COURT OF APPEALS Giy • STATE OF WASHING ILv 

### 2013 JUL 15 AH 9- 1U

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Marriage of:
WENDY A. MCDERMOTT Appellant,
and JUSTIN J. MCDERMOTT, Respondent. DIVISION ONE
No. 69107-4-1

PUBLISHED OPINION FILED: July 15, 2013 

### Dwyer, J. — The Uniform Child Custody Jurisdiction and Enforcement Act 

### (UCCJEA), chapter 26.27 RCW, stipulates that Washington courts may properly exercisejurisdiction to enter a child custody determination when Washington is the child's "home state." When Washington is not the child's "home state," our 

### courts may nevertheless exercisejurisdiction where the courts of the child's "home state," ifone exists, decline to exercisejurisdiction and certain other conditions are met. A child's "home state" is "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 proceeding." RCW 26.27.021(7). Where a child is temporarily absent from his or her home state,No. 69107-4-1/2 

### the time ofabsence is part of the period measured in order to determine the child's home state. The parents' intent is relevant in determining whether a period ofabsence was intended to be temporary or permanent. 

### Here, Wendy McDermott appeals from a superior courtjudge's revision of
a commissioner's order, in which the superior courtjudge determined that 

### Kansas is Wendy's child's "home state."1 In sodetermining, thejudge concluded that the child's time in Costa Rica, where he was born and remained for the first 

### six weeks of his life, was a "temporary absence" from Kansas, the state in which 

### thechild's parents eachlived both before and afterthebirth. Based upon its unchallenged factual findings, which were based on evidence that both parents intended to return with their newborn child to Kansas soon after the birth, the 

## judge's determination was correct. Because the courts ofKansas have not declined to exercisejurisdiction, the courts ofWashington should not make 

## custody determinations involving the child. We affirm the superiorcourtjudge's
order to this effect. I 

### Wendy and Justin McDermottwere married in Miami, Oklahoma, on 

### March 17,2011. Their only child, H.M., was born on June 15, 2011. H.M. was born in CostaRica, where Wendy hadpreviously worked, because his parents 

## wanted him to enjoy dual citizenship. Atthe time ofH.M.'s birth, both Wendy and Justin were residents ofKansas andintended to return to Kansas with H.M. The
11n ordertoavoid confusion, theparties arereferred toby theirfirst names throughout this opinion.No. 69107-4-1/3 

### family returned to Kansas approximately six weeks after H.M.'s birth, on or about 

### July 28, 2011. H.M. remained in Kansas with his parents until January 15, 2012, when Wendy and H.M. moved to Washington. Thus, prior to the move to 

### Washington, H.M. was physically present in Kansas forfive-and-one-half months. On March 29, 2012, two-and-one-half months after Wendy and H.M. 

### moved to Washington, Wendy filed a petition for dissolution of marriage in the 

### Snohomish County SuperiorCourt. H.M. was nine months old at the time. 

### Wendy requested that the court grant a domestic violence protection order, the 

### petition for which was to be separately filed. She asserted that the superior court should exercisejurisdiction overH.M. both because H.M. had no other home 

### state andWendy had significant connections with Washington and, alternatively, because it was necessary to protect H.M. orWendy from abuse and, thus, an 

### exercise oftemporary emergencyjurisdiction waswarranted. Justin was served with the dissolution petition on April 17, 2012. 

### On the same day thatWendy filed a petition for dissolution in thesuperior court, March 29, 2012, Justin filed for divorce in Kansas. The Kansascourt 

### thereafter entered a temporary support order and a temporary custody order on 

## April 2, 2012, before Justin was served with Wendy's dissolution petition. Wendy was not served with the Kansas pleadings and orders until June 28, 2012. 

### In Washington, on May 4, 2012, Wendy filed a petition for entry ofa domestic violence protection order and a proposed temporary parenting plan. Justin denied that thealleged incidents ofdomestic violence had occurred and asserted that there was no basis for entry of a protection order. On May 22,
-3-No. 69107-4-1/4 2012, he filed a proposed temporary parenting plan with the superior court. On May 30, 2012, a superior court commissioner entered an order denying Wendy's petition for a domestic violence protection order and postponing a decision on issues regarding a parenting plan for H.M. The commissioner reserved ruling on issues regarding jurisdiction pursuant to the UCCJEA but ordered that Washington would "maintain jurisdiction in the
meantime." On June 5, 2012, Justin filed a motion to dismiss the dissolution action for 

### lack of jurisdiction. He asserted that, pursuant to the UCCJEA, the court did not have jurisdiction over H.M. both because Washington was not H.M.'s "home 

### state" and because Wendy and H.M. did not have a "significant connection" to 

### Washington and there was not "substantial evidence" concerning H.M.'scare and relationships available in Washington. He also asserted that, even ifWashington 

### hadjurisdiction pursuant to the UCCJEA, it should decline to exercisejurisdiction because Kansas was a more convenient forum. Wendy responded that, 

