In re the Marriage of: Anna Jobeth Cupp, petitioner, Respondent, vs. Geno Chadwick Cupp, Appellant.

In re the Marriage of: Anna Jobeth Cupp, petitioner, Respondent, vs. Geno Chadwick Cupp, Appellant. A05-1139, Court of Appeals Unpublished, April 4, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1139

 

 

In re the Marriage of:

Anna Jobeth Cupp,

petitioner,

Respondent,

 

vs.

 

Geno Chadwick Cupp,

Appellant.

 

 

Filed April 4, 2006

Affirmed in part and reversed in part
Klaphake, Judge

 

Dakota County District Court

File No. F8-04-15867

 

 

Anna Jobeth Cupp, 9630 Main Street, Elko, MN  55020 (pro se respondent)

 

Richard J. Kruger, Carlson & Soldo, 1052 Centerville Circle, Vadnais Heights, MN  55127 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In this multi-state custody dispute, appellant Geno Chadwick Cupp, who is a resident of the State of Ohio, appears for the limited purpose of challenging the jurisdiction of Minnesota courts to make an initial custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act, Minn. Stat. §§ 518D.101-.317 (2004) (UCCJEA).  Appellant also questions whether Minnesota courts have personal jurisdiction over him with respect to the parties' dissolution.

            Because the district court did not err in determining that the child lived in Minnesota for six consecutive months prior to the date that respondent Anna Jobeth Cupp filed her motion for custody of the child, we conclude that the district court properly exercised subject matter jurisdiction under UCCJEA.  But because insufficient contacts exist between appellant and the State of Minnesota, the district court lacked personal jurisdiction over him with respect to other issues involved in the parties' dissolution.  We therefore affirm in part and reverse in part.

D E C I S I O N

I.

            Appellant argues that this case should be dismissed because Minnesota courts lack subject matter jurisdiction under UCCJEA.  Issues involving subject matter jurisdiction are legal questions that are reviewed de novo by this court.  Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002).

            Under UCCJEA, a Minnesota court has jurisdiction to make an initial child custody determination only if certain factual circumstances are met.  Minn. Stat. § 518D.201(a).  One of those circumstances is that Minnesota is the "home state" of the child on the date of commencement of the proceeding, or was the home state of the child within six months before commencement of the proceeding and the child is absent from Minnesota, but a parent or person acting as a parent continues to live in Minnesota.  Minn. Stat. § 518D.201(a)(1).  "Home state" is defined as the state in which the child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding; a period of temporary absence from the state does not affect determination of the home state.  Minn. Stat. § 518D.102(h).

            This custody proceeding was "commenced" on November 15, 2004, when respondent filed the summons and petition for dissolution in Minnesota district court.  See Minn. Stat. § 518D.102(e) (defining "child custody proceeding" as proceeding in which physical custody of child is an issue and includes proceeding for divorce), (f) (defining "commencement" as "the filing of the first pleading in a proceeding").  Appellant was given actual notice of these proceedings when he was personally served on November 24, 2004, and he had the opportunity to be heard at a hearing on December 21, 2004, when the district court considered his motion to contest jurisdiction and respondent's motion for temporary custody.  Thus, the six-month period at issue here runs from May 15, 2004, to November 15, 2004.

            On May 15, 2004, the child was present in Minnesota with respondent and had been in Minnesota since sometime after February 2004, when respondent and the child left Ohio.  Appellant asserts that the child, who was born in Ohio in July 2003, lived in Ohio for the first eight months of her life, until she was "unilaterally taken to Minnesota for four months" by respondent.  Appellant further asserts that when respondent first left Ohio in late February 2004, "she represented that her absence would be temporary," at least by the note she left for him and by letters she wrote to members of his family and friends.

            However, this is not a situation where one parent has abducted or improperly transferred a child to another state; appellant was fully aware of the child's location and was able to visit her in July 2004, and there is no evidence that respondent left Ohio for a more favorable forum in which to adjudicate custody.  See Johnson, 648 N.W.2d at 672 (reversing district court's finding that parent engaged in wrongful conduct by taking child to Minnesota without other parent's permission).  And while appellant is correct in characterizing respondent's initial move to Minnesota as temporary, the evidence shows that once respondent arrived in Minnesota, she quickly changed her mind about returning to Ohio:  she petitioned for an order for protection, which was denied following a hearing on March 22, 2004;  she obtained steady employment in March 2004 as a security guard;  and she moved out of her parents' house, first into a townhouse and then into an apartment, where she currently lives with the child.  Moreover, respondent's affidavits make it clear that soon after she left Ohio, she did not intend to return and intended to make her home in Minnesota, where she was born and raised and where her parents and other family members now live.  We therefore conclude that the evidence reasonably supports the district court's determination that respondent and the child moved to Minnesota in February 2004, and that the child has lived here since that time.

            Appellant further asserts that the child was only in Minnesota for four months and that she left and returned to Ohio in July 2004, when he and respondent agreed that the parties would share custody of the child and that she would reside with him in Ohio for four months.  Appellant further insists that the child returned to Minnesota only because respondent had obtained an ex parte custody order, which appellant claims was invalidly issued.[1]

            While appellant's view of the evidence is supportable, there is contrary evidence to support the district court's determination that the child was merely "visiting" appellant in Ohio from July 2004 to November 2004.  Respondent states in her affidavit that appellant came to Minnesota to visit the child in July 2004.  Respondent further states that she agreed to allow appellant to take the child to Ohio, and that the "plan at that time was for [appellant] and I to take turns every few months caring for" the child, with respondent having "custody" of her here in Minnesota and appellant having "visitation" with the child in Ohio.  Respondent's characterization of the parties' agreement appears accurate; while the transcription of the tape recording of the agreement indicates that custody was to be "split fifty-fifty, four months on and four months off," the parties further agreed that this arrangement was not to begin until November 1, 2004.

