In Re the Custody of H.M.B.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0488

In Re the Custody of H.M.B.

Harrison Wayne Bernier, petitioner,
Respondent,

vs.

Candida Diann Ackerson,
Appellant.

Filed September 4, 2018
Affirmed
Schellhas, Judge

Dakota County District Court
File No. 19AV-FA-17-2550

Julie K. Seymour, Mary B. Rannells Rowan, Seymour Family Law, Lakeville, Minnesota
(for respondent)

Sharon Jones, Legal Assistance of Dakota C ounty, Ltd., Apple Va lley, Minnesota (for
appellant)

Considered and decided by Hooten, Pres iding Judge; Ross, Judge; and Schellhas,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant seeks reversal of a district c ourt’s order concluding that Minnesota has
jurisdiction over a custody dispute under th e Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), Minn. Stat. §§ 518D.101-.317 (2016). We affirm.
FACTS
Appellant Candida Ackerson (mother) and respondent Harrison Bernier (father) are
the parents of H.M.B., born in 2016, in Or egon. Mother and fath er never married, but
father’s name appears on H.M.B.’s birth certif icate. In August 2016, mother and father
signed a “Parental Contract Agreement of Cu stody of [H.M.B.],” through which they
agreed to share custody. Fath er lived in Minnesota and vi sited mother and H.M.B. in
Oregon.
In July 2017, father, mother, and H.M.B. moved to Washington, where mother and
father signed an apartment lease. On September 3, H.M.B.’s paternal grandmother flew to
Minnesota with H.M.B., and mother and fath er drove to Minnesota with all of their
belongings. H.M.B.’s grandmother cared for her until mother and father arrived. Mother,
father, and H.M.B. lived with father’s family in Minnesota while they searched for housing.
On October 4, 2017, mother served and filed a petition for an order for protection
(OFP) against father on behalf of herself and H.M.B. The next day, father served and filed
a motion for an emergency ex parte order ag ainst mother, seeking a temporary custody
determination for H.M.B. and an order that neither party remove H.M.B. from the state.
The district court conducted an emergency he aring and found that H.M.B. had no home

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state under the UCCJEA, that “[H.M.B.] and bo th parents presently reside in Minnesota
and have a significant connection here,” and that “[s]ubstantial evidence is available in this
state concerning the child’s care, protection, training and personal relationships.” The court
concluded that the Minnesota court has juri sdiction under Minn. Stat. § 518D.201(a)(2),
granted temporary joint legal and physical cust ody of H.M.B. to the parents, and ordered
that neither parent remove H.M.B. from the state.
On October 11, 2017, the dist rict court granted mother’s petition for an OFP as to
mother only, not H.M.B. On October 16, mo ther filed a custody petition in Oregon. On
October 24, mother filed a responsive motion in Minnesota, seeking a denial of father’s
motion, a ruling that Minnesota “is an inconvenient forum . . . and that this controversy
should be addressed in Oregon,” or a grant of sole legal and phys ical custody of H.M.B.,
permitting mother to move to Oregon with H. M.B., and an order that father pay child
support to mother. Father thereafter moved the court to deny mother’s responsive motion
and to affirm the temporary custody plan in the court’s October 5 order.
After a motion hearing in November 2017, the district court issued an order in
January 2018. The court concl uded that H.M.B. had no home state and that Minnesota
would retain jurisdiction over the matter, noting that it would appoint a guardian ad litem
to make recommendations regarding permanent custody and parenting time. The court also
reserved any motions not addressed. The Oregon court dismissed mother’s case on
February 14, 2018. Mother stated at oral argument before this court that the Oregon court
dismissed her case because it concluded that the Minnesota court had already asserted
jurisdiction over the matter.

