IN THE FOURTH DISTRICT COURT - PROVO UTAH COUNTY, STATE OF UTAH
_________________________________________________________ KAILIN WANG, : :CASE NO. 194400718 PETITIONER, : vs. : : CHRISTOFFER STANFORD THYGESEN. : :
RESPONDENT. : With Keyword Index _________________________________________________________
MOTION TO DISMISS JUNE 3, 2019
BEFORE
COMMISSIONER THOMAS PATTON
_________________________________________________________
_________________________________________________________
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APPEARANCES
For the Petitioner: STEVE S. CHRISTENSEN Attorney at Law
For the Respondent: BEAU J. OLSEN Attorney at Law I N D E X PAGE Argument by Mr. Olsen 4, 17 Argument by Mr. Christensen 10 Court's Ruling 17
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UTAH COUNTY, PROVO, UTAH; JUNE 3, 2019 COMMISSIONER THOMAS PATTON
(Transcriber’s note: Identification of speakers may not be accurate with the audio recordings.)
PROCEEDINGS
THE COURT: Mr. Christensen, I know you’ve been in the courtroom since the last hearing.
MR. CHRISTENSEN: Yes.
THE COURT: Observed and heard what’s going on? MR. CHRISTENSEN: I have.
THE COURT: Mr. Olsen, it’s your client’s motion to dismiss. You were at the last hearing. I’m telling you at best, if you prevail today, which I’m not saying you will because I haven’t heard from you Mr.
Christensen, you’re the one I haven’t heard from on anything. So I want to be sure and give you an
opportunity to be heard. But Mr. Olsen, I’m telling you at best, you’re going to get a stay. Just in other
words, you’re going to get the similar ruling just like I did in the last one, but I’m not saying that’s what I’m going to do because I haven’t heard from Mr. Christensen.
MR. CHRISTENSEN: Thank you.
THE COURT: But so you know Mr. Christensen, you’re not really defending against a dismissal at this point, you’re defending against a stay. Okay? And -- if
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it makes a difference to you, maybe it doesn’t. I don't know.
MR. CHRISTENSEN: It does.
THE COURT: Mr. Olsen, go ahead.
MR. OLSEN: Your Honor, I’ll be brief. And I understand what the Court has just said to me in terms of the best I’m going to get today is a stay. I understand that. If I can make Your Honor, just one argument as it relates to venue and I think my other arguments that I’ve made in the prior hearing are similar to those arguments prior -- previously made.
But Your Honor, I do think that the venue
statute as it relates specifically to the Utah Parentage Act is relevant to our proceedings here today and here’s why. Under the venue statute, under 78B-15-605 it
specifically states that when a party files a petition for parentage, in order for venue to be appropriate, the child has to be residing in the county or the respondent has to be residing in the county. And as I mentioned previously, my client left with the child on March 12th of 2019. Ms. Wang filed her petition with the assistance of counsel on March 15th of 2019. So at the time she filed her petition for paternity under the Parentage Act, neither my client nor the child were residing in Utah County.
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We believe, Your Honor, that that statute, that venue is not proper in Utah County or the state of Utah.
THE COURT: Give me the citation to the statute. MR. OLSEN: 78B-15-605.
THE COURT: 78B15 -MR. OLSEN: 605.
THE COURT: How do I reconcile that against the Uniform Child Custody Jurisdiction and Enforcement Act in the event that if -- and again, because I don’t know what California is going to do. But let’s assume California said we never had jurisdiction, Utah is really the home state for this child and therefore, being the home state, that’s where custody and visitation should be
adjudicated.
And it appears, okay, that parenting, who the parents are has already been decided by another court in California. Some court somewhere in California to issue a child support order, had to conclude he’s dad, she’s mom.
MR. OLSEN: Correct.
THE COURT: So there is a decision, there is a call saying he’s dad, she’s mom, okay? So you’re
relying on the adjudication of parentage and I’m thinking in terms of Uniform Child Custody Jurisdiction and
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the code. Do you want to -- I’m giving you an
opportunity to reconcile all that together because I think there is an order of parentage already created. I think you cited it, you stood up and said, hey, there is an order.
