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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jason Mouritsen v. Julia Mouritsen, n/k/a Julia Taubert (3/13/2020) sp-7428

Jason Mouritsen v. Julia Mouritsen, n/k/a Julia Taubert (3/13/2020) sp-7428

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

JASON  MOURITSEN,                                                )  

                                                                 )     Supreme  Court  No.  S-17401  

                                Appellant,                       )  


                                                                 )     Superior Court No. 3AN-15-05986 CI  

           v.                                                    )  


                                                                 )    O P I N I O N  


JULIA MOURITSEN, n/k/a JULIA                                     )  


                                                                 )    No. 7428 - March 13, 2020  


                                Appellee.                        )  




                      Appeal from the Superior Court of the State of Alaska, Third  


                      Judicial District, Anchorage, Yvonne Lamoureux, Judge.  


                      Appearances:              Jason  Mouritsen,  pro  se,  Sumter,  South  


                      Carolina, Appellant.  Robin A. Taylor, Law Office of Robin  


                      Taylor, Anchorage, for Appellee.  


                      Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  


                      and Carney, Justices.  


                      BOLGER, Chief Justice.  



                      A mother filed a motion for clarification, arguing that Alaska no longer had  


exclusive, continuing jurisdiction over a child custody order under the Uniform Child  


Custody Jurisdiction and Enforcement Act (UCCJEA) after she, her ex-husband, and  


their two children lived in South Carolina for over a year.  The father objected, arguing  

----------------------- Page 2-----------------------


that he was still a resident of Alaska and he intended to return to Alaska after his service  


in the Air Force.  The superior court found that it did not have exclusive, continuing  


jurisdiction over its initial custody order because neither the parents nor the children  


presently resided in Alaska.  The court also suggested that substantial evidence related  


to custody existed in South Carolina, and therefore it was likely the more appropriate  




                    We conclude that it was an error for the superior court to find that it no  


longer had exclusive, continuing jurisdiction under the UCCJEA based on the parties'  


physical presence in South Carolina. Additionally, because the parties and the court did  


not have a full opportunity to address all of the relevant UCCJEA forum non conveniens  


factors, we cannot review the court's jurisdictional ruling on this ground.  We therefore  


vacate the superior court's orders on jurisdiction and remand for further proceedings.  




                    Jason Mouritsen and Julia Taubert have two daughters, born in 2005 and  


2008.  In November 2016 the superior court entered a divorce decree and custody order  


providing for shared legal custody of their daughters.  The court ordered the parties to  


share physical custody equally if they lived in the same community and gave Mouritsen  


primary physical custody if they lived a "significant distance apart."  Mouritsen was  


transferred to Shaw Air Force Base in South Carolina in 2017.  Taubert moved to South  


Carolina to maintain shared physical custody under the order.  


                    In  fall  2018,  while  living  in  South  Carolina,  Mouritsen  and  Taubert  


disputed who would have the children over Thanksgiving break.   Mouritsen filed a  


motion with the superior court to enforce a request for vacation time.  When Taubert's  


attorney failed to oppose the motion in time, the court granted Mouritsen's request. The  

                                                                -2-                                                        7428

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court found that it retained jurisdiction to enforce its custody order, noting that "[t]here                                                                    

is   also  no  indication   that   the   Child   Custody   Order   has   been   registered   in   South  




             A.            Taubert's Motion To Clarify  


                           Taubert  filed  a  motion  to  clarify  the  order.                                             In  addition  to  requesting  


clarification on the dates of vacation custody, Taubert informed the superior court that  


she had registered the 2016 child custody order in South Carolina several months earlier.  


She alleged that "[t]he children have lived there for over 1.5 years, attend school there  


and continue to be in counseling there" and that "[t]hey have no family and no remaining  


contacts in Alaska." Taubert argued that under these circumstances, the Alaska court no  


longer had jurisdiction to enforce the custody order.  


                           Mouritsen opposed this motion, arguing that registration of an out-of-state  


custody  order  for  its  enforcement  does  not  result  in  a  change  in  jurisdiction.                                                                               He  


additionally  argued  that  the  Alaska  court  retained  jurisdiction,  and  it  would  be  


inappropriate for a South Carolina court to modify the Alaska custody order when he  


remained an Alaska resident and would be retiring to Alaska with the children in 2019.  


