Zimmerman v. Newton, 970042

• Decision Date: 21 October 1997
• Docket Number: No. 970042,970042
• Citation: 569 N.W.2d 700,1997 ND 197
• Parties: Stephanie ZIMMERMAN, Plaintiff and Appellant, v. Mark NEWTON, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 700

569 N.W.2d 700

1997 ND 197

Stephanie ZIMMERMAN, Plaintiff and Appellant, v. Mark NEWTON, Defendant and Appellee.

Civil No. 970042.

Supreme Court of North Dakota.

Oct. 21, 1997.

Daniel J. Chapman (argued), of Chapman & Chapman, Bismarck, for plaintiff and appellant.

Theresa L. Zimmerman (argued), of American Legal Services, Bismarck, for defendant and appellee.

MESCHKE, Justice.

¶1 Stephanie Zimmerman appealed a memorandum opinion and order dismissing her action against Mark Newton for custody of their minor child, Chelsey. We hold the trial court did not err in declining to exercise jurisdiction because a proceeding for custody of Chelsey was pending in Massachusetts when Zimmerman filed this North Dakota action. We affirm.

¶2 Zimmerman and Newton have never been married. According to Zimmerman, she met Newton, who was from Massachusetts, while he was living in Elgin, North Dakota. Chelsey was conceived during their relationship, and Zimmerman moved to Massachusetts with Newton. On April 20, 1994, Chelsey was born in Massachusetts.

¶3 In a Massachusetts family court proceeding on February 23, 1996, after Zimmerman and Newton experienced difficulties in their relationship, they stipulated that Newton was Chelsey's natural father and that they "will have shared physical legal custody" of Chelsey with each parent having "physical possession" for six months of the year. They also stipulated that Zimmerman be allowed to remove Chelsey from Massachusetts to reside in North Dakota while Chelsey is in her "physical possession," and that Newton pay Zimmerman child support while Chelsey is in Zimmerman's "physical possession." The Massachusetts court signed a temporary order incorporating the parties' stipulation "[p]ending a hearing on the merits or until further order of the court." The Massachusetts court also issued an income assignment and an order for support requiring Newton to pay Zimmerman $55 per week in child support from March 1, 1996, to September 1, 1996. Later, on October 22, 1996, the Massachusetts court entered a "judgment of paternity" that incorporated the parties' stipulation, but inexplicably decreed Zimmerman and Newton would have "shared joint legal custody" while Zimmerman would have "sole physical custody." ¹

¶4 Meanwhile, Zimmerman moved back to North Dakota with Chelsey, and on August 27, 1996, she filed this North Dakota custody case against Newton. Zimmerman's complaint acknowledged the Massachusetts proceeding, but alleged she was not aware of a final order by the Massachusetts court and claimed that proceeding had been abandoned because all of the parties had returned to North Dakota. She alleged that she had lived with Chelsey in North Dakota for the preceding six months and that Massachusetts was an inconvenient forum to decide custody. Zimmerman obtained an interim ex parte order from the North Dakota court on August 28, 1996, placing temporary custody of Chelsey with her pending further order of the court.

¶5 Zimmerman's complaint and the interim order were not formally served on Newton until November 19, 1996. Newton then appeared specially and moved to dismiss Zimmerman's action. He contended he had been given joint custody of Chelsey under the Massachusetts stipulation and its October 22, 1996 judgment, which had been since filed in Grant County, North Dakota. See NDCC 14-14-15. Newton asserted the North Dakota court lacked jurisdiction under NDCC 14-14-06 because a custody proceeding about Chelsey was pending in Massachusetts when Zimmerman filed her North Dakota action.

¶6 The trial court agreed with Newton and dismissed Zimmerman's action, ruling NDCC 14-14-06 precluded it from exercising jurisdiction:

It seems rather clear now that at the time this action was commenced in North Dakota, there was a proceeding pending in the State of Massachusetts in the Probate and Family Court Department of the Trial Court of the Essex County Division, Docket No. 96W-0343-PA1. The action in Massachusetts was an action concerning custody of [Chelsey], the minor child of the parties. At the time the proceedings were commenced in Massachusetts, Massachusetts was the home state of Mark Newton, [Chelsey] and Stephanie Zimmerman.

