IN RE THE MARRIAGE OF MARK J. STONEMAN, Petitioner and Respondent, v. RUTH L. DROLLINGER, Respondent and Appellant.
No. 01-739
Supreme Court of Montana
Decided February 18, 2003
2003 MT 25, 314 Mont. 139, 64 P.3d 997
Heard October 15, 2002. Submitted October 29, 2002.
For Respondent: Karl Knuchel, Livingston.
For Amicus: Patricia Novotny, Seattle, Washington; Shane P. Coleman, Dorsey & Whitney, Missoula (Northwest Women‘s Law Center).
JUSTICE NELSON delivered the Opinion of the Court.
¶1 Ruth L. Drollinger appeals the denial of her motion requesting the court decline to exercise jurisdiction over a custody dispute with her former husband, Mark J. Stoneman. In September 1999, Drollinger relocated with her four children to the State of Washington. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) enumerates domestic violence as one of eight factors that a Montana court must consider when determining whether it is an inconvenient forum to adjudicate child custody issues. Although Stoneman‘s past acts of violence against Drollinger are well documented, the Eighteenth Judicial District Court, Gallatin County, failed to consider Drollinger‘s safety and well-being when evaluating whether transfer of proceedings to Washington is appropriate. We hold that a finding of domestic violence authorizes a court to yield jurisdiction to another state if the victim could be better protected in the other forum and if the other statutory factors do not militate against the transfer. We reverse and remand for further proceedings consistent with this Opinion.
¶2 The sole issue raised by Drollinger on appeal is whether the District Court erred by denying her motion to decline to exercise jurisdiction as an inconvenient forum under the UCCJEA.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Stoneman and Drollinger married on October 1, 1988, in Livingston, Montana. On August 1, 1990, a few months after the birth of the couple‘s first child, Stoneman filed a petition for dissolution in Gallatin County. Thereafter, the parties reconciled, reunited and
¶4 Stoneman repeatedly battered Drollinger during the marriage and Drollinger obtained several court-issued orders of protection during the parties’ multiple separations. Stoneman pled guilty to partner and family member assault in 1990, 1991, 1994 and 1996. The record details Stoneman‘s violations of the orders of protection as well as several incidents involving Stoneman‘s violent behavior after the parties’ final separation.
¶5 The District Court appointed a Guardian Ad Litem (GAL) in 1997 to represent the interests of the children in the dissolution proceedings. The GAL consistently recommended against Stoneman‘s unsupervised visitation with the children. In its October 23, 1998 decree of dissolution, the court divided the marital estate and awarded custody of the children to Drollinger. Drollinger, acting pro se and in forma pauperis, appealed the division of marital property, denial of a maintenance award, determination of child support and the visitation provisions of the parenting plan.
¶6 While the appeal was pending, Drollinger filed a notice of intent to move and relocated with her children to Washington in September 1999. The District Court in Montana directed Drollinger to bring the four children on alternate weekends from Washington to a designated location in Bozeman where the children‘s transfer to Stoneman for unsupervised visits was facilitated by a third party.
¶7 On November 30, 2000, this Court affirmed the District Court‘s judgment on the issues of property apportionment, maintenance and child support, but held that the court committed reversible error by allowing Stoneman unsupervised visitation with the children in light of his history of violence toward their mother. Stoneman v. Drollinger, 2000 MT 274, 302 Mont. 107, 14 P.3d 12. We noted that the overwhelming evidence in this case demonstrates an emotional and physical risk to the children if they are left alone with their father. Stoneman, ¶ 59. We remanded for entry of an order requiring the children‘s visits with Stoneman to be supervised and well-structured. Stoneman, ¶ 61. Stoneman filed a petition for rehearing, which this Court denied.
¶8 On February 6, 2001, the Whitman County Superior Court of Washington issued a Permanent Order of Protection that bars Stoneman from all direct contact with Drollinger and the four children, except for Stoneman‘s supervised visitation, which had not yet been established by the Montana court.
STANDARD OF REVIEW
¶10 The standard of review of a motion to decline jurisdiction is whether the District Court abused its discretion. In re Paternity and Custody of B.E.S., 1998 MT 190, ¶ 19, 290 Mont. 188, 19, 963 P.2d 449, 19 (citing In re Marriage of Cook (1986), 223 Mont. 293, 297, 725 P.2d 562, 564-65).
