Rosen v. Rosen

• Decision Date: 26 June 2008
• Docket Number: No. 33437.,33437.
• Citation: 664 S.E.2d 743
• Parties: In re the Marriage of Kathleen R. ROSEN, Appellant, v. David A. ROSEN, Appellee.
• Court: West Virginia Supreme Court

664 S.E.2d 743

In re the Marriage of Kathleen R. ROSEN, Appellant, v. David A. ROSEN, Appellee.

No. 33437.

Supreme Court of Appeals of West Virginia.

Submitted January 22, 2008.

Decided June 26, 2008.

Syllabus by the Court

1. "In reviewing a final order of a circuit judge upon review of, or a refusal to review, a final order of a family court judge, we review the findings of fact under a clearly erroneous standard, and the application of the law to facts under an abuse of discretion standard. We review questions of law de novo." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

2. "Under the clearly erroneous standard, if the findings of fact and the inferences drawn by a family master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences." Syllabus Point 3, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 386, 465 S.E.2d 841 (1995).

3. Pursuant to West Virginia Code § 48-20-102(g) (2001), "home state" means the state in which the 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

4. Although foreign states' custody decrees should be enforced and recognized by West Virginia courts if they accord with the statutory jurisdictional provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, West Virginia Code § 48-20-101, et seq., and the Parental Kidnaping Prevention Act, 28 U.S.C.A. § 1738A (2000), in child custody matters where a foreign court lacks jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, the full faith and credit doctrine will not be applied.

5. Subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, West Virginia Code § 48-20-101, et seq., cannot be conferred by consent, waiver, or estoppel.

6. The Uniform Child Custody Jurisdiction and Enforcement Act, West Virginia Code § 48-20-101, et seq., is a jurisdictional statute, and the requirements of the statute must be met for a court to have the power to adjudicate child custody disputes.

Ward D. Stone, Jr., Edward L. Harman, Jr., Spilman Thomas & Battle, PLLC, Morgantown, WV, for Appellant.

Michelle Widmer-Eby, Widmer-Eby & Associates Morgantown, WV, for Appellee.

BENJAMIN, Justice.

The instant action is before this Court upon the appeal of Kathleen Rosen from an October 24, 2006, order entered by the Circuit Court of Monongalia County denying her petition for appeal. The matter came before the circuit court upon Kathleen Rosen's appeal from an August 9, 2006, Order Retaining Jurisdiction Over Child Custody entered by the Family Court of Monongalia County. The circuit court affirmed the ruling of the family court retaining West Virginia jurisdiction over the child custody matters at issue between the parties. Herein, the Appellant alleges that the lower courts erred in retaining jurisdiction and that Ohio is the most convenient forum in which to adjudicate these issues. This Court has before it the petition for appeal, all matters of record and the briefs and arguments of counsel. For the reasons expressed below, the October 24, 2006, order of the Circuit Court of Monongalia County is affirmed.

I. FACTUAL AND PROCEDURAL HISTORY

The parties married on December 1, 1979. Four children were born of the marriage.¹ The family moved to Morgantown, West Virginia in May 1992, and resided there until December 1, 2005, at which time Kathleen Rosen [hereinafter "the Appellant"] left the marital home and moved with their minor twins to Cuyahoga County, Ohio.² Four months later, on April 6, 2006, the Appellant filed for separation in the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio, action number 06-309951 [hereinafter referred to as the "Ohio common pleas court"].³ David Rosen [hereinafter "the Appellee"] filed for divorce in the Family Court of Monongalia County, West Virginia, action number 06-D-164, on April 27, 2006.

On May 6, 2006, the Monongalia County Family Court set a hearing pursuant West Virginia Code § 48-20-107 to hear arguments from the parties regarding jurisdictional issues regarding child custody.⁴ Thereafter, the Appellee filed a Motion to Dismiss the Ohio common pleas court proceedings on May 12, 2006. Four days later, the Appellant filed a Motion to Exercise Jurisdiction Over the Child Custody Issues in the Ohio common pleas court. She then filed a Motion to Dismiss the West Virginia proceedings on May 22, 2006. The parties appeared before the Monongalia County Family Court on May 26, 2006, for a jurisdictional hearing. After hearing the arguments of the parties, the family court took the matter under advisement pending communication with the Ohio common pleas court regarding jurisdictional issues.

