2019 UT App 201
THE UTAH COURT OF APPEALS
CAIRO BRADSHAW,
Appellant,
v.
CHRISTOPHER PELLEY-WHELAN,
Appellee.
Opinion
No. 20181003-CA
Filed December 12, 2019
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 174906242
Theodore R. Weckel, Attorney for Appellant
Jennifer L. Falk, Cassie J. Medura, Jarrod H. Jennings,
and Adrienne Nash Wiseman, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
MORTENSEN, Judge:
¶1 “Facts are stubborn things.” 1 In this appeal, Cairo
Bradshaw asks us to reverse the district court’s legal conclusion
1. Many attribute this quote to John Adams, see Quote Details:
John Adams: Facts are stubborn things, http://www.quotationspage.
com/quote/3235.html [https://perma.cc/TF5W-FLJH]. However
The Yale Book of Quotations credits this saying to Bernard
Mandeville. The Yale Book of Quotations 612 (Fred R. Shapiro Ed.,
Yale Univ. Press 2006) (discussing Bernard Mandeville, An
(continued…)
Bradshaw v. Pelley-Whelan
that it lacked subject matter jurisdiction to make an initial
custody determination concerning her minor child (Child) under
the Utah Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA). The crux of Bradshaw’s argument is that the
district court erroneously determined that Child’s home state is
California. Specifically, Bradshaw argues that the court’s error
lies in its conclusion that Child was only temporarily absent
from California during the relevant six-month period leading up
to when Bradshaw filed her parentage petition in Utah.
However, Bradshaw assumes facts that were not adopted by the
district court. And what’s more, Bradshaw does not challenge
the court’s actual findings of fact. Accordingly, Bradshaw falls
short of showing that the district court’s legal conclusion
concerning subject matter jurisdiction was erroneous as a matter
of law. Therefore, we affirm.
BACKGROUND
¶2 Bradshaw and Christopher Pelley-Whelan are the parents
of Child, who was born in California on July 2, 2016. On October
10, 2017, Bradshaw filed a parentage petition in Utah requesting
that the court make an initial custody determination of Child.
Pelley-Whelan filed a motion to dismiss Bradshaw’s petition for
lack of subject matter jurisdiction under the UCCJEA on the
ground that Child’s home state was California, not Utah. 2
(…continued)
Enquiry into the Origin of Honor, and the Usefulness of Christianity
in War (1732)).
2. Pelley-Whelan filed a parentage petition in California after
Bradshaw filed her petition in Utah. Because we conclude that
Child’s home state is California, and that California therefore has
jurisdiction under the UCCJEA, the California case is relevant to
(continued…)
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Bradshaw v. Pelley-Whelan
¶3 On March 13, 2018, after reviewing the pleadings and
conducting a hearing, a commissioner deemed Child’s home
state to be California and recommended that the Utah court
dismiss Bradshaw’s petition for lack of jurisdiction. Bradshaw
objected to the commissioner’s recommendation as authorized
by rule 108(a) of the Utah Rules of Civil Procedure.
¶4 After the commissioner recommended that the district
court deny her parentage petition, Bradshaw, in a separate case,
filed a petition for a protective order against Pelley-Whelan,
alleging two incidents of abuse which had taken place several
months earlier in Massachusetts and two weeks earlier in
California. On June 13, 2018, a commissioner recommended that
Bradshaw’s petition for a protective order be denied. Bradshaw
objected to the recommendation and requested that the
objections to the parentage petition and the protective order be
consolidated.
¶5 On June 20, 2018, the parties presented oral argument on
jurisdiction and the protective order. Bradshaw primarily argued
the district court should exercise jurisdiction under the UCCJEA
because Utah, not California, was Child’s home state. In the
alternative, Bradshaw argued that Child had no home state.
Finally, she argued the court should exercise emergency
jurisdiction under the UCCJEA because the allegations of abuse
in the protective order illustrated a risk of danger for Child.
Pelley-Whelan argued that Child’s home state was California
because Child was born in California and had lived there ever
since. The court set an evidentiary hearing to determine Child’s
home state for the six-month period leading up to the time
Bradshaw filed her parentage petition in Utah—April 9 through
October 9, 2017.
