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Horiba v Horiba
[2] Child Custody 76D 751
76D Child Custody
76DX Interstate Issues
76DX(C) Jurisdiction of Forum Court
76Dk751 k. Convenience of Forum. Most Cited Cases
(Formerly 134k289)
³ Substantial evidence² was available concerning children's present and
future training and personal relationships, as required for dissolution
court to exercise jurisdiction under Uniform Child Custody Jurisdiction Act
(UCCJA), where mother was reared in state, most of her close relatives lived
in state, children spent significant amount of time in state before
commencement of the action, and children's primary health care providers and
medical records were in state. ORS 109.700 et seq.
[3] Child Custody 76D 746
76D Child Custody
76DX Interstate Issues
76DX(C) Jurisdiction of Forum Court
76Dk746 k. Determination of Assumption of Jurisdiction. Most
Cited Cases
(Formerly 211k18)
Under Uniform Child Custody Jurisdiction Act (UCCJA), trial court must first
determine whether forum has jurisdiction under any of four grounds
specified; if jurisdiction exists, court must decide whether to accept or
decline it. ORS 109.730(1), 109.770, 109.780.
[4] Child Custody 76D 731
76D Child Custody
76DX Interstate Issues
76DX(C) Jurisdiction of Forum Court
76Dk731 k. Best Interests and Welfare of Child. Most Cited
Cases
(Formerly 134k289)
It was in best interest of children that dissolution court assume
jurisdiction over their custody, where children had significant connection
to state and where substantial evidence concerning their present and future
relationships was located in state. ORS 109.730(1)(b).
[5] Child Custody 76D 702
76D Child Custody
76DX Interstate Issues
76DX(A) In General
76Dk701 Constitutional, Statutory, and Regulatory Provisions
76Dk702 k. In General. Most Cited Cases
(Formerly 134k289)
Japan was not a ³ state² within meaning of Uniform Child Custody
Jurisdiction Act (UCCJA). ORS 109.760.
[6] Child Custody 76D 802
76D Child Custody
76DXI International Issues
76Dk802 k. Constitutional and Statutory Provisions and Treaties.
Most Cited Cases
(Formerly 211k18)
Definition of ³ state,² as set forth in Uniform Child Custody Jurisdiction
Act (UCCJA), does not include foreign nations. ORS 109.760.
[7] Child Custody 76D 741
76D Child Custody
76DX Interstate Issues
76DX(C) Jurisdiction of Forum Court
76Dk740 Jurisdiction of Particular Forum Courts
76Dk741 k. In General. Most Cited Cases
(Formerly 134k289)
Doctrine of unclean hands did not preclude dissolution court from exercising
jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA), in light
of parents' charges and countercharges of abuse and neglect. ORS 109.700 et
seq.
[8] Child Custody 76D 923(1)
76D Child Custody
76DXIII Appeal or Judicial Review
76Dk913 Review
76Dk923 Harmless Error
76Dk923(1) k. In General. Most Cited Cases
(Formerly 134k312.6(9))
Any error in considering mother's evidentiary materials was harmless, with
regard to determination whether jurisdiction existed under Uniform Child
Custody Jurisdiction Act (UCCJA), where trial court correctly determined
that such jurisdiction existed. ORS 109.700 et seq.
Gordon L. Dick, Salem, argued the cause for appellant. With him on the brief
was Wheeler & Dick.
John L. Hemann, Salem, argued the cause for respondent. With him on the
brief was Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P.C.
Before HASELTON, P.J., and DEITS, C.J., and ARMSTRONG, J.
*491 HASELTON, Presiding Judge.
Father, a Japanese citizen, appeals from a judgment of dissolution, awarding
sole custody of the parties' two children to mother, a citizen of the United
States. Father argues that the trial court lacked subject matter
jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), ORS
109.700 et seq, to determine custody. Father further contends that, if the
trial court did have jurisdiction under the UCCJA, the court erred because
it did not decline to exercise it. On de novo review, ORS 19.125(3), we
affirm.
