Opinion
No. 63272-8-I.
January 25, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-3-05170-0, Mariane Spearman, J., entered June 4, 2009.
Reversed and remanded by unpublished opinion per Lau, J., concurred in by Ellington and Leach, JJ.
Kevin McGlynn, a dual citizen of the United States and Ireland, and Klaudia Batkiewicz, a Polish citizen, are the parents of Patryk, who was born in Washington State. Batkiewicz and Patryk left Washington and returned to Poland when Patryk was 3 months, 22 days old. McGlynn appeals the dismissal of his Washington child custody proceeding under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), arguing that the trial court erred by (1) determining that Washington was not the child's home state, (2) applying the wrong standard in determining that the child's absence from Washington was not temporary, and (3) finding that the child lacks "significant connections" to Washington under RCW 26.27.201(1)(b). Because Washington was the child's home state within six months before the action commenced, we reverse and remand for further proceedings.
FACTS
McGlynn and Batkiewicz are the parents of Patryk. Patryk was born in Washington state on September 20, 2007. McGlynn is a dual citizen of Ireland and the United States and resides in Washington state. Batkiewicz is a Polish citizen and resides in Nowy Targ, Poland.
Batkiewicz arrived in the United States on June 4, 2007, on a tourist visa in order to give birth to Patryk. Batkiewicz and Patryk left the United States to return to Poland on January 12, 2008, when Patryk was 3 months, 22 days old. They have not returned to the United States.
On June 27, 2008, when Patryk was 9 months old, McGlynn filed a petition in King County Superior Court to determine a residential schedule, parenting plan, and child support. Batkiewicz initially filed a pro se response that failed to contest subject matter jurisdiction. But after retaining counsel, she filed an amended response that asserted Washington lacked subject matter jurisdiction.
On October 24, 2008, Batkiewicz filed a custody proceeding in Poland and a Polish court granted her "exclusive care and custody" of Patryk. This order appears to be the Polish equivalent of a temporary custody order. On February 4, 2009, McGlynn filed an action in Poland under the Hague Convention on the civil aspects of international child abductions seeking Patryk's return to the United States. These proceedings remain pending but are not at issue in this appeal.
On April 3, 2009, the trial court granted Batkiewicz's motion to dismiss McGlynn's Washington action for lack of subject matter jurisdiction. In its written order, the court found,
3. The Petition in this matter was filed on June 27, 2008. At the time the Petition was filed, Washington was not Patrick's "home state" as that term is defined in the UCCJEA because Patrick, who was over the age of 6 months, had not resided in the State of Washington for the 6 months immediately preceding the filing of the Petition.
4. At the time the petition was filed, Poland was not Patrick's "home state" . . . because Patrick had only resided in Poland for 5 months and not 6 months as required by the statute.
5. The mother and child went to Poland in January, 2008. Because they have not since returned, their absence cannot be deemed temporary. At this time, Patrick does not have a significant connection with the State of Washington and there is not substantial evidence available in this state concerning the child's care, protection, training, and personal relationships. . . .
Thecourt, however, did not dismiss McGlynn's petition to establish child support.
In addition, the trial court stayed its dismissal order for 14 days to allow McGlynn to seek review in this court. McGlynn sought an emergency stay and moved for accelerated review of the trial court's dismissal order from this court. A commissioner of this court denied the emergency stay and directed McGlynn to seek clarification of the appealability of the trial court's dismissal order. The trial court subsequently issued a second order clarifying that its April 3, 2009 order of dismissal was a final judgment on the issue of the parenting plan (and custody). McGlynn again filed a notice of appeal and moved for expedited review. We granted McGlynn's motion for expedited review.
ANALYSIS
Standards of Review
The determination of subject matter jurisdiction is a question of law reviewed de novo. In re Marriage of Kastanas, 78 Wn. App. 193, 197, 896 P.2d 726 (1995). Subject matter jurisdiction is "the authority of the court to hear and determine the class of actions to which the case belongs." In re Adoption of Buehl, 87 Wn.2d 649, 655, 555 P.2d 1334 (1976). A superior court always has jurisdiction to determine whether it has subject matter jurisdiction and whether it should exercise its jurisdiction. Kastanas, 78 Wn. App. at 201. A party may raise a lack of subject matter jurisdiction argument at any time during a proceeding, and failure to raise it in an initial appearance will not waive the argument. Skagit Surveyors Eng'rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 556, 958 P.2d 962 (1998).
Home State Jurisdiction
McGlynn contends that the trial court erred in determining that it lacked subject matter jurisdiction over his child custody action because Washington was not Patryk's home state under the UCCJEA. Batkiewicz responds that because Washington is not the child's home state, the court properly found that it lacked subject matter jurisdiction.
The UCCJEA provides the basis for initial subject matter jurisdiction over a child custody dispute in Washington.
"Laws governing the existence and exercise of jurisdiction in child custody cases, and regulating the interstate enforcement of child custody determinations spring from Congress as well as the state legislatures. The National Conference of Commissioners on Uniform State laws (NCCUSL) is the source of the [Uniform Child Custody Jurisdiction Act] UCCJA, the state law that has dominated the field since its approval in 1968. . . .
