ARK APP 203 Sheryl WEESNER v: John JOHNSON CA 04-784 201 S.W3d 432 Court of Appeals of Arkansas
Opinion delivered January 19. 2005 PARENT & CHILD — UCCJEA — PURPOSE & OVERVIEW — The purpose of adopting the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at Ark: Code Ann: 55 9-19- 101-9-19-401 (Repl, 2002 ec Supp: 2003), was to prevent Junsdic-tonal conflicts like those that arose under its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA), child-custody jurisdiction is a matter of subject-matter jurisdiction, and the UC-CTEA is the exclusive method for determining the proper forum in child-custody proceedings involving other Jurisdictions, 2. COURTS — SUBJECT-MATTER JURISDICTION — APPELLATE COURT CAN RAISE SUA SPONTE — The appellate court can raise sua sponte the question of whether the lower court lacked subject-matter jurisdiction, and if it concludes that the lower court was without jurisdiction, dismissal is an appropriate disposition of the case, 3: PARENT & CHILD — INITIAL-CUSTODY DETERMINATION — "HOME STATE" DEFINED — In applying the UCCJEA, Ark Code Ann 5 9-19-201 provides the cntena to determine whether a state has junsdiction to make an initial child-custody determination, additionally, 5 0 -1Q -102 defines "home state" as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding; in the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned, a period of temporary absence of any of the mentioned persons is part of the period, 4 PARENT & CHILD — ARKANsAS N oT Ho ME STATE OF CHILD — AR KANcks HAD NO JURISDICTION UNDER 0 -1 Q -201 (a)(1) — Under the statutory definition of home state, Arkansas was clearly not the home state of the child because no evidence was presented that the child ever hved in Arkansas; therefore, Arkansas could not acquire jurisdiction under 5 9-19-201(3)M: PARENT & CHILD — ARK CODE ANN 5 9-19-201 (a) (2) — ARKAN-SAS HAD No I P ISDICTION I INDFP TI IN ■LCTION — Section Q 1 9 -
WLUNLIL JIII11.150N 204 Cite as SO Ark App 203 (2005) [89 201(a)(2) would allow Arkansas jurisdiction if the child had no home state or the home state declined jurisdiction, bur only if the child and at least one parent had a significant connection with Arkansas other than mere physical presence and substantial evidence existed in this state concermng the child's welfare and being; because this was not a case where a home state had declined jurisdiction, under this provision, the court could only conclude it had jurisdiction if there was evidence that the child and at least one parent had significant connections with Arkansas; the facts as presented to the judge showed that the child had absolutely no connections with the state of Arkansas, the father lived here, but the child never did, in two cases decided under the previous UCCJA, such a "connection" vycLS found to be lacking: 6. PARENT & CHILD — JURISDICTION OVER CHILD — SECTION 9-19- 201(a)(3) INAPPLICABLE — Section 9-19-201(a)(3) refers to a situation in which another state with jurisdiction declines tu Use it because lt would be more convenient TO allow the case to proceed in Arkansas; this section was clearly inapplicable as that was not the case here 7: PARENT- &__ei-uiD__—_sEcTioN__-_19=201(a)(4) INAPPLICABLE — CALIFORNIA MET REQUIREMENTS OF 9-19-201 (a) (2) — P ursuanc TO 5 9-19-201(04), Arkansas can retain junsdiction if no court of any other state would have jurisdiction under the previous three provisions; appellee's testimony established that California could meet the requirements of 5 9 -19-201(a)(2) because of the significant connections the child had with the state and the likelihood that substantial evidence existed there regarding the child's well-being, which would then prohibit Arkansas from retaining jurisdiction under 5 9-19- 201(a)(4); appellee's testimony indicated that the child was born in California, lived in California for over half of her hfe (except for two brief moves out of state), and lived in California at the time of the hearing, therefore, based on appellee's testimony and the affidavit of the appellant, the only state with which the child had "significant" connections was the State of Cahforrua PARENT & CHILD — TRIAL COURT ERRED AS MATTER_ OF LAW IN ASSUMING JURISDICTION UVEK CHILD-CUSTODY Lth 1 LI-CMINA 1 iuNS — CASE REVERSED & DISMISSED — Because the child had no connection with the State of Arkansas and the only way Arkansas could exercise jurisdiction would be if the child had no home state or
WFESNER V JOHNSON ARK APP Cite as 8 0 Ark App 203 (2005) no sigmficant connections with another state, the appellate court held that the trial court erred as a matter of law in assuming junsdiction over the child-custody determination in this case, the case was reversed and dismissed as to the child-custody adjudication. Appeal from White Circuit Court; Robert C: Hannah, Judge. reversed and dismissed as to custody determination: Lynn Pence, Center for Arkansas Legal Services, for appellant No response: , ARRY D VAUGHT, Judge: Appellant Sheryl Weesner ap- T peals the trial court's denial ofher motion to disrmss and the subsequent entry of a divorce decree addressing issues of custody and visitation: In this one-briefcase, she contends that the tnal court erred in taking junsdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at Ark: Code Ann: 55 