                                                                                                                         FILED
                                                                                                                COURT' OF APPEALS
                                                                                                                      DIVISioI JI

                                                                                                              2015 MAR 17 /         M 8: Li I
                                                                                                              STAT     IF       S    NGTON
                                                                                                              BY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

    In the matter of the Marriage of:                                                       No. 45153 -1 - II


    PEDRO SANCHEZ, JR.,


                                       Appellant,


           and



    LEILANI J. SANCHEZ,                                                            UNPUBLISHED OPINION


                                       Respondent.


          WoRSwICK, P. J. —      Pedro Sanchez appeals the superior court' s order transferring, to

Texas, full jurisdiction over Leilani Sanchez' s action to modify the Sanchez' s Washington State

                     Pedro'                                                  his                              due
                                                                                                                    process2




parenting    plan.            argues   the   superior court violated               rights   to   procedural                    by

entering an order transferring Leilani' s modification action to Texas without providing the

parties with notice or an      opportunity for     a   hearing. 3 We avoid this constitutional question and




1 For clarity, we refer to Pedro Sanchez and Leilani Sanchez by their first names. We intend no
disrespect.

2
    U. S. CONST.   amend.   XIV, § 1; WASH. CONST.          art.   I, § 3:


3 On December 9, 2014, this court asked the parties to submit supplemental briefing on
jurisdictional issues. Pedro requested an extension of time to file his brief. We grant appellant' s
motion and consider      his brief.
No. 45153 -1 - II

                     f




hold the superior court ( 1) based its determination that it had jurisdiction under the Uniform


Child Custody Jurisdiction and Enforcement Act (UCCJEA)4 to enter its parenting plan on its

erroneous legal conclusion that parties could consent to jurisdiction beyond that allowed by the

UCCJEA, and ( 2) violated the UCCJEA by failing to provide the parties with an opportunity to

present facts and argument after its ex -parte communication with the Texas district court before


deciding Texas should exercise full jurisdiction. Thus, we remand for the superior court to

determine ( 1) whether it had jurisdiction to enter its parenting plan and, ( 2) if so, whether

Washington or Texas should exercise jurisdiction in this case.


                                               FACTS


A.      Location ofthe Parties
        Pedro and Leilani Sanchez were married in 2006 in Texas and divorced in 2011 in


Washington. The Sanchezes had one child together, K.S. 5 K.S. lived in Texas from birth until

the Sanchezes moved to Washington in April of 2009, after the Air Force stationed Pedro in

Washington. Pedro, Leilani, and K.S. lived in Washington until the end of the summer of 2009,

when Leilani left Washington with K.S. and moved to Texas. From the summer of 2009 onward,


K.S. lived with Leilani in Texas, but resided with Pedro in Washington for brief periods of time.




4 Chapter 26. 27 RCW; Chapter 152 TEX. FAM. CODE.

5 We use initials to protect the minor' s privacy.

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B.        Washington Dissolution and Parenting Plan

          In 2010, Pedro and Leilani jointly filed a petition in Washington State to dissolve their

marriage. In March of 2011, the superior court entered both a dissolution decree and a parenting

plan that gave Pedro primary custody of K.S.

C.       Agreed Order in Texas


          In October of 2011, after returning from an overseas deployment, Pedro travelled to

Texas to acquire K.S. from Leilani. After Pedro arrived, he and Leilani signed an agreed order


that   gave each parent six months per year with              K.S., and filed that agreed order in Texas district


court. The Texas agreed order stated that Washington retained exclusive jurisdiction over K.S.


D.       Leilani' s Washington Motion To Vacate the Washington Parenting Plan

          In March of 2012, Leilani filed a motion in Washington to vacate the Washington


parenting plan that gave Pedro primary custody of K.S. In her motion, Leilani argued the

Washington superior court never had jurisdiction to enter the parenting plan under the UCCJEA.

          In March of 2012, the superior court entered an order requiring the parties to honor the

agreed Texas order and holding over the jurisdiction issue for another hearing. In June of 2012,

the superior court entered an order denying Leilani' s motion to vacate, ruling in its written order

that "[ t] he parties   can agree not   to   contest    home   state   jurisdiction." Clerk' s Papers ( CP) at 67.


