This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
re the Marriage of:
in part and reversed in part
Cupp, 9630 Main Street, Elko, MN 55020 (pro se respondent)
Richard J. Kruger,
Carlson & Soldo, 1052
Centerville Circle, Vadnais Heights,
MN 55127 (for appellant)
Considered and decided by Klaphake, Presiding
Judge, and Crippen,
P U B L I S H E D O P I N I O N
multi-state custody dispute, appellant Geno Chadwick Cupp, who is a resident of
the State of Ohio, appears for the limited purpose of challenging the
jurisdiction of Minnesota courts to make an initial custody determination under
the Uniform Child Custody Jurisdiction and Enforcement Act, Minn. Stat.
§§ 518D.101-.317 (2004) (UCCJEA).
Appellant also questions whether Minnesota
courts have personal jurisdiction over him with respect to the parties’
the district court did not err in determining that the child lived in Minnesota for six
consecutive months prior to the date that respondent Anna Jobeth
Cupp filed her motion for custody
of the child, we conclude that the district court properly exercised subject
matter jurisdiction under UCCJEA. But
because insufficient contacts exist between appellant and the State of Minnesota, the district
court lacked personal jurisdiction over him with respect to other issues
involved in the parties’ dissolution. We
therefore affirm in part and reverse in part.
D E C I S I O N
argues that this case should be dismissed because Minnesota courts lack subject matter
jurisdiction under UCCJEA. Issues
involving subject matter jurisdiction are legal questions that are reviewed de
novo by this court. Johnson v. Murray,
648 N.W.2d 664, 670 (Minn.
UCCJEA, a Minnesota
court has jurisdiction to make an initial child custody determination only if
certain factual circumstances are met. Minn. Stat.
§ 518D.201(a). One of those
circumstances is that Minnesota is the “home state” of the child on the date of
commencement of the proceeding, or was the home state of the child within six
months before commencement of the proceeding and the child is absent from
Minnesota, but a parent or person acting as a parent continues to live in
Minnesota. Minn. Stat. § 518D.201(a)(1). “Home state” is defined as the state in which
the child lived with a parent or person acting as a parent for at least six
consecutive months immediately before the commencement of a child custody
proceeding; a period of temporary absence from the state does not affect
determination of the home state. Minn. Stat.
proceeding was “commenced” on November 15, 2004, when respondent filed the
summons and petition for dissolution in Minnesota
district court. See Minn. Stat. § 518D.102(e) (defining “child custody proceeding”
as proceeding in which physical custody of child is an issue and includes
proceeding for divorce), (f) (defining “commencement” as “the filing of the
first pleading in a proceeding”).
Appellant was given actual notice of these proceedings when he was
personally served on November 24, 2004, and he had the opportunity to be heard
at a hearing on December 21, 2004, when the district court considered his
motion to contest jurisdiction and respondent’s motion for temporary
custody. Thus, the six-month period at
issue here runs from May 15, 2004, to November 15, 2004.
15, 2004, the child was present in Minnesota
with respondent and had been in Minnesota
since sometime after February 2004, when respondent and the child left Ohio. Appellant asserts that the child, who was
born in Ohio in July 2003, lived in Ohio for the first eight months of her
life, until she was “unilaterally taken to Minnesota for four months” by
respondent. Appellant further asserts
that when respondent first left Ohio
in late February 2004, “she represented that her absence would be temporary,”
at least by the note she left for him and by letters she wrote to members of
his family and friends.
this is not a situation where one parent has abducted or improperly transferred
a child to another state; appellant was fully aware of the child’s location and
was able to visit her in July 2004, and there is no evidence that respondent
left Ohio for
a more favorable forum in which to adjudicate custody. See
Johnson, 648 N.W.2d at 672 (reversing district court’s finding that parent
engaged in wrongful conduct by taking child to Minnesota without other parent’s
permission). And while appellant is
correct in characterizing respondent’s initial move to Minnesota as temporary,
the evidence shows that once respondent arrived in Minnesota, she quickly
changed her mind about returning to Ohio:
she petitioned for an order for protection, which was denied following a
hearing on March 22, 2004; she obtained
steady employment in March 2004 as a security guard; and she moved out of her parents’ house,
first into a townhouse and then into an apartment, where she currently lives
with the child. Moreover, respondent’s
affidavits make it clear that soon after she left Ohio,
she did not intend to return and intended to make her home in Minnesota, where she was born and raised and
where her parents and other family members now live. We therefore conclude that the evidence
reasonably supports the district court’s determination that respondent and the
child moved to Minnesota
in February 2004, and that the child has lived here since that time.
further asserts that the child was only in Minnesota
for four months and that she left and returned to Ohio
in July 2004, when he and respondent agreed that the parties would share
custody of the child and that she would reside with him in Ohio for four months. Appellant further insists that the child
returned to Minnesota
only because respondent had obtained an ex parte custody order, which appellant
claims was invalidly issued.
appellant’s view of the evidence is supportable, there is contrary evidence to
support the district court’s determination that the child was merely “visiting”
appellant in Ohio
from July 2004 to November 2004.
