I. BACKGROUND
We draw the facts from the record, as supplemented by materials judicially noticed on father's motion. Mother,
Around that same time, mother decided to separate from father and did not return to
Father responded initially by filing a child custody action in a French court. The parties negotiated a settlement under which they stipulated that Oregon had jurisdiction under the UCCJEA to adjudicate issues regarding L's custody, and father agreed to dismiss the custody proceeding that he had filed in France. Among other things, the parties agreed that neither would invoke the jurisdiction of a court outside of Oregon to resolve future issues relating to L's custody. Based on the parties' agreement, the trial court entered a general judgment of unlimited legal separation. That judgment, which was entered in January 2014, resolved the issues related to L's custody and incorporated the parties' agreed-upon parenting plan.
The trial court denied the motion. Based on the arguments and evidence presented by the parties, the court determined that it had subject matter jurisdiction under the UCCJEA at the time that it had entered the general judgment of unlimited legal separation:
"The General Judgment was filed on December 23, 2013, and entered on January 2, 2014. At that time, no state or country had 'home state' jurisdiction as that term is defined in the UCCJEA. Oregon had jurisdiction pursuant to ORS 109.741(1)(b) and the parties, both of whom were represented by counsel, stipulated to the necessary facts for the Court's jurisdiction."
The court thereafter entered a supplemental judgment awarding mother attorney fees incurred in responding to father's motion. A short while later, the trial court found father to be in contempt for violating the parenting plan by using marijuana or hashish while L was in his care and for filing the second child custody proceeding in France. The court further found that father's contemptuous conduct caused mother to incur $16,038.78 in damages and entered a supplemental judgment for that amount. The court subsequently ordered father to pay the attorney fees mother incurred to prosecute the contempt.
Mother responds that father, in effect, waived his ability to challenge the court's jurisdiction when he stipulated to it, or should be estopped from challenging it. Mother also contends that the allegations in her initial petition and certain of the parties' stipulations demonstrate that the court nonetheless correctly concluded that it had jurisdiction under the UCCJEA at the time that it made the initial custody determination regarding L.
Father's core contention is that the trial court lacked jurisdiction under the UCCJEA to make custody decisions about L at the time that it entered the general judgment of unlimited legal separation, and that the court therefore erred by denying his motion to vacate the judgment and by holding him in contempt for violating the terms of that judgment. We review for legal error the trial court's determination that it had subject matter jurisdiction under the UCCJEA. Campbell v. Tardio ,
III. ANALYSIS
A. Estoppel
We start by considering-and rejecting-mother's estoppel argument. Mother's position is not unsympathetic. Father's position on what state has subject matter jurisdiction has been in flux for the entirety of this litigation. He took the position that Oregon has jurisdiction at the time of the
Nonetheless, Oregon law with respect to subject matter jurisdiction generally, and with respect to the UCCJEA specifically, is unequivocal that subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel and may be raised at any time. Carey v. Lincoln Loan Co. ,
B. Jurisdiction
We turn to the question of whether the trial court had subject matter jurisdiction over this dispute under the UCCJEA. Where, as here, multiple states
" 'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six monthsof age, 'home state' means the state in which the child lived from birth with any of the persons mentioned. Any temporary absence of any of the mentioned persons is part of the period."
ORS 109.704(7).
Alternatively, if Oregon is not a child's home state, it nevertheless may have jurisdiction under ORS 109.741(1)(b) to (d), which confer jurisdiction on a state that is not a home state in three circumstances. One of those circumstances is when a child and a parent have a sufficient connection to the state. Specifically, ORS 109.741(1)(b) provides that a state has "significant connection" jurisdiction if the child has no home state, the child and one parent have a "significant connection" to the state, and there is "substantial evidence" in the state about "the child's care, protection, training and personal relationships." ORS 109.741(1)(b).
In this case, it is undisputed that Oregon was not L's home state as of the date that mother filed this proceeding and that Oregon, therefore, does not have "home state" jurisdiction under ORS 109.741(1)(a). The trial court nonetheless determined that it had "significant connection" jurisdiction under ORS 109.741(1)(b), concluding that L had no home state, but that mother and L have a significant connection to Oregon and that there is substantial evidence in
Father assigns error to that jurisdictional determination, contending that it is wrong in two different respects. First, father contests the trial court's determination that L had no home state as of November 12, 2013. In an argument that he did not make below, father contends that Indonesia was L's home state as of the date mother filed the petition in circuit court. Although it is undisputed that L left Indonesia with mother before they had been there six months, father asserts that L's time in the United States after mother left Bali qualifies as a "temporary absence" from Indonesia within the meaning of ORS 109.704(7), such that that time counts in assessing whether L had lived in Indonesia for the requisite six consecutive months immediately before mother's initiation of the custody proceeding. Second, father asserts that, even if L had no home state as of November 12, 2013, the evidence presented by mother was insufficient to establish either that L had a significant connection to Oregon or that substantial evidence exists in Oregon about L's "care, protection, training and personal relationships." For that additional reason, according to father, the trial court erred when it determined that it had "significant connection" jurisdiction under ORS 109.741(1)(b).
Mother responds that the trial court correctly concluded that L had no home state at the time that she initiated this proceeding and, in particular, correctly rejected father's assertions that L was "temporarily absent" from France or Bali, the putative home states that father has identified. She further contends that the evidence that she submitted in response to father's motion to vacate the judgment was sufficient to support the trial court's determination that L and mother have a significant connection to Oregon and that Oregon has substantial evidence about L's "care, protection, training and personal relationships."
