*1 Argued 24, May 13, 3, August affirmed June reconsideration denied petition for review allowed November 1977
CARSON, Appellant,
v. CARSON, MIEIR, Respondent. nka
(No. 7600) 76-5582, CA 763 P2d Fox, Michael F. the cause for Eugene, argued him brief & appellant. Daughters With on the Fox. Eugene. Legal Comity Lindberg, Aid Serv- Lane
Roberta J. Eugene, argued the brief and filed the cause ice, Inc., respondent. Presiding Judge, Tanzer and Thornton, Before Judges. Johnson,
JOHNSON, J. concurring opinion. specially
Thornton, J.,P. JOHNSON, J. age daughter, of his
The father seeks Act, Jurisdiction the Uniform Child under the decision 109.700 to 109.930. He appeals the grounds on declining jurisdiction trial court is before The matter is an inconvenient forum. Oregon the parties on the and affidavits pleadings us is no as to the facts. dispute there was dis- father of the mother and marriage Court, Los Superior decree of the California by solved The decree 26, 1973. on County, November Angeles and the daughter, the father awarded ever father have resided daughter resi- The mother continues to be a California since. mother was dent. Until June 1976 visitation child to sent the At that time the father infrequent. period for an agreed California visit the mother subsequently two months. The father approximately the child Los up to have his brother arranged pick *3 mother refused her but the Angeles bring Oregon, advised the She to turn over the child to the brother. he if that she would turn the child father over intended that she come to Los and Angeles personally to institute him in order to have served with process the in California While change custody proceedings. of the Los before father was served to personally appear motion to the mother’s Court Angeles Superior upon husband The the decree. modify original custody returned to with the daughter. Court held Superior the Los
Subsequently, Angeles father and at which both the mother hearing 15, 1976 the Los and testified. On October appeared awarding an order Court entered Angeles Superior father later the to the mother. Four custody days he Concurrently this in Oregon. instituted proceeding later aban- California, but filed a notice of in appeal On November 21,1976. the doned on December appeal motion to mother’s 24,1976 the trial court allowed the of his abandonment Following decline in for a reconsider- the appeal California father moved ation of the trial court’s declining jurisdiction. order denied, appeals This motion was also and the father In the denial. addition the trial court has entered the child orders the mother from restraining removing during the Oregon during from these proceedings the pendency of appeal. Juris-
The Child purposes Uniform are in 109.720 which diction Act set forth provides:
"(1) to 109.930 general purposes of ORS 109.700 to: are
"(a) conflict and competition Avoid custody of in of child with courts other states matters of shifting in the past which have the resulted effects on their from state to state with harmful children well-being;
"(b) of other the courts cooperation Promote with in that to the end is rendered custody states that a decree the interest of the which can state child; best decide case "(c) concerning custody litigation Assure that which the place state with ordinarily a child takes family and his connection child have closest care, protec- his concerning significant where evidence tion, readily is most training, relationships personal available, state decline that courts of this family his the child and exercise when state; have closer connection another with "(d) over child continuing controversies Discourage stability home custody greater interest of relationships family environment of secure child; "(e) removals other unilateral Deter abductions and awards;
of children undertaken to obtain "(f) of other decisions relitigation Avoid *4 feasible; in this state in so far as states custody decrees
"(g) Facilitate the enforcement of states; other
"(h) exchange of informa- expand the Promote and between tion and other forms of mutual assistance courts of this states concerned state and those of other child; with the same
"(i) Make states which uniform the law of those enact it.
"(2) ORS 109.700 shall be construed to to 109.930 promote general stated in this section. purposes <<*****” Under the Act a multi through the court must go to exercise step process juris whether determining diction. First it must it has jurisdic ascertain whether tion under there ORS 109.730. If it finds that is then whether jurisdiction, the court must determine there is a or a decree in custody proceeding pending so, another state If which has presently jurisdiction. court Oregon must decline to exercise its jurisdic 109.760C1)1 109.840(1).2 tion. ORS assum Finally, the court has is ing jurisdiction and there not a decree, or a the court then must proceeding pending determine under ORS 109.770 and 109.780 whether to exercise its jurisdiction because of convenient forum. An court of this case has * * * 109.730(l)(a) of ORS virtue because "this state had been the child’s six months home state within * * before commencement of the There proceeding is not a that would pending in California proceeding under 109.760 because the preclude