Alley v. Parker
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:1998 ME 33
Docket:Wal-97-457
Argued:	January 5, 1998
Decided:February 13, 1998


Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and
SAUFLEY, JJ.

KIRSTIE ALLEY

v.

RICHARD STEVENSON PARKER

WATHEN, C.J.

	[¶1] Plaintiff Kirstie Alley appeals from a judgment of the Superior
Court (Waldo County, Calkins, J.) granting defendant Richard Parker's
motion to dismiss her complaint for divorce on the basis of forum non
conveniens.  Plaintiff contends that the court erred in concluding that
California was an alternative forum for child custody matters and, in any
event, erred in dismissing the entire action.  Finding no abuse of discretion,
we affirm the judgment.
	[¶2] The relevant facts may be summarized as follows: Alley and
Parker, both actors, were married in 1983.  Much of their professional life is
based in California, but they have traveled extensively and currently own
property in Maine, Kansas, and Oregon.  They purchased property in Maine
in 1991 and, claiming Maine as their residence, they adopted their children
in Maine in 1992 and 1994.{1} Both Alley and Parker registered to vote,
acquired a driver's license, registered cars and boats, and filed resident
income tax returns in Maine.  At the same time, however, they filed part-
time resident tax returns in California.  Their personal service corporations
are located in California, as are their agents, business attorneys, publicists,
stockbrokers, and most major bank accounts.
	[¶3] Alley and Parker separated in 1996, and Alley filed a complaint
for divorce in Maine on March 26, 1997.  The next day, Parker filed a
complaint for divorce in California.  Judges from both states conferred by
telephone and, at least for purposes of the temporary custody of the
children, California assumed jurisdiction.  Subsequently, the California court
denied Alley's motion to dismiss the California action.  Parker moved to
dismiss the action in Maine for lack of subject matter jurisdiction, or
alternatively on the basis of forum non conveniens.  The Superior Court
declined to dismiss on jurisdictional grounds, ruling that: (1) Maine has
subject matter jurisdiction because Alley was a resident for at least six
months prior to filing a divorce action; and (2) although California is the
"home state" of the children, Maine also has jurisdiction for purposes of
custody because of a "significant connection." Having found that jurisdiction
existed in both Maine and California, the court dismissed the action on the
basis that Maine is an inconvenient forum.  
	[¶4] Initially, Alley argues that the court's choice of California as the
appropriate forum is tainted by an error in its analysis of California's
jurisdiction to determine the custody of the children.  Specifically, Alley
does not agree that California is the children's "home state." Jurisdiction of
interstate child custody matters is controlled by Maine's Uniform Child
Custody Jurisdiction Act (UCCJA){2} and the Federal Parental Kidnapping
Prevention Act (PKPA).{3}  Both acts seek to prevent conflict between courts
of different states by favoring the "home state" as the most appropriate
forum for custody determination.  19-A M.R.S.A. § 1704(1)(A) (Supp. 1997);
28 U.S.C.A. § 1738A(c)(2)(A) (1994).  The "home state" is defined as the
state in which the child lived with at least one parent for the six consecutive
months immediately preceding the filing of the complaint for divorce.  19-A
M.R.S.A. § 1703(5) (Supp. 1997); 28 U.S.C.A. § 1738A(b)(4) (1994).  Both
statutes focus on physical presence rather than legal residence.  Temporary
absences are explicitly counted as part of the six-month period under the
UCCJA, 19-A M.R.S.A. § 1703(5), but are not defined.  The PKPA is a silent
regarding treatment of such temporary absences.  See 28 U.S.C.A. §
1738(b)(4).  We conclude that the concept of temporary absences is
inherent in the PKPA's definition of home state and, under either act, must
be decided on the facts of each case.
	[¶5] The trial court found that during the six-month period
immediately preceding the filing of the complaint, the children were
physically located in California for twenty-one weeks and in New York,
Toronto, and Florida for the remaining five weeks.  The absences from
California were either for business or vacation, and were of short duration. 
The court found that the absences were obviously temporary visits to those
locations and concluded that California was the "home state" because the
children had lived there with a parent for the immediately preceding six
months.  Reviewing those factual findings for clear error, White v. Zela, 1997
ME 8, ¶3 687 A.2d 645, 646, we find none.  The court did not err in
determining that California was the "home state' and was, at least, an
alternative forum with respect to issues of custody.{4}
	[¶6] Having determined that either California or Maine could assert
jurisdiction over the divorce proceedings, the court appropriately went on
to consider whether Maine was a "seriously inconvenient forum for the trial
of the action." Corning v. Corning, 563 A.2d 379, 380 (Me. 1989).  We
review the dismissal on the basis of forum non conveniens for an abuse of
discretion.  Id.  The court considered the appropriate factors and found as
follows: 

(1) the plaintiff has an interest in having the divorce heard in
Maine because it is her state of residence, but likewise the
defendant has an interest in having the matter heard in
California because it is where he is; (2) most of the witnesses on
the financial aspects of the marital estate and on the custody
issue are in California; (3) although Alley and Parker have more
financial ability than the average divorce parties, meaning that
they have the finances to bring witnesses from California to
Maine, it is difficult and time-consuming to compel a reluctant
witness from California to appear in Maine if there should be a
reluctant witness; (4) there is no reason for a court to view the
property in Maine; (5) neither party made their respective
choice of forum for the purpose of harassing the other party; and
(6) to the extent that either Maine or California has an interest
in the action, it is primarily with regard to the child custody and
support issues, which means that California as the location
where the children have lived more than Maine, has more of an
interest.

Although the court stated that "the balance is on the side of California
assuming jurisdiction," implicitly it concluded that Maine is a "seriously
inconvenient forum for the trial of the action" and "a more appropriate
forum is available." Id.  Explicitly, the court ruled that dismissal would
"further the ends of justice and promote convenience of the suit for the
parties." In doing so, it did not abuse its discretion.  
	The entry is:
					Judgment affirmed.
                                                                          
Attorney for plaintiff:
Kenneth P. Altshuler, Esq., (orally)
Altshuler & Vincent
P O Box 6630
Portland, ME 04101-6630

Attorneys for defendant:

Michael P. Asen, Esq., (orally)
Peter G. Cary, Esq.
Mittel, Asen, Hunter & Cary, LLC
P O Box 427
Portland, ME 04112-0427