Johnson v. Johnson

SABERS, Justice.

ACTION

Sharon Johnson (Mother) filed this discretionary appeal of a circuit court order denying her request that it decline to exercise jurisdiction over this child custody dispute.

FACTS/PROCEDURAL HISTORY

Mother and Darrell Johnson (Father) were divorced by a South Dakota circuit court in Aberdeen in January 1987. Mother received custody of the couple’s two youngest children, Terri (now 9 years) and Carrie (now 17 years). Father received custody of the two elder children, Kristi (now 22 years) and Tamara (now 21 years). Father continues to reside in Aberdeen. Mother, Terri and Carrie have lived in Minnesota for approximately two years.1

In August 1990, Father filed a motion with the South Dakota circuit court in Aberdeen, requesting a custody change for Carrie. Mother responded by requesting that the South Dakota circuit court decline jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJA is law in both South Dakota (SDCL 26-5A-1 through 26) and Minnesota (Minn.Stat. § 518A.01 through 518A.25). Both parties submitted substantial affidavits and memorandum of law in support of their respective positions. The South Dakota circuit court chose to exercise jurisdiction. This Court granted Mother’s petition for discretionary appeal of the circuit court’s jurisdictional ruling.

DECISION

In child custody disputes, more than one state may have jurisdiction over the parties. See generally, 2 Rutkin, Family Law and Practice § 32.03[4][a] [hereinafter “Rutkin”]. This multiple jurisdiction resulted in forum shopping, abduction of children, and conflict between state courts over jurisdiction. Id. The UCCJA was designed to alleviate these problems by set*605ting standards and procedures to decide what state should exercise jurisdiction. UCCJA § 14, Comment. See also Rutkin, supra, at §§ 32.03[4][c] and [d]. To achieve these goals, the UCCJA provides, in pertinent part, that a state court has jurisdiction to make a child custody determination by initial or modification decree if it:

(1) is the home state of the child ...; or
(2) is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, 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;

SDCL 26-5A-3. See also 1 McCahey, Kaufman, Kraut, Gafner, Silverman and Zett, Child Custody & Visitation: Law and Practice. § 3.01[4][a] at p. 3-19 [hereinafter “McCahey”]. In short, the goal of the UCCJA is to avoid jurisdictional conflicts between states and assure that the state best suited to handle a particular controversy ultimately ends up exercising jurisdiction.2

This case is an example of how two states may simultaneously have jurisdiction over a child custody dispute. Minnesota has jurisdiction as Carrie’s “home state.” SDCL 26-5A-3(l). South Dakota has jurisdiction because Carrie and Father have a significant connection with South Dakota and there is substantial evidence concerning Carrie’s present or future care, protection, training, and personal relationships available in South Dakota. SDCL 26-5 A-3(2).

Section 14 of the UCCJA (SDCL 26-5A-14) provides:

If a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which gave the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this chapter or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction.

In other words, the South Dakota court which originally decided custody of the children has continuing jurisdiction over the matter. The UCCJA provides for continuing jurisdiction so parents cannot simply move to another state and have an unfavorable child custody ruling relit-igated. 2 McCahey, supra, Chapter 5, at p. 5-1. When parents move to a new state, the new state must defer to the continuing jurisdiction of the state that originally decided custody, unless the original state no longer has jurisdiction or has declined to assume jurisdiction. Id. at § 5.03[2]; Rutkin, supra, at § 32.03[5].

In this case, Mother asked the South Dakota court to decline jurisdiction because it is an inconvenient forum. The “inconvenient forum” section of the UCCJA (SDCL 26-5A-7 and Minn.Stat. 518A.07), states, in pertinent part:

A court which has jurisdiction under this chapter 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.
******
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, including:
*606(1) If another state is or recently was the child’s home state;
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate.

SDCL 26-5A-7.

Thus, the trial court has discretion in deciding whether to decline to exercise jurisdiction under SDCL 26-5A-7. See, e.g., Breneman v. Breneman, 284 N.W.2d 804, 92 Mich.App. 336 (1979); Dennis v. Dennis, 387 N.W.2d 234 (N.D.1986). See also Winkelman, 279 N.W.2d at 903 (Henderson, J., dissenting.)

The trial court reviewed the arguments of counsel and considered the nature of evidence available in South Dakota and Minnesota. Carrie grew up in South Dakota and evidence of her first fourteen years of life is available here. Minnesota is now her home state and evidence about the last two years of her life is available there. Carrie expressed her desire to move to South Dakota to live with her father. The South Dakota trial court exercised its discretion and chose to accept jurisdiction. Discretionary acts by their very nature involve choices. While perhaps not every member of this Court would have chosen to accept jurisdiction, the trial court’s decision was not contrary to reason. There is no abuse of discretion if “a judicial mind, in view of the law and circumstances, could reasonably have reached that conclusion.” State v. Rose, 324 N.W.2d 894, 896 (S.D.1982). Affirmed.

WUEST and AMUNDSON, JJ„ concur. MILLER, C.J., and HENDERSON, J., concur specially.

. There are no allegations that Mother improperly removed the children from South Dakota. She moved to Minnesota to pursue a job opportunity. Apparently, Father did not object to the relocation to Minnesota. Thus, there are no issues concerning child snatching.

. This Court previously noted:

It must be remembered that the child's interest is paramount to the mere interest or convenience of the feuding parties in a determination of child custody. "The interest of the child is best served when the forum has optimum access to relevant evidence about the child and family” which means that "[t]here must be maximum rather than minimum contact with the state.”

Winkelman v. Moses, 279 N.W.2d 897, 900 (S.D.1979) quoting Model Act § 3, Commissioners' Note, p. 108.