Thus, as framed by the parties, this appeal presents two issues: (1) Was Indonesia L's home state when mother initiated this proceeding? (2) If not, did the trial court correctly conclude that L had a significant connection to Oregon? We address those issues in turn.
As the parties both recognize, whether Indonesia was L's home state at the time that mother initiated this proceeding turns on whether L's departure from Bali with mother immediately preceding the initiation of this proceeding was a "temporary absence" from Indonesia within the meaning of ORS 109.704(7). If so, then that time is counted as if L were in Indonesia, making L's stay there long enough to qualify Indonesia as L's home state (provided that L's time in Indonesia was not itself a "temporary absence" from another place that qualified as a home state, in which case that place would remain L's home state).
Under the duration test, a court determines whether an absence is temporary by looking exclusively at its duration. Under it, short absences are treated as temporary, and longer ones are not. See, e.g. , In re Marriage of Arulpragasam and Eisele ,
Under the intent test, courts consider the purpose of an absence to assess whether it should be temporary. Charlow, 28 J. Am. Acad. Matrim Law at 31-33. Although this test takes into account the realities of what a child's parents may have been intending with respect to a particular absence, the test is problematic where parents may have had differing intentions about the nature of an absence. In such circumstances, there may be no principled way to say that one parent's intent should control over the other parent's intent. Additionally, the test can be difficult to apply because parties' intentions may change over time. See generally id .
The final test is the totality of the circumstances test. As the name indicates, the test looks at all the surrounding circumstances of a purported temporary absence, including intent of the parties and duration of absence, to assess whether the absence should be treated as a temporary departure from a putative home state. From what we can tell, most jurisdictions that have considered the issue have embraced this approach. See Norris v. Norris ,
Having considered the various approaches, we too adopt the totality of the circumstances approach. We do so for three reasons. First, it appears to be the test most commonly used by other UCCJEA states. Adopting it, therefore, is consistent with the directive in ORS 109.831 that the UCCJEA
Applying that approach to the parties' circumstances in this case, we conclude that L's absence from Indonesia after his departure with mother was not a "temporary absence" from Indonesia for purposes of the UCCJEA under this family's circumstances, when considered in their totality. First, the family's history reflects an open-ended residential history. That is, the parties lived sequentially in different places without firm plans either to stay in one place for a particular time, or about where to live next. Second, at the time of L's departure from Indonesia with mother, the family was planning to relocate to Singapore, and there does not appear to have been any concrete plans for mother and L to return to Indonesia in particular. Third, as father repeatedly emphasized below, the parties intended their time in Indonesia to be temporary. In view of all those circumstances, when L and mother left Indonesia, they were not temporarily absent from Indonesia for purposes of the UCCJEA. Although it may be the case that the parties may have intended that the separation of the family would be temporary at the time that mother and L left-father certainly intended as much and mother had not told father that she intended to separate from him-that does not equate to the conclusion that L's absence from Indonesia was
Consequently, Indonesia did not become L's home state; it is undisputed that L did not live there for the requisite six months if his time away does not qualify as a "temporary absence" under the UCCJEA. We have concluded that L was not temporarily absent from Indonesia. Thus, the trial court was correct to conclude that L did not have a home state when mother initiated this proceeding.
2. Significant connection
That leaves the question of whether the trial court correctly concluded that it had "significant connection" jurisdiction under ORS 109.741(1)(b). To recall, that statutory provision provides that a state has "significant connection" jurisdiction if the child has no home state, the child and one parent have a "significant connection" to the state, and there is "substantial evidence" in the state about "the child's care, protection, training and personal relationships." ORS 109.741(1)(b). Although father argues otherwise, the evidence submitted by mother in response to father's motion to vacate is sufficient to support the trial court's determination that mother and L have a "significant connection" to Oregon and that Oregon has the "substantial evidence" about L required by ORS 109.741(1)(b). That evidence shows that mother is from Eugene, L was born here and has a doctor here, and that L's maternal grandparents live here six months out of the year and have spent much time with L, making them significant sources of information about L.
The trial court therefore correctly concluded that it had subject matter jurisdiction over the parties' child custody dispute under ORS 109.741(1)(b). As a result, the court correctly denied father's motion to set aside the custody provisions of the stipulated judgment of separation, and also had jurisdiction to hold father in contempt for violating those provisions.
Affirmed.
Notes
The UCCJEA is codified in Oregon at ORS 109.701 to 109.834. ORS 109.701 ("ORS 109.701 to 109.834 may be cited as the Uniform Child Custody Jurisdiction and Enforcement Act.").
ORS 109.831 provides, "In applying and construing ORS 109.701 to 109.834, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it."
The UCCJEA generally requires that foreign countries be treated as states, directing that "[a] court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying ORS 109.701 to 109.771." ORS 109.714(1).
ORS 109.741 codifies section 201 of the UCCJEA.
As noted, after oral argument and submission of this case, we requested supplemental briefing from the parties on what legal test applies to the determination of whether an absence from an asserted home state is a "temporary absence" within the meaning of ORS 109.741. We did so because that issue is the central issue on appeal, there is a division on the issue across jurisdictions that have adopted the UCCJEA, even though the UCCJEA is a uniform act intended to be applied uniformly, and because this court has never addressed what legal standard applies, even though twice we have assessed whether an absence qualifies as a "temporary absence" without articulating the applicable legal standard. Dept. of Human Services v. M. H. ,