Blocker v. Blocker

William Gerald BLOCKER v. Teresa BLOCKER

CA 96-972                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
                  Opinion delivered May 7, 1997


1.   Appeal & error -- party cannot change arguments on appeal --
     tolling argument not properly preserved for review. -- A party
     cannot change arguments on appeal; here, a tolling argument
     regarding the six-month period for attaining home-state status
     under the Uniform Child Custody Jurisdiction Act was not
     properly reserved for appellate review and therefore could not
     be addressed.  

2.   Parent & child -- chancellor found Arkansas home state of
     child -- no error found. -- Appellant sought involvement from
     the South Carolina courts more than a year after appellee and
     the minor child left South Carolina, and several months after
     the initiation of the Arkansas divorce and custody proceeding,
     thus allowing South Carolina to lose jurisdiction; for the
     protections of the Uniform Child Custody Jurisdiction Act and
     the Parental Kidnapping Prevention Act to apply, the parent
     remaining in the home state must act promptly to obtain home-
     state jurisdiction; if the parent delays filing for more than
     six months, the state in which the parent remains is no longer
     the home state of the child; the chancellor's finding that
     Arkansas was the "home state" was not clearly erroneous.

3.   Appeal & error -- review of appeal from chancery courts --
     evidence reviewed de novo. -- In deciding appeals from the
     chancery courts, the appellate court reviews the evidence de
     novo, only reversing where the chancellor's findings of fact
     are clearly erroneous.

4.   Parent & child -- statute inapplicable -- chancellor did not
     err in failing to communicate with South Carolina court to
     determine whether Arkansas forum inconvenient for purposes of
     UCCJA. -- Appellant's assertion that the chancellor erred in
     failing to communicate with the South Carolina court to
     determine whether the Arkansas forum was inconvenient for
     purposes of the UCCJA was without merit; the South Carolina
     action had not been filed at the time that the divorce
     proceeding was filed in Wasington County, Arkansas; Ark. Code
     Ann.  9-13-206 (Repl. 1993) did not apply because there was
     no "simultaneous proceeding." 

5.   Parent & child -- custody determination -- court may decline
     to exercise jurisdiction if it determines that it is an
     inconvenient forum. -- A court that has jurisdiction to make
     an initial or modification decree may decline to exercise its
     jurisdiction if it finds that it is an inconvenient forum to
     make the custody determination and that another court is a
     "more appropriate" forum.

6.   Parent & child -- Arkansas found to be home state of child --
     chancellor did not abuse his discretion by retaining
     jurisdiction. -- Where the record revealed that appellee and
     the minor child resided in Arkansas approximately seven months
     prior to the filing of the divorce and child-custody
     determination, the chancellor found that Arkansas was the home
     state of the child, and where there were witnesses located in
     Arkansas as well as South Carolina, appellant failed to prove
     that the chancellor abused his discretion by retaining
     jurisdiction; the chancellor did not abuse his discretion in
     finding that Arkansas was not an inconvenient forum under Ark.
     Code Ann.  9-13-207 (Repl. 1993).   


     Appeal from Washington Chancery Court; John Lineberger,
Chancellor; affirmed.
     Donald C. Donner, for appellant.
     William P. Anderson, for appellee.

