Marriage of Brandt v. Brandt
2012 CO 3
| Colo. | 2012Background
- Colorado recognized Maryland custody order under UCCJEA; district court assumed modification jurisdiction based on non-residency in Maryland.
- George Brandt filed to register Maryland decree and seek modification; Christine Brandt moved with child between Maryland and Colorado due to military assignments.
- Maryland originally held custody order; after parties relocated, Colorado credited lack of Maryland residency to divest exclusive continuing jurisdiction.
- District court found no party presently resided in Maryland, triggering Colorado jurisdiction to modify; the court did not apply totality of circumstances standard.
- Colorado Supreme Court reverses; adopts totality of circumstances test for presently reside, burden on petitioner to prove Maryland still has exclusive continuing jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for modification jurisdiction | Brandt argues district court properly assessed residency. | Brandt contends district court applied correct standard under UCCJEA. | De Novo review; error in standard applied by district court. |
| Meaning of presently reside under UCCJEA | Maryland residents maintained ties; not stopped residing. | State may divest if no party presently resides in issuing state. | Presently reside requires totality of circumstances, not mere physical presence. |
| Who bears burden to prove loss of exclusive continuing jurisdiction | Maryland must be shown to have lost jurisdiction. | Petitioner bears burden to prove loss or decline of Maryland jurisdiction. | Burden on petitioning state to prove loss or decline. |
| Procedure for determining residency and jurisdiction on remand | Court should rely on Maryland-Colorado communications and evidentiary record. | Full evidentiary hearing required in Colorado. | Remand for evidentiary hearing with findings consistent with totality standard. |
Key Cases Cited
- In re L.S., 257 P.3d 201 (Colo. 2011) (de novo jurisdiction analysis; statutes guide review)
- In re Marriage of Nurie, 98 Cal.Rptr.3d 212 (Cal. App. 2011) (presently reside not equal to mere physical presence; relocation evidence needed)
- Russell v. Cox, 678 S.E.2d 462 (S.C. App. 2009) (presently reside includes totality of circumstances beyond physical presence)
- State of N.M. ex rel. CYFD v. Donna J., 129 P.3d 167 (N.M. 2006) (requires factual action by potential modification state to divest home state)