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In re Marriage of Cook

Court of Appeals of Minnesota

January 22, 2018

In re the Marriage of: James Edward Cook, II, petitioner, Respondent,
v.
Hitomi Arimitsu, Appellant.

         Hennepin County District Court File No. 27-FA-15-499

          Victoria M. B. Taylor, Crossroads Legal Services, St. Paul, Minnesota (for respondent)

          Drake D. Metzger, Metzger & Nyberg, L.L.C., Minneapolis, Minnesota (for appellant)

          Considered and decided by Peterson, Presiding Judge; Cleary, Chief Judge; and Reyes, Judge.

         SYLLABUS

         I. Under the Uniform Child Custody Jurisdiction and Enforcement Act, a court has home-state jurisdiction to make an initial child-custody determination if the state was the home state of the child within six months before the commencement of the proceeding, and the child is absent from the state but a parent or person acting as a parent continues to live in this state. Further, if a child is not in what would otherwise be the child's home state, the six-month period within which a parent can commence a custody proceeding in the state does not begin to run until that parent has reason to recognize the permanency of the child's absence from the state.

         II. Substantial compliance with the notice requirements of Minn. Stat. § 518D.305 (2016) is sufficient to allow a Minnesota district court to confirm the registration of a foreign custody determination.

          OPINION

          REYES, JUDGE

         Appellant-mother Hitomi Arimitsu, who currently lives in Japan with the four children she shares with respondent-father James Cook, asserts that the district court erred in ruling that it had subject-matter jurisdiction over the parties' child-custody dispute. Mother argues that (1) the successor district court judge in this case should not have reviewed a ruling by a predecessor district court judge that it lacked subject-matter jurisdiction to address child custody; (2) the district court lacks subject-matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to hear the parties' custody dispute; and (3) there was no proper registration of an order of a Japanese court in the Minnesota District Court (district court). We conclude that the district court did not err in its rulings. Therefore, we affirm.

         FACTS

         The parties married in 1998 and had twins in 2002 and again in 2008. In May 2014, they listed their home for sale. In July 2014, in preparation for a trip mother and the children were to take to Japan, the parties signed an agreement stating that mother would return with the children by August 29, 2014, after which mother and the children left for Japan. July 2014 was the last time the children were in Minnesota.

         In mid-August 2014, father agreed that the children could stay in Japan for an unspecified additional amount of time, but not indefinitely. In October 2014, father visited the children in Japan. In January 2015, father filed a summons and petition in district court to dissolve the parties' marriage. Father's summons and petition were served on mother on April 27, 2015. At a July 23, 2015 initial case-management conference (ICMC), the district court asked the parties to address whether, given the children's time in Japan, the district court had subject-matter jurisdiction under the UCCJEA to address child custody.

         On August 7, 2015, father applied under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the Hague Convention) for aid in getting the children returned to the United States. Twelve days later, father started Hague litigation in Japan, asking the Japanese court to return the children to the United States.

         On October 19, 2015, the district court filed its order arising from the ICMC, ruling that, under the UCCJEA, Minnesota lacked subject-matter jurisdiction to address custody because Minnesota was not the children's home state. The district court acknowledged that, under the UCCJEA, a child's temporary absence from a state did not mean that the state stopped being the child's home state, but concluded that, on the then-existing record, the absence of the children from Minnesota did not constitute a temporary absence. The assigned judge subsequently retired and, in May 2016, the case was assigned to a successor judge.

         On October 30, 2015, in the Hague litigation, a Japanese court ruled that the parties' younger twins, but not the older twins, should be returned to the United States. Both parties appealed this ruling, and, on January 28, 2016, a Japanese court ruled that all four children should be returned to the United States. Mother appealed that ruling, but her appeal was denied. Mother did not return any of the children to the United States. Instead, in the Japanese courts, she challenged father's attempts to enforce the January 2016 Hague order requiring the children to return to the United States.

         In September 2016, father moved the district court to reassert jurisdiction over the question of child custody and to enforce the January 2016 Hague return order. By order, the district court granted these motions. The district court found, based in part on what the parties and their attorneys said about Japanese law, that Japanese courts were precluded from dissolving the parties' marriage and from addressing custody for four reasons: (1) the pendency of the Hague litigation; (2) the dissolution proceeding pending in Minnesota; (3) father had not abandoned the family and his whereabouts were known; and (4) the parties were still legally married.

         Mother moved the district court for amended findings, essentially asking it to reverse the December 2016 ruling reasserting jurisdiction over the question of child custody. A hearing on mother's motion occurred on February 10, 2017.

         A week after that hearing, a Japanese court filed an order ruling that the January 2016 Hague return order should not be enforced because (1) the children "refused strongly to be returned to the U.S.[;]" (2) father's home in the United States had been foreclosed and the redemption period had expired without father redeeming the home; (3) father lacked the ability to provide the children with a stable environment in the United States; and (4) mother cannot provide the children with a stable environment in the United States because "she doesn't have a basis to live in the U.S." Six days later, father's Minnesota attorney sent a letter to the district court, stating that father was appealing the Japanese court's February 2017 order.

         By order filed March 24, 2017, the district court found mother in contempt of court for not returning the children to the United States and set purge conditions. On April 4, 2017, the district court filed an order denying mother's motion for amended findings, and ruling, among other things, that (1) the district court had authority to reconsider the jurisdictional ruling in the October 2015 order; (2) despite the February 2017 order of the Japanese court, Minnesota currently has subject-matter jurisdiction to address custody because, ...


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