The pending proceedings in the State of Massachusetts was not stayed by the court in Massachusetts for any reason. Therefore, this court should not have exercised its jurisdiction.

Zimmerman appealed the memorandum opinion and order dismissing her action. ²

¶7 Zimmerman contends the trial court erred in dismissing her action without an evidentiary hearing on whether a prior custody proceeding was pending in Massachusetts. She argues whether a prior action is pending is a factual question that requires a hearing. She also asserts an evidentiary hearing is necessary to explore whether North Dakota has jurisdiction under the "home state" or "significant connection" provisions of NDCC 14-14-03.

¶8 This is an interstate custody dispute. Before a court can decide the merits of an interstate custody dispute, it must first address the related jurisdictional requirements of the Uniform Child Custody Jurisdiction Act (UCCJA), NDCC 14-14, and the Parental Kidnapping Prevention Act (PKPA), 28 USC 1738A. Hangsleben v. Oliver, 502 N.W.2d 838, 841 (N.D.1993). In Hangsleben, 502 N.W.2d at 842 (footnotes omitted), we outlined the multi-step analysis for jurisdiction in interstate custody disputes:

Under the UCCJA and the PKPA, a court must go through a multi-step process in determining whether to exercise jurisdiction. First, a court must determine whether it has jurisdiction, and, if it finds that it does, it must then determine whether there is a custody proceeding pending or a decree made by another state which has jurisdiction. If there is a pending custody proceeding in another state, the petitioned state must stay its proceedings or decline jurisdiction. NDCC § 14-14-06 [UCCJA § 6], PKPA § 1738A(g). If another state has issued a decree, the court, in order to modify that decree, must apply the multi-step process contained in section 14-14-14, NDCC [UCCJA § 14], and PKPA sections 1738A(c), and (f). Finally, assuming there is neither a proceeding pending in another state nor a decree by which another state retains jurisdiction, a determination must be made by the forum state whether it is appropriate to exercise jurisdiction in light of the convenience of the forum and the conduct of a parent. NDCC §§ 14-14-07, 08 [UCCJA §§ 7, 8].

Thus, procedurally, a court must first consider whether it has jurisdiction to decide custody and, if it does, the court must then decide, within the framework of the UCCJA and the PKPA, whether to exercise its jurisdiction.

¶9 A North Dakota court has jurisdiction to make an interstate custody decision by initial decree or by modification of an initial decree if North Dakota is the "home state," or there is a "significant connection" with this state. NDCC 14-14-03. ³ Here, the North Dakota trial court did not specifically address whether it had jurisdiction under NDCC 14-14-03. Instead, the court effectively assumed it had jurisdiction under NDCC 14-14-03, but decided it should not exercise that jurisdiction because, under NDCC 14-14-06, there was a custody proceeding pending in Massachusetts when Zimmerman filed her North Dakota petition. For this appeal, we too assume, without deciding, that the North Dakota court had jurisdiction under NDCC 14-14-03, and we consider whether the court erred in deciding it should not exercise jurisdiction under NDCC 14-14-06. In this posture, we reject Zimmerman's argument an evidentiary hearing was necessary to consider whether North Dakota is Chelsey's "home state" or whether there is a "significant connection" with North Dakota because an affirmative answer to either question would not affect this appeal. ⁴

¶10 When there is a simultaneous custody proceeding in another state, NDCC 14-14-06 directs what the North Dakota court must do:

1. A court of this state may not exercise its jurisdiction under this chapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this chapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

2. Before hearing the petition in a custody proceeding, the court shall examine the pleadings and other information supplied by the parties under section 14-14-09 and shall consult the child custody registry established under section 14-14-16 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state, it shall direct an inquiry to the state court administrator or other appropriate official of the other state.

3. If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issues may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 14-14-19 through 14-14-22. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state, it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court to the end that the issues may be litigated in the most appropriate forum.

¶11 A strong policy against simultaneous custody proceedings in different states is implemented by these specific directions in NDCC 14-14-06, which require active communication between the separate courts before...