In re Marriage of Evans

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NOT DESIGNATED FOR PUBLICATION

No. 120,131

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATTER OF THE MARRIAGE OF
JENNA ANN EVANS,
Appellant,

and

GREGORY GARRETT EVANS,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; CHRISTINA DUNN GYLLENBORG, judge. Opinion filed
August 9, 2019. Affirmed.

Joseph W. Booth, of Law Office of Joseph W. Booth, of Lenexa, and Melissa Kelly Schroeder, of
The Kelly Law Firm, L.L.C., of Lenexa, for appellant.

Gregory Garrett Evans, appellee pro se.

Before BRUNS, P.J., MALONE, J., and STEVEN E. JOHNSON, District Judge, assigned.

PER CURIAM: Jenna Ann Evans appeals the district court's dismissal of her Kansas
divorce action based on its ruling that Hawaii, not Kansas, had jurisdiction as her
children's "home state" under the Uniform Child-Custody Jurisdiction and Enforcement
Act (UCCJEA). Jenna asserts that the Kansas district court erred in finding that Hawaii
was the home state. But by the time the Kansas district court dismissed Jenna's case, the
Hawaii district court had entered an initial child-custody order in the divorce action
pending in that state, it had held that it had jurisdiction as the children's "home state," and
it had ruled that it would not decline to exercise that jurisdiction. Under these
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circumstances, the Kansas district court had no choice but to dismiss Jenna's Kansas
divorce petition. Thus, we affirm the district court's judgment.

Jenna and Gregory Garrett Evans were married on April 22, 2012. There are two
minor children of the marriage. The children were born in Hawaii and the family of four
lived there until September 30, 2017, when Jenna and the children came to Kansas. The
parties disagree about whether Jenna intended to move to Kansas permanently or whether
she intended a more temporary stay. In any event, Jenna and the children went back to
Hawaii on March 6, 2018, but on April 24, 2018, they returned to Kansas.

On May 1, 2018, Gregory filed a divorce action in Hawaii and sought custody of
the children. On May 10, 2018, the Hawaii district court granted temporary relief to
Gregory and ordered the children returned to Hawaii. On May 24, 2018, the children
returned to Hawaii and Jenna filed her divorce action in Kansas on that same day.

On July 16, 2018, the Kansas district court and the Hawaii district court held a
joint telephonic hearing over which state had jurisdiction under the UCCJEA. Jenna and
Gregory were each represented at the hearing by Kansas counsel and Hawaii counsel.

The hearing began with the Hawaii attorneys presenting argument to the Hawaii
court. Gregory argued that Hawaii was the home state and that the children's time in
Kansas from September 2017 to March 2018 was a "temporary absence" from Hawaii.
Jenna argued that Kansas was the children's home state and their return to Hawaii from
March 2018 to April 2018 was a temporary absence from Kansas. After hearing
argument, the Hawaii district court agreed with Gregory and ruled: "I will not decline to
exercise jurisdiction. I will make the determination that Hawaii has initial child custody
determination [sic] as well as Maui, Hawaii was the home state of the children prior to
six months of [sic] the filing of the complaint here."
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At that point, the Kansas district court allowed Kansas counsel to "mak[e] their
record" in Kansas. The district court did not prevent either party from presenting
evidence, but counsel only made oral argument. Like their counterparts in Hawaii,
Gregory's counsel argued that Hawaii was the home state and Jenna's counsel argued that
Kansas was the home state, based on their differing characterizations of the time spent by
the children in both states. The Kansas district court ruled from the bench that it "did not
find Kansas to be the home state." Instead, the court found that "Kansas is without
jurisdiction," so it "[d]ismiss[ed] the Kansas case and releas[ed] to the State of Hawaii
based on [the Hawaii district court's] findings."

On August 21, 2018, the Kansas district court filed its written journal entry, which
stated in part:

"5. Based on evidence and arguments, both Hawaiian and Kansas Courts find
that Hawaii is the minor children's home state under the UCCJEA.
"6. The Court finds Mother and the minor children were present in Kansas from
September 30, 2017 until March 6, 2018. Children were born and raised in Hawaii until
September 30, 2017, then Mother and the minor children returned to Hawaii March 6,
2018 until April 24, 2018. Father filed his divorce action in Hawaii on May 1, 2018.
Based on these findings the court finds that the children's home state as defined in K.S.A.
[] 23-37,101(8) is Hawaii, and therefore Initial Child-Custody Jurisdiction pursuant to
K.S.A. [] 23-37,201(a)(1) rests with Hawaii.
"[7]. Any prior orders issued by this state are now terminated and until a court of
competent jurisdiction determines otherwise, Hawaii holds child-custody jurisdiction.
"[8]. The Kansas divorce action is dismissed and the Hawaiian action shall
proceed."

Jenna timely appealed the district court's judgment. We pause to resolve the
parties' disagreement over whether our analysis should be guided by the Kansas district
court's oral ruling or its later written journal entry. "[A] district court's journal entry of
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judgment in a civil case controls over its prior oral statements from the bench." Uhlmann
v. Richardson, 48 Kan. App. 2d 1, 10, 287 P.3d 287 (2012).