     Wendell L. Griffen, Judge.
     William Blocker appeals the ruling of the Washington County
Chancery Court granting appellee Teresa Blocker custody of the
partiesþ minor child.   For reversal, appellant argues that the
chancellor erred by refusing to rule that the act of "child
snatching" tolls the running of the six-month period required to
attain "home state" status under Ark. Code Ann.  9-13-203(a)(1)
(Repl. 1993); that a child-custody action filed in South Carolina
was a þsimultaneous proceedingþ and the chancellor erred in failing
to communicate with the South Carolina court to determine whether
Arkansas was an inconvenient forum; and that the chancellor erred
in finding that Arkansas was not an inconvenient forum under the
provisions of Ark. Code Ann.  9-13-207 (Repl. 1993).  We find no
error and affirm.
     Appellant and appellee were married in February 1986, and
lived in South Carolina with their four-year-old child.  In January
1995, appellee left South Carolina with the minor child, came to
Arkansas, and filed an order of protection alleging physical abuse
by appellant that was later withdrawn.  While appellant asserts
that he made efforts to locate his wife and child, no documents
were filed with the South Carolina courts to preserve his custodial
rights.  Appellee filed for divorce in Washington County, and
appellant was served with the summons and complaint on December 14,
1995.  Appellant contends he first learned that his family was in
Arkansas when he was served, but testified at trial that he
suspected that appellee went to Arkansas to live with family. 
Appellant filed an answer to the complaint on January 5, 1996.  A
month after being served, appellant filed a child-custody action in
South Carolina.
     Appellant then filed a motion in Washington County requesting
that the Arkansas court decline child-custody jurisdiction pursuant
to Ark. Code Ann.  9-13-207, on the basis that the state of
Arkansas is an inconvenient forum under the Uniform Child Custody
Jurisdiction Act (UCCJA), and that South Carolina had a closer
connection with the child, and that substantial evidence concerning
the childþs welfare was more accessible in South Carolina.  The
chancellor denied the motion and appellantþs request that the
chancellor communicate with the South Carolina court to determine
which forum was the þhome stateþ of the child under the UCCJA. 
Appellant then withdrew his answer, and made an entry of appearance
and waiver of corroboration of the grounds for divorce.  The
chancellor granted appellee an uncontested divorce, and after a
hearing, found that it was in the best interest of the child to be
placed with appellee.
     Addressing appellant's first issue on appeal, we note that
appellantþs argument regarding the home state of the child was
significantly different at the trial level.  There appellant argued
that appellee absconded with the parties' minor child in violation
of the UCCJA and Parental Kidnapping Prevention Act (PKPA), and
that appellee acted in bad faith.  Appellant contended below that
as a result of appelleeþs conduct, Arkansas should not be the home
state of the child for purposes of making a child-custody
determination.  However, appellant never raised below whether the
act of child-snatching tolls the running of the six-month period
for purposes of determining a child's home state under the UCCJA. 
It is a basic rule of appellate procedure that a party cannot
change arguments on appeal. Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996) (citing Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996)).  The tolling argument was not properly reserved
for appellate review, and therefore cannot be addressed.  
     We do note, however, that the chancellor did not err in
finding that Arkansas is the home state of the child.  Appellant
sought involvement from the South Carolina courts more than a year
after appellee and the minor child left South Carolina, and several
months after the initiation of the Arkansas divorce and custody
proceeding, thus allowing South Carolina to lose jurisdiction:
One of the main purposes of home state jurisdiction under
the PKPA and UCCJA is protection of a parent who remains
in the home state after the other parent has taken the
child out of state.  In order for the protection to
apply, the parent remaining in the home state must act
promptly to obtain home state jurisdiction.  If, for
example, a mother and father separate and one of them
takes the child out of state, the parent who remains is
entitled to have the case heard in the courts of the home
state if the remaining parent commences an action for
custody within six months of the departure.  The physical
absence of the child and the other parent does not
deprive the home state court of subject matter
jurisdiction.  If, however, the parent delays filing for
more than six months, the state in which the parent
remains would no longer be the home state of the child,
and the child may have acquired a new home state that
would have jurisdictional priority.

Jeff Atkinson, Modern Child Custody Practice  3.12 at 129-30
(1986) (citing 28 U.S.C. 1738A(c); 9 U.L.A. 122 (Master ed. 1979);
U.C.C.J.A.  3(a)(1); and the Commissionerþs Note to U.C.C.J.A. 
3(a)(1).  The chancellor's finding that Arkansas was the "home
state" was not clearly erroneous.
     Second, appellant asserts that the chancellor erred in failing
to communicate with the South Carolina court to determine whether
the Arkansas forum was inconvenient for purposes of the UCCJA.  The
applicable statute, Ark. Code Ann.  9-13-206 (Repl. 1993)
provides, in part:
(a)  A court of this state shall not exercise its
jurisdiction under this subchapter [under the UCCJA] if
at the time of filing the petition a proceeding
concerning the custody of the child was pending in a
court of another state exercising jurisdiction
substantially in conformity with this subchapter . . . .
(c)  If the court is informed during the course of the
proceeding that a proceeding concerning the custody of
the child is pending in another state before the court
assumed jurisdiction, it shall stay the proceeding and
communicate with the court in which the other proceeding
is pending, to the end that the issue may be litigated in
the more appropriate forum and that information be
exchanged . . . . 

In deciding appeals from the chancery courts, we review the
evidence de novo, only reversing where the chancellorþs findings of
fact are clearly erroneous. Roberts v. Feltman, 55 Ark. App. 142,
932 S.W.2d 781 (1996).  There is no merit to appellantþs argument
that the chancellor should have communicated with the South
Carolina court because the South Carolina action had not been filed
when appellee filed this action.  In Leinen v. Arkansas Depþt of
Human Servs., 47 Ark. App. 156, 886 S.W.2d 895 (1994), at the time
that a juvenile proceeding was filed in Garland County, Arkansas,
the divorce action in another state had not been commenced.  We
held that Ark. Code Ann.  9-13-206 did not apply because there was
no þsimultaneous proceeding.þ Id.  Leinen dictates that we affirm
the chancellor on this issue.
     Appellantþs last assignment of error asserts that the
chancellor abused his discretion in finding that Arkansas was not
an inconvenient forum under Ark. Code Ann.  9-13-207 (Repl. 1993). 
A court that has jurisdiction to make an initial or modification
decree may decline to exercise its jurisdiction if it finds that it
is an inconvenient forum to make the custody determination and that
another court is a þmore appropriateþ forum. Id.   The record
reveals that appellee and the minor child resided in Arkansas
approximately seven months prior to the filing of the divorce and
child-custody determination.  Since the chancellor found that
Arkansas was the home state of the child, and where there were
witnesses located in Arkansas as well as South Carolina, appellant
has not proven that the chancellor abused his discretion by
retaining jurisdiction.  
     Affirmed.

     Rogers and Bird, JJ., agree.