MR. OLSEN: There is, correct, Your Honor. Your Honor, how we would address that is number one, we don’t think that Utah is the home state of the child. I’m not sure if that answers your question.
THE COURT: But that’s what the California court's going to determine.
MR. OLSEN: Correct, and I understand that, Your Honor. But I think based upon the statutes, based upon what we have under this 78B-15-605, simply tells the Utah court that they don’t have jurisdictional or venue based simply upon that statute. And that may be a conversation between Judge Low and Judge Darwin. But I think for
today’s purposes and what Judge Low may have to carry to Judge Darwin, is simply that, that the proper filing
--THE COURT: You told me parentage has been established.
MR. OLSEN: We have, Your Honor.
THE COURT: If parentage has been established, this whole parentage statute becomes irrelevant. Now we’re strictly in the UCCJEA and the (inaudible) statute,
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because parentage it was already decided in a California court. I mean, maybe you would disagree with that, Mr. Christensen, but my understanding is parentage has been established.
MR. CHRISTENSEN: We’d agree.
THE COURT: So, no one in any pleading I can find is disputing that he’s not dad.
MR. OLSEN: Correct.
THE COURT: Or that she’s not mom. And if he’s not dad then how does he have an order out of California giving him custody if he’s not the father, or an order out of Utah giving him custody if he’s not the father. In fact, why does he have the child at all if he’s not the father and both parties don’t acknowledge he’s the father? And there’s an order somewhere saying he’s the father.
MR. OLSEN: And I agree, Your Honor.
THE COURT: So, I don’t think the Parentage Act applies, counsel. I think we’re to UCCJEA.
MR. OLSEN: Okay. So -- as well with the child support, right. And we agree with that. But, Your Honor, just because paternity has been established, we don’t think it pulls it completely out of the 78B-15-605 statute. We still have everything else that goes along with that. We understand paternity may have been
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established already, but the parentage action also is going to include child support is going to include parent time, it’s going to include everything else that we
typically include in our parentage actions. So we do still believe that 78B-15-605 would still be applicable.
And I’m happy to address, Your Honor, the home state argument if you’d like me to.
THE COURT: Move on.
MR. OLSEN: Your Honor, I think besides those two, we’ve talked about inconvenient form, we’ve talked about bad acts of the petitioner and the reason why it shouldn’t be here as well.
THE COURT: I’m not deciding good parent/bad parent and then somehow going to base my decision over jurisdiction on good parent/bad parent.
MR. OLSEN: And I understand that.
THE COURT: There’s not -- I can’t find anywhere, any place in any code section that says I’m supposed to decide good parent/bad parent and then base jurisdiction on that.
MR. OLSEN: And I was referring to more, Your Honor, that her conduct would be grounds for you to rule as well that California would be more appropriate based upon her filing in New York, not giving this Court notice of that. Even this action, Your Honor, under Rule 100,
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and you addressed this at the protective order hearing, she failed to inform the Court of all of the other
actions that had been pending both in New York and in California and she does the exact same thing here in this case. And in addition to that, my client has got sole legal, sole physical custody. On April 25th after
receiving sole legal and physical custody, mom decided to go and change the birth certificate. Now, the birth
certificate has been changed, the name and it also changes a bunch of other things on there that says the changes at on April 25th.
So we do believe that the Court can also consider the improper conduct of mom as it relates to determining where jurisdiction should be. So, that’s what I meant when I said bad or good acts of either parent, specific to the statute and it’s under
78B-13-208, that's specific reference to conduct of a party in an attempt to obtain jurisdiction in a certain place. And we believe that she has performed certain improper conduct to try to get jurisdiction here in Utah.
THE COURT: Thank you.
MR. OLSEN: Any other questions for me, Your Honor?
THE COURT: No.
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THE COURT: Mr. Christensen, you will not need to address improper conduct.
MR. CHRISTENSEN: Okay. Your Honor, I want to start by disagreeing with the Court.
THE COURT: That’s okay.
