MATTER OF MARRIAGE OF MEDILL

• Decision Date: 20 February 2002
• Citation: 40 P.3d 1087,179 Or. App. 630
• Parties: In the Matter of the MARRIAGE OF David MEDILL, Appellant, and Elvira Medill, Respondent.
• Court: Oregon Court of Appeals

40 P.3d 1087

179 Or. App. 630

In the Matter of the MARRIAGE OF David MEDILL, Appellant, and

Elvira Medill, Respondent.

DR 98-04-163; A112620

Court of Appeals of Oregon, En Banc.

Argued and Submitted October 8, 2001.

Resubmitted December 5, 2001.

Decided February 20, 2002.

John S. Marandas, Portland, argued the cause and filed the brief for appellant.

No appearance for respondent.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, BREWER and SCHUMAN, Judges.

Resubmitted En Banc December 5, 2001.

BREWER, J.

Father appeals from the trial court's dismissal, for lack of subject matter jurisdiction, of father's motions to modify the child custody and parenting plan provisions of a dissolution judgment; to terminate, modify, or suspend his child support obligation; and to hold mother in contempt of court for violating the parenting plan. Father also assigns error to the entry of an order denying his motion to set aside the order of dismissal.¹ Father contends that the court had subject-matter jurisdiction over the initial child custody determination under the Uniform Child Custody Jurisdiction Act (UCCJA), former ORS 109.700 to ORS 109.930, repealed by Or. Laws 1999, ch. 649, § 55, and that it had authority to modify that determination under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), ORS 109.701 to ORS 109.834 (1999).² In addition, father contends that the court had jurisdiction to terminate, modify, or suspend his child support obligation, and to enforce the parenting plan by contempt proceedings. We reverse and remand in part; otherwise, we affirm.

While serving in the United States military, father met and married mother in Denmark in 1985. The parties lived in Germany after their marriage until 1997. Their two children were born in Germany in 1986 and 1988, respectively. Father moved to Oregon in the fall of 1997, expecting that mother and the children would move to Oregon. Mother later informed father that she and the children would remain in Germany. The parties agreed that father would file a dissolution action in Oregon. In May 1998, the Clackamas County Circuit Court entered, with mother's consent, a dissolution judgment that included a parenting plan. The parenting plan called for joint custody of the children, with mother retaining physical custody, and it awarded father parenting time with the children during any school vacation period lasting at least two weeks.

In July 1998, the children traveled to Oregon to visit father. Based on information he obtained from the children during the visit, father obtained a temporary protective order that prevented the children from returning to Germany as scheduled. Mother came to Oregon to contest the protective order. After a hearing, the trial court vacated the order in September 1998, and the children returned to Germany with mother. The vacating order specified the timing and frequency of telephonic access between father and the children, reaffirmed father's rights to parenting time with the children, and provided that the court should be notified of any further parenting time violations by mother.

In December 1998, father filed a contempt proceeding against mother, alleging that she had repeatedly violated the parenting plan. In April 1999, the trial court entered a judgment finding mother in contempt, sentencing her to one year court probation, and modifying the parenting plan once more to clarify the terms of father's parenting time. Later in 1999, father sent a series of affidavits to the court, reporting additional alleged violations of the parenting plan by mother. In October 1999, mother initiated custody proceedings in a German family court, asserting that father had engaged in a bad-faith campaign to undermine her custody of the children throughout the previous court proceedings. In her pleadings, mother asserted—for the first time in any legal proceeding—that the German court had exclusive jurisdiction over custody and parenting plan issues regarding the children.

