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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Katz v. Murphy (08/24/2007) sp-6149
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| REVA LEE KATZ, | ) |
| ) Supreme Court No. S- 11886 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-13356 CI |
| ) | |
| CHARLES KENNETH MURPHY, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6149 August 24, 2007 |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner
and John Suddock, Judges.
Appearances: Reva Lee Katz, pro se,
Anchorage. Charles Kenneth Murphy, pro se,
Summerville, South Carolina.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Bryner, Justices. [Carpeneti,
Justice, not participating.]
BRYNER, Justice.
I. INTRODUCTION
After Charles Murphy petitioned for expedited
registration and enforcement of a South Carolina custody order,
the superior court issued an ex parte warrant and writ of
assistance authorizing Murphy, as provided in the custody order,
to take immediate custody of his son Zachary, who then lived in
Anchorage with his mother, Reva Katz. The warrant also allowed
Murphy to delay serving notice of his action on Katz until three
days after executing the warrant. Murphy obtained custody of
Zachary and removed him from Alaska before Katz received notice
of his action. Katz challenges the ex parte warrant and insists
that Murphys custody order is unenforceable because South
Carolina lacked custody jurisdiction and failed to give her
adequate notice. We hold that the warrant violated Alaskas
Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA)
because it was not based on a finding that Katz was imminently
likely to remove Zachary from Alaska and failed to provide Katz
with an opportunity to contest registration before Murphy removed
Zachary from Alaska. But since Katz later consented to the South
Carolina orders registration, we further conclude that the order
was properly confirmed and that, under the UCCJEA, its
confirmation precludes Katz from contesting enforcement on
grounds of lack of jurisdiction or adequate notice.
II. FACTS AND PROCEEDINGS
Reva Katz and Charles Murphy married in Georgia in
1987. Their adopted son Zachary was born in October 1991. Katz
and Murphy divorced in 1998. A Georgia court approved a
settlement agreement in their divorce proceeding under which they
shared legal custody while Katz maintained primary physical
custody. Murphy left Georgia after the divorce and settled in
South Carolina by 2002. In the winter of 2003-2004 Katz moved to
Alaska and enrolled Zachary in the sixth grade at Gladys Wood
Elementary school. The parties dispute exactly when Katz
established residency in Alaska but agree that she arrived here
no later than February 2004.
In June 2004 Murphy traveled to Alaska to pick up
Zachary and take him to South Carolina for visitation. After
returning to South Carolina with Zachary, Murphy, represented by
attorney Gregory S. Forman, filed a complaint with the South
Carolina Family Court, seeking modification of the Georgia
custody order to award sole custody of Zachary to Murphy. South
Carolina attorney James Brauchle filed a limited appearance on
Katzs behalf to contest South Carolinas jurisdiction to modify
custody. Family Court Judge Nancy C. McLin held an initial
hearing on Murphys complaint in August 2004. On September 25,
2004, Judge McLin entered an order addressing Katzs
jurisdictional challenge and the issue of interim custody. The
court ruled that Zachary had sufficient ties to South Carolina to
give the court jurisdiction over Murphys motion to modify
Georgias original custody order, finding that Georgia no longer
had jurisdiction and that his ties to South Carolina were
stronger than his ties to Alaska.
Although the court declined to award interim custody to
Murphy, it expanded his visitation during school holidays,
directed Katz to provide him with Zacharys current school
schedule, and ordered Katz to pay for Zacharys flights to and
from Alaska. The court specified that [t]his temporary order
shall be without prejudice and each party may seek further relief
at the Final Hearing. It also appointed a guardian ad litem
(GAL), Bobbie Smith, to conduct a custody investigation and
prepare a report on the issue. Soon after, Smith traveled to
Anchorage to interview Katz and visit with Zachary; in mid-
November she submitted a report to the court expressing concerns
about Zachary and recommending counseling for Zachary and both
parents.
In early November, Murphy filed a motion in South
Carolina for an order establishing firm dates for his
Thanksgiving visitation and compelling Katz to send Zachary to
South Carolina during that time. Murphy alleged that the order
was necessary because Katz had sent an e-mail informing him that
she would not be sending Zachary to South Carolina for
Thanksgiving. Family Court Judge William J. Wylie, Jr. conducted
an expedited hearing on the motion on November 19. Katzs South
Carolina attorney, James Brauchle, attended the hearing. On
November 22 Judge Wylie issued an order directing Katz to make
Zachary available for visitation in South Carolina from November
25 to November 28 and to pay Zacharys transportation costs. The
order further specified that if Katz failed to comply, the court
would consider an immediate change of custody.
Katz failed to send Zachary to South Carolina for
Thanksgiving visitation. On November 29, 2004, Murphy moved for
an expedited order granting him sole physical and legal custody
of Zachary. Judge Wylie held a hearing on the motion on December
15, 2004. Murphy appeared at the hearing with his attorney but
neither Katz nor her attorney attended, though they were both
served with the motion. At the conclusion of the hearing, the
court stated that it intended to grant Murphys motion for
custody. In a written order issued the same day, Judge Wylie
began by noting that the court had earlier determined that South
Carolina had subject matter jurisdiction to modify the original
Georgia custody order. Judge Wylie then determined that the
court also had personal jurisdiction over Katz. Citing a South
Carolina procedural rule that requires a motion to dismiss to
specify all grounds relied on for dismissal,1 the judge concluded
that Katz had waived any challenge to personal jurisdiction by
appearing at the original hearing and contesting only the courts
subject-matter jurisdiction. Based on Katzs failure to comply
with visitation orders and evidence of her apparent failure to
address Zacharys behavioral problems, Judge Wylie found that an
immediate change of custody to Murphy would be in Zacharys best
interests. Accordingly, the judge modified the existing custody
order by awarding sole physical custody of Zachary to Murphy with
supervised visits within South Carolina to Katz.
Meanwhile, the day before Thanksgiving, November 24,
2004, Katz had filed paperwork with the Alaska Superior Court in
Anchorage, seeking to register the original Georgia divorce
decrees custody and support provisions. Katz served Murphy by
mail with a copy of her pleadings and a form notice and request
that allowed him to request a hearing to contest registration.
