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

exercise jurisdiction 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 exercise jurisdiction where the courts of the child's

"home state," ifone exists, decline to exercise jurisdiction 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,
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the time of absence 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 of absence was intended to be temporary or permanent.

Here, Wendy McDermott appealsfrom a superior court judge's revision of

a commissioner's order, in which the superior court judge determined that

Kansas is Wendy's child's "home state."1 In so determining, the judge concluded

that the child's time in Costa Rica, where he was born and remained for the first

six weeks of hislife, was a "temporary absence" from Kansas, the state in which

the child's parents each lived both before and after the birth. 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 of Kansas have not

declined to exercise jurisdiction, the courts of Washington should not make

custody determinations involving the child. We affirm the superior court judge's

order to this effect.

I

Wendy and Justin McDermott were married in Miami, Oklahoma, on

March 17,2011. Their only child, H.M., was born on June 15, 2011. H.M. was

born in Costa Rica, where Wendy had previously worked, because his parents

wanted him to enjoy dual citizenship. At the time of H.M.'s birth, both Wendy and

Justin were residents ofKansas and intended to return to Kansas with H.M. The

11n order toavoid confusion, the parties are referred to by their first 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 Superior Court. 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 exercise jurisdiction over H.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 of temporary emergency jurisdiction waswarranted. Justin was served

with the dissolution petition on April 17, 2012.

On the same day thatWendy filed a petition for dissolution in the superior

court, March 29, 2012, Justin filed for divorce in Kansas. The Kansas court

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 of a

domestic violence protection order and a proposed temporary parenting plan.

Justin denied that the alleged incidents of domestic violence had occurred and

asserted that there was no basis for entry of a protection order. On May 22,

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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.'s care and

relationships available in Washington. He also asserted that, even ifWashington

had jurisdiction pursuant to the UCCJEA, it should decline to exercise jurisdiction

because Kansas was a more convenient forum. Wendy responded that,

pursuant to RCW 26.27.201 (1)(b),2 theWashington superior court had

2RCW 26.27.201 provides in relevant part:

(1) Except as otherwise provided in RCW26.27.231, 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 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 have jurisdiction 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 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
No. 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 court judge

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 of either 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

emergency jurisdiction and jurisdiction 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

regarding jurisdiction 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 emergency jurisdiction. 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 of time that H.M. had

lived in Kansas, Washington "should decline jurisdiction 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 of the commissioner's June 21

order. On July 6, 2012, Justin filed in the superior court, for the first time, copies

of the 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 court judge 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 exercise jurisdiction 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, 2012 orders.

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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

of the term "jurisdiction" as though it were a matter of subject matter jurisdiction.

As the parties frame it, either the Washington courts have subject matter

jurisdiction over the dispute or the Kansas courts have subject matter jurisdiction

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 matter jurisdiction.

We review de novo questions of a court's subject matter jurisdiction. Cole

v. Harvevland, LLC. 163 Wn. App. 199, 205, 258 P.3d 70 (2011). A party may

raise a question of subject matter jurisdiction for the first time at any point in a

proceeding, even on appeal. Cole, 163 Wn. App. at 205-06. Because the

absence of subject matter jurisdiction 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 of subject

matter jurisdiction and even if the 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, 149 Wn.2d 29, 65 P.3d 1194 (2003).

The consequences of a court acting without subject matter jurisdiction are

"draconian and absolute." Coje, 163 Wn. App. at 205. "'If the phrase [subject

matter jurisdiction] is to maintain its rightfully sweeping definition, it must not be

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No. 69107-4-1/8

reduced to signifying that a court has acted without error.'" 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 matter jurisdiction 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 oftoo many meanings." Cole, 163Wn. App. at 208 (quoting Steel Co.

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, 163 L. 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 as jurisdictional 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-by jurisdictional rulings,' which too easily

can miss the 'critical difference[s]' between true jurisdictional conditions and

nonjurisdictional limitations on causes of action." Reed Elsevier. 559 U.S. at 161

(alteration in original) (citation omitted) (quoting Steel Co., 523 U.S. at 91;

Kontrickv.Rvan. 540 U.S. 443, 456, 124 S. Ct. 906, 157 L. Ed. 2d 867 (2004)).

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No. 69107-4-1/9

Similarly, our own Supreme Court has noted that "'[t]he term "subject

matter jurisdiction" 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 matter jurisdiction solely because it may

lack authority to enter a given order." Marlev. 125 Wn.2d at 539.