### pursuantto RCW 26.27.201 (1)(b),2 theWashington superior court had

2RCW 26.27.201 provides in relevant part: (1) Except as otherwiseprovided in RCW26.27.231, a court of this state has jurisdiction to make an initial child custodydetermination 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 childwithin 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) Acourt of another state does not havejurisdiction under (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the moreappropriate forum under RCW 26.27.261 or 26.27.271, and: (i) 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 connectionwith this state other than mere physical presence; andNo. 69107-4-1/5 jurisdiction based on a "significant connection" with the state and the existence of "substantial evidence" within the state. She additionally asserted that, pursuant to the factors set forth in the UCCJEA, Kansas was not a more convenient forum. The next day, Wendy filed a motion for revision of the commissioner's May 30 order, asserting that the commissioner had erred by denying her request for a domestic violence order of protection. On June 14, 2012, a superior courtjudge granted Wendy's motion for revision and entered an order of protection. The order of protection excluded Justin from Wendy's residence and H.M.'s day care center and prohibited him from coming within 500 feet ofeither location. However, it did not restrain Justin from contacting or visiting H.M.; in fact, the order stated that visitation would be determined pursuant to temporary orders 

### entered by the court. The court stated that itwas exercising both temporary 

### emergencyjurisdiction andjurisdiction due to H.M.'s lack of a home state and his presence in Washington. 

### On June 21, 2012, the superior court commissioner entered an order 

### regardingjurisdiction in response to Justin's motion to dismiss. The commissioner ruled that H.M. had no home state because he had not lived in any state for six consecutive months and that the Washington court could not 

### properlyexercise temporary emergencyjurisdiction. Referencing RCW 26.27.201(1)(b), the order stated that the commissioner relied upon "significant contacts" and "substantial evidence" in determining jurisdiction. The (ii) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.No. 69107-4-1/6
commissioner determined that, due to the greater amount oftime that H.M. had lived in Kansas, Washington "should declinejurisdiction to Kansas" because "there are likely to be more witnesses to the child's upbringing" in Kansas than in Washington. The commissioner ordered that H.M. should remain in Wendy's custody until a Kansas court order was entered. The next day, Wendy moved for revision ofthe commissioner's June 21 order. On July 6, 2012, Justin filed in the superior court, for the first time, copies 

### ofthe Kansas pleadings, including his petition for divorce and the Kansas court's temporary support order and temporary custody order entered on April 2, 2012. On July 9, 2012, a superior courtjudge entered an order on Wendy's 

### motion to revise the commissioner's June 21 order.3 The court determined that, 

### pursuant to the UCCJEA, Kansas was H.M.'s home state "in that he resided in Kansas for at least six consecutive months in that his absence from Kansas from 

### his date of birth on June 15, 2011 was a temporary absence as to both [H.M.] 

### and his parents." Thus, the court concluded that "Washington does not have 

### jurisdiction unless Kansas declines to exercise itsjurisdiction on the ground that Washington is the more appropriate forum." The judge ordered: 1. The Commissioner's order is revised in so far as it found that there was no home state. The court finds that Kansas was the child's home state on the date of commencement of this proceeding. 2. The court denies the motion to revise in so far as it declined to exercisejurisdiction in favor of Kansas. 3. The court denies the motion to revise with regard to all other provisions ordered by the commissioner.
3Different superior courtjudges entered the June 14, 2012 and July9, 2012orders.
-6-No. 69107-4-1/7 Wendy appeals from the superior court's July 9 order.
II As an initial matter, we note that both parties discuss the UCCJEA's use ofthe term "jurisdiction" as though itwere a matter of subject matterjurisdiction. As the parties frame it, either the Washington courts have subject matter jurisdiction over the dispute or the Kansas courts have subject matterjurisdiction
over the dispute. To the contrary, this dispute involves a statute (the UCCJEA) that restricts, in some instances, a court's exercise of its subject matter 

### jurisdiction. The UCCJEA, as adopted by the Washington legislature, does not— and cannot—divest a superior court of subject matterjurisdiction. 

### We review de novo questions of a court's subject matterjurisdiction. Cole
v. Harvevland, LLC. 163 Wn. App. 199, 205, 258 P.3d 70 (2011). A party may 

### raise a question of subject matterjurisdiction for the first time at any pointin a proceeding, even on appeal. Cole, 163 Wn. App. at 205-06. Because the 

### absence of subject matterjurisdiction is a defense that can never be waived, 

### judgments entered by courts acting without subject matterjurisdiction must be vacated even ifneither party initially objected to the court's exercise ofsubject 

### matterjurisdiction and even ifthe controversy was settled years prior. Cole, 163 Wn. App. at 205; Shoop v. Kittitas County, 108Wn. App. 388, 397-98, 30 P.3d 529 (2001), aff'd on other grounds, 149Wn.2d 29, 65 P.3d 1194 (2003). The consequences of a court acting without subject matterjurisdiction are "draconian and absolute." Coje, 163 Wn. App. at 205. "'Ifthe phrase [subject 

### matterjurisdiction] is tomaintain its rightfully sweeping definition, it must not be
-7-No. 69107-4-1/8 

### reduced to signifying that a court has acted withouterror.'" Marlev v. Dep't of Labor & Indus.. 125 Wn.2d 533, 539, 886 P.2d 189 (1994) (quoting In re 

### Marriage of Major, 71 Wn. App. 531, 534-35, 859 P.2d 1262 (1993)). Thus, 

### appellate courts should "use caution when asked to characterize an issue as 

### 'jurisdictional' or a judgment as 'void.'" Cole, 163Wn. App. at 205. Judicial opinions sometimes "misleadingly" indicate that the court is dismissing an action for lack of subject matterjurisdiction when, in fact, the basis for the ruling is that "some threshold fact has not been established." Cole, 163 Wn. App. at 205. 

