Opinion
No. 29174-0-III.
Filed: July 12, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Spokane County, No. 09-3-02310-5, Gregory D. Sypolt, J., entered May 26, 2010.
Affirmed by unpublished opinion per Siddoway, J., concurred in by Korsmo, A.C.J., and Brown, J.
The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) governs the exercise of jurisdiction in child custody cases, with a view to uniformity and cooperation between state courts in resolving disputes involving parents who reside in or relocate to different states. In this case, the superior court concluded that full faith and credit was not due a California court order that granted visitation to the maternal grandparents of the children of Allan and Hilary Snodgrass; the grandparents reside in California, while the Snodgrass family resides in Spokane. The superior court determined that Washington had jurisdiction over issues involving the children and that the grandparents have no custody or visitation rights. The grandparents appeal. We conclude that the superior court properly applied the UCCJEA and affirm.
Unif. Child-Custody Jurisdiction Enforcement Act, 9 pt. 1A U.L.A. 649 (1999).
FACTS AND PROCEDURAL BACKGROUND
Allan and Sherise Snodgrass had two children during their marriage: a daughter, born in 1999, and a son, born in 2001. The couple divorced on July 15, 2004 in California and entered a stipulated agreement to share joint legal and physical custody of the children. Sherise died in a car accident on March 24, 2006. A month after her death, Mr. Snodgrass moved with his children to Spokane, Washington, where he and the children have lived continuously since. In June 2007, Mr. Snodgrass married Hilary Brown, now Hilary Snodgrass, who later adopted the children.
Ramifications of Hilary Snodgrass's adoption of the children were not addressed by the parties' briefing or in response to questions at oral argument. We therefore do not consider how the adoption affects the grandparents' rights, if at all.
Appellants Roger Jolicoeur and Judy Wiley (the Jolicoeurs) are Sherise's parents, making them the biological maternal grandparents of the Snodgrass children. The Jolicoeurs live and have lived in California at all times relevant to this appeal.
In late 2007, more than 18 months after Mr. Snodgrass moved with the children to Spokane, the Jolicoeurs hired a California attorney to assist them in obtaining visitation with their grandchildren. They filed a motion in Riverside County, California, seeking leave to intervene in the 2004 California dissolution action and requesting court-ordered visitation. They relied on § 3102(a) of the California Family Code, which provides in relevant part, "If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation . . . upon a finding that the visitation would be in the best interest of the minor child."
The Jolicoeurs' motion was heard by the California court on May 16, 2008. Counsel for Mr. Snodgrass specially appeared and argued that it was pointless for the California court to take any action. He argued that proper procedure would be for the grandparents to file an independent action in Washington. California and Washington both have adopted the UCCJEA. Cal. Fam. Code §§ 3400- 3465; ch. 26.27 RCW.
The California court concluded that by virtue of the custody determination in the dissolution action, it had "home state" jurisdiction under the UCCJEA, although it characterized California as an "inconvenient forum," recognizing that the Snodgrass children had been living with their father in Washington for two years. Clerk's Papers (CP) at 9-11. After vacillating on the issue of whether to join the Jolicoeurs as parties to the dissolution proceeding and hearing argument from the Jolicoeurs' lawyer that joinder in the California proceeding was the only procedure by which the Jolicoeurs could seek visitation, the court granted the motion to join the Jolicoeurs as parties.
Additional hearings and unsuccessful court-ordered mediation followed in the California action. The Jolicoeurs revealed in the California action that Mr. Snodgrass had expressed reservations about their continued visitation based on actions taken by Mr. Jolicoeur following Sherise's death to exercise ostensible "grandparent's rights" on behalf of the children, including establishing a fund and soliciting donations from the community for the children's support and exploring a lawsuit on behalf of the children, without consulting with Mr. Snodgrass. CP at 254-55. In proceedings below, Mr. Snodgrass testified that while he later agreed to visitation by Ms. Wiley in Spokane, he learned after the fact that while alone with his daughter, Ms. Wiley placed a phone call to Mr. Jolicoeur, had her granddaughter speak to him knowing of Mr. Snodgrass's objection, and then told her granddaughter not to tell Mr. Snodgrass about the call. Mr. Snodgrass also testified in proceedings below that he offered visitation on three other occasions that was declined by the Jolicoeurs, and that when he asserted control and identified conditions for future contact they responded with verbal threats. CP at 163-64.