9-19-101-9-19-401 (Repl: 2002 & Supp: 2003). We agree, and reverse: On November 3, 2003, John Johnson, a resident of Arkan-sas, filed for divorce in White County Circuit Court: Johnson filed an amended complaint for divorce on December 23, 2003, asking that he be awarded custody of the minor child and that Weesner be required to pay support Weesner filed a motion to dismiss and an amended motion to dismiss alleging that Arkansas did not have jurisdiction to determine issues regarding the minor child As required by Ark Code Ann 5 9-19-209 (Repl 2002), Weesner attached an affidavit to the motion stating the addresses where the child had lived since her birth and that she was presently involved in an action for child support filed in California: In the affidavit, Weesner maintained that she and the minor child had moved around the state, but had always resided in California since the child's birth: At a hearing on Weenser's motion to dismiss, Weesner's counsel maintained that California was the home state of the child and had jurisdiction Johnson's counsel, however, argued that California was not the child's home state and that Arkansas could retain jurisdiction The trial court allowed Johnson to testify at the hearing, and he stated that he and Weesner had been separated since 2001. and 11-hongh gilt-lied when the child was horn in California on
WEESNER V. JOHNsON 206 Cite as 89 Ark App 203 (2005) [89 October 5, 2001, they were not living together at the time and did not live together after the baby was born Johnson testified that Weesner had contacted him after the birth and told him on several occasions that she was moving from California He stated that she moved around a lot, about every six months The following facts were revealed on cross examination. DEPENDAN COUNSEL: How long did she live in Cali-forni , a after that before Ms:Weesner called you and said, we re moving, JOHNSON Maybe six months: DEFENDANT'S COUNSEL: Okay No from birth to SLX months they lived in California; is that correct? JOHNSON: Yeah, she did_ DEFENDANT'S COUNSEL: And then where did they move after that? JOHNSON: They moved to Arizona: DEFENT:rANT S CUUNNEL How long did they live in Ari-zona? JOHNSON I think she lived there three or four months: DEFENDANT'S COUNSEL And where did they move after that? JOHNSON: After that, probably back to Cahforrna_ DEFENDANT'S COUNSEL And how long did they live in California then? JOHNSON: I'm not sure. DEFENDANT'S COUNSEL' And did they move again outside Cahfornia?
WEESNER v. JOHNSON ARK APP Cite as 8 €1 Ark App 203 (2005) 207 JOHNSON: I don't think it was outside California. I think it was around, went to the Bay area somewhere. DEFENDANT'S COUNSEL So the first six months of life in California, moved to Anzona, aroundWittmann, maybe three or four months, then they moved back to Califor-nia, and they've lived in California ever since then, is that correct? JOHNSON: I — I think they moved away again DEFENDANT'S COUNSEL That \Vas my question to you: Where to and when? JOHNsor I think it was Nevada: DEFENDANT'S COUNSEL: When was that? JOHNSON: Well, I'm not sure. DEFENDANT'S COUNSEL: DO you know how long they lived in Nevada? JOHNSON Probably two or three months The trial court subsequently filed an order denying Weesner's motion to dismiss and stating it had jurisdiction over the parties and subject matter: The divorce decree was then issued on April 27. 2004. and simpl y stated that based on the testimony taken in open court it had jurisdiction over the parties and subiect matten [1, 2] Our supreme court set forth an overview of the UCCJEA in Arkansas Department o_f Human Services v: Cox, 349 Ark: 205, 82 S:W:3d 806 (2002), recognizing that the purpose of adopting the UCCJEA was to prevent jurisdictional conflicts like those that arose under its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA): It also determined that child-custody jurisdiction is a matter of subject-matter jurisdiction: Moore v Richardson, 332 Ark: 255, 964 S.W:2d 377 (1998), see also Dorothy v. Dorothy, 88 Ark: App: 358, 199 S:W:3d 107 (2004): It subsequently stated that the UCCJEA is the exclusive method for determining the proper forum in child-custody proceedings in-
I' JOIIN5iir-J 208 Cite as 89 Ark App 203 (2005) [89 volving other jurisdictions. Greenhough v, Goforth, 354 Ark. 502, 126 S:W.3d 345 (2003). We can raise sua sponte the question of whether the lower court lacked subject-matter jurisdiction, and if we conclude that the lower court was without jurisdiction, dismissal is an appropriate disposition of the case Tyler v Talhurt, 73 Ark App 260, 41 S,W,3d 431 (2001). [3] In applying the UCCJEA, section 9-19-201 provides the criteria to determine whether a state has jurisdiction to make an initial child-custody determination: It provides: (a) Except as otherwise provided in 5 9-19-204 [temporary emergency junsdiction], a court of this State has jurisdiction to make an initial child-c-usto—y _etermination only if. (1) this State is the home Stare of the child on the date of the commencement of the proceeding, or was the home State of the child within six (6) months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State, (2) a court of anotherState-does-not-have-jurisdiction-under subdivision (a)(1) of this section, or a court of the home State of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under $ 9-19-207 or 5 9-19-208, and: (A) the child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this State other than mere physical presence, and (B) substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships, (3) all courts having jurisdiction under subdivision (a)(1) or (2) of this section have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under 5 9-19-207 or 5 9-19-208, or