On appeal, Jenna argues: (1) The Kansas district court erred in finding that
Hawaii had home state jurisdiction, and (2) the Kansas district court used the wrong test
to determine whether the time Jenna and the children were in Hawaii during March and
April 2018 was a temporary absence from Kansas. Gregory argues that the district court
correctly determined that Kansas did not have home state jurisdiction.

The court's determination of a child's home state under the UCCJEA implicates
subject matter jurisdiction. Subject matter jurisdiction raises of question of law subject to
unlimited review. In re A.A.-F., 310 Kan. ___, ___ P.3d ___, No. 117,368, 2019 WL
3047665, at *7 (Kan. 2019).

Kansas and Hawaii both have adopted the UCCJEA. See In re A.A., 51 Kan. App.
2d 794, 804, 354 P.3d 1205 (2015) (noting that all states except Massachusetts have
adopted the UCCJEA). "The UCCJEA seeks to avoid jurisdictional competition between
the courts of different states over child-custody matters. It does so through rules that
generally make sure that only one state at a time has jurisdiction (authority) over child-
custody matters in any particular family." 51 Kan. App. 2d at 804.

Generally, under the UCCJEA, only a court in the child's "home state" has
jurisdiction to issue an initial "child-custody determination," such as the Hawaii court's
order returning custody to Gregory. See K.S.A. 2018 Supp. 23-37,102(4) (defining
"child-custody determination"); K.S.A. 2018 Supp. 23-37,201(a)(1) (explaining which
court has "jurisdiction to make an initial child-custody determination"). "'Home state'
means 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
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proceeding. . . . A period of temporary absence of any of the mentioned persons is part of
the period." K.S.A. 2018 Supp. 23-37,102(8).

As discussed above, by the time Jenna filed her divorce action in Kansas, the
Hawaii district court had issued at least one child-custody order. The UCCJEA states that
except in matters implicating temporary emergency action not at issue here,

"a court of this [S]tate which has made a child-custody determination consistent with [the
requirements for initial child-custody jurisdiction] has exclusive, continuing jurisdiction
over the determination until:
"(1) A court of this [S]tate determines that the child, the child's parents, and any
person acting as a parent do not have a significant connection with this [S]tate and that
substantial evidence is no longer available in this [S]tate concerning the child's care,
protection, training, and personal relationships." K.S.A. 2018 Supp. 23-37,202(a)(1);
Haw. Rev. Stat. § 583A-202(a)(1).

Our Supreme Court has ruled that this provision of the UCCJEA allows only the
court that issued the initial child-custody order to determine whether it has continuing
jurisdiction. See In re Adoption of H.C.H., 297 Kan. 819, 835-36, 304 P.3d 1271 (2013).
In so ruling, the Kansas Supreme Court cited a comment to the UCCJEA that explained:
"'The use of the phrase "a court of this state" under subsection [(a)(1)] makes it clear that
the original decree state is the sole determinant of whether jurisdiction continues.'" 297
Kan. at 836. In other words, "once an initial custody determination has been made, the
state that made it generally retains exclusive jurisdiction over later custody issues until an
event listed in the UCCJEA . . . occurs." In re A.A., 51 Kan. App. 2d at 804.

Our Supreme Court most recently addressed a "home state" issue under the
UCCJEA in In re A.A.-F. We need not discuss that case in detail because it is
distinguishable from our case and the court's decision in In re A.A.-F. rests largely on
principles of comity. See 2019 WL 3047665, at *9-12. But the court in In re A.A.-F.
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again observed that under the UCCJEA: "Once a home state exercises jurisdiction over a
child-custody proceeding, it generally has 'exclusive, continuing jurisdiction' until a court
makes findings that fall within a UCCJEA provision recognizing certain circumstances
under which a different court may exercise jurisdiction." 2019 WL 3047665, at *8.

Here, when the Hawaii district court issued the initial child-custody determination
and ordered the children returned to Hawaii, it established exclusive continuing
jurisdiction over the child-custody proceedings, and it is the only court that can determine
whether that jurisdiction continues. During the joint telephonic hearing, the Hawaii
district court found that it had jurisdiction over the proceedings and it did not wish to
relinquish that jurisdiction. At that point, given the Hawaii district court's assertion of
exclusive jurisdiction, the UCCJEA required that the Kansas district court dismiss Jenna's
Kansas proceedings for lack of jurisdiction.

During the joint telephonic hearing, Jenna's Hawaii counsel argued that the Hawaii
district court lacked jurisdiction to issue the initial child-custody order. The Hawaii
district court rejected that argument. If Jenna wishes to contest the Hawaii district court's
exercise of initial, continuing, or exclusive jurisdiction, Hawaii is the proper forum, not
Kansas. "We have no jurisdiction to review an order from a district court of another
state," even when it affects whether Kansas has jurisdiction under the UCCJEA. See
Bradfield v. Urias, No. 116,843, 2018 WL 560406, at *5-6 (Kan. App. 2018)
(unpublished opinion) (holding that it lacked jurisdiction to review Nebraska order made
under the UCCJEA). For all these reasons, the Kansas district court did not err in
dismissing Jenna's divorce petition.

Affirmed.