A court has subject matter jurisdiction where it has authority "to adjudicate

the type of controversy involved in the 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 matter jurisdiction is the type of controversy."). Superior

courts are granted broad original subject matter jurisdiction by Wash. Const, art.

IV, § 6.4 Cole. 163Wn. App. at 206. Exceptions to this broad jurisdictional grant

4Wash. Const, art. IV, §6 provides in full:

Superior courts and districtcourts have concurrent jurisdiction in cases in equity.

The superior court shall have original jurisdiction in all cases at law which involve

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 in excess of the jurisdiction granted

to justices of the peace and other inferior courts, and in all criminal cases

amounting to felony, and in all cases of misdemeanor not otherwise provided for

by law; of actions of forcible entryand detainer; of proceedingsin insolvency; of

actions to prevent or abate a nuisance; of all matters of probate, of divorce, and

for annulment of marriage; and for such special cases and proceedings as are

not otherwise provided for. The superior court shall also have original jurisdiction

in all cases and of all proceedings in which jurisdiction shall not have been by law

vested exclusively in some other court; and said court shall have the powerof

naturalization and to issue papers therefor. They shall have such appellate

jurisdiction in cases arising in justices' and other inferior 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 their judges shall have power to issue writs of mandamus, quo

warranto, review, certiorari, prohibition, and writsof habeas 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 Seattle v. Bin. 163Wn. App. 367, 375, 260

P.3d 900 (2011) (quoting Wash. Const, art. IV, § 6).

Superior courts possess "subject matter jurisdiction that cannot be whittled

away by statutes." Shoop. 108 Wn. App. at 396. By protecting the superior

courts' subject matter jurisdiction 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. "If the type of controversy is within

the subject matter jurisdiction, then all other defects or errors go to something

other than subject matter jurisdiction." 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 of A.C.. 165 Wn.2d 568, 573 n.3, 200 P.3d 689

(2009). The courtfurther noted that the UCCJEA "might have more accurately

Injunctions and writs of prohibition and of habeas corpus may be issued and

served on legal holidays and nonjudicial days.

5Itgoes without saying that the Washington legislature cannot confersubjectmatter

jurisdiction upon the trial courts of Kansas.

6The UCCJEA uses the term"jurisdiction" throughout its provisions. 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 matter jurisdiction" in its text, although the comments to the UCCJEA do use the

term once. See UCCJEA § 201 cmt. 2, 9 U.L.A. Part IA 672 (1997).

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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 at 573 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 court judge erred by determining,

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

not have jurisdiction to make an initial child custody determination involving H.M.

unless the courts of Kansas decline to exercise their jurisdiction. Specifically,

Wendy contends that the six-week period that H.M. spent in Costa Rica at the

beginning of his life did not constitute a "temporary absence" from Kansas

pursuantto the UCCJEA and, accordingly, was erroneously counted in

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 of law and fact. In re Parentage.

7In an analogous case involving a challenge toa superior court's ability, pursuant tothe

Uniform Interstate Family Support Act (UIFSA), chapter 26.21 ARCW, to modify a child support order entered by a court ofanother state, our Supreme Court similarly noted that "[t]he legislature

haslimited the superior courts' authority—not the superior courts' jurisdiction—to modify another

state's child support order by adopting the UIFSA." In re Marriage 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 thatthe UCCJEA's procedural requirements are jurisdictional in nature and, thus, thatorders

entered in violation ofthose requirements are void. In re ParentageofRuff, 168 Wn. App. 109,

115-18, 275 P.3d 1175 (2012). Becauseofthe significance ofthe question ofsubject matter

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

analysis. The UCCJEA's imprecise use of the term "jurisdiction" neither erodes nor curtails the

constitutionally-endowed subjectmatter jurisdiction ofWashington's superior courts.

11
No. 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 emergency jurisdiction 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

exercise jurisdiction 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 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

(a) of this subsection, or a court of the home state of the child has

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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 of the child's care and custody.

A.R.K.-K.. 142 Wn. App. at 303. Unless the courts of the home state decline to

exercise their jurisdiction, 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 of age, the term means the state in which

the child lived from birth with a parent or person acting as a parent.