WEESNER I P: JOHNSON ARK AFT I rat AL 89 Ark App 203 (2005) 209 (4) no court of any other State would have jurisdiction under the criteria specified in subdivision (a)(1), (2), or (3) of this section (b) Subsection (a) of this section is the exclusive junsdictional basis for making a child-custod y determination by a court of this State (c) Physical presence of, or personal junsdicnon over, a party or a child is not necessary or sufficient to make a child-custody deter-rmnation Ark, Code Ann, 5 9-19-201. Additionally, 5 9-10 -102 defines "home state" as: the State in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediatel y before the commencement of a child-custody proceeding: In the case of a child less than six (6) months of age, the term means the State in which the child lived from birth with any of the persons mentioned, A penod of temporary absence of any of the mentioned persons is part of the period: [4, 5] Under this definition, Arkansas was clearly not the home state of the child because no evidence was presented that the child ever lived in Arkansas: Therefore, Arkansas could not acquire Jurisdiction under 5 9-19-201 (a)(1), Section 9-19-201(a)(2) would allow Arkansas jurisdiction if the child had no home state or the home state declined jurisdiction, but only if the child and at least one parent had a significant connection with Arkansas other than mere physical presence and substantial evidence existed in this state concerning the child's welfare and being: Because this is not a case where a home state has declined jurisdiction, under this provision, the court could only conclude it had jurisdiction if there was evidence that the child and at least one parent had significant connections with Arkansas, The facts as presented to the judge in this case show that the child had absolutely no connections with the state of Arkansas: The father lived here, but the child never did, In two cases decided under the previous UCCJA, such a "connection" was found to be lacking, LeGuin v. Caswell, 277 Ark: 20, 638 S,W,2d 674 (1982) (finding fact that father had moved to Arkansas and filed custody action, although children had never been to the state, not enough to establish significant connection with the state), Fletcher v Fletcher, 20 Ark App 190, 726 S W 11 684 (1087)
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210 Cite as 89 Ark: App: 203 (2005) [89 (finding that the child was not significantly connected to the state when the extent of the child's connection with Arkansas was that his father claimed it as his permanent residence): [6-8] Section 9-19-201(a)(3) refers to a situation in which another state with jurisdiction declines to use it because it would be more convenient to allow the case to proceed in Arkansas That is clearly not the case here: The final provision for finding jurisdiction is 5 9-19-201(a)(4): In that provision, Arkansas can retain jurisdiction if no court of any other state would have jurisdiction under the previous three provisions, Although Johnson's testimony did not determine conclusively that the child had lived in California for the six months immediately preceding the custody proceedings (and therefore establish lt as the child's home state), it did establish that California could meet the requirements of 5 9-19-201(a)(2) because of the significant connections the child had with the stare and the likelihood that substantial evidence existed there regarding the child's well-being, which would then prohibit Arkansas from retaining jurisdiction under 5 9-19-201(a)(4) Johnson testified that the child was born in California, lived there with her mother for at least six months _ before moving to Arizona for, at the most, four rnonths, then back to California for an unspecified amount of time, then to Nevada for, at the most, three months, then back to California until the present time. That testimony indicates the child was born in California, lived in California for over half of her life (except for two brief moves out of state), and lived in California at the time ot the hearing Therefore, based on Johnson's testimony and the affidavit of Weesner, the only state with which the child had "significant" connections is the State of California I Because the child had no connection with the State of Arkansas and the only way Arkansas could exercise jurisdiction would be it -the child had no home state or no significant connections with another state, we hold that the tnal court erred as a matter of law in assuming jurisdiction over the child-custody determinations in this case: Reversed and dismissed as to the child-custody adjudication. GRIFFEN and CRABTREE, JJ:, agree: ' Whether Cahforma is pursuing or decides to pursue its jurisdiction over the child-custody determination is, of course, for it to determine
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