                           In Taubert's reply toMourtisen's opposition,shepresentedanewargument  


that pursuant to AS 25.30.360 "[e]ven if this court felt it retained jurisdiction, it should  


decline to exercise that jurisdiction in favor of South Carolina being a more convenient  

              1            Earlier that year, while all of the parties were living in South Carolina,                                          

Taubert   and   Mouritsen   disputed   how   the   custody   order  applied   to   his   temporary  

deployments. Mouritsen filed a motion to enforce the custody order. The court came to                                                                                       

the conclusion that it "retained jurisdiction to enforce that Order," and issued an order   

enforcing the custody agreement.                                      

                                                                                     -3-                                                                             7428

----------------------- Page 4-----------------------


  forum."    She asserted that all recent evidence related to the children's education and                                                                                                                                                                                                                                                                                                                                                                                                                      

 medical care was located in South Carolina.                                                                                                                                                                                                                               

                                                                                  The superior court entered an order in January 2019, concluding that it did                                                                                                                                                                                                                                                                                                                                               

  "not have exclusive, continuing jurisdiction under AS 25.30.310" because "neither the                                                                                                                                                                                                                                                                                                                                                                                                                              

  children, nor either parent, presently resides in Alaska, and . . . they have all been living                                                                                                                                                                                                                                                                                                                                                                                                      

  in South Carolina for over a year."                                                                                                                                                                                        The court noted that Taubert had registered the                                                                                                                                                                                                                                       

  custody order and filed a motion to modify in South Carolina.                                                                                                                                                                                                                                                                                                                     The court also observed                                                                      

 that "[i]t appears that South Carolina is a more appropriate forum to consider the motion                                                                                                                                                                                                                                                                                                                                                                                                   

 to modify custody, with the best evidence concerning the children's care, protection,                                                                                                                                                                                                                                                                                                                                                                               

 training, and personal relationships being available in South Carolina."                                                                                                                                                                                                                                                                                                                                                                It further stated                                           

  "In addition, under AS 25.30.310(b), this Court may modify custody now only if it has                                                                                                                                                                                                                                                                                                                                                                                                                            

jurisdiction to make an initial determination under AS 25.30.300, which it does not                                                                                                                                                                                                                                                                                                                                                                                                                               


                                          B.                                      Mouritsen's Motion For Reconsideration                                                                                                                                                                                                                                   

                                                                                 Mouritsen filed a motion for reconsideration, arguing that he continued to                                                                                                                                                                                                                                                                                                                                                                 

 reside in Alaska and that his time in South Carolina was a temporary absence on military                                                                                                                                                                                                                                                                                                                                                                                                

  orders.  He also argued that South Carolina was not a more convenient forum because                                                          

 there was still substantial evidence about the children and their relationships in Alaska,                                                                                                                                                                                                                                                                                                                                                                                               

 he intended to retire to Alaska with the children in late 2019, and moving the case to                                                                                                                                                                                                                                                                                                                                                                                                                                    

  South Carolina would result in further delays because of that state's alternative dispute                                                                                                                                                                                                                                                                                                                                                                                                 

 resolution requirement.                                                                                                                       

                                         2                                       See  AS  25.30.360(a)  (requiring  court  to  have  jurisdiction  to  make  


  inconvenient forum determination).  


                                                                                                                                                                                                                                                             -4-                                                                                                                                                                                                                                            7428  

----------------------- Page 5-----------------------

                                     The superior court requested Taubert's response, and eventually denied                                                                                                            

 Mouritsen's motion for reconsideration.                                                                      It concluded that "[w]hile Mr. Mouritsen and                                                                     

 the children may be considered residents of Alaska for tax purposes, vehicle and voter                                                                                                                                    

 registration, or for purposes of obtaining the Alaska Permanent Fund Dividend, none of                                                                                                                                             

 them 'presently resides in this state.' "                                                              The court explained that it did not consider the                                                                         

 21 months that Mouritsen, Taubert, and the children had spent in South Carolina to be                                                                                                                                             

 a   "temporary   absence,"   despite   Mouritsen's   "intent   to   return  to  Alaska   upon   his  

                                 3    The court reasoned:  


                                     The children have been going to school in South Carolina and  


                                    they  have  been  treated  by  medical  providers  in  South  


                                     Carolina since they moved there.   Both parties have been  


                                    working and living in South Carolina since they moved there.  


                                     The   court   is   unaware   of   factual   disputes   [related   to  


                                    jurisdiction] that would warrant an evidentiary hearing.  


 Mouritsen appeals.  