"NCCUSL has been in existence for over 100 years to promote uniformity in state law and interstate cooperation by developing uniform acts and endeavoring to secure their enactment by voluntary action of each state government." Patricia M. Hoff, The ABC's of the UCCJEA: Interstate Child-Custody Practice Under the New Act, 32 Family Law Quarterly, 267, 269 (Summer 1998). In July 1997, an updated and enhanced version of the UCCJA, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), was unanimously adopted by the NCCUSL. "The Act was approved in February 1998 by the American Bar Association House of Delegates." Hoff, supra, at 267. And the Act was subsequently made available for state adoption. Most states have now adopted the UCCJEA, and in 2001, Washington state replaced the UCCJA by adopting the UCCJEA. Chapter 26.27 RCW.
RCW 26.27.201(1)(a) states,
(1) Except as otherwise provided in RCW 26.27.231, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) This state 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.
Under this provision, we must first determine if Washington was either (1) the home state of the child at the time of the commencement of the proceeding or (2) the home state within six months before the commencement of the proceeding if the child is absent but a parent or person acting as a parent continues to live in this state. In this appeal, neither party asserts that Washington was Patryk's home state when the proceeding was commenced on June 27, 2008. Thus, Washington would have jurisdiction to make an initial child custody determination if it were the child's home state within six months of the date the action was filed in Washington, provided the child is absent from Washington, but one parent is living in Washington. Here, the undisputed record shows that on June 27, 2008, Patryk was absent from Washington, but McGlynn continued to live in the state. Therefore, the question is whether Washington was Patryk's home state within six months before commencement of the proceeding.
Under RCW 26.27.021(7), "home state" means either (1) the state where the 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 (the "six consecutive months" provision) or (2) if the child is less than six months old, the state where the child has lived from birth with a parent or person acting as a parent (the "from birth" provision). But because Patryk was 3 months, 22 days old when he left Washington, he does not satisfy the "six consecutive months" provision.
RCW 26.27.021(7) provides, "`Home state' means 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 a parent or person acting as a parent. A period of temporary absence of a child, parent, or person acting as a parent is part of the period."
McGlynn therefore relies on the "home state within six months" provision of RCW 26.27.201(1)(a), to argue that if Washington was Patryk's home state at any time within six months prior to commencement of the action, than Washington may exercise jurisdiction. According to McGlynn, since Patryk lived from birth until January 12, 2008, in Washington, Washington was Patryk's home state on that date under the "from birth" provision. And because he commenced the action on June 27, 2008, five and a half months from the date Patryk left Washington, jurisdiction in Washington is proper under the "home state within six months" provision of RCW 26.27.201(1)(a).
Batkiewicz responds that the "from birth" provision applies only when the child is less than six months old at the time of the commencement of the action. While Patryk was 3 months, 22 days old when Batkiewicz took him to Poland, he was over 9 months old when McGlynn commenced the action. Batkiewicz thus maintains that Washington is not Patryk's home state under either home state definition.
While correctly acknowledging that no Washington case addresses "the proper application of the statutory exception [, i.e., the `from birth' provision] for children under the age of 6 months," Batkiewicz points to Carter v. Carter, 758 N.W.2d 1 (Neb. 2008). Br. of Respondent at 14. She contends that Carter supports her interpretation that the "from birth" provision applies only when the child is less than six months old at the time of the commencement of the action.
In that case, a couple's son was born in Nebraska and the family left for the mother's native Japan 10 weeks later. After two and a half years, the husband, without telling his wife, left with the child for Nebraska and instituted divorce and child custody proceedings there. Carter, 758 N.W.2d at 5. The court analyzed the "from birth" provision, finding that "the statement that `[i]n the case of a child less than six months of age, [home state] means the state in which the child lived from birth' refers back to the sentence preceding it and applies only to a child custody case involving a child under the age of six months of age at the time of the commencement of the proceedings." Carter, 758 N.W.2d at 7. The court went on to note, "[I]f the child and his or her parents have been living in another state for the 6 months immediately preceding the commencement of a custody proceeding, then the state in which the child was born is not the child's home state. . . ." Carter, 758 N.W.2d at 8.
Carter is neither controlling, nor applicable. First, unlike here, the child in Carter had been living in Japan for two and a half years before the proceeding. Thus, the court's analysis of the "from birth" provision, which by its terms applies only to children under six months of age, was unnecessary to decide the case. See Ass'n of Wash. Bus. v. Dep't of Revenue, 155 Wn.2d 430, 442 n. 11, 120 P.3d 46 (2005) ("`Statements in a case that do not relate to an issue before the court and are unnecessary to decide the case constitute obiter dictum, and need not be followed.'") (quoting State v. Potter, 68 Wn. App. 134, 149 n. 7, 842 P.2d 481 (1992)). Second, the court's "from birth" analysis applies to only those circumstances where the "child and . . . parents have been living in another state for the 6 months immediately preceding the commencement of a custody proceeding." Carter, 758 N.W.2d at 8. By contrast, Batkiewicz and Patryk had lived in Poland for only five and a half months when McGlynn filed his child custody action. Thus, Batkiewicz's reliance on Carter is unpersuasive.