jurisdiction pertinent part provides: 1ORS 109.760 "(1) jurisdiction under A court of this state shall not exercise its proceeding filing petition a 109.700 to if at the ORS concerning 109.930 time of pending another in a court of of the child was conformity exercising jurisdiction substantially with ORS state 109.930, stayed by proceeding the court of unless the 109.700 appropriate forum or for because this state is a more other state reasons. pertinent part provides: 109.840 in 2ORS "(1) decree, a court If a court of another state has made a modify appears of this state shall not it court that decree unless that the does not now have of this state court which rendered the decree substantially prerequisites in accord- under jurisdic- ance with ORS 109.700 to 109.930 or has declined to assume modify the has tion to decree and the court of this state ]
[ 865 *5 in that state. his appeal husband had abandoned is not precluded also that argues Oregon husband be- exercising jurisdiction from under ORS 109.840 decree modification California existing cause of as jurisdiction” "not now have because California does this question not reach in that state. We need provided time of at the did have jurisdiction because California an inconve- Oregon proceeding modification 109.770. nient forum under ORS The father at argues that since Oregon time of the state, modification Cali the child’s home fornia did not have We would that jurisdiction. agree if California did not then jurisdiction, have However, have been an we forum. appropriate conclude California did have Califor nia, Act, Code, like has the Uniform Cal Civ Oregon, (West 1970). §§ 5150-5174 the Uniform Section 3 of (West Act, ORS 109.730 and Cal Code 5152 Supp Civ 1977),3 sets forth the un requirements der the Act:
"(a) A court of this to decide competent state which is (West 1970) Code, § 3 of the 3Cal Civ 5152 is identical to section except "or” is deleted Jurisdiction Act the word Uniform Child (1) paragraphs, controlling paragraph addi- contains an between tional clause paragraphs but the following any "if as set forth in the conditions except the word "or” is met:”. 109.730 is also identical are (l)(a) (l)(b). deleted, Despite paragraphs the omission we between interpretation paragraphs disjunctive. Any interpret the two to be history Legislative that the to an absurd indicates would lead result. proposed legislature by form as intended to enact the Act in the same Uniform Judiciary Uniform Law minutes of House Commissioners. See 1,1973, 17, February meetings January January 29 and Committee Senate 6, Judiciary May meetings 23 and 30 and June Committee Judiciary synopsis by prepared the House 1973. The of House Bill 2051 originated the bill Committee where states: if: * * * jurisdiction major "Section 3 establishes the two bases for court custody proceeding.
a child * * * * among different courts "Section 6 is intended to avoid conflicts involving might custody proceedings have which simultaneous determining decision rules which court same child and establishes custody has a decree circumstances would control. Once under such to make a child custody has child matters decree modification by determination initial or if: "(1) (i) the child at the home this state is the state (ii) or had been proceeding,
time of commencement commence- the child’s home state within months before from this ment of the the child is absent proceeding and person State because of his removal or retention reasons, parent or claiming his or for other State; in this or acting parent as to live person continues "(2) in the child that a court it is best interest of the *6 (i) this assume the child and jurisdiction of State because contestant, have parents, his or the child and at least one (ii) State, this and there is significant a connection with concerning in this available State substantial evidence care, training, the child’s or present protection, future personal and or relationships; "‡ ‡ ‡ ‡ ‡ "* * * child, in [P]hysical this State of the presence contestants, is or of the child and the not alone one of to jurisdiction sufficient to confer on a court of this State make a child custody determination.
"(c) desirable, child, Physical presence the while of not a determine his prerequisite jurisdiction for custody.” (l)(a) (l)(b) and set forth alternative
Paragraphs
tests
states
whereby
two
have
may
jurisdiction.
concurrent
The test under paragraph
state, jurisdiction
determined under
be
in one
been rendered
and 14 of the
sections 8
bill.
a court
provisions
as a check on
7contains further
to serve
"Section
6,
section,
assuming jurisdiction
as does section
a case. This
in
over
cooperation
emphasizes
need for
communication
the
interstate
among the courts.
enforcing
a court of another
Section 14 limits
«*
"Sections
states of an issue
[*]
[*]
a decree
‡
[*]
13,
14 and
state.
power
another state.”
already decided
Section
15 are
of a court
intended
15 sets
up
this
a court
discourage relitigations
state to
machinery
having jurisdiction.
modify
a decree
filing
amendment.
passed
Bill 2051 without
The Senate
House
[
]
867
(l)(a)
parent
is mechanical. If the child and a
have
lived
a state
months,
for six
then that state has
jurisdiction because it is the "home state” as that term
109.710(5).