 III.              STANDARD OF REVIEW  


                                    Whether a court has jurisdiction under the UCCJEA to modify a child  


 custody order is a question of law that we review de novo.4                                                                                                                   Compliance with the  


                  3                 Mouritsen's intention to retire in Alaska had been clear since the creation                                                                                                     

 of the custody order in 2016.                                                  

                   4                Berry v. Coulman, 440 P.3d 264, 269 (Alaska 2019) ("Whether a court has  


jurisdiction  to  modify  a  child  support  order  presents  a  question  of  subject  matter  


jurisdiction, which is a question of law we review de novo."); Fox v. Grace, 435 P.3d  


 883, 885 (Alaska 2018) ("Whether a court can exercise jurisdiction under the UCCJEA  


 is a question of law, which we review de novo." (quoting Steven D. v. Nicole J., 308 P.3d  


 875, 879 (Alaska 2013))).  


                                                                                                                 -5-                                                                                                        7428

----------------------- Page 6-----------------------


procedural requirements of AS 25.30.360 is subject to our independent judgment.                                                       




           A.	       The Superior Court Had Exclusive, Continuing Jurisdiction Because  


                     We  Define  "Presently  Resides"  In  AS  25.30.310(a)(2)  To  Mean  



                     Mouritsen raises 14 points on appeal, many of which are arguments that the  


superior court's denial of jurisdiction was erroneous.  His main contention is that the  


superior court erroneously declined jurisdiction by concluding that he did not "presently  


reside" in Alaska.  Mouritsen challenges the superior court's interpretation of the term  


"presently resides" in AS 25.30.310(a)(2).  


                     The superior court interpreted "presently resides" to mean living in the  


state, while Mouritsen argues that, under AS 01.10.055, he "presently resides" in the  


state through his continued Alaska residency.   He asserts that "[h]e established his  


residency by being physically present in the state for almost 10 years with the intent to  


remain indefinitely and make a home in the state."   Furthermore, he notes that his  


demonstrated "intention to retire in Alaska and remain an Alaska resident has never  


wavered." He asserts he "never established or claimed residency in South Carolina" and  


Alaska is "his state of residency on his pay stubs, income tax returns, voter's registration,  


car registrations(includingvehicles purchased whilein South Carolina), driver's license,  


and receipt of PFD."  

           5         Mikesell  v.  Waterman, 197 P.3d 184,  186-87 (Alaska 2008) (citing  Acevedo  

v.  Burley,   944   P.2d   473,   476   n.2 (Alaska   1997))   (reviewing   decision  not   to  hold   an  

evidentiary  hearing  for  inconvenient  forum  motion  using  independent  judgment).   

                                                                   -6-	                                                           7428

----------------------- Page 7-----------------------

                                 Under   AS   25.30.310(a)(2)   a   court  maintains   exclusive,   continuing  

jurisdiction over a custody determination until a court "determines that neither the child,                                                                                                          

 nor a parent . . . presently resides in this state."                                                               In full, AS 25.30.310(a)(2) provides:                                                       

                                 (a)	            Except as otherwise provided in AS 25.30.330, a court                                                              

                                                 of        this          state           that          has          made              a      child             custody  

                                                 determination                         consistent                   with           AS          25.30.300                    or  

                                                 25.30.320  has exclusive, continuing jurisdiction over                                                                

                                                 the determination until                     

                                                 . . .   

                                                 (2)             a court of this state or a court of another                                    

                                                 state   determines   that   neither   the   child,   nor   a  

                                                 parent, nor a person acting as a parent                                                   presently  

                                                                                                 [  ]  

                                                 resides  in this state.                          6 

                                 To  address  Mouritsen's  argument  that  the  denial  of  jurisdiction  was  


 erroneous,  we  must  determine  whether  the  statute  supports  his  interpretation  of  


 "presently  resides."                                "Presently  resides"  is  not  defined  in  Alaska's  version  of  the  


 UCCJEA,7  nor have we defined it.  "When we engage in statutory interpretation '[w]e  


 interpret the statute "according to reason, practicality, and common sense, considering  


 the meaning of the statute's language, its legislative history, and its purpose . . ." ' "8  


 Additionally, "we apply 'a sliding scale approach, where "[t]he plainer the statutory  


                 6	              AS 25.30.310(a)(2) (emphasis added).                                                           

                 7               See  AS 25.30.909.                                 Although  the UCCJEA  is a "uniform" multi-state  


 statute, we are applying Alaska's version of the statute.  AS 25.30.300-.390.  


