This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-1877

Karen E. Jackson,

f/k/a Karen E. Meeks, petitioner,

Respondent,

vs.

James J. Meeks,

Appellant.

Filed May 26, 1998

Judgments Vacated

Mulally, Judge*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

Dakota County District Court

File No. F39614305

Richard A. Emerick, 2500 West County Road 42, Suite 190, Burnsville, MN 55337 (for respondent)

Todd R. Counters, 201 West Burnsville Parkway, Suite 130K, Burnsville, MN 55337 (for appellant)

Considered and decided by Toussaint, Presiding Judge, Foley, Judge,[*]* and Mulally, Judge.

U N P U B L I S H E D O P I N I O N

MULALLY, Judge

Appellant-father challenges the district court's judgment granting child custody and setting child support, arguing that the Minnesota courts lack jurisdiction to modify an existing Indiana custody decree and support order. We vacate the Minnesota court's award of custody and child support. We also vacate the court's judgments awarding attorney fees to respondent-mother.

FACTS

The marriage of appellant-father James J. Meeks and respondent-mother Karen E. Jackson (formerly Karen E. Meeks) was dissolved by an Indiana court in 1983. The court awarded custody of the parties' child to mother and ordered father to pay child support.

In August 1987, mother and child moved to Minnesota. By agreement of the parties, the child returned to Indiana to live with father in March 1992. The child spent the 1992-93 school year with mother in Arizona, returning to father's home in June 1993. In June 1994, the Indiana court awarded physical custody of the child to father and ordered mother to pay child support.

In April 1996, the child moved to Minnesota to live with mother. Three months later, mother served father with a petition for custody and child support (venued in Minnesota). Father then petitioned the Indiana court for continuing jurisdiction. By order dated August 14, 1996, the Indiana court held that it "continues to have jurisdiction" in the matter.

The next day, the Minnesota court determined that it was in the child's best interest to assume jurisdiction. The court also awarded attorney fees (later set at $875). Father moved the Minnesota court to reconsider, which motion the court denied. In October 1996, father petitioned the Indiana court, requesting that custody of the child be awarded to mother and that the court set his child support obligations. By order dated December 19, 1996, the Indiana court found that it had continuing jurisdiction, awarded sole custody of the child to mother, and set child support at $85 a week ($368.33 a month).

In March 1997, the Minnesota court ordered father to pay child support of $449.67 a month and to pay attorney fees (later set at $1,800). By order dated September 9, 1997, the Minnesota court reiterated its earlier child support order and granted sole physical custody of the child (age 15) to mother. Judgment was entered on September 11, 1997, and father appeals on jurisdictional grounds.

D E C I S I O N

Appellant-father argues that Minnesota courts do not have jurisdiction to modify an existing Indiana custody order. Respondent-mother contends that father can no longer challenge the Minnesota court's jurisdictional determination. The jurisdiction of courts is a question of law, which this court reviews de novo. Abu-Dalbouh v. Abu-Dalbouh, 547 N.W.2d 700, 704 (Minn. App. 1996).

I. Modification of Custody Order

By order dated August 15, 1996, the Minnesota court concluded that it was in the child's best interest for Minnesota courts to assume jurisdiction. The court made its jurisdictional determination pursuant to Minn. Stat. § 518A.03 (1996), which sets forth the conditions under which Minnesota can assume jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA). On August 25, 1996, mother served father by mail with written notice of filing of the August 15 order. Father did not appeal that order until after entry of the September 1997 judgment on the merits.[1]

An order assuming jurisdiction under the UCCJA is appealable of right. Snow v. Snow, 369 N.W.2d 581, 583 (Minn. App. 1985). Thus, the time to appeal the August 1996 order, by which the court assumed jurisdiction under the UCCJA, expired 33 days after the notice of filing was mailed. See Nazar v. Nazar, 505 N.W.2d 628, 632 (Minn. App. 1993) (time to appeal order assuming jurisdiction expires 33 days after mailing of notice of filing), review denied (Minn. Oct. 28, 1993). Because father did not timely appeal the August 1996 order, he is bound by the Minnesota court's determination of jurisdiction under the UCCJA. See id. at 632-33 (where wife did not appeal order asserting jurisdiction but later appealed default judgment on jurisdictional grounds, wife was bound by assertion of jurisdiction).

The fact that a Minnesota court has jurisdiction in a child custody matter does not mean, however, that the court should exercise its jurisdiction in all instances. Under the UCCJA, a Minnesota court with jurisdiction "shall not modify" the custody decree of another state unless (1) the other state's court no longer has "jurisdiction under jurisdiction prerequisites substantially in accordance with" Minnesota's version of the UCCJA or (2) the other court has "declined to assume jurisdiction to modify" that decree. Minn. Stat. § 518A.14, subd. 1 (1996). The same is true under the federal Parental Kidnapping Prevention Act, which permits a court with jurisdiction to modify a child custody decree only if the other state's court "no longer has" continuing jurisdiction or declines to act. 28 U.S.C. § 1738A(f) (1994).