On December 13, acting pro se, Murphy signed and returned the
hearing request, shortly before the South Carolina court issued
its order granting Murphys expedited motion for custody of
Zachary. In the space allotted on the form for stating his
defense to Katzs request to register the Georgia order in Alaska,
Murphy wrote: I have never lived in Alaska. Alaska has no
jurisdiction. Georgia order[] needs to be registered in South
Carolina for child support.
On December 16, 2004 the day after the South Carolina
court granted Murphy immediate custody of Zachary Alaska
attorney S. J. Lee filed an ex parte action on Murphys behalf
with the superior court in Anchorage, seeking expedited
registration and enforcement of South Carolinas three custody
orders, including the December 15 order awarding custody of
Zachary to Murphy. Murphy also sought an ex parte writ of
assistance authorizing law enforcement officials to assist in the
transfer of custody of the minor from Ms. Katz to him. His
motion for the ex parte warrant alleged:
Mr. Murphy has a reasonable belief or
expectation that Ms. Katz will flee Alaska
with the minor should she obtain notice of
this action on his part. She has many times
threatened to disappear with the minor should
Mr. Murphy ever pursue or obtain custody.
She has dual citizenship with Israel and is a
flight risk due to these and other facts
outlined in more detail in petitioners
attached affidavit and Exhibit 4 [a copy of
the GALs report].
In an accompanying affidavit, Murphy briefly recounted
the procedural history of the case in South Carolina and
professed to believe and fear that if Reva is given advance
warning of this action, that she will take Zachary and flee. To
support this belief, Murphy asserted that Reva has repeatedly
told me that if I ever tried to move for custody of Zachary, or
got it, she would disappear and Ill never see Zachary again. He
further claimed that Katz had the means and the motivation to
take Zachary away because she had relatives in New York and
Florida and dual citizenship in the United States and Israel. In
addition, Murphy attached a copy of GAL Smiths report.
Although Murphys motion for an ex parte warrant claimed
to be supported by applicable Alaska statute, the UCCJA, it cited
no specific provision of Alaska law authorizing the ex parte
relief he sought. Nor did Murphy reveal in his pleadings that
Katz had recently filed a petition in Anchorage to register the
original Georgia custody order. Without this information the
superior court apparently had no immediate way to recognize that
two competing registration actions involving custody of the same
child were simultaneously pending.
In a proposed Order Regarding Ex Parte Motion for
Enforcement & Writ of Assistance, Murphy sought leave to serve
all relevant documents on Katz after the transfer of custody to
him of the minor; the proposed order left a blank line for the
court to determine the exact number of days after the transfer
when service on Katz would be required. An accompanying Writ of
Assistance & Order of Enforcement proposed to direct law
enforcement officers to assist Murphy, or any of his designated
agents or attorneys in enforcing the State of South Carolinas
Order of 12/15/04, which specifically awards Mr. Murphy immediate
physical custody of his son, the minor Zachary Murphy. Neither
of these proposed orders included any provision for a post-
seizure hearing on Murphys request to enforce the South Carolina
orders; nor did they impose any conditions designed to ensure
Zacharys continued presence in Alaska pending a final
determination of that issue.
On December 17, 2004, the day after Murphy filed his
action, Anchorage Superior Court Judge Mark Rindner granted
Murphys requests for expedited enforcement and an ex parte writ
of assistance. The court found that good grounds exist for
granting Mr. Murphys request for ex parte relief and directed
Murphy to serve all documents filed by him . . . on Reva Katz
within 3 days after the transfer of custody.
Anchorage police officers took custody of Zachary on
December 19 and immediately transferred him to Murphy, who
returned the child to South Carolina. Murphy served Katz by
mailing a form notice of registration and other pleadings to her
on December 22, 2004, the third day after he took custody of
Zachary. Katz did not receive notice of Murphys registration
action until the documents were delivered several days later. It
is undisputed that by then, Zachary had left Alaska.
Upon receiving the notice of registration from Murphy,
Katz filed a timely request with the superior court for a hearing
to contest registration. Katzs request revealed that she was
separately seeking to register the Georgia decree. The superior
court consolidated the two cases and assigned both for hearing
before Superior Court Judge John Suddock on February 16, 2005.
Katz attended the February 16 hearing and was
represented by attorney Allen Bailey. Murphys Alaska attorney,
Lee, appeared for him in Anchorage; Murphy participated
telephonically, along with his South Carolina attorney, Forman.
At the outset, Judge Suddock asked the parties to summarize their
positions. Bailey indicated that Katz wanted the court to
register both the South Carolina and Georgia custody orders,
giving the South Carolina order priority for the time being. He
explained that South Carolina had already assumed jurisdiction
over the issue of custody but that Katz was pursuing an appeal of
that ruling in South Carolina; accordingly, Bailey wanted the
Georgia order to be registered so that it could be enforced if
Katz prevailed in her appeal:
It would be our suggestion then that the
court register the orders in date order so
that the South Carolina is the effective
order since it was last entered until such
time if, as, and when the South Carolina
court of appeals reverses the trial court.
If it is not reversed, then the order remains
the more recent court order and is subject to
enforcement here if Mr. Murphy needs to
enforce something here.
In response, Murphys attorneys pointed out that
Georgias order had already been superceded by South Carolinas and
therefore could no longer be registered. Judge Suddock then
asked Bailey, Why should I register a relic? When Bailey replied
that we believe theres a high likelihood that [the South Carolina
order] will be reversed on jurisdiction, the judge inquired, Why
not come back to me when that occurs? Bailey accepted this
invitation, answering, We can do that.
Based on Baileys response, Judge Suddock granted
Murphys request to register South Carolinas order and dismissed
Katzs competing request to register the original Georgia order,
but specified that the order of dismissal would be without
prejudice. The judge later issued written orders confirming
these on-record rulings.
About two weeks after the hearing, Katz, now
representing herself, asked the court to reconsider its ruling.
Katzs pro se motion for reconsideration argued that the South
Carolina courts custody orders should not have been enforced,
because South Carolina lacked subject matter jurisdiction and had
failed to give her adequate notice of its proceedings. Her
motion also challenged the ex parte order authorizing Zacharys
seizure and transfer to Murphys custody, arguing that these
actions violated the protections established in AS 25.30.490.
