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Weesner v. Johnson

January 19, 2005

SHERYL WEESNER APPELLANT
v.
JOHN JOHNSON APPELLEE



APPEAL FROM THE WHITE COUNTY CIRCUIT COURT [DR2003-895], HON. ROBERT C. HANNAH, CIRCUIT JUDGE.

The opinion of the court was delivered by: Larry D. Vaught, Judge

Published opinion

REVERSED AND DISMISSED AS TO CUSTODY DETERMINATION

Appellant Sheryl Weesner appeals the trial court's denial of her motion to dismiss and the subsequent entry of a divorce decree addressing issues of custody and visitation. In this one-brief case, she contends that the trial court erred in taking jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at Ark. Code Ann. §§ 9-19-101--9-19-401 (Repl. 2002 & Supp. 2003). We agree, and reverse.

On November 3, 2003, John Johnson, a resident of Arkansas, filed for divorce in White County Circuit Court. Johnson filed an amended complaint for divorce on December 23, 2003, asking that he be awarded custody of the minor child and that Weesner be required to pay support. Weesner filed a motion to dismiss and an amended motion to dismiss alleging that Arkansas did not have jurisdiction to determine issues regarding the minor child. As required by Ark. Code Ann. § 9-19-209 (Repl. 2002), Weesner attached an affidavit to the motion stating the addresses where the child had lived since her birth and that she was presently involved in an action for child support filed in California. In the affidavit, Weesner maintained that she and the minor child had moved around the state, but had always resided in California since the child's birth.

At a hearing on Weenser's motion to dismiss, Weesner's counsel maintained that California was the home state of the child and had jurisdiction. Johnson's counsel, however, argued that California was not the child's home state and that Arkansas could retain jurisdiction.

The trial court allowed Johnson to testify at the hearing, and he stated that he and Weesner had been separated since 2001, and although married when the child was born in California on October 5, 2001, they were not living together at the time and did not live together after the baby was born. Johnson testified that Weesner had contacted him after the birth and told him on several occasions that she was moving from California. He stated that she moved around a lot, about every six months. The following facts were revealed on cross examination:

Defendant's Counsel: How long did she live in California after that before Ms. Weesner called you and said, "we're moving."

Johnson: Maybe six months.

Defendant's Counsel: Okay. So from birth to six months they lived in California; is that correct?

Johnson: Yeah, she did.

Defendant's Counsel: And then where did they move after that?

Johnson: They moved to Arizona.

...

Defendant's Counsel: How long did they live in Arizona?

Johnson: I think she lived there three or four months.

Defendant's Counsel: And where did they move after that?

Johnson: After that, probably back to California.

Defendant's Counsel: And how long did they live in ...


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