Without the participation or Mr. and Mrs. Snodgrass, the California court ruled on August 21, 2009 that the Jolicoeurs would receive visitation rights. A written order to that effect was filed on September 18. In ordering visitation contrary to the parents' wishes, the court made a finding that there had been no effort by Mr. Snodgrass to provide visitation to the grandparents, distinguishing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), evidently in an effort to avoid constitutional attack. CP at 231; cf. Troxel, 530 U.S. at 68-69 (affirming the unconstitutionality of a visitation statute under which paternal grandparents were granted visitation over mother's objection following the death of their son; "so long as a parent adequately cares for his or her children ( i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children"). On February 24, 2010, the court set specific times and dates for visitation. Mr. Snodgrass did not appeal the California orders.
Meanwhile, Mr. and Mrs. Snodgrass had initiated the proceeding below on September 9, 2009. They sought declaratory relief against the Jolicoeurs, including a determination that Washington had exclusive jurisdiction over custody and visitation rights with the children and that the grandparents had no legal right to visitation.
In May 2010, the trial court granted summary judgment to the Snodgrasses. A motion for reconsideration was denied and this appeal followed.
ANALYSIS I
The Jolicoeurs argue that the superior court violated its duty to respect the custody determination of a sister state under the UCCJEA, an act that our Supreme Court has described as "a pact among states limiting the circumstances under which one court may modify the orders of another." In re Custody of A.C., 165 Wn.2d 568, 574, 200 P.3d 689 (2009). By refusing to extend full faith and credit to decisions by the California court that the Snodgrasses never appealed, the Jolicoeurs contend that the superior court assumed the role of a California appellate court, thereby threatening a return to the "anarchy of the pre-UCCJEA-jungle." Reply Br. of Appellants at 5. We first address this argument that the superior court had no authority to disregard the California orders.
In light of California's and Washington's adoption of the UCCJEA, it is the exclusive basis to determine the jurisdictional issues raised in this appeal. Cal. Fam. Code §§ 3400- 3465; ch. 26.27 RCW; see Custody of A.C., 165 Wn.2d at 574. The act applies to all "child custody proceedings," a term that has been broadly defined and includes proceedings determining visitation rights. RCW 26.27.021(4). The purposes of the UCCJEA include avoiding jurisdictional competition and conflict with courts of other states in matters of child custody, avoiding relitigation of custody decisions of other states in this state, and facilitating the enforcement of custody decrees of other states. UCCJEA § 101 cmt., 9 pt. 1A U.L.A. at 657.
Every state except for Massachusetts and Vermont has enacted the UCCJEA. Noah L. Browne, Relevance and Fairness: Protecting the Rights of Domestic-Violence Victims and Left-Behind Fathers Under the Hague Convention on International Child Abduction, 60 Duke L.J. 1193, 1232 n. 264 (2011).
The terms "custody" and "visitation" are used throughout this opinion because these terms are utilized by the UCCJEA. Washington has otherwise substituted concepts of "parenting plans" and "parental functions" with adoption of the Parenting Act of 1987, ch. 26.09 RCW. See In re Marriage of Pape, 139 Wn.2d 694, 712, 989 P.2d 1120 (1999).
Nonetheless, the fact that a sister state has entered an order is the beginning, not the end, of a full faith and credit analysis, generally and under the UCCJEA. While it is not the place of a Washington court to reexamine the correctness of a sister state's judgment if the sister state had jurisdiction over the parties and subject matter and the judgment is valid where entered, see U.S. Const. art. IV, § 1, it is the right and duty of a Washington court to examine whether its sister state had jurisdiction to enter the order.
