Krebs v. Krebs

RODOWSKY, J. This is an interstate child custody dispute involving jurisdiction to enter the initial custody order. Arizona is the domicile of the mother, the appellant, Jennifer Krebs (Ms. Krebs). Maryland is the domicile of the father, the appellee, Chad Krebs (Mr. Krebs). Jurisdiction is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) that was promulgated in 1997 by the National Conference of Commissioners on Uniform State Laws (the Commissioners).

See 9, Part IA, U.L.A. 655 (1999). Maryland adopted the UCCJEA by Chapter 502 of the Acts of 2004. The Maryland version is codified in Maryland Code (1984, 2006 Repl.Vol.), Title 9.5 of the Family Law Article (FL). Arizona adopted the UCCJEA effective January 1, 2001. 9, Part IA, U.L.A., 2008 Cum.Supp. at 92. ¹⁰⁵ On July 10, 2007, Mr. Krebs filed for an absolute divorce from Ms. Krebs in the Circuit Court for Worcester County.

By a motion filed August 2, 2007, he sought emergency custody of the couple’s two children. The children’s home state was Arizona, but they were then visiting with their father. Before Ms. Krebs was served with the complaint or the motion, the court granted Mr. Krebs temporary custody of the two children, pending trial on the merits. The merits were heard at a trial on March 28, 2008, at which Ms. Krebs testified and was represented by counsel.

The court granted Mr. Krebs sole legal and physical custody of the children, with reasonable visitation by Ms. Krebs. 1 Ms. Krebs appeals the custody determination and presents two questions for our review, the order of which we have reversed: I. “Did the trial court err when it granted custody to the Appellee ex parte and did it further err by failing to hold a pendente lite custody hearing and did those errors amount to a denial of the appellant’s due process rights?” II. “Did the trial court err when it found that Maryland had jurisdiction to make the child custody determination under the UCCJEA?” Facts and Procedural History The parties were married in 1996 in Las Vegas, Nevada. The marriage produced two children: Tyler Michael Krebs, born on April 26, 1997, and Caleb John Krebs, born on February 11, 2003. The family resided in Arizona until Mr. Krebs, on June 24, 2006, left them and relocated to Worcester County, Maryland, where his brother resided. Ms. Krebs continued as the caregiver for the children.

On May 25, 2007, Mr. Krebs picked up his children in Phoenix for a summer visit in Maryland. After Mr. Krebs had completed one year’s residence, 2 he filed for an absolute divorce in Worcester ¹⁰⁶ County on July 10, 2007. At Mr. Krebs’s direction, a writ of summons was issued for service by a private process server on Ms. Krebs at the address of a mortgage company in Phoenix. That process and the complaint were received by the process server in Phoenix on July 12, 2007, but she was unable to serve Ms. Krebs.

Sometime after Mr. Krebs left home, Ms. Krebs and her sons had moved to Colorado. She resumed residing in Arizona after her sons had gone to visit with their father. Beginning in July 2007, Ms. Krebs lived with a female Mend in Buckeye, Arizona. During the summer of 2007, Ms. Krebs routinely would telephone her sons at the home of the woman with whom Mr. Krebs was living.

Ms. Krebs testified at the merits hearing that Tyler “was calling me saying, mom, you have a private investigator looking for you, are you hiding from the cops?” Ms. Krebs acknowledged that “it just kind of freaked me out and so I didn’t give him [Mr. Krebs] my address and I should have.” Meanwhile, following his instituting the divorce action, Mr. Krebs became concerned for his sons’ safety and best interests if they returned to Ms. Krebs in Arizona. On August 2, 2007, he moved in the divorce action for emergency custody of the two children. There is no certificate of service on the motion. By order of August 3, the court in Worcester County set the motion for hearing on August 23, 2007, together with a scheduling conference.

