132 Nev., Advance Opinion 45
IN THE SUPREME COURT OF THE STATE OF NEVADA
MEHMET SAIT KAR, No. 65985
Appellant,
vs. FILED
KATHLEEN A. KAR,
Respondent. AUG 12 2016
LA
CCERK
Appeal from a district court order denying a motion '6 modify
child custody and support. Eighth Judicial District Court, Family Court
Division, Clark County; Sandra L. Pomrenze, Judge.
Reversed and remanded.
Law Offices of Amberlea Davis and Amberlea S. Davis, Las Vegas,
for Appellant.
Roberts Stoffel Family Law Group and Jason P. Stoffel and Amanda M.
Roberts, Las Vegas,
for Respondent.
BEFORE HARDESTY, SAITTA and PICKERING, JJ.
OPINION
By the Court, PICKERING, J.:
This is an appeal from an order denying a motion to modify a
Nevada child custody decree. Citing the Uniform Child Custody
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Jurisdiction and Enforcement Act (UCCJEA), which Nevada has codified
as NRS Chapter 125A, the district court held that it lost jurisdiction to
modify its decree when the parents and the child moved away from
Nevada. While it is true that the district court lost exclusive jurisdiction
over custody upon its determination that "the child, the child's parents
and any person acting as a parent do not presently reside in this state,"
NRS 125A.315(1)(b), the district court erred when it failed to recognize
that, under the UCCJEA, it nonetheless retained jurisdiction, which it
should have exercised, to ensure that another more appropriate forum
existed to resolve the dispute. Because the district court failed to complete
the jurisdictional analysis requested by appellant and mandated by the
UCCJEA in this setting, we reverse and remand.
I.
Respondent Kathleen A. Kar and appellant Mehmet Sait Kar,
divorced while living in Nevada with their minor child. The decree
provided for joint legal custody but awarded Kathleen primary physical
custody with Mehmet having visitation two weekends per month. After
the divorce, Mehmet moved to Turkey, whereupon Kathleen applied for
and obtained an order modifying the decree to give her sole legal and
physical custody. Kathleen is in the Air Force and had been stationed at
Creech Air Force Base in Nevada. After Kathleen obtained sole custody,
the Air Force notified her that she had received a Permanent Change of
Duty Station (PCS). The PCS required Kathleen to move from Nevada to
England, which she did, taking the child with her.
Two months after Kathleen and the child moved to England,
Mehmet filed the motion to modify child custody and support that
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underlies this appeal.' Kathleen opposed the motion and filed a
countermotion to dismiss for lack of jurisdiction. The district court heard
oral argument, but did not conduct an evidentiary hearing on the crossmotions. At the hearing, the district court opined that "UCCJEA
jurisdiction ends when neither party is living here. . . . That second that
she [the mother and the child] moved [to England], I lost jurisdiction." On
this basis, the district court orally denied Mehmet's motion to modify child
custody and granted Kathleen's countermotion to dismiss. A written order
followed, from which Mehmet has timely appealed.
A.
The primary issue on appeal is whether the district court was
correct that it lost subject matter jurisdiction to hear Mehmet's motion
when the parties and the child left Nevada. Resolving this question
requires us to examine the interconnected rules of the UCCJEA, which
Nevada adopted in 2003 as NRS Chapter 125A. Friedman v. Eighth
Judicial Dist. Court, 127 Nev. 842, 847,
264 P.3d 1161, 1165 (2011) (citing
2003 Nev. Stat., ch. 199, §§ 1-59, at 990-1004). Although the UCCJEA
does not contain an express statement of purpose, the official comments to
'Although Mehmet's motion also sought to modify child support, the
district court did not address whether it had jurisdiction to do so under
either NRS Chapter 125B or NRS Chapter 130, an issue distinct from its
jurisdiction to modify custody under NRS Chapter 125A. Because the
parties did not adequately brief the support issue we do not reach it, see
Edwards v. Emperor's Garden Restaurant, 122 Nev. 317, 330 n.38,
130
P.3d 1280, 1288 n.38 (2006), except to the extent of directing the district
court, on remand, to analyze whether it had jurisdiction to modify child
support.
