In re Mayfield

306 Or.App. 386

474 P.3d 454

In the MATTER OF the MARRIAGE OF Madison L. H. MAYFIELD, nka Madison L. H. Yates, Petitioner-Respondent, and Shane A. Mayfield, Respondent-Appellant.

A172567

Court of Appeals of Oregon.

Submitted June 5, 2020.

September 2, 2020

Shane A. Mayfield filed the briefs pro se.

Emily T. Roberts filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

AOYAGI, J.

While living in Oregon, father and mother married, had three children, and divorced. An Oregon trial court decided child custody as part of the divorce judgment. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Oregon thereby exercised initial-custody jurisdiction over the children, triggering exclusive, continuing jurisdiction until such time as a jurisdiction-concluding event occurred. Two years later, mother—who had moved to Washington with the children—filed a motion asking that the Oregon court decline further jurisdiction over custody matters and allow a Washington court to assume jurisdiction. The trial court granted mother's motion on two alternative grounds: first, under ORS 109.744(1)(a), on the basis that the children do not have a significant connection with Oregon and that substantial evidence is no longer available in Oregon, and second, under ORS 109.761, on the basis that Oregon is an inconvenient forum and that Washington is a more appropriate forum. Father appeals. For the following reasons, we affirm.

FACTS

Father requests de novo review, but this is not an "exceptional" case, as is required to obtain de novo review. ORS 19.415(3)(b) (granting "sole discretion" to the Court of Appeals whether to allow de novo review in equitable proceedings); ORAP 5.40(8)(c) (stating that the court will exercise that discretion "only in exceptional cases"). We therefore decline to exercise de novo review and instead state the facts consistently with the trial court's findings.

Father and mother married in 2011 and separated in 2016. Three children were born of the marriage. In late 2016, mother and the children moved to Vancouver, Washington, where they have continuously resided since then. In January 2017, an Oregon court entered a general judgment of dissolution, which included a child custody order that gave mother sole legal custody of the children and gave father parenting time.

In January 2018, mother was interested in moving to Virginia and filed a motion to modify the custody order, which was denied by the Oregon court.

In October 2018, mother registered the 2017 and 2018 Oregon custody orders with the Clark County Superior Court in Washington. Subsequently, mother filed a petition in Washington to modify the parenting plan, residential schedule, or custody order. That matter was held pending resolution of jurisdictional issues.

In August 2019, mother filed a motion in the Oregon court, requesting that it decline further jurisdiction and allow the Washington court to assume jurisdiction to make custody determinations. After a hearing—at which a Clark County Superior Court judge was present by telephone—the court granted mother's motion, focusing on the location of witnesses and evidence that would be relevant to a custody dispute. The trial court ruled orally at the conclusion of the hearing and, later, entered a written order with express findings and conclusions.

In its written order, the court found that father resides in Oregon, that mother and the children reside in Washington, and that "[t]he vast majority of the information regarding the children's present circumstances, with the exception of the location of [f]ather and some extended family, is all located in Washington." That "includes various family members, healthcare providers, school, and activities." Further, "any experts, such as an evaluator, that would be retained to assist the court with the issues pertaining to custody and parenting time would also be situated in Washington." On that basis, the court concluded that it no longer had exclusive, continuing jurisdiction under ORS 109.744(1)(a), because the children do not have a significant connection with Oregon and substantial evidence is not available in Oregon.

Alternatively, the court declined continuing jurisdiction on inconvenient-forum grounds, ORS 109.761, explaining in its written order that, "[w]hile [father] continues to reside in Oregon and there are some family members of both parties that reside in Oregon, other evidence, such as witnesses, a custody evaluator, and the child[ren], are all in Washington." Further, "[w]hile this [c]ourt has familiarity with this case, this [c]ourt does not believe that the court in Washington would have any issue getting up to speed in this matter."

The court thus granted mother's motion, declining further jurisdiction to make custody determinations for the children and transferring jurisdiction to the Clark County Superior Court in Washington. Father appeals. He raises three assignments of error, but each assignment effectively addresses an aspect of the trial court's reasoning, so we address them together. See Cedartech, Inc. v. Strader , 293 Or. App. 252, 256, 428 P.3d 961 (2018) ("The assignments are criticisms of the trial court's reasons for its result but are not truly rulings of the trial court of the sort that are required to be identified in an assignment of error." (Emphases in original.)).

ANALYSIS

We begin with father's challenge to the trial court's conclusion that, under ORS 109.744(1)(a), a provision of the UCCJEA, it no longer had jurisdiction to make custody decisions for the children.

As relevant here, ORS 109.744(1) provides that, once an Oregon court makes an initial custody determination for a child, it has exclusive, continuing jurisdiction to make all custody determinations for that child (except for temporary emergency orders), until such time as one of two determinations is made:

"(a) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships; or

"(b) A court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state."

(Emphases added.) See also Campbell v. Tardio , 261 Or. App. 78, 82, 323 P.3d 317 (2014) (where an Oregon court had made an initial custody determination under ORS 109.741, that court "had continuing jurisdiction until a court of this or another state made findings contrary to continuing jurisdiction," and, because no court had made the specified findings under ORS 109.744(1), the Oregon court continued to have jurisdiction).

Relatedly, ORS 109.747 provides that an Oregon court may not modify a child custody determination made by a court of another state —with a limited exception for temporary emergency jurisdiction—unless the Oregon court meets the requirements for initial-custody jurisdiction and either (1) the other state's court determines that it no longer has exclusive, continuing jurisdiction under ORS 109.744 or that an Oregon court would be a more convenient forum under ORS 109.761, or (2) an Oregon court or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state. Because the UCCJEA is a uniform act, any other state that has adopted the UCCJEA should have a similar statutory provision, precluding its courts from modifying an existing Oregon child custody determination unless its courts meet the requirements for initial-custody jurisdiction and one of the specified judicial determinations has been made. See, e.g. , RCW 26.27.221 (Washington statute identical to ORS 109.747 ).

In this case, applying ORS 109.744(1)(a), the trial court determined that the children do not have a significant connection with Oregon and that substantial evidence is not available in Oregon. Father contests that determination, arguing, among other things, that the court placed too much emphasis on the children's connection with Washington, while understating their significant ties to Oregon, and that the court wrongly focused on the fact that, absent the existing Oregon custody orders, Washington would have initial-custody jurisdiction as the children's current home state. See ORS 109.741(1)(a) (granting jurisdiction to a child's "home state" to make an initial custody determination); ORS 109.704(7) (defining a child's "home state," as relevant here, as the state in which the child lived with a parent "for at least six consecutive months immediately before the commencement of a child custody proceeding").

In response, mother defends the trial court's determination under ORS 109.744(1)(a), as well as argues that, under the UCCJEA, a court lacks jurisdiction to modify its own custody order unless it meets the requirements for initial-custody jurisdiction at the time of modification. We squarely reject the latter argument. To modify an existing Oregon custody order, an Oregon court must meet the requirements for initial-custody jurisdiction only if one of the necessary determinations in ORS 109.744(1) has been made, such that the Oregon court has lost exclusive, continuing jurisdiction. See ORS 109.744(2) ("A court of this state that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if the court has jurisdiction to make an initial determination under ORS 109.741." (Emphasis added.)). Mother cites Medill and Medill , 179 Or. App. 630, 40 P.3d 1087 (2002), as authority for her argument, but it does not support that argument. In Medill , we applied ORS 109.744(2) and addressed whether the trial court had initial-custody jurisdiction at...