Opinion
Nos. 56942-2-I; 57528-7-I.
January 2, 2007.
Appeals from a judgment of the Superior Court for King County, No. 02-3-00724-1, Susan K. Cook, J., entered August 18 and December 16, 2005.
Counsel for Appellant(s), Stephen Gregory Smith, Smith Brown Sterling PS, Fall City, WA.
Counsel for Respondent(s), Kenneth J. Evans, Lewis, Evans Pollino, Mount Vernon, WA, Philip James Buri, Buri Funston PLLC, Bellingham, WA.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Baker and Cox, JJ.
Michael Ranz appeals from an order of the Skagit CountySuperior Court that asserted subject matter jurisdiction over an existing parenting plan. The parenting plan, originally entered in the Family Court for the Ninth Judicial Circuit of South Carolina, allocated parental authority between Michael and his former spouse, Lynnette Ranz, over the couple's two minor daughters. Specifically, Michael contends that the Skagit County Superior Court lacked subject matter jurisdiction to modify the parenting plan and also lacked personal jurisdiction over him. Citing the same jurisdictional defenses, Michael also appeals from a subsequent order of the Skagit County Superior Court finding him in contempt of court based on his refusal to comply with the provisions of the parenting plan as modified by the Skagit County Superior Court. Finding no error, we affirm.
FACTS
Michael and Lynnette were married in California on May 25, 1989, and lived together until June 4, 1995. The couple had two daughters. Michael filed for divorce in Arkansas and, on September 24, 1996, the Arkansas court named Lynnette and Michael joint custodians of the daughters. In August 1999, Lynnette and the daughters moved to South Carolina. Michael remarried and lived in Huntsville, Alabama. In April 2000, Michael filed a complaint in South Carolina seeking to change the terms of the Arkansas custody decree. On July 26, 2001, the South Carolina court entered an order naming Michael as the children's primary custodian and allowing Lynnette to have summer visitation and residential visitation on alternating holidays.
In September 2001, Michael and the daughters moved to Mount Vernon, Washington. In October 2001, Lynnette filed a motion for temporary relief with the South Carolina court, seeking to modify the terms of custody of the daughters. The South Carolina court denied the motion for temporary relief on February 4, 2002. Michael then commenced an action in Skagit County by filing a petition with the Skagit County Superior Court seeking to register the South Carolina court's July 26, 2001 order. On February 14, 2002, a Skagit County Superior Court commissioner and a South Carolina judge conducted a telephone conference to resolve whether South Carolina or Washington was the most appropriate forum to address custody issues. It was determined that, at that time, South Carolina was the more appropriate forum. The South Carolina court entered an order on March 15, 2002, giving several bases for this determination:
Skagit County No. 01-3-00633-5.
"[T]he minor children . . . have been in Washington State for less than six (6) months. . . . The mother continues to reside in South Carolina, where she and the children resided prior to the award of custody to the father. At this time, Washington does not have a closer connection to the children than South Carolina."
The Skagit County action was dismissed.
In October 2002, Lynnette moved to Bothell, Washington. On November 25, 2002, the South Carolina court found Lynnette in criminal and civil contempt for her failure to return the children to Michael following summer vacation, as required by that court's orders. In early December 2002, the South Carolina court entered three orders that curtailed Lynnette's parental rights, including an order suspending her visitation rights, and restraining her from having any contact with her daughters. On December 13, 2002, Michael commenced this action by petitioning the Skagit County Superior Court to register the orders of the South Carolina court. On March 13, 2003, a Skagit County commissioner entered an order ruling that the South Carolina orders were enforceable.
Skagit County No. 02-3-00724-1. All subsequent Washington court rulings were made under this cause number.
On May 13, 2003, the South Carolina court signed its final order concerning the custody dispute. The order terminated all of Lynnette's rights under the July 26, 2001 South Carolina parenting plan. On May 20, 2003, Michael obtained an order from the Skagit County Superior Court, which stated that "the 5-13-03 order of the So. Carolina Family Court is hereby certified and enforceable in the State of Washington."
