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Doughty v. Douglas

Court of Appeals of Arkansas, Division III

September 13, 2017



          McKendra L. Adams, for appellant/ cross-appellee.

          Crawford Law Firm, by: Michael H. Crawford; and Kamps & Stotts, PLLC, by: Adrienne M. Griffis, for appellee/ cross-appellant.


          PHILLIP T. WHITEAKER, Judge

         Appellant/cross-appellee Joanne Doughty and appellee/cross-appellant Richard Douglas are the parents of a minor child, E.D. This appeal stems from an October 2014 decision by the Garland County Circuit Court that awarded joint custody to both Doughty and Douglas. Doughty filed a direct appeal, and Douglas filed a cross-appeal. This court dismissed Doughty's direct appeal in January 2017.[1] As such, the only issues before the court at this juncture are those raised in Douglas's cross-appeal, wherein he presents two points for reversal: (1) the circuit court erred in exercising jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), Ark. Code Ann. §§ 9-19-101 to -401 (Repl. 2015); and (2) the circuit court erred in awarding Doughty interim attorney's fees throughout the pendency of the case. We affirm on the issue of jurisdiction; we affirm in part and reverse in part on the issue of attorney's fees.

         I. Jurisdiction under the UCCJEA

         A. Background

         Douglas is a resident of Australia, and Doughty is a resident of the United States. The couple met in the United States and began a relationship that spanned several years. In 2008, Doughty moved to Australia, where the relationship continued and Doughty became pregnant with E.D. Prior to the birth of E.D., Doughty left Australia and moved to California, where E.D. was born on August 7, 2010. After E.D.'s birth, Doughty and the child lived in California. Douglas continued to reside in Australia, but he visited Doughty and E.D. in California at least five times between E.D.'s birth and March 2012. On September 3, 2012, however, Doughty moved with E.D. to Hot Springs, Arkansas, without informing Douglas.

         On March 4, 2013, Douglas filed a "Petition to Establish Parental Relationship" in the Superior Court of Orange County, California ("the California court"). Doughty responded in the California court by filing a motion to quash the proceedings. On April 19, 2013, Doughty filed a petition to establish paternity in the Garland County Circuit Court ("the Arkansas court"). Douglas responded with a special appearance and objection to jurisdiction, arguing that he had previously filed an action in California-where E.D. had lived from the time of his birth until Doughty's unilateral move to Arkansas-and that the Arkansas court therefore lacked jurisdiction over the matter.

         On May 17, 2013, the California court held a hearing on Doughty's motion to quash and considered whether, in light of the proceedings in Arkansas, it possessed jurisdiction. The California court heard evidence that Douglas resided in Australia, that both Doughty and E.D. had been residents of Arkansas since September 5, 2012, and that Doughty had also commenced a cause of action in the state of Arkansas. The California court noted that Douglas had the burden of establishing jurisdiction within the state of California and opined that Douglas had not met his burden. The court noted that at least one parent would have to reside in California for the court to have jurisdiction under California's UCCJEA statute. Nevertheless, the California court ultimately denied the motion to quash but decided to stay the California proceedings pending assurances that the Arkansas court would take jurisdiction of the matter.

         The Arkansas court then held a telephone conference with the California court on October 21, 2013. Although the parties were present at the outset of the conference, the California court requested that they be excused from hearing the judges' conversation. Following that conversation, the Arkansas court called the parties back into the courtroom and summarized its conference with the California court:

[The California court] said initially, when they did the Motion to Quash, nothing had been filed in Arkansas. Once something was filed in Arkansas, on April 19, 2013, [the California judge's] position is that I [the Arkansas court] have sole jurisdiction, that California does not have jurisdiction. [The California court] is going to grant the Motion to Quash. He may use inconvenient forum. He does not believe he has jurisdiction in any shape or form of this case. I accept jurisdiction.[2]

         No party objected to the circuit court's summation of the conversation or the manner in which the court memorialized the conversation. Douglas nevertheless maintained that the Arkansas court should decline jurisdiction until it had the opportunity to study whether Doughty had engaged in "bad acts" in order to invoke the jurisdiction of the Arkansas court. Doughty responded that because California had declined jurisdiction, there was no state other than Arkansas where jurisdiction could be exercised. The circuit court concluded that Arkansas was the home state, and given California's decision to decline jurisdiction, Arkansas was the state that should properly hear the case.

         On appeal, Douglas raises four separate subpoints pertaining to the circuit court's exercise of jurisdiction pursuant to the UCCJEA: (1) the circuit court failed to make a record of its communication with the California court as required by Arkansas Code Annotated section 9-19-110; (2) the circuit court denied Douglas the opportunity to present facts relevant to Doughty's unjustifiable conduct before making its decision on jurisdiction as required by Arkansas Code Annotated sections 9-19-110 and 9-19-206; (3) the circuit court clearly erred in failing to determine that Doughty acquired jurisdiction in Arkansas through unjustifiable conduct; and (4) the circuit court erred in refusing to decline jurisdiction pursuant to Arkansas Code Annotated section 9-19-208. Before we address these specific arguments, we will address the law under the UCCJEA and our standard of review.

         B. The UCCJEA

         The UCCJEA is the exclusive method for determining the proper state for jurisdictional purposes in child-custody proceedings that involve other jurisdictions. Newkirk v. Burton, 2015 Ark.App. 627, at 4, 475 S.W.3d 573, 575. The purpose of the UCCJEA is to avoid jurisdictional competition and conflict with courts in matters of child custody. Ark. Code Ann. § 9-19-101 ed. note (West, Westlaw through the ends of the 2017 Reg. Sess. and the 2017 First Extraordinary Sess. of the 91st Ark. Gen. Assembly (including changes made by the Ark. Code Revision Comm'n received through July 14, 2017)). To that end, the provisions of the act are established to discourage the use of the interstate system for continuing controversies over child custody and to promote cooperation within the judicial system of state courts to render custody determinations in the state which can best decide the matter in the best interest of the child. Id. The idea behind the UCCJEA is to avoid situations where the same parties are litigating custody matters over the same child in at least two different courts at the same time. When at least two different courts are presented with situations in which the same parties are litigating custody matters over the same child, the UCCJEA provides principles and procedures for the courts to utilize in determining which court is the proper court to exercise jurisdiction, among which are determinations of "home state" and "more convenient forum."

         An Arkansas court has jurisdiction to make an initial child-custody determination if this state is the home state of the child on the date of the commencement of the proceedings. Ark. Code Ann. § 9-19-201(a)(1). By definition of law, a "home state" is "the state in which the child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child-custody proceeding." Ark. Code Ann. § 9-19-102(7). As Doughty had lived in Garland County with E.D. for more than six months prior to filing her petition for paternity there, Arkansas was E.D.'s home state for purposes of her paternity action under the UCCJEA.

         Even if Arkansas is the home state for purposes of the UCCJEA, however, Arkansas Code Annotated section 9-19-206(a) establishes circumstances in which a court of this state may not exercise its jurisdiction. An Arkansas court is prohibited from exercising jurisdiction if, at the time of the commencement of the Arkansas proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with the UCCJEA. This prohibition does not apply when the proceeding in the other state ...

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