### Indeed, "[a]s the United States Supreme Court has observed, 'jurisdiction' 

### is a word oftoomany meanings." Cole, 163Wn. App. at 208 (quoting SteelCo.
v. Citizens for a Better Env't, 523 U.S. 83, 90, 118 S. Ct. 1003, 140 L. Ed. 2d 210 

### (1998)). That Court has noted thatit and other courts have "sometimes been 

## profligate" in using the term "jurisdiction." Arbauoh v. Y&HCorp.. 546 U.S. 500, 510, 126 S. Ct. 1235, 163L. Ed. 2d 1097 (2006). Where the question of 

## jurisdiction was not "central to the case" and thus did "not require close analysis," courts have "sometimes mischaracterized claim-processing rules or elements of 

### a cause ofaction asjurisdictional limitations." Reed Elsevier. Inc. v. Muchnick, 559 U.S. 154, 161, 130 S. Ct. 1237, 176 L. Ed. 2d 18 (2010). These 

### mischaracterizations can lead to "'drive-byjurisdictional rulings,' which too easily can miss the 'critical difference[s]' between truejurisdictional conditions and 

## nonjurisdictional limitations on causes ofaction." Reed Elsevier. 559 U.S. at 161 (alteration in original) (citation omitted) (quoting Steel Co., 523 U.S. at91; Kontrickv.Rvan. 540 U.S. 443, 456, 124 S. Ct. 906, 157 L. Ed. 2d 867 (2004)).
-8-No. 69107-4-1/9 Similarly, our own Supreme Court has noted that "'[t]he term "subject matterjurisdiction" is often confused with a court's "authority" to rule in a particular manner,'" leading to "'improvident and inconsistent use of the term.'" Marlev. 125 Wn.2d at 539 (quoting Major. 71 Wn. App. at 534-35). Indeed, a "court or agency does not lack subject matterjurisdiction solely because it may lack authority to enter a given order." Marlev. 125 Wn.2d at 539. A court has subject matterjurisdiction where ithas authority "to adjudicate 

### the type ofcontroversy involved inthe action." Shoop. 108 Wn. App. at 393. See also Cole. 163 Wn. App. at 209 ("The critical concept in determining whether 

### a court has subject matterjurisdiction is the type ofcontroversy."). Superior courts are granted broad original subject matterjurisdiction by Wash. Const, art. 

### IV, § 6.4 Cole. 163Wn. App. at 206. Exceptions tothis broadjurisdictional grant

4Wash. Const, art. IV, §6 provides in full: Superior courts and districtcourts have concurrentjurisdiction incases inequity. The superior court shall have originaljurisdiction in allcases at law whichinvolve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases inwhich the demand or the value of the property in controversy amounts to three thousand dollars or as otherwise determined by law, or a lesser sum inexcess of thejurisdiction granted to justices of the peace and other inferior courts, and in allcriminal cases amounting to felony, and in all cases of misdemeanor not otherwiseprovided for bylaw; of actions offorcible entryand detainer; of proceedings in insolvency; of actions to prevent or abate a nuisance; ofall matters of probate, ofdivorce, and for annulment of marriage; and for such special cases and proceedings as are not otherwise providedfor. The superior court shall also have originaljurisdiction in all cases and of allproceedings in which jurisdiction shall not have been by law vested exclusively in some othercourt; and said court shall have the powerof naturalization and to issue papers therefor. They shall have such appellate jurisdiction in cases arising injustices' and otherinferior courts in their respective counties as may be prescribed by law. They shall always be open, except on nonjudicial days, and their process shall extend to all parts of the state. Said courts and theirjudges shall have power to issue writs ofmandamus, quo warranto, review, certiorari, prohibition, and writsofhabeas corpus, on petition by or on behalf of any person in actual custody in their respective counties.No. 69107-4-1/10
"are to be narrowly construed." Cole. 163 Wn. App. at 206. Superior courts have jurisdiction in "'all cases ... in which jurisdiction shall not have been by law vested exclusively in some other court,'" by an explicit act of Congress or the 

### legislature.5 Hous. Auth. ofCity of Seattlev. Bin. 163Wn. App. 367, 375, 260 P.3d 900 (2011) (quoting Wash. Const, art. IV, § 6). Superior courts possess "subject matterjurisdiction that cannot be whittled away by statutes." Shoop. 108 Wn. App. at 396. By protecting the superior 

### courts' subject matterjurisdiction from statutory erosion, our state "constitution provides the foundation for an independent and coequal judicial branch of state 

### government." Shoop. 108 Wn. App. at 396. "Ifthe type of controversy is within 

### the subject matterjurisdiction, then all other defects or errors go to something other than subject matterjurisdiction." Cole, 163 Wn. App. at 209. 

