Pokrovskaya v. Van Genderen

• Decision Date: 17 May 2021
• Docket Number: S-20-0202
• Citation: Pokrovskaya v. Van Genderen, 487 P.3d 228 (Wyo. 2021)
• Parties: Ekaterina Nicholaevna POKROVSKAYA, a/k/a Yekaterina Pokrovskaia, Appellant (Defendant), v. Eric Van GENDEREN Sr., Appellee (Plaintiff).
• Court: Wyoming Supreme Court

487 P.3d 228

Ekaterina Nicholaevna POKROVSKAYA, a/k/a Yekaterina Pokrovskaia, Appellant (Defendant),

v.Eric Van GENDEREN Sr., Appellee (Plaintiff).

S-20-0202

Supreme Court of Wyoming.

May 17, 2021

Representing Appellant: Ekaterina Pokrovskaya, pro se.

Representing Appellee: Melissa M. Owens, Owens Law Office, PC, Jackson, Wyoming; Heather Noble, Attorney at Law, Jackson, Wyoming.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

GRAY, Justice.

[¶1] Ekaterina Nicholaevna Pokrovskaya (Mother) and Eric Van Genderen Sr. (Father) divorced in Teton County, Wyoming. The district court awarded Father custody of the parties’ minor child subject to Mother's specified visitation. Mother resided in Russia and continues to live there. Father and the minor child moved from Teton County and live in Bahrain. Mother filed a petition to modify custody and visitation. Father moved to dismiss, citing inconvenient forum. Shortly thereafter, Mother also filed a motion for an order to show cause. The district court granted Father's motion as to the modification petition and also dismissed the show cause motion, applying the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the common law doctrine of forum non conveniens. Mother appeals only the dismissal of the motion for an order to show cause. We affirm.

ISSUE

[¶2] Mother raises four issues.¹ We consolidate and rephrase these into a single dispositive issue:

Did the district court abuse its discretion when it dismissed Mother's motion for an order to show cause?

FACTS

[¶3] Mother and Father married in 1992. Their only child was born in 2008. In 2016, the parties stipulated to a divorce decree in Teton County. At the time of the divorce, Mother lived in Russia, and Father lived in Teton County with the child. Father received custody of the child subject to Mother's visitation of ten days each month. Father and the child moved to Russia in 2018, spent the summer of 2019 in Morocco, and then moved to Bahrain, where they currently reside. Mother remains in Russia.

[¶4] In November 2019, Mother filed a modification petition in Teton County on the grounds that Father had frustrated her visitation rights and otherwise alienated the child from her. Father moved to dismiss the modification petition, arguing that Wyoming was no longer a convenient forum. In February 2020, Father filed a parallel custody proceeding in Bahrain. The Bahrain court stayed the proceeding awaiting a decision from the district court in Teton County on whether or not it would decline jurisdiction. In April 2020, Mother filed a show cause motion, asking that Father be required to appear in court and explain why he should not be held in contempt of court. This motion also claimed frustration of her visitation and alienation of the child, as raised in her petition to modify.

[¶5] After supplemental briefing and an evidentiary hearing, the district court found it was an inconvenient forum. It dismissed the modification petition and the show cause motion.²

[¶6] Mother appeals, pro se, challenging the dismissal of the show cause motion.

STANDARD OF REVIEW

[¶7] In child custody proceedings, "the determination of whether to exercise jurisdiction or to defer to the courts of another state is reviewed for an abuse of discretion." Symington v. Symington , 2007 WY 154, ¶ 7, 167 P.3d 658, 659 (Wyo. 2007) (quoting Steele v. Neeman , 6 P.3d 649, 653 (Wyo. 2000) ); Saunders v. Saunders , 2019 WY 82, ¶ 10, 445 P.3d 991, 996 (Wyo. 2019) ; Ritter v. Ritter , 989 P.2d 109, 111 (Wyo. 1999). Judicial discretion is sound judgment, based on objective criteria, and exercised with regard to what is right in the circumstances. Saunders , ¶ 10, 445 P.3d at 996 (quoting Burnham v. Coffinberry , 2003 WY 109, ¶ 5, 76 P.3d 296, 298 (Wyo. 2003) ). "If the record includes sufficient evidence to support the district court's exercise of discretion, we will defer to that court and affirm its decision" on inconvenient forum. Symington , ¶ 7, 167 P.3d at 659.

DISCUSSION

[¶8] Generally, courts have continuing jurisdiction over child custody and visitation cases. The UCCJEA and the doctrine of forum non conveniens allow courts to decline continuing jurisdiction under certain circumstances.

A. Forum Non Conveniens and the UCCJEA

[¶9] Forum non conveniens is a common law doctrine that allows a court with jurisdiction to dismiss a case because the parties and justice would be better served if the case were brought elsewhere. 20 Am. Jur. 2d Courts § 109 (2015) ; Saunders , ¶ 21, 445 P.3d at 998. The doctrine is discretionary and provides that even though a court has jurisdiction, it may decline to entertain the suit if it finds that it is an inconvenient forum, and a more appropriate forum is available. Saunders , ¶ 21, 445 P.3d at 998.