9At oral argument and in her briefing, 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. This understanding runs contrary to the plain

languageofthe UCCJEA, which provides that, "'[cjommencement' means the filing ofthe first

pleading in a proceeding." RCW 26.27.021(5). Applying the plain language of the statute, the

Kansas and Washington 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 commenced well beforeJustin filed copies of the Kansas proceedings

with the superior courton July 6, 2012. In a pleading filed June 14, 2012, Justin indicated that

"[i]t was very clearly stated at the previous hearing that an action had been started in Kansas but

had been stayed to resolve the jurisdiction issue and the petitioner's petition for a protection

order." The date of the referenced previous hearing is unclear from the record. However, it

appears to reference a hearing before the commissioner on a date prior to the date on which the

order of continuance was entered. Whatever the referenced hearing's actual date, the court was

plainly informed ofthe Kansas proceeding, at the latest, onthe daythatthe superior court judge

grantedthe protection order. Thiswas a week before the commissioner entered an orderon

jurisdiction, and nearly a month before the superior court judge issued her orderonWendy's

motion for revision (from which she now appeals). The specific date on which Wendy wasserved

is thus immaterial.

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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 of the

period." RCW 26.27.021(7).

On March 29, 2012, when Wendy filed for dissolution, she and H.M. had

been present in Washington 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 in Washington 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 exercise jurisdiction 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.

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No. 69107-4-1/15

establishing Kansas as H.M.'s home state. The judge 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 their jurisdiction.

They have not done so.

The UCCJEA explicitly includes "[a] period of temporary 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 of Payne. 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 of factors in order to determine whether an absence was temporary,

including "the parent's purpose in removing 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, fl 5, 707 A.2d

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77, 78; In re Lewin. 149 S.W.3d. 727, 739 (Tex. App. 2004)).

Here, the superior court judge correctly determined that the six weeks

H.M. spent in Costa Rica at the beginning of his life constituted a temporary

absence from Kansas because his parents intended that time to be merely a

temporary visit. Cf. Payne. 79 Wn. App. at 52 (concluding that, where a father

moved to Washington "with the intention of moving permanently," his absence

from Virginia was not temporary).

The superior court judge found that, during the time that Wendy, Justin,

and H.M. were in Costa Rica, both Wendy and Justin were Kansas residents and

that both parents intended to return to Kansas with H.M. The courtfurther found

that H.M. was born in Costa Rica because his parents wanted him to enjoy dual

citizenship. Moreover, the court found no evidence thatWendy had established

Costa Rica as her permanentresidence. Wendy has not challenged these

factual findings; they are, therefore, verities on appeal. 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 of birth 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 absent from

11 The temporary absence provision refers to both "achild" and "a parent." Pursuant to

RCW 26.27.021(7), both parents (Wendy and Justin) were "temporarily absent" from Kansas

while in Costa Rica. Thesuperior court judge rightfully concluded thatthe status ofthe parents supported the same finding with regard to their child, who had been in the physical custody of one

or both parents during the entire time that the child was in Costa Rica.

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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

a temporary absence can begin.12 However, this strained interpretation of the

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 of the state of which 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 that H.M. had "lived" in Kansas prior to 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

12 Wendy cites to numerous out-of-state decisions in asserting that, in order to establish

Kansas as H.M.'s home state, H.M. was required to be physically present in Kansasthroughout

the six-month period. See Saiiad. 428 N.J.Super. 160; In re Marriage of Marsalis, 338 S.W.3d

131 (Tex. App. 2011); Karam v. Karam, 6 So.3d 87 (Fla. App. 3 Dist. 2009); Escobar v. Reisinger.

133 N.M. 487, 64 P.3d 514 (2003); In reCalderon-Garza. 81 S.W.3d 899 (Tex. App 2002).

However, becausethese cases do not addressthe specific question here—whether a newborn

child istemporarily absentfrom the state in which his or her parents live when both parents are,

by definition, temporarily absent from 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 if the child lived in that state on the date that the 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 a reading conflicts with the "initial child

custody jurisdiction" provision of the UCCJEA, which provides that a court may properly exercise

jurisdiction if it "was the home state of the child within six months before the commencement of

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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 of the 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 in that state.

