459 P.3d 476
Alaska2020Background
- 2016 Alaska divorce decree awarded shared legal custody; physical custody arrangement depended on parents' location.
- Father (Mouritsen) transferred to Shaw AFB, South Carolina, in 2017; mother (Taubert) and the children moved to South Carolina to preserve shared custody; children attended school and received medical care there for >1 year.
- In 2018 Mouritsen sought Alaska court enforcement of the custody order; the Alaska court enforced it and initially noted the order had not been registered in South Carolina.
- Taubert later registered the Alaska custody order in South Carolina and filed to modify there; she moved in Alaska to clarify that Alaska had lost exclusive, continuing jurisdiction under the UCCJEA because the family lived in South Carolina.
- The Alaska superior court concluded it lacked exclusive, continuing jurisdiction because neither the children nor the parents “presently reside” in Alaska and suggested South Carolina was a more appropriate forum; Mouritsen appealed, arguing “presently resides” means domicile/residency and that the superior court failed to fully analyze forum non conveniens factors.
Issues
| Issue | Plaintiff's Argument (Mouritsen) | Defendant's Argument (Taubert) | Held |
|---|---|---|---|
| Meaning of “presently resides” in AS 25.30.310(a)(2) | Means residency/domicile under AS 01.10.055 (intent to remain); military absence is temporary | Means actual physical presence/where the parties are living now | Court: “Presently resides” should be read consistent with Alaska residency/domicile; superior court erred treating it as mere physical presence |
| Whether Alaska lost exclusive, continuing jurisdiction | Alaska retained jurisdiction because Mouritsen remained an Alaska resident and intended to return | Alaska lost jurisdiction because parents and children had lived in SC over a year and the order was registered there | Court: Superior court’s conclusion that jurisdiction was lost was erroneous and vacated; remanded |
| Whether court properly applied forum non conveniens (AS 25.30.360) | Requested evidentiary hearing and full briefing on inconvenient forum factors | Argued SC was more convenient and raised the issue in reply filings | Court: Superior court did not perform full AS 25.30.360 analysis; remand for consideration and opportunity for both parties to present evidence |
Key Cases Cited
- Berry v. Coulman, 440 P.3d 264 (Alaska 2019) (interpreting UIFSA residence as domicile and informing UCCJEA analysis)
- Fox v. Grace, 435 P.3d 883 (Alaska 2018) (standard of review for UCCJEA jurisdictional questions)
- Brandt v. Brandt, 268 P.3d 406 (Colo. 2012) (rejecting a purely physical-presence reading of “presently reside” to avoid jurisdictional instability)
- In re Marriage of Nurie, 98 Cal. Rptr. 3d 200 (Cal. Ct. App. 2009) (evaluating whether a parent stopped residing in the decree state under a totality-of-circumstances approach)
- Thompson v. Thompson, 484 U.S. 174 (U.S. 1988) (discussing PKPA concerns about parental forum-shopping and abduction)
- Russell v. Cox, 678 S.E.2d 460 (S.C. Ct. App. 2009) (treating inquiry as whether parent relinquished residency in the decree state)
- Mikesell v. Waterman, 197 P.3d 184 (Alaska 2008) (standard for evaluating whether an evidentiary hearing is required on inconvenient-forum issues)