In re Custody of Kalbes

733 N.W.2d 648

2007 WI App 136

In re the CUSTODY OF Kaitlyn Marie KALBES Tanya Marie Hatch, Petitioner-Appellant, v. Michael B. Hatch, Respondent-Respondent.

No. 2006AP2259.

Court of Appeals of Wisconsin.

Submitted on Briefs April 10, 2007.

Opinion Filed April 24, 2007.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Tammy W. Levit-Jones of Crooks, Low & Connell, S.C., Wausau.

On behalf of the respondent-respondent, the cause was submitted on the brief of Kenneth J. Andraski of Lonsdorf & Andraski, LLP, Wausau.

Before CANE, C.J., HOOVER, P.J., and PETERSON, J.

¶ 1 PETERSON, J

Tanya Hatch appeals an order dismissing her Wisconsin custody action. She argues the circuit court erroneously interpreted the Uniform Child Custody Jurisdiction and Enforcement Act when it concluded Idaho, not Wisconsin, was the proper forum to adjudicate custody of her daughter. We agree, reverse the judgment, and remand for further proceedings in Wisconsin.

BACKGROUND

¶ 2 Tanya and Michael Hatch were married in Idaho on May 28, 2005, and lived in Idaho during the course of their marriage. They separated in early December 2005. Tanya left Idaho and moved to Wisconsin on December 9. Tanya was pregnant when she moved and gave birth to Kaitlyn on April 14, 2006.

¶ 3 Michael filed for divorce in Idaho on December 20, 2005. Tanya was served with the summons and complaint in the Idaho action on February 2, 2006, and made a general appearance on February 22. On April 26, Tanya filed this action in Wisconsin seeking custody of Kaitlyn. On May 8, Michael moved for custody in the Idaho divorce proceeding.

¶ 4 Michael's Idaho motion was heard June 1. The Idaho court determined it had jurisdiction over the custody issue and ordered Tanya to return to Idaho with Kaitlyn by June 15. Michael also made a limited appearance in the Wisconsin custody action, asking the court to either dismiss the action or order Tanya to comply with the Idaho court order.

¶ 5 The circuit court held a hearing on Tanya's Wisconsin custody action on July 13. At the hearing, the court concluded the Idaho court had jurisdiction over the case due to the pending divorce proceeding, and dismissed the Wisconsin action.

STANDARD OF REVIEW

¶ 6 As a general matter, custody determinations are committed to the circuit court's discretion. Koeller v. Koeller, 195 Wis.2d 660, 663, 536 N.W.2d 216 (Ct. App.1995). A circuit court properly exercises its discretion when it "examines the relevant facts, applies a proper standard of law, and, using a demonstrated rational process, arrives at a conclusion that reasonable judges could reach." Guelig v. Guelig, 2005 WI App 212, ¶ 44, 287 Wis.2d 472, 704 N.W.2d 916. This case also calls for interpretation of WIS. STAT. ch. 822.¹ The meaning of a statute is a question of law reviewed without deference to the circuit court. Hess v. Fernandez, 2005 WI 19, ¶ 36, 278 Wis.2d 283, 692 N.W.2d 655.

DISCUSSION

¶ 7 The parties dispute whether Idaho or Wisconsin has jurisdiction over this custody dispute under the Uniform Child Custody Jurisdiction and Enforcement Act (the "Uniform Act"), WIS. STAT. ch. 822.²

¶ 8 When interpreting statutes, we begin with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. "Statutory language is given its common, ordinary, and accepted meaning. . . ." Id. We interpret statutory language in the context in which it is used and in relation to the language of surrounding or closely related statutes. Id., ¶ 46.

¶ 9 WISCONSIN STAT. § 822.21(1) provides that a Wisconsin court "has jurisdiction to make an initial determination" if Wisconsin "is the home state of the child on the date of the commencement of the proceeding. . . ." WIS. STAT. § 822.21(1)(a).

"Home state" means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned in this subsection. A period of temporary absence of any of the persons mentioned in this subsection is part of the period.

WIS. STAT. § 822.02(7). Tanya contends Wisconsin is Kaitlyn's "home state" under this definition, and therefore Wisconsin has initial jurisdiction under § 822.21(1). We agree.

