Weller v. Weller

• Decision Date: 09 June 1998
• Docket Number: No. 97-210,97-210
• Citation: 960 P.2d 493
• Parties: Paul W. WELLER, III, Appellant (Defendant), v. Kimberly N. WELLER, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 493

960 P.2d 493

Paul W. WELLER, III, Appellant (Defendant), v. Kimberly N. WELLER, Appellee (Plaintiff).

No. 97-210.

Supreme Court of Wyoming.

June 9, 1998.

Curtis B. Buchhammer and Turner A. Rouse of Orr, Buchhammer & Kehl, P.C., Cheyenne, Wyoming, for Appellant(Defendant).

Greg Knudsen of Knudsen Law Offices, Torrington, Wyoming; and Melissa M. Swearingen, Student Intern, for Appellee(Plaintiff).

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN & LEHMAN, JJ.

MACY, Justice.

Appellant Paul Weller III (the father) appeals from the order which denied his motion to set aside and vacate the portions of the divorce decree which related to child custody and support for lack of subject matter jurisdiction.

We reverse.

ISSUES

The father requests our review of three issues:

I. Did the district court have subject matter jurisdiction to determine child custody and support issues in the divorce decree of December 28, 1994?

II. In the absence of subject matter jurisdiction, of what effect was the determination of child custody and support issues by the district court?

III. At the time that the divorce decree was entered on December 28, 1994, did the district court have personal jurisdiction over the appellant?

FACTS

The father married Appellee Kimberly Weller (the mother) on December 15, 1981. The couple had two children. The family lived in Pennsylvania for several years, but on August 11, 1994, the mother and the children moved to Wyoming. The mother filed a divorce complaint in Wyoming approximately two and one-half months later, placing the children's custody and support at issue.

The summons and complaint were served on the father at his home in Pennsylvania on November 5, 1994. The father did not respond, and a default was entered against him for failing to plead or otherwise defend the action. A hearing date was set for the divorce action, and a notice of the hearing was mailed to the father on December 13, 1994. An unrecorded hearing was conducted, and the district court entered the divorce decree on December 28, 1994. The decree awarded custody of the children to the mother and ordered the father to pay support in the amount of $738.30 per month.

In January of 1995, the father filed a complaint for custody in Pennsylvania, asserting that it was Pennsylvania and not Wyoming which had subject matter jurisdiction over the child custody issue. This action provoked correspondence between the Wyoming court and the Pennsylvania court. Both courts agreed that the Uniform Child Custody Jurisdiction Act (the UCCJA) was controlling. Although the Pennsylvania court believed that, when the action was filed, it had subject matter jurisdiction under the home state rule, it agreed that the Wyoming court should conduct a hearing to determine whether Wyoming had jurisdiction.

On May 14, 1997, the father filed a motion in the Wyoming court to set aside the child custody and support portions of the divorce decree. A hearing was held on the motion. At the conclusion of the hearing, the district court determined that it had subject matter jurisdiction, and it affirmed its December 28, 1994, divorce decree with regard to the custody and support issues. The father appeals from this decision.

STANDARD OF REVIEW

The dispositive question for our review is whether the district court possessed subject matter jurisdiction over the child custody and support issues.

We conduct a de novo review of jurisdictional questions pursuant to "the inherent power, and the duty, to address jurisdictional defects on appeal...." Gookin v. State Farm Fire & Cas. Ins. Co., 826 P.2d 229, 232 (Wyo.1992). If a lower court acts without jurisdiction, "this court will notice the defect and have jurisdiction on appeal, not on the merits, but merely for the purpose of correcting the error of the lower court in maintaining the suit." Gookin, at 232.

Pawlowski v. Pawlowski, 925 P.2d 240, 242 (Wyo.1996) (citation omitted).

DISCUSSION

The father contends that the district court did not have subject matter jurisdiction over the issues of child custody and support when the divorce action was commenced or when the decree was entered and that, therefore, the district court did not have authority to determine those issues. The mother counters that the district court did have subject matter jurisdiction under WYO. STAT. § 20-5-104(a)(ii) (1997).