In its oral ruling, the superior court explained that it denied Leilani' s motion to vacate because

Leilani had consented to Washington jurisdiction:


           Pedro] makes inaccurate statements in his [ initial] petition [for dissolution] that
          Washington is [ KS. s' ] home        state.   It   wasn'   t. But then [ Leilani],
                                                                                later saying she didn' t
          read it, signed the petition or joined in it and then signed the parenting plan four months




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No. 45153 -1 - II




        later awarding her husband custody, basically, and has changed her mind, I think, is
        what' s happened here. So I' m going to deny the petition to vacate.

                  I think, actually, Washington probably did not have jurisdiction, but given the
        kind   of odd    facts here   and   the fact that Ms. Sanchez apparently         consented....   So I' m
        going to deny the petition to vacate.

Verbatim Report     of   Proceedings ( VRP)       at   39 -40 ( emphasis   added).   The superior court


maintained Washington' s jurisdiction to hear a future petition to modify the Washington

parenting plan.


E.      Petition To Modify Parenting Plan and Decision that Texas Should Exercise Jurisdiction

        In August of 2012, Leilani filed a petition to modify the Washington parenting plan. On

August 29, 2012, the superior court held a hearing with the parties regarding which state had

jurisdiction. At the hearing, the parties made arguments concerning jurisdiction, and Pedro

requested that the matter be set over for 30 days for the parties to look into K.S.' s medical issues.


The superior court agreed and entered an order which stated:


        Jurisdiction of this case is deferred for Texas to address the temporary orders under
         RCW] 26. 27. 261, 231, 221. [ Leilani'           s]   modification action ...   shall remain open.




CP at 89. Trial on Leilani' s petition to modify the Washington parenting plan was scheduled for

trial for April of 2013.


        In March of 2013, a memorandum ofjournal entry was created to express an oral order

from the superior court. The memorandum stated the following:

         T] his   matter    was   not   set    prior;   proceeding created to journalize telephone
        conversation today. [ A Texas district court] called and spoke with [ the superior
        court judge] to address issues from [ the August 29, 2012] hearing and the order
        entered that day. After review and telephone discussion with [ the Texas district
        court] it was determined that Texas should exercise jurisdiction over all issues.
        Inartfully drafted order of [ August 29, 2012] is overruled to extent that it is in
        conflict with assumption of jurisdiction by Texas.


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No. 45153 -1 - II




CPat94.


        In April of 2013, the trial court judge denied Leilani' s petition to, modify because

Leilani' s attorney had withdrawn and no confirmation of proper service of the petition to Pedro

was in the record. On July 3, 2013, the Texas district court entered an order accepting and

exercising jurisdiction over Leilani' s modification action. In the. Texas order, the Texas district

court determined the Washington superior court " deferred continuing and exclusive jurisdiction

to" the Texas district court, that Leilani and K.S. resided in Texas, and that Pedro resided in

Washington. Suppl. CP ( A -2, at 1).


        On July 8, 2013, the superior court memorialized the order from its March 2013

memorandum of journal entry. The written order stated:

        This matter having not been set for hearing, and no notice having been given to the
        parties above, the Court having had an Ex Parte telephone discussion with [ the
        Texas district court] regarding the hearing on August 29, 2012 and the Order
        entered that day which granted limited jurisdiction to Texas to determine
        Temporary Orders only and which retained jurisdiction in Washington State under
        the modification action filed in Pierce County, Washington, it was decided that
        Texas should exercise jurisdiction over all issues, it is therefore, hereby:

        ORDERED, ADJUDGED AND DECREED that the Order of August 29, 2012 is
        overruled to the extent that it is in conflict with assumption ofjurisdiction by Texas.

CP at 96. Pedro appealed the superior court' s order transferring jurisdiction over Leilani' s

modification action to Texas.


