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.]
OPINION
CARNEY, JUSTICE.
I.
INTRODUCTION
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.
II.
FACTS AND PROCEEDINGS
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
...