195
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted September 1, 2022; portion of order granting temporary
custody vacated, otherwise affirmed February 8, 2023
D. G.,
Petitioner-Respondent,
v.
Shaun M. MARKS,
Respondent-Appellant.
Multnomah County Circuit Court
21PO09314; A177527
Beth A. Allen, Judge.
Laura Graser argued the cause and filed the brief for
appellant.
No appearance for respondent D. G.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
POWERS, J.
Portion of order granting temporary custody vacated;
otherwise affirmed.
196 D. G. v. Marks
POWERS, J.
Respondent appeals from a Family Abuse Prevention
Act (FAPA) restraining order that, among other provisions,
awards petitioner temporary custody of C, one of the parties’
children. At the contested hearing on whether to continue
the restraining order, the trial court found petitioner more
credible than respondent, awarded petitioner temporary
custody of C, and prohibited respondent from having contact with petitioner and C. On appeal, respondent advances
two principal claims: (1) the trial court erred in ordering
custody because it lacked subject matter jurisdiction over C;
and (2) the trial court erred in continuing the restraining
order because, as a matter of law, there was insufficient evidence. Respondent further argues that, even if we disagree
that there was insufficient evidence as a matter of law, we
should engage in limited de novo review to overturn the trial
court’s credibility finding. We conclude that the trial court
lacked jurisdiction over C because Oregon was not C’s “home
state,” as that term is defined in statute, at the time the
FAPA proceeding commenced. Further, we decline respondent’s request to engage in limited de novo review and conclude that the trial court did not err when it continued the
restraining order, except as it relates to custody of C, because
there was legally sufficient evidence in the record to support the trial court’s determination. Accordingly, we vacate
the custody portion of the restraining order and otherwise
affirm the trial court’s decision continuing the restraining
order.
As an initial matter, we decline to exercise our discretion to take de novo review because this is not an exceptional case. See ORS 19.415(3)(b); ORAP 5.40(8)(c) (limiting
de novo review to “exceptional cases”); see also ORAP 5.40(8)(d)
(identifying considerations, which are neither exclusive nor
binding, that bear on whether to exercise de novo review). As
such, we review the trial court’s legal conclusions for errors
of law and, in so doing, we are bound by the court’s findings
of historical fact if there is any evidence to support them.
V.-B. v. Burns, 284 Or App 366, 367,
392 P3d 386 (2017).
Whether a court has subject matter jurisdiction over a particular proceeding is a question of law, which we review for
Nonprecedential Memo Op:
324 Or App 195 (2023) 197
legal error. Menten and Deatherage,
302 Or App 425, 428,
461 P3d 1075 (2020).
We begin with the court’s authority to determine
custody under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), ORS 109.701 to 109.834, which
is a question of subject matter jurisdiction. Campbell v.
Tardio, 261 Or App 78, 80,
323 P3d 317 (2014). Where multiple states potentially have jurisdiction to adjudicate a child
custody dispute, ORS 109.741 governs an Oregon court’s
determination of subject matter jurisdiction. That statute
provides, in part:
“(1) Except as otherwise provided in ORS 109.751
[which provides for 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 six 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 under subsection (1)(a) of this section, 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
under ORS 109.761 or 109.764, and:
“…
“(c) All courts having jurisdiction under subsection (1)(a)
or (b) of this section 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 under
ORS 109.761 or 109.764; or
“(d) No court of any other state would have jurisdiction
under the criteria specified in subsection (1)(a), (b) or (c) of
this section.”
ORS 109.741. Under the UCCJEA, the term “home state”
means “the state in which a child lived with a parent or a
person acting as a parent for at least six consecutive months
immediately before the commencement of a child custody
198 D. G. v. Marks
proceeding” and the term “commencement” means “the filing
of the first pleading in a proceeding.” ORS 109.704(5), (7).
Here, the trial court did not have subject matter
jurisdiction over C under ORS 109.741(1)(a), because C had
not lived in Oregon for at least six consecutive months immediately before the filing of the first pleading. C, who was 10
years old at the time, lived in Montana from birth until C
began living in Oregon with petitioner as early as March 25,
2021. Petitioner filed the FAPA petition on September 14,
2021, which was about a week short of the six consecutive
months required for Oregon to be considered C’s home state
under ORS 109.704(7). Therefore, Oregon was not C’s home
state under the UCCJEA, and the trial court did not have
jurisdiction under ORS 109.741(1)(a).
ORS 109.741(1)(b) to (d) provides three circumstances in which an Oregon court may have jurisdiction even
when Oregon is not the child’s home state. See Schwartz and
Battini, 289 Or App 332, 339,
410 P3d 319 (2017) (explaining
that “if Oregon is not a child’s home state, [an Oregon court]
nevertheless may have jurisdiction under ORS 109.741(1)(b)
to (d), which confer jurisdiction on a state that is not a home
state in three circumstances”). None of those circumstances
are present here, however, given that C lived exclusively
in Montana from birth until moving to Oregon. Rather, it
appears that Montana, not Oregon, was C’s home state when
the proceeding commenced, and there is no indication in the
record that Montana had declined to exercise jurisdiction.
Thus, the trial court did not have jurisdiction under ORS
109.741(1)(b), (c), or (d). Accordingly, because the trial court
did not have jurisdiction under ORS 109.741, we vacate the
portion of the restraining order that awarded temporary
custody of C to petitioner.
Turning to respondent’s remaining assignment of
error challenging the sufficiency of the evidence, we have
reviewed the record in light of our standard of review and
conclude that there was sufficient evidence to support the
trial court’s express and implied factual findings. As respondent’s argument acknowledges, the trial court expressly
found petitioner more credible than respondent, and we
conclude that there is evidence to support the trial court’s
Nonprecedential Memo Op: 324 Or App 195 (2023) 199
finding. We further conclude that the trial court’s findings
were legally sufficient to support the continuation of the
restraining order. In short, we affirm the trial court’s continuation of the restraining order, except as to the temporary custody award of C.
Portion of order granting temporary custody vacated;
otherwise affirmed.
