IN THE MATTER OF THE GUARDIANSHIP OF GABRIELLE JULIA DEAL - BURCH, RANDALL DEAL and GAYLA DEAL, Grandparents - Appellants. vs. ALTON BURCH, JR., Father - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-834 / 08-0206
Filed November 13, 2008
IN THE MATTER OF THE GUARDIANSHIP OF
GABRIELLE JULIA DEAL-BURCH,
RANDALL DEAL and GAYLA DEAL,
Grandparents-Appellants.
vs.
ALTON BURCH, JR.,
Father-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County, Margaret L.
Lingreen, Judge.
Grandparents appeal the district court’s order rescinding their appointment
as temporary guardians of their granddaughter and dismissing their petition for
permanent guardianship on the ground the court did not have jurisdiction.
REVERSED AND REMANDED.
David L. Strand of Strand Law Office, Decorah, for appellant.
Laura J. Parrish Maki of Miller, Pearson, Gloe, Burns, Beatty & Cowie,
P.L.C., Decorah, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
2
SACKETT, C.J.
Gayla and Randall Deal appeal from a district court decision rescinding
and refusing to make permanent their temporary guardianship of the minor child
Gabrielle Julia Deal-Burch after the district court found that it had no jurisdiction
to appoint a guardian for the child.
The Deals claim Iowa has jurisdiction
because the child is a resident of this state. We find that because the child had
lived in Iowa for more than six consecutive months immediately before the
commencement of the proceedings to establish the guardianship, Iowa was her
home state and the district court did have jurisdiction. We reverse the finding of
no jurisdiction and remand to the district court for further proceedings.
We
reverse and remand.
BACKGROUND. Gabrielle was born to the marriage of Shiloh Deal-Burch
and Alton Burch, Jr. in Georgia in February of 2004. Shortly thereafter the family
moved to Iowa, where in March of 2005 the marriage was dissolved.
In
dissolving the marriage the Iowa district court approved a stipulation of the
parties which provided that Shiloh was awarded sole custody of the child. Alton
was granted visitation only if it was exercised within 150 miles of Shiloh’s
residence or if Shiloh happened to be in the area of Alton’s residence.1 He was
also ordered to pay child support.2 After the dissolution Shiloh and the child
remained in Iowa and Alton moved to Georgia. On December 14, 2007, Shiloh
1
Shiloh was represented by counsel but Alton was not. The stipulation noted Shiloh
was receiving sole custody because Alton was moving to Georgia.
2
He paid some but not all of the child support ordered.
3
was killed in a motor vehicle accident and Gabrielle was injured in the same
accident. At the time of the accident Shiloh and Gabrielle still resided in Iowa.
Randall and Gayla Deal, Gabrielle’s grandfather and step-grandmother,
residents of Tennessee, were the first to learn of the accident and that Gabrielle
was hospitalized in Rochester, Minnesota.
Alton, a resident of the state of
Georgia, learned of it a day later. He left Georgia to travel to Rochester and
when he was an hour away he received a call telling him Randall and Gayla Deal
had been appointed guardians by an Iowa court and they were taking or had
taken the child. The Iowa guardianship was established on December 17, 2007.
The Deals returned to Iowa only to close their daughter’s affairs and then took
the child to their home in Tennessee.
On December 18, 2007, Alton filed an application to terminate the
guardianship. He requested an immediate hearing. The district court heard the
matter on January 15, 2008. The district court noted the hearing was a timelimited hearing and the issue was whether the guardianship should be terminated
and if not terminated, whether there should be a substitute temporary guardian.
No guardian ad litem was appointed for the child prior to the hearing, the court
and counsel having decided the issue of appointing a guardian ad litem was
contingent on the court’s ruling following the hearing.3
On January 25, 2008, the district court entered a ruling finding the Iowa
district court did not have jurisdiction to appoint a guardian for Gabrielle. The
court sustained Alton’s application to terminate the guardianship and dismissed
3
The parties and the district court appeared to recognize that depending on the court’s
ruling on the issue presented, a further hearing might be necessary.
