Renae DENNIS, Plaintiff and Appellee, v. Earl DENNIS, Defendant and Appellant.
Civ. No. 11059.
Supreme Court of North Dakota.
May 13, 1986.
387 N.W.2d 234
Judith A. Atkinson, Bismarck, for defendant and appellant.
VANDE WALLE, Justice.
Earl Dennis appealed from a district court judgment in which the court declined to exercise jurisdiction over Earl‘s motion to modify the child visitation provisions of a divorce decree. We affirm.
Earl and Renae Dennis were divorced in Burleigh County in September 1981. Renae was awarded custody of the parties’ two minor children and Earl was granted visitation rights. It was contemplated at that time that Renae would move from North Dakota, and the decree contained alternative visitation provisions which were to take effect when she did so. Renae and the children have resided in Iowa since October 1981.
In July 1984, Earl filed a motion requesting modification of the original decree to allow increased visitation. The district court, by order dated September 13, 1984, held that it lacked jurisdiction to rule on the matter. Earl appealed from that order and we remanded for the district court to consider whether it had “significant connection” jurisdiction pursuant to
On remand, the district court held an evidentiary hearing on the issues of signifi
The sole issue presented on appeal1 is whether the court abused its discretion in determining that North Dakota is an inconvenient forum in which to litigate Earl‘s motion to modify the original custody decree. Resolution of this issue requires an analysis of the provisions of
“1. A court which has jurisdiction under this chapter to make an initial decree or a modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
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“3. In determining whether it is an inconvenient forum, the court shall consider whether it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others, whether:
“a. Another state is or recently was the child‘s home state;
“b. Another state has a closer connection with the child and his family or with the child and one or more of the contestants;
“c. Substantial evidence concerning the child‘s present or future care, protection, training, and personal relationships is more readily available in another state;
“d. The parties have agreed on another forum which is no less appropriate; and
“e. The exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 14-14-01.”
In essence,
It is well settled that the decision whether to decline to exercise jurisdiction on inconvenient-forum grounds lies entirely within the trial court‘s discretion, and its decision will be reversed on appeal only for an abuse of discretion. See, e.g., Stevenson v. Stevenson, 452 So.2d 869 (Ala.Civ.App.1984); Barden v. Blau, supra; Brown v. Brown, supra; Larsen v. Larsen, 5 Kan.App.2d 284, 615 P.2d 806 (1980); Farrell v. Farrell, 133 Mich.App. 502, 351 N.W.2d 219 (1984); In re Marriage of Bolton, supra; Oehler v. Clinton, 282 S.C. 25, 317 S.E.2d 445 (1984). An abuse of discretion, which implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court, never is assumed and must be affirmatively established. In the Matter of Estate of Vertin, 381 N.W.2d 199 (N.D.1986); Lange v. Cusey, 379 N.W.2d 775 (N.D.1985).
We cannot conclude that the district court abused its discretion in determining
A paramount consideration in the balancing of these various factors is a determination of what court is most able to act in the best interests of the children. In re Marriage of Pavelcik, 138 Ill.App.3d 1060, 93 Ill.Dec. 589, 487 N.E.2d 33 (1985). A court should exercise jurisdiction over a child-custody proceeding only when it is in the child‘s best interest to do so. See
“1. The general purposes of this chapter are to:
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“c. Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; ...”
Under the circumstances presented in this case, we conclude that the trial court did not abuse its discretion when it declined to exercise jurisdiction based upon its determination that Iowa is a more appropriate forum. Accordingly, the judgment is affirmed.
ERICKSTAD, C.J., and GIERKE and LEVINE, JJ., concur.
MESCHKE, Justice, concurring.
In July, 1984, Earl Dennis asked the district court to extend his visitation rights with his two growing children, Mike and Marisa, beyond the twenty days set in the divorce decree issued by that court in 1981. Regrettably, two years and two appeals later, Earl has not yet had a hearing on the merits of his request.
When Earl and Renae were divorced in North Dakota in September, 1981, Renae was awarded custody of Mike (4½ months old) and Marisa (two years old). As contemplated, Renae promptly moved to Iowa with the two children. In keeping with the then tender years of the children, the decree authorized only ten days visitation for Earl in 1982 and 1983, increasing to 20 days a year in 1984 and 1985. Earl paid for Renae to fly back to North Dakota with the children for visitation in 1982. He paid her expenses to drive the children to North Dakota for visitation in 1983. In 1984, Earl and his new wife drove to Iowa and back to have the children, using four days out of the twenty for travel.