MR. CHRISTENSEN: And the reason is that Utah has decided a case, Majeures vs. Majeures, that calls into question some of the comments the Court has made today. And in that case there was -- this is a 2008 case -- in that case a very similar fact pattern in terms of the type of jurisdiction question that is before the Court. In that case the child was born in Utah, here for six weeks and then taken to Kansas. And in a similar
fashion, the Kansas court made a -- had a first filing and made a first determination of custody.
The Utah court said well, they’ve started, they’ve made a determination, we will essentially wait and see what they do. And so that’s what Utah did. In fact Utah said, what -- we are left with few choices when posed the question, shouldn’t Utah have jurisdiction. And so Kansas went on, they exercised jurisdiction, it went up on appeal and the appellate court said, Utah must make the decision of whether another state’s court has jurisdiction.
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have jurisdiction, substantially in the conformity with the UCCJEA on similar facts to this case. The reason Kansas didn’t have jurisdiction are the same reasons why California should not have jurisdiction in this case. And we’re asking Your Honor to make that decision, not only that Utah is the home state, but as the Court of Appeals has assigned this court, the responsibility to determine that California did not have jurisdiction. When it exercised jurisdiction in this case, this Court said if in the Kansas situation, it should not have.
The reason is that the UCCJEA is very specific in terms of how home state and jurisdiction, original
jurisdiction are created. It is where the child is born, and where the child has lived with a parent. My proffer to this Court is, I believe documents have been submitted to support this, the child was born in Orem, Utah about November 26th, 2018. The child continued to live in Utah from that date until January 31st, 2019 when the child was taken down for a paternity test in Los Angeles on a
temporary leave and returned to Utah, to Orem, Utah on the 1st of February 2019. Gone less than 48 hours.
As the Court has referenced, that paternity test became an order, paternity was established. Mr. Thygesen was verified to be the father. The child continued to live in Utah until the Court awarded custody to Mr.
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Thygesen and he left on March 12th. His petition in California was filed in the middle of February. At that time the child had only been in California on that short visit of less than 48 hours.
Ms. Wang has lived in Utah since October 2017, continuously with intermittent trips including two dates with Mr. Thygesen that resulted in the pregnancy and the birth of the child in this action. She was not present in the state of Utah on March 7th because she was in New York on job interviews, but she resided and lived in Utah continuously with those short interruptions.
THE COURT: When was the hearing in front of Judge Smith, the actual hearing in front of the juvenile court judge?
MR. CHRISTENSEN: I’m not quite sure, but there are two dates floated around. One is March 12th and one is March 18th. Mr. Thygesen said he had authority to leave and he took the child and left on March 12th which makes me think that it may have been on March 12th. But I don’t know for sure. I thought I saw in the juvenile court record that the hearing was actually -- and maybe it was just that it was signed on March 18th but it seems like it’s one of those two dates.
THE COURT: But what is not in question, Mr. Christensen, is that whenever Judge Smith, a sitting
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juvenile court judge, higher legal authority than me, gave dad custody. At that moment, according to Utah, dad was the custodial parent pursuant to an order from a
sitting juvenile court judge.
MR. CHRISTENSEN: I disagree.
THE COURT: Okay. Well, that’s why I’m giving you an opportunity. That’s why I wanted to hear from you Mr. Christensen, that’s why you didn’t just stand up and say oh, I’m just going to do what I did last time.
MR. CHRISTENSEN: Yes. Thank you. I understand he’s a judge. I understand that he entered an order, but essentially the order that he entered was based on two things. Number one, he found harm because of this post that’s been referenced to which he assumed without expert testimony, without a legitimate foundation, to be the work of my client. And second, he assumed that
California had jurisdiction to enter the order it had already entered. And if I were in front of Judge Smith, I would make this same argument that he was incorrect, just like the court that said we have few options in the case of Majeures vs. Majeures, he was incorrect.
THE COURT: Has Judge Smith’s decision from March 12th or March 18th or whenever he had that hearing, has that been appealed?
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THE COURT: Anything else pending in front of Judge Smith?