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the Act state that it "should be interpreted according to its purposes which
are to: (1) Avoid jurisdictional competition and conflict with courts of other
States in matters of child custody which have in the past resulted in the
shifting of children from State to State with harmful effects on their well-being; (2) Promote cooperation with the courts of other States to the end
that a custody decree is rendered in that State which can best decide the
case in the interest of the child; (3) Discourage the use of the interstate
system for continuing controversies over child custody; (4) Deter
abductions of children; (5) Avoid relitigation of custody decision of other
States in this State; [and] (6) Facilitate the enforcement of custody decrees
of other States." Unif. Child Custody Jurisdiction & Enft Act § 101 cmt.
(Unif. Law Comm'n 1997), 9 ULA, Part 1A, 657 (West 1999). To these
ends, the UCCJEA establishes uniform protocols to be followed in
entering, enforcing, and modifying child custody decrees across state or, as
here, international lines. See NRS 125A.225(1) (entitled "International
application" and providing, "A court of this state shall treat a foreign
country as if it were a state of the United States for the purpose of
applying NRS 125A.005 to NRS 125A.395, inclusive."). So long as the
jurisdictional facts are undisputed, jurisdiction under the UCCJEA
involves questions of law, which we review de novo. Friedman, 127 Nev.
at 847,
264 P.3d at 1165.
At the time the parties divorced, Nevada was the child's "home
state," which NRS 125A.085(1) tells us is "[t]he state in which a child lived
with a parent. . . for at least 6 consecutive months . . . immediately before
the commencement of a child custody proceeding." This gave Nevada
jurisdiction to make the initial child custody determination under NRS
125A.305(1)(a) ("[A] court of this State has jurisdiction to make an initial
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child custody determination. . . if [t]his State is the home state of the child
on the date of the commencement of the proceeding. . . ."). Having made
the initial custody determination, Nevada acquired "exclusive, continuing
jurisdiction" over the Kars' child's custody until, as pertinent here, "[a]
court of this state. . . determine [d] that the child, the child's parents and
any person acting as a parent do not presently reside in this state." NRS
125A.315(1)(b); see also NRS 125A.315(1)(a) (providing that exclusive,
continuing jurisdiction may also end if "[a] court of this state determines
that the child [and] the child's parents. . . do not have a significant
connection with this state and that substantial evidence is no longer
available in this state concerning the child's care, protection, training and
personal relationships"). Once it determined that the child and the child's
parents no longer resided in Nevada, the district court lost exclusive,
continuing jurisdiction under NRS 125A.315(1). But this did not mean, as
the district court erroneously held, that it lost all jurisdiction in the
matter. On the contrary, even after a district court loses exclusive,
continuing jurisdiction, it may still modify its own prior order if the
criteria NRS 125A.305(1) establishes for a court to obtain jurisdiction over
an initial custody determination are met by the motion to modify custody.
See NRS 125A.315(2) ("A court of this state which has made a child
custody determination and does not have exclusive, continuing jurisdiction
pursuant to this section may modify that determination only if it has
jurisdiction to make an initial determination pursuant to NRS
125A.305."); Friedman, 127 Nev. at 848-49,
264 P.3d at 1166 (holding that
"commencement of the proceedings" in a UCCJEA modification context
refers to the filing of a post-divorce decree motion concerning custody, not
the original divorce proceedings).