The court clerk’s notice of the date for these proceedings was mailed to Ms. Krebs at the mortgage company address, the only address appearing for her at that time in the court file. That same day, August 3, 2007, Ms. Krebs moved for temporary child custody, child support, and spousal maintenance in the Superior Court of Arizona for Maricopa County. The emergency hearing in Worcester County was held on August 23, 2008. Ms. Krebs was not present in person or by counsel.

The presiding master noted that Ms. Krebs had not yet been served with either the complaint for divorce or the motion for temporary custody. She proceeded with the hear ¹⁰⁷ ing, but required that efforts be continued to serve Ms. Krebs and stated that the hearing was only a pendente lite matter. At the hearing, Mr. Krebs testified that he had contacted the company that Ms. Krebs had told him was her place of employment, but she no longer worked there. He claimed that Ms. Krebs had recently been evicted from her apartment and that he had no address for where she was living, so that, if the children returned to Arizona, they would have no suitable living arrangements.

Moreover, Mr. Krebs said that, in a telephone conversation with Ms. Krebs, she had threatened that she was coming to Maryland to get the children and take them back to Arizona. He testified he had received a phone call from a detective in Arizona notifying him that a convicted felon had been living with Ms. Krebs and the children. He expressed the belief that Ms. Krebs was using drugs, because, upon the children’s arrival in Maryland, Mr. Krebs had found a pack of rolling papers in one of their backpacks. Also, Ms. Krebs’s sister, who lives in Phoenix, had told him that Ms. Krebs was using marijuana and possibly crystal meth.

The master found that “an emergency existed which required immediate temporary relief, and recommended that [Mr. Krebs] have pendente lite legal and physical custody of both boys, until the trial on the merits at a later date.” The circuit court accepted the master’s recommendations in an order dated August 29, 2007. Back to Arizona. On September 4, 2007, Judge Harriet Chavez of the Maricopa County Court met with Ms. Krebs in a scheduled resolution management conference. Mr. Krebs’s private process server served Ms. Krebs with the Maryland divorce complaint at the courthouse on that day.

Later that day, a UCCJEA telephone conference was set for September 11, to resolve jurisdiction over child custody. Prior to that conference, on September 7, Ms. Krebs, in proper person, filed a statement of position in Arizona, with a copy by mail to Mr. Krebs. She submitted that Arizona had home state jurisdiction over the children and that Mr. Krebs’s failure to return the children was unjustified. Further, on the day before the ¹⁰⁸ conference, Ms. Krebs, in proper person, faxed to Mr. Krebs and his attorney a response to the motion filed in Maryland by Mr. Krebs for emergency custody.

That response disputed the material allegations of Mr. Krebs’s motion. 3 The UCCJEA telephone conference was held on September 11, 2007, between the Arizona judge and the Maryland master. Also present in Maryland were Mr. Krebs, his counsel, and a court reporter. Ms. Krebs was not present at the Arizona end of the conference. It was agreed that Arizona was the home state.

The master asserted that Maryland was the more convenient forum and that the children at that time had significant connections to Maryland. The Arizona court agreed and declined to exercise custody jurisdiction in favor of Maryland. Two days later, the Circuit Court for Worcester County approved the master’s report to that effect. 4 Three days later, at a meeting with the Arizona judge, Ms. Krebs was advised of the conclusion reached at the UCCJEA conference, and she was given all the documents faxed to that court from Maryland. The Arizona court then dismissed Ms. Krebs’s action.

On October 12, 2007, Ms. Krebs, through counsel, appeared in the Maryland action. At her request, the court postponed a November 7, 2007 scheduling conference and the November 28, 2007 trial date. The former was held on December 20, 2007, and the merits trial was held on March 28, 2008. Ms. Krebs’s initial filings included a motion to revise the temporary custody ruling.

That motion was denied on November 7, 2007. On November 26, 2007, Ms. Krebs moved for a penden ¹⁰⁹ te lite custody hearing to be held on December 20, 2008, when she would be in Maryland for the postponed scheduling conference. That motion was denied on December 19. At the conclusion of the merits hearing of March 28, 2008, the court, ruling orally from the bench, awarded custody to Mr. Krebs with visitation to Ms. Krebs.