MR. CHRISTENSEN: It is not pending. Essentially he declined to exercise jurisdiction and he closed the case. I don’t believe he went through a UCCJEA analysis. I don’t believe
--THE COURT: But that would be an appeal to his decision. You can’t appeal his decision to a lower court. I’m a lower court.
MR. CHRISTENSEN: Well, I would argue you are the original court because he was not -- his question is
different than the question that you are being asked to decide. His question is whether there is a child in the state of Utah who is subject to harm or abuse and he decided that that child was subject to harm.
THE COURT: He clearly was exercising emergency jurisdiction at a minimum.
MR. CHRISTENSEN: He was. At least it walks and talks like emergency jurisdiction. But he was not making a decision under the UCCJEA as to whether the California decision was proper or improper and he was not deciding whether Utah was the home state. If he was exercising emergency jurisdiction, then that issue is out there. But that issue does not, as Your Honor would say, wag the dog. The dog is here in this court, this is the time for
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the Court to decide and it is a decision anticipated by Judge Low because in the transcript between Judge Low and Judge Darwin, Judge Low indicates that Utah had not yet had an opportunity to determine whether Utah has
jurisdiction. And that was going to happen today essentially, it was two weeks ago, but today.
So Judge Low is anticipating, but before the two judges have a conference that Your Honor is going to make a decision on the pivotal question which is jurisdiction and I don’t believe that this Court can evade that
responsibility. It is a Utah jurisdiction question. Utah is the place where the child was born, Utah is the place where the child left and the reason the child left was because of the improper exercise of jurisdiction by California.
And I don’t believe California has foreclosed the oppor -- or foreclosed the possibility that it exercised jurisdiction improperly.
THE COURT: I agree with you there. They seem to have set a hearing June 25th to take another look at their jurisdiction, did we exercise it improperly? I think Judge Graham is trying to give your client or anyone else an opportunity to show up and present evidence as to
whether or not they exercised their jurisdiction improperly.
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MR. CHRISTENSEN: And I don’t know. I mean, I don’t know what California did or what they’re thinking but I’m just -- all I’m saying is I’ve seen a transcript and it seems that the judge has left open this question for further discussion between them after the
jurisdiction question has been decided in both places. Now, California has purported to exercise
jurisdiction. They have issued an order and that order has assigned custody to the father on a temporary basis. But I don’t think that order is based on the factors of the UCCJEA. The decision I’ve seen from the California court did not acknowledge that the child was born in
Utah, it did not acknowledge that the child lived in Utah for 107 or so days. It did not acknowledge that Ms. Wang lived in Utah with the child. And so unless the Court analyzes the jurisdiction question under the UCCJEA, I don’t think we can rely upon what California has done. And just because they did it first, or just because they had the first filing, there’s nothing in the UCCJEA that says the first to file or the first to decide has some kind of precedence over the other state. It has a very clear outline of how jurisdiction is to be decided.
So we ask the Court to make a determination under UCCJEA which is Utah 78B-13-102 for home state and 201 for initial child custody jurisdiction.
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THE COURT: Thank you.
MR. CHRISTENSEN: And also, ask the Court to determine whether California had jurisdiction when the commencement of the proceeding.
THE COURT: Thank you.
MR. OLSEN: Your Honor, just in response and if I understand counsel correctly, I think what he’s asking this Court to do is to say first, that Judge Smith got it wrong, you know, there’s been no appeal filed. And he’s also telling you to tell Judge Darwin that he got it wrong, even though that case is still pending. And the grounds for that is based upon his allegation that Utah is the home state of the child.
THE COURT: Thank you, have a seat. MR. OLSEN: Thank you, Your Honor.
THE COURT: I have a purported transcript from a phone conference between Judge Darwin and Judge Low. Now then, what Judge Darwin stated, and I’m on page 2, last full paragraph, “On March 6th, 2019 at a hearing the Court issued, this Court issued custody and visitation orders after determining based on the evidence that had
presented at that point, that this, that California was the child’s home state.”.