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NRS 125A.305 provides four possible means for a Nevada
court to obtain jurisdiction over an initial child custody determination:
1. Except as otherwise provided in NRS
125A.335 [addressing temporary emergency
jurisdiction], a court of this State has jurisdiction
to make an initial child custody determination
only if:
(a) This State is the home state of the child
on the date of the commencement of the
proceeding or was the home state of the child
within 6 months before the commencement of the
proceeding and the child is absent from this State
but a parent or person acting as a parent
continues to live in this State;
(b) A court of another state does not have
jurisdiction pursuant to paragraph (a) or a court of
the home state of the child has declined to exercise
jurisdiction on the ground that this State is the
more appropriate forum pursuant to NRS
125A.365 or 125A.375 and:
(1) The child and the child's parents, or
the child and at least one parent or a person
acting as a parent, have a significant connection
with this State other than mere physical presence;
and
(2) Substantial evidence is available in
this State concerning the child's care, protection,
training and personal relationships;
(c) All courts having jurisdiction pursuant to
paragraph (a) or (b) have declined to exercise
jurisdiction on the ground that a court of this
State is the more appropriate forum to determine
the custody of the child pursuant to NRS 125A.365
or 125A.375; or
(d) No court of any other state would have
jurisdiction pursuant to the criteria specified in
paragraph (a), (b) or (c).
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Mehmet concedes, as he must, that his motion to modify did not meet the
jurisdictional criteria stated in NRS 125A.305(1)(a), since he filed it two
months after Kathleen and the child left Nevada, by which time he was
living in Turkey. He also recognizes that, since neither he nor Kathleen
had commenced a proceeding in England or elsewhere, NRS
125A.305(1)(c) does not apply. But he maintains that the district court
erred in refusing to consider whether it had jurisdiction under NRS
125A.305(1)(b) or NRS 125A.305(1)(d). We agree.
Under NRS 125A.305(1)(b), Nevada would have jurisdiction if
the following conditions are met: First, no state has "home state"
jurisdiction, or, if a state does, it declined jurisdiction based on an
inconvenient forum analysis. Second, the child and at least one parent
must have "a significant connection with [Nevada] other than mere
physical presence." NRS 125A.305(1)(b). Third, substantial evidence
must be available in Nevada regarding "the child's care, protection,
training and personal relationships." Id.
Here, the only potential courts that could exercise jurisdiction
are in Nevada and England because these are the only places where the
child has lived. As Mehmet concedes, Nevada no longer has home state
jurisdiction. Similarly, at the time the motion to modify was filed, neither
did England. The child had lived in England for only two months at the
time of the commencement of the action, and so was four months short of
making England his home state. See NRS 125A.085 (defining "home
state"). Thus, the first of the conditions specified for jurisdiction under
NRS 125A.305(1)(b)—no state has "home state" jurisdiction—was met.
Because the district court deemed its jurisdiction to have
expired the moment Kathleen and the child left Nevada, it did not
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consider the second and third conditions for exercising jurisdiction under
NRS 125A.305(1)(b): connection of the child and his parents to Nevada
other than mere physical presence; and whether there is substantial
evidence in Nevada pertaining to the child's care, protection, training, and
personal relationships. Mehmet argues that Kathleen and the child had
significant connections with Nevada because they "resided there for
several years" and the child "was in school in Nevada for at least one
year." While Kathleen did not present directly contrary evidence, her
counsel represented to the district court that Kathleen has nothing left in
Nevada, as evidenced by the fact her car and all belongings are in
England. 2 These representations do not persuade us that a significant
connection does not exist in Nevada, but does exist in England. See Unif.
Child Custody Jurisdiction & Enft Act § 202 cmt. ("The significant
connection to the original decree State must relate to the child, the child
and a parent, or the child and a person acting as a parent." (emphases
added)). Because NRS 125A.305(1)(b) requires a highly factual analysis,
we reverse and remand for the district court to determine whether
jurisdiction was warranted under that subsection.
NRS 125A.305(1)(d) provides jurisdiction to Nevada as a last
resort when no other court could exercise jurisdiction under the criteria of
paragraphs (a) through (c). As noted above, the only potential courts that
could exercise jurisdiction are in Nevada and England because these are
the only places the child has lived, yet neither Nevada nor England
qualified as the child's "home state" or under NRS 125A.305(1)(a) when
2Kathleen's counsel also represented that, when and if she returns
to the United States, she plans to make her home in Florida, not Nevada.
