This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Darrell Allen Castilio, petitioner,
Cathy Ann Bethke, f/k/a Cathy
Ann Castilio and Cathy Ann Goldsmith,
Rice County District Court
File No. F7-99-1755
David L. Ludescher, Grundhoefer, Neuville & Ludescher, P.A., 515 South Water Street, PO Box 7, Northfield, MN 55057 (for respondent)
Thomas W. Tuft, Valerie A. Downing, Thomas Tuft Law Offices, 1417 Arcade Street, St. Paul, MN 55106 (for appellant)
Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Parker, Judge.*
Appellant, a Minnesota resident, contends that the district court erred when it denied her motion to modify a North Carolina child-custody order. The district court ruled that it lacks jurisdiction and that, even if it has jurisdiction, North Carolina is a more appropriate forum to resolve this custody dispute. Because it is premature to address the jurisdictional issue in this forum, we vacate the district court’s order.
This appeal involves the dismissal of a motion to modify child custody filed by appellant Cathy Bethke in a Minnesota district court. Bethke has resided in Minnesota since the fall of 1996. Her former husband, respondent Darrell Castilio, has physical custody of the parties’ minor child, L.A.C. Castilio serves in the United States Air Force, and since January 1998, he has been stationed at a United States Air Force base in Turkey. L.A.C. lives with Castilio in Turkey.
The parties were married in North Carolina and resided there when L.A.C. was born. Their marriage was dissolved in 1996 by a decree of the Wayne County, North Carolina, district court. The North Carolina decree granted Castilio custody of L.A.C. and established a visitation schedule for Bethke. Because Bethke was planning to move to Minnesota, the visitation schedule called for eight consecutive weeks in the summer and one week at Thanksgiving or Christmas.
Despite the existence of the visitation schedule, in the two and one-half years that L.A.C. and Castilio have resided in Turkey, Bethke has had very minimal visitation with her daughter. Bethke contends that Castilio has not cooperated in scheduling visitations and has refused to contribute to the travel costs. Castilio contends that Bethke has failed to make the travel arrangements as required by the existing custody order.
Most recently, arrangements were made for L.A.C. to travel to Minnesota in November 1999 for a one-week visitation while Castilio was on leave and was in the United States. According to Bethke, Castilio refused to tell her where he was staying while on leave or how he could be contacted, but they agreed that L.A.C. would fly to Minnesota from North Carolina on November 15, 1999. After L.A.C. boarded the plane, Castilio was personally served with motion papers that had been filed by Bethke in district court in Rice County, Minnesota. Castilio had L.A.C. removed from the plane. He then filed an emergency ex parte motion in Wayne County district court seeking to suspend visitation, pending resolution of the custody dispute. Castilio’s motion was granted and a hearing was set for November 29, 1999.
When L.A.C. did not arrive in Minnesota, Bethke filed an ex parte motion in Rice County district court seeking an immediate temporary modification of custody. This motion was denied and the matter was continued to a previously scheduled hearing set for December 10, 1999. At that hearing, Castilio, through his attorney, challenged the Minnesota district court’s jurisdiction and contended that the dispute was properly before the district court in North Carolina. The district court took the matter under advisement.
At some point prior to issuing its order, the Minnesota district court spoke with the district court in North Carolina. The North Carolina court indicated that it believed jurisdiction was proper in North Carolina and that it was willing to exercise that jurisdiction to resolve this dispute. On March 10, 2000, the Minnesota district court denied Bethke’s modification motion. An amended order and memorandum was filed on March 16, 2000. The district court explained that it believes it lacks jurisdiction, and that even if it has jurisdiction, the dispute is most appropriately resolved in North Carolina.
D E C I S I O N
The issues before us involve the jurisdiction of the courts of Minnesota and North Carolina to resolve this child-custody dispute. Jurisdictional issues are questions of law, which we review de novo. McLain v. McLain, 569 N.W.2d 219, 222 (Minn. App. 1997), review denied (Minn. Nov. 18, 1997). Therefore, this court need not defer to the district court’s conclusion that it lacked jurisdiction.
Under Minnesota’s version of the Uniform Child Custody Jurisdiction Act (UCCJA):
If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with sections 518A.01 to 518A.25 or has declined to assume jurisdiction to modify the decree and (2) the court of this state has jurisdiction.
