Brandt v. Brandt

268 P.3d 406 (2012)

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Nature of the Case

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Facts

W and George (H) were divorced in Montgomery County, Maryland on May 25, 2006. Their voluntary agreement provided that the couple would have joint custody of their child, C.B., with W having primary physical custody. At the time of the divorce, H was an active duty member of the Army, having just returned from a tour of duty in Iraq. From 2006 to 2008, H and W lived in Maryland and shared custody of C.B. In 2008, the Army transferred H to Colorado. The parties divided time with C.B. equally during the summer of 2008, and C.B. returned to Maryland for the 2008-09 school year. H served in Colorado until 2010 when he retired, re-married, and settled with his new wife in Littleton, Colorado. W was commissioned into the Army in 2009, serving in the Nursing Corps. W was stationed in Texas, where she moved with C.B. from Maryland in March of that year. C.B.'s 2009 summer was also split between his parents. W was deployed to Iraq on active duty in April 2010. The parties mutually agreed that, while she was in Iraq, C.B. would live with H in Colorado. W returned from Iraq on October 10, 2010, and was reassigned to Texas. H and W agreed to let C.B. complete the remainder of the 2010-11 school year in Colorado at which point George Brandt would return C.B. to W. On April 26, 2011, W received military orders to return to Maryland and finish her active duty. Her orders required her to report no later than August 1, 2011 and authorized her to report on July 15, 2011. C.B. returned on May 22, 2011, to live with W, who was still in Texas. On May 6, 2011, H filed a petition in the Arapahoe County district court to register the Maryland custody order and to request that the court assume jurisdiction to modify the custody order. W was served in Texas on May 18. On May 25, the district court entered its order registering the Maryland decree and assuming jurisdiction to modify it. The court based its assumption of modification jurisdiction on the fact that C.B. had resided in Colorado for more than one year and neither H nor W nor their child 'currently resided' in Maryland. W filed a pro se motion to dismiss the petition H had filed. On June 8, W and C.B. returned to her home in Maryland pursuant to her military orders. H filed a petition to modify parenting time in the Arapahoe County District Court, together with an emergency motion for issuance of a writ of habeas corpus and writ of assistance in order to secure the return of C.B. H claimed that W abducted C.B. to Maryland without his consent because he and W had previously agreed that C.B. would spend the second half of the summer (commencing on June 25) with him in Colorado. The district court issued both requested writs. W traveled back to Texas to out-process from Fort Hood. C.B. was left with relatives who traveled to Pennsylvania. H with the help of local law enforcement, exercised the Colorado writ, in Pennsylvania, taking C.B. into his physical custody and returning to Colorado, where C.B. has resided with him since June 26. W obtained counsel in Colorado and filed a motion for reconsideration and motion to dismiss the May 25 Order. In a telephone conference between courts, Colorado said that: (1) Maryland had lost exclusive continuing jurisdiction due to W's presence in Texas, not Maryland. Maryland claimed it retained exclusive continuing jurisdiction over the custody order. The Maryland judge lamented that both states were now asserting jurisdiction, the very result the legislatures in both states had intended to avoid in enacting the uniform statute. W claims that the district court erred in finding that she no longer resided in Maryland for purposes of determining modification jurisdiction under the UCCJEA. H argues that the district court properly assumed jurisdiction to modify the Maryland child custody order.