I have a statement by Judge Darwin stating, I have taken evidence and I have found that California was
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the child’s home state. “At the time, we were in
possession of a birth certificate listing the mother’s residence as Los Angeles, and we had a Los Angeles,
California paternity action, paternity action and request for support that also indicated that the mom was living in Los Angeles and the child was younger than six months old. So I made the home state determination at that time.”
I cannot conclude based on evidence that was not submitted to Judge Darwin at the March 6th, 2019 hearing that he got it wrong, because I would have to conclude based on the only evidence I have, is that on March 6th, 2019 Judge Darwin based on the evidence he had, made the right call. I cannot conclude he got it wrong.
Now, Judge Darwin later on does indicate that they’re going to have another hearing. They’re going to take another look at this. That’s the hearing that’s set for June 25th I believe in California. And in fact, Judge Darwin may conclude, well, now that I’ve received
additional evidence, additional affidavits, additional information that I did not have available to me on March 6th, that I was wrong about making a home state call. But what I don’t get to do is to second guess him. I don’t get to sit here and say, well, I’ve received evidence he didn’t receive, and therefore based on the evidence I
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didn’t receive, I’m going to make a different call. That’s the state, that was the date, that was the time. Now Judge Darwin has set another date, another time and said, come here, bring your evidence.
I don’t find judges or commissioners in Utah are smarter than judges or commissioners in California. I think the arguments that are being made here can just as easily be made in California. The problem that people are going to run into in California, are going to be similar issues to what we have here which is credibility issues. Why are pleadings being filed in California under penalty of perjury, declaring a statement to be true, and then later on a declaration is being made under penalty of perjury, saying nope, that wasn’t true. You know that last thing I told you, that wasn’t true. Now, I’m finally telling you the truth, Your Honor. I have no idea. But I know Judge Darwin made a decision based on the best evidence he had and is exercising jurisdiction pursuant to the UCCJEA made on his finding of home state, period.
Now then, Judge Low having had a conversation with Judge Darwin, recognized California’s jurisdiction and indicated we’re going to recognize your jurisdiction, we can have a hearing here and additional information be presented, which has all been presented by affidavit,
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okay? All of that is available to Judge Low, and then the two judges have scheduled another phone conference for July. And Judge Low would be in a position to say, well, let me tell you what all the affidavits say here. Judge Darwin, I’ve got this and I’ve got this and I’ve got this. But everything, when I read the transcript is California has taken jurisdiction, they believe they’re the home state, they’re acting as the home state and now what people want to do is file affidavits here that
contradict evidence that they’ve got in California. And somehow I’m supposed to conclude that the California evidence is wrong. I’m not going to do that. I’m just not going to do it. If people are filing different statements in California and their statements are
inconsistent in California, they need to explain that to a California judge, not to me.
So I am staying these proceedings until Judge Darwin can make a decision and have a conversation with Judge Low. Thank you.
MR. CHRISTENSEN: Your Honor, can I ask two questions?
THE COURT: It won’t change a thing and no, I’m not going to change my ruling.
MR. CHRISTENSEN: Can I still? Can I still ask two questions?
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THE COURT: You can make a record of anything you want to make a record of but no, I’m not going to
supplement my decision.
MR. CHRISTENSEN: Well, you made a comment of Judge Low will say I have these affidavits here. I’m just wondering how the Court expects that to happen? Is the Court anticipating
--THE COURT: They have scheduled a phone conference counsel.
MR. CHRISTENSEN: Okay.
THE COURT: Good luck to the parties. (Whereupon the matter was concluded.)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 22 23 24 25 STATE OF UTAH )
COUNTY OF SALT LAKE )
I, Linda J. Smurthwaite, Certified Shorthand Reporter, Registered Professional Reporter, and notary public within and for the county of Salt Lake, State of Utah do hereby certify:
That the foregoing proceedings were taken by me from an electronic recording at the time and place set forth herein, and was taken down by me in shorthand and thereafter transcribed into typewriting under my
direction and supervision.
That the foregoing pages contain a true and correct transcription of my said shorthand notes so taken.
In Witness Whereof, I have subscribed my name this 6th day of June, 2019.
LINDA J. SMURTHWAITE
