Kingdon v. Kingdon

Kingdon v. Kingdon

IN THE UTAH COURT OF APPEALS

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Linary Marie Kingdon,

Petitioner and Appellee,

v.

Brian Lee Kingdon,

Respondent and Appellant.

MEMORANDUM DECISION (Not For Official Publication)
 

Case No. 20020631-CA
 

F I L E D
(October 2, 2003)
 

2003 UT App 326

 

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Third District, Salt Lake Department
The Honorable Roger A. Livingston

Attorneys: Brian Lee Kingdon, Magna, Appellant Pro Se

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Before Judges Billings, Bench, and Davis.

BENCH, Judge:

Determining jurisdiction over custody matters is a question of law. See, e.g. In re D.S.K., 792 P.2d 118, 123 (Utah Ct. App. 1990) (citing Dragoo v. Dragoo, 298 N.W.2d 231, 232 (1980)). Therefore, we give no deference to the trial court. See id.

The Parental Kidnapping Prevention Act (the PKPA) requires that two elements be satisfied before a second state may modify the decree of a first state: "(1) [Georgia] must have such jurisdiction as would permit it to make an initial custody determination and (2) . . . [Utah] must have lost or given up its continuing jurisdiction." Curtis v. Curtis, 789 P.2d 717, 722 (Utah Ct. App. 1990); accord Utah Code Ann. § 78-45c-202 to -203 (2002). Utah properly rendered an Order Modifying Child Custody in June 2002. Therefore, unless Utah properly relinquished its jurisdiction, "jurisdiction to modify an existing custody decree is reserved for the state that rendered the decree." In re D.S.K., 792 P.2d at 125.

Here, the trial court did not properly relinquish Utah's jurisdiction because the court failed to follow the dictates of Utah's Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA). Section 110 of the UCCJEA requires a record(1) to be made of the communication that occurs between Utah and another state about a matter arising under the UCCJEA. See Utah Code Ann. § 78-45c-110(4) (2002). Here, the only evidence of the communication that took place between Utah and Georgia is the minute entry dated July 30, 2002. Because the minute entry gives no explanation for Utah's relinquishment of jurisdiction, the minute entry hardly qualifies as a "memorandum . . . made by a court after the communication." Utah Code Ann. § 78-45c-110(5). Even if this minute entry were to qualify as a memorandum, the parties were not "informed promptly of the communication and granted access to the record" pursuant to subsection four. Utah Code Ann. § 78-45c-110(4). Finally, there is no proper evidence supporting an adequate finding that Utah declined to exercise jurisdiction because it was an "inconvenient forum." Utah Code Ann. § 78-45c-207 (2002).

Because we conclude that Utah did not properly relinquish its jurisdiction over the custody decree and modification, we reverse the trial court's order transferring jurisdiction and remand the case for appropriate treatment of the jurisdiction issue under the UCCJEA and the PKPA.

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Russell W. Bench, Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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James Z. Davis, Judge

1. "[R]ecord" means information that is inscribed on a tangible medium or that which is stored in an electronic or other medium and is retrievable in perceivable form. A record includes notes or transcripts of a court reporter who listened to a conference call between the courts, an electronic recording of a telephone call, a memorandum or an electronic record of the communication between the courts, or a memorandum or an electronic record made by a court after the communication.

Utah Code Ann. § 78-45c-110(5) (2002).