On May 5, 2003, in this cause, Lynnette filed a petition seeking to modify the parenting plan. Michael moved to dismiss the petition and to assess CR 11 sanctions against Lynnette and her attorney. Following a May 23, 2003 hearing, a Skagit County Superior Court commissioner dismissed Lynnette's petition, concluding that the matter "should be addressed in South Carolina where the last custodial order entered on May 13, 2003."
Ten months later, on March 10, 2004, at Michael's request, the Skagit County Superior Court entered a restraining order prohibiting Lynnette "from having any contact with [her] children, directly or indirectly, by e-mail or 3rd parties." The Skagit County Superior Court, also at Michael's request, entered judgment in his favor and against Lynnette in the amount of $7,952.38 for court costs owing from the South Carolina proceeding.
On June 11, 2004, Lynnette filed a second petition in the Skagit County Superior Court, again seeking to modify the parenting plan. A Skagit County Superior Court commissioner found that Washington had subject matter jurisdiction to modify the parenting plan, and entered a temporary restraining order which prevented Michael from removing the daughters from Washington.
Michael moved to revise the commissioner's ruling. On August 19, 2004, the superior court entered an order in which it revised the commissioner's ruling. This order stated, in part:
Respondent's Motion for Revision is granted. The above-captioned action shall be dismissed without prejudice. Either party may on motion reinstate this proceeding upon proof the South Carolina appeal has been terminated and no other proceedings are pending.
Lynnette subsequently dismissed her appeal of the South Carolina court's order.
On August 21, 2004, Michael quit his job, sold his house, and moved with his daughters to South Carolina. On November 18, 2004, Lynnette again filed a petition with the Skagit County Superior Court, seeking a major modification of the parenting plan. On December 3, 2004, the Skagit County Superior Court entered an order asserting its subject matter jurisdiction over questions concerning the parenting plan. The order provided, in part:
The provisions of the August 19, 2004 Order are in place, and thus the petitioner's modification action shall be reinstated.
. . .
The Court orders that the [Uniform Child Custody Jurisdiction and Enforcement Act] home state requirement has been met as the children resided in Washington for at least 6 months prior to the petition being filed in June 2004.
The May 13, 2003, Final Order and all provisions therein shall remain in full force and effect pending a finding of adequate cause.
On March 4, 2005, Michael again moved to dismiss Lynnette's petition for modification of the parenting plan, asserting that Lynnette lacked adequate cause to support a major modification. On March 14, 2005, Lynnette amended her petition to request a minor modification, rather than a major modification.
On April 22, 2005, the Skagit County Superior Court entered an order providing both that "[t]he court has jurisdiction to proceed," and that "[t]his matter shall proceed as a minor parenting plan modification." On August 18, 2005, the Skagit County Superior Court modified the parenting plan, allowing for a resumption of Lynnette's visitation rights.
On December 16, 2005, the Skagit County Superior Court held Michael in contempt for refusing to comply with the modified parenting plan by refusing to return the daughters to Washington for court-ordered visitation with Lynnette.
Michael appeals from both the August 18, 2005 Order Re Adequate Cause and Other Relief, and the December 16, 2005 Order re Motion for Contempt.
DISCUSSION
We engage in a de novo review of challenges to subject matter and personal jurisdiction. In re Dependency of M.J.L., 124 Wn. App. 36, 40 n. 4, 96 P.3d 996 (2004); In re Marriage of Murphy, 90 Wn. App. 488, 493, 952 P.2d 624 (1998).
Although Michael asserts 37 assignments of error, the only issues he supports with argument or authority pertain to his challenges to subject matter jurisdiction and personal jurisdiction. An appellate court need not review an issue raised in passing or unsupported by authority or persuasive argument. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); Snohomish County Improvement Alliance v. Snohomish County, 61 Wn. App. 64, 68, 808 P.2d 781 (1991).