                 8               Berry v. Coulman, 440 P.3d 264, 270 (Alaska 2019) (alteration in original)  


 (quoting Reasner v. State, Dep't of Health & Social Servs., Office of Children's Servs.,  


 394 P.3d 610, 617 (Alaska 2017)).  


                                                                                                      -7-	                                                                                            7428

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language is, the more convincing the evidence of contrary legislative purpose or intent                                                  

must be." ' "        9  

                      We  begin  our  analysis  by  noting  that  Mouritsen's  interpretation  of  


"presently resides" in AS 25.30.310(a)(2) would make this provision of the UCCJEA  


equivalent to "residency" under Alaska law.   Alaska's definition of "residency" in  


AS 01.10.055 takes a holistic approach including a person's intent to remain and make  


a home in the state:  


                       (a)	       A person establishes residency in the state by being  


                                  physically present in the state with the intent to remain  


                                  in the state indefinitely and to make a home in the  




                       (b)	       A person demonstrates the intent required under (a) of  


                                  this section  


                                  (1)	       by maintaining a principal place of abode in the  


                                             state for at least 30 days or for a longer period  


                                             if  a  longer  period  is  required  by  law  or  


                                             regulation; and  


                                  (2)	       by providing other proof of intent as may be  


                                             required  by  law  or  regulation,  which  may  


                                             include proof that the person is not claiming  


                                             residency outside the state or obtaining benefits  


                                             under a claim of residency outside the state.  


                       (c)	       A  person  who  establishes  residency  in  the  state  


                                  remains a resident during an absence from the state  


                                  unless during the absence the person establishes or  


                                  claims residency in another state, territory, or country,  


                                  or performs other acts or isabsent under circumstances  


           9          Id.  (quoting  Reasner, 394 P.3d at 617 (alteration in original)).                                         

                                                                       -8-	                                                              7428

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                                               that are inconsistent with the intent required under (a)                                                               

                                               of this section to remain a resident of this state.                                                

                                The definition of "residency" provided in AS 01.10.055 is part of a series                                                                                   

of general definitions and rules of statutory construction that are meant to apply to                                                                                                                 

Alaska   statutes   unless   they   "would   be   inconsistent   with   the   manifest   intent  of   the  

                             10     Nothing in the language or legislative history surrounding the Alaska  


legislature's adoption of the UCCJEA11 indicates an intent to depart from this definition  


of "residency," which focuses on a person's intent to remain within the state.   Thus  


"presently resides" should be interpreted by reference to the definition of "residency"  


under AS 01.10.055.  


                               We continue our analysis by examining the history and purposes of the  


UCCJEA.  In discussing the motivations for the UCCJEA, courts have observed that  


"[t]he increasing mobility of society has made the issue of child custody jurisdiction and  


modification progressively more contentious."12                                                                        Under the previous Uniform Child  


Custody Jurisdiction Act (UCCJA), there was "interstate jurisdictional conflict" because  


"the issuing state could be divested of jurisdiction . . . by the child and one parent's move  


                10             AS  01.10.020.  

                11             AS  25.30.300-.390.  

                12             Brandt v. Brandt, 268 P.3d  406, 410-11 (Colo. 2012) (en  banc);  see  also  

In  re Marriage  of  Nurie,  98  Cal.  Rptr.  3d  200,  221  (Cal. App. 2009) (noting UCCJEA  

"reflects  a  deliberate  effort  to  provide  a  clear  end-point  to  the  decree  state's  jurisdiction,  

to  prevent  courts  from  treading  on  one  another's  jurisdiction,  and  to  ensure  that  custody  

orders  will  remain  fully  enforceable  until  a  court  determines  they  are  not.").   

                                                                                                  -9-                                                                                          7428

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 out of state."                          A parent dissatisfied with the custody order of one state thus had an                                                                                                             

 incentive   under   the   UCCJA   to  move   with   the   child   to   another   state   to   establish  

jurisdiction in a new forum.                                                

                                   Broadly speaking, the purposes of the UCCJEA are to address concerns                                                                                                   

 about forum-shopping, abduction of children, and relitigation, which can be especially                                                                                                                

                                                                                                                                                                             14      The comment to  

 disruptive and harmful to children involved in custody disputes.                                                                                                                                                           

 UCCJEA section 101 explains that the Act should be interpreted according to its six  



                                   (1)               Avoid   jurisdictional   competition   and   conflict   with  

                                                     courts   of   other   States   in   matters   of   child   custody  

                                                    which   have   in   the   past   resulted   in   the   shifting   of  

                                                     children   from   State  to   State  with  harmful   effects   on  

                                                    their  well-being;   

