882 P.2d 132 | Or. Ct. App. | 1994
Mother appeals from a judgment dismissing her petition for the court to assume jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), ORS 109.700 to ORS 109.930. We review de novo, ORS 19.125(3), and affirm.
Mother and father divorced in 1988 in California. The judgment of dissolution, entered by a California court, awarded them joint custody of their three children, but awarded mother physical custody. Mother and two of the children, Jonathan and Jessica, have lived in Oregon continuously since 1986.
On June 28,1993, mother filed a petition for the court to assume jurisdiction to modify the visitation provisions of the judgment of dissolution. Father moved, pursuant to ORS 109.770(4),
It is undisputed that the Oregon court has jurisdiction to modify visitation, because it is the ‘ ‘home state’ ’ of the children. See ORS 109.730(1)(a); ORS 109.710(5). However, ORS 109.840 limits an Oregon court’s authority to modify a custody or visitation decision of a court of another state. Grubs v. Ross, supra, 291 Or at 271. ORS 109.840 provides, in part:
“(1) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with ORS 109.700 to 109.930 [the UCCJA] or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction” (Emphasis supplied.)
Accordingly, an Oregon court may modify a custody decree entered by a court of another state only if that court no longer has jurisdiction under jurisdictional requirements like those contained in the UCCJA, or declines to exercise jurisdiction and the Oregon court has jurisdiction. The statute evinces a preference for deciding modification petitions in the court that established the conditions to be modified. That preference promotes the statutory purposes expressed in ORS 109.720, including avoiding jurisdictional competition and relitigation of custody decisions.
It is undisputed that the California court has not declined to assume jurisdiction. Because the California court has jurisdiction and has not declined that jurisdiction, the Oregon court properly deferred to the California court! ORS 109.840.
We also disagree with mother’s contention that the court considered visitation jurisdiction and custody jurisdiction as separate actions. The record of the discussion between the Oregon and California courts indicates that visitation was considered separately from custody only to the extent that evidence relating to those issues is located in different places. The California court indicated that if mother had moved to modify custody, it would have declined continuing jurisdiction, because the evidence concerning custody would be in Oregon, the place of custody.
Mother’s request for an award of attorney fees is denied.
Affirmed; costs to husband.
The third child, Kellie, is now an adult and is not involved in this proceeding.
Mother’s brief asserts that she and the children have lived in Oregon continuously since 1986. Father has not objected to that assertion. However, we note that mother asserts, in the affidavit accompanying her petition for the court to assume jurisdiction, that she moved to Oregon with the children in 1987.
ORS 109.770(4) provides:
“Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.”
The California court noted that there had been 14 previous motions concerning custody and visitation made in that court by the parties. It said that the parties litigated the question of jurisdiction in 1989 or 1990, and the California court retained jurisdiction. In addition, another motion to determine whether the California court retained jurisdiction was pending in that court, and a hearing had been set for November 23, 1993.
The California court said:
“I do not want to defer now.
“I would say that if this got into a basic custody dispute where it looked like the witnesses surrounding it — because the children have been in Oregon now for quite a while — were — mostly there, then that would be a different situation.”
The Oregon court agreed, and then the California court said:
“We would defer [if there was a basic custody dispute] because * * * that issue might well be better litigated in Oregon than here.”