Szmyd v. Szmyd, 5854

• Decision Date: 26 February 1982
• Docket Number: No. 5854,5854
• Citation: 641 P.2d 14
• Parties: Pamela Sue SZMYD (Boland), Petitioner, v. Gary Wayne SZMYD, Respondent.
• Court: Alaska Supreme Court

Page 14

641 P.2d 14

Pamela Sue SZMYD (Boland), Petitioner, v. Gary Wayne SZMYD, Respondent.

No. 5854.

Supreme Court of Alaska.

Feb. 26, 1982.

George F. Schaefer, Alan J. Hooper, Alaska Legal Services Corp., Fairbanks, for petitioner.

Gerard R. LaParle, Merdes, Schaible, Staley & DeLisio, Inc., Fairbanks, for respondent.

Before RABINOWITZ, C.J., and CONNOR, BURKE, MATTHEWS and COMPTON, JJ.

OPINION

CONNOR, Justice.

This petition raises the question of whether an Alaska superior court, which renders the original marriage dissolution decree, retains jurisdiction to modify custody when the non-custodial parent continues to reside in the state, but the custodial parent and the sole child have lived outside the state for the past two and one-half years. If there is jurisdiction, a corollary issue is whether the superior court erred in ruling that jurisdiction should not be declined on inconvenient forum grounds.

In our view, the court had jurisdiction but initially abused its discretion by failing to articulate its reasons for refusing to decline jurisdiction. Therefore, we remanded the case to the trial court for a statement of reasons for its refusal to dismiss. After reviewing that statement, we have concluded that the trial court should have dismissed or stayed the case on inconvenient forum grounds.

Pamela and Gary Szmyd ended their marriage on October 12, 1977. The dissolution decree, issued by a Fairbanks superior court, gave Pamela custody of Sean, the couple's one-year-old child. A year later, in the fall of 1978, Pamela and the child moved to Washington. They resided there for two years, then moved to California in early September of 1980.

On December 5, 1980, Gary filed a motion in Fairbanks for a modification of the custody decree. Pamela moved to dismiss for lack of jurisdiction or, alternatively, on the ground that Alaska was an inconvenient forum. ¹ The superior court denied her motion, and Pamela sought review. We stayed the superior court proceedings pending our review of the petition.

A. Modification Jurisdiction

It has been said that decree-state courts retain a continuing jurisdiction to modify a custody decree. ² See Leighton v. Leighton, 596 P.2d 8, 9 n.4 (Alaska 1979). The source of continuing, or modification, jurisdiction is Section 14 of the Uniform Child Custody Jurisdiction Act (UCCJA). Bodenheimer, (The Reporter for the Act), supra note 2, at 216. ³ That section confers a rather inverted jurisdiction: it prohibits a non-decree-state's exercise of jurisdiction except in limited circumstances. ⁴ Alaska's version of this section, codified at AS 25.30.130, differs only slightly from the uniform act. ⁵ The question arises, however, as to whether the jurisdictional prerequisites of the act must be met in order for a decree-state to exercise merely modification jurisdiction.

Custody determinations can only be made in jurisdictionally sound proceedings. See Layne v. Niles, 632 P.2d 234 (Alaska 1981). In Layne we held that even though parents have reached an agreement concerning custody, when they are seeking a dissolution of their marriage under AS 09.55.231(a), a superior court cannot enter a custody order affecting the children unless the jurisdictional prerequisites of AS 25.30.020(a) are met. 632 P.2d at 236. We reasoned that such an order involved a "child custody determination" and was, therefore, subject to the requirements of the act.

