Dennis v. Dennis

VANDE WALLE, Justice.

Earl Dennis appealed from a district court judgment in which the court declined to exercise jurisdiction over Earl’s motion to modify the child visitation provisions of a divorce decree. We affirm.

Earl and Renae Dennis were divorced in Burleigh County in September 1981. Re-nae was awarded custody of the parties’ two minor children and Earl was granted visitation rights. It was contemplated at that time that Renae would move from North Dakota, and the decree contained alternative visitation provisions which were to take effect when she did so. Renae and the children have resided in Iowa since October 1981.

In July 1984, Earl filed a motion requesting modification of the original decree to allow increased visitation. The district court, by order dated September 13, 1984, held that it lacked jurisdiction to rule on the matter. Earl appealed from that order and we remanded for the district court to consider whether it had “significant connection” jurisdiction pursuant to Section 14-14-03(l)(b), N.D.C.C. Dennis v. Dennis, 366 N.W.2d 474 (N.D.1985).

On remand, the district court held an evidentiary hearing on the issues of signifi*235cant connections and inconvenient forum. See Sections 14-14-03(l)(b) and 14-14-07, N.D.C.C. The court determined that it had personal and subject-matter jurisdiction, but concluded that North Dakota was an inconvenient forum and that Iowa was the appropriate forum to exercise jurisdiction over this case.

The sole issue presented on appeal1 is whether the court abused its discretion in determining that North Dakota is an inconvenient forum in which to litigate Earl’s motion to modify the original custody decree. Resolution of this issue requires an analysis of the provisions of Chapter 14-14, N.D.C.C., which is our State’s adoption of the Uniform Child Custody Jurisdiction Act [U.C.C.J.A.],

Section 14-14-07, N.D.C.C., contains the relevant inconvenient-forum provisions:

“1. A court which has jurisdiction under this chapter to make an initial decree or a 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.
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“3. In determining whether it is an inconvenient forum, the court shall consider whether 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, whether:
“a. Another state is or recently was the child’s home state;
“b. Another state has a closer connection with the child and his family or with the child and one or more of the contestants;
“c. Substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
“d. The parties have agreed on another forum which is no less appropriate; and
“e. The exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 14-14-01.”

In essence, Chapter 14-14, N.D.C.C., requires that a court make a two-pronged inquiry to determine whether it should entertain a child-custody proceeding having interstate implications: it must first determine whether it has jurisdiction under Section 14-14-03 [U.C.C.J.A. § 3], and, if so, the court must then determine whether it is appropriate to exercise jurisdiction under Section 14-14-07 [U.C.C.J.A. § 7]. See,, e.g., Barden v. Blau, 712 P.2d 481 (Colo.1986); Brown v. Brown, 195 Conn. 98, 486 A.2d 1116 (1985); In re Marriage of Bolton, 690 P.2d 401 (Mont.1984).

It is well settled that the decision whether to decline to exercise jurisdiction on inconvenient-forum grounds lies entirely within the trial court’s discretion, and its decision will be reversed on appeal only for an abuse of discretion. See, e.g., Stevenson v. Stevenson, 452 So.2d 869 (Ala.Civ.App.1984); Barden v. Blau, supra; Brown v. Brown, supra; Larsen v. Larsen, 5 Kan.App.2d 284, 615 P.2d 806 (1980); Farrell v. Farrell, 133 Mich.App. 502, 351 N.W.2d 219 (1984); In re Marriage of Bolton, supra; Oehler v. Clinton, 282 S.C. 25, 317 S.E.2d 445 (1984). An abuse of discretion, which implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court, never is assumed and must be affirmatively established. In the Matter of Estate of Vertin, 381 N.W.2d 199 (N.D.1986); Lange v. Cusey, 379 N.W.2d 775 (N.D.1985).

We cannot conclude that the district court abused its discretion in determining *236that this State is an inconvenient forum to resolve this dispute. The district court specifically considered the statutory factors contained in Section 14-14-07(3), N.D.C.C., and concluded that Iowa is the home State of the children; that substantial evidence concerning the children’s care, protection, training, and personal relationships is more readily available in Iowa; and that Iowa has a closer connection with the children.2

A paramount consideration in the balancing of these various factors is a determination of what court is most able to act in the best interests of the children. In re Marriage of Pavelcik, 138 Ill.App.3d 1060, 93 Ill.Dec. 589, 487 N.E.2d 33 (1985). A court should exercise jurisdiction over a child-custody proceeding only when it is in the child’s best interest to do so. See Sections 14-14-01(l)(b) and 14-14-07(3), N.D. C.C. We further note the important policy statement contained in Section 14-14-01(l)(c), N.D.C.C.:

“1. The general purposes of this chapter are to:
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“c. Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; ...”

Under the circumstances presented in this case, we conclude that the trial court did not abuse its discretion when it declined to exercise jurisdiction based upon its determination that Iowa is a more appropriate forum. Accordingly, the judgment is affirmed.

ERICKSTAD, C.J., and GIERKE and LEVINE, JJ., concur.

. Earl also contends that the district court erred "in holding that it did not have jurisdiction.” The court, however, explicitly held that it did have jurisdiction, and it is clear that the court ultimately based its decision upon Section 14-14-07, N.D.C.C., the inconvenient-forum provision.

. In Dennis v. Dennis, 366 N.W.2d 474, 477 (N.D.1985), some of the members of this court expressed the view that a determination of jurisdiction for purposes of modifying visitation is different from a determination of jurisdiction for a change of general custody. On remand, the trial court disagreed with that analysis. Nevertheless, when an inconvenient-forum issue is raised the various factors which can be considered by the trial court may vary in relevance depending upon whether change of custody or modification of visitation rights is at issue. However, our reading of the opinion of the trial court, delivered from the bench, as well as the formal order of the trial court, leaves no doubt that the trial court concluded that Iowa is the more convenient forum regardless of whether change of custody or modification of visitation rights is at issue.