Trevino v. Trevino

• Decision Date: 15 February 2012
• Docket Number: No. 2-072 / 11-1381,2-072 / 11-1381
• Parties: IN RE THE MARRIAGE OF JULIAN TREVINO AND MARLENA MARIE TREVINO Upon the Petition of JULIAN TREVINO, Petitioner-Appellee, v. And Concerning MARLENA MARIE TREVINO, Respondent-Appellant.
• Court: Iowa Court of Appeals

IN RE THE MARRIAGE OF JULIAN TREVINO AND MARLENA MARIE TREVINO

Upon the Petition of JULIAN TREVINO, Petitioner-Appellee, v. And Concerning MARLENA MARIE TREVINO, Respondent-Appellant.

No. 2-072 / 11-1381

COURT OF APPEALS OF IOWA

Filed February 15, 2012

Appeal from the Iowa District Court for Franklin County, Christopher C. Foy, Judge.

A mother appeals an order confirming the State of Iowa's jurisdiction in a custody modification action, contending Iowa does not have jurisdiction because neither she nor the children have been residents of the state since 2008. REVERSED AND REMANDED.

Brian D. Miller of Miller & Miller, P.C., Hampton, for appellant.

Larry W. Johnson of Walters & Johnson, Iowa Falls, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

VAITHESWARAN, P.J.

Marlena Trevino appeals an order confirming the State of Iowa's jurisdiction in a child-custody modification action. She contends Iowa does not have jurisdiction because neither she nor the children have been residents of the state since 2008.

I. Background Facts and Proceedings

Marlena and Julian Trevino married in 2005 and had two children. The family moved from Iowa to Texas in 2008, but Julian returned to Iowa later that year. On his return, he filed a dissolution of marriage petition in Iowa. At a hearing on temporary matters, Marlena applied to move the custody proceedings to Texas. The district court found that "the Trevino family intended and began a permanent residence in Texas on March 11, 2008, exactly six months prior to the commencement of the proceeding." The court concluded it had jurisdiction under Iowa Code section 598B.201(1)(a) (2007), a provision of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA).¹ Following trial, the court dissolved the marriage and granted Marlena physical care of the children.

Julian subsequently filed an application to modify custody. Marlena responded with a "motion to determine proper jurisdiction of pending application to modify." She asserted that she and the children had lived in Texas since March 11, 2008, and she asked the court to

direct that jurisdiction of the pending matter be transferred to the State of Texas because the children and one parent of the children do not have significant connection with the State of Iowa and because substantial evidence is no longer available in the state of Iowa concerning the children's care, protection, training and personal relationships.

She alternately requested that the court decline to exercise jurisdiction on the ground that Iowa was an inconvenient forum.

After considering the attorneys' arguments, the district court issued an order confirming jurisdiction. The court stated, "Because [Marlena] did not appeal the [original] Jurisdiction Order, its holding is binding on the parties as part of the law of this case." The court further stated that Marlena "presented no facts in support of her motion, only arguments of counsel" and, accordingly,

failed to show any change in circumstances since the entry of the Jurisdiction Order or the Dissolution Order that would divest the Court of exclusive, continuing jurisdiction under section 598B.202(1) or that would render the Court an inconvenient forum under section 598B.207.

The court concluded that it continued to have "exclusive jurisdiction to enforce or modify the custody provisions of Dissolution Order and that it is a convenient forum to do so." Marlena appealed.

II. Analysis

A. Exclusive Continuing Jurisdiction

As noted, the district court concluded it had exclusive, continuing jurisdiction under section 598B.202 of the UCCJEA. That provision states:

1. Except as otherwise provided in section 598B.204, a court of this state which has made a child-custody determination consistent with section 598B.201 or 598B.203 has exclusive, continuing jurisdiction over the determination until any of the following occurs:

a. A court of this state determines that the child does not have, the child and one parent do not have, or the child and a person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships.

b. A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.

