McNabb v. McNabb, 88,086

Decision Date04 April 2003
Docket NumberNo. 88,086,88,086
Citation31 Kan.App.2d 398,65 P.3d 1068
PartiesJOSHUA STEPHEN McNABB, By and Through his Mother and Next Friend, SHARON FOSHEE, Appellee, v. TIMOTHY McNABB, Appellant.
CourtKansas Court of Appeals

David J. Morgan and T. Michael Wilson, of Stinson, Lasswell & Wilson, L.C., of Wichita, for appellant.

Richard K. Thompson and Rebecca Hesse, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.

Before BEIER, P.J., PIERRON, J., and PADDOCK, S.J.

BEIER, J.:

Timothy McNabb appeals the district court's finding that it had subject matter jurisdiction to determine child custody and visitation under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 38-1336 et seq., and personal jurisdiction to determine child support under the Uniform Interstate Family Support Act (UIFSA), K.S.A. 23-9, 101 et seq., despite the existence of an earlier proceeding on those subjects in Virginia.

The procedural history of this case winds back and forth between Virginia and Kansas. A review of that history is necessary to an understanding of our holdings.

McNabb, Sharon Foshee, and their child resided together in Virginia until December 1999, when Foshee and the child moved to Kansas. In April 2000, McNabb filed a petition for determination of custody and visitation in Virginia.

In July 2000, Foshee filed a petition for a declaration of paternity and an order of support in Kansas, which stated that McNabb might have filed a proceeding in Virginia but that Foshee had not yet been served. The Kansas court entered a temporary order regarding custody, visitation, and support.

On August 14, 2000, Foshee filed a motion for determination of jurisdiction in the Kansas proceeding. On August 23, 2000, a hearing was held on McNabb's petition in Virginia, and the next day Kansas Judge David Dewey and Virginia Judge Joseph Ellis had an unrecorded telephone discussion regarding jurisdiction.

On August 28, 2000, McNabb filed a motion to dismiss the Kansas case for lack personal jurisdiction under the Kansas long-arm statute and UIFSA and subject matter jurisdiction under UCCJEA. Foshee filed a response, arguing that (1) Kansas had personal jurisdiction under UIFSA, specifically K.S.A. 23-9,201(e), because McNabb caused Foshee and the child to move to Kansas, and (2) Kansas had subject matter jurisdiction under UCCJEA because the Virginia court had stayed its proceedings and deferred jurisdiction to Kansas.

On August 30, 2000, the Virginia court entered a written order finding jurisdiction appropriate in Virginia under UCCJA (now UCCJEA). However, it relied on the statute's provision covering simultaneous proceedings, the fact that Foshee and the child had resided in Kansas for 6 months, and the earlier unrecorded discussion of jurisdiction with Judge Dewey to find that it could defer to Kansas as the more convenient forum. The Virginia judge entered a temporary order regarding custody and visitation but stayed the order "pending acceptance of jurisdiction by the State of Kansas."

On September 13, 2000, Judge Dewey held a telephone hearing on jurisdiction with Judge Ellis of Virginia and all parties participating. Judge Dewey explained that the hearing was necessary because the prior conversation between the two judges had not been recorded and counsel had not been present. He stated that, having read the August 30 order, he saw only one remaining issue: Whether Kansas could assume personal jurisdiction to decide child support under UIFSA because McNabb's abusive behavior drove Foshee and the child to Kansas.

At that point, Judge Ellis said he had been unaware of any abuse allegations at the time he entered the August 30 order deferring jurisdiction to Kansas. He emphasized that he might reconsider his ruling because Virginia would be the best forum for litigation of any abuse allegations. Judge Dewey stated that he would conduct a separate hearing on personal jurisdiction under UIFSA; and, if he were to conclude that he did not have jurisdiction over McNabb under that statute, he would send the entire matter back to Virginia. Judge Ellis agreed to take the case if Judge Dewey reached such a decision.

Two days later, apparently unbeknownst to Judge Dewey and Foshee and her counsel, Judge Ellis of Virginia entered an order vacating that portion of his August 30 decision deferring UCCJA (now UCCJEA) jurisdiction to Kansas. However, the visitation order remained stayed pending further communication with the Kansas court.

On October 6, 2000, Judge Dewey held a hearing in Kansas on whether there was personal jurisdiction over McNabb pursuant to K.S.A. 23-9,201(e) to enable decision on the UIFSA support issue. Foshee testified that McNabb drank excessively and that she feared for her own and her child's safety. She said McNabb had abused her physically on one occasion and had dropped the child on a table one time when McNabb was drinking months before she and child moved to Kansas. McNabb never told Foshee to move to Kansas.

