Johnson v. Keene

W. J. Caprathe, J.

(concurring in part and dissenting in part). I agree with the majority’s conclusion that the circuit court had jurisdiction to consider a change in custody pursuant to MCL 600.653(l)(a); MSA 27A.653(l)(a). However, I respectfully dissent from the majority’s opinion that the circuit court properly deferred to the Arkansas chancery court in this matter.

Under MCL 600.653(1); MSA 27A.653(1), if the court which rendered the decree, i.e., the Arkansas court, does not now have jurisdiction, then the circuit court should entertain a motion to modify the Arkansas decree. To determine if the Arkansas court had jurisdiction under the Uniform Child Custody Jurisdiction Act, MCL 600.651 et seq.; MSA 27A.651 et seq., one must look to the date of the filing of the motion to modify the decree. See Bull v Bull, 109 Mich App 328, 337; 311 NW2d 768 (1981).

Although Arkansas had jurisdiction on August 27, 1985, when it modified its original custody decree, it did not have jurisdiction on February 28, 1986, when plaintiff filed her motion in the circuit court to modify the Arkansas decree.

At that time, Arkansas lacked significant connection with the child and at least one party. The father and the child were in Japan and the mother was in Michigan. Arkansas no longer had available evidence concerning the child’s present or future care, protection, training, and personal relationships. Accordingly, Arkansas did not have jurisdiction. MCL 600.653(l)(a); MSA 27A.653(l)(a).

*447Since Michigan had jurisdiction over this matter under the home state rule, and Arkansas did not, the trial court should have entertained the motion to have the Arkansas order set aside or modified.

The trial court’s finding that Michigan was an inconvenient forum also was an insufficient reason to refuse to assert jurisdiction. Under the uccja, a finding of inconvenient forum cannot be properly made unless the court finds that another state is a more convenient forum. MCL 600.657(5); MSA 27A.657(5). See Pennsylvania ex rel Octaviano v Dembrowski, 290 Pa Super 322; 434 A2d 774 (1981). This is especially necessary in the present case where the state rendering the original custody decree lost its jurisdiction, leaving only Michigan as an appropriate forum to litigate this dispute. Therefore, the trial court did not properly exercise its discretion.

I would remand this matter for further proceedings, including consideration of the ramifications of the Soldiers’ and Sailors’ Relief Act of 1940, as amended, 50 USC 501 et seq.