WYO. STAT. § 20-5-104(a) (1997) of the UCCJA addresses when a Wyoming court may exercise subject matter jurisdiction over child custody issues:

(a) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification decree if:

(i) This state is the home state of the child at the time of commencement of the proceeding, or was the child's home state within six (6) months before commencement of the proceeding and the child is absent from the 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;

(ii) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one (1) contestant, have a significant connection with the state and there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships;

(iii) The child is physically present in this state and has been abandoned or if it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

(iv) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (i), (ii) or (iii) 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 it is in the best interest of the child that this court assume jurisdiction.

The term "home state" is defined as follows:

(v) "Home state" means the state in which the child immediately preceding the time involved has lived with his parents, a parent or a person acting as parent, for at least six (6) consecutive months.... Periods of temporary absence of any of the named persons are counted as part of the six (6) month or other period[.]

WYO. STAT. § 20-5-103(a)(v) (1997).

Subject matter jurisdiction is not a subject of judicial discretion. WR v. Lee (In re DG), 825 P.2d 369, 376 (Wyo.1992). "Subject matter jurisdiction is 'the power to hear and determine cases of the general class to which the proceedings in question belong.' " Lacey v. Lacey, 925 P.2d 237, 238 (Wyo.1996) (quoting Fuller v. State, 568 P.2d 900, 903 (Wyo.1977)). It either exists or it does not, and a court should be satisfied that it possesses subject matter jurisdiction before it makes a decision in a case. In re Contempt Order Issued Against Anderson, 765 P.2d 933, 936 (Wyo.1988).

The mother and the children came to Wyoming on August 11, 1994. The mother filed the divorce complaint seventy-six days after she entered the state, and the district court entered the divorce decree 139 days after the mother arrived in Wyoming. The children had not lived in this state for a six-month period before the action was commenced as is required by § 20-5-104(a)(i). The only tool which is available to us in analyzing whether the district court possessed subject matter jurisdiction under § 20-5-104(a)(ii), as the mother asserts, is the record. The record does not contain sufficient facts to establish that, when the divorce action was filed, at least one contestant had a significant connection with Wyoming or that substantial evidence was available in this state with regard to the children's present or future care, protection, training, and personal relationships. The mother did not provide the jurisdictional information required by WYO. STAT. § 20-5-110 (1997) when she filed her complaint, and, because the hearing was not reported, we cannot rely on any jurisdictional determination which was made at that proceeding. When the divorce action was commenced, the children's home state was Pennsylvania. In the absence of evidence to show that this case fell within one of the other provisions of § 20-5-104(a), we hold that the district court did not possess subject matter jurisdiction over the child custody and support issues. ¹

The law is well established that, when a court lacks subject matter jurisdiction, action taken by that court, other than dismissing the case, is considered to be null and void.

It is fundamental, if not axiomatic, that, before a court can render any decision or order having any effect in any case or matter, it must have subject matter jurisdiction. Jurisdiction is essential to the exercise of judicial power. Unless the court has jurisdiction, it lacks any authority to proceed, and any decision, judgment, or other order is, as a matter of law, utterly void and of no effect for any purpose. Subject matter jurisdiction, like jurisdiction over the person, is not a subject of judicial discretion. There is a difference, however, because the lack of jurisdiction over the person can be waived, but lack of subject matter jurisdiction cannot be.

In re Contempt Order Issued Against Anderson, 765 P.2d at 936 (citations omitted). A lack of subject matter jurisdiction constitutes a fundamental defect in a proceeding which cannot be cured by waiver or consent by the parties. Pawlowski, 925 P.2d at 243. Nor may it be cured by the passage of time. J.P. v. Carter, 24 Va.App. 707, 485 S.E.2d 162, 171 (1997); Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753, 755 (1990). Furthermore, a subsequent proceeding on the basis of the defective judgment is void. Morrison, 387 S.E.2d at 756. The term "void" means "nugatory and ineffectual so...