As noted in Custody of A.C., the "subject matter jurisdiction" that the UCCJEA recognizes in states that have the requisite relationship to the child, the parents, and the dispute might more accurately have been termed "exclusive venue," given the different, constitutional character of what we usually call subject matter jurisdiction. 165 Wn.2d at 573 n. 3. For consistency, we use the statutory language.
The UCCJEA does not require an adopting state to recognize a custody determination by a sister state that assumed jurisdiction in violation of its provisions. UCCJEA § 303(a), 9 pt. 1A U.L.A. at 690 ( see RCW 26.27.421(1); Cal. Fam. Code § 3443(a)) provides, "A court of this State shall recognize and enforce a child-custody determination of a court of another State if the latter court exercised jurisdiction in substantial conformity with this [Act]." (Emphasis added) (alteration in original). UCCJEA § 106, 9 pt. 1A U.L.A. at 663 ( see RCW 26.27.061; Cal. Fam. Code § 3406) provides, "A child-custody determination made by a court of this State that had jurisdiction under this [Act] binds all persons who have been served in accordance with the laws of this State . . . or who have submitted to the jurisdiction of the court." (Emphasis added) (first alteration in original). Pursuant to these provisions, Washington courts and courts in other adopting states are authorized to make their own determinations as to whether a sister state has acted in substantial conformity with the jurisdictional requirements of the UCCJEA. In re Marriage of Hamilton, 120 Wn. App. 147, 157, 84 P.3d 259 (2004) (recognizing that Washington cannot give full faith and credit to orders issued by other states acting contrary to the UCCJEA); and see, e.g., In Marriage of Rosen, 222 W. Va. 402, 408, 664 S.E.2d 743 (2008) (finding that the Ohio court did not possess subject matter jurisdiction of the case and that the West Virginia court did not err by declining to give full faith and credit to the Ohio custody order); In re Jorgensen, 627 N.W.2d 550, 562-63 (Iowa 2001) (deciding that New York lacked subject matter jurisdiction to make a child custody determination and therefore the Iowa district court was not required to recognize and enforce the New York custody order), cert. denied, 535 U.S. 1000 (2002).
These decisions conform to the general maxim that courts of one state are not obliged to recognize a judgment of another state that is entered without jurisdiction over the subject matter or the parties. City of Yakima v. Aubrey, 85 Wn. App. 199, 203, 931 P.2d 927 (recognizing that "[f]ull faith and credit need not be extended to a foreign judgment if the court lacked jurisdiction to hear a case in the first place"), review denied, 132 Wn.2d 1011 (1997); In re Estate of Stein, 78 Wn. App. 251, 261, 896 P.2d 740 (1995) ("a decree of a sister state may be subject to collateral attack for want of jurisdiction over the subject matter of the action"), review denied, 128 Wn.2d 1014 (1996); Restatement (Second) of Conflict of Laws § 104 (1971) ("A judgment rendered without judicial jurisdiction . . . will not be recognized or enforced in other states."). If it were otherwise, Washington parents would be forced to defend their rights in any court, anywhere, that purported to have jurisdiction over the custody of their children — no matter how blatantly lacking in jurisdiction that foreign court might be.
Accordingly, the superior court was not required to honor the California visitation orders without first examining whether the California court substantially complied with the jurisdictional requirements of the UCCJEA.
II
Summary judgment is appropriate where there are no disputed material facts and the moving party is entitled to judgment as a matter of law. CR 56(c); McGowan v. State, 148 Wn.2d 278, 289, 60 P.3d 67 (2002). The appellate court engages in the same inquiry as the trial court, with questions of law reviewed de novo and the facts and all reasonable inferences from the facts viewed in the light most favorable to the nonmoving party. Williamson, Inc. v. Calibre Homes, Inc., 147 Wn.2d 394, 398, 54 P.3d 1186 (2002). The determination of subject matter jurisdiction under the UCCJEA is a question of law reviewed de novo. In re Marriage of Susan C., 114 Wn. App. 766, 773, 60 P.3d 644 (2002). When interpreting this act, we give consideration to "the need to promote uniformity of the law with respect to its subject matter among states that enact it." RCW 26.27.901.