            When the evidence is viewed in the light most favorable to the district court's findings, it can be read to establish that respondent intended to "move" with the child to Minnesota shortly after February 2004, when she left Ohio, and that the child's absence from Minnesota between July and November 2004 was only temporary, to allow her to visit appellant.  See, e.g., In re Frost, 681 N.E.2d 1030, 1035-36 (Ill. App. 1997) (noting that courts have considered parents' agreements and intents regarding temporary or permanent status of child's out-of-state absence when determining whether child is temporarily absent from state); In re S.M., 938 S.W.2d 910, 917-18 (Mo. App. 1997) (noting that totality of circumstances, rather than mere length of absence or parties' intent, determines whether absence from state is temporary).  We therefore affirm the district court's determination that Minnesota is the child's "home state" for purposes of UCCJEA.[2]

II.

            Appellant argues that Minnesota courts do not have personal jurisdiction over him with respect to the dissolution action.  Questions involving personal jurisdiction are issues of law reviewed by this court de novo.  Wick v. Wick, 670 N.W.2d 599, 603 (Minn. App. 2003).

            As appellant notes, courts of a state may have personal jurisdiction over a party for custody matters but not over that same party for the dissolution, and vice versa.  See Berc v. Berc, 407 N.W.2d 131, 135 (Minn. App. 1987).  Appellant concedes that Minnesota courts have subject matter jurisdiction over the parties' dissolution, because respondent has resided in Minnesota for at least 180 days prior to commencement of the action.  Minn. Stat. § 518.07 (2004).   He insists, however, that the exercise of subject matter jurisdiction over the custody issue does not give Minnesota courts personal jurisdiction over him.

            Before a Minnesota court may exercise personal jurisdiction over a nonresident, two criteria must be satisfied:  first, the long-arm statute, Minn. Stat. § 543.19 (2004), must be satisfied; second, "minimum contacts" must exist between the nonresident and Minnesota such that the assertion of personal jurisdiction does not offend due process.  See Ulmer v. O'Malley, 307 N.W.2d 775, 777 (Minn. 1981).  The district court here determined that it had personal jurisdiction over appellant for purposes of the dissolution matter because he "consented to this Court's jurisdiction in the past by appearing at the hearing on March 22, 2004 and not challenging jurisdiction."  Appellant also traveled to Minnesota in July 2004 to visit the parties' child and returned with her to Ohio.

            These contacts, however, are insufficient to confer personal jurisdiction over appellant.  Appellant owns no real property in Minnesota.  His appearance in March 2004 to defend against the OFP cannot be considered a waiver or consent to jurisdiction.  See, e.g., Ferguson v. Ferguson, 411 N.W.2d 238, 240 (Minn. App. 1987) (holding that Montana child support obligor did not consent to jurisdiction by appearing in Minnesota court to enforce his visitation rights).

            Thus, although Minnesota courts may issue a judgment dissolving the marriage, they lack personal jurisdiction over appellant to render a judgment on issues involving maintenance, property division, or attorney fees.  See Mahoney v. Mahoney, 433 N.W.2d 115, 119-20 (Minn. App. 1988) (holding that while court could assume jurisdiction over marriage and dissolve marriage, court lacked personal jurisdiction over husband and could not render judgment with respect to maintenance, property division, or attorney fees as requested by wife), review denied (Minn. Feb. 10, 1989).  We therefore reverse the district court's determination that it has personal jurisdiction over appellant.

            Affirmed in part and reversed in part.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Appellant argues that the ex parte order was invalidly issued.  We agree.  The ex parte order fails to contain any particularized finding of immediate danger of physical harm and nothing in the record supports such a finding.  See Minn. Stat. § 518.131, subd. 3(b) (2004) (providing that ex parte restraining order may not grant custody of minor child to either party except upon finding of "immediate danger of physical harm to the minor children of the parties"); In re Marriage of Schmidt, 436 N.W.2d 99, 106-07 (Minn. 1989) (setting aside several ex parte orders that were issued without any particularized findings that the child was in danger, as required by statute).  Nevertheless, unlike the ex parte orders issued in Schmidt, appellant was given notice and an opportunity to be heard on the custody issue at a hearing on his motion to challenge jurisdiction and on respondent's motion for temporary custody.  In its order following this hearing, the district court properly addressed and made adequate findings to support its decision to award respondent temporary custody.  Thus, the January 2005 order effectively cured any due process defects inherent in the November 2004 ex parte order.  See Schmidt, 436 N.W.2d at 107.

[2]  Respondent alternatively argues that Minnesota has jurisdiction under UCCJEA because there are "significant connections" between the state and the child.  Minn. Stat. § 518D.201(2).  This basis for jurisdiction only arises when no home state can be identified or when the home state defers to the jurisdiction of another state.  Thus, we need not address this alternative basis for asserting jurisdiction.