State in Interest of D.S.K.

Decision Date25 April 1990
Docket NumberNo. 890025-CA,890025-CA
Citation133 Utah Adv.Rep. 14,792 P.2d 118
PartiesSTATE of Utah, in the Interest of D.S.K. and C.R.K. persons under eighteen years of age. Bill R. KASPER, Plaintiff and Appellee, v. Sandra L. KASPER, Defendant and Appellant.
CourtUtah Court of Appeals

Don R. Petersen and Leslie W. Slaugh, Provo, for defendant and appellant.

Wayne B. Watson, Provo, for plaintiff and appellee.

Before BENCH, BILLINGS and GREENWOOD, JJ.

OPINION

GREENWOOD, Judge:

Defendant appeals an order awarding custody of her minor children to plaintiff, their natural father, following a finding of neglect. We conclude that the Utah juvenile court did not have jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), Utah Code Ann. § 78-45c-1 to -25 (1987) or the federal Parental Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C.A. § 1738A (West Supp.1989). We accordingly reverse.

FACTS

Plaintiff Bill R. Kasper (father) and defendant Sandra L. Kasper (mother) were married in California in 1967 and divorced in Florida in 1987. While the divorce proceedings were pending in Florida, mother moved with the parties' four children to Utah. On February 26, 1988, a stipulated final judgment of dissolution of marriage was entered by the Ninth Judicial Circuit Court of Orange County, Florida. Mother was given physical custody of the parties' children, and father was to "share parenting" with her and was afforded visitation.

On March 8, 1988, approximately two weeks after entry of the stipulated final judgment, father, still a resident of Florida, filed a petition in the Fourth District Court of Utah to modify the decree of divorce with respect to child custody and support. Father claimed that in the eighteen months during which mother had physical custody of the children in Utah, there had been a substantial and material change in the circumstances of the parties. According to the affidavit accompanying the petition, mother was allegedly cohabitating with a man accused of sexual abuse of a child. Father further alleged that the children were being neglected and that mother was planning to move to California with the children. At the same time, father filed four petitions in the Fourth District Juvenile Court of Utah, separately alleging that each of the minor children had been neglected. 1 Father moved for, and was granted, an ex parte temporary order restraining mother from leaving Utah.

Mother moved to dismiss the modification petition and defer jurisdiction to Florida on the basis of Utah Code Ann. § 78-45c-14 (1987). Alternatively, she moved to have the petition certified to the juvenile court and consolidated with the neglect proceedings. She also sought to quash the ex parte restraining order, claiming that she had intended to move to San Diego, California, for some time, and that the order had been served after she had completed preparations to depart. Mother moved to California despite the order, taking the children with her.

The district court granted mother's motion to certify the petition to modify custody to the juvenile court. 2 After a hearing, the juvenile court denied mother's motion to dismiss for lack of jurisdiction, finding that the children had lived in Utah more than a year and that the allegations of neglect "concerned matters that occurred" in this state.

Father then moved for an ex parte order seeking temporary custody of the minor children and alleged that mother had secreted the children in the San Diego area. Mother had, in fact, filed a petition in the California Superior Court to modify the Florida divorce judgment, alleging that father had sexually abused the children and requesting that his visitation rights be suspended. The California Superior Court declined to exercise jurisdiction, finding that Florida had continuing jurisdiction to modify the divorce decree. The Utah juvenile court granted father temporary custody of the children pending a hearing scheduled for August 25, 1988.

Just prior to the August hearing, mother filed another motion to dismiss, asserting certain circumstances had changed since the ruling on the first motion. She also asserted that she had filed a petition with the Florida court to modify the divorce decree and that the Florida court was exercising jurisdiction over the matter.

At the August 25 hearing, juvenile court Judge Hermansen informed the parties that he had communicated by telephone with Judge Kaney of the Florida court the day before, regarding jurisdiction and the allegations of abuse or neglect in Utah. Judge Hermansen stated that he and Judge Kaney did not have any disagreement regarding his assuming jurisdiction and holding a hearing. They agreed that it would be improper for the matter to go forward in two states and they would work that out by conversing again after the hearing. Judge Hermansen also told counsel that a temporary order might issue from his court and then the matter would likely be deferred to Florida. He further stated that he would not drop everything until litigation was completed in Utah and that determining whether the matter would be referred to Florida was up to him and Judge Kaney.