### Our Supreme Court has noted that, notwithstanding the manner in which the UCCJEA uses the term "jurisdiction," "Washington courts d[o], in fact, have 

### subject matterjurisdiction over the parties and the issues" in a case implicating the UCCJEA.6 In re Custody ofA.C.. 165 Wn.2d 568, 573 n.3, 200 P.3d 689 

### (2009). The courtfurther noted that the UCCJEA "might have moreaccurately

Injunctions and writs ofprohibition and of habeas corpus may be issued and served on legal holidays and nonjudicial days. 5Itgoes without saying that theWashington legislature cannot confersubjectmatter jurisdiction upon the trial courts of Kansas. 6The UCCJEA uses the term"jurisdiction" throughout itsprovisions. See, e.g., RCW 26.27.201; RCW 26.27.211; RCW.26.27.221; RCW 26.27.231. It does not, however, use the term "subject matterjurisdiction" in its text, although thecomments to the UCCJEA do use the term once. See UCCJEA § 201 cmt. 2, 9 U.L.A. Part IA 672 (1997).
-10-No. 69107-4-1/11 

### used the term 'exclusive venue.'" A.C.. 165 Wn.2d at 573 n.3.7 Nevertheless, for consistency, the court decided to use the statutory language throughout its 

### opinion. A.C.. 165 Wn.2d at573 n.3. Aswill we.8
Ill 

### Wendy first contends that, pursuant to the UCCJEA, H.M. has no "home state." Therefore, she asserts, the superior courtjudge erred by determining, 

### first, that Kansas was H.M.'s home state and, second, that Washington courts do 

### not havejurisdiction to make an initial child custody determination involving H.M. unless the courts of Kansas decline to exercise theirjurisdiction. Specifically, 

### Wendy contends that the six-week period that H.M. spent in Costa Rica at the beginning of his life did notconstitute a "temporary absence" from Kansas 

### pursuantto the UCCJEA and, accordingly, was erroneously countedin computing the amount oftime that he lived in Kansas prior to moving to Washington. We disagree. 

### Whether a superior court has the authority pursuant to the UCCJEA to exercise itsjurisdiction is a mixed question oflaw and fact. In re Parentage.
7In ananalogous caseinvolving a challenge toa superiorcourt's ability, pursuanttothe Uniform Interstate Family SupportAct (UIFSA), chapter 26.21 ARCW, tomodify a child support 

### order entered by a court ofanother state, our Supreme Court similarly noted that "[t]he legislature haslimited the superiorcourts' authority—notthesuperior courts'jurisdiction—to modify another state'schild support order by adopting theUIFSA." In reMarriage ofSchneider, 173 Wn.2d 353, 360, 268 P.3d 215 (2011). 8We are aware that Division Three of this court, subsequent to the opinion in A.C., has held thattheUCCJEA's procedural requirements arejurisdictional in nature and, thus, thatorders entered in violation ofthoserequirements are void. In re ParentageofRuff, 168 Wn. App. 109, 115-18, 275 P.3d 1175 (2012). Becauseofthesignificance ofthequestion ofsubject matter 

### jurisdiction and its fundamental, constitutional definition, we neither adopt nor agree with this 

### analysis. The UCCJEA's imprecise use ofthe term "jurisdiction" neithererodes norcurtails the constitutionally-endowed subjectmatterjurisdiction ofWashington's superior courts.

11No. 69107-4-1/12 Parenting, and Support of A.R.K.-K., 142 Wn. App. 297, 302 n.1, 174 P.3d 160 (2007). We defer to the superior court's unchallenged factual findings but review de novo its legal conclusions. A.R.K.-K.. 142 Wn. App. at 302 n.1. Moreover, we review de novo issues of statutory interpretation. J.E. Dunn Nw.. Inc.. v. Dep't of Labor & Indus.. 139 Wn. App. 35, 43, 156 P.3d 250 (2007). The UCCJEA was promulgated in order to reduce the occurrence of "competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered by parties where multiple states are involved." A.C.. 165 Wn.2d at 

### 574. Most states, including Washington, have now adopted the UCCJEA. A.C.. 165 Wn.2d at 574. The UCCJEA "establishes a hierarchy for determining which state has jurisdiction." A.R.K.-K.. 142 Wn. App. at 303. 

### RCW 26.27.201(1) sets forth the "exclusive jurisdictional basis for making a child custody determination by a court of this state." RCW 26.27.201(2). 

