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Opinion Information Sheet

			

                                                                  FILED

                                                             MAY 08, 2012

                                                       In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

In re the Parentage of:                                   No.  28640-1-III
                                                )
KALEIGH LYN RUFF                                )
                                                )
JAMIE LYN RUFF,                                 )
                                                )
                             Respondent,        )
                                                )
         v.                                     )
                                                )
DENNIS A. KNICKERBOCKER,                        )
                                                )         PUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  Jurisdiction in interstate child custody disputes is governed by the

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), chapter 26.27 

RCW.  It is detailed, specific, and mandatory.   Here, a Washington superior court 

assumed jurisdiction of an interstate custody dispute after a Montana district court had 

exercised jurisdiction.  The court did not have the authority to do that under the 

UCCJEA. We reverse the court's order and remand for further proceedings.  

No. 28640-1-III
Ruff v. Knickerbocker

                                            FACTS

       Jamie Ruff and Dennis Knickerbocker lived in Shelby, Montana, when their 

daughter, Kayleigh, was born in 1999.  They ended their relationship soon after 

Kayleigh's birth.  Ms. Ruff petitioned for an interim parenting plan in Toole County, 

Montana.  The Montana Ninth Judicial District Court entered an order for interim 

parenting plan on October 24, 2002.  It provided that Ms. Ruff maintain "temporary 

custody" unless she moved out of Shelby.  If Ms. Ruff moved, it provided that she have 

primary physical custody of Kayleigh and that Mr. Knickerbocker have visitation every 

other weekend and whenever Ms. Ruff otherwise brought Kayleigh to Shelby.  

       Ms. Ruff moved to Spokane with Kayleigh in 2003 and the two lived in 

Washington from 2003 to 2006.   Kayleigh lived in Montana with Mr. Knickerbocker 

from 2006 to 2007.  Kayleigh has lived with Ms. Ruff in Spokane, Washington, since 

2007.  Mr. Knickerbocker continues to live in Montana.  

       Ms. Ruff petitioned for a parenting plan, a residential schedule, and child support 

in Spokane County Superior Court on July 17, 2008.  She also moved ex parte for a 

restraining order and temporary orders.  The request for a restraining order was prompted 

by fear that Mr. Knickerbocker would take Kayleigh to Montana.  Mr. Knickerbocker 

tried to remove Kayleigh from daycare after a care provider refused to release Kayleigh 

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Ruff v. Knickerbocker

to him on July 15, 2008.  Mr. Knickerbocker petitioned to modify custody in Spokane 

County Superior Court on the same day.  The cases were consolidated and the court 

concluded that there was "a need for Washington State to exercise emergency 

jurisdiction, if necessary, so child's residence remains stable pending the hearing."  

Clerk's Papers (CP) at 514.  The court also concluded that Mr. Knickerbocker consented

to jurisdiction by filing his petition.  Id.  A temporary visitation order provided that Ms. 

Ruff would maintain primary residential custody and that Mr. Knickerbocker would have 

scheduled visits.

       While the Washington custody case was pending, Mr. Knickerbocker and Ms. 

Ruff moved to dismiss the pending Montana custody case "because the parties both agree 

that Washington State now has jurisdiction for entry of the final parenting plan and child 

support orders in this action."  Id. at 517. The Montana court dismissed the case on 

January 8, 2009.  The Spokane County Superior Court concluded it had jurisdiction to 

enter a parenting plan and residential schedule on October 27, 2009:

       This court has jurisdiction over the child for the reasons set forth below:

       This state is the home state of the child because:
              the child lived in Washington with a parent or person acting as a 
              parent for at least six consecutive months immediately preceding the 
              commencement of this proceeding.
              . . . .
       The child and the parents or the child and at least one parent or person 
       acting as a parent have significant connection with the state other than mere 

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Ruff v. Knickerbocker

       physical presence, and substantial evidence is available in this state 
       concerning the child's care, protection, training and personal relationships, 
       and
              . . . .
              the child's home state has declined to exercise jurisdiction on the 
              ground that this state is the more appropriate forum under RCW 
              25.27.261 or .271.  

Id. at 271. The court entered a parenting plan and residential schedule that same day.  

Those orders gave Ms. Ruff primary residential placement and Mr. Knickerbocker regular 

visits. Mr. Knickerbocker appeals.  

