Friedman v. Eighth Judicial District Court Ex Rel. County of Clark

Statutes cited

Key holdings

Practitioner summary

**Standard of review and writ standards.** Unless the jurisdictional facts are disputed — and they were not here — subject matter jurisdiction under the UCCJEA presents questions of law reviewed de novo. Ogawa v. Ogawa, 125 Nev. __, __, 221 P.3d 699, 704 (2009). Review properly consults decisions from other UCCJEA states to promote uniformity per NRS 125A.605. The court's original writ jurisdiction rests on Nev. Const. art. 6, § 4; prohibition lies to arrest proceedings in excess of jurisdiction (NRS 34.320), mandamus to compel performance of a legal duty (NRS 34.160), and the writ may issue where there is no plain, speedy, and adequate legal remedy (NRS 34.330). Although writ review of a denial of a motion to dismiss is disfavored, the court entertained the petition because "the issue is not fact-bound and involves an unsettled and potentially significant, recurring question of law." Buckwalter v. Dist. Ct., 126 Nev. __, __, 234 P.3d 920, 921 (2010); see also Westpark Owners' Ass'n v. Dist. Ct., 123 Nev. 349, 356, 167 P.3d 421, 426 (2007); Mineral County v. State, Dep't of Conserv., 117 Nev. 235, 243, 20 P.3d 800, 805 (2001). **Loss of exclusive, continuing jurisdiction.** Nevada codified the UCCJEA as NRS Chapter 125A in 2003. Nevada indisputably had jurisdiction under NRS 125A.305 to make the initial custody determination, which ordinarily confers "exclusive, continuing jurisdiction" under NRS 125A.315. But under NRS 125A.315(1)(b) (UCCJEA § 202, adopted in California as Cal. Fam. Code § 3422), that jurisdiction ceases when a court of this state or another state determines that "the child, the child's parents and any person acting as a parent do not presently reside in this state." The district court made exactly that jurisdiction-ending finding. In footnote 4, the court rejected Kevyn's argument that both NRS 125A.315(1)(a) and (1)(b) must be satisfied, noting the paragraphs are joined by "or," citing Anderson v. State, 109 Nev. 1129, 1134, 865 P.2d 318, 321 (1993). **"Commencement of the proceeding."** Once exclusive, continuing jurisdiction ceases, a court may modify its prior determination "only if it has jurisdiction to make an initial [child custody] determination pursuant to NRS 125A.305." NRS 125A.315(2). The relevant "proceeding" for the home-state analysis under NRS 125A.305(1)(a) is the post-divorce custody or visitation motion, not the original divorce action — a reading implicit in NRS 125A.055 (defining "child custody proceeding") and NRS 125A.065 (defining "commencement"), and consistent with Sidell v. Sidell, 18 A.3d 499, 506 (R.I. 2011), and In re A.C.S., 157 S.W.3d 9, 16 (Tex. App. 2004). Kevyn's August 2010 motion, though styled as one for "confirmation," sought substantive modifications and initiated a new proceeding requiring fresh jurisdictional analysis. **Home state and simultaneous proceedings.** Kevyn conceded California had become the children's "home state" under NRS 125A.085(1). That concession, coupled with the district court's residency findings, at minimum established Daniel's pending California proceeding as one commenced in a court "having jurisdiction substantially in accordance with the provisions of [the UCCJEA]." NRS 125A.355(2); see NRS 125A.305(1)(a); NRS 125A.315(1)(b); Cal. Fam. Code §§ 3421(a)(1), 3422; In re Marriage of Nurie, 98 Cal. Rptr. 3d 200, 220 (Ct. App. 2009). Under NRS 125A.355(2), the Nevada court was required to stay its proceeding, communicate with the California court, and dismiss unless California determined Nevada to be the more appropriate forum. **Forum-selection agreements and estoppel.** NRS 125A.305(2) makes NRS 125A.305(1) "the exclusive jurisdictional basis for making a child custody determination by a court of this State." Because the UCCJEA treats this as subject matter jurisdiction, "an agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under this Act is ineffective." UCCJEA § 201 cmt.; Sidell, 18 A.3d at 508; In re Custody of A.C., 200 P.3d 689, 693 n.8 (Wash. 2009). A forum agreement plays only a supporting role: it is a factor a court with UCCJEA jurisdiction may consider in declining jurisdiction on inconvenient/more appropriate forum grounds. NRS 125A.305(1)(b), (c); NRS 125A.365(2)(e); Cal. Fam. Code § 3421(a)(2), (3). Critically, the decision to decline jurisdiction belongs to the state that has UCCJEA jurisdiction — here, California — not the state to which deferral is pressed. NRS 125A.365(1); Krebs v. Krebs, 960 A.2d 637, 643-44 (Md. Ct. Spec. App. 2008); Horgan v. Romans, 851 N.E.2d 209, 213 (Ill. Ct. App. 2006). The court distinguished Hendry v. Hendry, 771 A.2d 701 (N.J. Super. Ct. App. Div. 2001), as a UCCJA-era decision, quoting Staats v. McKinnon, 206 S.W.3d 532, 547 (Tenn. Ct. App. 2006), on the danger of reflexive reliance on pre-UCCJEA case law. The court also rejected judicial and equitable estoppel arguments premised on Vaile v. Dist. Ct., 118 Nev. 262, 44 P.3d 506 (2002). A court lacking UCCJEA subject matter jurisdiction does not acquire it by estoppel. Sidell, 18 A.3d at 508 (quoting Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 702 (1982)); In re A.C.S., 157 S.W.3d at 15. Vaile is not contrary: its estoppel applied only to the parents' divorce, while the child custody portions of that decree were held void for want of jurisdiction under the then-governing UCCJA. Kevyn's detrimental-reliance argument must be directed to the California court in a motion asking it to decline jurisdiction, not to a Nevada court "seeking to persuade it to arrogate jurisdiction to itself that it statutorily does not have." **Disposition.** The court granted the petition and directed issuance of alternative writs of prohibition and mandamus ordering the district court to stand down from its assertion of jurisdiction except to the extent permitted by NRS 125A.355(2), and to dismiss the case unless the California court declines jurisdiction in favor of Nevada.