### Unless a Washington court exercises temporary emergencyjurisdiction pursuant to RCW 26.27.231, that court may properly exercise its jurisdiction and make an 

### initial child custody determination only ifcertain statutory requirements are met. RCW 26.27.201 (1)(a)-(d). As relevant here, a Washington court may properly exercisejurisdiction pursuant to RCW 26.27.201(1) only if: 

### (a) This state is the home state of the child on the date of the commencement ofthe proceeding, or was the home state ofthe child within six months before the commencement ofthe 

### 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 ofanother state does not havejurisdiction under 

### (a) of this subsection, or a court of the home state of the child has
-12-No. 69107-4-1/13
declined to exercise jurisdiction on the ground that this state is the more appropriate forum under RCW 26.27.261 or 26.27.271, and: (i) 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 (ii) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships. 

### RCW26.27.201(1).9 Where a child has a home state pursuant to the UCCJEA, that state's courts have priority with respect to questions ofthe child's care and custody. A.R.K.-K.. 142 Wn. App. at 303. Unless the courts ofthe home state decline to exercise theirjurisdiction, no other state's courts may properly exercise 

### jurisdiction. RCW 26.27.201 (1)(b). Pursuant to the UCCJEA, a "home state" is
defined as 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 proceeding. In the case of a 

### child less than six months ofage, the term means the state in which the child lived from birth with a parent or person acting as a parent. 9At oral argument andin herbriefing, Wendy labors under the misapprehension that, pursuant to the UCCJEA, a proceeding commences when service upon the opposing party is effected rather than when a pleading isfirst filed. Thisunderstanding runs contrary to the plain languageofthe UCCJEA, which provides that, "'[cjommencement' means the filing ofthefirst pleading in a proceeding." RCW 26.27.021(5). Applying the plain language of the statute, the Kansas andWashington proceedings both commenced on March 29, 2012, when Justin and Wendy separately filed for divorce in their respective states. Moreover, itis apparent from the record that the superior court was aware that the Kansas proceeding had commencedwell beforeJustinfiled copies of the Kansas proceedings with the superior courtonJuly 6, 2012. In a pleading filed June 14,2012, Justinindicated that "[i]twas very clearly stated at the previous hearing that an action had been started in Kansas but had been stayed to resolve thejurisdiction issue and the petitioner's petition for a protection order." The date of the referenced previous hearing is unclearfrom the record. However, it appears toreference a hearing before thecommissioner on a date priorto the date onwhich the order of continuance was entered. Whatever the referenced hearing's actual date, the court was plainly informed ofthe Kansas proceeding, at thelatest, onthe daythatthesuperiorcourtjudge grantedthe protection order. Thiswas a weekbefore thecommissioner entered an orderon jurisdiction, and nearly a month before the superior courtjudge issued her orderonWendy's motion for revision (from which she now appeals). Thespecific date onwhich Wendy was served is thus immaterial. -13-No. 69107-4-1/14 

### RCW 26.27.021 (7).10 For purposes ofdetermining the home state, "[a] period of temporary absence of a child, parent, or person acting as a parent is part ofthe period." RCW 26.27.021(7). On March 29, 2012, when Wendy filed for dissolution, she and H.M. had been present inWashington for only two-and-one-half months. Prior to their 

### move to Washington, H.M. had spent the first six weeks of his life in Costa Rica and the next five-and-one-half months in Kansas. Because H.M. was not born in 

### Washington and had not lived inWashington for at least six consecutive months immediately prior to the commencement of the proceeding, Washington was not his home state. See RCW 26.27.021(7). 

### The superior court could, nevertheless, properly exercisejurisdiction over H.M. if H.M. had no home state or if a court in H.M.'s home state had declined to 

### exercise its jurisdiction and the "significant connection" and "substantial 

### evidence" requirements of the UCCJEA were met. See RCW 26.27.201 (1)(b). The superior court judge concluded that Kansas was H.M.'s home state. Based upon her finding that, at the time of H.M.'s birth, both of his parents were residents of Kansas and intended to return to Kansas with him, the superior court 

### judge determined that H.M.'s six weeks in Costa Rica constituted a "temporary absence" from Kansas and, thus, that H.M. had lived in Kansas for more than six 

### consecutive months immediately before the commencement of the proceeding—

10 Justin asserts on appeal that Kansas is also H.M.'s home state pursuant to the "from birth" definition of "home state." Because we determine that Kansas was H.M.'s home state pursuant to the statute's "six consecutive months" provision, we do notaddress Justin's assertion that the "from birth" provision is applicable.
-14-No. 69107-4-1/15 establishing Kansas as H.M.'s home state. Thejudge therefore determined that Washington's courts could not properly make an initial custody determination regarding H.M. unless the courts of Kansas declined to exercise theirjurisdiction. They have not done so. The UCCJEA explicitly includes "[a] period oftemporary absence of a child, parent, or person acting as a parent" in the six-month time period 

### necessary to establish a child's "home state." RCW 26.27.021(7). In evaluating whether an absence was intended to be temporary or permanent, courts of this 

### and other states consider the parents' intent. A.R.K.-K.. 142 Wn. App. at 303-04 

### (citing In Re Marriage ofPayne. 79 Wn. App. 43, 52, 899 P.2d 1318 (1995)); in
re Parentage of Frost. 289 lll.App.3d 95, 681 N.E.2d 1030 (1997). Courts weigh

a number offactors in order to determine whether an absence was temporary, 

### including "the parent's purpose inremoving the child from the state, rather than 

### the length of the absence," "whetherthe parent remaining in the claimed home state believed the absence to be merely temporary," "whether the absence was 

### of indefinite duration," and "the totality of the circumstances surrounding the child's absence." Saiiad v. Cheema. 428 N.J. Super. 160, 173, 51 A.3d 146 

### (2012) (citing Arnold v. Harari. 772 N.Y.S.2d 727, 729-30, 4 A.D.3d 644 (2004); Consford v. Consford, 711 N.Y.S.2d 199, 205, 271 A.D.2d 106 (2000); Chick v. 