(…continued)
our review to note only that the California court did not decline
jurisdiction.
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¶6 At the evidentiary hearing, Bradshaw offered the
following evidence in support of her petition: (1) documents
showing that Bradshaw purchased a home in Utah in January
2016, and paid $1,000 in expenses to move personal possessions
from Pelley-Whelan and Bradshaw’s home in Huntington Beach,
California; (2) tax documents showing that Bradshaw filed state
income tax returns in Utah for the years 2016 and 2017;
(3) credentials showing that Bradshaw maintained a Utah driver
license and voter registration certificate; (4) a table showing
Bradshaw’s credit card transactions in Utah; (5) a table showing
Bradshaw’s flights to Utah; and (6) pictures showing Child and
Child’s belongings in Utah or at Bradshaw’s Utah house.
¶7 Pelley-Whelan offered rebuttal evidence in support of his
position that Child’s home state for the relevant period was
California. Specifically, Pelley-Whelan offered evidence that
(1) Child was born in California and remained there for at least
six to eight weeks; (2) Child’s doctor is in California; (3) Child
was enrolled in ballet class in California; (4) although Bradshaw
had purchased a home in Utah, she continued to own and live in
the Huntington Beach, California home, which Pelley-Whelan
had spent $90,000 renovating in anticipation of Child’s birth;
(5) Bradshaw and Pelley-Whelan jointly owned a second
property in Big Bear, California; (6) Bradshaw’s phone records
indicate that she was in Utah for only fifty-five days during the
entire 2017 year; and (7) the majority of Child’s belongings
remained in California.
¶8 Bradshaw also raised the protective order at the
evidentiary hearing, but only to point out that it was “relevant in
terms of whether Utah should invoke jurisdiction” over the
custody dispute. While the court did allow some testimony on
the protective order—such as the location of the alleged
instances of abuse—it limited many questions and indeed barred
one of Bradshaw’s witnesses from discussing specific details of
the alleged abuse that occurred in Massachusetts. At the close of
the evidentiary hearing, the district court asked the parties to
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submit additional briefing on both the jurisdictional issue and
the protective order.
¶9 The district court entered a written order denying
Bradshaw’s objections on November 15, 2018. Therein, the court
made the following findings: (1) in light of the fact that
Bradshaw maintained two homes in California, and the fact that
she purchased a home in Utah and spent $1,000 to move
personal possessions from California to Utah, did not indicate
that she intended to, or did, relocate to Utah; (2) although
Bradshaw offered evidence that she periodically worked from
her Utah home, that evidence was incomplete as to when or how
often she actually did; (3) competing evidence demonstrated that
the majority of Child’s belongings are in California; (4) evidence
that Pelley-Whelan spent $90,000 to remodel the Huntington
Beach house in anticipation of Child and Bradshaw residing in
California was credible; (5) Bradshaw’s tax return evidence did
not demonstrate that she had relocated to Utah because although
Bradshaw filed Utah income tax returns for the years 2016 and
2017, both of those returns were prepared by a California
accountant, the 2016 return showed that Bradshaw received a
credit because she claimed to be a resident of another state, and
Bradshaw used her California driver license when she filed the
2017 return; (6) Bradshaw’s Utah driver license and voter
registration credentials were issued after October 9, 2017, and
therefore did not show that Bradshaw had relocated to Utah
during the relevant time period; (7) Bradshaw redacted and/or
omitted large sections of her flight history and credit card
information, and therefore this evidence was not credible to
show that Bradshaw had relocated to Utah; and (8) Pelley-
Whelan’s phone record analysis was credible and showed that
Bradshaw was in Utah for only fifty-five days in all of 2017, and
thus was not in Utah for the majority of the relevant six-month
period.
¶10 The district court found that “[Bradshaw] has presented
insufficient evidence to establish that either California is no
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longer [Child’s] home state or that Utah is now [Child’s] home
state.” Citing Garba v. Ndiaye, 132 A.3d 908 (Md. Ct. Spec. App.
2016), the court also concluded that Child was only ever
temporarily absent from California and that California was
therefore Child’s home state for the relevant six-month period.
