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Fox v. Grace

Supreme Court of Alaska

December 28, 2018

JONATHAN FOX, Appellant,

          Appeal from the Superior Court No. 3 AN- 17-09987 CI of the State of Alaska, Third Judicial District, Anchorage, Eric A. Aarseth, Judge.

          Jonathan Fox, pro se, Yakutat. Herbert M. Pearce, Law Offices of Herbert M. Pearce, Anchorage, for Appellees.

          Before: Winfree, Stowers, Maassen, and Carney, Justices. [Bolger, Chief Justice, not participating.]


          CARNEY, JUSTICE.


         The superior court denied a father's motion to modify custody because it did not believe it had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to modify an Oregon custody order.[1] The father appeals, arguing that the superior court erred in failing to consider the controlling statute that governs the court's jurisdiction to modify an out-of-state order.

         We agree. The controlling statute, AS 25.30.320, allows the superior court to modify an out-of-state custody order if it "determines that neither the child, nor a parent, nor a person acting as a parent presently resides in the other state." It does not appear from the record that the superior court considered this subsection of the statute. We therefore vacate the superior court's order denying the motion to modify for lack of jurisdiction.

         The father also appeals an order imposing sanctions, including costs and attorney's fees. Because that order is premised on the court's jurisdictional ruling, we also vacate the sanctions order.


         In October 2017 Jonathan Fox registered in the superior court an original custody order and two supplemental judgments that modified the original custody order, all entered by an Oregon state court. These judgments established visitation for Fox's parents, Gary and Shannon Grace, with Fox's two children.

         In early January 2018 the Oregon court held a hearing to address motions filed by the Graces to modify custody and to hold Fox in contempt for missed visitation days over winter break. The Oregon court denied the motion to modify but added spring break visitation to make up for missed days. Fox then filed an expedited motion in the Alaska superior court to modify the visitation established in the Oregon custody orders. He argued that the Graces were no longer able to provide adequate care for the children and requested that the court "discontinue compulsory grandparent visitation."

         On January 30 the superior court entered an order stating it "[did] not have jurisdiction to modify the current custody order issued by the Oregon Court." Shortly thereafter the court entered an expanded order explaining that it read the Oregon orders to "establish that the Oregon Court exercised initial jurisdiction over [the children]," and that "[t]he most recent order... demonstrates that the Oregon Court retained continuing and exclusive jurisdiction . . . ." The court explained it could enforce an out-of-state order registered with the court, but AS 25.30.320 did not permit it to supersede or modify an out-of-state order unless the issuing state had released jurisdiction.[2]

         A few days later the Graces filed a motion requesting sanctions pursuant to Alaska Civil Rule 11(b).[3] The Graces argued to the superior court that because a recent custody and visitation order from the Oregon court "specifically addressed the issue of jurisdiction and required the parties to submit to mediation prior to the filing of any new motion," Fox and his counsel should be sanctioned for failing to advise the superior court of that order in their pleadings. The Graces attached a copy of a January 2018 order entered by the Oregon court, which stated that "jurisdictional arguments made by Respondent [Fox] are denied." The Graces argued that Rule 11 sanctions were appropriate because Fox and his counsel were aware of this order but did not notify the superior court of the order.

         On February 5 Fox filed a motion for reconsideration of the court's order denying his motion to modify for lack of jurisdiction. Fox argued that the requirements of AS 25.30.320 were satisfied, authorizing the court to modify the Oregon order. Fox stated that the superior court had jurisdiction to make an initial custody determination as required by the first part of AS 25.30.320.[4] He then argued that neither of the children, neither parent, nor any person acting as a parent as defined by statute resided in Oregon, and, as a result, the court could exercise jurisdiction pursuant to AS 25.30.320(2). Fox attested in an affidavit that he and his two children had resided in Alaska since December 2016. The superior court denied Fox's motion for reconsideration the day after he filed it.

         Fox also opposed the Graces' motion for Rule 11 sanctions. He argued that he had advised the superior court of the January 2 hearing and associated rulings in his memorandum in support of the motion. The Graces' reply emphasized that Fox had not disputed "the fact that the Oregon Order demonstrated that the Oregon Court had already addressed . . . [Fox]'s arguments regarding jurisdiction and denied them." (Emphasis omitted.) The Graces asserted "there was no good faith argument to be made by . . . [Fox] that Alaska had jurisdiction to modify the Oregon ...

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