Neither of these conditions has been met here. Prior to the Minnesota court making its September 1997 custody determination, the Indiana court, consistent with its version of the UCCJA, ruled that it had continuing jurisdiction in this matter. See Ind. Code Ann. § 31-17-3-3(a)(1) (Michie 1997) (providing that Indiana has jurisdiction to modify its child custody decree if it is state in which child lived within six months before commencement of a custody modification proceeding). Father petitioned the Indiana court for modification of custody on October 3, 1996, less than six months after the child's April 7, 1996, departure to Minnesota. Thus, Indiana was the child's "home state" when father commenced the Indiana custody modification proceeding. Because Indiana had continuing jurisdiction and had not declined to assert it, the Minnesota court should not have modified the Indiana custody order.

II. Modification of Support Order

By order dated March 18, 1997, the Minnesota court concluded that it had personal jurisdiction over the father for purposes of awarding child support. See Minn. Stat. § 518C.201(5) (1996) (in child support proceeding, Minnesota court has personal jurisdiction over nonresident parent if child resides in state as a result of that parent's "acts or directives"). Mother served father by mail with written notice of filing of the order on March 21, 1997. Father did not appeal the March 1997 order until after the entry of the September 1997 judgment. As with the court's previous determination that it had jurisdiction under the UCCJA, the March 1997 jurisdictional determination was appealable. See Nazar, 505 N.W.2d at 632 (order assuming jurisdiction appealable within 33 days of mailing notice of filing). Because father did not timely appeal the March 1997 order, he is also bound by the court's decision as to personal jurisdiction.

Interstate child support disputes are governed by the Uniform Interstate Family Support Act (UIFSA). Under the UIFSA, as codified in Minnesota:

A tribunal of this state shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has issued a child support order pursuant to a law substantially similar to this chapter.

Minn. Stat. § 518C.205(d) (1996) (emphasis added); see also Minn. Stat. § 645.44, subd. 16 (1996) ("`[s]hall' is mandatory").

Under Indiana's version of the UIFSA, an Indiana court that issues a support order retains "continuing, exclusive jurisdiction" over that support order as long as Indiana remains the residence of the obligor, obligee, or child. Ind. Code Ann. § 31-18-2-5(a)(1) (Michie 1997). When mother initiated this action in Minnesota, there was an existing child support order, issued in 1994 by the Indiana court. Because father, who was the obligee under the 1994 child support order (and now the obligor), continues to live in Indiana, Indiana has continuing, exclusive jurisdiction over the 1994 child support order. By issuing its support order, the Minnesota court failed to recognize Indiana's continuing, exclusive jurisdiction in this matter.

III. Attorney Fees

Father also argues that Minnesota does not have personal jurisdiction over him to the extent that an order to show cause or an order to pay attorney fees would be effective against him. The Minnesota court determined, by order dated March 18, 1997, that it had personal jurisdiction over the father. Because father did not timely appeal that order, he is bound by it.

In a dissolution proceeding (including modification of custody or child support), a Minnesota court shall award attorney fees if it finds that such fees are necessary for the good-faith assertion of a party's rights, the party from whom fees are sought has the means to pay them, and the party to whom fees are awarded is otherwise unable to pay them. Minn. Stat. § 518.14, subd. 1 (1996). Attorney fees also may be awarded "against a party who unreasonably contributes to the length or expense of the proceeding." Id.

In its order granting attorney fees, the Minnesota court stated that it was awarding attorney fees and provided the amount to be awarded, but provided no explanation for its award and no findings to support its decision. The court erred by failing to make specific findings as mandated by the statute. See Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991) (Minn. Stat. § 518.14 mandates specific findings when request for attorney fees is based on need); see also Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992) (specific findings also mandated when request is based on conduct).[2]

Because the Minnesota court erred in modifying the 1994 Indiana custody decree and in issuing a support order when Indiana had continuing, exclusive jurisdiction over support matters, we vacate the Minnesota court's September 11, 1997, judgment awarding custody and child support. Pursuant to the Indiana court order of December 19, 1996, mother has sole custody of the parties' child, subject to father's visitation, and will receive $85.00 per week in child support. We also vacate the court's judgments of December 3, 1996, and September 22, 1997, awarding attorney fees against father.

Mother's request for sanctions and appellate attorney fees is denied. Judgments vacated.

[3]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]** Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ] 1 On August 28, 1996, father moved for reconsideration of the August 15, 1996, order. The motion for reconsideration was denied. Father appealed the denial but later voluntarily dismissed the appeal. See Jackson v. Meeks, No. C4-97-737 (Minn. App. May 13, 1997) (order op.). A motion for reconsideration does not extend a party's time to appeal an underlying order or judgment. Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996).

[ ]2 Father also requests that we reverse the order to show cause and a contempt order in this matter. We find no contempt order in the Minnesota court's file, nor has father provided us with a copy of the order. The order to show cause is not appealable and the issue is made moot by the vacation of the custody and support orders.