[1][2] Mother grew up in Oregon, and her immediate family continues to
reside in Salem. In 1992, mother and father were married in Nagoya, Japan.
They had two children, Sean, who was born in November 1992, and Naomi, who
was born in May 1994. Both children were born in Japan but have dual
citizenship. The parties and their children resided in Japan until late
April 1995. Both children attended day care in Japan; Sean attended day care
for approximately one year and two months and Naomi attended day care for
approximately three weeks. However, it is undisputed that both children
spent substantial time in Oregon while visiting mother's family and that
their primary health care providers were in Oregon.
In late April 1995, mother brought the children to Oregon to live with her
parents. On May 2, mother sought and was granted a restraining order against
father.FN1 On May 9, mother filed a complaint ³ for separation and for
determination of child custody² under the UCCJA.FN2 At the same time mother
filed an ex parte motion seeking temporary relief, including temporary
custody of the two children and interim spousal and child support. Mother's
affidavit in support of that motion stated, inter alia, that father had been
violent and abusive towards mother and Sean and that mother had brought the
children to Oregon to escape that abuse.FN3 The trial court granted mother's
motion.
FN1. The record in this case does not disclose the basis of the restraining
order.
FN2. In February 1996, mother filed an ³ amended petition to dissolve
marriage and for determination of child custody per UCCJA.²
FN3. We are mindful that a detailed description of mother's allegations, as
well as the averments of other affidavits father and mother subsequently
filed, see 151 Or.App. at 492-93, 950 P.2d at 342, will benefit no one. See
Sarty v. Forney, 12 Or.App. 251, 253, 506 P.2d 535 (1973). Nevertheless, a
general description is essential to understanding the posture of the case.
*492 On July 31, 1995, father filed a petition in a Japanese court seeking
custody of the children. In November 1995, father moved, in the Oregon
proceeding, to dismiss mother's petition, on grounds of lack of personal
jurisdiction and lack of subject matter jurisdiction under the UCCJA.FN4
With respect to **342 the UCCJA, father asserted that mother had failed to
satisfy any of the four separate tests for subject matter jurisdiction of
child custody disputes prescribed in the UCCJA. ORS 109.730(1). Further,
father asserted that, even if the trial court had subject matter
jurisdiction, it should nevertheless decline to exercise jurisdiction
because: (a) Oregon is an inconvenient forum, ORS 109.770; (b) a proceeding
for custody was pending in Japan, see generally ORS 109.760(2), (3); and (c)
mother had ³ wrongfully taken² the children from Japan and had engaged in
other ³ similar reprehensible conduct.² ORS 109.780(1).FN5 Father submitted
a supporting affidavit generally denying mother's allegations of abuse and
contending that mother had engaged in substance abuse, that she had
neglected the children, and that she had physically abused father and the
children.
FN4. Father does not pursue the personal jurisdiction argument on appeal.
FN5. ORS 109.780(1) provides:
³ If the petitioner for an initial decree has wrongfully taken the child
from another state or has engaged in similar reprehensible conduct the court
may decline to exercise jurisdiction if this is just and proper under the
circumstances.²
Mother responded that the trial court had subject matter jurisdiction both
because mother and children had a ³ significant connection² with Oregon and
there was ³ substantial evidence [in Oregon] concerning the [children's]
present or future care,² ORS 109.730(1)(b), and because the children are
present in Oregon because of an ³ emergency.² ORS 109.730(1)(c). Mother
also argued that, in the totality of the circumstances, the court should
exercise jurisdiction and particularly disputed father's assertions that
Japan was a more convenient forum and that mother had ³ unclean hands²
militating against the exercise of jurisdiction. Mother submitted an
affidavit that described father's allegedly abusive conduct *493 and which
described the children's circumstances and development since coming to
Oregon. Attached to that affidavit were some photographs as well as letters
from the children's Oregon day care providers. Father subsequently moved to
strike those attachments on relevancy and hearsay grounds.