Thus, the court concluded that it lacked jurisdiction under the
UCCJEA and dismissed Bradshaw’s parentage petition. The
court also denied Bradshaw’s petition for a protective order,
stating that “the evidence does not support the entry of a
protective order.”
¶11 Bradshaw appeals. 3
ISSUE AND STANDARD OF REVIEW
¶12 Bradshaw contends that the district court erred in
concluding that Child’s home state was California and in turn
concluding that it lacked subject matter jurisdiction under the
UCCJEA. “Both jurisdictional questions and questions of
statutory interpretation are questions of law that we review for
correctness,” Meyeres v. Meyeres, 2008 UT App 364, ¶ 3, 196 P.3d
604 (cleaned up), “though we will review the [district] court’s
underlying findings of fact using the clearly erroneous
standard,” In re W.A., 2002 UT 127, ¶ 8, 63 P.3d 607 (cleaned
up). 4
3. Bradshaw does not appeal the denial of her petition for a
protective order.
4. Bradshaw also argues that the court erred in declining to
exercise emergency jurisdiction under the UCCJEA. The
UCCJEA states, “A court of this state has temporary emergency
jurisdiction if the child is present in this state and . . . it is
necessary in an emergency to protect the child because . . . [a]
(continued…)
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ANALYSIS
¶13 Bradshaw challenges the district court’s conclusion that
Child’s home state is California and that any time Child spent
outside of California was only a “temporary absence.” The
UCCJEA provides: “Except as otherwise provided in Section
78B-13-204, a court of this state has jurisdiction to make an initial
child custody determination only if: (a) this state is the home
state of the child on the date of the commencement of the
proceeding . . . .” Utah Code Ann. § 78B-13-201(1) (LexisNexis
2018). The UCCJEA defines “home state” as
the state in which a child lived with a parent or a
person acting as a parent for at least six
consecutive months immediately before the
commencement of a child custody proceeding. In
the case of a child less than six months of age, the
(…continued)
parent of the child, is subjected to or threatened with
mistreatment or abuse.” Utah Code Ann. § 78B-13-204(1)
(LexisNexis 2018). Under the plain language of the statute, Child
must have been present in Utah for emergency jurisdiction to
obtain. Id. But Bradshaw did not demonstrate that Child was in
Utah when the petition was filed or that there was an emergency
requiring invocation of the court’s jurisdiction to protect Child.
Therefore, a Utah court could not exercise emergency
jurisdiction.
Bradshaw also argues that Pelley-Whelan consented to
the court exercising personal jurisdiction over him by using the
district court’s subpoena power during the proceedings. But
even if this were true, Bradshaw has not demonstrated that the
district court had subject matter jurisdiction under the UCCJEA
to make an initial custody determination. Accordingly, we
decline to address this argument further.
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Bradshaw v. Pelley-Whelan
term means the state in which the child lived from
birth with any of the persons mentioned. A period
of temporary absence of any of the mentioned
persons is part of the period.
Id. § 78B-13-102(7).
¶14 Here, the district court correctly concluded that Child’s
home state is California under the UCCJEA. First, the court
correctly found—and Bradshaw does not challenge—that
“[Child’s] home state was California for the two months
following her birth.” See Nevares v. Adoptive Couple, 2016 UT 39,
¶ 16, 384 P.3d 213 (explaining that Utah was arguably the child’s
home state for the first eight days of his life under the UCCJEA
when he was born in Utah and remained for eight days before
moving out of state). Although this conclusion is not
determinative of the issue before us, it is helpful to give context
in this case.