DISCUSSION
¶11 As a case of first impression, this Court is asked to examine the provisions of the UCCJEA that allow a Montana court to decline to exercise jurisdiction over child custody proceedings when the court determines that it is an inconvenient forum. For background, a brief discussion of the statutory schemes designed to address jurisdictional problems raised by interstate child custody disputes is warranted.
¶12 In 1977, Montana adopted the Uniform Child Custody Jurisdiction Act (UCCJA) for the purpose of avoiding competition between states for jurisdiction over child custody proceedings and promoting cooperation of the courts by establishing uniform criteria for the state with the closest connections with the child to exercise jurisdiction. Sec. 1, Ch. 537, L. 1977. Although all 50 states, the District of Columbia and the Virgin Islands adopted the UCCJA, problems of interstate forum shopping and other jurisdictional disputes continued to vex the nation‘s courts. See 9 Uniform Laws Annotated (U.L.A.) 650 (1999).
¶13 In 1980, the federal government enacted the Parental Kidnaping Prevention Act (PKPA),
¶14 To harmonize state child custody jurisdictional provisions with the PKPA and to eliminate inconsistent state court interpretations of jurisdictional issues, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved the UCCJEA in 1997 and recommended its enactment by all states.1 The Montana Legislature adopted the UCCJEA in 1999 (codified under
¶15 Under the UCCJEA, a Montana court has jurisdiction to make a child custody determination if Montana is the “home state” of the child.
¶16 To that end, the UCCJEA specifically mandates that a Montana court, at a minimum, consider the following factors when evaluating a motion to decline jurisdiction as an inconvenient forum:
- whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
- the length of time that the child has resided outside this state;
- the distance between the court in this state and the court in the state that would assume jurisdiction;
- the relative financial circumstances of the parties;
- any agreement of the parties as to which state should assume jurisdiction;
- the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
- the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the
evidence; and - the familiarity of the court of each state with the facts and issues in the pending litigation.
¶17 In the case before us on appeal, Stoneman contends that the criteria for evaluating inconvenient forum under the UCCJA are encompassed by the UCCJEA‘s requirement that courts consider “all relevant factors.” He cites In re Paternity and Custody of B.E.S., 1998 MT 190, 290 Mont. 188, 963 P.2d 449, as support for his position that it is not appropriate that Washington assume jurisdiction and determine pending visitation issues because his children have a closer connection with Montana, which is where the children have resided for most of their lives. Stoneman also argues that the Montana court should retain jurisdiction because the court has overseen the protracted litigation between the parties and Drollinger‘s effort to transfer jurisdiction is only an attempt to frustrate Stoneman‘s visitation with his children.
¶18 In B.E.S., this Court interpreted the statutory criteria for determining inconvenient forum as it existed in 1998, prior to the Montana Legislature‘s enactment of the UCCJEA in 1999. However, the UCCJEA significantly altered the earlier provisions of
¶19 At oral argument before this Court, Stoneman conceded that the UCCJEA rather than the UCCJA governs this case. Also, the parties do not dispute that Montana is the “home state” for the four children. The children were born in Montana; child custody proceedings commenced in the Eighteenth Judicial District Court, Gallatin County; the Montana court made the initial child custody determination; and Stoneman continues to reside in Montana. Consequently, the Montana court has exclusive and continuing jurisdiction to establish Stoneman‘s supervised visitation with his children unless, under the circumstances, it would be appropriate for
¶20 When evaluating whether to decline jurisdiction as an inconvenient forum, a court must allow the parties to submit information for the court‘s consideration.
¶21 The first factor inquires “whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.”
¶22 The UCCJEA places domestic violence at the top of the list of factors that courts are required to evaluate when determining whether to decline jurisdiction as an inconvenient forum for child custody proceedings. Since domestic violence was not raised by the now-repealed UCCJA as a factor for court consideration, the NCCUSL, which drafted the UCCJEA, offered the following guidance to assist courts in applying this factor:
For this purpose, the court should determine whether the parties are located in different States because one party is a victim of domestic violence or child abuse. If domestic violence or child abuse has occurred, this factor authorizes the court to consider which State can best protect the victim from further violence or abuse.
9 U.L.A. 683. The NCCUSL explicitly recognized that past abuse or a continuing threat of violence might compel a battered spouse or parent of an abused child to relocate to another state. The NCCUSL further directed courts to proceed with an evaluation of which forum can provide the greater safety whenever domestic violence or child abuse has occurred.
