In re the Marriage of: Rachel Kathryn Braaten-Carmona n/k/a Rachel Kathryn Braaten, petitioner, Appellant, vs. Luis Agustin Carmona, Respondent Below, Matthew Thompson, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-786

 

In re the Marriage of:

Rachel Kathryn Braaten-Carmona

n/k/a Rachel Kathryn Braaten, petitioner,

Appellant,

 

vs.

 

Luis Agustin Carmona,

Respondent Below,

 

Matthew Thompson,

Respondent.

 

Filed December 30, 2003

Affirmed; motion denied

Robert H. Schumacher, Judge

 

Rice County District Court

File No. F2-01-451

 

Marc G. Kurzman, Kurzman, Grant & Ojala, 219 Southeast Main Street, Suite 403, Minneapolis, MN 55414 (for appellant)

 

Nancy Zalusky Berg, William D. Casey, Walling & Berg, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge; Shumaker, Judge; and Poritsky, Judge.*

 

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

In this multi-state custody proceeding, Rachel Kathryn Braaten-Carmona, n/k/a Rachel Kathryn Braaten, challenges the district court's refusal to rule that Minnesota is, for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the home state of her child, and that she should remain in Minnesota until questions of custody and visitation have been resolved.  We affirm and deny the motion of respondent Matthew Thompson to supplement the record on appeal.

FACTS

            In Florida in 1998, Braaten had a relationship with Thompson that ended after she became pregnant.  Expecting a child, Braaten came to Minnesota.  Before the child's birth, Thompson started a parentage action against Braaten in Florida.  During the parentage proceeding, Braaten accused Thompson of rape.  The Florida court dismissed the action as moot because the child was not yet born.

While living in Minnesota, Braaten married Luis Carmona and her pregnancy resulted in the birth of a son.  Braaten's marriage to Carmona involved abuse and orders for protection and she later petitioned to dissolve the marriage, alleging that Carmona was not the father of the child.  Braaten also started a parentage action against Thompson in Minnesota.  Braaten and Thompson then stipulated that (a) Thompson would testify in the dissolution proceeding and take a paternity test; (b) Braaten would dismiss her parentage action against Thompson; (c) the parentage action would be reinstated in Florida because Florida was the correct jurisdiction to address paternity, custody, and related matters; and (d) Braaten would get physical custody of the child.[1]

Thompson testified in the dissolution, but Braaten did not dismiss the Minnesota parentage action.[2]  Nor did she reinstate the Florida parentage action.  The subsequent Minnesota dissolution judgment (a) recognized that Carmona's relationship with Braaten and the child involved abuse and orders for protection; (b) noted that paternity tests both excluded Carmona from being the child's biological father and showed more than a 99% chance that Thompson was the father; (c) ruled that Carmona was not the child's father; (d) noted that Thompson was not a party to the dissolution, was not subject to the dissolution court's jurisdiction, and was not, in the dissolution judgment, being adjudicated to be the child's father; and (e) awarded custody of the child to Braaten. 

A Florida court subsequently granted a petition by Thompson to be declared the child's father, and reserved the question of jurisdiction over custody and visitation.  Braaten and the child, however, moved from Minnesota to California. 

When Thompson located Braaten in California, he sued her there, seeking custody.  After a hearing in the California proceeding, Braaten moved the Minnesota dissolution court for an order declaring Minnesota to be the child's home state for UCCJEA purposes and requiring that she and the child come to, and remain in, Minnesota until the dissolution court resolved custody and related questions.  Three days later, the California court issued a supplemental, temporary order stating that (a) California was the child's home state under the UCCJEA; (b) Florida was the best jurisdiction in which to address custody questions; (c) Thompson was awarded interim custody of the child, but the interim custody award was not intended to impact the Florida court's custody ruling; and (d) a custody hearing would be set in California, but California would defer to Florida if Florida assumed jurisdiction in the matter. 

Three weeks later, the Minnesota dissolution court, after consulting with the California court and unsuccessfully trying to reach the Florida court, denied Braaten's requests for relief noting, among other things, that (a) Braaten did not explain why the information she submitted to the dissolution court suggesting that California was not the child's home state had not been submitted to the California court; (b) even if Minnesota were the child's home state, the dissolution court would invoke Minn. Stat. § 518D.208 (2002) and, in light of Braaten's "unjustified" conduct, decline to exercise jurisdiction; (c) Braaten's allegation that Thompson raped her was false; (d) Thompson was not a party to the Minnesota dissolution proceeding in which Braaten had made her requests for relief; and (e) although, Thompson had not been served with Braaten's Minnesota motion papers he must have received actual notice of the Minnesota proceedings and his attorney was present at the hearing.

D E C I S I O N

1.         Chapter 518D of the Minnesota Statutes is Minnesota's version of the UCCJEA.  Minn. Stat. § 518D.101 (2002); see Minn. Stat. §§ 518D.101-.317 (2002).  Minnesota adopted Chapter 518D for custody issues arising after January 1, 2000.  1999 Minn. Laws ch. 74, art. 3, § 20.  Here, because the Minnesota dissolution proceeding was initiated after January 1, 2000, Chapter 518D applies to custody rulings made therein.  We note that both California and Florida have adopted the UCCJEA.  See Cal. Family Code §§ 3400-65 (West 2002); Fla. Stat. Ann. §§ 61.501 - .542 (West 2002). 