Minn. Stat. § 518A.14, subd. 1 (1998) (emphasis added). Thus, a Minnesota court cannot modify a North Carolina custody decree unless North Carolina lacks or refuses to exercise jurisdiction and Minnesota has jurisdiction. Smith v. Smith, 508 N.W.2d 222, 225 (Minn. App. 1993).
Here, the Minnesota district court concluded that the North Carolina court has jurisdiction based, in part, on a conversation it had with the North Carolina court in which the North Carolina court indicated that it believes it has jurisdiction and is willing to exercise that jurisdiction. The Minnesota district court also concluded that North Carolina’s version of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) vests the North Carolina court with jurisdiction. On this record, we hold that this decision was premature.
The North Carolina district court, in its order granting Castilio’s ex parte motion and setting the November 29 hearing, states that it has jurisdiction. That ex parte order does not, however, formally apply North Carolina’s version of the UCCJEA, and papers submitted by Castilio in the Minnesota proceeding states that the November 29 hearing would address “continuing jurisdiction and custody.” (Emphasis added.) Thus, apparently, even Castilio regarded the ruling in the ex parte order as less than a final jurisdictional determination. The November 29 hearing was continued to January 2000, and the result of that hearing is unclear. The record currently before this court lacks a copy of the North Carolina court’s ruling addressing jurisdiction. Also, an unsigned and uninitialed document in the Minnesota district court file, appearing to be a March 2000 memorandum of the Minnesota district court, states that “[t]he facts in this case may be more completely laid out in [the North Carolina district court’s] order addressing the Uniform Child Custody Jurisdiction and Enforcement Act.” (Emphasis added.) Thus, it appears that the jurisdiction question was pending in the North Carolina district court when the Minnesota district court issued its decision. We believe it unwise for a Minnesota court to issue what is functionally an advisory opinion regarding a sister state’s jurisdiction when that issue is currently being litigated in the sister state. Moreover, any jurisdictional determination by the North Carolina district court would be subject to appeal by Bethke in North Carolina.
The United States Constitution requires that Minnesota courts give full faith and credit to the final orders of the courts of other states. See United Bank of Skyline, N.A. v. Fales, 405 N.W.2d 416, 417 (Minn. 1987).
[T]he United States Supreme Court held that “a judgment is entitled to full faith and credit—even as to questions of jurisdiction—when the second court’s inquiry discloses that those questions [of jurisdiction] have been fully and fairly litigated and finally decided in the court which rendered the original judgement.”
Id. (quoting Durfee v. Duke, 375 U.S. 106, 111, 84 S. Ct. 242, 245 (1963)). Because we must give full faith and credit to a “fully and fairly” decided jurisdictional issue resolved in a sister state, and because the record here does not reveal whether the North Carolina courts have “fully and fairly” decided the issue of their own jurisdiction, it is premature for a Minnesota court to make a determination regarding North Carolina’s jurisdiction or to assess its own ability to modify the North Carolina custody order where that determination depends, in part, on North Carolina’s jurisdiction.
We trust that any jurisdictional ruling by the North Carolina court was, or will be, the result of a full and fair decisional process, including careful review of the facts and law as well as Bethke’s opportunity to fully and fairly litigate the issue of jurisdiction, if she so desires. But, until there is evidence of how the issue is or was resolved in North Carolina, we will not address or otherwise interfere with that state’s own interpretation of its jurisdiction. A modification of the current custody arrangement may ultimately be warranted, but our statute does not permit a Minnesota court to exercise any jurisdiction it may have unless it appears that North Carolina no longer has jurisdiction. This record does not reveal the status of Castilio’s North Carolina modification motion or the associated jurisdictional litigation. Therefore, a decision by the Minnesota district court suggesting that North Carolina has jurisdiction is premature. Likewise, a conclusion that a Minnesota court cannot modify the North Carolina custody order is also premature. At a minimum, a Minnesota court may be able to modify the North Carolina custody order if North Carolina ultimately concludes that it does not have jurisdiction or ultimately refuses to exercise its jurisdiction. See Minn. Stat. § 518A.03, subd. 1(d)(1) (1998).
Because of our resolution of the jurisdictional issues, we need not address other issues raised by the parties.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.