                                        DISCUSSION

       The only issue here on appeal is whether the Washington courts had authority,

given the requirements of the UCCJEA, to enter the October 27, 2009, parenting plan and 

residential schedule.  

       Both Washington and Montana have adopted the UCCJEA.  Chapter 26.27 RCW; 

Mont. Code Ann. § 40-7-101.  The UCCJEA is "a pact among states limiting the 

circumstances under which one court may modify the [child custody] orders of another."  

In re Custody of A.C., 165 Wn.2d 568, 574, 200 P.3d 689 (2009) (citing Unif. Child 

Custody Jurisdiction & Enforcement Act (UCCJEA), prefatory note, 9 pt. IA U.L.A. at 

649-51 (1997)).  It is "an attempt to deal with the problems of competing jurisdictions 

entering conflicting interstate child custody orders, forum shopping, and the drawn out 

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Ruff v. Knickerbocker

and complex child custody legal proceedings often encountered by parties where multiple 

states are involved."  Id. (citing UCCJEA prefatory note, 9 pt. IA U.L.A. at 651; 

UCCJEA § 101 cmt., 9 pt. IA U.L.A. at 657).  In sum, the UCCJEA aims to prevent 

conflicting custody orders by determining when a state can modify a custody order 

entered in another state.  Id.  

       Mr. Knickerbocker contends -- for the first time on appeal -- that the court lacked

jurisdiction.   He argues that Montana is Kayleigh's "home state" under the UCCJEA and 

therefore had continuing exclusive jurisdiction.  See RCW 26.27.201(1)(a).  He also 

argues that Washington could not have acquired jurisdiction from Montana because 

Montana had not declined to exercise its jurisdiction and Washington failed to properly

exercise emergency jurisdiction. See RCW 26.27.231, .201(1)(b), (c), .221.  

       Ms. Ruff concedes that Washington is not Kayleigh's home state and that the court 

did not precisely follow the UCCJEA. Br. of Resp't at 9, 25.  But she argues,

nonetheless, that the court's order should not be reversed for a number of reasons.  First,

she urges that the question here is not whether the court had subject matter jurisdiction 

but instead whether Spokane was the proper venue.  The difference she argues is 

important because if, as she argues, the Washington courts are just the wrong venue then 

the court's orders or judgments are not void.  See Dike v. Dike, 75 Wn.2d 1, 8, 448 P.2d 

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No. 28640-1-III
Ruff v. Knickerbocker

490 (1968) ("[W]here a court has jurisdiction . . ., no error in the exercise of such 

jurisdiction can make the judgment void. . . .  This is true even if there is a fundamental 

error of law . . . .  Such a judgment is, under proper circumstances, voidable, but until 

avoided is regarded as valid"). Second, she urges that the Washington courts properly

exercised emergency jurisdiction, in any event, given Mr. Knickerbocker's attempt to 

take the child from daycare.  Third, she argues that communicating with the Montana 

courts (as required by the UCCJEA) would have been useless because Mr. Knickerbocker 

had also petitioned for custody in the Washington courts.  And finally, she argues that the 

Montana courts effectively declined jurisdiction by entering the January 2009 order 

dismissing the Montana case.  

       Whether Washington courts have subject matter jurisdiction is a question of law 

that we will review de novo.  In re Marriage of Kastanas, 78 Wn. App. 193, 197, 896 

P.2d 726 (1995).  Interpretation of a statutory scheme and application of that scheme also 

present questions of law that we review de novo.  In re Parentage of J.M.K., 155 Wn.2d 

374, 386-87, 119 P.3d 840 (2005).

       I.     Are the UCCJEA's requirements jurisdictional?

       The parties disagree over whether the orders entered in violation of the UCCJEA's 

jurisdictional requirements are void.  The answer depends on whether the UCCJEA 

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No. 28640-1-III
Ruff v. Knickerbocker

effectively limits the court's subject matter jurisdiction or does something else.  Ms. Ruff 
relies on a footnote in A.C.1to suggest that the UCCJEA's jurisdictional requirements 

relate to venue.  Br. of Resp't at 11.  And she urges that Mr. Knickerbocker consented to 

jurisdiction because he too filed a petition in Spokane County Superior Court and he 

joined her motion to dismiss the Montana case. Mr. Knickerbocker counters that Ms. 

Ruff's reliance on a footnote in A.C. is misplaced and the UCCJEA does in fact limit 

subject matter jurisdiction.  Reply Br. of Appellant at 1-3.  

