Harter v. Szykowny

Cite as 2014 Ark. App. 701

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-185

HEIDI HARTER f/k/a HEIDI Opinion Delivered DECEMBER 10, 2014
SZYKOWNY
APPELLANT APPEAL FROM THE CARROLL
COUNTY CIRCUIT COURT,
V. WESTERN DISTRICT
[NO. DR-2013-28]

DAVID J. SZYKOWNY HONORABLE GERALD K. CROW,
APPELLEE JUDGE

REVERSED AND REMANDED

DAVID M. GLOVER, Judge

Heidi Harter appeals the trial court’s October 25, 2013 dismissal of her petition for

registration and enforcement of an April 12, 2011 judgment from the State of Kansas, which

was a decree of divorce1 concerning Heidi and appellee, David Szykowny. Heidi raises three

points of appeal: 1) the trial court erred in sua sponte dismissing her petition without any

dispositive motions from David; 2) the trial court’s actions in sua sponte dismissing her

petition violated both the Full Faith and Credit Clause of the United States Constitution and

the Uniform Enforcement of Foreign Judgments Act of the State of Arkansas; and 3) the trial

court’s actions in sua sponte dismissing her petition violated the Uniform Child Custody

Jurisdiction and Enforcement Act of the State of Arkansas. We reverse the trial court’s

dismissal and remand for proceedings consistent with this opinion.

1
Denominated Journal Entry of Judgment and Decree of Divorce.
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Background

The Kansas decree granted joint custody of the parties’ two minor children to Heidi

and David, with Heidi having primary custody of the children. Paragraph 7 of the decree,

titled “Children,” provides in part: “The State of Kansas and this Court have continuing

jurisdiction over the minor children of the parties pursuant to the Uniform Child Custody

Jurisdiction Act. K.S.A. 38-1301 et seq.” (Emphasis added.) Paragraph 10. i. of the decree

provides: “Continuing Jurisdiction of the Court for Modification. The parties are advised

and understand that any provision related to legal custody, residential custody, parenting

time, child support, education and other matters related to the minor children shall be subject

to the continuing jurisdiction of this Court as provided by law.” (Emphasis added.) Paragraph

12 of the Kansas decree provides:

12. RETENTION OF CHILD CUSTODY JURISDICTION.
Recognizing this Court to have jurisdiction over child custody matters to avoid future
jurisdictional competition or conflict and to discourage continuing controversies over
child custody and avoid re-litigation of custody decisions and to build stability and
consistency for the minor children, the parties agree and this Court Orders, that until this
Court orders otherwise, the State of Kansas and this Court shall retain jurisdiction over future
proceedings involving custody and visitation. This Agreement in no way limits the right of either
parent having Primary Residential Custody of their child, to petition any Court for a change
of jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJEA).

(Emphasis added.) Paragraph 14 provides in part that “[t]he Respondent shall make child

support payments payable and send to: Kansas Payment Center, P.O. Box 758599, Topeka,

Kansas 66675-5722.” Paragraph 16 c. provides:

c. A change of the residence or the removal of a child as described in
subsection (a) may be considered a material change of circumstances which justifies
modification of prior order of legal custody, residency, child support or parenting
time. In determining any motion seeking a modification of a prior order based on

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change of residence or removal as described in (a), the court shall consider all factors
the court deems appropriate including, but not limited to: (1) The effect of the move
on the best interests of the child; (2) the effect of the move on any party having rights
granted pursuant to K.S.A. 60-1610, and amendments thereto; and (3) the increased
cost the move will impose on any party seeking to exercise rights granted under
K.S.A. 60-1610, and amendments thereto.

Heidi filed her petition to register and enforce the Kansas decree in Arkansas on May

6, 2013. In paragraph 6 of the petition, she states, “Petitioner merely seeks to file the

judgment and decree of the State of Kansas in the Circuit Court of Carroll County, Arkansas,

and have it enforced pursuant to the provisions of the Arkansas Uniform Child Custody

Jurisdiction and Enforcement Act, ACA § 9-19-101 et seq., including the provisions found

at ACA § 9-19-303.” The petition further provided that David was current on his child-

support obligation at that time and that “all future child support payments should be made

through the Arkansas Child Support Clearinghouse, P.O. Box 8124, Little Rock, Arkansas

72203.”