(a)(2),
paragraph
is defined in Under
jurisdiction provided
non-home state
also have
paragraph
more nebulous tests of that
are met. In
Settle
(1976),
Settle,
276
Or
prevent
proliferation
clear,
It is also
however, that
they did not intend that
the existence of
* * *
jurisdiction
Thome state’
in one state
should auto-
matically
preclude
existence of
* *
another state
(1973). question presented paragraph is whether under (a)(2) light California had of the best interests of parent having child, the child and one "significant connection” with California, and the availability in California of "substantial evidence concerning present protec- the child’s care, or future training personal tion, relationships.” The follow- ing comment of the Uniform Commissioners which is *7 upon supra, provides relied guidance: in Settle Settle, and some (2)
"Paragraph perhaps any more than other provi- sion of the Act requires that it be in the interpreted spirit legislative purposes expressed section 1. The paragraph phrased was in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact But its is description. purpose to limit rather it. The proliferate than to first clause of the paragraph important: only interest, exists if it merely is in the not child’s interest or convenience of the to deter- feuding parties, mine particular a The interest of the state. child is served when to the forum has access optimum relevant evidence family. about the child and There must be maximum rather than minimum contact with the state.” 9 ULA Child Jurisdiction 108 (1973). Although "op- speak the commissioners in terms of ordinarily defined timum” and "maximum” which are adjectives absolutes, these as context indicates high degree used to mean a of connection were obviously to were access evidence. The commissioners advocating evidence,” for that the term "substantial example, be used in intended to as the statute was not be used as substitute "some evidence” as it for legal used law. The contexts such as administrative expressly that is a commissioners state there flexibility. any need plain In event must look to the we adjectives words statute which uses the "significant” interpret as "substantial” which we meaning high degree but not maximum of connec- tion and access to evidence. presented here, it would
Under the circumstances impossible practically state, to which be determine preferable California, forum or more standpoint or the child’s best interest from of optimum A has the to evidence. which state access primary purpose avoid Act was to the Uniform jurisdictional competition cooperation promote purpose be This with courts other states. judgment for that defeated if we were to substitute our concerning consid the California these issues court ering question presented. facts the closeness parties court that California are and both were before the appeared as In the husband’s witnesses. addition present behalf wife testified on brother husband’s appar retaining custody. The mother of the husband’s ently her several testified as called witnesses who parent. drug as a as a user and fitness rehabilitation The certainly parties significant with connection had a month recent two in view of the child’s California California, visit, that the natural mother resides original there. entered and that decree was argues should court the California Petitioner *8 ]
[ 869 jurisdiction have declined under ORS 109.7804 be unfairly cause the mother husband induced the to process.5 come to California for service of We assume the California court the took mother’s conduct into determining juris account whether to exercise diction. premise "[w]hile A basic of the that Uniform Act is * * *
jurisdiction may exist it in two states will not be exercised in both 9 states.” ULA Child Juris (1973). already diction 3 exer California has presented cised Under the circumstances recognize required here courts are to enforce the California decree. modification ORS aggrieved by Angeles 109.830.6 The father is the Los Superior pursue decision, Court’s but rather than an provides: 4ORS 109.780 "(1) petitioner wrongfully If initial for an decree has taken the reprehensible engaged child from another state or has in similar may jurisdiction just court conduct the if this decline to exercise
proper under the circumstances. "(2) required child, Unless interest of court shall not jurisdiction modify custody exercise its a another state if decree of petitioner, person custody, without consent entitled has improperly physical custody person removed the child from the improperly entitled to or has retained the after a visit or child temporary relinquishment physical petitioner custody. other If the any provision has violated court other of a decree another state the just proper decline to exercise its if this is under the circumstances. "(3) appropriate dismissing petition In court under cases a this may charge petitioner necessary section with travel and other fees, expenses, including attorney by parties incurred or their witnesses.” 5 appear personal It obtaining the husband service on unnecessary any event, exercising jurisdiction as a court under the long-arm authority. Uniform Act has 109.810. 109.750 and 6 provides: ORS 109.830 recognize 'The court this state an shall and enforce initial or decree
modification court another state which had assumed substantially statutory provisions under in accordance with ORS 109.700 to or 109.930 which was made under factual meeting jurisdictional circumstances 109.930, standards of ORS 109.700 to long so as this has decree not been modified accordance substantially with standards similar to those of ORS 109.700 to 109.930. [ ] *9 of that appeal decision in the courts of appellate California, he in effect in seeks an appeal Oregon. trial court correct in exercise declining jursidic- tion under ORS 109.770 which provides:
"(1) A jurisdiction court which has under ORS 109.700 to 109.930 to make an initial or modification may any decree decline to time jurisdiction exercise its making a it before decree if finds it is an inconve- that forum nient to make a custody determination under circumstances of the and that a corut of another case state is more appropriate forum.
Hi Hi "(3) In forum, determining if it is an inconvenient the court shall consider if it is in child the interest of the that another state For purpose assume this it take into factors, account the following among others:
«$****
"(e) If the exercise of jurisdiction by of court this state subsections any contravene of the in purposes stated (1) (2) of ORS 109.720.” Suffice it to say that what the father is attempting here is wholly contrary to the of the Uniform purposes 109.720(1) (2) Act set forth in ORS in quoted early this part opinion.
THORNTON, J., P. specially concurring. I in concur the result on but a different ground. It my view this case that at the time the mother filed her petition for modification Califor nia, Oregon rather than California was the more state to appropriate assume jurisdiction any peti tion for modification because of the terms of 3 of the (ORS Uniform Child Custody Jurisdiction Act 109.730(1)(a)). (1) I say this because was the (2) home state of this child at the time the child was in legal of the Oregon, father although temporarily visiting California. Therefore the California court should have jurisdiction declined under the above and the non conve- provision forum Jurisdic- Custody of the Uniform Child
niens provision (ORS 109.770). tion Act to the
However,
to submit
when the father elected
to a
proceeded
of the California court
he thereby
it
merits,
seems to me
on
hearing
have
he could
all
objections
waived
Child
under the terms
Uniform
urged
the cause
Act and
to have
Jurisdiction
consented
court.
the California
determined on the merits
the issue of
decided
The California
court has now
in favor
between the
change
parties
father should
Under these circumstances
mother.
from
a new
commencing
proceeding
be estopped
*10
issue, absent
the same
at this time
relitigate
See,
v.
Sweeney
of circumstances.
showing
change
(1919);
365,