UCCJEA § 202, 9 pt. 1A U.L.A. at 673-74, provides that a court making an initial child custody determination — and in the case of the Snodgrass children, this was the state of California, which first ordered joint custody for Allan and Sherise Snodgrass — retains exclusive, continuing jurisdiction over the matter until certain statutorily-prescribed events occur. One event that divests the initial forum state of jurisdiction is when "a court of this State or a court of another State determines that the child, the child's parents, and any person acting as a parent do not presently reside in" the initial forum state. Id. § 202(a)(2), 9 pt. 1A at 673 ( see RCW 26.27.211(1)(b); Cal. Fam. Code § 3422(a)(2)).
The Jolicoeurs contend that they are "persons acting as parents" under the UCCJEA, thereby preserving California's exclusive, continuing jurisdiction over custody and visitation matters. Reply Br. of Appellants at 7. As support, they argue that the California Family Code, by recognizing their potential eligibility for visitation rights because their daughter is deceased, substitutes them, in a sense, for their daughter. But "person acting as a parent" is a defined term in the UCCJEA, and it does not extend to the Jolicoeurs' relationship to the Snodgrass children. "Person acting as a parent" as defined by the UCCJEA means a person other than a parent who
(A) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child-custody proceeding; and
(B) has been awarded legal custody by a court or claims a right to legal custody under the law of this State.
UCCJEA § 102(13), 9 pt. 1A U.L.A. at 658-59 ( see RCW 26.27.021(13); Cal. Fam. Code § 3402(m)). The Jolicoeurs have never had physical custody of the children.
Comments to the UCCJEA reflect the intent of the drafters to narrowly define "person acting as a parent." They discuss the UCCJEA's omission of the term "contestants" used under the earlier Uniform Child Custody Jurisdiction Act (UCCJA) to refer to "'a person, including a parent, who claims a right to custody or visitation rights with respect to a child.'" Id. § 102 cmt., 9 pt. 1A at 660 (quoting UCCJA § 2(1), 9 pt. 1A U.L.A. 286 (1999)). The comment explains that the reference to "contestants" had "little purpose." Id. Elsewhere, the comments explain, "The Conference decided that a remaining grandparent or other third party who claims a right to visitation, should not suffice to confer exclusive, continuing jurisdiction on the State that made the original custody determination after the departure of the child, the parents and any person acting as a parent." Id. § 202 cmt., 9 pt. 1A at 675; and see accord id. § 201 cmt., 9 pt. 1A at 672 (by retaining the "parent or person acting as a parent" classification to define who must remain in a state for the state to exercise six-month extended home state jurisdiction, "[t]his eliminates the undesirable jurisdictional determinations which would occur as a result of differing state substantive laws on visitation involving grandparents and others").
Because the Jolicoeurs are not "persons acting as a parent" within the meaning of the act, California lost exclusive, continuing jurisdiction in May 2008 when it determined that the children and Mr. Snodgrass no longer resided in California.
Having lost exclusive, continuing jurisdiction, California could modify its initial child custody determination only if it had jurisdiction to make an initial determination under § 201. Id. § 202(b), 9 pt. 1A at 674 ( see RCW 26.27.211(2); Cal. Fam. Code § 3422(b)). None of the bases for exercising jurisdiction under § 201 existed at the time the California court entered its visitation order. The Jolicoeurs' only argument to the contrary depends on their contention, which we have rejected, that they are "persons acting as a parent" within the meaning of the UCCJEA.
The Jolicoeurs offer one last argument against the superior court's entertaining the Snodgrasses' declaratory judgment action, based not on the UCCJEA itself, but on our Supreme Court's decision in Custody of A.C. In Custody of A.C., the court held that Washington courts lacked jurisdiction under the UCCJEA to decide a custody dispute between foster parents of A.C. who resided in Montana and A.C.'s mother, who originally resided with A.C. in Montana but had moved with her to Washington, in light of the earlier and ongoing jurisdiction of a Montana court. The Jolicoeurs rely on the opinion's following discussion of the UCCJEA:
Under the UCCJEA, a Washington court may modify Montana's initial child custody determination only if either Montana declines jurisdiction or all parties have left that state. RCW 26.27.221.
