Opinion
No. 4-165 / 03-1208
Filed March 24, 2004
Appeal from the Iowa District Court for Lee (North) County, John G. Linn, Judge.
Trina McKellar seeks an interlocutory determination that the district court lacked jurisdiction to grant visitation of her daughter to Frank McCutcheon, III. REVERSED AND REMANDED WITH INSTRUCTIONS.
Clinton Boddicker of Smith, Kultala Boddicker, L.L.P., Keokuk, for appellant.
Frank McCutcheon, Iowa City, appellee pro se.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Trina McKellar and Frank McCutcheon are the parents of Justice, born in 1994. After the child's birth, the Child Support Recovery Unit sought and obtained an Iowa order establishing paternity and support. Trina subsequently moved to Missouri, taking Justice with her. She has lived there continuously since mid-1999.
In 2003, Frank applied for visitation. Trina moved to dismiss the application on the ground that the district court lacked subject matter jurisdiction to make an initial custody determination. The district court denied the motion and subsequently entered an order establishing temporary visitation. Trina applied for interlocutory review and a stay of the visitation order. The Iowa Supreme Court granted the requests and transferred the case to our court for disposition.
Trina maintains that Frank failed to satisfy the jurisdictional prerequisites of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA). Iowa Code ch. 598B (2003). Because this jurisdictional issue is raised in the context of a custody proceeding, our review is de novo. In re Marriage of Cervetti, 497 N.W.2d 897, 699 (Iowa 1993).
Iowa Code chapter 598B.201 sets forth four conditions under which a state court may exercise jurisdiction to make an "initial child-custody determination." Before we decide whether one of these conditions apply, we must first determine whether this case involves an "initial child-custody determination." Iowa Code § 598B.201(1). A "[c]hild-custody determination" is "a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child." Iowa Code § 598B.102(3). The petition at issue is Frank's visitation application. Resolution of visitation rights is explicitly encompassed within the statutory definition of "child-custody determination."
There is an exception for exercise of temporary emergency jurisdiction which is not applicable here. See Iowa Code § 598B.204.
Resolution of Frank's application also is an "initial" determination. See Iowa Code § 598B.102(8) (defining "initial determination" as "the first child-custody determination concerning a particular child.") Although the district court had earlier entered a paternity and support order, that order did not purport to adjudicate custody or visitation rights. Indeed, the chapter under which the paternity action was filed precludes joint adjudication of related matters, stating "[i]ssues related to visitation, custody or other provisions not related to the support provisions of a support order shall not be grounds for a hearing, modification, adjustment, or other action under this chapter." Iowa Code § 252A.20. Therefore, the paternity and support order was not an "initial determination" of child custody and, accordingly, did not confer continuing jurisdiction on the Iowa district court to adjudicate custody and visitation rights.
We conclude the visitation order Frank sought was "an initial child-custody determination" within the meaning of Iowa Code section 598B.201. Therefore, one of the four jurisdictional conditions had to apply to vest the district court with jurisdiction over the visitation application.
The first condition authorizes a court to exercise jurisdiction if,
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.
Iowa Code § 598B.201(1)(a). "Home state" is defined as "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." Iowa Code § 598B.102(7). The undisputed evidence establishes that Justice has lived with her mother in Missouri since July 1999. Frank's visitation application was filed in May 2003. Therefore, this condition for exercise of jurisdiction is not satisfied. Cf. In re Jorgensen, 627 N.W.2d 550, 566 (Iowa 2001) (finding home state jurisdiction under Uniform Child Custody Jurisdiction Act based on child's residence in Iowa for more than eighteen months prior to commencement of action).
The second condition applies where a court of another state either does not have jurisdiction as a "home state" or has declined to exercise jurisdiction. Iowa Code § 598B.201(1)(b). This provision does not apply, because Missouri qualifies as a "home state" and that state has not declined to exercise jurisdiction. See Unif. Child Custody Jurisdiction Enforcement Act § 201 cmt. 2 (stating "a significant connection State may assume jurisdiction only when there is no home State or when the home State decides that the significant connection State would be a more appropriate forum under Section 207 or 208.").
The third condition applies if all states having jurisdiction under the first two provisions have "declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child" under other provisions of the statute. Iowa Code § 598B.201(1)(c). This provision is inapplicable.
The fourth condition authorizes a court of this state to exercise jurisdiction if "no court of any other state would have jurisdiction under the previous provisions." Iowa Code § 598B.201(1)(d). This provision also does not apply.
Iowa Code section 598B.201(1) "is the exclusive jurisdictional basis for making a child-custody determination by a court of this state." Iowa Code § 598B.201(2). As none of the four enumerated conditions apply, the district court lacked jurisdiction to determine Frank's visitation rights.
We reach this conclusion notwithstanding the possible existence of in personam jurisdiction over Trina and Justice. As Trina correctly points out, the UCCJEA provides that "[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination." Iowa Code § 598B.201(3); Unif. Child Custody Jurisdiction Enforcement Act § 201 cmt.2 (stating "the presence of minimum contacts or service within the State does not confer jurisdiction to make a custody determination."); cf. Bartsch v. Bartsch, 636 N.W.2d 3, 6 (Iowa 2001) (noting state courts may adjudicate custody without personal jurisdiction over defendant); In re Marriage of Olive, 340 N.W.2d 792, 794 (Iowa Ct.App. 1983) overruled on other grounds by In re Marriage of Shepherd, 429 N.W.2d 145, 147 (Iowa 1988) (stating submission of person to jurisdiction of court does not confer jurisdiction under Uniform Child Custody Jurisdiction Act). Therefore, the fact that Justice was conceived and born in Iowa and visits her extended family in Iowa twice a year does not confer jurisdiction under the UCCJEA.
As the district court lacked jurisdiction over this proceeding, we reverse the court's ruling and remand for dismissal of the visitation application. See Cervetti, 497 N.W.2d at 901. In light of our conclusion, we need not reach Trina's alternate argument concerning Iowa as an inconvenient forum.
Trina's request for appellate attorney fees is denied. Costs of the appeal are taxed to Frank.