The superior court denied reconsideration summarily, stating that
Ms. Katz should make her arguments to the South Carolina court.
Katz then filed this appeal, renewing the points raised
in her motion for reconsideration.
While Katzs appeal was pending, Murphys South Carolina
modification action proceeded to trial on the issue of Zacharys
permanent custody.2 On August 2, 2006, the South Carolina Family
Court issued its final order on the matter. After summarizing
the procedural history of the case, Judge Wylie revisited the
issue of subject matter jurisdiction, concluding that, [b]ecause
both at the time of filing, and at the time of trial, South
Carolina had at least as significant a connection with the child
as Alaska did, and because the child was physically present here
when this action was filed, the court believes that jurisdiction
and venue are proper in Dorchester County, South Carolina. The
court then entered findings of fact and conclusions of law that
awarded sole legal and physical custody of Zachary to Murphy,
granted Katz reasonable supervised visitation in South Carolina,
and directed Katz to pay child support.
III. DISCUSSION
In appealing the superior courts decision to register
and enforce South Carolinas custody orders, Katz raises three
points two jurisdictional and one procedural. Initially, Katz
asserts that the South Carolina orders were defective and
unenforceable because the South Carolina Family Court lacked
subject matter and personal jurisdiction. She argues that the
court should have permitted her to contest these issues in Alaska
because she received inadequate notice of the South Carolina
proceedings and therefore never fully litigated issues there.
Katz additionally asserts that the superior court violated
procedural protections established under Alaska law by
immediately transferring custody of Zachary to Murphy without
giving her prior notice or an opportunity to contest Murphys
motion to register the South Carolina order. Katz urges us to
vacate the registration of those orders, to assert home-state
jurisdiction over custody and support, and to restore the
provisions of the original Georgia orders.
In response, Murphy accuses Katz of perjury and blatant
misrepresentations. He disputes many details of her descriptions
of the parties marital history, their conduct after separation,
Katzs move to Alaska, Zacharys upbringing and needs, and the
procedural history of their custody dispute. Relying on his own
account of the disputed events, Murphy defends the South Carolina
orders and urges us to affirm the superior courts decision
allowing those orders to be registered and enforced in Alaska.
We turn first to Katzs procedural challenge, and then
consider her jurisdictional claims.
A. The Unconditional Transfer of Custody to Murphy Without
Giving Katz Prior Notice and an Opportunity To Be Heard
Violated the UCCJEA.
1. Statutory background
Katz challenges the superior courts December 17, 2004,
ex parte orders, which enforced South Carolinas custody
determinations by granting Murphy immediate, unconditional
custody of Zachary and directed Alaska law enforcement officers
to assist Murphy in obtaining custody. She insists that these
orders lacked an adequate factual basis and violated the
procedural protections guaranteed under AS 25.30.490 by depriving
her of prior notice and an opportunity to contest the South
Carolina custody orders before Murphy removed Zachary from
Alaska.
To help frame our analysis of Katzs claim, we begin by
describing the provisions of Alaskas UCCJEA3 that govern
enforcement of child custody orders issued by other states.
These provisions strive to establish a simple, dependable, and
orderly process allowing out-of-state custody orders to be
enforced in Alaska when they are validly issued and remain in
effect. The process established in the UCCJEA comprises three
distinct requirements: registration, confirmation, and
enforcement.
Under AS 25.30.410, Alaska courts must recognize and
enforce a child custody determination of a court of another state
so long as the other state had jurisdiction and its determination
has not been modified by another properly entered order.4 When
the other states order is found to meet these criteria, Alaska
courts may use any enforcement remedy available under Alaska law
to enforce the other states custody order.5
To determine whether an out-of-state order meets the
UCCJEAs enforcement criteria, the act requires the parent who
seeks enforcement to register the order in an Alaska court and
requires the court in which the registration occurs to notify the
responding parent and provide an opportunity to contest the
registration.6
Alaska Statute 25.30.430 defines this basic process.
Under subsection .430(a), the parent seeking to register an out-
of-state order must send a letter of request to the appropriate
Alaska court, together with two copies of the order, a statement
attesting that it remains current, and the names and addresses of
both the requesting parent and the parent or person who has
custody under the order.7
Subsections .430(b) and (c) require the court to file
the out-of-state judgment and its accompanying documentation and
to serve notice on all persons named in the request, providing
them with the opportunity to contest the registration. This
notice must specify that a registered out-of-state order is
enforceable upon registration in the same manner as an Alaska
court order, that a hearing to contest registration must be
requested within twenty days, and that failure to contest the
registration will result in the orders confirmation and will bar
any later challenge that could have been asserted before
confirmation.8
Subsection .430(d) gives the responding parent the
burden of proving that a challenged custody order should not be
confirmed. It also limits the scope of a permissible challenge
to three narrow issues: whether the out-of-state court had
jurisdiction to enter the order; whether the order was later
modified by another court having jurisdiction; and whether the
out-of-state court gave the responding parent adequate notice of
its proceedings.9
Subsection .430(e) specifies that in the absence of a
timely request for a hearing, the registered order becomes
confirmed as a matter of law and that the court must inform all
persons served of the confirmation.10 Last, subsection .430(f)
provides that, once confirmed whether by operation of law or
after a hearing the registered order may no longer be challenged
on any ground that could have been asserted at the time of
registration.11 Once registered and confirmed, the out-of-state
order becomes enforceable in the same manner as a determination
issued by a court of this state.12
Although section .430 lays out the procedural framework
to be used in a typical registration case, other provisions of
the UCCJEA allow these procedures to be streamlined when the
requesting parent establishes circumstances calling for expedited
enforcement or placing a child in imminent danger of harm or
removal from the state.