On June 6, 2006, the Ohio common pleas court entered an order taking jurisdiction with regard to the custody of the three minor children, finding that Ohio was a more convenient forum in which to hear the issue. Although the Ohio common pleas court was aware that proceedings were pending in West Virginia at the same time, the court found that the Appellee had waived jurisdictional rights under the Uniform Child Custody Jurisdiction and Enforcement Act [hereinafter "U.C.C.J.E.A."] by agreeing to the relocation of the Appellant and the minor children in Ohio.

On August 9, 2006, the Monongalia County Family Court entered an Order Retaining Jurisdiction Over Child Custody, concluding that the U.C.C.J.E.A. clearly established West Virginia as the "home state" for the child custody matters in this case. The order retaining jurisdiction concluded that both parties resided together with their children in Monongalia County, West Virginia from 1992, until December 1, 2005, and because both divorce actions were filed in April of 2006, West Virginia is the only home state under the U.C.C.J.E.A. The family court found that before Ohio may exercise jurisdiction over the custody of the children in this case, West Virginia must first decline jurisdiction after making a determination that West Virginia is an inconvenient forum. The court also made the specific finding that the West Virginia court is a more appropriate forum in which to decide custody in this case because information, and the witnesses thereto, reside almost exclusively in Monongalia County, West Virginia, in reference to the care-taking responsibilities performed by the respective parties prior to their separation. The court noted that it had, in good faith, attempted to have direct verbal communication with the Ohio common pleas court regarding jurisdiction to no avail, but that the two courts were able to exchange documents and notes.

On September 7, 2006, the Appellant appealed this order to the Circuit Court of Monongalia County. On October 24, 2006, the Circuit Court entered an order denying the Appellant's Petition for Appeal and affirming the order of the family court. The circuit court found that the family court's analysis of the U.C.C.J.E.A. was not an abuse of discretion, nor was its application of the facts clearly erroneous because West Virginia was the "home state" of the children. It is from that order that the Appellant now appeals.

II. STANDARD OF REVIEW

The critical issue before this Court is whether child custody jurisdiction should be exercised in Ohio or West Virginia. This Court has held that "in reviewing a final order of a circuit judge upon review of, or a refusal to review, a final order of a family court judge we review the findings of fact under a clearly erroneous standard and the application of the law to facts under an abuse of discretion standard. We review questions of law de novo." Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). Additionally, "[u]nder the clearly erroneous standard, if the findings of fact and the inferences drawn by a family master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences." Syl. Pt. 3, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 386, 465 S.E.2d 841 (1995). With these standards of review in mind, we now turn to the issues before us.

III. DISCUSSION

The Appellant presents three assignments of error. Specifically, the Appellant argues that the circuit court abused its discretion in failing to give the Ohio common pleas court order full faith and credit; that the circuit court abused its discretion in failing to find that Ohio was the most convenient forum under the U.C.C.J.E.A.; and that the circuit court abused its discretion by failing to require the family court judge to have direct communication with the Ohio common pleas court before taking jurisdiction of the case.

To the contrary, the Appellee argues that the lower court did not violate the Full Faith and Credit clause of the United States Constitution because the U.C.C.J.E.A. permitted the court to ignore the order entered by the Ohio common pleas court. Moreover, the Appellee contends that the lower court had jurisdiction pursuant to the definition of the term "home state" under the U.C.C.J.E.A. Finally, the Appellee observes that the U.C.C.J.E.A. does not make communication between the family court and the Ohio common pleas court mandatory. For the reasons discussed below, we affirm the circuit court.

A. Full Faith and Credit

The U.C.C.J.E.A. is a jurisdictional act controlling child custody disputes. Both Ohio and West Virginia have adopted virtually identical versions of the U.C.C.J.E.A.⁵ Our Legislature enacted the...