                                            ANALYSIS


        Whether a superior court has authority pursuant to the UCCJEA to exercise its

jurisdiction is a mixed question of law and fact: we defer to the superior court' s unchallenged




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No. 45153 -1 - II




factual findings, but review de novo its legal conclusions. In re Marriage ofMcDermott, 175

Wn.    App. 467,     483, 307 P. 3d 717,   review   denied, 179 Wn. 2d 1004 ( 2013). And we review de


novo   issues   of   statutory interpretation.   175 Wn. App. at 483.

                                     I. JURISDICTION UNDER THE UCCJEA


         As a threshold matter, the superior court' s determination that it had jurisdiction under the


UCCJEA to enter its parenting plan was based on an erroneous conclusion of law, and the facts

in the record do not make clear whether Washington had jurisdiction over K.S. under the

UCCJEA. Thus, we remand for the superior court to determine whether it had jurisdiction to


make an initial custody determination over K.S. under the UCCJEA.

         We review subject matter jurisdiction de novo as a question of law. In re Marriage of

Kastanas, 78 Wn.        App.   193, 197, 896 P. 2d 726 ( 1995).   A party may raise a lack of subject

matter jurisdiction argument at any time during a proceeding, and failure to raise it in an initial

appearance will not waive         the argument. Skagit Surveyors &      Eng' rs, LLC v. Friends ofSkagit

County, 135 Wn.2d         542,   556, 958 P. 2d 962 ( 1998).   A judgment is void if the entering court

lacked subject matter jurisdiction. In re Marriage ofBuecking, 179 Wn.2d 438, 446, 316 P. 3d

999 ( 2013).


         The Washington State Supreme Court has described the UCCJEA as " a pact among states

limiting the    circumstances under which one court          may modify the   orders of another."   In re


Custody   ofA. C., 165 Wn.2d 568, 574, 200 P. 3d 689 ( 2009). Both Texas and Washington have


adopted the UCCJEA, making the act the exclusive bases to determine jurisdiction of this

interstate   child   custody dispute. RCW 26. 27. 201( 2); TEX. FAM. CODE § 152. 201.




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No. 45153 -1 - II




        The UCCJEA provides:


         1) . . .
                a court of this state has jurisdiction to make an initial child custody
        determination only if:
                         a) This state is the home state of the child on the date of the commencement
                     of the proceeding, or was the home state of the child within six months
                     before the commencement of the proceeding and the child is absent from
                     this state but a parent or person acting as a parent continues to live in this
                     state;

                         b) A   court of another state       does   not   have jurisdiction ... , or a court of the
                     home state of the child has declined to exercise jurisdiction on the ground
                     that this       state is the more appropriate forum ... , and:
                                     i) The child and the child' s 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

                                     ii) Substantial evidence is available in this state concerning the
                                    child' s care, protection, training, and personal relationships;
                         c)   All   courts   having jurisdiction ...      have declined to exercise jurisdiction
                     on the ground that, a court of this state is the more appropriate forum to
                     determine the custody            of   the child ... ;   or

                         d) No court of any other state would have jurisdiction under the criteria
                         above] .

                         2) Subsection ( 1)       of this section is the exclusive jurisdictional basis for
        making a child custody determination by a court of this state.
                3) Physical presence of or personal jurisdiction over, a party or a child is
        not necessary or sufficient to make a child custody determination.

RCW 26.27. 201( emphasis added).


        The UCCJEA constrains a superior court' s subject matter jurisdiction. In re Parentage of

Ruff, 168   Wn.      App.       109, 118, 275 P. 3d 1175 ( 2012). Thus, parties cannot consent or waive their


objection to jurisdiction under the UCCJEA, and a party may raise a jurisdiction objection under

the UCCJEA          at   any time.      168 Wn. App. at 118; see A. C., 165 Wn.2d at 574.

        The Washington superior court' s determination that its parenting plan complied with the

UCCJEA' s jurisdictional provisions is based on its legal conclusion that parties may consent to

jurisdiction beyond that allowed by the UCCJEA. Because this conclusion of law is erroneous,



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No. 45153 -1 - II




the superior court' s reason supporting its determination that it had jurisdiction under the

UCCJEA was erroneous. It is impossible to tell from the record on appeal whether the superior


court had jurisdiction under the UCCJEA. Thus, we remand to the superior court to determine

whether it had jurisdiction to enter its parenting plan under the UCCJEA. If the superior court

determines that it had no jurisdiction, then its parenting plan is void. Buecking, 179 Wn.2d at

446. If the superior court determines that it did have jurisdiction, then the superior court' s

decision that Texas should exercise jurisdiction was improper under the UCCJEA.