Alaska Statute 25.30.460 adopts expedited procedures
for enforcing out-of-state custody orders. Under AS
25.30.460(a), when a parent files a petition requesting expedited
enforcement of a foreign custody determination, the petition must
be verified and must attach a certified copy of the out-of-state
order and any prior Alaska order confirming that orders
registration.13 In addition, under subsection .460(b), the
petition must provide detailed information concerning the out-of-
state orders procedural background and the nature of the relief
that the petitioner seeks from the court.14
Once the expedited petition is filed, subsection
.460(c) requires the court to issue (and usually to serve) an
order directing the respondent to appear at a hearing on the next
judicial day after service of the order or, if that date is
impossible, on the first judicial day possible.15 Subsection
.460(d) further requires the court to specify the time and date
set for the hearing and to advise the respondent that, at the
hearing, unless the respondent establishes that the custody order
is unenforceable, the court will order that the petitioner may
take immediate physical custody of the child.16
At the hearing on expedited enforcement, the court must
grant immediate custody to the petitioner unless the respondent
shows the out-of-state order to be unenforceable.17 Alaska
Statute 25.30.480(a) describes two alternative methods to defeat
enforcement: the first method, which applies if the out-of-state
order has not yet been confirmed, matches the method specified in
AS 25.30.430(d)18 for defeating confirmation at a non-expedited
confirmation hearing; the second method, which applies if the out-
of-state order has already been confirmed, allows the respondent
to defeat enforcement only by showing that, since being
confirmed, the order has been modified, vacated, or stayed by a
court having jurisdiction.19
One other enforcement provision of the UCCJEA has
crucial importance here: AS 25.30.490 authorizes Alaska courts
to take immediate ex parte protective measures when the moving
party establishes a serious risk to the child. This provision
allows a parent seeking to enforce an out-of-state child custody
order to file a verified application for the issuance of a
warrant to take physical custody of the child if the child is
imminently likely either to suffer serious physical harm or to be
removed from this state.20 Once the application is filed, [i]f
the court, on testimony of the petitioner or other witness, finds
that the child is imminently likely to suffer serious physical
harm or to be removed from this state, it may issue a warrant to
take physical custody of the child.21
But while the warrant authorizes the police to seize
the child without prior notice to the respondent, the seizure
does not eliminate the need for a prompt, adversary hearing to
decide if the out-of-state custody order is eligible to be
confirmed and enforced. Specifically, when a court issues an ex
parte warrant and writ of assistance under section .490, that
provision unequivocally requires that, just as in any other case
involving a petition for expedited enforcement, [t]he petition
must be heard on the next judicial day after the warrant is
executed unless that date is impossible. In that event, the
court shall hold the hearing on the first judicial day possible.22
Section .490 requires the court to ensure that all relevant
paperwork in the case is served on the respondent when the
seizure occurs: The respondent must be served with the petition,
warrant, and order immediately after the child is taken into
physical custody.23 Likewise, section .490 further requires that
the application for the warrant must include the statements
required for petitions under AS 25.30.460(b)24 that is, it must
set out the same background information required when a petition
seeks expedited enforcement of an out-of-state custody order.25
Section .490 commands that the warrant must
(1) recite the facts on which a conclusion
of imminent serious physical harm or removal
from the state is based;
(2) direct law enforcement officers to take
physical custody of the child immediately;
and
(3) provide for the placement of the child
pending final relief.[26]
Last, in addition to requiring the court to make provision in the
warrant for the placement of the child pending final relief,27
section .490 specifically empowers the court to impose conditions
on placement of a child to ensure the appearance of the child and
the childs custodian at the hearing on confirmation.28
As can be seen, then, section .490 allows courts to
issue ex parte warrants authorizing immediate seizure of children
in UCCJEA registration disputes, but only as an interim measure
to protect them from imminent danger of serious harm or removal
from the state pending final relief.29 The final relief
contemplated by this provision is an order of enforcement
issuable only after the responding party (1) receives notice
immediately after the child is taken into physical custody;30 and
(2) has the opportunity to contest enforcement at a hearing that
must be held on the first judicial day possible after the warrant
is executed.31 And in the interim between the childs seizure and
the ensuing hearing, the court must provide for the placement of
the child,32 bearing in mind the need to ensure the appearance of
the child and the childs custodian at the hearing.33
In short, nothing in section .490 or elsewhere in the
UCCJEAs enforcement provisions authorizes the court to approve an
ex parte seizure and transfer of custody that is seemingly
permanent, imposes no requirement to appear at a post-seizure
hearing, and thus leaves the new custodial parent free to
immediately remove the child from the state.34 Indeed, besides
undermining the UCCJEAs orderly three-step process of
registration, confirmation, and then enforcement, an order of
this sort would fundamentally subvert section .490s core purpose
of protecting against the childs immediate removal from Alaska
pending final relief.35
2. The ex parte orders granting Murphy immediate
unconditional custody and enabling him to remove
Zachary from Alaska before Katz received notice of
his action violated the UCCJEA.
With this statutory framework in mind, we turn to Katzs
claim that the superior court erred in authorizing Murphy to
seize custody of Zachary and remove him from Alaska without
giving Katz notice of Murphys registration action or affording
her the opportunity to be heard.
As we detailed above in the statement of facts and
proceedings, on December 16, 2004, the day after the South
Carolina court issued its order awarding him custody, Murphy
petitioned the superior court in Anchorage for expedited
registration and enforcement of that order and applied for an ex
parte warrant directing law enforcement officers to assist him in
obtaining immediate custody. Murphys pleadings failed to comply
with the requirements of the UCCJEA in several respects.
Although Murphy expressly moved for expedited relief,
his proposed notice of registration used the notice form required
in a non-expedited registration proceeding: it called for service
by mail and a confirmation hearing to be scheduled only if Katz
asked for a hearing within twenty days. Murphys proposed notice
thus failed to recognize that, in expedited enforcement
proceedings, AS 25.30.460(c) requires the court to immediately
issue an order providing notice of the action and directing the
respondent to appear in person before it on the next judicial day
after service.
Similarly, although Murphys application for an ex parte
warrant purported to be supported by applicable Alaska statute,
the UCCJA, Murphy failed to cite any specific provision of Alaska
law supporting the relief he requested. Rather, his warrant
application completely disregarded AS 25.30.490s provisions
requiring that notice of the action be served immediately after
execution of the warrant;36 that a hearing on confirmation be held
on the next judicial day after the warrant is executed;37 and that
the court provide for placement of the child pending final
relief.38
By the same token, because Murphy also disregarded
these requirements in the proposed order and warrant he submitted
to implement his warrant application, his proposed order and
warrant forms impermissibly allowed delayed service of notice,
failed to provide for an immediate hearing on the day after
execution, and seemingly authorized an immediate and apparently
permanent transfer of custody, establishing no interim placement
provision to bar Murphy from immediately removing Zachary from
Alaska.