Essentially, the court found stability for the children in Worcester County but instability in Ms. Krebs’s life. 5 This judgment is not directly challenged on this appeal. Additional facts will be stated in the discussion of the issues. I Ms. Krebs submits that her due process rights were violated by the Worcester County court’s (A) holding, without notice to her, an ex parte emergency hearing at which custody pendente lite was awarded, and (B) declining to hold a pendente lite hearing when she requested one. She contends that, even if there were an emergency, the court should have done no more at the ex parte hearing than establish custody until a hearing could be held after notice to her and at which custody, pending the merits trial, would be established.

These issues raised by Ms. Krebs are moot. If we assume, arguendo, that Ms. Krebs would prevail in her contention that the court should not have issued a pendente lite order until ¹¹⁰ she had notice and an opportunity to appear at the hearing, the only relief that this Court could grant would be to vacate the pendente lite order and remand the matter for a new hearing at which she would have the opportunity to be present. But, Ms. Krebs has had a plenary hearing on the merits. Consequently, the issue is moot.

See In re Damien F. & Terrell F., 182 Md.App. 546 , 958 A.2d 402 (2008) (recognizing, in CIÑA case, that issue of parents’ absence from emergency shelter hearing was mooted by subsequent adjudicatory hearing at which child was found to be CINA); National Collegiate Athletic Ass’n v. Tucker, 300 Md. 156 , 476 A.2d 1160 (1984) (finding moot appeal from denial of preliminary injunction against certain players participating in inter-collegiate lacrosse games, where season ended before appeal could be heard); Campbell v. Lake Hallowell Homeowners Ass’n, 152 Md.App. 139 , 831 A.2d 465 , cert. denied, 378 Md. 614 , 837 A.2d 926 (2003) (holding to be moot former homeowners’ appeal from injunction, obtained by homeowners association against covenant violations, where appellant homeowners had moved from the development); Etter v. Etter, 43 Md.App. 395, 397-98 , 405 A.2d 760, 762 (1979) (holding to be moot parent’s contention that ex parte custody order was void, because issued prior to court clerk’s file being opened, where court subsequently held full hearing on jurisdictional issue). Further, the ex parte order of which Ms. Krebs complains expired by its terms when there was a determination of custody following the merits hearing. Thus, the instant matter is analogous to a case that is rendered moot because an injunction expired before its grant could be reviewed on appeal. See Teferi v. Dupont Plaza Assocs., 77 Md.App. 566, 580 , 551 A.2d 477, 484-85 (1989) (finding moot appeal from ex parte injunction that dissolved ten days after its entry).

II Ms. Krebs also contends that the factors listed in the UCCJEA for determining whether a forum is inconvenient have not been applied or have been misapplied. She submits that Arizona is the more appropriate forum. She asks that we ¹¹¹ reverse the custody judgment of the Circuit Court for Worcester County and remand this case to that court with instructions to limit its judgment to an award of temporary custody only and to direct Mr. Krebs to go to the children’s home state of Arizona for a determination of permanent custody. It is undisputed that the jurisdiction of the Maryland court in this case rests exclusively on FL § 9.5-201(a)(2) [UCCJEA § 201(a)(2)], which in relevant part reads: “[A] court of this State has jurisdiction to make an initial child custody determination only if: “(2) ... [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 § 9.5-207 ... of this subtitle, and: “(i) ... the child and at least one 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[.]” FL § 9.5-207 is, substantially, UCCJEA § 207 and Arizona Revised Statutes (A.R.S.) § 25-1037.

The latter statute reads: “ § 25-1037. Inconvenient forum “A. A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised on motion of a party, the court’s own motion or request of another court. “B. Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to ¹¹² submit information and shall consider all relevant factors including: “1.

Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child. “2. The length of time the child has resided outside this state. “3. The distance between the court in this state and the court in the state that would assume jurisdiction. “4. The relative financial circumstances of the parties. “5.