2.         Braaten argues that Minnesota is the child's home state and that therefore the dissolution court has "exclusive, continuing jurisdiction" over the custody questions.  See Minn. Stat. § 518D.202 (2002) (addressing "exclusive, continuing jurisdiction").  The district court, however, ruled that even if it had jurisdiction under the UCCJEA, it would, based on Braaten's conduct, decline to exercise that jurisdiction.  For purposes of this appeal, we assume without deciding, that the dissolution court can exercise jurisdiction because it is and has been the child's home state, and that Braaten's request for parentage-related relief in this dissolution proceeding to which Thompson was not (originally) a party is not defective for personal-jurisdiction or related reasons.  See Minn. Stat. § 518D.102(h) (2002) (defining "[h]ome state"); Minn. Stat. § 518D.201(a)(1), (c) (2002) (stating Minnesota courts have jurisdiction to make an initial child custody determination if Minnesota is child's home state, and neither physical presence of, nor personal jurisdiction over, a party is necessary to make a child custody determination (respectively)); Minn. Stat. § 518D.202 (2002) (listing conditions under which "exclusive, continuing jurisdiction" over custody matters terminates).[3]

3.         Absent circumstances not alleged to exist here, "if a court of this state has jurisdiction under [the UCCJEA] because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction[.]"  Minn. Stat. § 518D.208; see Minn. Stat. § 645.44, subd. 16 (2002) (stating "'[s]hall' is mandatory").  Here, the custody jurisdiction that we assume that the dissolution court currently has is a result of the custody award made in the dissolution judgment.  And that custody award was partially based on Thompson's testimony and the results of his parentage tests.  And Braaten secured that testimony and those test results by entering a written stipulation with Thompson stating that she would dismiss the Minnesota parentage action and reinitiate it in Florida, which she and Thompson agreed was the proper jurisdiction to decide paternity, custody, and related issues.  After entering Thompson's testimony and the test results as evidence in the dissolution, however, Braaten did not dismiss the Minnesota parentage proceeding or reinstate it in Florida. 

In discussing the "unjustified conduct" by Braaten upon which it was basing its current refusal to exercise jurisdiction, the district court specifically referred to Braaten's attempts to "defeat her own stipulation."  The district court's use of these actions by Braaten as a basis to decline to exercise any jurisdiction the Minnesota dissolution court might have is consistent with the law, even if Minnesota was and is the child's home state.  Specifically, given the abusive family dynamics before the dissolution, but for Braaten's failure to abide by the terms of her stipulation, any custody award made in the dissolution would have been a temporary precursor to an award in a Florida parentage proceeding.  See Minn. Stat. § 518D.204(a), (b) (2002) (noting that Minnesota may assert emergency jurisdiction over a custody matter when a child is threatened with abuse and that an order issued based on emergency jurisdiction is effective until an order is obtained from a state having jurisdiction to make a custody award); Minn. Stat. § 518D.207(a), (b)(5) (2002) (noting a Minnesota court otherwise having jurisdiction over a custody matter may decline to exercise that jurisdiction if another state is a more convenient forum, and that whether another state is a more convenient forum requires consideration of "all relevant factors, including" an "agreement of the parties as to which state should assume jurisdiction").  Thus, it is because of Braaten's failure to abide by her stipulation that she is able to assert that the Minnesota dissolution court currently has jurisdiction, and we will not reverse the district court's refusal to exercise jurisdiction here.

4.         While Braaten asserts that the district court improperly acquiesced in statements made by the California district court during the conference between the Minnesota and California district courts and that this acquiescence shows that the district court was biased against her, Braaten fails to support her assertion with argument or citation to legal authority.  Therefore, her argument is waived.  Louden v. Louden, 221 Minn. 338, 339, 22 N.W.2d 164, 166 (1946).

5.         Thompson moves this court to supplement the record on appeal.  Generally, appellate courts may not base a decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988); see Minn. R. Civ. App. P. 110.01 (defining record on appeal).  Moreover, the function of this court is "limited to identifying errors and then correcting them."  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1998).  Because the materials that Thompson requests be included in the record are not necessary to determine whether the district erred below, we deny his motion.

Affirmed; motion denied.

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

[1] We note the stipulation was presented to the district court on May 28, 2003 as an attachment to the affidavit of Marc G. Kurzman (Braaten's attorney).  As such, the stipulation is properly part of the record on appeal.  See Minn. R. Civ. App. P. 110.01 (describing the composition of the record on appeal).  For reasons that are unclear, the stipulation does not physically appear as part of the record prior to this date, however, we recognize the district court must have had access to the stipulation during the dissolution proceeding as the court quotes language from the stipulation in its July 12, 2002 judgment.

[2] We note the district court in its order dated June 20, 2003, from which Braaten now appeals, found Braaten did not dismiss her Minnesota parentage action against Thompson.  Thompson, in his brief to this court, notes the existence of a contrary finding in an earlier district court judgment, filed July 12, 2002, where the court acknowledged that Braaten voluntary dismissed her Minnesota parentage action.  Although Thompson notes the existence of this contrary finding, neither party challenges the finding of the most recent district court order.  Therefore, we are compelled to accept the district court's most recent assertion that Braaten did not dismiss the parentage action as she stipulated she would.  See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990) (stating the role of the court of appeals is to correct errors, not to find facts).

[3] We are affirming the district court's decision to decline to exercise jurisdiction.  Therefore, if we have incorrectly assumed that the dissolution court can exercise jurisdiction, that incorrect assumption will not alter the result of this appeal.