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In re Marriage of Schwartz

Court of Appeals of Oregon

December 13, 2017

In the Matter of the Marriage of Ariana Templeton SCHWARTZ, Petitioner-Respondent, and Cyril Jean-Dominique BATTINI, Respondent-Appellant.

          Argued and submitted May 26, 2016

         Lane County Circuit Court 151321710; A158348 Charles D. Carlson, Judge. (Order) Suzanne B. Chanti, Judge. (Supplemental Judgment)

          Melissa D. Wischerath argued the cause for appellant. With her on the opening brief were Law Offce of M.D. Wischerath, Janet M. Schroer, and Hart Wagner LLP. With her on the reply and supplemental briefs was Law Offce of M.D. Wischerath.

          Kimberly A. Quach argued the cause for respondent. With her on the answering brief was Lechman-Su & Quach, PC. With her on the supplemental brief was Quach Family L a w, P. C .

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Wilson, Senior Judge.

         Case Summary: Father appeals a general judgment of separation and a judgment of contempt of the trial court, arguing that the child custody provisions of the judgment of separation are void because the trial court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and contending that Indonesia, rather than Oregon, has jurisdiction because Indonesia is child's "home state" under the UCCJEA. Although father acknowledges that child was not physically present in Indonesia for the six-month period required to make Indonesia child's home state, father contends that child's absences from Indonesia were "temporary absences" within the meaning of the UCCJEA, such that the absences count as time spent in Indonesia and [289 Or. 333] make Indonesia child's home state. In the alternative, father argues that child lacks sufficient connections with Oregon to give rise to subject matter jurisdiction under the UCCJEA. Held: The trial court did not err in concluding that it had subject matter jurisdiction under ORS 109.741(1)(b) under the "totality of the circumstances" test, which is used to determine whether a child's absence from a putative UCCJEA home state is a "temporary absence." Child's absence from Indonesia was not a "temporary absence." Consequently, Indonesia could not be considered child's home state under the UCCJEA and, therefore, child did not have a home state when mother initiated this proceeding. The evidence was sufficient to support the trial court's determination that mother and child had a "significant connection" to Oregon and that Oregon had the "substantial evidence" about child required by ORS 109.741(1)(b).

         Affrmed.

         [289 Or. 334] LAGESEN, J.

         The issue in this child custody appeal is whether the trial court had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).[1] Answering that question requires us to determine, as a matter of first impression in this state, what legal test governs the determination whether a child's absence from a putative "home state" is a "temporary absence" within the meaning of ORS 109.704(7), such that the time away is counted toward the child's residence in the putative home state. The question is a significant one, because it is pivotal to the issue of whether a particular court has subject matter jurisdiction over a custody dispute under the jurisdictional provision of the UCCJEA, ORS 109.741. And although the UCCJEA, a uniform act, is meant to be interpreted uniformly across jurisdictions, ORS 109.831, [2] the question is one that has divided appellate courts across the country. See Andrea Charlow, There's No Place Like Home: Temporary Absences in the UCCJEA Home State, 28 J Am Acad Matrim Law 25 (2015) (identifying the different legal tests that appellate courts have adopted to determine whether an absence is a "temporary absence" under the UCCJEA). Having sought and received thoughtful supplemental briefing from both parties, we conclude that the "totality of the circumstances" test adopted by the majority of the jurisdictions to consider the question is the appropriate legal test to determine whether a child's absence from a putative UCCJEA home state is a "temporary absence." For reasons to be explained, we further conclude that the application of that test to the undisputed facts in this case means that the trial court ultimately was correct to conclude that it had subject matter jurisdiction over the parties' child custody dispute. We therefore affirm the judgments of the trial court.

         [289 Or. 335] I. BACKGROUND

         We draw the facts from the record, as supplemented by materials judicially noticed on father's motion. Mother, a United States citizen from Oregon, and father, a French national, were married in France in 2010. In March 2011, the parties came to Oregon to stay with mother's family shortly before mother gave birth to L in April of the same year. After L's birth, the parties hopscotched among Oregon, France, and Indonesia, staying no more than seven months in one place. The parties remained in Oregon until L was five or six months old, at which time they traveled to Aix-en-Provence, France, where they stayed for five months. They then returned to Oregon for three months. Next the family went to Bali, Indonesia, where mother's parents have a home in which they live half time. Parents and L stayed for two months and followed up with a trip to Paris, where they remained for seven months. They then returned to Bali, where they remained for a few days shy of six months. Then, on September 27, 2013, mother flew from Bali to the United States to see friends and family. Father remained in Bali but relocated to Singapore shortly thereafter. The parties had been contemplating moving to Singapore, where father had been pursuing employment, but were also contemplating a move to New York.

         Around that same time, mother decided to separate from father and did not return to Bali. On or around November 10, 2013, father traveled to the United States from Bali. Two days later, on November 12, 2013, mother petitioned the Lane County Circuit Court for a judgment of unlimited legal separation.

         Father responded initially by filing a child custody action in a French court. The parties negotiated a settlement under which they stipulated that Oregon had jurisdiction under the UCCJEA to adjudicate issues regarding L's custody, and father agreed to dismiss the custody proceeding that he had filed in France. Among other things, the parties agreed that neither would invoke the jurisdiction of a court outside of Oregon to resolve future issues relating to L's custody. Based on the parties' agreement, the trial court entered a general judgment of unlimited legal [289 Or. 336] separation. That judgment, which was entered in January 2014, resolved the issues related to L's custody and incorporated the parties' agreed-upon parenting plan.

         Several months later, both parties had second thoughts about their agreement. Mother petitioned the trial court to modify the agreement, alleging that father's drug use and other conduct were making the arrangement unworkable. Father-who, contrary to the parties' agreement, had initiated a new child custody proceeding in France and filed an international child abduction case in the United States District Court of Oregon, alleging violations of The Hague Convention-moved the trial court under ORCP 71 B(1)(d) to vacate the judgment of unlimited legal separation (at least insofar as it resolved the child custody issues) on the ground that the court lacked subject matter jurisdiction under the UCCJEA. Father contended that France, not Oregon, had jurisdiction under the UCCJEA, submitting a declaration in support of that argument. Mother opposed the motion, arguing that Oregon, not France, had jurisdiction under the UCCJEA-a contention that she supported with her own affidavit.

         The trial court denied the motion. Based on the arguments and evidence presented by the parties, the court determined that it had subject matter jurisdiction under the UCCJEA at the time that it had entered the general judgment of unlimited legal separation:

"The General Judgment was filed on December 23, 2013, and entered on January 2, 2014. At that time, no state or country had 'home state' jurisdiction as that term is denned in the UCCJEA. Oregon had jurisdiction pursuant to ORS 109.741(1)(b) and the parties, both of whom were represented by counsel, ...

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