I. Subject matter jurisdiction
Michael asserts that the trial court lacked subject matter jurisdiction to modify the parenting plan, pursuant to the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A, and Washington's Uniform Child Custody Jurisdiction and Enforcement Act, chapter 26.27 RCW. We disagree.
Before a court of any state may modify a valid custody order entered by a court of another state, the PKPA requires (1) that the modifying state be the "home state" for the custodial parent and children, 28 U.S.C. § 1738A(c)(2)(A); (2) that the state that issued the original custody order lose continuing, exclusive jurisdiction, such as when all of the parties move out of the issuing state; and (3) that no custody proceedings are pending in the issuing state.
Under the Act, the home state is "the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months." 28 USC § 1738A(b)(4).
"The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as [that court has jurisdiction under its state law] and such State remains the residence of the child or of any contestant." 28 U.S.C. Â § 1738A(d).
"A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination." 28 U.S.C. § 1738A(g).
All three of the PKPA's requirements were met when the Skagit County Superior Court assumed jurisdiction over the parenting plan. First, Washington was the "home state" for the daughters, as they lived in Skagit County for three years before Lynnette filed her petition to modify the parenting plan. Second, South Carolina lost its continuing, exclusive jurisdiction when Lynnette moved to Washington in October 2002, because none of the parties remained in South Carolina. Third, after Lynnette dismissed her appeal, no custody proceeding was pending in South Carolina. Accordingly, the Skagit County Superior Court's assumption of subject matter jurisdiction to modify the parenting plan complied with applicable federal law.
The Skagit County Superior Court's assumption of subject matter jurisdiction over the parenting plan was also proper under Washington law. Pursuant to RCW 26.27.221, a Washington court may modify a parenting plan from another state only if the court both "has jurisdiction to make an initial determination under RCW 26.27.201(1)(a) or (b) and . . . determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state."
Both of these criteria were met.
First, at the time it asserted subject matter jurisdiction to modify the parenting plan, the Skagit County Superior Court had jurisdiction to make an initial determination under RCW 26.27.201(1)(a) and (b), which provide:
[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;
(b) A court of another state does not have jurisdiction under (a) of this subsection, 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 RCW 26.27.261 or 26.27.271, and:
(i) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(ii) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.
The "home state" requirement of RCW 26.27.201(1)(a) was established. Lynnette filed her second petition seeking to modify the parenting plan on June 11, 2004. The daughters lived in Washington until August 21, 2004, when Michael abruptly moved with his daughters to South Carolina. On November 18, 2004, Lynnette again, based on the trial court's August 19, 2004 order allowing either party to "reinstate" the proceeding, filed a petition seeking to modify the parenting plan.
The Skagit County Superior Court's August 19, 2004 order specifically granted Lynnette leave to renew her petition without filing a new action under a new cause number. The August 19, 2004 order provides that "[e]ither party may on motion reinstate this proceeding upon proof the South Carolina appeal has been terminated and no other proceedings are pending." The registered parenting plan and then-existing no-contact orders, entered in the same cause, remained in effect. Thus, the Skagit County Superior Court cause always remained open. The Skagit County Superior Court's "dismissal" of Lynnette's petition was not a final order dismissing the cause in its entirety. Rather, the order had the same effect as a trial court's order dismissing a party's counterclaim with leave to renew. Accordingly, for purposes of applying the provisions of RCW 26.27.201(1), the date Lynnette initially filed her motion to modify the parenting plan (June 11, 2004) is the date of the commencement of the "proceeding." The "home state" requirement of RCW 26.27.201(1)(a) was met because, at the time Lynnette commenced the relevant proceeding, the daughters had lived in Washington since September 2001, a period of more than two and a half years,
Moreover, South Carolina was not the home state of the daughters on either the date of the commencement of the proceeding or within six months before the commencement of the proceeding. South Carolina lost its continuing jurisdiction when Michael, Lynnette, and the daughters all moved to Washington. As our Supreme Court explained in In re Marriage of Greenlaw, 123 Wn.2d 593, 869 P.2d 1024 (1994):
Although the new state becomes the child's home state, significant connection jurisdiction continues in the state of the prior decree where the court record and other evidence exists and where one parent or another contestant continues to reside. Only when the child and all parties have moved away is deference to another state's continuing jurisdiction no longer required.
