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COURT OF APPEALS DECISION DATED AND RELEASED August 31, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0332
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
KATHRYN M. LEUTE,
Petitioner-Appellant,
v.
ROBERT L. LEUTE,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Grant County:
GEORGE S. CURRY, Judge. Reversed
and cause remanded with directions.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER
CURIAM. We granted Kathryn Leute's petition for
leave to appeal from an order denying her motion to dismiss a custody
petition. Section 808.03(2), Stats.[1] The dispositive issue is whether Wisconsin
has jurisdiction of the matter under the provisions of § 822.03(1)(b), Stats.
We conclude that the State of Wisconsin does not have jurisdiction and
therefore reverse.
Kathryn and Robert Leute
have two children, born in 1982 and 1984, respectively. Until 1991, the family lived in
Wisconsin. Then, after Kathryn and
Robert's divorce, Kathryn and the children moved to Virginia while Robert
remained in Wisconsin.
In July 1994, Robert
filed a petition in Grant County seeking sole custody of the children. He alleged that Kathryn was attempting to
disrupt his relations with the children and to alienate them from him. Kathryn moved to dismiss the petition on the
grounds that Wisconsin no longer had custody jurisdiction. The trial court denied the motion,
concluding that the jurisdictional requirements of § 822.03(1)(b), Stats., were satisfied. In support of its conclusion, the trial
court made the following findings of fact:
1. Both parties have
substantial contact with the State of Wisconsin and the Tri-State area.
2. The children have friends
in Wisconsin and Virginia.
3. The children have spent
summers in Wisconsin.
4. The children have had
several physical placement periods in Wisconsin.
5. The children's maternal
grandparents and numerous relatives live in Grant County, Wisconsin.
6. The children's paternal
grandparents live in Iowa but within the area known as the
"Tri-State" area adjacent to Grant County, Wisconsin.
7. The petitioner spent time
outside Wisconsin since the original divorce judgment necessitated it by his
traveling sales job. Also, he spent
substantial time in Wisconsin and frequently resided at Schwendingers, his
friends who live in Grant County, Wisconsin.
8. The children have friends
in both states. The children have only
two relatives in the Virginia area. The
children's doctors live in Virginia, but there is no indication that testimony
of physicians would be necessary and if necessary, they may testify by
telephone.
9. Medical records and school
records exist in both states.
10. This Court is familiar with
the case and parties. A Virginia court
would have to start afresh. This would
not be an economical use of judicial time.
11. Religious and social
contacts exist in both states.
12. All the children and
parties were born in Wisconsin or the Tri-State area.
13. The
parties' attorneys and Guardian ad Litem all live in Grant County, Wisconsin.
Based
upon these facts, the court concluded that the parties and children have more
connections to Wisconsin than Virginia, and that exercising jurisdiction here
was in the children's best interests.
Section 822.03(1), Stats., confers child custody jurisdiction
on the home state of the children, in this case Virginia, or, under
§ 822.03(1)(b) on a state other than the home state if it is in the
children's best interest, the children and at least one contestant have a
significant connection to the state, and substantial evidence concerning the
children's lives is available in the state.
Determining whether Wisconsin has jurisdiction under § 822.03(1)(b)
is a question of law that we decide independently, without deference to the
trial court's conclusion. In re
J.T., 168 Wis.2d 646, 652, 485 N.W.2d 70, 72 (Ct. App. 1992).
Wisconsin does not have
jurisdiction over this custody dispute.
The purpose of § 822.03(1)(b), Stats.,
is to limit jurisdiction rather than expand it, and maximum rather than minimum
contact is therefore necessary to obtain jurisdiction under it. Id. at 653, 485 N.W.2d at
72. The home state is the preferred
forum, and § 822.03(1)(b) confers jurisdiction only where the children and
the family have equal or stronger ties with another state. Davidson v. Davidson, 169
Wis.2d 546, 563, 485 N.W.2d 450, 456 (Ct. App. 1992) (quoted source
omitted). Here, if anything, Iowa has a
stronger case than Wisconsin for jurisdiction.
It is true, as the trial court noted, that the children came to
Wisconsin to visit each summer, and on other occasions as well. However, they spent most of their visits
staying with Robert's parents and other relatives in Iowa. In fact, until early 1994, Robert also spent
little time in Wisconsin due to the travel demands of his job. Meanwhile, while not visiting their
midwestern relatives, Kathryn and the children became fully integrated into
their Virginia community. The trial
court therefore erred by concluding that the children's ties to Wisconsin
exceeded those more recently established in Virginia.[2]
Furthermore, the subject
of the litigation is Kathryn's allegedly disruptive conduct, most of which
occurred in Virginia. "The
interest of the child is served when the forum has optimum access to relevant
evidence about the child and family."
Id. at 565, 485 N.W.2d at 457 (quoted source
omitted). Most of the evidence
concerning Kathryn's conduct in Virginia probably exists in Virginia. Although the trial court emphasized the many
relations and friends the children still have in Wisconsin, it is not explained
how that circumstance bears on Kathryn's conduct in Virginia since the divorce.
Robert cites the
Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A, to support
the proposition that the Grant County trial court may continue to exercise
jurisdiction based on its status as the court of original custody
jurisdiction. However, we held that the
PKPA "will not become an issue in a Wisconsin court unless a child custody
determination by a court of another state is attacked or sought to be modified
in a Wisconsin court." Davidson,
169 Wis.2d at 554, 485 N.W.2d at 453.
That is not the case here.
We therefore reverse and
remand with instructions that the trial court dismiss Robert's custody
petition. Our holding that Wisconsin
lacks jurisdiction makes it unnecessary to determine whether this state is a
convenient forum under § 822.07, Stats.
By the Court.—Order
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.