4
the Deals’ petition for temporary and permanent guardianship. The district court
found that when one parent dies, the domicile of the surviving parent fixes the
domicile of the child in the absence of any showing of relinquishment and
abandonment.
The court also found that Alton had not relinquished or
abandoned Gabrielle; consequently, Gabrielle’s domicile was the same as
Alton’s and the Iowa court had no jurisdiction. The district court did not address
Alton’s assertion that he is able to provide care for his daughter, apparently
finding it had no jurisdiction to do so.
The district court supported its ruling by citing In re Skinner’s
Guardianship, 230 Iowa 1016, 300 N.W. 1 (1941) (finding Iowa court did not have
jurisdiction to determine guardianship of child when surviving parent was not a
resident of Iowa with five justices concurring, one specially concurring, and three
dissenting). Skinner addressed the issue of the jurisdiction of the Iowa court to
entertain a petition for a guardianship after the death of the father of a minor
child. Skinner, 230 Iowa at 1020, 300 N.W. at 2. The father, who had custody of
the child under the provision of a divorce decree, lived with the child in Iowa. Id.
at 1020, 300 N.W. at 2. The noncustodial mother was a resident of Texas. Id. at
1020, 300 N.W. at 3.
The mother filed a petition with the district court in
Pottawattamie County, Iowa, seeking guardianship of the child. Id. at 1019, 300
N.W. at 1. The Supreme Court found Iowa had no jurisdiction to entertain the
petition and specifically found:
At the moment of Lloyd Skinner’s [the father’s] death the
domicile of this minor child attached immediately to the domicile of
his surviving parent, his mother. No lapse of time and no act of the
5
surviving parent is required to effect the change. The mother did
not live in Iowa. She was a resident of the State of Texas.
Thus we find that the domicile of the minor, Louis Welborn
Skinner, was in the state of Texas, and that the Pottawattamie
district court had no jurisdiction to appoint a guardian of his
person,4 and it erred in so doing.
Id. at 1022, 300 N.W. at 4.
ISSUES ON APPEAL.
The Deals contend that the Iowa court has
jurisdiction to determine guardianship because the child had been in the sole
custody of her mother, and it is in the child’s best interest.
SCOPE OF REVIEW. Our review of the evidence on the jurisdictional
issue is de novo. O’Neal v. O’Neal, 329 N.W.2d 666, 667 (Iowa 1983); see also
St. Clair v. Faulkner, 305 N.W.2d 441, 445 (Iowa 1981).
ANALYSIS. The Deals recognize, as do we, that the holding in Skinner
has not been modified or reversed.5 While recognizing the holding in Skinner,
the Deals argue the holding is diminished by its dissent and by holdings in
several subsequent cases which we, because of our holding, find it unnecessary
to address.
In 1999, the Iowa legislature adopted, along with a number of other states,
the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA).6 See
4
At that point in time, the Iowa statutes did not provide for a conservator to manage the
property of the ward. The reference to guardian of his person and guardian of his
property was common place. See Iowa Code § 12574 (1939) (providing that the
surviving parent becomes guardian of the minor’s person); Iowa Code § 12575 (1939)
(providing that a guardian must be appointed to manage the minor’s property).
5
The case has been cited only twice by Iowa courts in published opinions since its
filing. See In re Lancey’s Guardianship, 232 Iowa 191, 195, 2 N.W.2d 787, 789 (1942);
In re McKenna, 58 B.R. 221, 223 (Bankr. N.D. Iowa 1985).
6
The act repealed and replaced all the provisions of the Uniform Child Custody
Jurisdiction Act (UCCJA). See 1999 Iowa Acts ch. 103 § 47.
6
1999 Iowa Acts ch. 103. This act, which appears in the Iowa Code as Chapter
598B, provides it is the exclusive jurisdictional basis for making a child custody
determination by this state.7
Iowa Code § 598B.201(1), (2) (2007).
custody proceedings include guardianship procedures.8
Child-
Iowa Code §
598B.102(4).
Neither party nor the district court has addressed the provisions of this act.
