Stacy R. Clifford v. Douglas R. Clifford ( 2018 )

FILED
JANUARY 11, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STACY R. CLIFFORD, )
) No. 34087-2-III
Respondent, )
)
v. )
)
DOUGLAS R. CLIFFORD, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — Douglas Clifford challenges a child custody determination made
by the Benton County Superior Court, which he contends lacked subject matter and
personal jurisdiction. Although the aspect of the determination that he challenges was
later modified and the order has now expired by its terms, both he and Stacy Clifford
encourage us to retain and decide issues arising under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), chapter 26.27 RCW. For reasons
explained below we decline to do so. We dismiss the appeal as moot.
No. 34087-2-III
Clifford v. Clifford
FACTS AND PROCEDURAL BACKGROUND
Douglas and Stacy Clifford were married and lived in Florida with their three
minor children before December 4, 2015, when Stacy 1 reported to police that Douglas
had assaulted her. He was arrested and charged with domestic battery. Without notice to
Douglas, Stacy promptly removed the children from school and moved to Benton
County, Washington, where she has family.
On December 11, 2015, Stacy petitioned Benton County Superior Court for an
order for protection for herself and her children. The superior court issued an order
temporarily prohibiting Douglas from contacting Stacy or the children and set a hearing
for December 24. The hearing was later continued to January 15. Meanwhile, on
December 21, Douglas filed an action in Florida to dissolve the parties’ marriage.
A lawyer for Douglas filed a special notice of appearance in the Benton County
action along with briefing. He challenged (1) the court’s subject matter jurisdiction under
the UCCJEA, (2) the court’s personal jurisdiction over Douglas, and (3) the sufficiency
of Stacy’s service of process.
At the hearing in Benton County to determine whether the temporary protection
would be extended, Stacy argued that Washington had personal jurisdiction, apparently
1
We use the parties’ first names for ease of reading, intending no disrespect.
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relying on RCW 26.50.240(d)(i) or (ii). 2 Either basis for personal jurisdiction requires in
addition, in relevant part, that the respondent “must have communicated with the
petitioner . . . while the petitioner . . . resides in this state.” RCW 26.50.240(d)(2).
“[C]ommunicated” for this purpose “includes, but is not limited to, through the mail,
telephonically, or a posting on an electronic communication site or medium.” Id. Stacy
contended that the communication requirement was satisfied by electronic mail that
Douglas allegedly sent to her on December 7.
Douglas contended that the electronic communication on which Stacy relied was
sent not to her, but to himself, at “thecliffordhouse@gmail.com,” a family electronic mail
account he set up primarily for personal information and information relating to the
family’s Florida household. Clerk’s Papers (CP) at 55-56. He asserted that he often used
the account to make notes or record information. According to him, Stacy had a separate
2
Those provisions state that a Washington court may exercise personal
jurisdiction over nonresidents in protection order proceedings where the acts giving rise
to the petition for protection occurred outside of Washington and
(d)(i) The act or acts of the individual or the individual’s agent
giving rise to the petition or enforcement of an order for protection
occurred outside this state and are part of an ongoing pattern of domestic
violence or stalking that has an adverse effect on the petitioner or a member
of the petitioner’s family or household and the petitioner resides in this
state; or
(ii) As a result of acts of domestic violence or stalking, the petitioner
or a member of the petitioner’s family or household has sought safety or
protection in this state and currently resides in this state.
RCW 26.50.240(d)(i), (ii).
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e-mail account that he used when sending messages to her. He argued that the message
of December 7 was, on its face, not intended as a communication to her. At most, he
stated, he had given Stacy access to the “thecliffordhouse” account so that she could
access household information he recorded there.
Although the “To” field on the electronic communication in question indicated
“Wife Stacy Clifford,” Douglas contended that the field was completed automatically,
perhaps when Stacy accessed the account and retrieved the item, and did not reflect any
intent on his part to direct the communication to her. CP at 42. He pointed out that the
subject line on the e-mail was “Domestic Notes 10/7.” Id.
After hearing argument on January 15, the Benton County court extended the
protection order for a year. As it related to the children, the court indicated in its order
that Washington State “has temporary emergency jurisdiction . . . that may become final
jurisdiction under RCW 26.27.231(2).” CP at 67. The court also granted Stacy
temporary custody of the children.
In a motion for reconsideration, Douglas argued that the trial court lacked
temporary emergency jurisdiction because a proceeding to determine child custody had
been commenced in the home state of Florida, divesting the Benton County court of
temporary emergency jurisdiction under the UCCJEA. Stacy’s response asserted she had
not been served with any process in a Florida proceeding. She argued that Douglas failed
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to present evidence that a custody proceeding had been commenced and that his
argument, unsupported by evidence, was untimely.
The motion for reconsideration was denied. Douglas filed a notice of appeal on
February 12, 2016.
Approximately two months later, on April 7, 2016, a Florida court entered an
order establishing Florida as the home state of the parties’ children, indicating that Stacy
had consented to Florida’s jurisdiction. Shortly thereafter, the Florida court entered a
further order acknowledging that Stacy had obtained an order for protection from the
Benton County court, which the Florida court stated “exercised emergency temporary
jurisdiction over the Minor Children.” CP at 102. The Florida order stated, “[I]f the
Superior Court of Washington for Benton County does not modify the Order for
Protection to apply only to [Stacy] and not to the Minor Children, the parties may set a
15-minute telephone hearing with the Court to effectuate a conference call with the
Washington court pursuant to the UCCJEA.” CP at 103. On July 20, following a
UCCJEA hearing with a judge of the Florida court, the Benton County court entered an
order recognizing the Florida court’s jurisdiction over the children and modifying the
January 15 protection order by limiting its application to Stacy. By the time of oral
argument of this appeal, the order for protection for Stacy had expired by its terms.