       Subject matter jurisdiction "'is the power and authority of the court to act.'"  

Dougherty v. Dep't of Labor & Indus., 150 Wn.2d 310, 315, 76 P.3d 1183 (2003)

(quoting 77 Am. Jur. 2d Venue § 1 at 608 (1997)).  It "refers to the court's authority to 

entertain a type of controversy, not simply lack of authority to enter a particular order."

In re Marriage of Schneider, 173 Wn.2d 353, 360, 268 P.3d 215 (2011) (citing Marley v. 

Dep't of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994)).  "'If the type of 

controversy is within the subject matter jurisdiction, then all other defects or errors go to 

       1 165 Wn.2d at 573 n.3 ("The UCCJEA uses the term 'subject matter 
jurisdiction,' and for consistency we use the statutory language.  However, 
Washington courts did, in fact, have subject matter jurisdiction over the parties and 
the issues.  See Const. art. IV, § 6 (describing general jurisdiction of superior 
courts); Dougherty v. Dep't of Labor & Indus., 150 Wn.2d 310, 316-17, 76 P.3d 
1183 (2003) (subject matter jurisdiction concerns the type of controversy, not the 
facts of an individual case).  The statute might have more accurately used the term 
'exclusive venue' instead of 'subject matter jurisdiction.'").

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No. 28640-1-III
Ruff v. Knickerbocker

something other than subject matter jurisdiction.'" Marley, 125 Wn.2d at 539 (quoting 

Robert J. Martineau, Subject Matter Jurisdiction as a New Issue on Appeal: Reining in an 

Unruly Horse, 1988 BYU L. Rev. 1, 28)).  An order entered by a court without subject 

matter jurisdiction is void.  Skagit Surveyors & Eng'rs, LLC v. Friends of Skagit County, 

135 Wn.2d 542, 556, 958 P.2d 962 (1998).  The parties cannot consent to subject matter 

jurisdiction nor can they waive objection to it.  Id.; Wampler v. Wampler, 25 Wn.2d 258, 

267, 170 P.2d 316 (1946).

       Superior courts in Washington have broad constitutionally based jurisdictional 

authority.  Orwick v. City of Seattle, 103 Wn.2d 249, 251, 692 P.2d 793 (1984).  And we 

strictly and narrowly read efforts by the legislature to limit that jurisdiction.  Id.  

       The UCCJEA is found in chapter 26.27 RCW and the controlling statute here is 

RCW 26.27.201 (initial child custody jurisdiction).  It provides that:

       (1) Except as otherwise provided in RCW 26.27.231, a court of this state 
       has jurisdiction to make an initial child custody determination only if:
              (a) This state is the home state of the child on the date of the 
       commencement of the proceeding, or was the home state of the child within 
       six months before the commencement of the proceeding and the child is 
       absent from this state but a parent or person acting as a parent continues to 
       live in this state;
              (b) A court of another state does not have jurisdiction under (a) of 
       this subsection, or a court of the home state of the child has declined to 
       exercise jurisdiction on the ground that this state is the more appropriate 
       forum under RCW 26.27.261 or 26.27.271, and:
              (i) The child and the child's parents, or the child and at least one 
       parent or a person acting as a parent, have a significant connection with this 

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Ruff v. Knickerbocker

       state other than mere physical presence; and
              (ii) Substantial evidence is available in this state concerning the 
       child's care, protection, training, and personal relationships;
              (c) All courts having jurisdiction under (a) of this subsection have 
       declined to exercise jurisdiction on the ground that a court of this state is 
       the more appropriate forum to determine the custody of the child under  
       RCW 26.27.261 or 26.27.271; or
              (d) No court of any other state would have jurisdiction under the 
       criteria specified in (a), (b), or (c) of this subsection.
              (2) Subsection (1) of this section is the exclusive jurisdictional basis 
       for making a child custody determination by a court of this state.

RCW 26.27.201 (emphasis added).  

