Mcdermott v. McDermott

• Citation: 307 P.3d 717,175 Wash.App. 467
• Decision Date: 15 July 2013
• Docket Number: No. 69107–4–I.,69107–4–I.
• Parties: In the Matter of the MARRIAGE OF Wendy A. McDERMOTT, Appellant, and Justin J. McDermott, Respondent.
• Court: Court of Appeals of Washington

175 Wash.App. 467

307 P.3d 717

In the Matter of the MARRIAGE OF Wendy A. McDERMOTT, Appellant,

and

Justin J. McDermott, Respondent.

No. 69107–4–I.

Court of Appeals of Washington,

Division 1.

July 15, 2013.

Patricia S. Novotny, Attorney at Law, Sharon L. Friedrich, Carol Bailey & Associates, PLLC, Seattle, WA, for Appellant.

Jane E. Dale, Lehmbecker Law, Bellevue, WA, Kenneth Wendell Masters, Shelby R. Frost Lemmel Masters Law Group PLLC, Bainbridge Island, WA, for Respondent.

DWYER, J.

[175 Wash.App. 474]¶ 1 The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), chapter 26.27 RCW, stipulates that Washington courts may properly exercise jurisdiction to enter a child custody determination when Washington is the child's “home state.” When Washington is not the child's “home state,” our courts may nevertheless exercise jurisdiction where the courts of the child's “home state,” if one exists, decline to exercise jurisdiction and certain other conditions are met. A child's “home state” is “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” RCW 26.27.021(7). Where a child is temporarily absent from his or her home state, the time of absence is part of the period measured in order to determine the child's home state. The parents' intent is relevant in determining whether a period of absence was intended to be temporary or permanent.

¶ 2 Here, Wendy McDermott appeals from a superior court judge's revision of a commissioner's order, in which the superior court judge determined that Kansas is Wendy's child's “home state.” ¹ In so determining, the judge concluded that the child's time in Costa Rica, where he was born and remained for the first six weeks of his life, was a “temporary absence” from Kansas, the state in which the child's parents each lived both before and after the birth. Based upon its unchallenged factual findings, which were based on evidence that both parents intended to return with their newborn child to Kansas soon after the birth, the judge's determination was correct. Because the courts of Kansas have not declined to exercise jurisdiction, the courts of Washington should not make custody determinations involving the child. We affirm the superior court judge's order to this effect.

I

¶ 3 Wendy and Justin McDermott were married in Miami, Oklahoma, on March 17, 2011. Their only child, H.M., was born on June 15, 2011. H.M. was born in Costa Rica, where Wendy had previously worked, because his parents wanted him to enjoy dual citizenship. At the time of H.M.'s birth, both Wendy and Justin were residents of Kansas and intended to return to Kansas with H.M. The family returned to Kansas approximately six weeks after H.M.'s birth, on or about July 28, 2011. H.M. remained in Kansas with his parents until January 15, 2012, when Wendy and H.M. moved to Washington. Thus, prior to the move to Washington, H.M. was physically present in Kansas for five-and-one-half months.

¶ 4 On March 29, 2012, two-and-one-half months after Wendy and H.M. moved to Washington, Wendy filed a petition for dissolution of marriage in the Snohomish County Superior Court. H.M. was nine months old at the time. Wendy requested that the court grant a domestic violence protection order, the petition for which was to be separately filed. She asserted that the superior court should exercise jurisdiction over H.M. both because H.M. had no other home state and Wendy had significant connections with Washington and, alternatively, because it was necessary to protect H.M. or Wendy from abuse and, thus, an exercise of temporary emergency jurisdiction was warranted. Justin was served with the dissolution petition on April 17, 2012.

¶ 5 On the same day that Wendy filed a petition for dissolution in the superior court, March 29, 2012, Justin filed for divorce in Kansas. The Kansas court thereafter entered a temporary support order and a temporary custody order on April 2, 2012, before Justin was served with Wendy's dissolution petition. Wendy was not served with the Kansas pleadings and orders until June 28, 2012.

¶ 6 In Washington, on May 4, 2012, Wendy filed a petition for entry of a domestic violence protection order and a proposed temporary parenting plan. Justin denied that the alleged incidents of domestic violence had occurred and asserted that there was no basis for entry of a protection order. On May 22, 2012, he filed a proposed temporary parenting plan with the superior court.

¶ 7 On May 30, 2012, a superior court commissioner entered an order denying Wendy's petition for a domestic violence protection order and postponing a decision on issues regarding a parenting plan for H.M. The commissioner reserved ruling on issues regarding jurisdiction pursuant to the UCCJEA but ordered that Washington would “maintain jurisdiction in the meantime.”