                              II. DECIDING TEXAS SHOULD EXERCISE JURISDICTION


        Pedro argues the superior court' s decision that Texas should exercise jurisdiction was

improper under the UCCJEA. Should the superior court determine its exercise of jurisdiction

was proper in this case, we agree.

        Under the UCCJEA:


         A] court of this state may not modify a child custody determination made by a
        court of another state unless a court of this state has jurisdiction to make an initial
        determination ...        and:

                    1)   The court of the other state determines it no longer has exclusive,
        continuing jurisdiction ...      or that a court of this state would be a more convenient
        forum ... ;      or

                    2) A court of this state or a court of the other state determines that the child,
        the child' s parents, and any person acting as a parent do not presently reside in the
        other state.


RCW 26. 27. 221. " In essence, the UCCJEA provides that unless all of the parties and the child"


presently reside outside of "the state that made the initial determination sought to be modified,
that state must first decide it does not have jurisdiction or decline jurisdiction" before its initial

determination is modified by another state. A. C., 165 Wn.2d at 575.,




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No. 45153 -1 - II




        In the event the superior court determines its exercise of jurisdiction was proper in this

case, the superior court' s decision that Texas should exercise jurisdiction was improper under the

UCCJEA. This is because no court determined that all of the parties resided outside of


Washington, and the Washington superior court never determined it no longer had exclusive and


continuing jurisdiction, and the Washington superior court did not decline to exercise that

jurisdiction for inconvenient forum.


A.      Whether The Parties Resided in Washington


        Pedro argues neither the Washington superior court nor the Texas district court

determined that all of the parties resided outside of Washington. We agree.


        The Washington superior court made only one determination when transferring

jurisdiction to Texas                     it              to                       telephone call. " Texas should
                          during   what        referred        as an " ex parte"



exercise   jurisdiction   over all   issues."    CP at 94; CP at 96. Thus, the Washington superior court


made no factual determination as to whether the parties resided in Washington. The Texas

district court determined that Leilani and K.S. resided in Texas, but that Pedro resided in

Washington. Thus, neither the Washington superior court nor the Texas district court

determined that all of the parties resided outside of Washington.

B.      Exclusive and Continuing Jurisdiction

        Pedro argues the Washington superior court never determined that it no longer had

exclusive   and continuing jurisdiction          under    the UCCJEA. We           agree.
No. 45153 -1 - II




        The UCCJEA states:


         A] court of this state that has made a child custody determination consistent with
         the UCCJEA' s jurisdictional requirements] has exclusive, continuing jurisdiction
        over the determination until:
                    a) A court of this state determines that neither the child, the child' s parents,
                and any person acting as a parent do not have a significant connection with
                this state and that substantial evidence is no longer available in this state
                concerning the child' s care, protection, training, and personal relationships;
                or

                    b) A court of this state or a court of another state determines that the child,
                the child' s parents, and any person acting as a parent do not presently reside
                in this state.


RCW 26. 27. 211 ( emphasis added).


        When the Washington superior court entered its order transferring full jurisdiction to

Texas, the Washington superior court did not determine whether the child or child' s parents had

significant connection with Washington or whether substantial evidence concerning the child

was available in Washington. As discussed above, the Washington superior court never

determined that all of the parties resided outside of Washington. Thus, the Washington superior

court never determined that it no longer had exclusive and continuing jurisdiction under the

UCCJEA. RCW 26.27. 211.


C.      Declining To Exercise Jurisdiction

        Pedro argues the Washington superior court did not properly decline to exercise its

exclusive and continuing jurisdiction for inconvenient venue. Again, we agree.

        Under the UCCJEA:


         1) A court of this state which has jurisdiction under this chapter to make a child
        custody determination may decline to exercise its jurisdiction at any time if it
        determines that it is an inconvenient forum under the circumstances and that a court
        of another state is a more appropriate forum.




