Opinion
No. C3-98-1713.
Filed April 27, 1999.
Appeal from the District Court, Winona County, File No. F4-98-52.
Dale C. Nathan, (for appellant)
Robert C. Youngerman, Paul E. Mundt, (for respondent)
Howard K. Kruger, (for children)
Considered and decided by Harten, Presiding Judge, Shumaker, Judge, and Foley, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant challenges the district court's order transferring jurisdiction in this child custody matter to Wisconsin. Appellant also asserts that a previous order by the district court was invalidated by the district court's decision transferring jurisdiction. We affirm.
FACTS
The parties dissolved their marriage in 1990, and appellant Marilyn Kanthack, n/k/a Marilyn Hull (Hull), was awarded custody of the parties' three children. By agreement of the parties, in August 1995 the parties' two youngest children began living with respondent Warren Kanthack in Wisconsin. In October 1995, the district court ordered this temporary custody placement continued. Kanthack was awarded temporary custody of the oldest child in December 1995.
On March 6, 1996, pursuant to a deferred prosecution contract, Kanthack pleaded no contest in Wisconsin to physically assaulting the children. The children were placed in foster care for a short time, but were returned to Kanthack after Wisconsin determined that it did not have jurisdiction over custody or physical placement of the children. On June 6, 1996, the Winona County District Court ordered that Kanthack retain temporary custody of the children and reserved the custody issue for one year. The following year, the guardian ad litem filed a motion requesting the court award permanent custody to Kanthack. On July 31, 1997, the district court awarded Kanthack permanent custody of the children. Hull did not appeal from that decision.
In November 1997, Hull moved to change venue from Winona County to Ramsey County, asserting that she had lived in Ramsey County for more than one year and that Kanthack had lived in Wisconsin since 1994. The district court denied this motion. On July 20, 1998, Hull filed a motion in Winona County requesting an emergency order placing the children in Hull's custody and transferring venue to Ramsey County. Hull asserted that she feared Kanthack posed a threat to the children's physical safety. The district court issued an order on July 21, 1998, stating that it was divesting itself of jurisdiction in this matter. Hull then filed a petition for writ of mandamus with this court, requesting that this court order Rthat the matter be venued in Ramsey County. This court denied the petition and remanded the case to the Winona County District Court to determine the proper venue and to order any necessary temporary relief.
On August 6, 1998, Hull assisted the children in leaving Kanthack's home and coming to St. Paul. On August 8, the children were placed in Ramsey County shelters on a 72-hour hold. Hull filed a petition for writ of mandamus with the supreme court on August 10, requesting that the court order Winona County to transfer the file to Ramsey County and order Ramsey County to assume venue over the matter. On August 12, the supreme court stayed proceedings on the writ and ordered Winona County to decide the proper venue for this matter within seven days. The supreme court also ordered that Ramsey County would retain physical custody of the children pending further order of the supreme court.
On August 12, the children were transported back to Wisconsin and placed in protective custody there. A hearing to determine temporary custody was held the next day in Buffalo County, Wisconsin. During that hearing, a telephone conference was held with the Winona County District Court. Winona County agreed that the children should stay in Wisconsin pending a hearing in Winona to be held the following week. The Wisconsin court then ordered the children placed in foster care in Wisconsin.
On August 18, Winona County held a hearing to resolve jurisdiction and determined that Wisconsin had jurisdiction over the case because the children had been living in Wisconsin more than one year, had been attending school there, and all witnesses to abuse allegations against their father resided in Wisconsin. Winona County concluded that if Wisconsin declined to accept jurisdiction, Ramsey County would also have jurisdiction because the children's mother lived there. Hull now appeals from this order.
On August 24, Hull filed a supplement to her original petition for writ of mandamus with the supreme court, asserting that the supreme court should order that Ramsey County has jurisdiction. On August 25, the supreme court vacated its August 12 stay on the writ proceedings and denied the petition for writ.
DECISION I. Jurisdiction/Venue
The state that issued an original custody decree will generally maintain jurisdiction as long as that state is still the residence of the children or a parent. Nazar v. Nazar , 505 N.W.2d 628, 636 (Minn.App. 1993), review denied (Minn. Oct. 28, 1993); see also Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A(c)(2)(E) (1994) (stating court that made previous custody determination has continuing jurisdiction to modify custody if court has jurisdiction under state law and child or any contestant is state resident). Pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), however, a state may determine that it is an inconvenient forum and decline to exercise jurisdiction any time before making a decree. Minn. Stat. § 518A.07, subd. 1 (1998). A district court's decision to decline jurisdiction based on an inconvenient forum determination is discretionary and will be reversed on appeal only if the district court abused its discretion. See Sawle v. Nicholson , 408 N.W.2d 173, 179 (Minn. 1987) (stating district court finding that forum is inconvenient pursuant to Minn. Stat. § 518A.07 is within district court's discretion).
In determining whether the state is an inconvenient forum, the district court should consider the following nonexclusive factors:
(a) if another state is or recently was the child's home state;
(b) if another state has a closer connection with the child and the child's family or with the child and one or more of the contestants;
(c) if substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state;
(d) if the parties have agreed on another forum which is no less appropriate; and
(e) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 518A.01.
Minn. Stat. § 518A.07, subd. 3 (1998). This court has recognized that
when children are absent from their "decree state" for an extended length of time it may be improper and inconvenient for the court to continue exercising jurisdiction under the UCCJA in that state.
Nazar , 505 N.W.2d at 637 (citations omitted).
In this case, the children have been living in Wisconsin since 1995, and Wisconsin is now their home state. See Minn. Stat. § 518A.02(e) (1998) (defining "home state" as state where child has lived for at least last six consecutive months). Further, the children have been attending school in Wisconsin, have received counseling services in Wisconsin, and their father lives in Wisconsin. The children's only current connection with Minnesota is their mother, who resides in St. Paul. Therefore, we cannot say that the district court abused its discretion by declining to retain jurisdiction in Minnesota.
Hull also seems to be arguing that the district court abused its discretion by not transferring venue to Ramsey County. This court reviews a district court's decision denying a motion for change of venue under an abuse of discretion standard. County of Nicollet v. Haakenson , 497 N.W.2d 611, 614 (Minn.App. 1993). The court may grant a change of venue in a family law case where such a change would promote convenience for the parties or "`the ends of justice.'" Id. (quoting Minn. Stat. § 518.09 (1990)).
Other than convenience for Hull, there is no support for her request. Again, the children have been living in Wisconsin since 1995. They have been attending school and receiving counseling there, and their father lives there. Thus, the district court did not abuse its discretion by refusing to change venue to Ramsey County.
II. Prior Custody Modification Order
Hull also argues that Winona County's July 31, 1997, order is invalid because Winona County had lost jurisdiction prior to that order. Hull did not appeal the July 31 order and she is now bound by that decision. See Nazar , 505 N.W.2d at 632 (holding appellant could not challenge jurisdiction determination after time for appeal expired). Even if this court were to consider Hull's argument, it is without merit. Minnesota had jurisdiction over the children in 1997 because their mother still resided in Minnesota. See id. at 636 (recognizing state that issued original decree generally maintains jurisdiction if children or parent still reside in state). Winona County simply decided after making its July 31, 1997, decision that Minnesota was no longer a convenient forum for custody determinations. See Minn. Stat. § 518A.07, subd. 1 (stating state may determine that it is inconvenient forum at any time before making decree).