Ostermiller v. Spurr

GOLDEN, J.,

dissenting, with whom LEHMAN, C.J., joins.

The district court did not have subject matter jurisdiction over the issues of custody, visitation, name change or income tax deductions. Under the Uniform Interstate Family Support Act (UIFSA) and its predecessor acts, the Uniform Reciprocal Enforcement Support Act (URESA) and the Revised Uniform Reciprocal Enforcement Support Act (RURESA), subject matter jurisdiction is limited to parentage and support issues. See In the Interest of R.L.H., a Child, and Concerning R.W.J., 942 P.2d 1386, 1388-89 (Colo.Ct.App.1997).

R.L.H. presented circumstances and issues very similar to the case at bar. The issue presented was whether,, in proceedings brought under UIFSA, the trial court has subject matter jurisdiction to enter orders concerning parenting time. R.L.H., 942 P.2d at 1387. The case was initiated in Nevada under URESA, the predecessor to UIFSA. Id. Pursuant to UIFSA, a petition was filed in Colorado, as the responding state, to determine parentage, child support, and arrear-ages. Id. The case at bar originated in Nebraska, the home state of the mother and child. At the request of Nebraska, the State of Wyoming filed a petition in Wyoming, where the father resides and where personal jurisdiction over the father was available.

R.L.H.’s father stipulated to paternity and the support amount, but requested an order concerning parenting time. Id. The Colorado trial court reasoned that, because a parentage determination pursuant to UIFSA requires “application” of the Uniform Parentage Act, the court could also determine any issues it was allowed to determine under the Parentage Act, which included parenting time. Id. The court commissioner in our case determined it had subject matter jurisdiction over any issues it could decide under the Parentage Act, Wyo. Stat. § 14-2-101 et seq. (1997). However, the district court’s order makes absolutely no findings of fact or conclusions of law concerning subject matter jurisdiction.

The following excerpts from R.L.H. are relevant and persuasive:

[I]n a URESA action, the authority to consider the issue of parentage was narrow and did not confer jurisdiction over visitation and custody issues. See In re Byard v. Byler, [74 Ohio St.3d 294, 658 N.E.2d 735 (Ohio 1996) (URESA subject matter jurisdiction is limited to matters of child support) ]; State v. Owens, 78 Wash.App. 897, 899 P.2d 833 (1995), aff'd, 128 Wash.2d 908, 913 P.2d 366 (1996) (purpose of URE-SA is to provide a single, convenient, and uniform interstate proceeding to obtain support and should not be burdened with collateral issues such as custody and visitation); see also People ex rel. Van Meveren v. District Court, 638 P.2d 1371 (Colo.1982); Vigil v. Vigil, [30 Colo.App. 452, 494 P.2d 609 (Colo.App.1972) ].
The replacement of URESA and RURE-SA by UIFSA did not expand the permissible scope of issues to be addressed in interstate child support enforcement proceedings. To the contrary, the goal of the new law was to provide mechanisms to address problems, such as multiple or con-*945flieting support orders as to the same parties and children, that had persisted in the interstate enforcement of support under RURESA. See Schumacher, The Colorado Uniform Interstate Family Support Act, 23 Colo. Law. 2535 (1994); Sampson & Kuntz, UIFSA: An Interstate Support Act for the 21st Century, 27 Fam. L.Q. 85 (1993).
Thus, a determination of custody or visitation issues is noticeably absent from the list of duties and powers delineated in § 14-5-305, C.R.S. (1996 Cum.Supp.), the statutory section of the Colorado UIFSA which, in a change from the more general language of RURESA, was designed to “make explicit the wide range of specific powers and duties of the responding tribunal.” [Wyo. Stat. § 20-4-155 (1997)] In fact, the comment to the section makes clear that visitation issues are not to be litigated in the context of a support proceeding. See Uniform Interstate Family Support Act, 9 Uniform Laws Annot. § 305 comment at 350 (1997 Supp.).

R.L.H., 942 P.2d at 1388-89.

In addition, Uniform Interstate Family Support Act, 9 Uniform Laws Annot. § 201 (1997 Supp.), which sets forth the bases for jurisdiction over nonresidents, states that “the power to assert jurisdiction over support issues under the Act does not extend the tribunal’s jurisdiction to other matters.” See also § 14-5-314(a), C.R.S. (1996 Cum.Supp.) [Wyo. Stat. § 20-4-164(a) (1997) ] (providing that participation by a petitioner in a UIFSA proceeding before the responding tribunal does not confer personal jurisdiction over that party in another proceeding).
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Moreover, we observe that an obligor remains able to establish parenting time in the same proceedings in which parentage and child support are sought and determined. The remedies of UIFSA, like those of its predecessor acts, are cumulative to remedies available under other law. Section 14-5-103, C.R.S. (1996 Cum. Supp.). Thus, for example, although such a forum may be less convenient, an obligor can opt to have the issues of child support, custody, and parenting time determined in the first instance in the child’s home state.

Id. at 1389.

I agree with the Colorado court that, under UIFSA, a responding court does not have subject matter jurisdiction over any issues other than paternity and child support. If the respondent to a UIFSA action wishes to have other issues decided at the same time, the proper forum is the child’s home state, where determinations as to the child’s best interests may be properly decided through the use of competent evidence concerning the child.

This case provides an excellent example of the need to determine other issues involving the child in the child’s home state. The record is absolutely devoid of any evidence as to the best interests of the child. I am, quite frankly, at a loss as to the basis for the commissioner’s and the district court’s rulings concerning custody, visitation, the name change and the tax deduction.

Additionally, I am concerned with the hand-written, undated, unsigned addition of the State of Wyoming and the child on court documents, which appear to be a petition; with the fact that the record contains no copy of the petition which is signed by an attorney; and with the court commissioner’s statement that the State of Wyoming represented the child in this matter, yet the State of Wyoming is the appellee in this appeal and the child is one of the appellants, along with his mother. The parties to an action and them relationship to each other are important matters, as this ease illustrates through its apparent disregard for appropriate captions on the filed petitions and the resulting confusion concerning personal jurisdiction, parties, legal representation, and parties on appeal.

Our statutes provide that a child must be made a party to paternity actions involving that child and that the child must be represented by either a state agency, the child’s guardian, or a guardian ad litem appointed by the court. Wyo. Stat. § 14-2-107 (1997). It is unconscionable that decisions on such important issues concerning this child were made without any testimony or evidence about the child. The commissioner, and *946hence the district court, relied upon comments from a father who had never seen or spoken to his child and attorneys who never had any contact with the child. I am convinced that this illustrates the reasoning behind the limited subject matter jurisdiction given to a responding tribunal in a UIFSA proceeding.