The UCCJEA provides, in pertinent part:
Except as otherwise provided in RCW 26.27.231, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under RCW 26.27.201(1)(a) or (b) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under RCW 26.27.211 or that a court of this state would be a more convenient forum under RCW 26.27.261; or
(2) A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.
RCW 26.27.221.
In essence, the UCCJEA provides that unless all of the parties and the child no longer live in the state that made the initial determination sought to be modified, that state must first decide it does not have jurisdiction or decline jurisdiction. See id.
165 Wn.2d at 574-75 (emphasis added). Relying on the highlighted language, the Jolicoeurs argue that inasmuch as they are "parties" to the California dissolution proceeding and have not left that state, Custody of A.C. requires that California must first decide it does not have jurisdiction or decline jurisdiction before Washington can assert jurisdiction.
Read in context, it is clear that the two references to "parties" that the Jolicoeurs rely on in Custody of A.C. assume, as was true in the litigation involving A.C., that "parties" to an initial determination will all be individuals whose continued presence in the initial forum state will preserve that state's jurisdiction: viz., the child, the child's parents, and any persons acting as a parent. For example, it was argued in Custody of A.C. that although the foster parents were still in Montana, they were not "persons acting as parents"; accordingly, all jurisdiction-preserving parties had left Montana, freeing Washington to act. The court rejected the argument, but only because it found that the foster parents were "persons acting as a parent" and therefore sufficed to preserve Montana's jurisdiction. Id. at 576. The court also concluded its discussion of pertinent provisions of the UCCJEA in Custody of A.C. with the statement that "Montana has jurisdiction over this dispute because Montana made the initial child custody determination regarding A.C., the [foster parents] are persons acting as parents under the act who still reside in Montana, and Montana has not declined jurisdiction." Id. at 575 (emphasis added). The incidental reference to "parties" in Custody of A.C. therefore does not avail the Jolicoeurs.
Because the children and the parents were no longer in California, the California court acted without jurisdiction in modifying its initial child custody determination to grant visitation to the Jolicoeurs. The superior court correctly declined to accord full faith and credit to the California orders. See Hamilton, 120 Wn. App. at 157.
III
The superior court also correctly determined that whatever California's authority, Washington courts had jurisdiction to modify its determinations. UCCJEA § 203, 9 pt. 1A U.L.A. at 676 ( see RCW 26.27.221) addresses when a court of one state may modify a child custody determination made by another. RCW 26.27.221 provides in pertinent part:
[A] court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under RCW 26.27.201(1)(a) or (b) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under RCW 26.27.211 or that a court of this state would be a more convenient forum under RCW 26.27.261; or
(2) A court of this State or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.
The Jolicoeurs concede that Washington had jurisdiction to make an initial child custody determination in the action below under RCW 26.27.201(1)(b). Reply Br. of Appellants at 6. It had jurisdiction to make an initial determination under RCW 26.27.201(1)(a) as well, since Washington qualified as the "home state" of the children at the time the Washington action was filed. See In re Marriage of Tostado, 137 Wn. App. 136, 148, 151 P.3d 1060 (2007) (recognizing that Washington had home state jurisdiction under RCW 26.27.201(1)(a) for modification purposes where the parents and children lived in Washington for more than six consecutive months before the action was filed in Washington).
The requirement of RCW 26.27.221(2) is also clearly satisfied; once again, the Jolicoeurs' only argument that it is not satisfied is their rejected contention that they are "persons acting as parents" as used in that provision. The superior court correctly and alternatively relied on its jurisdiction to modify the California orders as a basis for granting the declaratory relief requested by Mr. and Mrs. Snodgrass.
We affirm.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KORSMO, A.C.J. and BROWN, J., concur.