                                   (2)               Promote  cooperation  with  the  courts  of  other  States  to  

                                                    the  end  that  a  custody  decree  is  rendered  in  that  State  

                                                    which   can  best   decide  the   case   in the   interest   of  the  


                                   (3)               Discourage    the   use    of    the    interstate    system    for  

                                                     continuing  controversies  over  child  custody;  

                                   (4)               Deter  abductions  of  children;  

                  13               Brandt,   268   P.3d   at   411   (citing   Angela   R.   Arkin,   The   Uniform   Child  

 Custody Jurisdiction Enforcement Act:                                                                 Part I  , 29 C                  OLO. L            AW. 73, 73 (2000));                                see also   

 Steven D. v. Nicole J.                                 , 308 P.3d 875, 881-82 (Alaska 2013) ("UCCJEA was enacted to                                                                                                        

 resolve conflicting jurisdictional requirements between states.").                                                                                                       

                  14               See,  e.g.,  Kevin  Wessel,  Home  is  Where  the  Court  is:                                                                                                Determining  


                                                                                                                                                                         HI.L.R            EV.1141, 1142             

Residence for Child Custody Matters Under the UCCJEA, 79 U.C 



                                                                                                            -10-                                                                                                    7428

----------------------- Page 11-----------------------

                          (5)	         Avoid  relitigation  of  custody  decisions  of  other  States  

                                       in  this  State;  

                          (6)	         Facilitate  the  enforcement  of  custody  decrees  of  other  



                          Courts in other states have reached conflicting conclusions about how to  


define "presently resides" in UCCJEA section 202(a)(2) in light of the Act's purposes  


and commentary.16                       These inconsistent conclusions are unsurprising.   Comment 2 to  


UCCJEA section 202(a)(2) notes that "[t]he exact language of subparagraph (a)(2) was  


the subject of considerable debate."17   Unfortunately, this comment seems to have done  


more to confuse, rather than clarify, the interpretation of the term "presently resides."18  



The comment does not define what  it means to  "reside" in a state.19                                                                      A particularly  



divisive portion  of  the  comment  explains  that  "[i]t  is  the  intention  of  this  Act  that  


paragraph  (a)(2) of this  section means that the named persons no longer continue to  


             15           UNIF.C        HILD CUSTODY JURISDICTION  &E                                 NF 'T  ACT  § 101 cmt., 9U.L.A.474                        


(1997) [hereinafter UCCJEA].  



                          See        MARIE             FAHNERT                &       MÉLYSE               MPIRANYA,                  CHILD-CUSTODY  

JURISDICTION :                  THE  UCCJEA & PKPA   31   (2015)   (citing   cases   reaching   different  


conclusions on the meaning of "presently resides").                                                  

             17	          UCCJEA § 202 cmt. 2 at 511.  


             18           See, e.g., Brandt, 268 P.3d at 414 ("Unfortunately, comment 2 . . . has  


confused construction of the operative statutory term 'presently reside' and has led to a  


split among states in applying the act.").  


             19           See also RESTATEMENT  (SECOND)  OF  CONFLICT OF                                                  LAWS  § 11 cmt. k (A                   M.  


LAW  INST . 1971) ("Residence is an ambiguous word whose meaning in a legal phrase                                                                        

must be determined in each case."); Wessel,                                           supra  note 13, at 1143 ("In short, there is   

no accepted definition of 'residence' and little case law on which to rely.").                                                                     

                                                                               -11-	                                                                         7428

----------------------- Page 12-----------------------

actually live within the State                            ," and "[t]he phrase 'do not presently reside' is not used in                                                        


the sense of a              technical domicile                     ."                                                                                                   

                                                                            As a result of this language in the comment, some  




courts have found that "presently resides" must mean "physical presence." 


                           But Comment 2 also directs that "presently resides" in the UCCJEA should  


be interpreted as the equivalent of "continues to reside" in the Uniform Interstate Family  

                                              22  In Berry v. Coulman we held that under the UIFSA, the term  


Support Act (UIFSA). 