¶23 The priority the NCCUSL assigned to the protection of victims from further domestic violence is supported by the research findings of the United States Department of Justice. Those findings suggest that termination of an abusive relationship actually poses an increased
¶24 An alarming report from the State Justice Institute lists risk factors for intimate partner homicide recognized by a majority of domestic violence experts. Identified indicators of homicidal potential are the batterer‘s access to or ownership of guns; use of weapons in prior abusive incidents; threats with weapons; serious injury in prior abusive incidents; threats of suicide; drug or alcohol abuse; forced sex with the female partner; obsessiveness; extreme jealousy; and extreme dominance. See Jan Roehl and Kristin Guertin, State Justice Institute, Current Use of Dangerous Assessments in Sentencing Domestic Violence Offenders 3-7 (Sept. 1998) (hereafter, Roehl).
¶25 Orders of protection have proven inadequate to guard women and children from further abuse. A recent two-year study of male batterers against whom an order of protection had been filed found that almost half of abusers assaulted their victims again within the study period. The re-abuse rate did not differ for those who maintained the orders and those who dropped them. Andrew R. Klein, United States Department of Justice, “Re-abuse in a Population of Court-Restrained Male Batterers: Why Restraining Orders Don‘t Work,” Legal Interventions in Family Violence: Research Findings and Policy Implications 52 (July 1998).
¶26 Given the high propensity for recidivism in domestic violence, we hold that when a court finds intimate partner violence or abuse of a child has occurred or that a party has fled Montana to avoid further violence or abuse, the court is authorized to consider whether the party and the child might be better protected if further custody proceedings were held in another state. While this factor alone is not dispositive under
¶27 Turning to the specific facts before us on appeal, the marriage of Stoneman and Drollinger was marked by repeated incidents of domestic violence. Local law enforcement officers arrested Stoneman on charges of partner and family member assault on numerous occasions between 1989 and 1996. Stoneman received four convictions and served a three-month sentence in the Park County Jail for the fourth conviction. When issues arising from the dissolution of the marriage between these parties were before this Court two years ago, we recounted the District Court‘s findings regarding two incidents that illustrate Stoneman‘s propensity for violence:
A disagreement escalated between Mark and Ruth to the point of violence. To protect the children, Ruth, who was pregnant at the time, was forced to put them in the Suburban and drive away from Mark. It is uncontroverted that Mark, in his pickup truck, rammed into the Suburban, endangering the lives of his children and Ruth. Mark testified that he was trying to catch up to Ruth because in her hurry to protect her life and the lives of her children, he thought Ruth had not used seat belts for the children. The Court finds Mark‘s seat belt explanation incredible versus his threat to the safety of his children and Ruth.
....
The second incident involved Mark painting his face with camouflage in the presence of the children, drinking, and driving out into the night, after hearing a story about Ruth. Mark‘s behavior was so bizarre that it frightened his friend Lisa Wolstad. Ms. Wolstad called 911 more than six times out of fear of what Mark would do.... Gallatin and Park County deputies pursued Mark and caught him near the I-90 interchange, dressed in camouflage and in possession of a gun.
¶28 Stoneman asserts on appeal that his last act of reported domestic violence occurred in 1996 and claims that there has been “no apparent problem” during the past three years. He contends that Drollinger only wants to obtain a more “sympathetic judge” by seeking the transfer of the remanded child custody proceedings to a court in Washington.
¶29 Drollinger testified at the May 2001 hearing on her motion to decline jurisdiction that she relocated to Washington with the children in 1999 in order to be near her extended family. She stated that she preserved the confidentiality of her new address to escape a continuing threat of violence by Stoneman. Drollinger‘s mother and father, sister and brother and their families, as well as the children‘s paternal
¶30 Drollinger entered into evidence the Permanent Order of Protection issued by the Whitman County, Washington court in February 2001. Noting that Stoneman stipulated to having committed domestic violence, the Washington court made no findings on the matter and noted that Stoneman disputed Drollinger‘s allegations of violence subsequent to 1997. Drollinger explained to the Montana court:
I‘ve needed to leave the state with my children because I have family in [Washington] state that can help me .... The only reason there‘s not more domestic violence that‘s been occurring is because I no longer live here and I have a—I‘ve been able to—I have a permanent restraining order there.
...
There‘s been a number of things that has made me fearful for any way that he could find out where we live or, you know, where—what I‘m doing or anything like that. I feel that my safety is still in question, Your Honor. I‘m still afraid of him. I am being treated for post-traumatic stress disorder, Your Honor, from the years of domestic violence that I went through.