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This appeal follows.
D E C I S I O N
Mother argues that this court should conc lude that Minnesota courts lack subject-
matter jurisdiction and reverse. We disagree. “The issue of subject-matter jurisdiction can
be raised at any time in the proceeding.” Cook v. Arimitsu, 907 N.W.2d 233, 237 (Minn.
App. 2018) (quotation omitted), review denied (Minn. Apr. 17, 2018). A district court’s
determination of whether it has subject-matte r jurisdiction under the UCCJEA presents a
question of law that we review de novo. Id. at 238. “A district court’s underlying findings
of fact, however, are not set aside unless they are clearly erroneous.” Id. (citing Minn. R.
Civ. P. 52.01).
“The UCCJEA provides four bases for a Mi nnesota court to have jurisdiction to
make an initial child-custody de termination” with “[h]ome-st ate jurisdiction [being] one
basis.” Id.; Minn. Stat. § 518D.201(a)(1). Home-sta te jurisdiction exists when Minnesota
is the “home state of the ch ild on the date of the commencement of the proceeding.” Id.
“Home state” is specifically defined as “the stat e in which a child lived with a parent . . .
for at least six consecutive months immediat ely before the commencement of a child
custody proceeding.” Minn. St at. § 518D.102(h). “A period of temporary absence [from
the state] is part of this period.” Id.
Another basis for jurisdiction under the UCCJEA is when the child has no “home
state,” and the child and the child’s parents have “a significant connection with this state,”
and “substantial evidence is available in this state concerning the child’s care, protection,
training, and personal relati onships.” Minn. Stat. § 518D.2 01(a)(2). Once a district court

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makes an initial child-custody determination under sections 518D.201 or .203, it has
exclusive, continuing jurisdiction until it determines that “the child [and] the child’s parents
. . . 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.” Minn. Stat. § 518D.202(a)(1).
Here, the district court determined th at H.M.B. had no home state and that
Minnesota has jurisdiction becau se both parents and child resi ded here, had a significant
connection here, and substantia l evidence existed regarding H.M.B.’s care, protection,
training, and personal relationships. At the time that father filed his custody petition,
neither Oregon nor Minnesota existed as H.M.B.’s home state because she had not resided
in either state “for at least six consecutive months” prior to father’s filing. See Minn. Stat.
§ 518D.102(h) (defining “home state”); Arimitsu, 907 N.W.2d at 239 (concluding
Minnesota was children’s home st ate when they had lived thei r entire lives in Minnesota
and were only temporarily absent from Minnesota when father filed his case). The record
supports the district court’s findings that bot h parents and H.M.B. reside in Minnesota,
have a significant connection to Minnesota, a nd that substantial evidence exists as to
H.M.B.’s care, protection, training, and pers onal relationships. In Minnesota, H.M.B. has
been enrolled in preschool, has a primary physician, has a bank account, and has strong
connections to father’s family.
Citing Arimitsu, Mother argues that the district court clearly erred by not ruling that
Oregon was the home state of H.M.B., and by ruling that H.M.B. has no home state. Mother

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argues that “because she retain ed a home in Oregon, where sh e could return at any time,
the absence from that state was temporary, and therefore, [Oregon] retained jurisdiction.”
In Arimitsu, a mother of four children, who li ved their entire lives in Minnesota,
moved with the children to Japan, where fath er agreed they could stay temporarily. 907
N.W.2d at 235. A Japanese court ruled that th e children had to be re turned to Minnesota.
Id. Father sought to enforce the Japanese or der in Minnesota, and the district court
concluded that it had jurisdiction because Minnesota was the children’s home state. Id. at
236. On appeal, this court concluded that th e district court correctly asserted home-state
jurisdiction because, six months prior to father’s filing for custody in Minnesota,
Minnesota was the children’s home state under Minn. Stat. § 518D.102(h). Id. at 239. This
court determined that the children’s absence from Minnesota was temporary based on the
“parents’ agreement and their intent regarding the temporary . . . status of the child’s out-
of-state absence,” and when th e father received notice of mo ther’s intent to keep the
children in Japan, the children’s home state was Minnesota. Id.
Mother argues that, like th e children’s temporary absence from Minnesota in
Arimitsu, H.M.B.’s absence from Oregon was temporary because mother never terminated
her lease in Oregon, can return to Oregon at any time, intended to return to Oregon before
father filed his motion, and did not have a permanent address in Minnesota. We disagree.
Mother provided no evidence that she intended to return to Oregon besides her bare
assertion and two letters from her alleged Oreg on landlords, stating that she “has been

