action in Arizona under the Uniform Child Custody Jurisdiction Act (UCCJA) requesting that the Arizona court communicate with the Colorado court and assume jurisdiction over the issues of child custody and visitation because it was the home state of the children. Husband was served three days later and a copy of the pleading was filed in this state.

On July 3, 1995, wife filed in Colorado a motion to bifurcate the dissolution proceedings. She requested that the court enter a decree of dissolution and resolve the financial issues in Colorado and dismiss the custody proceedings to allow custody to be determined in Arizona. After communicating with the Arizona court, the trial court acquiesced to the state of Arizona assuming jurisdiction over the custody determination and deferred the determination of child support in this state until that determination was made. That order is the subject of this appeal.

A decree of dissolution was later entered by the Colorado court, reserving for future hearing certain issues not including custody.

I.

Husband first contends that the trial court erred in determining that it did not have jurisdiction under the UCCJA. We disagree.

Section 14-13-104, C.R.S. (1987 Repl.Vol. 6B) sets forth the jurisdictional bases for determination of custody cases under the UCCJA, § 14-13-101, et seq., C.R.S. (1987 Repl.Vol. 6B). The UCCJA vests jurisdiction in the child's home state or, alternatively, in the state best situated to assess the child's best interests. Nistico v. District Court, 791 P.2d 1128 (Colo.1990).

Section 14-13-103(5), C.R.S. (1987 Repl.Vol. 6B) defines home state "in the case of a child less than six months old" as "the state in which the child lived from birth with any of the persons mentioned."

Here, the trial court found that Arizona is the home state of the children, that Colorado has never been their home state and that the children never resided in this state. It concluded that, pursuant to the UCCJA adopted by both Arizona and Colorado, Arizona should exercise its home state jurisdiction. This determination is supported...