"residence" means "domicile."23  In reaching our conclusion in Coulman, we considered  


possible meanings of the term "residence," including both "physical presence" and  


"domicile."24  And we examined the reasoning of other courts that have grappled with  


the challenge of determining the meaning of "residence" for purposes of the UIFSA.25  


We  ultimately  agreed  with  the  analysis  of  the  California  Court  of  Appeals  that  


"residence" should not be defined as "physical presence" because the UIFSA's purposes  


include  ensuring  uniform  treatment  of  child  support  orders  in  different  states  and  


              20           UCCJEA § 202 cmt. 2 at 511-12 (emphasis added).                                             

              21           See, e.g.         ,  Staats v. McKinnon                       , 206 S.W.3d 532, 549 (Tenn. App. 2006)                                      

(discussing the comment to Tennessee Code § 36-6-217, Tennessee's version of the  



              22           UCCJEA § 202 cmt. 2 at 511 ("The phrase is also the equivalent of the                                                                            


language 'continues to reside' which occurs in UIFSA § 205(a)(1) to determine the                                                                                           

exclusive, continuing jurisdiction of the State that made a support order.").                                                                               

              23           440 P.3d 264, 271 (Alaska 2019).  


              24           Id.  at 270 ("The term [residence] is not defined elsewhere in the child  


support statutes.").  


              25           Id. at 270-71.  


                                                                                     -12-                                                                               7428

----------------------- Page 13-----------------------


providing exclusivejurisdiction based on residence.                                                                             Weconcludedthat"domicile"was                                             

the correct interpretation.                                      

                                We   share   the   concern   cited   by   courts   in   several   other   states   that   an  

interpretation conflating the phrase "presently resides" with "physical presence" would                                                                                                            

create   additional   jurisdictional   instability   in   child   custody   disputes   contrary   to   the  

                                                             27  As explained by the Colorado Supreme Court, "the purposes  

purposes of the UCCJEA.                                                                                                                                                                      

of exclusive continuing jurisdiction . . . are to ensure that custody orders, once entered,  


are as stable as possible and to discourage parents from establishing new 'home states'  


                26              Id.  at 271 ("[U]nder the UIFSA, it is assumed that a person cannot have                                                                            

more than one residence.                                           This, however, does not comport with the more general                                                                       

definition of residence noted above . . . .                                                      Instead, 'residence,' for the purpose of the                                                             

UIFSA, must mean 'domicile,' of which there can be only one." (alterations in original)                                                                                                      

(quoting  In re Marriage of Amezquita & Archuleta                                                                         , 124 Cal. Rptr. 2d at 890 (Cal. App.                                       


                27              See, e.g., Brandt v. Brandt, 268 P.3d 406, 410 (Colo. 2012) (involving the  


very situation the UCCJEA was trying to prevent -twostates asserting jurisdiction over  


a  custody  order  -  based  on  the  understanding  of  "presently  reside"  as  "physical  


presence");  In  re  Marriage  of  Nurie,  98  Cal.  Rptr.  3d  200,  219  (Cal.  App.  2009)  


(interpreting  "presently  reside"  to  mean  continuously  maintaining  a  residence  in  


California; physical presence out of state for prolonged periods did not mean parent had  


relocated); Russell v. Cox, 678 S.E. 2d 460, 462 (S.C. App. 2009) (stating court "did not  


believe the legislature intended that this term ['presently resides'] apply only to those  


situations in which all parties to the dispute are physically present within the borders of  


the state whose jurisdiction is at issue").  


                                                                                                    -13-                                                                                              7428

----------------------- Page 14-----------------------


 for their children to re-litigate the issue of custody in a friendlier forum."                                                                                                                                                                                                                                                                                    The court   

 further reasoned:                                                                

                                                               This statutory                                                      requirement for                                                                 determination   is consistent   

                                                               with the UCCJEA's emphasis on the primacy of exclusive                                                                                                                                                                                    

                                                               continuing jurisdiction as a means to ensure the stability of                                                                                                                                                                                                                

                                                               custody orders and to discourage parental kidnapping.                                                                                                                                                                                                                 To  

                                                               hold that the term 'presently reside' means only                                                                                                                                                                                                 physical  

                                                               presence would undercut the actual statutory language and                                                                                                                                                                                                            

                                                               purpose   that   centers   on   exclusive   continuing   jurisdiction  

                                                               remaining in the issuing state unless that jurisdiction has been                                                                                                                                                                                                  

                                28                            Brandt, 268 P.3d at 414 (citing                                                                                                                Thompson v. Thompson                                                                                            , 484 U.S. 174, 180                                                   

 (1988)).   In  Thompson  the Supreme Court discussed similar concerns in the analogous                                                                                                                                                                                                                                                                             

 context of the Parental Kidnapping Prevention Act (PKPA):                                                                                                                                                                                                                                  

                                                                [A]   parent who                                                            lost a custody                                                           battle in                                   one   State had an                                                      

                                                               incentive to kidnap the child and move to another State to                                                                                                                                                                                                                   

                                                               relitigate   the   issue.     This   circumstance    contributed   to  

                                                               widespread jurisdictional deadlocks like this one, and more                                                                                                                                                                                                    

                                                               importantly, to a national epidemic of parental kidnaping. At                                                                                                                                                                                                              

                                                               the   time   the   PKPA   was   enacted,   sponsors   of   the   Act  

                                                               estimated that between 25,000 and 100,000 children were                                                                                                                                                                                                        

                                                               kidnaped by parents who had been unable to obtain custody                                                                                                                                                                                         

                                                               in a legal forum.                            