### Chick. 164 N.C.App. 444, 449, 596 S.E.2d 303 (2004); Sullivan v. Sullivan. 2004 UT App. 485,1J12, 105 P.3d 963, 966. Courts have found that "temporary absences include court-ordered visitations, and vacations and business trips." 

### Saiiad. 428 N.J. Super, at 173 (citing Alley v. Parker. 1998 ME 33, fl5, 707 A.2d
-15-No. 69107-4-1/16 77, 78; In re Lewin. 149 S.W.3d. 727, 739 (Tex. App. 2004)). 

### Here, the superior courtjudge correctly determined that the six weeks H.M. spent in Costa Rica at the beginning of his lifeconstituted a temporary absence from Kansas because his parents intended that time to be merely a 

### temporaryvisit. Cf. Payne. 79 Wn. App. at 52 (concluding that, where a father moved to Washington "with the intention ofmoving permanently," his absence from Virginia was not temporary). 

### The superior court judge found that, during the time thatWendy, Justin, and H.M. were inCosta Rica, both Wendy and Justin were Kansas residents and 

### thatboth parents intended to return to Kansas with H.M. The courtfurther found that H.M. was born inCosta Rica because his parents wanted him to enjoy dual 

### citizenship. Moreover, thecourtfound no evidence thatWendy had established Costa Rica as her permanentresidence. Wendy has notchallenged these 

### factual findings; they are,therefore, verities onappeal. In re Estate ofJones. 152 Wn.2d 1, 8, 93 P.3d 147 (2004). These findings support the trial court 

## judge's conclusion that H.M.'s "absence from Kansas from his date ofbirth on June 15, 2011 was a temporary absence as to both [H.M.] and his parents." Wendy argues, however, that H.M.'s time in Costa Rica was not a 

### "temporary absence." This is so, she asserts, because H.M. had never been 

### "present" in Kansas. Thus, she avers, H.M. cannot have been absentfrom
11 The temporary absenceprovision refers toboth "achild" and "aparent." Pursuantto RCW 26.27.021(7), both parents (Wendy and Justin) were "temporarily absent" from Kansas while in Costa Rica. Thesuperiorcourtjudge rightfully concluded thatthe status oftheparents 

### supported the same finding with regard to theirchild, who had been in the physical custody ofone orboth parents during theentire time that thechild was in CostaRica.
-16-No. 69107-4-1/17


### Kansas. Wendy bases this contention on her assertion that the UCCJEA's use of the term "lived" mandates that a child be physically present somewhere before 

### atemporary absence canbegin.12 However, this strained interpretation ofthe
statute would lead to the absurd result that a newborn child does not "live" in the


### same state as that in which the child's parents both "live" when the mother gives birth outside ofthe state ofwhich she and the father are both resident even when 

### both parents intend to return to that state with the child. When construing statutes, "[i]t is fundamental that... we avoid absurd results." Lowvv. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012). The superior court 

### judge correctly rejected this untenable interpretation ofthe UCCJEA. Because H.M.'s time in Costa Rica was a temporary absence from 

### Kansas, the superior courtjudge properly included that six-week period in 

### determining the length oftime thatH.M. had "lived" in Kansaspriorto the commencement of the dissolution proceeding. RCW 26.27.021(7) (defining 

### "home state").13 H.M. thus "lived with a parent" in Kansas "for at least six

12Wendy cites to numerous out-of-state decisions in asserting that, in orderto establish Kansas as H.M.'s home state, H.M. was required to be physically presentin Kansasthroughout 

### the six-month period. SeeSaiiad. 428 N.J.Super. 160; In re Marriage ofMarsalis, 338 S.W.3d 131 (Tex. App. 2011); Karam v. Karam, 6So.3d 87 (Fla. App. 3 Dist. 2009); Escobarv. Reisinger. 133 N.M. 487, 64 P.3d 514(2003); In reCalderon-Garza. 81 S.W.3d 899(Tex. App 2002). However, becausethese cases donot addressthespecific question here—whether a newborn child istemporarily absentfrom the statein which his or herparents live when both parents are, 

### by definition, temporarily absentfrom the state and both parents intend to return with the child to that state—they are unhelpful. 13 The "sixconsecutive months" definition of "home state" could be read to provide that a 

### state may only be the home state ifthe child lived in that state on the date thatthe proceeding was commenced. See RCW 26.27.021(7) (defining "home state" as "the state in which a child lived
... for at least six consecutive months immediately before the commencement of a child 

### custody proceeding" (emphasis added)). However, such areading conflicts with the "initial child custodyjurisdiction" provision ofthe UCCJEA, which provides that acourt may properly exercise 

### jurisdiction ifit "was the home state ofthe child within six months before the commencementof
-17-No. 69107-4-1/18
consecutive months immediately before the commencement of [the] child custody proceeding." RCW 26.27.021(7). As a result, Kansas was H.M.'s "home state . . . within six months before the commencement ofthe proceeding," RCW 

### 26.27.201 (1)(a), and, although H.M. was absent from Kansas when the proceeding commenced, Justin, his father, continued to live inthat state. 