Accordingly, the superior court judge properly determined that Washington's

courts could exercise their jurisdiction to make a custody determination involving

H.M. only if Kansas's courts "declined to exercise jurisdiction 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

parentsintend a child's absence from a state to be temporary, the duration of

the proceeding and the child is absentfrom this state but a parent or person acting as a parent

continues to live in this state." RCW26.27.201(1)(a) (emphasis added). This court must "give

effect to all statutory language, considering statutory provisions in relation to each other and

harmonizing them to ensure proper construction." Evergreen Washington Healthcare Frontier

LLC v. Dep't of Soc. &Health Servs., 171 Wn. App. 431, 444, 287 P.3d 40 (2012), review denied,

176 Wn.2d 1028 (2013). "Immediately" does not necessarily refer to temporal proximity; rather, it

also means "without intermediary," "in direct connection or relation," 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 in other states have resolved this conflictsimilarly. These courts have

concluded that a state may properly exercise jurisdiction where it wasthe home stateofthe child

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, 42 P.3d 1166 (2002). Aliteral reading of

the "home state" definition, the courts reasoned, would rendersuperfluous the languagefound in

the initial child custody jurisdiction provision. Christine L, 23 Misc.3d at 1043: see alsoWelchDoden, 202Ariz, at 205. Moreover, "[gjiven the fundamental purpose ofthe UCCJEA to establish

the certainty ofhome state jurisdiction," the initial child custody jurisdiction provision "acts to

enlarge and modify thedefinition ofhome state." Welch-Doden, 202 Ariz, at 208. Thus, these

courtsresolved the "statutory conflict in the application of home state jurisdiction in a manner

consistent with the UCCJEA's intent ofstrengthening the certainty of home state jurisdiction."

Stephens, 331 Mont, at 44.

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

pursuant tothe UCCJEA, even if the child is born during that absence.14

IV

Wendy further contends that the superior court judge was precluded by

the UCCJEA from declining to exercise jurisdiction to make a custody

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

previously entered a protection order indicating that Washington was exercising

temporary emergency jurisdiction. However, the UCCJEA does not preclude a

superior court that has exercised temporary emergency jurisdiction from later

determining that it cannot, in fact, properly exercise non-temporary jurisdiction.

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 "temporary emergency

jurisdiction if the child is present in this state and the child has been abandoned

or it is necessary in an emergency to protect the child because the child, or a

sibling or parent ofthe child, issubjected to orthreatened with abuse." RCW

26.27.231. If there is no previous child custody determination entitled to be

14 Wendy additionally contends thatthe superior court judge erred by adopting the

commissioner's decision to decline to exercise jurisdiction in favor of Kansas because, she

asserts, Washington hasjurisdiction pursuant tothe"significant connection" provision ofRCW

26.27.201. However, once the superiorcourtjudge determined that Kansas was H.M.'s home

state pursuant tothe UCCJEA, it could not properly exercise its jurisdiction unless a Kansas court

first declined to exercise its jurisdiction. No Kansas court has done so. Therefore, the superior

court judge correctly determined that Washington courts could not properly exercise jurisdiction

pursuant to RCW 26.27.201 (1)(b).

Similarly, Wendy contends thatthe commissioner failed to properly consider the

factors necessary to determine whether Washington was an "inconvenient forum"

pursuant toRCW 26.27.261 (1). Because we determine that the superior court judge

correctly found that Kansas was H.M.'s home state, we need not reach this question.

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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 "child custody determination" made by a court exercising

temporary emergency jurisdiction "remains in effect until an order is obtained

from a court of a state having jurisdiction under RCW 26.27.201 through RCW

26.27.221." RCW 26.27.231(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 having jurisdiction pursuant to RCW 26.27.201 through

RCW 26.27.221, then an order issued by a Washington court while exercising

temporary emergency jurisdiction "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 having jurisdiction" pursuant to RCW 26.27.201 through RCW

26.27.221. RCW 26.27.231(3).

A"child custody determination" is "a judgment, decree, parenting plan, or

other order of a court providing 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 of its own jurisdictional authority. Indeed, the UCCJEA does not

bind a superior court to an initial, temporary determination of its own jurisdictional

authority. Wendy cites to no authority indicating otherwise.

The superior court judge wastherefore not precluded by the prior judge's

earlier exercise oftemporary emergencyjurisdiction from laterfinding that the

court could not properly exercise jurisdiction pursuant to the UCCJEA and,

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No. 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 emergency jurisdiction, the superior court judge 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 of Washington courts

to communicate with judges of courts of another 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). If the superior court determines that a proceeding has been

commenced in another state's courts, the statute requires that the court "stay its

proceeding and communicate with the court of the other state." RCW

26.27.251(2). Where a superior court is asked to make a "child custody

determination" by exercising temporary emergencyjurisdiction, the court "shall

immediately communicate" with the court of another state upon being 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.

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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

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No. 69107-4-1/23

another state before determining its own authority to act would not further the

legislative purpose underlying 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 to Justin's motion, Wendy requests an award ofCivil Rule (CR) 11 sanctions

against Justin. Her request is denied.

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