David responded, asserting that jurisdiction should remain with the Kansas court in

accordance with the terms of the original decree. It is undisputed that, at the time the

petition was filed, Heidi and the children had lived in Arkansas for more than one year and

David had lived in Utah for more than one year. Thus, neither of the parties or their

children had lived in Kansas for over a year.

Letters between counsel for the parties and the Arkansas trial court indicated that the

question of appropriate jurisdiction was being pursued in the Kansas court. In his letter,

David’s counsel also noted that Heidi had informed David by email that she planned to move

to Hawaii; and Heidi’s counsel, in his letter, countered that Heidi did not plan to go to

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Hawaii. By “Journal Entry of September 23, 2013,” filed October 8, 2013, the Kansas court

made the following pertinent findings: that David had previously filed a motion to modify

custody and other relief; that subsequent to the motion being filed, Heidi filed a motion for

the Kansas court to relinquish jurisdiction to the State of Arkansas; that it was not disputed

that neither the parties nor the children presently resided in Kansas; that “the parties

essentially contracted themselves out of requesting another state to seize jurisdiction of this

matter without this Court first releasing the same pursuant to their Decree of Divorce

agreement”; that, “further, the Court finds that it would not be appropriate to release

jurisdiction of this matter to Arkansas as it would be an inconvenient forum”; and that “as

such, [David’s] pending motion shall proceed to evidentiary hearing and the same shall be

considered by the court under Kansas law.”

As mentioned at the outset, the Arkansas trial court then filed its order, “on its own

motion,” recognizing that the Kansas court had denied Heidi’s motion for the Kansas court

to relinquish jurisdiction of the matter to Arkansas, and that

while recognizing its authority to exercise jurisdiction, this court in accordance
with ACA § 9-19-207(b) hereby declines to exercise its jurisdiction in the
matter sought to be registered and enforced by [Heidi] as it finds the State of
Kansas is the more appropriate forum to continue to exercise jurisdiction as the
State of Arkansas is an inconvenient forum, having considered all relevant
factors enumerated.

The Arkansas court then denied Heidi’s petition for registration and enforcement and

dismissed the action. This appeal from that order followed.

I. The trial court erred in sua sponte dismissing Heidi’s petition without any dispositive
motions from David.

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For her first point of appeal, Heidi contends that the trial court erred in dismissing her

petition without any dispositive motion from David. The cases that she relies upon,

however, involve a trial court’s grant of summary judgment. We do not find those cases

helpful under the facts of this case.

Here, the trial court declined to exercise jurisdiction and dismissed, on its own

motion, Heidi’s petition to register and enforce the Kansas judgment and decree of

divorce—it was not truly deciding a case on its merits; rather, it was exercising its discretion

in deciding to decline jurisdiction. Consequently, the summary-judgment cases in which a

court acted on its own motion can be distinguished. More importantly, Arkansas Code

Annotated section 9-19-207(a) (Repl. 2009) provides:

(a) A court of this state which has jurisdiction under this chapter to make a
child-custody determination may decline to exercise its jurisdiction at any time if it
determines that it is an inconvenient forum under the circumstances and that a court
of another state is a more appropriate forum. The issue of inconvenient forum may be
raised upon motion of a party, the court’s own motion, or request of another court.

(Emphasis added.) The issue of inconvenient forum is the only true issue decided by the trial

court in the order on appeal, and for the reasons explained, we conclude that the argument

presented under this first point cannot serve as a basis for reversal.

II. The trial court’s actions in sua sponte dismissing Heidi’s petition violate both the full
faith and credit clause of the United States Constitution and the Uniform Enforcement
of Foreign Judgments Act of the State of Arkansas.

