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In re Campbell

Court of Appeals of Oregon

February 12, 2014

In the Matter of LOREN S. CAMPBELL, Petitioner-Respondent,
v.
ANGELA M. TARDIO, nka Angela M. Owen, Respondent-Appellant

Argued and Submitted October 17, 2013

Jefferson County Circuit Court. 11DS0017. Gary Lee Williams, Judge.

Steven C. Burke argued the cause for appellant. With him on the briefs was Case & Dusterhoff, LLP.

Timothy R. Gassner argued the cause for respondent. With him on the brief was Glenn, Reeder, Gassner & Whiting, LLP.

Before Duncan, Presiding Judge, DeVore, Judge, and Schuman, Senior Judge.[*]

OPINION

Page 318

[261 Or.App. 79] DEVORE, J.

Mother challenges the trial court's exercise of jurisdiction and its award of custody to father. We affirm, finding jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), ORS 109.701 to 109.771, and no error in the award of custody.

Those facts that determine jurisdiction are undisputed. The parties' child was born on July 19, 2005, while they lived in Oregon. They had an " on-again, off-again" relationship and did not marry. In late February 2006, mother and father stipulated to an Oregon judgment providing father with sole custody of the child and assuring mother visitation under a parenting plan. The judgment declared that the child had lived continuously in Jefferson County from his birth, seven months earlier. It recited that father and the child lived in Metolius, Oregon, and mother lived in Vancouver, Washington.

In the following years, the parties lived together at times, and the respective responsibility for child care fluctuated. The child's paternal grandmother periodically provided care. After mother picked up the child for a weekend visit, mother phoned the grandmother on November 1, 2009, to say that she did not intend to return the child. In hope of reconciliation, father acquiesced in mother's request to terminate the custody order. On November 30, 2009, the parties signed a stipulated motion for an order that announced that the earlier judgment on custody and visitation was " dismissed." The parties did not reconcile. Instead, mother and the child moved from Washington to California and then to North Dakota.

On March 9, 2011, father filed a petition in Jefferson County Circuit Court to reestablish custody with him. Mother responded with a counterclaim for custody and, later, with a motion to change venue. She relied on ORS 14.110, urging that venue in North Dakota would be more convenient for witnesses and the parties. The trial court denied the motion and entered judgment awarding custody to father.

[261 Or.App. 80] On appeal, mother first assigns error to the denial of her motion for a change of venue. She contends that it should have " been construed as a motion to dismiss" for the reason that " the trial court did not have proper subject matter jurisdiction" under the UCCJEA. Father contends that any dispute of " personal jurisdiction" was waived.

We review matters of jurisdiction for errors of law. The court's authority to determine custody under the UCCJEA is a question of subject matter jurisdiction. See Daly and Daly, 228 Or.App. 134, 139-40, 206 P.3d 1189 (2009) (involving jurisdiction to modify a California support award). Subject matter jurisdiction cannot be waived and can be raised at any stage of the proceedings. Id. at 139. Although not raised before, the question must be addressed now. Specifically, that question is whether the trial court lacked subject matter jurisdiction under the UCCJEA when it entered the judgment that is before us on appeal.

The UCCJEA provides rules for determining jurisdiction in custody cases involving multiple jurisdictions. In particular, ORS 109.741(1), provides that, excepting temporary ...


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