At the August 25, 1988 hearing, several individuals, including father, but not mother, testified. Judge Hermansen interviewed the two youngest children in chambers and ordered that temporary custody remain with father. Judge Hermansen also scheduled trial on the petitions for October 21, 1988.

On October 12, 1988, Judge Kaney sent Judge Hermansen a letter and order of transfer that he had prepared for Judge Hermansen to sign. Judge Kaney's letter stated that the order "relinquishes jurisdiction to my court." The letter also informed Judge Hermansen that Judge Kaney had held a temporary hearing, and, as a result, had left the children in the custody of father.

The order included the Utah court captions for both the custody petition and the neglect petitions. The order stated that the parties' marriage was dissolved in Florida where the issue of child custody was addressed; that at the time these proceedings were filed in Utah, husband was a resident of Orange County, Florida; that there were on-going proceedings in Florida; that Judge Kaney had accepted jurisdiction of the parties pursuant to the UCCJA; and that neither of the parties nor the minor children currently resided in Utah. Based on these findings, the juvenile court ordered the following:

1. That this Court relinquishes jurisdiction of the above-captioned proceedings to the Ninth Judicial Circuit Court in and for Orange County, Florida.

2. That this Court no longer will exercise jurisdiction over the subject matter, the parties or the children of the parties and all matters are concluded in this case.

On October 14, 1988, the juvenile court issued a notice rescheduling the trial to November 21, 1988.

On October 18, 1988, Judge Hermansen signed the order of transfer. The order was sent to Judge Kaney accompanied by a letter in which Judge Hermansen wrote that he was "troubled" about the case in view of father's petitions alleging abuse of the children. Judge Hermansen stated:

I feel that if they demand a trial on this matter I must hold the trial and make Findings. The only thing that I can think would be possible or appropriate thereafter would be to send the Findings from our trial to you for your information. It would seem to me that you would be interested if we found there was some substance to the allegations of abuse....

The next thing that would be of concern, of course, would be the custody of the children if they have been neglected and we have now turned that matter over to you. I feel obligated to try any matter that is at issue where the allegations concern events that happened in this jurisdiction.

On November 14, 1988, Judge Hermansen advised both parties by telephone that the trial set for November 21, 1988, would proceed as scheduled. On November 18, 1988, mother filed a motion to dismiss on grounds that the court had already entered an order transferring all proceedings to the Florida court. Alternatively, she contended that by relying on the order of transfer, she had assumed that all proceedings before the juvenile court were terminated and, therefore, did not have time to prepare for trial.

Mother's motion was heard before the court on November 21, 1988, and denied. Judge Hermansen advised the parties that his intent was not to transfer jurisdiction of the dependency and neglect petitions to the Florida court. Counsel for mother then excused himself from the proceedings. Later in the trial, Judge Hermansen told counsel for father that [s]ince there were--there was--I heard absolutely no indication that they were going to take it up in Florida, when you asked for a trial here, I granted it. And ... that's my understanding pursuant to my letter, and handling it that way, Mr. Watson, I don't think there's really anything to be gained by my calling him on the phone....

Trial continued and the juvenile court heard numerous witnesses and made findings of fact and conclusions of law. In its order, the juvenile court stated that it had relinquished jurisdiction of the divorce modification proceeding, but had not relinquished jurisdiction over the petition alleging neglect of the children. The juvenile court made findings that mother cohabitated with a man who was accused of sexual abuse of a minor; mother and the man with whom she lived watched pornographic video tapes in the presence of the children; mother and her friend went to California for approximately two weeks and left the children home without adequate fuel, heat, or food; the man occasionally beat the children; mother had locked the children out of the home; the children were absent from school for substantial periods of time and were performing poorly academically; mother neglected the physical needs of the children by failing to provide appropriate supervision, meals and clothing; and mother...

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