After several more rounds of memoranda and affidavits, the trial court
denied father's motions to dismiss and to strike. The trial court found, in
part:
³ (4) The children and petitioner have significant connections with the
state of Oregon;
³ (a) The petitioner/mother lived in Salem, Oregon, prior to her marriage;
³ (b) The children spent a significant number of months in the United
States, prior to their move in May 1995;
³ (c) The maternal grandparent's siblings and extended family live in Salem,
Oregon; and
³ (d) The children have established health care records and relationships in
Salem, Oregon, that precede the May 1995 move.
³ (5) Substantial evidence is available in Oregon concerning the children's
present and future care, protection, training, and personal relationships.
³ (6) The children are currently in Salem, Oregon, and the petitioner has
made a showing of emergency, requiring the protection of the children,
through statements of mistreatment and abuse of petitioner and the children,
by respondent/father;
³ * * * * *
³ (8) The Oregon court has jurisdiction over the subject matter of custody;
³ (9) The Oregon Court, under all of the circumstances, does not decline to
exercise its jurisdiction. The best interests of the children are sufficient
for this court to invo[k]e jurisdiction;
*494 ³ (10) A complete trial, in Oregon, regarding custody and visitation
should amply protect the interests of the children and result in evidence
permitting an appropriate judgment.
³ (11) Petitioner moved, with the children, from Japan to Oregon without the
knowledge of respondent. The Oregon court could not conclude from this fact
that the doctrine of clean hands applies or that the Petitioner wrongfully
removed the children from Japan.
³ (12) Respondent father vigorously denies petitioner's allegations and
recited in **343 detail her failings and his perceptions of her. The Court
must balance the parties' materials and focus on the best interests of the
children. Japan is not a signator to the UCCJA. There is no practicable
basis for communications that might take place between Oregon and Japanese
Courts pursuant to the UCCJA. The issues must be litigated in Oregon so the
children can have their interests protected.
³ * * * * *
³ Given the substantial allegations and evidence of anger and abuse, the
doctrine of clean hands would not preclude jurisdiction on the allegation
petitioner was unjustified, reprehensible, and wrong in taking the children
to the United States. Petitioner presents tenable grounds and reasons for
her conduct.²
In August 1996, mother presented her case for custody of the children.
Father did not appear. The trial court issued a judgment dissolving the
marriage and awarding mother sole custody, granting no visitation rights to
father. On appeal, father makes three general arguments that flow, more
particularly, from five assignments of error. First, he asserts, the trial
court erred in determining it had subject matter jurisdiction under the
UCCJA, particularly ORS 109.730(1)(b) and (c). Second, even if the court had
jurisdiction under the UCCJA, it erred in opting to exercise that
jurisdiction. Third, the court erred in denying father's motion to strike
certain portions of, and attachments to, mother's second affidavit. We
consider each in turn.
[3] Under the UCCJA, the trial court must first determine whether the forum
has jurisdiction under any of the four grounds specified in ORS 109.730(1).
If there is subject *495 matter jurisdiction, the court must then decide
whether to exercise or decline jurisdiction by reference to a variety of
factors. See, e.g., ORS 109.770; ORS 109.780. Here, father's first
assignment of error challenges the trial court's determination that it had
jurisdiction under both ORS 109.730(1)(b) and (c).FN6 Because we conclude
that there is jurisdiction under subsection (1)(b), we do not consider the
applicability of subsection (1)(c).