In addition to incorporating these procedural flaws,
Murphys application for ex parte relief articulated an improper
substantive standard for granting relief. The UCCJEA allows an
ex parte warrant to be issued only [i]f the court, on the
testimony of the petitioner or other witness, finds that the
child is imminently likely to suffer serious physical harm or to
be removed from this state.39 Here, Murphy did not allege any
potentially serious physical harm to Zachary and did not claim or
purport to show any imminent likelihood that Katz would remove
Zachary from Alaska. He simply asserted a reasonable belief or
expectation that Ms. Katz will flee Alaska with the minor should
she obtain notice of this action. And he based this belief on a
brief and mostly conclusory affidavit. The only recent and
specific information Murphy provided were the statements
attributed to Katz in GAL Smiths report. Smith reported that
Katz had told her that what was happening [in Alaska] was none of
the [South Carolina] Courts business, that no body was going to
take [Zachary] away, and no matter what [the GAL] wrote or what
the Court said that he would not have to leave her.
Despite his reliance on these statements, Murphy failed
to disclose the complete context in which they were made. In
November 2004 Katz had petitioned the superior court in Anchorage
to register the original Georgia custody order, which awarded
physical custody of Zachary to her. Although GAL Smith may not
have known at the time she wrote her report that Katz intended to
file a registration petition in Alaska, by mid-December, when
Murphy filed his ex parte application for enforcement, Murphy
unquestionably knew of Katzs competing registration action.
After all, he had responded to Katzs petition for registration
just two days before filing his own application for ex parte
relief. The UCCJEA provisions governing Murphys ex parte
pleadings expressly obliged him to disclose whether a proceeding
has been commenced that could affect the current proceeding . . .
and, if so, [to] identify the court, case number, and the nature
of the proceeding.40 Yet Murphy failed to disclose and identify
Katzs competing claim.
Had the superior court been aware of Katzs recent steps
to assert her custodial rights through appropriate legal channels
in Alaska, it might reasonably have viewed this information as
undermining Murphys ex parte allegations of reasonable grounds to
believe that Katz would flee Alaska if she learned of his
application to enforce the South Carolina orders. More
important, the information could have added vital context to the
hostile statements attributed to Katz in GAL Smiths report, since
knowledge of Katzs competing claims could have prompted the court
to view her comments to GAL Smith as expressions of Katzs
confidence in her Alaska registration action rather than as
threats to flee if the South Carolina courts took adverse action.
Murphys apparently knowing or negligent nondisclosures
and his disregard of the UCCJEAs requirements governing ex parte
relief have troubling implications. It is especially troubling
that Murphy filed his ex parte application with the assistance of
an Alaska attorney, who had an independent duty to investigate
the basis of Murphys claims, to be aware of and comply with the
requirements of Alaska law, and to be candid with the court.41 In
our view, the combined effect of the deficiencies in Murphys
pleadings may well have misled the superior court by prompting it
to grant unwarranted relief that it might not otherwise have
approved.
We do not mean to suggest that Murphys misleading
pleadings excuse the superior courts decision to grant his
application for ex parte relief. The relief that Murphy
requested was not colorably authorized under the UCCJEA and would
not have been proper under any conceivable circumstances. As a
result of the seemingly uncritical acceptance of Murphys
pleadings, the court issued a form warrant that included no
finding of imminent risk and made no provision for timely notice,
an expedited hearing, or interim placement pending final relief
all of which expressly are required under AS 25.30.490. As
issued, the ex parte orders effectively authorized Murphy to
permanently remove Zachary from Alaska without giving Katz any
opportunity to contest the jurisdictional basis for South
Carolinas custody orders.42
For all of these reasons, we conclude that the ex parte
warrant and underlying order were impermissible and violated
Katzs procedural rights under UCCJEA section .490. Our
conclusion requires us to consider what remedy, if any, would be
appropriate to correct the error. Because the answer to this
question depends largely on our resolution of Katzs claims
directed against the validity of the South Carolina orders, we
next consider those claims.
B. Katz Is Barred from Contesting the South Carolina
Orders on Grounds of Lack of Jurisdiction and Notice
Because She Consented to Their Registration in Alaska.
As already mentioned, besides contesting the ex parte
orders issued in Alaska, Katz asserts that the South Carolina
custody orders were defective, contending that they therefore
could not properly be enforced in Alaska. Katz further asserts
that she was entitled to contest those orders in Alaska because
she did not receive proper notice of the South Carolina
proceedings and never fully litigated jurisdiction there. But
Katzs effort to appeal on these points is problematic.
Katz was afforded an opportunity to raise these points
at the joint registration hearing held before Judge Suddock on
February 16, 2005. The hearing was scheduled and held at the
request of both Katz and Murphy, and its twin purpose was to
allow each party to contest the others petition for registration
of the competing out-of-state orders they sought to enforce in
Alaska the original Georgia custody orders that Katz had filed
and the more recent South Carolina orders that Murphy had filed.
Under the UCCJEA, Katz had the right to contest Murphys
petition to register the South Carolina orders on the same
grounds she asserts here, lack of jurisdiction and lack of
notice. Alaska Statute 25.30.430(d) provides that, at a hearing
to contest the validity of a registered order, the person
contesting registration may prevent the order from being
confirmed by asserting and establishing any of three grounds; one
of those grounds is that the issuing court did not have
jurisdiction under provisions substantially similar to [the
UCCJEA],43 and another is that the person contesting registration
was entitled to notice, but notice was not given in accordance
with provisions substantially similar to AS 25.30.840 in the
proceedings before the court that issued the order for which
registration is sought.44
Despite her right to contest confirmation on those
grounds at the hearing before Judge Suddock, Katz did not do so.
