SWAN VS. SWAN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reversed the denial of a motion to vacate the custody provisions of a default divorce decree, holding the district court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), NRS 125A.050. None of the pertinent jurisdictional bases applied: (1) Nevada was not the children's 'home state' under NRS 125A.050(1)(a)(1) and NRS 125A.040(5), because the children had resided in Nevada fewer than 40 days, far short of the six-month requirement; (2) the significant-connection/best-interest basis under NRS 125A.050(1)(b) was absent, as fewer than 40 days could not constitute a significant connection and no evidence showed Nevada's assumption of jurisdiction served the children's best interest; and (3) the 'no other state' basis under NRS 125A.050(1)(d) was negated by a letter from a Utah district judge advising of a pending Utah action on the same subject matter and Utah's interest in adjudicating. Emergency jurisdiction under NRS 125A.050(1)(c) did not apply, as the children had not been abandoned and no emergency existed. The court further held that, even had jurisdiction existed, the district court should have addressed whether Nevada was an inconvenient forum, adopting the three-step analysis of In re Marriage of Schmidt, 436 N.W.2d 99, 104 (Minn. 1989) (jurisdiction, then pending-proceeding inquiry, then inconvenient forum). The mother's indigency and the Act's goal of deterring unilateral removal of children weighed against Nevada's exercise of jurisdiction. Following State ex rel. State of Pa. v. Stork, 641 P.2d 660 (Or. Ct. App. 1982), the court held the custody portion of the decree void. Subject matter jurisdiction cannot be waived, may be raised for the first time on appeal or sua sponte, and cannot be conferred by the parties; the mother did not waive the defect by failing to appear. The court directed strict compliance with the UCCJA.

In plain language

Maryann and Richard Swan married and lived in Utah until they separated in September 1986. In January 1987, Richard moved to Nevada while Maryann stayed in Utah with the children. On September 28, 1987, Richard filed for divorce in Nevada, and a few days later he took the children from Utah to Nevada. Maryann filed an answer challenging whether the Nevada court had power over the custody question, but she did not otherwise participate. In November 1987, the Nevada court entered a default divorce decree giving Richard custody. About a year and a half later, Maryann asked the court to throw out the custody part of the decree, arguing the Nevada court never had authority to decide custody under the Uniform Child Custody Jurisdiction Act (UCCJA). The district court refused. The Nevada Supreme Court reversed. Under the UCCJA (adopted in Nevada), a court can decide custody only in specific situations, and none applied here. Nevada was not the children's 'home state,' because they had lived in Nevada fewer than 40 days - far short of the six months the law requires. There was no 'significant connection' to Nevada or substantial evidence here about the children's care; the children were actually better off in Utah, where they went to school and had family. The emergency provision did not apply because the children had not been abandoned and there was no emergency. And the 'no other state has jurisdiction' provision did not apply either, because a Utah judge had written to the Nevada judge explaining that a Utah case on the same matter was pending and that Utah was interested in deciding it. The court also stressed that, even if Nevada had jurisdiction, the judge should have considered whether Nevada was an inconvenient forum - Maryann was indigent, and forcing her to litigate in Nevada would be a serious burden and would reward the unilateral removal of children, which the UCCJA is meant to discourage. Finally, the court held that a lack of subject matter jurisdiction can be raised at any time, even for the first time on appeal, and cannot be waived - so Maryann did not lose the argument by failing to appear. Because the Nevada court had no jurisdiction, the custody portion of the decree was void and was reversed.