FN6. ORS 109.730(1)(c) provides that a court has subject matter jurisdiction
if:
³ The child is physically present in this state and the child has been
abandoned or it is necessary in an emergency to protect the child because
the child has been subjected to or threatened with mistreatment or abuse or
is otherwise neglected or dependent.²
ORS 109.730(1)(b) provides:
³ (1) A court of this state which is competent to decide child custody
matters has jurisdiction to make a child custody determination by initial or
modification decree if:
³ * * *
³ (b) It is in the best interest of the child that a court of this state
assume jurisdiction because the child and the parents of the child, or the
child and at least one contestant, have a significant connection with this
state, and there is available in this state substantial evidence concerning
the child's present or future care, protection, training, and personal
relationships.²
Father argues that that provision does not apply because, as of May 1995,
when the petition was filed, the children did not have the requisite
³ significant connection² to Oregon. See Stubbs v. Weathersby, 320 Or. 620,
624-25, 892 P.2d 991 (1995) (³ [W]e consider the facts as of the date that
the * * * proceeding was commenced.² ). We disagree.FN7
FN7. In this connection, father also argues that Japan should be considered
a ³ state² under the UCCJA. However, the question of whether Japan-or any
foreign nation-is a ³ state² under the UCCJA is immaterial to the initial,
threshold determination of subject matter jurisdiction under ORS
109.730(1)(b). To the extent that question pertains to father's arguments
concerning the court's decision not to decline jurisdiction, it is answered
below. 151 Or.App. at 496-500, 950 P.2d at 344-46.
[4] It is uncontroverted that mother was reared in Oregon and that most of
her close relatives, including her mother, father, grandmother, sister, and
brother, live in *496 Oregon. Although the record is somewhat inconsistent
and unclear as to the particulars, it demonstrates generally that the
children spent a significant amount of time in **344 Oregon before the
commencement of this action. In particular, the evidence shows that Sean
spent at least six months in Oregon in the first two and a half years of his
life, and that Naomi spent at least four months in Oregon in the first year
of her life. Moreover, both children received their immunizations and their
primary medical care from an Oregon pediatrician prior to May 1995.
Considering the age of the children, the amount of time they have spent
here, the fact that their primary medical providers and medical records are
in Oregon, and their interactions with the many close relatives who reside
here, we find that both children had a significant connection with Oregon
before May 1995. We conclude, for similar reasons, that there was available
in Oregon ³ substantial evidence² concerning the children's present and
future care, training, and personal relationships. Given those
considerations, it was in the best interest of the children that an Oregon
court assume jurisdiction over their custody. ORS 109.730(1)(b).
[5] Father's second, third, and fourth assignments of error challenge, in
various particulars, the trial court's decision to exercise subject matter
jurisdiction. In his second assignment, father argues that, under ORS
109.760, the trial court was required to consult with the Japanese court and
that it failed to do so. ORS 109.760 provides, in part:
³ (2) * * * If the court has reason to believe that proceedings may be
pending in another state it shall direct an inquiry to the state court
administrator or other appropriate official of the other state.
³ (3) * * * If the court is informed that a proceeding was commenced in
another state after it assumed jurisdiction it shall likewise inform the
other court to the end that the issues may be litigated in the more
appropriate forum.² (Emphasis supplied.)
In his third assignment of error, father contends that, because of mother's
³ unclean hands,² the court should have declined to exercise jurisdiction.
ORS 109.780(1) provides: *497 ³ If the petitioner for an initial decree has
wrongfully taken the child from another state or has engaged in similar
reprehensible conduct the court may decline to exercise jurisdiction if this
is just and proper under the circumstances.² (Emphasis supplied.)
Father's fourth assignment asserts that the trial court erred in exercising
its jurisdiction because Oregon is an inconvenient forum, and because Japan
is a ³ more appropriate forum² under ORS 109.770. ORS 109.770 provides, in
part:³ (1) A court which has jurisdiction under ORS 109.700 to 109.930 to
make an initial or modification decree may decline to exercise its
jurisdiction any time before making a decree if it finds that it is an
inconvenient forum to make a custody determination under the circumstances
of the case and that a court of another state is a more appropriate forum.
³ * * * * *
³ (3) In determining if it is an inconvenient forum, the court shall
consider if it is in the interest of the child that another state assume
jurisdiction. For this purpose it may take into account the following
factors, among others:
³ (a) If another state is or recently was the child's home state;
³ (b) If another state has a closer connection with the child and the family
of the child or with the child and one or more of the contestants;
³ (c) If substantial evidence concerning the child's present or future care,
protection, training, and personal relationships is more readily available
in another state;
³ (d) If the parties have agreed on another forum which is no less
appropriate; and
³ (e) If the exercise of jurisdiction by a court of this state would
contravene any of the purposes stated in ORS 109.720(1) and (2).² (Emphasis
supplied.)