Instead, as previously noted, the attorney who then represented
Katz, Allen Bailey, agreed that the South Carolina orders could
be registered in Alaska, stating that Katz would challenge their
validity by pursuing an appeal in South Carolina. Initially
Bailey asked Judge Suddock to register the Georgia custody orders
as well, so that their registration could take effect if Katz
prevailed in the South Carolina appeal. But Bailey ultimately
dropped this request, agreeing to dismiss Katzs own motion for
registration on the understanding that Katz could renew her
request if and when she prevailed in South Carolina.
By expressly agreeing to allow the South Carolina
orders to be confirmed at the February 16 hearing, Bailey waived
Katzs right to contest jurisdiction and notice in Alaska. The
UCCJEA provides that once an out-of-state order has been
registered and confirmed in Alaska, its enforcement is subject to
later challenge on only one ground: that the order has been
vacated, stayed, or modified by a court having jurisdiction to do
so under [the UCCJEA or provisions substantially similar to the
UCCJEA].45
About two weeks after Judge Suddock confirmed
registration of the South Carolina orders with Katzs consent,
Katz, appearing pro se, moved for reconsideration of the
confirmation order. In her motion, Katz attacked the South
Carolina orders on the grounds of lack of jurisdiction and
notice. But Katz offered no excuse for Baileys failure to raise
these claims at the February 16 hearing; nor did she assert that
Bailey lacked authority to represent her at the time. Alaska
Civil Rule 77(k), which governs motions for reconsideration, does
not allow the moving party to raise new grounds as a basis for
reconsideration; instead the rule only allows reconsideration of
points that were overlooked or misconceived despite having been
properly raised.46 Given these circumstances, we see no basis for
concluding that Judge Suddock erred in denying Katzs motion for
reconsideration.47
Katz briefly argues on appeal that Bailey was
unprepared at the February 16 hearing, and suggests that he had
no authority to waive her right to contest jurisdiction and
notice in the Alaska proceeding. But her argument relies on
conclusory and unverified assertions that were not raised or
heard in the superior court. Moreover, Katz fails to explain why
she could not have raised these arguments sooner, before her case
reached appeal. We have consistently recognized that a party may
not raise an issue for the first time on appeal and that cursory
treatment of an issue amounts to a waiver.48 On the record before
us, we must conclude that, absent plain error, Baileys consent to
registration of the South Carolina orders waived Katzs right to
challenge them in Alaska on the basis of inadequate jurisdiction
and notice.49
We have previously recognized that plain error occurs
when an obvious mistake has been made which creates a high
likelihood that injustice has resulted. 50 In cases involving
enforcement of other states orders, we have also indicated that
even when jurisdiction has been fully litigated in another state,
subject matter jurisdiction may still be collaterally challenged
when the other states order is patently void that is, when it
goes plainly beyond [that] courts jurisdiction. 51 In this case,
however, we are unable to say that the South Carolina Family
Courts assertion of jurisdiction to modify Zacharys custody went
plainly beyond the UCCJEAs jurisdictional standards.
It is undisputed that when South Carolina made its
initial determination of jurisdiction, Murphy and Katz had both
permanently severed their ties to Georgia and that Zachary had
recently moved with Katz to Alaska. In response to Katzs
jurisdictional challenge, Judge McLin concluded that Georgia
could no longer exercise home-state jurisdiction over Zachary;
that he had not yet acquired a new home state; and that
Zacharys connections with South Carolina are
mo[re] substantial than his connections with
Alaska. As of the date of filing, he had
spent almost as much time here as he had in
Alaska. The Plaintiffs connection to South
Carolina is much stronger than the Defendants
connection to Alaska. The Defendants
relocation to Alaska was sudden and initially
represented as temporary. For all of these
reasons, the court believes that jurisdiction
and venue are proper in Dorchester County,
South Carolina.
Even though the evidence supporting this analysis is
disputed and could reasonably be viewed as weak, the analysis
itself facially comports with the requirements of South Carolina
law and substantially tracks the jurisdictional standards set out
in Alaskas UCCJEA.52 In short, the South Carolina courts order
may not seem convincing, but it does not strike us as obviously
void, or plainly beyond that courts jurisdiction.53
Accordingly, despite the unfortunate error in allowing
Zacharys ex parte removal from Alaska, we must conclude that Katz
waived her right to raise jurisdiction and notice as grounds to
contest registration of South Carolinas orders in Alaska and that
the superior courts order confirming their registration must
therefore stand. We further conclude that the proper
registration of those orders leaves no remedy available that
could permissibly be granted in the context of this registration
proceeding to correct Zacharys premature removal from Alaska.
IV. CONCLUSION
Although we hold that the December 17, 2004, order
granting ex parte relief was erroneously entered, we AFFIRM the
superior courts subsequent order confirming registration of South
Carolinas custody orders.
_______________________________
1 See S.C. R. Civ. P. 12(g) and (h).
2 Murphy has appended a certified copy of the South
Carolina courts final order to his Notice of Oral Argument, filed
with this court on August 3, 2006. It appears from the order
that Katzs original South Carolina counsel, James Brauchle,
continued to provide at least nominal representation to her
throughout the course of pretrial proceedings and withdrew from
the case at the outset of trial, after consulting with Katz and
receiving her consent.
3 Alaskas UCCJEA is codified in title 25, chapter 30 of
the Alaska Statutes, AS 25.30.30025.30.910; its enforcement
provisions are set out in article 2 of title 25, chapter 30, AS
25.30.40025.30.590.
4 AS 25.30.410(a) provides:
A court of this state shall recognize and
enforce a child custody determination of a
court of another state if the court of the
other state exercised jurisdiction in
substantial conformity with this chapter or
the determination was made under factual
circumstances meeting the jurisdictional
standards of this chapter and the
determination has not been modified in
accordance with this chapter.
5 AS 25.30.410(b); AS 25.30.430(c)(1).
6 See AS 25.30.430(b)(2); AS 25.30.440(b) (A court of
this state shall recognize and enforce . . . a registered child
custody determination of a court of another state.) (emphasis
added).