Respondent states in her affidavit that appellant came to Minnesota to visit the
child in July 2004. Respondent further
states that she agreed to allow appellant to take the child to Ohio, and that
the “plan at that time was for [appellant] and I to take turns every few months
caring for” the child, with respondent having “custody” of her here in
Minnesota and appellant having “visitation” with the child in Ohio. Respondent’s characterization of the parties’
agreement appears accurate; while the transcription of the tape recording of
the agreement indicates that custody was to be “split fifty-fifty, four months
on and four months off,” the parties further agreed that this arrangement was
not to begin until November 1, 2004.
evidence is viewed in the light most favorable to the district court’s
findings, it can be read to establish that respondent intended to “move” with
the child to Minnesota shortly after February 2004, when she left Ohio, and
that the child’s absence from Minnesota between July and November 2004 was only
temporary, to allow her to visit appellant.
See, e.g., In re Frost, 681
N.E.2d 1030, 1035-36 (Ill.
App. 1997) (noting that courts have considered parents’ agreements and intents
regarding temporary or permanent status of child’s out-of-state absence when
determining whether child is temporarily absent from state); In re S.M., 938 S.W.2d 910, 917-18 (Mo.
App. 1997) (noting that totality of circumstances, rather than mere length of absence
or parties’ intent, determines whether absence from state is temporary). We therefore affirm the district court’s
determination that Minnesota
is the child’s “home state” for purposes of UCCJEA.
argues that Minnesota
courts do not have personal jurisdiction over him with respect to the
dissolution action. Questions involving
personal jurisdiction are issues of law reviewed by this court de novo. Wick v.
Wick, 670 N.W.2d 599, 603 (Minn.
appellant notes, courts of a state may have personal jurisdiction over a party
for custody matters but not over that same party for the dissolution, and vice
versa. See Berc v. Berc, 407 N.W.2d 131, 135 (Minn. App. 1987). Appellant concedes that Minnesota
courts have subject matter jurisdiction over the parties’ dissolution, because
respondent has resided in Minnesota
for at least 180 days prior to commencement of the action. Minn.
Stat. § 518.07 (2004). He insists, however, that the exercise of
subject matter jurisdiction over the custody issue does not give Minnesota courts
personal jurisdiction over him.
Before a Minnesota court may exercise personal jurisdiction over a
nonresident, two criteria must be satisfied:
first, the long-arm statute, Minn. Stat. § 543.19 (2004), must be
satisfied; second, “minimum contacts” must exist between the nonresident and Minnesota such that the
assertion of personal jurisdiction does not offend due process. See
Ulmer v. O’Malley, 307 N.W.2d 775, 777 (Minn. 1981). The district court here determined that it had
personal jurisdiction over appellant for purposes of the dissolution matter
because he “consented to this Court’s jurisdiction in the past by appearing at
the hearing on March 22, 2004 and not challenging jurisdiction.” Appellant also traveled to Minnesota
in July 2004 to visit the parties’ child and returned with her to Ohio.
contacts, however, are insufficient to confer personal jurisdiction over
appellant. Appellant owns no real
property in Minnesota. His appearance in March 2004 to defend against
the OFP cannot be considered a waiver or consent to jurisdiction. See,
e.g., Ferguson v. Ferguson, 411 N.W.2d 238, 240 (Minn.
App. 1987) (holding that Montana child support
obligor did not consent to jurisdiction by appearing in Minnesota court to enforce his visitation
courts may issue a judgment dissolving the marriage, they lack personal jurisdiction
over appellant to render a judgment on issues involving maintenance, property
division, or attorney fees. See Mahoney v. Mahoney, 433 N.W.2d 115,
119-20 (Minn. App. 1988) (holding that while court could assume jurisdiction
over marriage and dissolve marriage, court lacked personal jurisdiction over
husband and could not render judgment with respect to maintenance, property
division, or attorney fees as requested by wife), review denied (Minn. Feb. 10, 1989). We therefore reverse the district court’s
determination that it has personal jurisdiction over appellant.
Affirmed in part and reversed in part.