Given the emphasized statutory language, the ultimate success of the second
and fourth assignments-and, to a large extent, of the third FN8-depends on
whether Japan is a **345 ³ state² *498 under the UCCJA. In construing that
term, we first consider the text and context of the statute. PGE v. Bureau
of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). The text is
³ the best evidence of the legislature's intent.² Id. Only if the
legislature's intent remains unclear do we examine the legislative history.
FN8. If Japan is not a ³ state,² mother could not have ³ wrongfully taken
the [children] from another state.² ORS 109.780(1). However, at least
arguably, ORS 109.780 might still apply if mother ³ engaged in similar
reprehensible conduct.²
[6] The UCCJA defines ³ state² as ³ any state, territory, or possession of
the United States, the Commonwealth of Puerto Rico, and the District of
Columbia.² ORS 109.710(10). That definition is clear and controlling.
Nothing in that definition can reasonably be construed as encompassing a
foreign nation.
Nevertheless, father argues that the UCCJA's statement of purpose, ORS
109.720,FN9 and its statement regarding the UCCJA's application to the
international arena, ORS 109.720(3), compel us to conclude that Japan is a
³ state.² ORS 109.720(3) provides:
FN9. ORS 109.720 provides in part:
³ (1) The general purposes of ORS 109.700 to 109.930 are to:
³ (a) Avoid jurisdictional competition and conflict with courts of other
states in matters of child custody[;]
³ (b) Promote cooperation with the courts of other states to the end that a
custody decree is rendered in that state which can best decide the case in
the interest of the child;
³ (c) Assure that litigation concerning the custody of a child takes place
ordinarily in the state with which the child and the family of the child
have the closest connection and where significant evidence concerning care,
protection, training, and personal relationships of the child is most
readily available, and that courts of this state decline the exercise of
jurisdiction when the child and the family of the child have a closer
connection with another state;
³ (d) Discourage continuing controversies over child custody[;]
³ (e) Deter abductions and other unilateral removals of children undertaken
to obtain custody awards;
³ (f) Avoid relitigation of custody decisions of other states in this state
in so far as feasible;
³ (g) Facilitate the enforcement of custody decrees of other states;
³ (h) Promote and expand the exchange of information and other forms of
mutual assistance between the courts of this state and those of other states
concerned with the same child[.]²
³ The general policies of ORS 109.700 to 109.930 extend to the international
area. The provisions of ORS 109.700 to *499 109.930 relating to the
recognition and enforcement of custody decrees of other states apply to
custody decrees and decrees involving legal institutions similar in nature
to custody, rendered by appropriate authorities of other nations if
reasonable notice and opportunity to be heard were given to all affected
persons.² (Emphasis supplied.)
Father argues, in effect, that the generalized ³ policy² directive of ORS
109.720(3) overrides the particular definition of ³ state² in ORS
109.710(10) in such a way as to require consultations with the Japanese
court and to require a forum non conveniens comparison with Japan. Invoking
decisions from other states that assume or hold that foreign nations are
³ states² within the meaning of the UCCJA,FN10 father contends that
³ [e]xtension of the definition of state to include foreign nations is
necessary to accomplish the general purposes of the UCCJA.²
FN10. See, e.g., Falco Adkins v. Falco Antapara, 850 S.W.2d 148
(Tenn.App.1992), appeal denied (1993); Hattoum v. Hattoum, 295 Pa.Super.
169, 441 A.2d 403 (1982); Stock v. Stock, 677 So.2d 1341 (Fla.App.1996); In
re Marriage of Arnold, 222 Cal.App.3d 499, 271 Cal.Rptr. 624 (1990); Ruppen
v. Ruppen, 614 N.E.2d 577 (Ind.App.1993); Middleton v. Middleton, 227 Va.