Greenlaw, 123 Wn.2d at 602-03 (quoting Brigitte M. Bodenheimer, InterstateCustody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Fam. L.Q. 203, 214-15 (1981)).
The requirements of RCW 26.27.201(1)(b)(i) and (ii) were established. The daughters and both parents had a "significant connection with this state other than mere physical presence." The daughters were attending school in Washington, Michael worked in Washington, and Lynnette both attended school and worked in Washington. Furthermore, substantial evidence and potential witness testimony was available in Washington concerning the daughters' care, protection, training, and personal relationships.
In summary, the Skagit County Superior Court correctly applied the provisions of the PKPA and Washington's Uniform Child Custody Jurisdiction and Enforcement Act. Its assertion of subject matter jurisdiction was properly made.
II. Personal jurisdiction
Michael next asserts that the Skagit County Superior Court lacked personal jurisdiction over him, based on the Skagit County Superior Court's August 19, 2004 order which dismissed Lynnette's modification petition without prejudice and on Lynnette's subsequent failure to personally serve him with her petition seeking modifications of the parenting plan. We disagree.
Michael's initiation of this lawsuit in Skagit County, along with his repeated requests for affirmative relief from the Skagit County Superior Court, provided that court with personal jurisdiction over him. Gerson v. Sussman, 176 Wash. 564, 30 P.2d 379 (1934); In re Estate of Stoops, 118 Wash. 153, 203 P. 22 (1922); In re Marriage of Steele, 90 Wn. App. 992, 957 P.2d 247 (1998); In re Marriage of Parks, 48 Wn. App. 166, 170-71, 737 P.2d 1316 (1987); Livingston v. Livingston, 43 Wn. App. 669, 670, 719 P.2d 166 (1986). Michael commenced this proceeding when he filed a petition with the Skagit County Superior Court seeking to register the South Carolina court's orders curtailing Lynnette's parental rights. On May 20, 2003, Michael obtained an order from the Skagit County Superior Court, which stated that the May 13, 2003 order of the South Carolina court was certified and enforceable in Washington. On March 10, 2004, Michael obtained a restraining order from the Skagit County Superior Court which prohibited Lynnette from having any contact with the children, directly or indirectly, by e-mail or through third parties. On July 2, 2004, Michael again requested affirmative relief from the Skagit County Superior Court by filing an "Objection and Countermotion for Dismissal and Attorney Fees/Terms/CR 11 Sanctions." In this pleading Michael moved the Skagit County Superior Court to assess CR 11 sanctions against Lynnette and her attorney.
Furthermore, the Skagit County Superior Court at no time divested itself of personal jurisdiction over Michael. On August 19, 2004, although the trial court dismissed without prejudice Lynnette's petition to modify the parenting plan, it did not dismiss the entire cause. The Skagit County Superior Court orders that Michael obtained to enforce the South Carolina orders, thus restraining Lynnette from having any contact with the daughters, remained in effect under the same cause number. The Skagit County Superior Court's August 19, 2004 order was, in effect, an order conditionally dismissing a party's claim with leave to renew. The superior court at no time lost personal jurisdiction over Michael.
By his own actions, Michael submitted himself to the personal jurisdiction of the Skagit County Superior Court. That court did not err by exercising its jurisdiction over him.
We decline to award attorney fees to either party in conjunction with this appeal.
Affirmed.
WE CONCUR: