Opinion
A20-1185
10-18-2021
Her Doua Cheng, petitioner, Appellant, v. Khou Xiong, Respondent.
Ramsey County District Court File No. 62-FA-20-497
Considered and decided by Florey, Presiding Judge; Connolly, Judge; and Hooten, Judge.ORDER OPINION
FRANCIS J. CONNOLLY JUDGE
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Her Doua Cheng (father) and respondent Khou Xiong (mother) are the unwed parents of a minor child. In March 2020, father filed a petition to establish paternity, custody, and parenting time. Following an initial case management conference, the district court found that the parties had not executed a recognition of parentage for the child. The district court also found that in "August of 2019, [mother] moved, with the child, to Wisconsin," and that father filed his summons and petition to establish paternity and custody on March 13, 2020. The district court then dismissed the case, concluding that, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), it "does not have jurisdiction in this matter." 1
2. Father moved for relief under Minn. R. Civ. P. 60.02, claiming that he discovered that there is a valid recognition of parentage signed by both parents. Father argued that "[s]ince the Court's ruling to dismiss was based solely on a lack of Recognition of Parentage, there is sufficient reason to justify relief in this matter." The district court denied father's motion, finding that the dismissal was "not based on 'a lack of Recognition of Parentage' .... Rather it was based on the court's determination that Minnesota was not the home state on the date of filing the Petition." The district court also found that "[a]t the hearing, it was undisputed that [mother] had moved the child to Wisconsin in August 2019 (six months before the Petition was filed)." The district court concluded that because it lacked jurisdiction, it "can make no determination on either parentage or custody." This appeal follows.
Mother did not file a brief in this appeal and this court ordered that the appeal proceed under Minn. R. Civ. App. P. 142.03.
3. Father challenges the district court's denial of his rule 60.02 motion for relief, arguing that the district court erred by determining that it does not have jurisdiction in this case. A district court's determination of whether it has subject-matter jurisdiction under 2 the UCCJEA presents a question of law that we review de novo. Cook, 907 N.W.2d at 238. "A district court's underlying findings of fact, however, are not set aside unless they are clearly erroneous." Id. (citing Minn. R. Civ. P. 52.01).
We note that parties seeking relief from rulings made under chapter 518, generally seek relief under Minn. Stat. § 518.145, subd. 2 (2020). But because, for purposes of this appeal, Minn. Stat. § 518.145, subd. 2, and Minn. R. Civ. P. 60.02(a), set forth substantively identical standards, any error in the district court's consideration of father's motion was harmless. Compare Minn. Stat. § 518.145, subd. 2, with Minn. R. Civ. P. 60.02(a); see also Shirk v. Shirk, 561 N.W.2d 519, 522 n.3 (Minn. 1997) (noting that language of Minn. Stat. § 518.145 closely parallels that of Minn. R. Civ. P. 60.02). And because father challenges the district court's decision that it lacks subject-matter jurisdiction, which can be made at any time, his argument is properly before this court. See McCullough & Sons, Inc. v. City of Vadnais Heights, 883 N.W.2d580, 584 (Minn. 2016) (stating that jurisdiction "is a threshold question" that "may be raised at any time by the parties or sua sponte by the court"); see also Cook v. Arimitsu, 907 N.W.2d 233, 237 (Minn.App. 2018) ("The issue of subject-matter jurisdiction can be raised at any time in the proceeding." (quotation omitted)), rev. denied (Minn. Apr. 17, 2018).
4. "The UCCJEA provides four bases for a Minnesota court to have jurisdiction to make an initial child-custody determination" with "[h]ome-state jurisdiction [being] one basis." Id.; Minn. Stat. § 518D.201(a)(1) (2020). Home-state jurisdiction exists when Minnesota is the
home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six 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.Minn. Stat. § 518D.201(a)(1). "Home state" is specifically defined as "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding." Minn. Stat. § 518D.102(h) (2020). "A period of temporary absence [from the state] is part of this period." Id.
5. Here, the district court determined that it did not have jurisdiction under the UCCJEA because it "was undisputed that [mother] had moved the child to Wisconsin in August of 2019 (six months before the Petition was filed)." Father argues that this finding is clearly erroneous because it was disputed that mother moved the child to Wisconsin in August of 2019. We agree. At the hearing, mother stated that she "returned" to Wisconsin "back in August of 2019 in which . . . [father] was aware . . ., because that's where it was 3 that [the child] was staying with me on weeks that I had her." The district court apparently focused on this statement in making its finding that it was "undisputed" that mother "had moved with the child to Wisconsin in August of 2019." But the record reflects that after mother made the above-referenced statement, the district court questioned whether it had jurisdiction in the matter. In response to the district court's questioning of jurisdiction, father's counsel stated that the child has been living in Minnesota "half the time and I don't believe that my client is aware" that mother and the child were living in Wisconsin. Father's counsel added that "the child has been living [in Minnesota] . . ., all her life. And then . . ., half of the time with him."
6. Moreover, mother stated earlier in the hearing that the child has been living with her "since February of 2020." This statement appears to be consistent with mother's answer to father's petition, in which she states that the child has lived with her at her Wisconsin address since February 12, 2020. And father's affidavit in support of his rule 60.02 motion states that the child "was residing with me in Minnesota equally until February 2020." The discrepancies in the record pertaining to when the child moved to Wisconsin demonstrate that the district court clearly erred by finding that it was "undisputed" that the child has lived in Wisconsin since August of 2019. Therefore, we reverse and remand for the district court to address the jurisdictional dispute. On remand, the district court has discretion in deciding whether to reopen the record.
IT IS HEREBY ORDERED:
1. The district court's order is reversed and remanded. 4
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel. 5