 Thompson, 484 U.S. at 180-81 (citing                                                                                                                                                  Parental Kidnapping Prevention Act of 1979:                                                                                                                                                                                     

J.  Hearing on S. 105 before the Subcomm. on Criminal Justice of the Judiciary Comm.                                                                                                                                                                                                                                                                                              

 and the Subcomm. on Child &Human Dev. of the Comm. on Labor &Human Res.                                                                                                                                                                                                                                                                                                                    , 96th   

 Cong., 2d Sess. 10 (1980) (statement of Sen. Malcolm Wallop)).                                                                                                                                                                                                                                               UCCJEA § 202(a)(2)      

used "presently resides" to be consistent with the PKPA.                                                                                                                                                                                                                  UCCJEA § 202 cmt. 2 at 511                                                                                               

 ("The phrase ['presently resides' in the UCCJEA] is meant to be identical in meaning to                                                                                                                                                                                                                                                                                                                    

 the language of the PKPA which provides that full faith and credit is to be given to                                                                                                                                                                                                                                                                                                                     

 custody determinations made by a State in the exercise of its continuing jurisdiction                                                                                                                                                                                                                                                                        

when that 'State remains the residence of . . . .' ").                                                                                                                                                                                       

                                                                                                                                                                                                  -14-                                                                                                                                                                                        7428

----------------------- Page 15-----------------------

                    clearly       divested,       enabling        the     new       state     to    assume  



                    The South Carolina Court of Appeals has followed a similar approach,  


holding that the relevant inquiry is whether the parent has relinquished residency in the  


state with exclusive, continuing jurisdiction.30                       And as the California Court of Appeals  


has explained, a party may have more than one residence and "the crucial question under  


the [UCCJEA] is not whether Husband 'resided' [elsewhere], but whether he stopped  


residing in California."31  


                    We agree with the California Court of Appeals that neither the only nor the  


best way to interpret the phrase "presently resides" is as "physical presence" in a state:  


                    Wife insists that the term "presently" must be given effect in  


                    the statute, and that it means continuing jurisdiction may be  


                    lost  based  on  where  the  parties  are  "actually  living,"  


                    regardless of their volition or intent.  We perceive a different  


                    significance  to  the  word  "presently,"  namely  that  the  


          29        Brandt,  268  P.3d  at  416.   

          30        Russell,  678  S.E.  2d  at  462.  

          31        In  re  Nurie,   98   Cal.  Rptr.   3d   at  219   (emphasis in original)   (interpreting  

California's  version  of  the  UCCJEA);  see  also  Brandt,  268  P.3d  at  416  (fearing  situation  

in  which  "the  issuing  state would  lose  jurisdiction  if  [a]  [p]arent  were  temporarily  out-of- 

state  on  .  .  .  military  assignment").  

                                                              -15-                                                         7428

----------------------- Page 16-----------------------

                                determination of relocation must be made during the period   


                                of non-residence in the decree state.                                                        

                                Under this understanding of "presently resides," "a parent's bare intent to  


return to the decree state may not be sufficient for retention of jurisdiction if he has  


otherwise moved from the state . . . ."33                                                      Rather it "necessitates an inquiry broader than  


 'technical domicile' into the totality of the circumstances that make up domicile - that  


is a person's permanent home to which he or she intends to return to and remain."34                                                                                                                    In  


this way, "technical domicile," meaning "meeting thetechnicalrequirementsofdomicile  


for specific purposes, including, for example, the obligation to pay state taxes," may be  


distinguished from a more holistic understanding of "domicile" - a permanent home  


with an intent to remain.35  


                                Wehold that theterm"presently resides"should beinterpreted consistently  


with "residency" under Alaska law.36   This interpretation furthers the stated purposes of  


the UCCJEA and makes this provision of the UCCJEA consistent with the UIFSA.  We  


                32             In re Nurie                 , 98 Cal. Rptr. 3d at 219-20 (footnote omitted) (citing                                                                             In re   