Earl moved to extend visitation through the three summer months and to share additional time at holidays and on other visits by the children with maternal relatives in North Dakota. Renae resisted, requesting that the trial court “exercise its discretionary power to decline jurisdiction,” emphasizing that she and the children now have “significant connections with the State of Iowa.” The trial court refused to
We reversed, but, in three separate opinions, we could not agree on a clear rationale concerning jurisdiction. Dennis v. Dennis, 366 N.W.2d 474 (N.D.1985) (Dennis I). Chief Justice Erickstad‘s opinion rejected “continuing jurisdiction” because Iowa was the current home state of the children, but remanded for a “redetermination of the jurisdictional issue” under the alternative “significant connection” jurisdictional formulation (
Justice VandeWalle‘s opinion, joined by Justice Gierke, joined in remanding for consideration of the “significant connection” jurisdictional test, but dealt clearly and directly with visitation: “The trial court ... should ... retain jurisdiction to modify the provisions for visitation, as opposed to custody, when Earl continues to reside in North Dakota and the visitation will take place in North Dakota.” 366 N.W.2d at 477. Justice VandeWalle stressed that “the courts of the State in which the divorce decree was granted, in which the noncustodial parent continues to reside and in which the children will be visiting, are in the best position to determine whether or not that visitation is in the best interests of the children and whether or not it should be modified.” 366 N.W.2d at 477-478. (I now concur in that well-expressed view. The course of this case upon remand prompts regret that I did not fully endorse that view in Dennis I.)
Upon remand, faced with this array of views, the trial court held another hearing on “jurisdiction“. The trial court concluded that it had “jurisdiction over the parties and the subject matter hereto,” and went on to conclude “that the Court has the right to decline to exercise this jurisdiction;” “that Iowa is the children‘s home state;” “that Iowa is the State that has significant contacts with the children;” “that substantial evidence concerning the children‘s present or future care, protection, training and personal relationships is most readily available in the State of Iowa;” and “that North Dakota is an inconvenient forum and the State of Iowa is the appropriate forum to have jurisdiction of this case.”
On this appeal, Earl argues that the trial court committed several errors: “The lower court erred in holding that it did not have jurisdiction; erred in the application of it‘s standards of significant connections and in not setting the standards to be applied by it‘s ruling on significant connections referred to in
Given the different views of this Court about initial jurisdiction, it is not surprising that the trial court considered jurisdiction further. Since a majority of this court did not recognize “continuing jurisdiction,” it is also not surprising that the trial court apparently relied upon the “significant connection-substantial evidence” test to find jurisdiction. While I adhere to my opinion in Dennis I, that there is continuing jurisdiction that accompanies the continued residence of one of the custodial contestants in
I concur with Justice VandeWalle that a trial court‘s decision to decline jurisdiction on the grounds of inconvenient forum is discretionary. But, I do not agree that it is “entirely within the trial court‘s discretion,” as he states it. Judicial discretion is not judicial license. Judicial discretion can only be exercised for sound reasons, not spurious ones. And, the reasons for exercise of discretion should be sufficiently expressed, if not readily apparent, to enable meaningful appellate review.
The trial court‘s findings do not recognize that visitation in North Dakota is the subject of the motion. They do not treat the location of the evidence which is often most important in considering visitation: the suitability of the noncustodial parent and his home for visitation. The trial court did not recognize the import of
“After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child‘s physical or emotional health.”
Although the findings do look to some of the factors which may be considered under the statute, I am greatly troubled by the lack of depth in the findings. At least, findings should recognize those factors most relevant to the particular case for which they are made.
In accepting the findings, it appears to me that Justice VandeWalle is subordinating his own clearly expressed views to accord the greatest possible appellate deference to a discretionary disposition by an able and experienced trial judge. Since I did not join in Justice VandeWalle‘s clear expression in Dennis I, that the courts of this state are in the best position to determine whether or not additional visitation is in the best interest of the children, I share responsibility for not providing sufficient guidance to the trial court on remand. So, I cannot fairly second guess this exercise of discretion, either.
Therefore, I reluctantly concur in affirming the trial court‘s discretionary declination of jurisdiction in this case. It is high time some court got to the merits of this visitation matter. Iowa courts are equally capable of expanding visitation to implement our statutory mandate “to maintain a parent-child relationship that will be beneficial to the child.” Iowa‘s statutory presumption may even be stronger:
“Consideration shall be given to the child‘s need for close contact with both parents and recognition of joint parental responsibility for the welfare of a minor child.”
39 Iowa Code Annotated, Section 598.21(4) .
LEVINE, J., concurs.