Judge Dewey ruled the evidence was insufficient to establish that Foshee had moved to Kansas because of the acts or directives of McNabb. Thus the court held there was no personal jurisdiction over McNabb and the entire matter should be sent back to Virginia. Foshee's counsel objected that this ruling went beyond the purpose of the hearing, i.e., that it included the custody and visitation issues under UCCJEA, but Judge Dewey initially stood firm.

On December 5, 2000, Foshee filed a motion to alter or amend the decision of the Kansas court. She relied on Franklin v. Com., Dept. of Social Serv., 27 Va. App. 136, 144-47, 497 S.E.2d 881 (1998). In response, McNabb urged the court to follow Windsor v. Windsor, 45 Mass. App. 650, 655-56, 700 N.E.2d 838 (1998), and uphold its previous decision sending the entire case back to Virginia. No transcript of the hearing on this motion is contained in the record on appeal. On January 29, 2001, the court simply reversed its earlier decision, filing a journal entry finding Kansas had personal jurisdiction over McNabb under UIFSA.

Foshee then filed a motion to dismiss the Virginia case. In an order dated April 20, 2001, the Virginia court carefully differentiated between what the Kansas court had dealt with under UIFSA and what it had no power to deal with under UCCJA (now UCCJEA):

"Therefore, since jurisdiction over the custody matter was retained by this Court, and since the jurisdiction of the Commonwealth of Virginia is both original and primary pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), the Mother's Motion to Dismiss is DENIED. Clearly, a petition was `pending' in Virginia at the time of the initiation of the Kansas proceedings by the Mother. Clearly, Virginia was the `home state' of the child at the time of the filing here. Further, this Court complied fully with the notice mandates of Section 20-129 of the Code of Virginia and again, in accordance with statute, initially deferred to Kansas which deferral was vacated by Order subsequent to a hearing at which counsel for all parties were present."
"... Although Kansas has determined that it has personal jurisdiction over Respondent pursuant to the Uniform Interstate Family Support Act, Virginia retains jurisdiction over custody for the above named child pursuant to the UCCJA, of which it cannot be divested absent its agreement."

The Virginia judge lifted the stay on his order granting McNabb visitation and ordered it to begin immediately.

Based on this Virginia order, McNabb then filed a motion to dismiss the Kansas proceeding on May 1, 2001. Again, the record on appeal lacks a transcript of the hearing on this motion. The journal entry that resulted simply denied it.

On August 3, 2001, Virginia issued its final order. The court found it had retained UCCJA (now UCCJEA) jurisdiction because it had, in the end, refused to defer it to Kansas. It found no evidence of abuse by McNabb toward Foshee or their child. The court awarded joint custody, granted McNabb unsupervised visitation with the child in Virginia, and awarded no child support because McNabb would be responsible for the cost of transportation associated with visitation.

On October 9, 2001, the Kansas court issued its final order, finding it had the subject matter jurisdiction necessary to decide custody and visitation under UCCJEA and the personal jurisdiction necessary to decide child support under UIFSA. The court found McNabb had serious alcohol abuse and anger problems and lacked basic parenting skills, and the child would be in danger if compelled to travel to Virginia for unsupervised visitation. The court ordered supervised visitation with the child in Kansas; ordered McNabb to complete substance abuse, anger management, and parenting skills programs; and ordered McNabb to pay child support.

McNabb now appeals the Kansas order.

Standard of Review

This court has unlimited review of jurisdictional issues and the district court's statutory interpretation. State v. Hurla, 274 Kan. 725, 56 P.3d 252 (2002) (jurisdiction); In re Marriage of Riggle, 30 Kan. App. 2d 967, 973, 52 P.3d 360 (2002) (statutory interpretation).

UCCJEA Jurisdiction to Decide Custody and Visitation

On July 1, 2000, the Kansas Legislature repealed UCCJA, K.S.A. 38-1301 et seq., and replaced it with UCCJEA, K.S.A. 38-1336 et seq. See Ward v. Ward, 272 Kan. 12, 30 P.3d 1001 (2001). Virginia followed suit in 2001 by repealing its version of UCCJA, Va. Code Ann. §§ 20-125 et seq., and replacing it with UCCJEA, Va. Code Ann. §§ 20-146.1 et seq. We apply the later statute, as adopted in Kansas and Virginia, to determine subject matter jurisdiction over the custody and visitation issues between the parties. UCCJEA does not cover child support determinations. See K.S.A. 38-1337(4); K.S.A. 38-1341; Va. Code Ann. § 20-146.12, Comment.

McNabb argues that the Kansas district court misapplied UCCJEA. He contends...

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