### Accordingly, the superior court judge properly determined that Washington's courts could exercise theirjurisdiction to make a custody determination involving 

### H.M. onlyif Kansas's courts "declined to exercisejurisdiction on the ground that this state is the more appropriate forum." RCW 26.27.201 (1)(b). No Kansas

court has done so. 

### The superior court judge thus correctlydetermined that, where both 

### parents intend a child's absence from a state to betemporary, the duration of
the proceeding and thechild is absentfrom this statebut a parent orperson acting as a parent continues to live in this state." RCW26.27.201(1)(a) (emphasis added). This court must "give effecttoall statutory language, considering statutory provisions in relation to eachother and harmonizing them to ensureproperconstruction." Evergreen Washington Healthcare Frontier LLC v. Dep'tofSoc. &Health Servs., 171 Wn. App. 431, 444, 287 P.3d 40 (2012), review denied, 176 Wn.2d 1028 (2013). "Immediately" does not necessarily refertotemporal proximity; rather, it also means "without intermediary," "in direct connection orrelation," or"closely." Webster's Third New International Dictionary 1129 (2002). The conflicting home state provisions of the UCCJEA are harmonized when the term "immediately" is interpreted as meaning "without intermediary." Numerous courts inother states have resolved this conflictsimilarly. These courts have 

### concluded that a statemay properly exercisejurisdiction where it wasthehome stateofthechild within six months before the commencement of the proceeding. See In re MatterofChristine L. v. Jason L. 23 Misc.3d 1039, 874 N.Y.S.2d 794 (2009); Rosen v. Celebrezze, 117 Ohio.St.3d 241, 883 N.E.2d 420(2008); Stephens v. Fourth Judicial Dist. Court, 331 Mont. 40, 128 P.3d 

### 1026 (2006); Welch-Doden v. Roberts. 202 Ariz. 201, 42P.3d 1166 (2002). Aliteral reading of the "home state"definition, the courts reasoned, would rendersuperfluous the languagefound in theinitial child custodyjurisdiction provision. Christine L, 23 Misc.3d at 1043: see alsoWelchDoden, 202Ariz, at205. Moreover, "[gjiven thefundamental purpose ofthe UCCJEA toestablish thecertainty ofhome statejurisdiction," theinitial child custodyjurisdiction provision "acts to 

### enlarge and modify thedefinition ofhome state." Welch-Doden, 202 Ariz, at208. Thus, these courts resolved the "statutory conflict in the application of home state jurisdiction in a manner consistent with the UCCJEA's intent ofstrengthening the certainty of home statejurisdiction." Stephens, 331 Mont, at 44. -18-No. 69107-4-1/19

that absence must be counted toward the establishment of a home state 

### pursuanttotheUCCJEA, even ifthechild is born during that absence.14
IV 

### Wendy further contends that the superior court judge was precluded by the UCCJEA from declining to exercisejurisdiction to make a custody 

### determination involving H.M. because a different superior court judge had 

### previouslyentered a protection order indicating that Washington was exercising 

### temporary emergencyjurisdiction. However, the UCCJEA does not preclude a superior court that has exercised temporary emergencyjurisdiction from later 

### determining that it cannot, in fact, properly exercise non-temporaryjurisdiction. Thus, Wendy's claim is unavailing. 

### Where a superior court is not authorized to exercise itsjurisdiction pursuant to RCW26.27.201, it may nevertheless exercise "temporaryemergency 

### jurisdiction ifthechild is present in this state and thechild has beenabandoned
orit is necessary in an emergency to protect the child because the child, or a 

### sibling orparent ofthechild, issubjected to orthreatened with abuse." RCW 26.27.231. Ifthere is no previous child custodydetermination entitled to be
14Wendy additionally contends thatthesuperior courtjudge erred by adopting the commissioner's decision to decline to exercisejurisdiction in favor of Kansas because, she 

### asserts, Washington hasjurisdiction pursuanttothe"significant connection" provision ofRCW 26.27.201. However, once the superiorcourtjudgedetermined that Kansas was H.M.'s home 

### statepursuant totheUCCJEA, it could not properly exercise itsjurisdiction unless a Kansas court first declined toexercise itsjurisdiction. No Kansas court has done so. Therefore, thesuperior 

### courtjudge correctly determined thatWashington courts could not properly exercisejurisdiction pursuant to RCW 26.27.201 (1)(b). Similarly, Wendy contends thatthecommissionerfailed toproperly considerthe factors necessary todetermine whetherWashington was an "inconvenientforum" 

