In re Schwartz
410 P.3d 319
Or. Ct. App.2017Background
- Mother (U.S. citizen, Oregon) and father (French national) married in France; child L born in Oregon in 2011. Family moved repeatedly among Oregon, France, Bali (Indonesia), and elsewhere, rarely staying more than several months in one place.
- In September–November 2013 mother left Bali with L and returned to the U.S.; mother filed for legal separation and a custody proceeding in Lane County, Oregon on November 12, 2013.
- Parents initially stipulated that Oregon had jurisdiction under the UCCJEA and the court entered a general judgment of unlimited legal separation with an agreed parenting plan in January 2014.
- Father later filed a custody case in France and moved to vacate the Oregon judgment under ORCP 71 B(1)(d), arguing Oregon lacked subject-matter jurisdiction under the UCCJEA (alternatively asserting France or Indonesia as the child’s home state). The trial court denied the motion and held father in contempt for violating the parenting plan.
- On appeal the Oregon Court of Appeals considered (as a matter of first impression in Oregon) which legal test governs whether an absence is a "temporary absence" under ORS 109.704(7) (UCCJEA) and whether the trial court had jurisdiction under ORS 109.741(1).
Issues
| Issue | Father’s Argument | Mother’s Argument | Held |
|---|---|---|---|
| What test governs whether an absence is a "temporary absence" under the UCCJEA? | (urged various arguments through briefs) courts have used different tests; court should adopt a bright-line or intent test | court should adopt approach consistent with uniformity; totality-of-circumstances preferred | Adopted the totality-of-the-circumstances test as governing in Oregon (most consistent with UCCJEA uniformity and precedent) |
| Was L "temporarily absent" from Indonesia so that Indonesia was L’s home state as of mother’s filing? | Indonesia was home state because time away should count as temporary absence | L’s departure from Indonesia was not temporary; Oregon was proper forum | Under totality test, L’s departure from Indonesia was not a temporary absence; Indonesia was not L’s home state |
| If no home state, did Oregon have "significant connection" jurisdiction under ORS 109.741(1)(b)? | Even without home state, father argued insufficient connections/substantial evidence in Oregon | Mother showed sufficient connections: birth in Oregon, mother from Eugene, local pediatrician, maternal grandparents' involvement | Trial court correctly found Oregon had significant-connection jurisdiction; jurisdiction upheld |
| Can parties confer subject-matter jurisdiction by stipulation or estoppel under UCCJEA? | Father argued estoppel might bar challenge after stipulation | Mother argued father forfeited/chose Oregon by stipulation | Court held subject-matter jurisdiction cannot be conferred by consent/estoppel; party may raise jurisdictional defect at any time, but here jurisdiction existed on the merits |
Key Cases Cited
- Carey v. Lincoln Loan Co., 342 Or. 530 (subject-matter jurisdiction cannot be conferred by consent or estoppel)
- Wink v. Marshall, 237 Or. 589 (jurisdiction cannot be conferred by parties' consent)
- Shepard v. Lopez-Barcenas, 200 Or. App. 692 (party's consent to UCCJEA jurisdiction ineffective if court lacked jurisdiction)
- Campbell v. Tardio, 261 Or. App. 78 (standard of review for UCCJEA jurisdictional determinations)
- Norris v. Norris, 345 P.3d 924 (Alaska) (adopting totality-of-the-circumstances test for temporary absence under UCCJEA)