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IN THE COURT OF APPEALS OF IOWA No. 0-689 / 10-0352 Filed November 24, 2010

PETER STAUFFER, Petitioner-Appellee, vs. BRITTNEY TEMPERLE, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Paul L. Macek, Judge.

Brittney Temperle appeals the denial of her motion to dismiss Peter Stauffers application for modification. REVERSED.

Gregory A. Johnston, Muscatine, for appellant. Robert DeKock of DeKock Law Office, P.C., Muscatine, for appellee.

Heard by Mansfield, P.J., and Danilson and Tabor, JJ.

2 DANILSON, J. Brittney Temperle appeals the denial of her motion to dismiss Peter Stauffers application for modification. This appeal requires us to determine if either a temporary order, which is later dismissed, or a temporary order, which is now moot, constitute an initial custody determination upon which continuing and exclusive jurisdiction may derive under Iowa Code section 598B.202 (2009). Because the childs home state was Texas, and we conclude that neither temporary order can be characterized as an initial child-custody determination under these circumstances, the district court lacked jurisdiction to consider Stauffers application for modification. We reverse. I. Background Facts and Proceedings. Brittney Temperle (formerly Brittney Belknap) and Peter Stauffer have a son, J.S., born in May 2005. Temperle and Stauffer were never married.

Paternity was established upon a State-initiated paternity and support action. Stauffer pays $295 per month in child support. Stauffer filed a petition (DRCV016519) for custody and visitation in February 2006 when both he and Temperle resided in Iowa. In March 2006, an order was filed approving the parties agreement concerning temporary matters. The order awarded temporary joint legal custody with temporary primary physical care to Temperle. About seven months later on October 31, 2006, an order was filed indicating the case had been settled following an August 3 settlement conference. However, because a decree had not been entered, the order

provided that the action would be dismissed on November 28 "unless an order to the contrary is entered prior to that time." The case was dismissed on

3 November 28, 2006, without a permanent custody and visitation order or decree being filed. The same parties initiated a new action on June 24, 2008, by the filing of a consent order (DRCV018322). The only subject of the consent order was

summer visitation in 2008. The consent order stated J.S. "currently resides with his mother, Brittney Temperle"; "Brittneys husband is in the military and is currently stationed in Killeen, Texas"; and "[t]he parties desire [J.S.] spend one month with his father." The court ordered one month of summer visitation and required Stauffer to return J.S. to the childs grandparents residence in Muscatine on or before July 26, 2008. On November 5, 2009, Stauffer filed an "Application for Modification" in the consent order case (DRCV018322), asserting Stauffer resided in Muscatine, Iowa, and was unaware of the dismissal of his custody case; the parties had "continued to honor" the temporary custody and visitation order of March 2006; "near Easter of 2008" Temperle moved to Texas; the June 2008 "consent order does not deal with the issue of custody nor does it deal with the issue of visitation"; and "the forgoing constitutes a substantial change in circumstances meriting a modification" of the consent order. Stauffer requested that he be

granted joint legal custody and asked the court to determine physical care. Temperle challenged the district courts jurisdiction, contending Iowa was not J.S.s home state. On December 23, 2009, a hearing was held at which Temperle testified she moved to Texas with J.S. in February 2008, she was married in March 2008,

4 and she and her husband have lived in Texas since 2008.1 Temperles husband is in the military and was then stationed in Texas, but was to report to a new assignment in Louisiana in March 2010. She also testified she flew to Iowa on October 28, 2009, and was visiting her parents until after New Years. The district court ruled there had been "at least two initial custody determinations" concerning J.S.: (1) the March 2006 temporary custody and visitation order filed in the dismissed action for custody and visitation (DRCV016519), when Iowa was the childs home state and (2) the June 2008 consent order (DRCV18322), which provided that the child "resides with his mother." The district court observed that the childs home state in June 2008 continued to be Iowa as the child had not yet lived in Texas for six months at that time. "Therefore, Iowa has exclusive, continuing jurisdiction." The court found no basis existed in Iowa Code section 598B.2022 to interrupt Iowas continuing jurisdiction. The district court also rejected Temperles inconvenient forum claim.

J.S. resides with Temperle, her husband, and a four-month-old child they have together. Temperle also has an older daughter who resides in Muscatine, Iowa, with Temperles mother. 2 Section 598B.202 provides: 1. Except as otherwise provided in section 598B.204 [temporary emergency jurisdiction], a court of this state which has made a childcustody determination consistent with section 598B.201 [initial childcustody jurisdiction] or 598B.203 [jurisdiction to modify] has exclusive, continuing jurisdiction over the determination until any of the following occurs: a. A court of this state determines that the child does not have, the child and one parent do not have, or the child and a person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the childs care, protection, training, and personal relationships. b. A court of this state or a court of another state determines that the child, the childs parents, and any person acting as a parent do not presently reside in this state.

1

5 The court stated: In making this decision, the court relied primarily on its analysis that either the temporary visitation order entered in cause number DRCV016519 or the consent order entered in this case were initial determinations such as to provide the court with exclusive, continuing jurisdiction. Temperle appeals, arguing: (1) a support order is not an initial

determination of child custody and does not confer jurisdiction on Iowa courts to adjudicate custody and visitation rights; (2) the case in which a temporary custody and visitation order was filed was dismissed and is a legal nullity; and (3) in any event, Iowa is an inconvenient forum. II. Scope and Standard of Review. The primary question on appeal is one of jurisdiction, but the underlying action involves child custody and, consequently, equitable principles apply and our review is de novo. In re Marriage of Cervetti, 497 N.W.2d 897, 899 (Iowa 1993). In dealing with chapter 598Bthe Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)--"[t]he fundamental question of which state is best suited to resolve custody quickly, permanently, and on the merits, is decided by us anew." Id. The question whether a court has subject matter jurisdiction may be raised at any time and is not waived even by consent. In re Jorgensen, 627 N.W.2d 550, 554 (Iowa 2001).

2. A court of this state which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 598B.201.

6 III. Has There Been an Initial Child-Custody Determination? The district court based its conclusion of exclusive, continuing jurisdiction upon a finding that there has been "at least two initial custody determinations." In reaching its conclusion, the district court recognized that the necessary predicate to jurisdiction is a finding that a court of Iowa "has made a child -custody determination." Iowa Code

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