The legislature, however, has said that 598B.201(1) is the exclusive jurisdictional
basis for making a child-custody determination by a court of this state and “a
child custody determination by a court” has been defined to include a
guardianship. See Iowa Code §§ 598B.201(2), 598B.102(3), (4). The drafters of
the Uniform Child Custody Jurisdiction and Enforcement Act, and Iowa in
adopting it, clearly intended to expand the reach of the statute to include
proceedings concerning guardianships of children. See In re B.P., 184 P.3d 334,
338 (Mont. 2008) (explaining that drafters of the UCCJEA and states adopting it
intended it to have an expanded reach to govern more types of child custody
proceedings, including child abuse and neglect proceedings). We therefore feel
compelled to consider the act to determine whether the Iowa Courts had and/or
have jurisdiction to entertain the issue of the guardianship. In considering the
7
Iowa Code section 598B.201(2) provides: “Subsection 1 is the exclusive jurisdictional
basis for making a child-custody determination by a court of this state.” Subsection 1
provides in applicable part: “a court of this state has jurisdiction to make an initial childcustody determination only if any of the following applies: . . . .” Iowa Code §
598B.201(1).
8
Iowa Code section 598B.102(4) specifically includes guardianships in the definition of
“child-custody proceeding” for determination of jurisdictional issues whereas the
UCCJEA’s precursor, the Uniform Child-Custody Jurisdiction Act (UCCJA), did not
specifically include guardianships. See Iowa Code § 598A.2(3)(1997).
7
act, the only conclusion we can reach is that when the petition for temporary
guardianship was filed in Iowa, the Iowa court had jurisdiction to entertain it if one
of the provisions of section 598B.201(1) applied.
We look to section
598B.201(1)(a) which provides in relevant part:
1. Except as otherwise provided in section 598B.204, a court of
this state has jurisdiction to make an initial child-custody
determination only if any of the following applies:
a. This state is the home state of the child on the date of the
commencement of the proceeding . . . .
Iowa Code section 598B.102(7) defines “home state” as “the state in which a
child lived with a parent . . . for at least six consecutive months immediately
before the commencement of a child-custody proceeding.”
The child had lived the required time in Iowa so it is her home state and
there is no evidence in the record to support a finding that another state is her
home state and therefore no court of any other state would have jurisdiction at
this time. Gabrielle lived with her mother in Iowa for more than six months and
nearly all her life immediately before the guardianship proceedings seeking
custody of the child were commenced, thus giving the Iowa court jurisdiction to
entertain the petition for temporary guardianship.
Consequently, we must
reverse the district court’s finding it was without jurisdiction, reinstate the
temporary guardianship, and remand to the district court to consider those issues
put forth in the filings. Namely, the court must consider Alton’s request that the
temporary guardianship be vacated and that he be named custodian of his child,
and the Deals’ request that they be made permanent guardians.
8
We recognize that with the father living in Georgia and the grandparents
living in Tennessee, Iowa may be an inconvenient forum to address these issues.
In that case, the act allows the district court of this state to exercise the authority
to determine it is an inconvenient forum and to provide certain protections for the
child, including a stay of proceedings upon condition that child-custody
proceedings be promptly commenced in another designated state and the
imposition of any other conditions the Iowa district court considers just and
proper.9 Iowa Code § 598B.207(1), (3).
We reverse the order terminating and rescinding the temporary
guardianship for lack of jurisdiction and the order dismissing the petition for
guardianship.
We remand to the district court for further proceedings not
inconsistent with this ruling.
REVERSED AND REMANDED.
9
Section 598B.207 provides in relevant part:
1. A court of this state which has jurisdiction under this chapter to make a
child-custody determination may decline to exercise its 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 issue of inconvenient forum may be raised upon motion of a
party, the court’s own motion, or request of another court.
...
3. If a court of this state determines that it is an inconvenient forum and
that a court of another state is a more appropriate forum, it shall stay the
proceedings upon condition that a child-custody proceeding be promptly
commenced in another designated state and may impose any other
condition the court considers just and proper.
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