¶31 Drollinger‘s brief in support of her motion to decline jurisdiction referred the District Court to the supplemental information she submitted to this Court in September 2000, which documents Stoneman‘s “acts of violence and abuse towards [her] and the children since fleeing Montana” in September 1999. Although Drollinger did submit such documentation to this Court during her first appeal, we refused to consider the evidence. Stoneman, ¶ 12. This Court does not engage in fact-finding and may not consider evidence that has not been submitted to the court below for a proper hearing. Consequently, the documentation provided this Court regarding Stoneman‘s more recent acts of violence is not of record.
¶32 While the record in this case is voluminous and the District Court acknowledged the well-documented history of domestic violence perpetrated by Stoneman against Drollinger throughout their ten-year marriage, the court made no new findings regarding violent acts or threats of violence since the October 1998 dissolution proceedings. The court also made no findings regarding threats or the likelihood of future violence before determining that Drollinger failed to demonstrate how she and the children would be safer if proceedings were transferred to Washington.
¶33 In her testimony before the District Court, Drollinger spoke of her
¶34 We conclude that the District Court abused its discretion when it acknowledged the well documented history of domestic violence presented by this case, yet neglected to consider which forum could best protect Drollinger and the children from further abuse. Drollinger maintains that she feels safer in Washington where she is surrounded by extended family and where Stoneman does not know her address or daily pattern of activities. Therefore, we hold that Washington is an appropriate forum for further child custody proceedings in order to better protect Drollinger and the children from the threat of violence from Stoneman.
¶35 Although a finding of past domestic violence can be the basis for a Montana court to yield jurisdiction to another state, the seven other jurisdictional factors enumerated by
¶37 The fourth factor concerns the relative financial circumstances of the parties, which the District Court found to be disparate.
¶38 The sixth factor examines the traditional bases for determining venue and inquires about the nature and location of the evidence required to resolve the pending litigation, including the testimony of the children.
¶39 Although records may be easily transportable, the District Court failed to address the convenience of the witnesses, the majority of whom reside in Washington, including the four children. Three of the children are enrolled in school and receive therapeutic counseling in Washington. Drollinger maintains that Washington is now the location of all witnesses and evidence regarding the children, with the single exception of the GAL who resides in Montana. The GAL testified at the May 2001 hearing that she actually has not seen the children for over one year, but has maintained contact by telephone. Stoneman did not refute Drollinger‘s assertions regarding the location of evidence and witnesses.
¶40 The seventh factor inquires about the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
¶41 The final factor is the familiarity of the court of each state with the facts and issues in the pending litigation.
CONCLUSION
¶42 It is the judgment of this Court that the protection of the parties, the years the children have resided in Washington, the significant distance between courts, the parties’ disparate financial circumstances, the location of evidence and convenience of witnesses, and the familiarity factors, all support the Montana court declining jurisdiction to allow the Washington court to exercise jurisdiction. None of the jurisdictional factors enumerated by
¶43 Accordingly, we reverse the District Court‘s order as it pertains to custody matters and remand with directions that the court stay further proceedings and communicate with the appropriate court in Washington to discuss transfer of this case, pursuant to
¶44 Reversed and remanded.
JUSTICES REGNIER, TRIEWEILER, LEAPHART, COTTER and RICE concur.
CHIEF JUSTICE GRAY, concurring in part and dissenting in part.
¶45 I concur in much of the Court‘s opinion. However, I respectfully dissent from the result the Court reaches. I would remand.
¶46 The District Court denied Drollinger‘s motion to decline jurisdiction as an inconvenient forum. As the Court correctly states, our review of the District Court‘s decision is whether that court abused its discretion. Having properly begun to apply the correct standard, however, the Court takes it upon itself to make the ultimate decision about whether Montana is an inconvenient forum and, indeed, concludes that Washington is the “more appropriate” forum for this case. I cannot agree with the Court‘s approach.
¶47 I do agree with the first sentence in ¶ 34 of the opinion, where the Court determines that the District Court abused its discretion by neglecting to consider which forum could best protect Drollinger and the children. I also agree with ¶ 32 of the opinion, which lists other findings not made by the District Court. The Court then implicitly makes these missing findings of fact—an undertaking totally outside this Court‘s authority—in order to reach the conclusion it desires to make.
¶48 On this record, I conclude that the District Court abused its discretion by failing to make sufficient findings on the domestic violence matters. I would remand, however, for the entry of those findings and, thereafter, for reconsideration of the entire issue of a convenient forum under