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the motion to modify was filed. Thus, whether Nevada had default
jurisdiction depends on whether England could have exercised jurisdiction
under NRS 125A.305(1)(b) or (c). The analysis of England's jurisdiction
under NRS 125A.305(1)(b) mirrors that just undertaken with respect to
Nevada's potential jurisdiction under the same subsection and is equally
fact-bound. Because the child and Kathleen lived in England when
Mehmet brought his motion, they clearly had some connection with that
country. However, the significance of that connection was not fully
developed below. Therefore, this court cannot determine whether England
would have "significant connection" jurisdiction based on the record before
us; whether Kathleen or the child had a significant connection with
England and whether there was substantial evidence in England
regarding the child's well-being are questions of fact for the district court
to resolve in the first instance.
The final question to determine whether Nevada had default
jurisdiction is whether NRS 125A.305(1)(c) provided England with
jurisdiction. NRS 125A.305(1)(c) permits a court to exercise jurisdiction
when other states that would have jurisdiction under paragraphs (a) or (b)
have declined to do so "on the ground that a court of this State is the more
appropriate forum to determine the custody of the child pursuant to NRS
125A.365 or 125A.375." This does not apply here because no state other
than Nevada had the opportunity to decline jurisdiction. Because Nevada
did not have jurisdiction under paragraph (a) and it is unclear whether
Nevada has jurisdiction under paragraph (b), the district court's erroneous
rejection of jurisdiction did not provide England with jurisdiction under
NRS 125A.305(1)(c).
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Thus, while it appears that no other state had jurisdiction
under paragraphs (a) or (c) over the parties' custody matter, it is unclear
based on the record before us whether England had "significant
connection" jurisdiction under paragraph (b). If, upon remand, evidence
demonstrates that England did not have "significant connection"
jurisdiction, default jurisdiction under NRS 125A.305(1)(d) would be
appropriate. Either way, the district court erred when it determined that
it lacked jurisdiction over the case simply because neither the parents nor
the child lived in Nevada without analyzing jurisdiction under NRS
125A.305(1).
B.
NRS 125A.365(1) provides that a court "may decline to
exercise its jurisdiction at any time if it determines that it is an
inconvenient forum under the circumstances and that a court of another
state is a more appropriate forum." Kathleen argues that the district
court properly determined, sua sponte, that Nevada was an inconvenient
forum and directed Mehmet to file in England. See id. ("The issue of
inconvenient forum may be raised upon motion of a party, the court's own
motion or request of another court."). The problem is that, at the time the
district court granted Kathleen's countermotion to dismiss, no child
custody proceeding had been commenced in England. NRS 125A.365(3)
directs that, "If a court of this state determines that it is an inconvenient
forum and that a court of another state is a more appropriate forum, it
shall stay the proceedings upon condition that a child custody proceeding
be promptly commenced in another designated state . ." (Emphasis
added.) When a court declines jurisdiction under NRS 125A.365, in other
words, it "may not simply dismiss the action. To do so would leave the
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case in limbo. Rather the court shall stay the case and direct the parties
to file in the State that has been found to be the more convenient forum."
Unif. Child Custody Jurisdiction & Enf t Act § 207 cmt.
In sum, the district court's loss of exclusive, continuing
jurisdiction did not end the jurisdictional analysis. The district court
should have considered Mehmet's arguments that it retained jurisdiction
to modify its prior custody order by operation of NRS 125A.315(2) and
NRS 125A.305. Finally, if the district court determines that it has
jurisdiction but that a more convenient forum exists after evaluating the
factors under NRS 125A.365, the district court may not cast the parties
loose but must stay the proceedings to allow the parties to file in the
appropriate forum. Here, because the district court failed to analyze
jurisdiction under NRS 125A.305(1) and dismissed, rather than stayed,
the proceeding, we reverse and remand for proceedings consistent with
this opinion.
We concur:
J.
Hardesty
J.
Saitta
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