¶ 10 Kaitlyn was born April 14, 2006. Tanya initiated the Wisconsin custody proceeding on April 26, when Kaitlyn was less than two weeks old. The "home state" of a child less than six months old is "the state in which the child lived from birth with" a parent or person acting as a parent. WIS. STAT. § 822.02(7). Kaitlyn was born in Wisconsin and lived from birth with Tanya in Wisconsin. Wisconsin therefore was Kaitlyn's "home state," and the Wisconsin court had jurisdiction over the custody proceeding under WIS. STAT. § 822.21(1).

¶ 11 Michael argues this result is contrary to the purpose of the Uniform Act's purpose of promoting cooperation "to the end that a custody decree is rendered in the state that can best decide the case in the interest of the child." WIS. STAT. § 822.01(2)(a)-(b). This argument ignores the overall purpose and structure of the Uniform Act. Under prior law, there were four different bases for initial jurisdiction, which conceivably could allow more than one state initial jurisdiction. WIS. STAT. § 822.03(1) (2003-04); see also Kelly Gaines Stoner, The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)-A Metamorphosis of the Uniform Child Custody Jurisdiction Act (UCCJA), 75 N.D. L.REV. 301, 312-313 (1999).

¶ 12 The Uniform Act changed this rule. Under the Uniform Act, home state jurisdiction always receives priority, and other jurisdictional bases are available only when there is no home state, or where the home state declines jurisdiction. Stoner, supra at 313; WIS. STAT. § 822.21(b)-(d). These clear rules will, at least in theory, always leave a single state with jurisdiction over the custody proceeding and avoid the "jurisdictional competition and conflict" present under prior law. WIS. STAT. § 822.01(2)(a). Wisconsin's home state jurisdiction therefore is fully consistent with the purposes of the Uniform Act.

¶ 13 In the alternative, Michael advances a number of reasons the circuit court correctly dismissed the Wisconsin action even if Wisconsin was Kaitlyn's "home state." First, Michael argues the Wisconsin action is an attempt to modify the Idaho order under WIS. STAT. § 822.23. Under § 822.23(1), a court may only modify another court's custody determination if the other court "determines that it no longer has exclusive, continuing jurisdiction under s. 822.22" or determines that the Wisconsin court would be a more convenient forum.

¶ 14 WISCONSIN STAT. § 822.23 simply is not applicable here. The Idaho court never had exclusive, continuing jurisdiction in the first place because it is not — and never was — Kaitlyn's "[h]ome state." WIS. STAT. §§ 822.22(1); 822.21(1); 822.02(7). Michael's argument also ignores WIS. STAT. § 822.26, which has rules expressly dealing with simultaneous proceedings. As Tanya points out, analyzing this case under § 822.23 would mean that in all cases where simultaneous proceedings exist, the first court to enter a custody order would have jurisdiction. This is contrary to the specific rules governing simultaneous proceedings in § 822.26.

¶ 15 Michael next argues Idaho is a proper forum under WIS. STAT. § 822.26. With an exception not relevant here, § 822.26(1) provides that

a court of this state may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 822.27.

Michael argues the Idaho proceeding is a qualifying proceeding under this section, and therefore the Wisconsin court properly declined to exercise its jurisdiction.

¶ 16 We disagree. WIS. STAT. § 822.26(1) prohibits a Wisconsin court from exercising jurisdiction only in response to a proceeding in a different state court "having jurisdiction substantially in conformity with this chapter. . .." Here, the Idaho court did not have jurisdiction to make an initial determination of Kaitlyn's custody because Kaitlyn's "home state" was Wisconsin.³ The Idaho court therefore did not have jurisdiction "substantially in conformity with this chapter," and the Wisconsin court was not prohibited from exercising jurisdiction under § 822.26(1).⁴

¶ 17 Michael also argues the court properly declined jurisdiction under WIS. STAT. § 822.27. Under WIS. STAT. § 822.27, a court may decline to exercise its jurisdiction if it determines it is an inconvenient forum and another state is more appropriate. WIS. STAT. § 822.27(1).

¶ 18 The parties both focus on whether the court even made a finding that Wisconsin would be an inconvenient forum. In its oral decision, the court stated:

Wisconsin does not automatically, in this Court's mind, does not automatically acquire sole jurisdiction over a child born here, if it is a marital child of an action of a divorce pending in another state in which orders have been entered. That's the distinction this Court draws.

. . . .

So the Court's declining to exercise jurisdiction. I see very little, very little need to talk to the [Idaho judge] because, frankly speaking, with my analysis of the law, I think it absolutely flows with his. He relied on the fact that [the Idaho court] had jurisdiction of this marriage. . . .

¶ 19 We do not see how this statement by the court amounted to a conclusion that Wisconsin was...