Any agreement of the parties as to which state should assume jurisdiction. “6. The nature and location of the evidence required to resolve the pending litigation, including testimony of the child. “7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence. “8. The familiarity of the court of each state with the facts and issues in the pending litigation.” 6 Ms. Krebs recognizes that, “[a]s the home state, the decision that Arizona was an inconvenient forum and that Maryland was a more convenient forum must be made by the ¹¹³ Arizona court and not the Maryland court.” Appellant’s Brief at 11.

We agree. Ms. Krebs further argues that, in deciding whether it, or the Maryland court, was the more convenient forum, the Arizona court erred because it did not consider the eight factors listed in A.R.S. § 25-1037. The argument is based on the transcript of the telephone conference held on September 11, 2007, between the two courts. That transcript does not reflect any “checklist” review of factors listed in the statute.

Ms. Krebs makes her argument to the wrong court. In reviewing the judgment of the Circuit Court for Worcester County, this Court does not have the power or authority to conclude, or to enforce a conclusion, that the Superior Court of Arizona for Maricopa County erred in applying A.R.S. § 25-1037. If Ms. Krebs was aggrieved by that court’s declination of jurisdiction, the appropriate review would be in the appellate courts of Arizona. The statutory language is clear.

A Maryland court can acquire initial child custody determination jurisdiction if “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 [FL] § 9.5-207.” FL § 9.5-201(a)(2). In the reverse of the situation presented here, FL § 9.5-207(a) provides that, if a court of this State has jurisdiction to make a child custody determination, it “may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum ... and that a court of another state is a more appropriate forum.” (Emphasis added). Similarly, A.R.S. § 25-1037 empowers a court of Arizona to “decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum ... and that a court of another state is a more appropriate forum.” (Emphasis added). Our reading is consistent with comments by the Commissioners to §§ 201 and 207 of the UCCJEA.

As to UCCJEA § 201, “Initial Child-Custody Jurisdiction” [FL § 9.5-201 and A.R. S. § 25-1031], the Commissioners said that “a significant connection State may assume jurisdiction only when there is ¹¹⁴ no home State or when the home State decides that the significant connection State would be a more appropriate forum under Section 207 or 208.” 9, Part IA, U.L.A. at 672 (emphasis added). As to UCCJEA § 207, the Commissioners said: “It [§ 207] authorizes courts to decide that another State is in a better position to make the custody determination, taking into consideration the relative circumstances of the parties. If so, the court may defer to the other State.” 9, Part IA, U.L.A. at 683. The decision arising under the UCCJEA that, insofar as our research discloses, is most analogous to the instant matter is Welch-Doden v. Roberts, 202 Ariz. 201 , 42 P.3d 1166 (2002).

It involved a mother and child who had moved back and forth between Arizona and Oklahoma. The mother sued for custody in Arizona, and the father sued for custody in Oklahoma. After the Arizona and Oklahoma judges had conferred, the Arizona “trial judge determined,” 43 P.3d at 1168, that Oklahoma had jurisdiction as the child’s home state. In subsequent proceedings in Oklahoma, the court there awarded custody to the father.

Meanwhile the mother had appealed in Arizona. After affirming that Oklahoma was the home state, the court considered and rejected the mother’s argument that the Arizona trial court nevertheless should have conducted “a hearing to determine if [home state] jurisdiction was in the child’s best interests.” Id. at 1174. Looking to the plain language of A.R.S. § 25-1031(A) [FL 9.5-201 (a)Wesfs Ann. Md.Code, Family Law, § ], the court said that that statute “provides no possibility of having competing claims of jurisdiction when there is a home state.” Id. Indeed, the statute “provide[s] a state that is not the home state with jurisdiction only if there is no home state or the home state has declined to exercise that jurisdiction.” Id.

The mother argued that the child’s connection with her and their connection with Arizona required a best interests analy ¹¹⁵ sis by the Arizona trial court. In response, the appellate court said: “Mother’s argument does not consider that the UCCJEA expressly provides for a factual hearing in the home state in which that