In plain language

Daniel and Kevyn Friedman divorced in Nevada in November 2008. Their stipulated divorce decree — one both sides agreed to — gave them joint legal custody of their three young children and included a promise that Nevada courts would "always" be the place where any future custody fights would be decided, no matter where the family lived. The decree anticipated that Kevyn and the children would move to Idaho and eventually California, and that custody would shift to a joint physical arrangement once Daniel found work in California. That is roughly what happened: Daniel found work in California and moved there, and Kevyn and the children followed. But the parents could not agree on a joint custody schedule. In August 2010, Kevyn went back to the Nevada court and asked for primary physical custody. Daniel objected, arguing that because no one in the family lived in Nevada anymore, the Nevada court had lost its power (its "subject matter jurisdiction") to decide the dispute. He also registered the decree in California and started a competing custody proceeding there. The Nevada district court sided with Kevyn, holding that the parents' written agreement to a Nevada forum trumped the jurisdictional rules and that Daniel was barred ("estopped") from denying Nevada's jurisdiction because he had agreed to it. The Nevada Supreme Court disagreed and granted Daniel's petition. The court explained that the UCCJEA — a uniform law adopted by Nevada, California, and every state except Massachusetts — is "the exclusive jurisdictional basis for making a child custody determination by a court of this State." Under that law, a state's ongoing jurisdiction over its own custody orders ends once a court finds that the child, the parents, and anyone acting as a parent no longer live in the state. The district court itself found that the entire family had left Nevada for California, so Nevada's jurisdiction ceased. By the time Kevyn filed her 2010 motion, California had become the children's "home state" under the UCCJEA — a point Kevyn conceded. The court held that the parents' agreement to litigate in Nevada could not change this result, because parties cannot create subject matter jurisdiction by agreement. Such a forum-selection agreement is not meaningless: it is one factor a court that actually has jurisdiction (here, California) may weigh in deciding whether to hand the case off to another state as the more appropriate forum. But that decision belongs to California, not Nevada. In the Supreme Court's words, by declaring itself possessed of jurisdiction and suggesting that California could ask Nevada to defer, "the district court got things precisely backward." For the same reason, the court rejected the argument that Daniel was judicially or equitably estopped from contesting jurisdiction — a court that lacks subject matter jurisdiction under the UCCJEA "does not acquire it by estoppel." The Supreme Court directed the district court to stand down from its assertion of jurisdiction except as permitted by NRS 125A.355(2) — the provision requiring it to stay its proceeding and communicate with the California court — and to dismiss the case unless the California court declines jurisdiction in favor of Nevada. Two justices dissented, taking the view that extraordinary writ relief was not warranted at this time.