Paisley v. Kratzer

• Decision Date: 11 April 2016
• Docket Number: A15-1115
• Parties: Melissa Dawn Paisley, petitioner, Respondent, v. Clark Davis Kratzer, Appellant
• Court: Minnesota Court of Appeals

Melissa Dawn Paisley, petitioner, Respondent, v. Clark Davis Kratzer, Appellant

A15-1115

STATE OF MINNESOTA IN COURT OF APPEALS

April 11, 2016

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

Affirmed

Worke, Judge

Dissenting, Johnson, Judge

St. Louis County District Court

File No. 69DU-FA-15-420

Melissa Dawn Paisley, Duluth, Minnesota (pro se respondent)

Benjamin Kaasa, Duluth, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and Johnson, Judge.

UNPUBLISHED OPINION

WORKE, Judge

Appellant-father challenges the district court's determination that it could modify the child-custody order of a Montana court. We affirm.

FACTS

Appellant Clark Davis Kratzer (father) and respondent Melissa Dawn Paisley (mother) are parents of a minor child. In December 2009, when the family lived in Montana, mother filed a Petition for Establishment of Permanent Parenting Plan in a Montana court. In March 2010, the Montana court filed an order adopting an "interim parenting plan." In December 2010, mother and the child moved to Minnesota. After two additional interim orders, the Montana court filed an order in September 2011 finding that, despite both parties' requests for "residential custody," it was not "in the best interests of the child to fix residential custody at this time." The order stated that it was in the best interests of the child to be "cared for by both parents in alternating four-month periods until the child is of age to be enrolled in pre-school or school, at which time the court should hear and decide a final parenting plan." The Montana court knew that mother resided in Minnesota when it filed this order. Father exercised his four-month period of parenting time only once, starting in February 2012.

In May 2015, mother moved the Minnesota district court for a new parenting schedule, and sole legal and sole physical custody of the child. Father argued that mother's motion should be rejected because the Montana court retained "continuing, exclusive jurisdiction" over questions related to child custody. At a hearing on the parties' requests for relief, the Minnesota district court judge stated that it had spoken with the Montana judge who issued the orders and "the judge in Montana was very supportive of the Minnesota district court taking jurisdiction of th[e] matter."

Following the hearing, the Minnesota district court filed an order ruling that it could address custody and parenting-time questions, and set an evidentiary hearing. The order states that "[t]he Montana Judge believes that jurisdiction in Minnesota is appropriate and would be the more convenient forum given the facts of this case." The order also states that Minnesota is the appropriate forum to address custody and parenting time. A memorandum accompanying the order states:

In 2011, the Montana District Court decided not to make a custody determination regarding the child because the parents were living in different states and because both parents had cared for the child. For the past four years, there has been no determination of custody for the child. After speaking with the Montana District Court Judge via telephone, the Montana District Court Judge agreed that Minnesota was the most appropriate and convenient forum for this matter.

Father appeals the Minnesota district court's decision that it has "jurisdiction" to modify the order of the Montana court addressing custody and parenting time.

DECISION

Both Minnesota and Montana have adopted versions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Minn. Stat. §§ 518D.101-.317 (2014); Mont. Code Ann. §§ 40-7-101-317 (2014). This court has stated that "[a]pplication of the . . . []UCCJEA[] involves questions of subject matter jurisdiction." Schroeder v. Schroeder, 658 N.W.2d 909, 911 (Minn. App. 2003); see Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002) (noting that applying the UCCJEA's predecessor statute involved questions of subject matter jurisdiction). But see McCormick v. Robertson, 28 N.E.3d 795 (Ill. 2015) (ruling that because subject matter jurisdiction to adjudicate equitable matters -and therefore custody matters - is conferred on Illinois circuit court by the Illinois Constitution, the Illinois Legislature could not deprive the circuit courts of that constitutionally conferred jurisdiction by passing a version of the UCCJEA purporting to condition the existence of the circuit court's "jurisdiction" to address custody-related questions on satisfaction of extraconstitutional conditions recited in the Illinois version of the UCCJEA). "A district court's determination of subject matter jurisdiction is a question of law, which this court reviews de novo." Schroeder, 658 N.W.2d at 911.

The UCCJEA states that a court making a custody determination consistent with the relevant provisions of the UCCJEA "has exclusive, continuing jurisdiction over the determination until [certain other conditions are satisfied.]" Minn. Stat. § 518D.202(a); Mont. Code. Ann. §§ 40-7-202(1). Here, it is undisputed that the Montana court's custody rulings satisfied the UCCJEA provisions granting exclusive, continuing jurisdiction.

With an exception not applicable here, a Minnesota district court

may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under section 518D.201, paragraph (a), clause (1) or (2), and:

(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 518D.202 or that a court of this State would be a more convenient forum under section 518D.207[.]

Minn. Stat. § 518D.203. The official comment to this section of the UCCJEA states:

This section . . . is addressed to the court that is confronted with a proceeding to modify a custody determination of another State. It prohibits a court from modifying a custody determination made consistently with this Act by a court in another State unless a court of that State determines that it no longer has exclusive, continuing jurisdiction under [UCCJEA]Section 202 or that this State would be a more convenient forum under Section 207. The modification State is not authorized to determine that the original decree State has lost its jurisdiction. . . . The court of the modification State must have jurisdiction under the standards of Section 201.

Minn. Stat. Ann. § 518D.203 advisory comm. cmt. (West 2014) (emphasis added).

Father asserts that section 518D.203 and its comment do not apply here because Montana has not lost the exclusive, continuing "jurisdiction" conferred on it by section 202. See Minn. Stat. § 518D.102(d) (noting that a "[c]hild custody determination" includes a temporary physical custody order, like the ones issued by the Montana court). But, consistent with its official comment, section 518D.203 allows a Minnesota district court to modify a Montana custody determination if the Minnesota district court would have had "jurisdiction" to make an initial custody determination under section 518D.201¹, and a Montana court determines that Minnesota is a more convenient forum to litigate custody matters.

Initial custody determination

A Minnesota district court has "jurisdiction" to make an initial child custody determination if at least one of the conditions listed in section 518D.201 exists. Minn. Stat.§ 518D.201(a)(1)-(4). Here, the relevant condition in section 518D.201 is that Minnesota "is the home state of the child on the date of the commencement of the proceeding[.]" Id. A child's "[h]ome state" is "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding."² Minn. Stat. § 518D.102(h).

Here, Minnesota is the home state of the child because the child has lived in Minnesota with mother since December 2010, and the child's only extended absence from Minnesota was in 2012 when father exercised his four-month parenting period. Thus, had mother's motion to modify custody been a motion for an initial custody determination, the Minnesota district court would have had "jurisdiction" to make that initial determination.

Convenient forum

Regarding whether Minnesota is a convenient forum for litigating custody related matters, the Minnesota district court's order states that the Montana court "believes that jurisdiction in Minnesota is appropriate and would be the more convenient forum given the facts of this case." This statement is more fully developed in the memorandum accompanying the order, and is consistent with the Minnesota district court's statements from the bench at the hearing regarding its communication with the Montanta judge. Father argues that the order, memorandum, and statements from the bench do not satisfy the UCCJEA's requirement for a "record" of the communications between the courts.

The UCCJEA addresses communication between courts, stating:

(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.

(b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

. . . .

(d) [With an exception not relevant here], a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.

(e) For the purposes of this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

Minn. Stat. § 518D.110. The official comment to this section notes that a

record includes notes or transcripts of a court reporter who listened to a conference call between the courts,

...