7 AS 25.30.430(a) provides:
A child custody determination issued by a
court of another state may be registered in
this state, with or without a simultaneous
request for enforcement, by sending to the
appropriate court in this state
(1) a letter or other document
requesting registration;
(2) two copies, including one certified
copy, of the determination sought to be
registered and a statement, under penalty of
perjury, that to the best knowledge and
belief of the person seeking registration the
order has not been modified; and
(3) except as otherwise provided in AS
25.30.380, the name and address of the person
seeking registration and the parent or person
acting as a parent who has been awarded
custody or visitation in the child custody
determination sought to be registered.
8 AS 25.30.430(b) and (c) provide:
(b) On receipt of the documents required by
(a) of this section, the registering court
shall
(1) cause the determination to be filed
as a foreign judgment, together with one copy
of any accompanying documents and
information, regardless of their form; and
(2) serve notice on the persons named
under (a)(3) of this section and provide them
with an opportunity to contest the
registration under this section.
(c) The notice required by (b)(2) of this
section must state that
(1) a registered determination is
enforceable as of the date of the
registration in the same manner as a
determination issued by a court of this
state;
(2) a hearing to contest the validity
of the registered determination must be
requested within 20 days after service of
notice; and
(3) failure to contest the registration
will result in confirmation of the child
custody determination and preclude further
contest of that determination with respect to
a matter that could have been asserted.
9 AS 25.30.430(d) provides:
A person seeking to contest the validity of a
registered order must request a hearing
within 20 days after service of the notice.
At that hearing, the court shall confirm the
registered order unless the person contesting
registration establishes that
(1) the issuing court did not have
jurisdiction under provisions substantially
similar to AS 25.30.30025.30.390;
(2) the child custody determination
sought to be registered has been vacated,
stayed, or modified by a court having
jurisdiction to do so under provisions
substantially similar to AS
25.30.30025.30.390; or
(3) the person contesting registration
was entitled to notice, but notice was not
given in accordance with provisions
substantially similar to AS 25.30.840 in the
proceedings before the court that issued the
order for which registration is sought.
10 AS 25.30.430(e) provides:
If a timely request for a hearing to contest
the validity of the registration is not made,
the registration is confirmed as a matter of
law, and the person requesting registration
and all persons served must be notified of
the confirmation.
11 AS 25.30.430(f) provides:
Confirmation of a registered order, whether
by operation of law or after notice and
hearing, precludes further contest of the
order with respect to a matter that could
have been asserted at the time of
registration.
12 AS 25.30.430(c)(1); see also AS 25.30.410(b).
13 AS 25.30.460(a) provides:
A petition under AS 25.30.40025.30.590 must
be verified. A certified copy, or a copy of
a certified copy, of the orders sought to be
enforced and of an order, if any, confirming
registration must be attached to the
petition.
14 AS 25.30.460(b) provides:
A petition for enforcement of a child custody
determination must state
(1) whether the court that issued the
determination identified the jurisdictional
basis it relied on in exercising jurisdiction
and, if so, what the basis was;
(2) whether the determination for which
enforcement is sought has been vacated,
stayed, or modified by a court whose decision
must be enforced under this chapter and, if
so, must identify the court, the case number,
and the nature of the proceeding;
(3) whether a proceeding has been
commenced that could affect the current
proceeding, including proceedings relating to
domestic violence, protective orders,
termination of parental rights, and adoptions
and, if so, must identify the court, the case
number, and the nature of the proceeding;
(4) the present physical address of the
child and the respondent, if known;
(5) whether relief in addition to the
immediate physical custody of the child and
attorney fees is sought, including a request
for assistance from law enforcement officials
and, if so, the relief sought; and
(6) if the child custody determination
has been registered and confirmed under AS
25.30.430, the date and place of
registration.
15 AS 25.30.460(c) states:
On the filing of a petition, the court shall
issue an order directing the respondent to
appear in person with or without the child at
a hearing and may enter an order necessary to
ensure the safety of the parties and the
child. The hearing must be held on the next
judicial day after service of the order
unless that date is impossible. In that
event, the court shall hold the hearing on
the first judicial day possible. The court
may extend the date of hearing at the request
of the petitioner.
Under AS 25.30.470, the court must also serve the order
unless a writ of assistance is issued directing the police to
serve it:
Except as otherwise provided in AS
25.30.490, the petition and order shall be
served, by a method authorized by the law of
this state, on the respondent and a person
who has physical custody of the child.
16 AS 25.30.460(d) provides:
An order issued under (c) of this section
must state the time and place of the hearing
and advise the respondent that, at the
hearing, the court will order that the
petitioner may take immediate physical
custody of the child and the payment of fees,
costs, and expenses under AS 25.30.500 and
may schedule a hearing to determine whether
further relief is appropriate unless the
respondent appears and establishes that
(1) the child custody determination has
not been registered and confirmed under AS
25.30.430, and that
(A) the issuing court did not have
jurisdiction under provisions substantially
similar to AS 25.30.30025.30.390;
(B) the child custody determination for
which enforcement is sought has been vacated,
stayed, or modified by a court having
jurisdiction to do so under provisions
substantially similar to AS
25.30.30025.30.390; or
(C) the respondent was entitled to
notice, but notice was not given in
accordance with provisions substantially
similar to AS 25.30.840 in the proceedings
before the court that issued the order for
which enforcement is sought; or
(2) the child custody determination for
which enforcement is sought was registered
and confirmed under AS 25.30.430 but has
been vacated, stayed, or modified by a court
having jurisdiction to do so under provisions
substantially similar to AS
25.30.30025.30.390.
17 AS 25.30.460(d).
18 See note 9 supra (quoting AS 25.30.430(d)).
19 AS 25.30.480(a) provides:
Unless the court issues a temporary emergency
order under AS 25.30.330, on a finding that a
petitioner is entitled to immediate physical
custody of the child, the court shall order
that the petitioner may take immediate
physical custody of the child unless the
respondent establishes that
(1) the child custody determination has
not been registered and confirmed under AS
25.30.430 and that
(A) the issuing court did not have
jurisdiction under provisions substantially
similar to AS 25.30.30025.30.390;
(B) the child custody determination for
which enforcement is sought has been vacated,
stayed, or modified by a court having
jurisdiction to do so under AS 25.30.300
25.30.390 or provisions substantially similar
to AS 25.30.30025.30.390; or
(C) the respondent was entitled to
notice, but notice was not given in
accordance with AS 25.30.840 or provisions
substantially similar to AS
25.30.30025.30.390 in the proceedings before
the court that issued the order for which
enforcement is sought; or
(2) the child custody determination for
which enforcement is sought was registered
and confirmed under AS 25.30.430 but has been
vacated, stayed, or modified by a court
having jurisdiction to do so under AS
25.30.300 25.30.390 or provisions
substantially similar to
AS 25.30.30025.30.390.