Gary's request for a modification of custody similarly necessitates "a custody determination," AS 25.30.900(2); and the jurisdictional provisions of AS 25.30.020 expressly encompass all custody determinations and modifications. The statute states, in part, that "(t)he superior court has jurisdiction to make a child custody determination by ... modification decree if the conditions set out in any of the following paragraphs are met ...." (emphasis added). AS 25.30.020(a). Any ambiguity as to whether AS 25.30.020 must be satisfied in order to exercise modification jurisdiction seemingly was clarified by the contemporaneous amendment of AS 09.55.205 (Judgments for Custody). To the extent relevant here, this statute was amended as follows in the same bill enacting Alaska's version of the UCCJA:

"In an action for divorce or for legal separation the court may, if it has jurisdiction under AS 25.30.020, and is an appropriate forum under AS 25.30.050 and 25.30.060, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any child of the marriage, make, modify or vacate an order for the custody of or visitation with the minor child which may seem necessary or proper (AND MAY AT ANY TIME MODIFY OR VACATE THE ORDER)."

Ch. 61, § 2, SLA 1977 (CSHB 208amS, at 15). ⁶ Given the prefatory language in AS 25.30.020, and the reference to that provision in AS 09.55.205, we conclude that the jurisdictional prerequisites of AS 25.30.020 apply when a superior court is asked to modify custody. ⁷ To the extent that Leighton v. Leighton, 596 P.2d 8 (Alaska 1979), which did not examine AS 09.55.205, is to the contrary, we hereby modify that holding.

We must next determine whether these prerequisites were met. Jurisdiction exists if any of the following requirements are met:

"(1) this state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(2) the child is physically present in this state and is a child in need of aid as defined in AS 47.10.290; or

(3) it (A) appears that no other state would have jurisdiction under prerequisites substantially in accordance with (1) or (2) of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) is in the best interest of the child that this court assume jurisdiction.

(b) Except under (a)(2) and (3) of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody."

AS 25.30.020. ⁸ Subsection (1) is not met because Alaska has not been the child's home state for over two and one-half years. Nor is subsection (2) applicable on these facts. Alaska does have jurisdiction under subsection (3), however, because neither California nor Washington, the only other states in which the child has lived, could assert jurisdiction substantially in accordance with subsections (1) or (2), on the facts of this case. Subsection (1), the only possibly applicable provision, could not be satisfied by either state as of December 5, 1980, the date the motion for a change of custody was filed and the relevant measuring date. ⁹ California, where Pamela and the child presently reside, was not a home state at that time. ¹⁰ Washington had been the home state, but even under AS 25.30.020(a)(1)(B) it would not have had jurisdiction because no parent continued to reside there. Because no other court had jurisdiction at the relevant time, subsection (3) above was satisfied and thus the superior court had jurisdiction to consider the motion for a change in custody.

B. Inconvenient Forum

The UCCJA authorizes a court to decline jurisdiction if the court is an inconvenient forum. The decision to decline jurisdiction is a discretionary one, Loper v. Superior Court, 126 Ariz. 14, 612 P.2d 65, 68 (App.1980); In re Marriage of Kern, 87 Cal.App.3d 402, 410, 150 Cal.Rptr. 860, 865 (1978); and requires that certain factors be considered:

"(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:

(1) if another state is or recently was the child's home state;

(2) if another state has a closer connection with the child and his family or with the child and one or more of the contestants (3) if better evidence concerning the child's present or future care, protection, training, and personal relationships is available in another state;

(4) if the parties have agreed on another forum which is not less appropriate; and

(5) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in sec. 10 of this chapter.

(d) Before determining whether to decline or retain jurisdiction the court may communicate with the court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties."

AS 25.30.060. ¹¹ An additional consideration is the parties' convenience and relative hardship in appearing in non-local forums. See William L. v. Michele P., 99 Misc.2d 346, 353-357, 416 N.Y.S.2d 477, 482-84 (Fam.Ct.1979).

The purpose of the above provision is to encourage jurisdictional restraint "whenever another state appears to be in a better position to determine custody of a child." Commissioners' Note to UCCJA § 7. Pamela urged the court to decline jurisdiction on the ground that California, where the child and she reside, is the better forum for examining the child's best interests. The superior court originally denied the motion without explaining its reasons. It was, therefore, difficult to determine whether the court abused its discretion, that is, to determine whether it considered the statutory factors, or what...