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Herrera v. Villaneda

Court of Appeals of Washington, Division 3

May 3, 2018

SERGIO E. HERRERA, Appellant,
v.
SANDRA VILLANEDA, Respondent.

          Siddoway, J.

         Finding that Benton County was an inconvenient forum for a parenting dispute involving one of Sergio Herrera's and Sandra Villaneda's children, the superior court declined to exercise jurisdiction despite Washington's exclusive, continuing jurisdiction over the child under the WUCCJEA.[1] Sergio Herrera appealed, unsuccessfully moving this court to stay the superior court's order. Without the stay, proceedings to determine a parenting plan for the child proceeded in an Oregon court and were resolved.

         Under RCW 26.27.521, we accord full faith and credit to an order issued by another state consistent with chapter 26.27 RCW. In cases like this, the decision on a motion to stay is often critical, since resolution elsewhere of the child custody dispute will render the merits of the declination decision moot. This is the intended result under the UCCJEA, [2] which never denies a parent a forum but strives to avoid protracted jurisdictional disputes and relitigation. Mr. Herrera's remedy, if dissatisfied with the Oregon court's orders, is to appeal them in Oregon. We affirm.

         FACTS AND PROCEDURAL BACKGROUND

         Sergio Herrera and Sandra Villaneda have two children together. Their older child, a son, was born in May 2006. The parties were not married at the time of the birth, and within a matter of months the State filed an action in Benton County to establish paternity. The judgment and order determining parentage in that action was entered in March 2007 and established that Washington was the "home state" for the boy under chapter 26.26 RCW, that Mr. Herrera was his biological father, and that Ms. Villaneda would have primary residential custody.

          The parties married in 2011, while both still resided in Washington. In 2013, Ms. Villaneda and the parties' then 7-year-old son moved to Hillsboro, Oregon, with Mr. Herrera's permission, expecting Mr. Herrera to follow. Mr. Herrera changed his mind and stayed in Washington, but Ms. Villaneda and the son continued to reside in Oregon.

         The parties' second child, a daughter, was born in April 2014. Although a resident of Oregon at the time, Ms. Villaneda returned to Kennewick for her daughter's birth. After the birth, the daughter lived continuously with her mother in Oregon.

         In December 2014, Ms. Villaneda filed for legal separation from Mr. Herrera in Oregon. She asked the Oregon court to enter child custody orders addressing both children. Mr. Herrera was served with pleadings in the Oregon action in early January 2015.

         In addition to responding to the Oregon proceeding in February 2015, Mr. Herrera commenced his own action in Benton County a month later, petitioning for entry of a residential schedule/parenting plan for his son. He relied for the Washington court's exclusive, continuing jurisdiction on the earlier-entered judgment and order. Mr. Herrera did not seek a residential schedule/parenting plan for Ms. Villaneda's then 11-month-old daughter in the Benton County action. He questioned at the time whether he was her father and filed a contemporaneous Benton County action to de-establish parentage. That action was soon dismissed on the basis that Washington had no jurisdiction over Ms. Villaneda's daughter. Custody of the daughter was addressed by the Oregon court, which determined that Oregon was her home state and had exclusive, continuing jurisdiction over her custody.

         Ms. Villaneda moved the Benton County court to dismiss Mr. Herrera's petition on the basis that Benton County was an inconvenient forum. In a June 2015 order, Commissioner Joseph Scheider denied her motion as improper procedure, pointing out that Washington had exclusive, continuing jurisdiction over the boy that it had not declined to exercise. The superior court denied Ms. Villaneda's motion to revise the court commissioner's decision.

         Ms. Villaneda then pursued proper procedure, moving the court to decline to exercise its jurisdiction because of the inconvenience of the forum. As one basis for the motion, she pointed out that before Mr. Herrera filed his petition she had asked the Oregon court to make parenting provisions that would apply to both children. In a responsive declaration, Mr. Herrera argued that the court should not base its decision on the fact that the Oregon court had jurisdiction over visitation with Ms. Villaneda's daughter, since she "may or may not be my daughter. She was conceived after our separation, when Sandra was seeing other men." Clerk's Papers (CP) at 257. He stated that DNA[3] testing was in process to determine the girl's parentage.

          The motion to decline jurisdiction was argued in August, and in an oral decision delivered on August 13, 2015, Commissioner Schneider explained why eight statutory factors did or did not weigh in favor of declining jurisdiction of parenting issues involving the parties' son. Addressing Ms. Villaneda's argument that having different courts establish parenting provisions for the two siblings presented inconvenience, the commissioner stated:

There's been no establishment of paternity . . . if the father is determined not to be the father of the youngest child then that becomes a moot issue okay. So we don't have to try to have ...

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