20 AS 25.30.490(a).
21 AS 25.30.490(b).
22 Id.
23 AS 25.30.490(d) (emphasis added).
24 AS 25.30.490(b).
25 See AS 25.30.460(b).
26 AS 25.30.460(c).
27 Id. (emphasis added).
28 AS 25.30.490(f).
29 AS 25.30.490(c)(3).
30 AS 25.30.490(d).
31 AS 25.30.490(b).
32 AS 25.30.490(c)(3).
33 AS 25.30.490(f).
34 Nor is it conceivable that any non-UCCJEA provisions of
Alaska law governing enforcement of custody orders in Alaska
authorize granting such relief to a petitioner seeking to
register an unconfirmed order, since the UCCJEA empowers courts
to enforce an out-of-state order using remedies available in
Alaska only after the out-of-state order has been registered and
confirmed under the UCCJEA. See AS 25.30.410(b); AS
25.30.430(c)(1).
35 AS 25.30.490(c)(3).
36 AS 25.30.490(d).
37 AS 25.30.490(b).
38 AS 25.30.490(c)(3).
39 AS 25.30.490(b).
40 AS 25.30.460(b)(3); see also AS 25.30.490(b) (requiring
application for ex parte warrant to take physical custody to
include the statements required for petitions under AS
25.30.460(b)).
41 See, e.g., Alaska Rules of Professional Conduct 1.3
(diligence); 3.1 (meritorious claims and contentions); 3.3
(candor).
42 As submitted by Murphy and ultimately issued on
December 17, 2004, the courts order granting Murphys motion for
an ex parte writ of assistance found that good grounds exist for
granting Mr. Murphys request and allowed Murphy three days after
transfer of custody to serve notice on Katz. The simultaneously
issued ex parte writ of assistance unconditionally commanded Katz
to surrender custody of the minor Zachary Murphy and directed law
enforcement authorities to assist Petitioner, Charles Murphy, or
any of his designated agents or attorneys in enforcing the State
of South Carolinas Order of 12/15/04, which specifically awards
Mr. Murphy immediate physical custody of his son, the minor
Zachary Murphy.
On the record before us it remains somewhat of a
mystery how Murphys nonconforming ex parte motions and proposed
orders managed to fly under the superior courts usually sensitive
radar. In handling prior appeals involving out-of-state custody
orders, we have seen no indication of a problem in interpreting
and enforcing the requirements of the UCCJEA. To the contrary,
the extraordinary knowledge, diligence, and discretion
demonstrated on a daily basis by Alaskas trial judges in such
cases inclines us to suspect that this case might reflect an
uncharacteristic systemic error rather than a mistake in
considered judgment or discretion. We further realize that
accurate detection of pleading errors in expedited cases like
this can be caused by a variety of factors that are difficult to
control. But when the interests at stake are as fundamental as
the custodial rights impacted here, we believe that systemic
safeguards must be undertaken to avoid even rare occurrences of
error.
43 AS 25.30.430(d)(1).
44 AS 25.30.430(d)(3).
45 AS 25.30.480(a)(2).
46 Alaska R. Civ. P. 77(k)(1).
47 Cf. Stadnicky v. Southpark Terrace Homeowners Assn,
Inc., 939 P.2d 403, 405 (Alaska 1997) (observing that an issue
raised for the first time in a motion for reconsideration is
untimely and insufficient to preserve a claim for appeal); Neal &
Co., Inc. v. Assn of Vill. Council Presidents Regl Hous. Auth.,
895 P.2d 497, 506 (Alaska 1995) (holding no abuse of discretion
when trial court declined to reconsider ruling based upon
evidence that was not before it at the time it rendered its
decision, and moving party offered no explanation for failing to
present evidence earlier).
48 See, e.g., Hoffman Constr. Co. of Alaska v. U.S.
Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska 2001);
Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001).
49 See Hoffman Constr. Co. of Alaska, 32 P.3d at 355 n.29
(indicating that claim waived by being raised for the first time
is still subject to review for plain error).
50 D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001) (quoting
Sosa v. State, 4 P.3d 951, 953 (Alaska 2000)).
51 Wall v. Stinson, 983 P.2d 736, 742 (Alaska 1999)
(quoting Restatement (Second) of Judgments 12(1) (1982))
(alteration in original); see also State, Child Support
Enforcement Div. v. Bromley, 987 P.2d 183, 187 (Alaska 1999).
52 Compare S.C. Code Ann. 20-7-788(a)(2) (if no other
state is the home state, court may assume jurisdiction if it is
in the best interest of the child that a court of this State
assume jurisdiction because (i) the child and his parents, or the
child and at least one contestant, have a significant connection
with this State and (ii) there is available in this State
substantial evidence concerning the childs present or future
care, protection, training and personal relationships), with AS
25.30.300(a)(3) (if no other state is the home state, court may
assume jurisdiction if (A) the child and the childs parents, or
the child and at least one parent or a person acting as a parent,
have a significant connection with this state other than mere
physical presence; and (B) substantial evidence is available in
this state concerning the childs care, protection, training, and
personal relationships).
53 We further note that the South Carolina courts recent
permanent custody determination revisited the issue of
jurisdiction under current circumstances, concluding that its
jurisdiction over Zacharys custody had grown considerably
stronger, whereas Zacharys ties to Alaska are obviously much
weaker than they were when Murphy originally filed his motion for
modification. Although we recognize that Zacharys presence in
South Carolina occurred because Murphy improperly removed him
from Alaska, it would nonetheless be difficult to conclude by any
realistic and practical measure that as matters now stand Alaska
would be a desirable location to meaningfully determine Zacharys
current best interests.
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