                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1104
                           Filed September 14, 2016


IN THE MATTER OF THE GUARDIANSHIP
OF M.M. AND J.M.,
Minor Children,

J.H., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Fayette County, Joel A. Dalrymple,

Judge.



       A father challenges the appointment of maternal grandparents as

guardians over his two children. VACATED AND DISMISSED.




       Nicholas A. Sarcone of Stowers & Sarcone, P.L.C., West Des Moines, for

appellant father.

       Carolyn J. Beyer of Beyer Law Firm, P.C., Iowa City, for appellees.



       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       A father challenges the appointment of maternal grandparents as

guardians over his two children. He raises a number of issues, one of which we

find dispositive: the maternal grandparents’ failure to formally notify the children’s

caretakers of their guardianship action.

I.     Background Facts and Proceedings

       This appeal involves two of the father’s children, born in 2006 and 2009.

The mother’s parental rights to these children were terminated in a Michigan

proceeding. The children were placed in the father’s care. He moved them to

his home in Iowa where, according to the Michigan Department of Human

Services, they adjusted well to their placement. The father afforded the children

visits with their maternal grandparents, who had served as their foster parents in

Michigan and had since moved to Iowa.

       Meanwhile, the father was charged with a federal crime.          He sent the

children to stay with his parents in Texas and gave them power of attorney over

the children’s affairs. He also signed a letter purporting to appoint his mother

guardian of the children.     He came to realize the document was not “good

enough” to create a guardianship.

       The paternal grandparents cared for the children and enrolled them in

Texas schools.    Meanwhile, the maternal grandparents filed an Iowa petition

seeking to become permanent co-guardians of the children.              The paternal

grandmother responded with a similar application in Texas. The father filed a

pre-answer motion to dismiss the Iowa action on the ground the children were

living in Texas with the paternal grandparents, to whom he had provided power
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of attorney and guardianship letters. He asserted the Iowa district court lacked

personal jurisdiction over his children. The district court did not rule on the motion

prior to trial. Although the record contains an e-mail documenting some

communication between the Iowa and Texas courts, the outcome of these

communications is unclear.

       The Iowa court scheduled the case for trial.        Following trial, the court

rejected jurisdictional challenges raised by the father in his pre-answer motion

and pre-trial brief and granted the maternal grandparents’ guardianship petition.

       On appeal, the father leads off with a notice issue, which we find

dispositive.

II.    UCCJEA – Notice

       The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)

provides the exclusive jurisdictional basis for making a child custody

determination.   See Iowa Code § 598B.201(1), (2) (2015).            A child-custody

proceeding “includes a proceeding for . . . guardianship . . . in which the issue

may appear.” Id. § 598B.102(4).

       Chapter 598B contains the following notice provision:

               Before a child-custody determination is made under this
       chapter, notice and an opportunity to be heard in accordance with
       the standards of section 598B.108 must be given to all persons
       entitled to notice under the law of this state as in child-custody
       proceedings between residents of this state, any parent whose
       parental rights have not been previously terminated, and any
       person having physical custody of the child.

Id. § 598B.205(1) (emphasis added).

       The father contends, “Notice was required to the paternal grandparents

under Iowa Code § 598B.205, and without this notice the judgment is invalid and
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unenforceable.”    The maternal grandparents respond that error was not

preserved.

       Error preservation is not a concern because the provisions of the UCCJEA

are jurisdictional and challenges to subject matter jurisdiction may be raised at

any time. See In re Jorgensen, 627 N.W.2d 550, 554-55 (Iowa 2001) (noting the

precursor to UCCJEA “set forth the jurisdictional requirements with regard to a

custody determination,” which were questions of subject matter jurisdiction the

court could determine even though the parties did not raise them); In re Marriage

of Ross, 471 N.W.2d 889, 893 (Iowa 1991) (stating jurisdictional requirements of

precursor to UCCJEA were mandatory, not discretionary); see also Klinge v.