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ANALYSIS
At oral argument, this panel questioned the lawyers as to why issues raised by
Douglas are not moot. The parties responded differently, except to agree that this case
presents legal issues arising under the UCCJEA that are of continuing and substantial
public interest. Both parties asked us to retain and decide the case. We decline to do so.
“‘[I]f the court can no longer provide effective relief,’ then the case is basically
moot.” State v. Cruz, 189 Wash. 2d 588, 597, 404 P.3d 70 (2017) (alteration in original)
(quoting State v. Hunley, 175 Wash. 2d 901, 907, 287 P.3d 584 (2012)). The general rule is
that moot cases should be dismissed. Id. (citing Sorenson v. City of Bellingham, 80
Wash. 2d 547, 558, 496 P.2d 512 (1972)). An exception exists for moot cases where it can
be said that matters of “continuing and substantial public interest are involved.”
Sorenson, 80 Wash. 2d at 558. Criteria to be considered in determining the requisite degree
of public interest are the public or private nature of the question presented, the
desirability of an authoritative determination for the future guidance of public officers,
and the likelihood of future recurrence of the question. Id. “Arguably a fourth factor
exists, that being the level of genuine adverseness and the quality of advocacy of the
issues.” Hart v. Dep’t of Soc. & Health Servs., 111 Wash. 2d 445, 448, 759 P.2d 1206
(1988).
Douglas’s first assignment of error is that the trial court lacked subject matter
jurisdiction under the UCCJEA. The UCCJEA “aims to prevent conflicting [child]
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custody orders by determining when a state can modify a custody order entered in
another state.” In re Parentage of Ruff, 168 Wash. App. 109, 114, 275 P.3d 1175 (2012).
Stacy does not dispute that Florida is the children’s home state for purposes of the
UCCJEA and she agrees that Washington could not exercise “home state” jurisdiction
under RCW 26.27.201(1). She argues that it never did—it exercised only temporary
emergency jurisdiction under RCW 26.27.231.
The only challenge on subject matter jurisdiction grounds that Douglas argues on
appeal is to the order of protection entered on January 15. RCW 26.27.231(2) provides
that a court’s temporary emergency jurisdiction continues, and its child custody
determinations remain in effect “[i]f there is no previous child custody determination that
is entitled to be enforced under this chapter and a child custody proceeding has not been
commenced in a court of a state having jurisdiction.”
At the time of the January 15 hearing, Douglas had asserted by an affidavit filed
below that he had filed a dissolution action in Florida “relating to . . . a custodial
determination of the [parties’] children.” CP at 27-28. But he had not yet served process
on Stacy and did not provide the Benton County court with pleadings in the Florida
action or with Florida law from which the court could determine the scope or status of
whatever child custody issues he had raised in the Florida court. As Stacy points out, no
order was entered in the Florida proceeding until April 7, 2016. She argues that it is
unreasonable to suggest that the Benton County court was powerless to act based on a
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proceeding alleged to be pending in Florida but poorly documented for the Washington
court, in which nothing happened until four months after Stacy sought protection.
The paucity of information about the Florida proceeding makes this case a poor
vehicle for construing when a Washington court may reasonably exercise temporary
emergency jurisdiction on the basis that a child custody proceeding “has not been
commenced in a court of a state having jurisdiction” within the meaning of RCW
26.27.231(2).
Douglas also assigns error to the court’s orders on the basis that it lacked personal
jurisdiction over him, arguing that the facts that Stacy had access to the
“thecliffordhouse” account and opened an e-mail he claims he sent to himself do not
establish that he directed a communication to her in the state of Washington. Conflicting
inferences can be drawn from the form and substance of the December 7 message. In
response to the panel’s observations at oral argument that the message can be construed
as a communication directed at Stacy, Douglas pointed out, correctly, that the trial court
made only the ultimate finding that it had personal jurisdiction, without entering any
findings on the material disputed facts. The trial judge who entered the order of
protection has since retired.
Whether electronic mail addressed to a communal account constitutes a
“communication” to a person who opens the mail will be a largely fact-dependent issue
under RCW 26.50.240(2). Since we lack any findings on the material disputed issues, we
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would be engaged in a wholly advisory exercise if we were to address what facts might
matter.
These are the only two issues presented by the appeal that we might consider
retaining and deciding as matters of substantial and continuing public interest, were we
presented with a more complete record.
Finally, Douglas contended at oral argument that we should accept review because
the existence of the order of protection is damaging to him professionally. In a few
situations, Washington courts have recognized that a trial court decision that would
otherwise be moot is nonetheless reviewable if a party remains subject to collateral
consequences. Examples are involuntary commitment proceedings, see, e.g., Born v.
Thompson, 154 Wash. 2d 749, 762-64, 117 P.3d 1098 (2005); findings of child abuse, see In
re Dependency of H.S., 188 Wash. App. 654, 662, 356 P.3d 202 (2015); where one’s
medical license “hangs in the balance,” see State v. Bowen, 51 Wash. App. 42, 45, 751 P.2d
1226 (1988); and criminal convictions, see State v. Turner, 98 Wash. 2d 731, 733, 658 P.2d
658 (1983) (citing Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3, 98 S. Ct. 330, 54 L.
Ed. 2d 331 (1977) and Sibron v. New York, 392 U.S. 40, 53-54, 88 S. Ct. 1889, 20 L. Ed.
2d 917 (1968)).
In all such cases, the party seeking relief identified an actual risk of tangible,
material consequences. Douglas has not.
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Clifford v. Clifford
We dismiss the action as moot. We deny both parties' requests for an award of
attorney fees.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
2)~w~,'J=·
Siddoway, J.
WE CONCUR:
Pennell, J.
10