¶15 Second, the court made a factual finding that “[Bradshaw]
has presented insufficient evidence to establish that either
California is no longer [Child’s] home state or that Utah is now
[Child’s] home state.” In fact, the majority of the district court’s
written order is dedicated to explaining why it found
Bradshaw’s evidence to be unpersuasive, incomplete, irrelevant,
or lacking credibility. See supra ¶ 9. Accordingly, the court
adopted findings of fact consistent with Pelley-Whelan’s
evidence that Child lived in California for six consecutive
months leading up to the time Bradshaw filed her parentage
petition in Utah. Although Bradshaw dedicates the majority of
her brief to reciting the evidence and making arguments
criticizing how the court weighed the evidence in this case, 5 she
5. For example, Bradshaw argues, “In focusing primarily on the
evidence regarding the amount of time that [Bradshaw] could
prove that she was living in Utah, the Court failed to weigh the
(continued…)
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Bradshaw v. Pelley-Whelan
adamantly maintains that she is not challenging the court’s
factual findings. 6
¶16 Third, the court correctly determined that any time Child
allegedly spent away from California during the relevant six-
month period was only a temporary absence. See Utah Code
Ann. § 78B-13-102(7) (stating that temporary absences are
credited toward the consecutive six-month period required for a
home state determination). The court first made two crucial
factual findings—which Bradshaw does not challenge—
(1) “[Bradshaw] spent only 55 days in Utah in 2017” and thus
she “spent the majority of her time during the relevant period in
California,” and (2) “[Bradshaw’s] decision to purchase a home
in Utah does not establish [her] intent to relocate [from
California to Utah].”
¶17 Citing Garba v. Ndiaye, 132 A.3d 908 (Md. Ct. Spec. App.
2016), the district court next applied a totality of the
circumstances approach to determine that any time that Child
(…continued)
fact that [Bradshaw] testified that she didn’t use her credit card
every day that she was in Utah.” She also argues, “The Court
failed to consider and weigh the testimony of [Bradshaw’s] two
corroborating witnesses . . . who testified that they saw
[Bradshaw] in Utah for much larger periods of time than
[Bradshaw’s] personal phone records and [Bradshaw’s] bank
account statements showed.”
6. Bradshaw confirmed at oral argument that she is not
challenging any factual findings. Where Bradshaw has expressly
declined to challenge the court’s factual findings, and where
these unchallenged findings could lead only to a conclusion that
Child’s home state never ceased to be California, we are hard-
pressed to see how a conclusion that Child’s home state is
anyplace but California could follow.
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Bradshaw v. Pelley-Whelan
was allegedly away from California counted only as a temporary
absence. Id. at 914 (adopting and applying a totality of the
circumstances test, which is “an analysis that encompasses these
considerations: the duration of the absence and whether the
parties intended the absence to be permanent or temporary, as
well as additional circumstances that may be presented in the
multiplicity of factual settings in which child custody
jurisdictional issues may arise” (cleaned up)). 7 In Garba, a
Maryland court concluded that when a child spent four out of
six of the relevant months in Maryland, id. at 913, and the
mother failed to evidence her intent to permanently relocate out
of Maryland, id. at 915, the child’s absences from Maryland were
only temporary, id. at 915–16.
¶18 Applying this sound approach to its factual findings—
that Bradshaw had not evidenced her intent to relocate from
California to Utah and that she and Child indeed spent the
majority of their time in California—the district court correctly
determined that any time Child spent outside of California was
only a temporary absence. Therefore, the district court properly
concluded that California was Child’s home state for purposes of
7. Utah’s version of the UCCJEA does not define temporary
absence for purposes of a home-state analysis, but at least three
different tests have been used in other jurisdictions to determine
whether absences from a home state are temporary or
permanent: “duration, intent, and totality of the circumstances.”
Garba v. Ndiaye, 132 A.3d 908, 914 (Md. Ct. Spec. App. 2016); see
also Andrea Charlow, There’s No Place Like Home: Temporary
Absences in the UCCJEA Home State, 28 J. Am. Acad. Matrim.
Law. 25, 30–37 (2015) (summarizing the “duration,” “intent,”
and “totality of the circumstances” tests). We conclude not only
that the totality of the circumstances test was appropriate in this
case, but that it was properly applied by the district court.
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Bradshaw v. Pelley-Whelan
the UCCJEA. As a result, the court lacked subject matter
jurisdiction and properly dismissed the parentage petition.
CONCLUSION
¶19 Bradshaw does not challenge the district court’s findings
flowing from these stubborn facts. Bradshaw failed to present
evidence sufficient to demonstrate that California ceased to be
Child’s home State. And she has failed to demonstrate that the
court’s ultimate conclusion—that it lacked jurisdiction under the
UCCJEA—was in error. Therefore, we affirm.
20181003-CA 11 2019 UT App 201