### pursuanttoRCW 26.27.261 (1). Because we determine thatthe superior courtjudge correctly found that Kansas wasH.M.'s home state, we need not reach this question.
-19-No. 69107-4-1/20
enforced pursuant to the UCCJEA and no custody proceeding has been 

### commenced in a court having jurisdiction pursuant to RCW 26.27.201 through RCW 26.27.221, then a "childcustody determination" made by a court exercising 

### temporary emergencyjurisdiction "remains in effect until an order is obtained from a court of a state havingjurisdiction under RCW 26.27.201 through RCW 26.27.221." RCW26.27.231(2). If, on the other hand, there is a previous child 

### custody determination entitled to be enforced, or a custody proceeding has been commenced in a state havingjurisdiction pursuant to RCW 26.27.201 through RCW26.27.221, then an order issued by a Washington court while exercising 

### temporary emergencyjurisdiction "must specify in the order a period that the courtconsiders adequate to allow the person seeking an order to obtain an order 

### from the state havingjurisdiction" pursuantto RCW 26.27.201 through RCW 26.27.221. RCW 26.27.231(3). 

### A"child custodydetermination" is "ajudgment, decree, parenting plan, or other order of a courtproviding for the legal custody, physical custody, or 

### visitation with respect to a child." RCW 26.27.021(3). It is not a court's 

### determination ofits ownjurisdictional authority. Indeed, the UCCJEA does not 

### bind a superior courtto aninitial, temporary determination ofits ownjurisdictional authority. Wendy cites to no authority indicating otherwise. 

### Thesuperior courtjudge wastherefore not precluded by the priorjudge's earlier exercise oftemporary emergencyjurisdiction from laterfinding that the 

### court could not properly exercisejurisdiction pursuantto the UCCJEA and,

20No. 69107-4-1/21 therefore, could not further exercise authority over custody determinations regarding H.M.
V Wendy finally asserts that, because the superior court had exercised temporary emergencyjurisdiction, the superior courtjudge was required to communicate with the Kansas court prior to determining that the superior court could not properly exercise its jurisdiction pursuant to the UCCJEA. We disagree. 

### In making this claim, Wendy relies upon two distinct UCCJEA provisions 

### regarding communication between courts of different states. Both provisions, RCW 26.27.251(2) and RCW 26.27.231(4), require judges ofWashington courts 

### to communicate with judges of courts ofanother state before performing or 

### continuing to perform a specific act. A superior court, "before hearing a child custody proceeding," must examine the information provided by the parties. 

### RCW 26.27.251 (2). Ifthe superior court determines that a proceeding has been commenced in another state's courts, the statute requires that the court "stay its 

### proceeding and communicatewith the court of the other state." RCW 26.27.251(2). Where a superior court is asked to make a "child custody 

### determination" byexercising temporary emergencyjurisdiction, the court "shall immediately communicate" with the court of another state uponbeing informed that a proceeding has been commenced in that state. RCW 26.27.231(4). 

### These provisions are to be interpreted in light ofthe legislative purpose of the UCCJEA as a whole. Qptimer Int'l. Inc. v. RP Bellevue. LLC. 151 Wn. App.
-21

-No. 69107-4-1/22 954, 963, 214 P.3d 954 (2009), affd, 170 Wn.2d 768, 246 P.3d 785 (2011) ("The primary goal of statutory construction is to discern and carry out the legislature's intent."). The UCCJEA was enacted in order to "deal with the problems of competing jurisdictions entering conflicting interstate child custody orders." A.C., 165 Wn.2d at 574. Thus, its purpose is to "reduce conflicting orders regarding 

### custody and placement of children." A.C.. 165 Wn.2d at 574. The provisions of the UCCJEA requiring communication between the courts of different states are clearly intended to further the legislative purpose of reducing conflicting child 

### custody orders. Indeed, RCW 26.27.231(4) requires communication prior to 

### entry of a "child custody determination." Likewise, RCW 26.27.251(2) requires that the court confer with the court of another state "before hearing a child custody proceeding." 

### Here, the superior court judge made no "child custody determination" and heard no "child custody proceeding" when entering her July 9 order. See RCW 26.27.021(3), (4). To the contrary, the superior court judge determined that the court was not authorized to exercise its jurisdiction pursuant to the UCCJEA and, 

### thus, should not make a child custody determination involving H.M. The judge's determination, therefore, pertained to the court's authority to exercise its 

### jurisdiction, not to child custody. Pursuant to the plain language of the statute, the superior court judge was not required to communicate with the Kansas court in order to determine whether the Washington court had authority to exercise its 

### jurisdiction. Requiring the superior court to communicate with the court of

22-No. 69107-4-1/23
another state before determining its own authority to act would not further the 

### legislative purposeunderlying the UCCJEA.15
Affirmed.

v 

## \ \ J^sC^U,
We concur:


# ^ ofc '€,£

15 Justin has filed a motion to dismiss this appeal, which has been denied by this court. In a response toJustin's motion, Wendy requests an award ofCivil Rule (CR) 11 sanctions against Justin. Her request is denied.
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