82, 314 S.E.2d 362 (1984).
Some other courts have, indeed, followed the approach father urges. See,
e.g., 151 Or.App. at 499 n. 10, 950 P.2d at 345 n. 10. However, none of
those courts purported to apply, much less was compelled to apply, the
method of statutory construction prescribed by PGE v. Bureau of Labor and
Industries. Moreover, none of those decisions explains how generalized
policy concerns can alter a discrete and explicit statutory definition.
³ State² means state. If the legislature had intended that term to include
foreign nations, it easily could have done so.FN11 If the legislature**346
had intended the consultation and forum non conveniens provisions of ORS
109.760 and ORS 109.770 to apply to foreign nations, it easily could have
done so. But it did not. And we cannot. It is not our province to ³ insert
what has been omitted, or to omit what has been inserted.² ORS 174.010.
FN11. Compare ORS 110.303(19) (Defining ³ state² for purposes of the
Uniform Interstate Family Support Act as ³ state of the United States, the
District of Columbia, the Commonwealth of Puerto Rico or any territory or
insular possession subject to the jurisdiction of the United States. The
term Œ state¹ includes an Indian tribe and includes a foreign jurisdiction
that has established procedures for issuance and enforcement of support
orders which are substantially similar to the procedures under ORS 110.300
to 110.441.² (Emphasis supplied.))
[7] *500 Because Japan is not a ³ state² within the meaning of those
provisions of the UCCJA that father invokes, the second and fourth
assignments of error fail. As noted, however, 151 Or.App. at 497 n. 8, 950
P.2d at 344 n. 8, that conclusion does not completely decide father's third
assignment based on the ³ unclean hands² provision, ORS 109.780(1). Father
asserts, particularly, that mother engaged in ³ reprehensible conduct² by
neglecting and mistreating the children and by taking them from Japan
without his knowledge or consent FN12.
FN12. On appeal, father acknowledges that Japan is not a signatory to the
Hague Convention on the Civil Aspects of International Child Abduction. He
asserts, however, without elaboration, that ³ the purposes of the UCCJA and
the Hague Convention [with respect to discouraging abductions] are
consistent.²
Mother responds on two levels. First, she asserts that father limited his
appearance in the trial court to contesting whether the court had subject
matter jurisdiction and, thus, ³ waived² any errors relating to the court's
decision to exercise that jurisdiction. Second, mother disputes the merits
of the ³ unclean hands² issue.
Mother's preservation argument is mistaken. Father did not limit his
appearance merely to contesting the existence of subject matter
jurisdiction. Rather, the parties' pleadings and evidentiary submissions, as
well as the trial court's order denying father's motion to dismiss,
demonstrate that the parties also fully litigated the question of whether
the court should decline to exercise jurisdiction for a variety of reasons,
including mother's supposed ³ reprehensible conduct.²
Turning to the merits, we reject father's position. Without dwelling on the
details of the parties' charges and counter-charges of abuse and neglect, we
agree with the trial court's assessment of the evidence. See 151 Or.App. at
493-96, 950 P.2d at 342-43.
[8] In his fifth and final assignment of error, father argues that the trial
court erred in denying his motion to strike portions of mother's affidavit
and attachments to the affidavit, including letters written by the
children's Oregon day care providers and an affidavit from one of the
children's counselors. Father argues that those materials were irrelevant to
the determination and exercise of jurisdiction and, in *501 some instances,
included inadmissible hearsay. We do not resolve those evidentiary
objections because, even if those materials should have been excluded, we
conclude, on de novo review of the remaining evidence, that the trial court
had subject matter jurisdiction and did not err in exercising that
jurisdiction.
We have considered father's other arguments and reject them without further
discussion.
Affirmed. Costs to mother.
Or.App.,1997.
Matter of Marriage of Horiba
151 Or.App. 489, 950 P.2d 340
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