For her second point of appeal, Heidi contends that the trial court violated both the

Full Faith and Credit Clause of the United States Constitution and the Arkansas Uniform

Enforcement of Foreign Judgments Act when it denied her petition and dismissed the matter.

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We dispose of this point and move to the meritorious third point by merely noting that the

constitutional concept of full faith and credit is incorporated into the UCCJEA (see Ark.

Code Ann. § 9-19-313 (Repl. 2009)), and, the UCCJEA is the exclusive method for

determining the proper state for jurisdictional purposes in child-custody proceedings that

involve other jurisdictions, West v. West, 364 Ark. 73, 216 S.W.3d 557 (2005) (emphasis

added).

III. The trial court’s actions in sua sponte dismissing Heidi’s petition violate the Uniform
Child Custody Jurisdiction and Enforcement Act of the State of Arkansas.

We arrive now at Heidi’s third point, which contends that the trial court violated the

provisions of the UCCJEA by dismissing her petition. We agree.

To resolve this issue, we must examine the UCCJEA in context to understand how

the statutes operate. Generally, Subchapter 1 is titled, General Provisions; Subchapter 2 is

titled, Jurisdiction; and Subchapter 3 is titled, Enforcement. Subchapter 2 primarily comes

into play when a court of this state has been asked to exercise its jurisdiction to make an

initial child-custody determination (Ark. Code Ann. § 9-19-201 (Repl. 2009)) or to modify

an existing child-custody determination (Ark. Code Ann. §§ 9-19-202, -203 (Repl. 2009)).

Here, the petition’s only request for a change was somewhat ministerial in nature, i.e.,

changing the payment clearinghouse from Kansas to Arkansas. We do not consider that to

be a child-custody modification under the Act. Consequently, Subchapter 3, Enforcement,

is the more pertinent subchapter for addressing this issue.

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Section 9-19-303(a) (Repl. 2009) provides in part:

(a) A court of this state shall recognize and enforce a child-custody
determination of a court of another state if the latter court exercised jurisdiction in
substantial conformity with this chapter or the determination was made under factual
circumstances meeting the jurisdictional standards of this chapter and the
determination has not been modified in accordance with this chapter.

(Emphasis added.) Section 9-19-305 (Repl. 2009) provides in part:

(a) A child-custody determination issued by a court of another state may be
registered in this state, with or without a simultaneous request for enforcement, by
sending to the appropriate circuit court in this state:

(1) a letter or other document requesting registration;

(2) two (2) copies, including one (1) certified copy, of the determination
sought to be registered, and a statement under penalty of perjury that to the best of
the knowledge and belief of the person seeking registration the order has not been
modified; and

(3) except as otherwise provided in § 9-19-209, the name and address of the
person seeking registration and any parent or person acting as a parent who has been
awarded custody or visitation in the child-custody determination sought to be
registered.

(b) On receipt of the documents required by subsection (a) of this section, the
registering court shall:

(1) cause the determination to be filed as a foreign judgment, together with
one (1) copy of any accompanying documents and information, regardless of their
form; and

(2) serve notice upon the persons named pursuant to subdivision (a)(3) of this
section and provide them with an opportunity to contest the registration in
accordance with this section.

(Emphasis added.) The only basis upon which the foreign judgment can be contested is to

challenge its validity. See section 9-19-305(d) (Repl. 2009).

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In short, because Heidi’s Arkansas petition did not seek to change custody, but rather

merely to register and enforce the existing Kansas decree, subchapter 3 was the only portion

of the UCCJEA that was invoked by her petition as far as the Arkansas trial court was

concerned, and the Arkansas trial court should have registered the Kansas decree in Arkansas.

We therefore reverse and remand for proceedings consistent with this opinion.

Reversed and Remanded.

PITTMAN and WHITEAKER, JJ., agree.

Parker Law Firm, by: Tim S. Parker, for appellant.

Thurman & Flanagin, by: Gregory A. Thurman, for appellee.

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