In December 1999, father initiated the current modification proceeding in the trial court. His third amended motion and order to show cause sought a change of custody or, alternatively, modification of the parenting plan, as well as modification or termination of his child support obligation, suspension of child support based on mother's interference with the parenting plan, a judgment of contempt based on mother's alleged violations of the parenting plan, and various sanctions for those violations. The trial court held a hearing on father's motion in August 2000. Mother did not appear. In November, the court entered an order dismissing father's motions, holding sua sponte that it lacked subject-matter jurisdiction over them. The court's written findings focused on the custody determination:

"That [mother] has at all material times been, and remains, a citizen and resident of Germany;

"That the children of the parties have always been and remain residents of Germany;

"That [mother] submitted herself to the jurisdiction of the Court for purposes of dissolving her marriage to [father], though never present within Oregon;

"That thereafter [father] withheld the children from [mother] after a summer visitation forcing [mother] to travel to Oregon from Germany to secure the return of the children;

"That [mother] participated in those proceedings in Oregon which resulted in the Court finding [mother] in contempt for violating a Temporary Order of Restraint regarding [father's] phone contact with the children, and which returned custody of the children to [mother];

"That [mother] makes credible claims in her correspondence, and that of her German attorney, which may constitute a defense to this contempt proceeding;

"That the local German Youth Office has been involved in providing counseling and other services to [mother] and the children related to what [mother] claims are [father's] ongoing efforts to undermine [mother's] relationship with the children and engineer a change of custody;

"That all of the witnesses necessary to resolve the issues presented and fashion an appropriate judicial response, except [father], are residents of Germany;

"That there were pending at the time of the hearing date herein proceedings in the Bayreuth, Germany Family Court relating to these same general issues[.]"

From those findings, the trial court concluded that Oregon was not and never had been the children's home state for purposes of either the UCCJA or the UCCJEA and that the German family court was an available forum in which to litigate the parties' ongoing dispute. The trial court also concluded that it lacked jurisdiction over the custody and parenting time issues raised by father and, therefore, lacked authority to enforce any order it might enter. On November 14, the court entered an order dismissing father's motion and order to show cause in its entirety.

Unknown to the trial court at that time, the German family court previously had entered an order declining to exercise jurisdiction over custody issues involving the parties' children. In its decision, the German court explained:

"In this connection, it is important to recognize that [mother] previously consented to the American Court's divorce decision, which also dealt with parental custody. The divorce decision's provision that [mother] would have the actual parental custody for the minor children and otherwise both parties would have joint legal custody with the caveat that [mother] has the sole right to determine the children's permanent place of residence, is a decision that could have also been reached under German law. It corresponds approximately to German law, which allows the parents joint custody and gives the mother the right to determine permanent residence. In this case, [mother] can, in accordance with [German law], exercise `actual custody.'

"In view of the previous proceeding regarding parental custody in the USA and in view of the pending custody proceeding in the Oregon Circuit Court, which can be recognized under German law, the [German court] considers a custody decision to be impermissible."

After receiving a copy of the German court's decision on November 28, father filed a motion to set aside the trial court's order of dismissal. Father argued that the German court's failure to assert jurisdiction over the children freed the Oregon court to do so. On January 8, 2001, the trial court denied the motion to set aside the dismissal. In a written order, the court explained:

"The German Court's decision to defer to the Court here based on [father's] objection to jurisdiction, its determination that the proceeding here had been initiated prior to the proceeding there, and its mistaken belief that [mother] had petitioned this Court for a modification of judgment within this proceeding cannot create jurisdiction in this Court where none exists by application of the governing statutes. The German Court's ruling was only that they should not proceed on the petition filed by [mother] over [father's] objections, not the converse."

The court determined that "Oregon never had jurisdiction to make an `initial child custody determination.'" However, the court also concluded that, if Oregon had jurisdiction to make an initial child custody determination, "Oregon would have lost that jurisdiction pursuant to ORS 109.744(1)(a) by the time of this hearing." As noted, father appeals from the trial court's dismissal of his motion and order to show cause and its denial of his motion for reconsideration of the dismissal.

We first address father's contention that the trial court erred in concluding that it lacked jurisdiction to make the initial custody determination. Father urges that the trial court had jurisdiction under ORS 107.105, which provides, in part:

"(1) Whenever the court grants a decree of marital annulment, dissolution or separation, it may further

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