On Thursday, November 12, 2009, the Nevada Supreme Court gave its ruling in an international family law matter, commonly known as Ogawa v. Ogawa. This case involved three distinct issues effecting a child custody dispute and division of community property in a divorce action. Under the facts of this case, a now-Nevada resident was divorcing her spouse, who had returned to Japan with their three Japanese-born children.
The first issue was whether the Court had home-state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), when the Nevada resident filing for child custody didn’t file her divorce complaint until 8 months after the children left the State of Nevada. The parents had originally moved back and forth from Japan to Nevada with the children. The mother became a lawful permanent resident of Nevada and put the children in school. The children later returned to Japan for a temporary 3 month vacation with their father. When they were not returned, the mother filed for divorce and immediate return of the children.
The Supreme Court found that the court properly found jurisdiction to make custody decisions because Nevada was the children’s “home state” under the UCCJEA, as the expected 3-month temporary absence did not interrupt the six-month pre-complaint residency requirement necessary to establish home state jurisdiction. When the 3-month period was excluded, the action was timely filed under the UCCJEA and the Nevada district court had home-state jurisdiction.
The second issue was whether the district court found that Nevada was the children’s state of “habitual residence” and properly ordered the children be returned to Nevada. The Supreme Court ruled that the district court was correct to the extent that it was authorized to do so under the UCCJEA, even though the district court order was unenforceable under the international Hague Convention (adopted in the U.S. as the International Child Abduction Remedies Act) because Japan has not signed the Hague Convention. While the Supreme Court found that the Hague Convention does not apply here, the parties remained free to pursue other remedies and the court’s order was correct.
Finally, the Nevada Supreme Court found that the district court had improperly entered the divorce decree by default (awarding the mother all of the community property, spousal and child support, and attorneys fees and costs), because the father had filed an answer to the divorce complaint with a counter-complaint for divorce, and he appeared in court through counsel. Therefore, the district court erred in entering a default judgment without considering the merits of the case.
This case was heard and decided by the entire panel of the Nevada Supreme Court.
Steven R. Bartell, Esq.