Bentien, 725 N.W.2d 13, 16 (Iowa 2006) (“Lack of subject matter can be raised

‘at any time.’” (citation omitted)); In re S.P., 672 N.W.2d 842, 846 (Iowa 2003)

(stating the father “had every right to challenge” a termination order based on the

absence of notice to him, even though he waited until the appeal to do so,

because void judgments are subject to attack at any time); White v. Harper, 807

N.W.2d 289, 293 (Iowa Ct. App. 2011) (“Courts may raise the issue of subject

matter jurisdiction at any time.”). But even if section 598B.205 did not implicate

the court’s subject matter jurisdiction, we conclude the statutory notice issue was

raised—albeit belatedly—and was decided by the district court, obviating any

error preservation concerns. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa

2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.”). We proceed to the merits.
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       Section 598B.205(1) requires notice “under the law of this state” to be

given to “any person having physical custody of the child.” The UCCJEA defines

“physical custody” as “the physical care and supervision of a child.” Iowa Code §

598B.102(14). At the time the maternal grandparents filed their guardianship

action, the paternal grandparents had physical custody of the children.         The

district court conceded as much, citing the father’s “intent and desire to otherwise

remove the children from Iowa and place them within the care and custody of his

parents,” “the children’s relocation” to Texas, and the father’s continued

residence in Iowa. The paternal grandparents attended to the children’s daily

needs, including their educational and medical needs, pursuant to the power of

attorney granted by the father. While the district court concluded the power of

attorney had “no bearing upon the custody determination or finding for the

purposes of the notice issue,” we are persuaded otherwise. The father, who

indisputably had legal custody of the children, possessed the authority to assign

others as physical caretakers. The power of attorney he executed evinced his

intent to assign his parents as the caretakers. Cf. In re Sophia G.L., 890 N.E.2d

470, 483-84 (Ill. 2008) (finding no notice to maternal grandfather was required in

the absence of evidence that he “was responsible for [the child’s] physical care

and supervision”).

       Having concluded the paternal grandparents had physical custody of the

children, we further conclude they were entitled to notice of the Iowa

guardianship proceeding. See Iowa Code § 598B.205(1). Section 598B.108

specifies the type of notice to which they were entitled:
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              1. Notice required for the exercise of jurisdiction when a
       person is outside this state may be given in a manner prescribed by
       the law of this state for service of process or by the law of the state
       in which the service is made. Notice shall be given in a manner
       reasonably calculated to give actual notice but may be by
       publication if other means are not effective.
              2. Proof of service may be made in the manner prescribed
       by the law of this state or by the law of the state in which the
       service is made.
              3. Notice is not required for the exercise of jurisdiction with
       respect to a person who submits to the jurisdiction of the court.

The paternal grandparents did not receive the types of notice specified in section

598B.108. See id.; Harper, 807 N.W.2d at 295 n.10 (noting parents who have

physical custody of a child are bound by child custody determinations only if they

were “notified in accordance with section 598B.108” or submitted to the

jurisdiction of the court); Iowa Rs. Civ. P. 1.305, 1.306 (prescribing methods of

service).   Again, the district court conceded as much, stating the record

contained no proof of service of the guardianship action on the paternal

grandparents. But, the court surmised they must have had actual notice of the

proceedings based on their relationship with the father and the children’s god

parents.

       Where notice is required, actual notice is insufficient.       See State v.

Kaufman, 201 N.W.2d 722, 724 (Iowa 1972) (“Actual notice, manifested by the

special appearance, is no substitute for service of notice according to statute.”);

In re J.R.H., No. 05-0610, 2005 WL 1398586, at *1 (Iowa Ct. App. June 15,

2005) (“The fact that a parent may be aware of the legal proceedings through

informal sources does not relieve the State of its obligation to provide formal

notification of the child-in-need-of-assistance proceedings.”); see also Ex parte

D.B., 975 So. 2d 940, 952-53 (Ala. 2007) (“Although it appears that the adoptive
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couple had actual notice of the Nebraska proceeding, given that one of their

attorneys was present, nothing in the record indicates that the adoptive couple

were properly served with notice of that proceeding. Additionally, the adoptive

couple’s attorney who was present in the Nebraska proceeding never made an

official appearance, and there is no indication in the record that he participated in

the proceeding in any way.”).     Formal notice was required.      See Iowa Code

§ 598B.108. The absence of formal notice deprived the Iowa district court of

subject matter jurisdiction.

       We vacate the ruling in the maternal grandparents’ guardianship action as

void and unenforceable.

       VACATED AND DISMISSED.