2. A court of this state which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 598B.201.

Whether this requirement has been met is a question of subject matter jurisdiction. In re Jorgensen, 627 N.W.2d 550, 554 (Iowa 2001). If we determine subject matter jurisdiction is lacking, the only appropriate disposition is to dismiss the custody modification application. See id. at 555. Our review of the record is de novo. Id.

The parties do not dispute that the district court made an initial child-custody determination as part of the dissolution decree. See Iowa Code § 598B.102(3) (defining "[c]hild custody determination" as "a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child"). Accordingly, the court could exercise exclusivecontinuing jurisdiction until the court determined "that . . . the child and one parent do not have . . . significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships." Id. § 598B.202(1)(a).

We begin with the district court's conclusion that Marlena failed to carry her burden of proving these factors because she presented no evidence at the jurisdictional hearing. We are not persuaded that her failure to proffer witnesses is fatal to her motion, because, at the jurisdictional hearing, the court determined that the attorneys for both parties could stipulate to relevant facts and the court would rely on those stipulated facts in ruling on the motion. The attorneys did just that.

Marlena's attorney began by proffering the following facts. Marlena and the children lived in Texas continuously from March 11, 2008; the older child attended a primary school in Texas, and the younger child stayed at home with her mother; Marlena and the childen attended church in a town ten minutes away from the town in which they lived; the children spent alternate weekends with Marlena's mother in Texas; and the children had regular contact with other family members in Texas, including Marlena's aunt, uncle, and cousins. Marlena's attorney also stated that additional witnesses who were residents of Texas would be called in connection with Julian's application to modify custody.

Following this proffer, the district court asked Julian's attorney whether the court could "rely on these facts [ ] for purposes of determining the pending motion." Julian's attorney responded, "Yeah." He added that his client was a resident of Iowa and made "two separate attempts to go to Texas and get thechildren" but was refused. He also noted that contempt citations and sanctions had been imposed against Marlena. Marlena's attorney responded by declining to admit or deny the claimed facts concerning Marlena's refusal to allow Julian to see the children.

We find this record sufficient to determine whether the children had a significant connection with Iowa and whether substantial evidence relating to their welfare was available in this State. The record points to two possible conclusions. The fact that Marlena and the children lived in Texas for more than three years prior to the court's ruling on exclusive continuing jurisdiction, the fact that the older child attended school in Texas, and the fact that the children interacted exclusively with relatives in Texas would suggest they lacked a significant connection with Iowa and substantial evidence of their welfare was not available in this State. On the other hand, the fact that Marlena denied Julian visitation in Iowa and, as a result, precluded the children from developing connections in this State suggests that Marlena should not reap the benefit of having the case transferred to Texas.

The Oklahoma Court of Civil Appeals faced a similar dilemma in McCullough v. McCullough, 14 P.3d 576 (Okla. Civ. App. 2000). There, mother and son moved from Oklahoma to California before a dissolution decree was entered in Oklahoma. McCullough, 14 P.3d at 577. The decree set a visitation schedule for the father which was subsequently modified to allow for extended visitation in Oklahoma. Id. The father later filed a motion in Oklahoma to modify the custody arrangement. Id. at 578. He alleged that the mother was guilty of improper conduct and separately noted that the mother had willfully violated theprior visitation order. Id. The district court found California to be the more appropriate forum. Id. at 579. On appeal, the father reiterated that the mother's "'reprehensible conduct' in preventing his contact with the child" as well as other factors should have prevented the transfer of the case to California. Id. at 580. The Oklahoma Court of Civil Appeals found this was not a case in which the mother directly created a jurisdictional basis in California, the state she claimed had jurisdiction. Id. The court explained that the dissolution decree "specifically contemplated" the child's residence in California. Id. According to the court, "the basis for California's jurisdiction and its status as a more appropriate forum flows from A's permanent residence there, not from any acts by Mother which frustrated Father's attempts to maintain a relationship with A." Id. The court determined that

[e]ven if Mother was guilty of 'reprehensible conduct' as alleged by Father, which we do not decide, it

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