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No. 45153 -1 - II




         2) Before determining whether it is an inconvenient forum, a court of this state
        shall consider whether it is appropriate for a court of another state to exercise
        jurisdiction. For   this   purpose,   the   court shall        allow   the parties       to   submit

        information and shall consider all relevantfactors, including [ eight factors].

RCW 26. 27. 261 ( emphasis added).


        Here, the Washington superior court did not allow the parties to submit information, and


did not consider any of the eight relevant factors it must consider prior to finding that it is

appropriate for a court of another State to exercise jurisdiction. Accordingly, the Washington

superior court did not decline to exercise jurisdiction for inconvenient forum under the UCCJEA.

        We hold that the superior court' s decision that Texas should exercise jurisdiction was

improper under the UCCJEA because neither the Washington superior court nor the Texas

district court determined that all of the parties resided outside of Washington, the Washington

superior court never determined it no longer had exclusive and continuing jurisdiction, and the

Washington superior court did not decline to exercise that jurisdiction for inconvenient forum.

RCW 26.27. 221.


                             III. TRANSFER OF JURISDICTION TO TEXAS


         Pedro argues his due process rights were violated when the superior court entered an


order transferring jurisdiction over Leilani' s modification action to Texas without providing the

parties with notice or an opportunity for a hearing. We avoid this constitutional question of due

process and hold that the superior court failed to provide proper notice under RCW 26. 27. 101 of

the UCCJEA. See     Cmty.   Telecable of Seattle, Inc.    v.   City   of Seattle,   Dep' t   of Exec. Admin., 164


Wn.2d 35, 41, 186 P. 3d 1032 ( 2008) ( " We     will avoid deciding constitutional questions where a

case may be fairly resolved on other grounds. ").



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No. 45153 -1 - II




        RCW 26. 27. 101 states:


         1) A court of this state may communicate with a court in another state concerning
        a proceeding arising under this chapter.
                 2) The court may allow the parties to participate in the communication. If
        the parties are not able to participate in the communication, they must be given the
        opportunity to present facts and legal arguments before a decision on jurisdiction
        is made.
                    3) Communication between courts on schedules, calendars, court records,
        and similar matters may occur without informing the parties. A record need not be
        made of the communication.
                    4) Except as otherwise provided in subsection ( 3) of this section, a record
        must be made of a communication under this section. The parties must be informed
        promptly of the communication and granted access to the record.
                    5) For the   purposes   of   this   section, " record"   means information that is
        inscribed on a tangible medium or that is stored in an electronic or other medium
        and is retrievable in perceivable form.


        Here, the superior court conducted a hearing on jurisdiction on August 29, 2012, and

ruled that Washington would maintain jurisdiction. But over half a year later, on March 18,

2013, prior to a trial on Leilani' s motion to modify the Washington parenting plan, the superior

court communicated with the Texas district court and transferred jurisdiction to Texas.

        Thus, the superior court conducted a conversation with the Texas district court without


the parties present. While the parties did have an opportunity to argue jurisdiction on August 29,

2012, that argument resulted in a ruling that Washington would maintain jurisdiction pending

further proceedings. There is no evidence that the parties had an opportunity to address

jurisdiction after August 29, 2012. We hold that the superior court erred by reversing its prior

ruling that it maintained jurisdiction over half a year later, based on an ex-parte communication

with a foreign court without providing the parties with another opportunity to present facts and

legal arguments before a decision on jurisdiction was made.



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No. 45153 -1 - II




        We remand for the superior court to determine ( 1) whether it had jurisdiction under the


UCCJEA to enter its parenting plan and ( 2) if so, whether Washington or Texas should exercise

jurisdiction in this case. 6

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




6 Pedro also argues the superior court erred by entering the order transferring jurisdiction to
Texas because ( 1) Washington has jurisdiction    over   this   matter as a matter of   law, ( 2) the order
granted relief to Leilani, who was not entitled to relief until she took a parenting class, and ( 3)
Leilani failed to serve Pedro with her petition for modification. Because we reverse the order
transferring jurisdiction to Texas on other grounds, we do not consider these other arguments
challenging the order. Pedro may raise these issues on remand.

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