¶ 8 On June 5, 2012, Justin filed a motion to dismiss the dissolution action for lack of jurisdiction. He asserted that, pursuant to the UCCJEA, the court did not have jurisdiction over H.M. both because Washington was not H.M.'s “home state” and because Wendy and H.M. did not have a “significant connection” to Washington and there was not “substantial evidence” concerning H.M.'s care and relationships available in Washington. He also asserted that, even if Washington had jurisdiction pursuant to the UCCJEA, it should decline to exercise jurisdiction because Kansas was a more convenient forum. Wendy responded that, pursuant to RCW 26.27.201(1)(b),² the Washington superior court had jurisdiction based on a “significant connection” with the state and the existence of “substantial evidence” within the state. She additionally asserted that, pursuant to the factors set forth in the UCCJEA, Kansas was not a more convenient forum.

¶ 9 The next day, Wendy filed a motion for revision of the commissioner's May 30 order, asserting that the commissioner had erred by denying her request for a domestic violence order of protection. On June 14, 2012, a superior court judge granted Wendy's motion for revision and entered an order of protection. The order of protection excluded Justin from Wendy's residence and H.M.'s day care center and prohibited him from coming within 500 feet of either location. However, it did not restrain Justin from contacting or visiting H.M.; in fact, the order stated that visitation would be determined pursuant to temporary orders entered by the court. The court stated that it was exercising both temporary emergency jurisdiction and jurisdiction due to H.M.'s lack of a home state and his presence in Washington.

¶ 10 On June 21, 2012, the superior court commissioner entered an order regarding jurisdiction in response to Justin's motion to dismiss. The commissioner ruled that H.M. had no home state because he had not lived in any state for six consecutive months and that the Washington court could not properly exercise temporary emergency jurisdiction. Referencing RCW 26.27.201(1)(b), the order stated that the commissioner relied upon “significant contacts” and “substantial evidence” in determining jurisdiction. The commissioner determined that, due to the greater amount of time that H.M. had lived in Kansas, Washington “should decline jurisdiction to Kansas” because “there are likely to be more witnesses to the child's upbringing” in Kansas than in Washington. The commissioner ordered that H.M. should remain in Wendy's custody until a Kansas court order was entered.

¶ 11 The next day, Wendy moved for revision of the commissioner's June 21 order. On July 6, 2012, Justin filed in the superior court, for the first time, copies of the Kansas pleadings, including his petition for divorce and the Kansas court's temporary support order and temporary custody order entered on April 2, 2012.

¶ 12 On July 9, 2012, a superior court judge entered an order on Wendy's motion to revise the commissioner's June 21 order.³ The court determined that, pursuant to the UCCJEA, Kansas was H.M.'s home state “in that he resided in Kansas for at least six consecutive months in that his absence from Kansas from his date of birth on June 15, 2011 was a temporary absence as to both [H.M.] and his parents.” Thus, the court concluded that “Washington does not have jurisdiction unless Kansas declines to exercise its jurisdiction on the ground that Washington is the more appropriate forum.” The judge ordered:

1. The Commissioner's order is revised in so far as it found that there was no home state. The court finds that Kansas was the child's home state on the date of commencement of this proceeding.

2. The court denies the motion to revise in so far as it declined to exercise jurisdiction in favor of Kansas.

3. The court denies the motion to revise with regard to all other provisions ordered by the commissioner.

¶ 13 Wendy appeals from the superior court's July 9 order.

II

¶ 14 As an initial matter, we note that both parties discuss the UCCJEA's use of the term “jurisdiction” as though it were a matter of subject matter jurisdiction. As the parties frame it, either the Washington courts have subject matter jurisdiction over the dispute or the Kansas courts have subject matter jurisdiction over the dispute. To the contrary, this dispute involves a statute (the UCCJEA) that restricts, in some instances, a court's exercise of its subject matter jurisdiction. The UCCJEA, as adopted by the Washington legislature, does not—and cannot—divest a superior court of subject matter jurisdiction.

¶ 15 We review de novo questions of a court's subject matter jurisdiction. Cole v. Harveyland, LLC, 163 Wash.App. 199, 205, 258 P.3d 70 (2011). A party may raise a question of subject matter jurisdiction for the first time at any point in a proceeding, even on appeal. Cole, 163 Wash.App. at 205–06, 258 P.3d 70. Because the absence of subject matter jurisdiction is a defense that can never be...