Appellant: John Paul Hemminger
Appellee: Gulen Hemminger Zubizarreta fka Gulen Dinc Hemminger
( Joplin )
( Custer County - Christopher A. Kelly )
AFFIRMED
Barry K. Roberts, Norman, Oklahoma, For Petitioner/Appellant
Stephen D. Beam, Weatherford, Oklahoma, For Defendant/Appellee
Opinion
¶1 Petitioner/Appellant, John Paul Hemminger (Father), seeks review of the trial court's order concluding Oklahoma was an inconvenient forum and the State of New York was a more convenient forum for custody proceedings relating to Father's minor child, J.D.H., with his ex-wife, Respondent/Appellee Gulen Hemminger Zubizarreta (Mother). We discern no abuse of discretion and affirm.
¶2 Father and Mother divorced in 2003 in Custer County, Oklahoma, and initially shared joint custody of J.D.H. The trial court later granted primary custody to Mother in an order affirmed in Hemminger v. Hemminger, Case No. 103,462, Slip. Op. (May 18, 2007). In 2008, the trial court approved Mother's request to relocate with J.D.H. to New York, ordering visitation on specified holidays and for two months in the summer.
¶3 On February 20, 2009, Father moved to transfer venue to Canadian County, Oklahoma. Mother objected to the transfer and contested jurisdiction. The trial court exercised jurisdiction and denied the motion. Father filed an appeal in Case No. 107,111. The Supreme Court ordered Father to show cause why the appeal should not be dismissed for lack of an appealable order. When Father did not respond, the Supreme Court dismissed the appeal as abandoned.
¶4 Father filed an application for a writ of mandamus in Case No. 107,276. The Supreme Court granted the writ on September 14, 2009. The record on appeal in this matter does not include a copy of the writ. However, the docket entry shows the Supreme Court directed the trial court to hold an evidentiary hearing determining whether Custer County still had exclusive, continuing jurisdiction, and whether the case should be retained in Custer County or transferred to Canadian County or to New York.
¶5 At the hearing on May 6, 2010, the trial court announced the issues to be tried pursuant to the writ of mandamus were whether Custer County still had exclusive continuing jurisdiction pursuant to 43 O.S. 551-202 (2001) and whether the case should be retained in Custer County or transferred either to Canadian County or to New York pursuant to 43 O.S. 551-207 (2001) and 43 O.S. 103(D) (2002). After the close of evidence, the trial court pronounced its ruling, finding the District Court of Custer County had exclusive and continuing jurisdiction pursuant to 43 vO.S. 551-202 up to that moment, but that Oklahoma was an inconvenient forum and New York was a more convenient forum. The trial court filed its journal entry memorializing this ruling on August 2, 2010. Father appeals from this order.
¶6 Father's brief raises issues outside the scope of the order on appeal. The trial court conducted the hearing pursuant to the Supreme Court's directive, which set forth the scope of the hearing and the statutory sections controlling this matter. We will not consider issues settled by the law of the case. Miller Dollarhide, P.C. v. Tal, 2006 OK 27, 8, n.11, 174 P.3d 559, 563. In addition, we will not consider issues not presented to and passed upon by the trial court. Von Stilli v. Young, 1950 OK 137, 14, 219 P.2d 224, 228.
¶7 The trial court may exercise its discretion in deciding whether it is an inconvenient forum. In Re C.O., 1993 OK CIV APP 64. 17, 856 P.2d 290. We will not disturb the trial court's decision absent abuse of discretion. McCullough v. McCullough, 2000 OK CIV APP 125, 10, 14 P.3d 576. We will not find abuse unless the trial court made a clearly erroneous conclusion and judgment against reason and evidence. Wilbanks Securities, Inc. v. McFarland, 2010 OK CIV APP 17, 231 P.3d 714, 719.
¶8 The parties agree the trial court had exclusive, continuing jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 43 O.S. 551-202(A) (2011). A court with jurisdiction under the UCCJEA may decline to exercise its jurisdiction if it determines it is an inconvenient forum and a court of another state is a more appropriate forum. 43 O.S. 551-207(A). The issue of inconvenient forum may be raised by a party, by the court, or by the request of another court. Id. The relevant factors the court may consider include:
"1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
"2. The length of time the child has resided outside this state;
"3. The distance between the court in this state and the court in the state that would assume jurisdiction;
"4. The relative financial circumstances of the parties;
"5. Any agreement of the parties as to which state should assume jurisdiction;
"6. The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
"7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
"8. The familiarity of the court of each state with the facts and issues in the pending litigation."
43 O.S. 551-207(B) (2011).
¶9 The trial court in the present case properly considered these factors in deciding whether Oklahoma was an inconvenient forum and New York was a more appropriate forum. The two factors weighing most strongly against Oklahoma and in favor of New York were that J.D.H. had resided in New York for the previous twenty-three months, and the nature and location of the evidence required to resolve the pending litigation, including the child's testimony and testimony of his teachers and counselor, was primarily in New York. The trial court's findings relating to these factors are well-supported by the record. We discern no abuse of discretion in the trial court's conclusion Oklahoma was an inconvenient forum and New York was a more convenient forum. Having so concluded, the trial court properly stayed its proceedings pending an order from a New York court accepting the case.
¶10 Accordingly, the trial court's order is AFFIRMED.
BUETTNER, P.J., concurs, and BELL, J. (sitting by designation), dissents.