Marriage of Amezquita & Archuleta                                                     , 124 Cal. Rptr. 2d 887, 890 (Cal. App. 2002));                                                                see  

also In re Amezquita                              , 124 Cal. Rptr. 2d at 890 (noting "general definition of residence                                                                 

 . . . allow[s] for multiple residences," but " 'residence' for the purpose of the UIFSA,                                                                                                 

must mean 'domicile,' of which there can be only one").                                                                                 

                33             In re Nurie, 98 Cal. Rptr. 3d at 220.  


                34              Brandt, 268 P.3d at 410.  


                35             Id. at 415; see also UCCJEA § 202 cmt. 2 at 512 (explaining "[t]he phrase  


 'do not presently reside' is not used in the sense of a technical domicile.").  


                36              See AS 01.10.055(a) ("A person establishes residency in the state by being  


physically present in the state with the intent to remain in the state indefinitely and to  


make a home in the state.").  


                                                                                                  -16-                                                                                           7428

----------------------- Page 17-----------------------

conclude that the superior court erred when it determined that it no longer had exclusive,                                                                                                                                                                                                

continuing jurisdiction based on the parties' physical presence in South Carolina.                                                                                                                                                                                                                            

                         B.	                      The Superior Court Did Not Engage In A Full Factual And Legal                                                                                                                                                                                         

                                                 Analysis Of The Forum Non Conveniens Issue.                                                                                                                        

                                                 Mouritsen argues that the superior court should have held an evidentiary                                                                                                                               

hearing on the inconvenient forum issue, or, in the alternative, at least afforded him the                                                                                                                                                                                                                          

opportunity to properly brief  the issue.  He notes that Taubert did not ask the court to                                                                           

"decline to exercise . . . jurisdiction in favor of South Carolina being a more convenient                                                                                                                                                                                             

forum" until her reply to his opposition.                                                                                                                    Mouritsen asserts that he did not have an                                                                                                               

opportunity to respond to this argument at that point in the proceedings. He additionally                                                                                                                                                                                           

argues that the court failed to consider all relevant factors in AS 25.30.360(b), which                                                                                                                                                                                                                 

governs the forum non conveniens analysis.                                                                                                                           

                                                 If an Alaska court has jurisdiction over a custody proceeding, it may cede                                                                                                                                                                                   

that jurisdiction under AS 25.30.360 if it "determines that it is an inconvenient forum                                                                                                                                                                                                                 


under the circumstances and that a court of another state is a more appropriate forum."                                                                                                                                                                                                                                          


Alaska Statute 25.30.360(b) lays out factors that a superior court should consider before  


determining that a forum is inconvenient for custody proceedings: Among these factors  


are the amount of time the child has lived outside the state, the location of relevant  


evidence, "the ability of the court of each state to decide the issue expeditiously," and the  

                                                                                                                                            38   Because the superior court found that it did not  


familiarity of each court with the case. 

have  exclusive,  continuing  jurisdiction  under  AS  25.30.310(a)(2),  it  did  not  fully  


                         37                      AS 25.30.360(a);                                                 see also Steven D. v.                                                     Nicole J.                        , 308 P.3d 875, 883 (Alaska                                           


                         38                      AS 25.30.360(b)(2), (6)-(8).  


                                                                                                                                                        -17-	                                                                                                                                                7428

----------------------- Page 18-----------------------

 consider whether Alaska would be a forum non conveniens, as that inquiry became                                                                                                                                     

 irrelevant.   The court only noted, "It appears that South Carolina is a more appropriate                                                                                                                 

 forum to consider the motion to modify custody, with the best evidence concerning the                                                                                                                                            

 children's care, protection, training, and personal relationships being available in South                                                                                                                                

                             39   The court therefore did not engage in a full factual and legal analysis of the  


 forum non conveniens issue.  


                                     On remand the superior court could consider ceding jurisdiction under the  


 forum non conveniens factors. If it does, both parties should be provided an opportunity  


 to submit information on the inconvenient forum factors.  


 V.                CONCLUSION  


                                     Based  on  the  foregoing,  we  VACATE  the  superior  court's  orders  on  


jurisdiction and REMAND for further proceedings.  


                   39                See   AS   25.30.360(b)(6)   (considering   "the   nature   and   location   of   the  

 evidence   required   to   resolve   the   pending   litigation").     Alaska   Statute   25.30.360(a)  

 provides that "[t]he issue of inconvenient forum may be raised on motion of a party, the                                                                                                                                         

 court's own motion, or request of another court."                                                                                      

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