[¶10] The UCCJEA, adopted by Wyoming in 2005 and codified at Wyo. Stat. Ann. §§ 20-5-201 through -502, is a jurisdictional statute governing child custody disputes. In re NC , 2013 WY 2, ¶ 25, 294 P.3d 866, 873 (Wyo. 2013) ; Wyo. Stat. Ann. § 20-5-201.³ It codifies both the common law doctrine of forum non conveniens as it relates to child custody and the court's continuing subject matter jurisdiction to enforce or modify its original decrees. Wyo. Stat. Ann. §§ 20-5-307, 20-2-203(a) (LexisNexis 2019).

[¶11] The UCCJEA permits the court to decline jurisdiction if the forum is inconvenient and another forum is more appropriate. Wyo. Stat. Ann. § 20-5-307(a). Before declining jurisdiction, a court must allow the parties to submit information on which forum might be the more convenient, and it must consider all relevant factors identified in Wyo. Stat. Ann. § 20-5-307(b). The statutory factors are:

(i) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(ii) The length of time the child has resided outside this state;

(iii) The distance between the court in this state and the court in the state that would assume jurisdiction;

(iv) The relative financial circumstances of the parties;

(v) Any agreement of the parties as to which state should assume jurisdiction;

(vi) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(vii) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(viii) The familiarity of the court of each state with the facts and issues in the pending litigation.

Wyo. Stat. Ann. § 20-5-307(b)(i)–(viii) (LexisNexis 2019). This list is not comprehensive, and other relevant factors not contained in the statute also must be considered. Symington , ¶ 8, 167 P.3d at 660.

[¶12] Mother argues that an enforcement proceeding brought through a show cause motion is not subject to the UCCJEA. Courts are divided on whether the UCCJEA applies to enforcement actions.⁴ See, e.g. , In re Marriage of Medill , 179 Or.App. 630, 40 P.3d 1087, 1096 (Or. Ct. App. 2002) (finding that "a child custody determination[, within the meaning of the UCCJEA,] does not include an order enforcing an existing custody determination"); Ex parte Stouffer , 214 So. 3d 1192, 1197 (Ala. Civ. App. 2016) (finding Alabama's version of UCCJEA did not apply to enforcement actions but only to modification petitions); In re Marriage of Pritchett , 80 P.3d 918 (Colo. Ct. App. 2003) (finding the UCCJEA did not apply to contempt motion where court had already declined to exercise jurisdiction in favor of another forum); but see Steckler v. Steckler , 921 So. 2d 740 (Fla. Dist. Ct. App. 2006) (applying UCCJEA inconvenient forum test to motion to enforce visitation and seeking sanctions against mother); Watson v. Watson , 272 Neb. 647, 724 N.W.2d 24 (Neb. 2006) (applying UCCJEA inconvenient forum factors to Father's contempt motion and declining jurisdiction); Wilson v. Beckett , 95 Ark. App. 300, 236 S.W.3d 527, 531–32 (Ark. Ct. App. 2006) (applying inconvenient forum factors to Father's contempt motion).

[¶13] Wyoming applies the UCCJEA to enforcement proceedings. In Prickett v. Prickett , 2007 WY 153, 167 P.3d 661 (Wyo. 2007), the parties divorced in Wyoming. Following the divorce, Mother, who was awarded custody, moved with the children to Nebraska. Id. ¶ 3, 167 P.3d at 662. Father remained in Wyoming. The parties stipulated to the registration of the Wyoming divorce decree in Nebraska, and the Nebraska court modified the visitation schedule.⁵ Id. ¶¶ 4–5, 167 P.3d at 662–63. Father subsequently moved to enforce child visitation in Wyoming. Id. Mother moved to dismiss, arguing the district court lacked subject matter jurisdiction and that it was an inconvenient forum under the UCCJEA. Id. The district court applied the UCCJEA and determined it retained exclusive, continuing jurisdiction to enforce its order. Id. ¶¶ 8, 14, 167 P.3d at 663, 665. On appeal, we found that the UCCJEA was applicable and affirmed. Id. ¶¶ 4, 13–17, 167 P.3d at 662–65.

[¶14] Here, the district court applied both the statute and the common law in arriving at its decision to decline jurisdiction. Because the issue can be resolved under the UCCJEA, we do not address the common law doctrine.

B. The District Court Did Not Abuse Its Discretion When It Declined to Exercise Jurisdiction

[¶15] The district court requested supplemental briefing on the issue of inconvenient forum and held an evidentiary hearing on the issue. Wyo. Stat. Ann. § 20-5-307(a). As an initial matter, we note the parties’ designated record contains pleadings and exhibits, but the hearing was not reported and neither party submitted a statement of the evidence or proceedings as permitted by W.R.A.P. 2.05 and 3.03.⁶ "We have cautioned that ‘[t]he appellant bears the responsibility of bringing forth a sufficient record for the Court's review. When [s]he does not, we assume that the district court's orders and rulings were correct.’ " Rush v. Golkowski , 2021 WY 27, ¶ 16, 480 P.3d 1174, 1178 (Wy...