Howard v. Howard

Howard v. Howard

IN THE UTAH COURT OF APPEALS

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Laura Kathleen Howard,

Petitioner,

v.

Gary Robert Howard,

Respondent and Appellee,

______________________________

Martin N. Olsen, Guardian Ad Litem for E.H.,

Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040040-CA
 

F I L E D
(April 1, 2004)
 

2004 UT App 97

 

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Martin N. Olsen, Midvale, Guardian Ad Litem and Appellant

James A. McIntyre, Salt Lake City, for Appellee

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Before Judges Billings, Jackson, and Thorne.

PER CURIAM:

The Guardian Ad Litem (GAL) for E.H. appeals the denial of the "Motion Regarding Inconvenient Forum and Request for Stay of Order Requiring E.H. to Come to Utah." The appeal is before the court on Appellee Gary Howard's motion for summary affirmance.

The Third District Court (the Utah court) entered both the initial divorce decree and the custody order on December 20, 2000, which gave custody of E.H. to Appellee Gary Howard, her natural father. At all times, the California Superior Court (the California court) exercised temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction Act (the Act). See Utah Code Ann. § 78-45c-204 (2002)(incorporating emergency jurisdiction provision similar to Cal. Fam. Code § 3424). On March 20, 2003, the California and Utah courts conferred to determine whether Utah had relinquished jurisdiction, and the Utah court confirmed that it had not. The California court then transmitted the records pertaining to the dependency petition to the Utah court. See generally In re C.T., 121 Cal. Rptr. 897 (Cal. Ct. App. 2002) (construing emergency jurisdiction under Uniform Child Custody Jurisdiction Act); In re A.M.S., 2000 UT App 182, 4 P.3d 95 (same). After an evidentiary hearing, the Utah court entered detailed findings of fact and conclusions of law on each specific allegation of the petition. Ultimately, the Utah court found no evidentiary support for the allegations. On September 8, 2003, the Utah court entered an order dismissing the dependency petition, and ordering custody of E.H. to immediately return to Appellee.

After entry of the Utah court's final judgment, the GAL sought an order under Utah Code section 78-45c-207 (2002) "that Utah is an inconvenient forum for determination of child protection matters regarding E.H. that bear directly on the appropriate custody determination." Section 78-45c-207 allows a court with jurisdiction under the Act to "decline to exercise jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." The GAL principally emphasizes that E.H. has resided outside Utah for over four years; she has resided in California for one and one-half years; and she wishes to remain in the custody of her maternal uncle.

The Utah court correctly denied the GAL's motion. Although the GAL argues that inconvenient forum may be raised at any time and res judicata should not be applied to the jurisdictional determination in this case, the GAL cites no authority allowing inconvenient forum to be raised after a case involving a child custody determination has been fully adjudicated by a court with jurisdiction under the Act. The motion was, in effect, a collateral attack on the custody determination. Although filed within ten days after entry of judgment, the motion was not styled as a motion for new trial or supported by affidavits. See Utah R. Civ. P. 59(c). E.H. is in California only because her mother and maternal relatives have refused to comply with the Utah court's custody orders. Finally, the Utah court correctly ruled that even assuming that "[E.H.] would prefer not to return to the State of Utah to the custody of her father, her custodial parent, who was given custody some number of years ago, there is no basis upon which this court might deny a biological parent with proper custody the physical custody of the child so the child could stay" with maternal relatives in California.

The California and Utah courts fully complied with the requirements of the Act in determining the appropriate forum to consider custody. Thereafter, the dependency petition was fully adjudicated in the Utah court, and a final judgment was entered. The Utah court did not err in denying the post-judgment motion.

We grant the motion for summary disposition and affirm the district court's order denying the motion to determine that Utah is an inconvenient forum and also denying a stay of the Utah custody orders awarding custody of E.H.

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge