369 P.3d 984
Kan. Ct. App.2016Background
- N.U., born 2003, lived in Nebraska with father after a 2008 Sarpy County (Neb.) custody order giving father primary possession; mother later moved to Kansas.
- In August 2014 parents agreed N.U. would live with mother in Kansas; DCF investigated allegations of verbal/physical mistreatment by father’s girlfriend and possible sexual touching by her son.
- Kansas filed a CINC petition; on January 5, 2015 the Ford County (Kan.) court adjudicated N.U. a CINC, found temporary emergency jurisdiction under the UCCJEA, placed N.U. with mother, and specified the emergency order would remain in effect for 6 months (until July 5, 2015).
- Neither mother nor the State obtained a Nebraska order transferring or relinquishing jurisdiction within that 6-month period; after July 5 mother sought an extension and father sought enforcement under the UCCJEA.
- On July 13, 2015 the Kansas court granted a 30-day extension of temporary emergency jurisdiction; father appealed. The Sarpy County (Neb.) court later (after July 5) signed an order relinquishing jurisdiction to Kansas.
- The Kansas Court of Appeals held the Kansas court erred in extending emergency jurisdiction past the 6-month period and dismissed the Kansas CINC case for lack of subject matter jurisdiction; it did not reach the merits of the initial January 5 emergency finding due to appellate-record/notice limitations.
Issues
| Issue | Father’s Argument | State/Mother’s Argument | Held |
|---|---|---|---|
| Mootness of appeal | Nebraska’s later relinquishment does not moot appeal because Kansas should have lost jurisdiction July 5; a favorable ruling affects custody rights | Nebraska’s relinquishment after July 5 renders appeal moot and validates Kansas orders | Appeal not moot; relinquishment after expiration doesn’t negate error in Kansas court extending jurisdiction |
| Whether Kansas improperly exercised initial temporary emergency jurisdiction (Jan 5) | Emergency finding was unsupported by evidence | State: record incomplete on appeal (no transcript) | Court declined to review this issue for lack of transcript and because father’s notice did not designate the Jan 5 order as appealed; dismissed for lack of jurisdiction on that point |
| Whether father’s appeal/its pendency tolled the 6-month period | The appeal statutes and practice did not toll the UCCJEA 6-month limit; Kansas retained only temporary authority and time ran | State argued the 6-month period was tolled while father’s appeal was pending and accused father of bad faith delaying tactics | Tolling argument rejected; CINC appeal statutes did not operate to toll the UCCJEA time limit and State offered no authority for tolling |
| Whether Kansas court could extend emergency jurisdiction after the specified period expired | Extension was improper because statute requires the temporary order to remain only until other state issues an order within the specified period or the period expires | Court’s extension order attempted to preserve child’s protection pending communication with Nebraska; State urged equitable considerations | Court reversed: when the specified period expired without a Nebraska order transferring jurisdiction, Kansas’s temporary emergency jurisdiction ended; extension was unlawful and CINC dismissed for lack of subject matter jurisdiction |
Key Cases Cited
- State v. Bennett, 288 Kan. 86 (cited re: mootness doctrine)
- Smith v. Martens, 279 Kan. 242 (cited re: mootness doctrine)
- McAlister v. City of Fairway, 289 Kan. 391 (cited for standard when appeals become moot)
- Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633 (cited on limits of appellate jurisdiction tied to notice of appeal)
- Gates v. Goodyear, 37 Kan. App. 2d 623 (cited on requirement that notice of appeal designate judgment appealed from)
- In re A.A., 51 Kan. App. 2d 794 (interpreting UCCJEA emergency jurisdiction and the relationship between home and second states)