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residing” at their home with no reference to leases. 1 When mother moved to Washington,
she took all of her belongings with her and si gned a lease in Washington. Mother did not
state in either of her affidavits that she left Oregon temporarily with H.M.B., or that she
intended to return to Oregon. Mother inst ead focused on how litigation would be more
convenient in Oregon and why H.M.B.’s best interests weigh in favor of residing in Oregon
with mother.2
Father provided copies of the parties’ Wa shington lease and a letter and envelope
addressed to mother regarding assistance available to mother and H.M.B. from the State of
Minnesota. The record also shows that mother was employed in Minnesota and underwent
training at the University of Minnesota. Weighing the opposing evidence, the district court
determined that H.M.B.’s absence from Oregon was not temporary. The evidence does not
support mother’s argument that Oregon remain ed her “primary reside nce” during the six
months prior to the filing of father’s custody motion. We therefore conclude that the district
court did not err when it found that H.M.B. had no home state. See Arimitsu, 907 N.W.2d
at 239 (concluding absence was temporary where parents explicitly agreed that the children
could remain in Japan temporarily); Pechovnik v. Pechovnik, 765 N.W.2d 94, 99 (Minn.

1 Mother stated in her affidavit that she and father “agree[d] to move to Washington,” and
that “[she] was never sure that the move to Minnesota would be good for [H.M.B.] and
[her], but [she] wanted to try to be a family [with father] . . . .” These statements contradict
her claim that she always intended to return to Oregon after leaving it for Washington and
then Minnesota.
2 A Minnesota court “which has jurisdiction . . . may decline to exercise its jurisdiction at
any time if it determines that it is an inconv enient forum . . . and th at a court of another
state is a more appropriate forum.” Minn. Stat. § 518D.207(a). The court here, in its
January 19, 2018 order, concluded that Minnesota is not an inconvenient forum and that it
remains the most appropriate forum. Mother does not challenge this conclusion on appeal.

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App. 2009) (stating this court does not “rec oncile conflicting eviden ce . . . which [is]
exclusively the province of the factfinder” (quotation omitted)).
Citing In re Marriage of Schmidt, 436 N.W.2d 99 (Minn. 1989), mother argues that
the district court did not make the requisite findings to assert jurisdiction. Mother argues
that this court must remand so that the district court can make additional findings. We
disagree.
In Schmidt, a Minnesota district court asserted jurisdiction over a custody dispute
without explaining its basis for doing so under the UCCJEA’s pr edecessor, the Uniform
Child Custody Jurisdiction Act, Minn. Stat. §§ 518A.01-.25 (1988). 436 N.W.2d at 105.
The supreme court reversed the district court’s order on other grounds, but instructed that
on remand, the district court should make the requisite findings to identify its basis for
asserting jurisdiction. Id. at 105. But the supreme court stated “that omission [of the
requisite findings], standing alone, would not have required reversal.” Id. (footnote
omitted).
Unlike in Schmidt, while the district court’s Oct ober 5 ex parte order does not
contain any supporting factual findings other than that H.M. B. has no home state, its
January 19, 2018 order contains numerous fi ndings regarding the facts of the case,
including that the parties had moved to Washington from Oregon, and then to Minnesota,
and that mother had been employed in Minnesota and received state assistance.
Mother also argues that the district cour t “erred as a matter of law in asserting
jurisdiction” over this case because “mother’s permanent home i[s] in Oregon.” Mother
argues this error warrants reversal. As di scussed above, the evidence does not support

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mother’s contention and the district court did not clearly err when it found that H.M.B. had
no home state and that jurisdiction was proper in Minnesota.
Based on the record, even if we remanded to the dist rict court to make additional
findings, the court likely would reach the same conclusion. See Grein v. Grein, 364 N.W.2d
383, 387 (Minn. 1985) (refusing to remand for missing findings of fact when “from reading
the files, the record, and the court’s findi ngs, on remand the [district] court would
undoubtedly make findings that comport wi th the statutory language”). Regardless, we
conclude that remand for further findings is not necessary. We therefore affirm the district
court’s assertion of subject-matter jurisdiction over this dispute.
Affirmed.