In interpreting a statute, our goal is to effectuate the legislature's intent. Dep't of Ecology v. Campbell Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Our review of the legislative history here reveals no legislative intent to limit application of the "from birth" provision to circumstances where the child is under the age of six months at the time the action is commenced. And Batkiewicz identifies no controlling case authority to support this bare assertion.
Batkiewicz's interpretation also encourages forum shopping based on selective filing dates, which conflicts with the purposes of the UCCJEA as set out in the comments to the Uniform Law. "[I]ts purposes . . . are to: (1) Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being." UCCJEA § 101 cmt., 9 U.L.A. 657 (1999). Furthermore, "the UCCJEA was intended to make the determination of jurisdiction more straightforward" and "`[d]iscourage the use of the interstate system for continuing controversies over child custody,'" and to "`[d]eter abductions of children.'" Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005) (citing UCCJEA § 101 cmt., 9 U.L.A. 657 (1999)).
Moreover, Batkiewicz's interpretation of the "from birth" provision produces an absurd result. See Tingey v. Haisch, 159 Wn.2d 652, 663-64, 152 P.3d 1020 (2007) ("the court will avoid literal reading of a statute which would result in unlikely, absurd, or strained consequences. A reading that produces absurd results must be avoided because it will not be presumed that the legislature intended absurd results") (internal citations omitted). For example, a child is born in Washington, lives here with his parents, and then moves with his mother to another state when he is five and a half months old, but the father remains in Washington. One month later when the child is six and a half months old, the father files an action in Washington. Under Batkiewicz's analysis, Washington is not the home state because the child did not live in Washington for six months and the "from birth" provision does not apply because the child is over six months old when the action is commenced. Under this example, Batkiewicz's interpretation gives no effect to the "from birth" provision despite the fact that the child lived from birth until age five and half months in Washington. See Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996) ("Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous.").
We also reject Batkiewicz's contention that Patryk's mere presence in Washington does not confer jurisdiction. Under the plain and ordinary definition of "lived," Patryk lived in Washington from birth until he and Batkiewicz left for Poland. See Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005) ("A statutory term that is left undefined should be given its `usual and ordinary meaning . . .'") (quoting State v. Hahn, 83 Wn. App. 825, 832, 924 P.2d 392 (1996)). And in Powell, the court reasoned, "The Family Code defines `home state' as the state in which a child `lived' with a parent. The word `lived' strongly connotes physical presence." Powell, 165 S.W.3d at 326 (internal citations omitted) (citing Webster's Third New International Dictionary 1323 (1961) (defining "live" as "to occupy a home")).
RCW 26.27.201(a) provides that Washington has jurisdiction to make an initial child custody determination if it was Patryk's home state within six months before commencement of the proceeding and the child is absent from Washington, but a parent continues to live in Washington. Here, McGlynn filed the Washington action on June 27, 2008. On that date, Patryk had lived in Washington from birth to January 12, 2008, when Batkiewicz and Patryk returned to Poland and Patryk was 3 months, 22 days old. The day he left — January 12, 2008 — is a date during the six months preceding June 27, 2008, the commencement date. And on that date, Patryk was absent from Washington but McGlynn continued to reside in the state. Given these undisputed facts, we conclude that Washington was the home state within six months before the proceeding commenced and Washington has initial jurisdiction under RCW 26.27.201(a)(1).
This conclusion, however, does not mean that the trial court is required to exercise its jurisdiction. As Batkiewicz correctly urged in her appellate brief, the trial court can decline to exercise its jurisdiction under RCW 26.27.261 if it determines that Washington is an inconvenient forum and Poland is a more appropriate forum. See In re Burk, 252 S.W.3d 736, 741 (Tex. 2008) ("`Applying a physical-presence test to determine home-state jurisdiction, then allowing that court to consider [if] the forum's relative convenience, creates jurisdictional certainty without diluting the significance of the underlying facts and circumstances presented in an individual case.'" (quoting Powell v. Stover, 165 S.W.3d 322, 327 (Tex. 2005) and citing Texas's equivalent of RCW 26.27.261)). But the question of whether Poland is a more appropriate forum is a determination that must be made by the trial court. We decline to resolve this question as a matter of law based on the record before us.
RCW 26.27.261 provides,
"(1) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.
"(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the-parties to submit information and shall consider all relevant factors, including:
"(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
"(b) The length of time the child has resided outside this state;
"(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
"(d) The relative financial circumstances of the parties; "(e) Any agreement of the parties as to which state should assume jurisdiction;
"(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
"(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
"(h) The familiarity of the court of each state with the facts and issues in the pending litigation."
Because we conclude that Washington is Patryk's home state under RCW 26.27.021(7) and .201(1)(a), we do not address McGlynn's temporary absence or "significant connections" arguments. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Under RCW 26.27.201(1)(b), "significant connections" analysis applies " only if the child has no home state or the home state has declined jurisdiction on the ground that Washington is the more appropriate forum." In re Marriage of Hamilton, 120 Wn. App. 147, 157, 84 P.3d 259 (2004).