       Nothing in our constitution prohibits the legislature from creating procedural 

prerequisites to a court's exercise of jurisdiction.  See James v. Kitsap County, 154 

Wn.2d 574, 587-88, 115 P.3d 286 (2005); Sullivan v. Purvis, 90 Wn. App. 456, 459, 966 

P.2d 912 (1998).  And most authorities suggest that the UCCJEA's procedural 

requirements control the court's exercise of its subject matter jurisdiction.  A.C., 165

Wn.2d at 577; In re Marriage of Hamilton, 120 Wn. App. 147, 148-49, 84 P.3d 259 

(2004); In re Marriage of Susan C., 114 Wn. App. 766, 60 P.3d 644 (2002); UCCJEA

§ 201 cmt., 9 pt. IA U.L.A. at 673.  We also conclude that it does. 

       The comments to the UCCJEA make clear the intent to limit subject matter 

jurisdiction: "It should also be noted that since jurisdiction to make a child custody 

determination is subject matter jurisdiction, an agreement of the parties to confer 

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No. 28640-1-III
Ruff v. Knickerbocker

jurisdiction on a court that would not otherwise have jurisdiction under this Act is 

ineffective."  UCCJEA § 201 cmt., 9 pt. IA U.L.A. at 673.  And our Supreme Court 

endorsed this comment in A.C. with the statement "that to permit waiver of the 

jurisdictional provisions of the UCCJEA would undermine the goals of avoiding 

conflicting proceedings."  A.C. 165 Wn.2d at 577 n.8 (citing UCCJEA § 201 cmt., 9 pt. 

IA U.L.A. at 673).  Our state and others then embrace the notion that the UCCJEA is a 

limit on subject matter jurisdiction.  See Hamilton, 120 Wn. App. at 148-49 ("Under [the 

UCCJEA], Washington courts have subject matter jurisdiction to determine child custody 

in certain specified situations."); Susan C., 114 Wn. App. 766 (identifying subject matter 

jurisdiction as the issue and concluding that this state had no jurisdiction to act under the 

UCCJEA when the Southern Ute Indian Tribe had already asserted jurisdiction).  

       We conclude then that the UCCJEA's procedural requirements are jurisdictional 

and Mr. Knickerbocker's consent could not have given Washington jurisdiction.  Not 

only is jurisdiction not something that can be consented to generally, but nowhere in the 

UCCJEA is there a provision for the parties to waive the jurisdiction of one state in favor 

of another by their conduct or their agreement.  Indeed, the comments to the UCCJEA 

and the court's reading of those comments in A.C. suggest just the opposite.  A.C., 165

Wn.2d at 577.

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No. 28640-1-III
Ruff v. Knickerbocker

       II.    Did the court properly exercise emergency jurisdiction?

       Mr. Knickerbocker contends that the court did not have jurisdiction because it 

failed to satisfy the UCCJEA's requirements to invoke the emergency jurisdiction.  Br. of 

Appellant at 17-20.  And, relatedly, he argues the court failed to satisfy the UCCJEA's 

requirements for converting emergency jurisdiction into jurisdiction to enter permanent 

custody orders.  Br. of Appellant at 21-23.  Ms. Ruff responds that, even if the court 

lacked jurisdiction to rule here, the court had emergency jurisdiction based on Mr. 

Knickerbocker's attempts to take the child.   Br. of Resp't at 13.  Again, the question is 

whether the courts of Washington had jurisdiction over this child custody dispute, given 

the open proceedings in Montana at the time proceedings commenced here in 

Washington. See Deschenes v. King County, 83 Wn.2d 714, 716, 521 P.2d 1181(1974) 

("The rule is well known and universally respected that a court lacking jurisdiction of any 

matter may do nothing other than enter an order of dismissal." (citing 21 C.J.S. Courts

§ 118 (1940)).  By the clear language of the UCCJEA, they did not.  

       The Montana courts had exclusive jurisdiction when it first entered the custody 

order here; that jurisdiction continues and includes the exclusive jurisdiction to modify its 

order.  Mont. Code Ann. § 40-7-202.  The Washington courts, however, may exercise 

temporary emergency jurisdiction "if the child is present in this state and . . . it is 

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No. 28640-1-III
Ruff v. Knickerbocker

necessary in an emergency to protect the child because the child . . . is subjected to or 

threatened with abuse." RCW 26.27.231(1).  Mr. Knickerbocker argues that "by 

definition, no 'emergency' existed." Br. of Appellant at 15.  RCW 26.27.231(1)'s plain 

wording requires that an emergency result in the child being "subjected to or threatened 

with abuse." Ms. Ruff responds that there was an emergency because Mr. Knickerbocker 

tried to take Kayleigh without Ms. Ruff's consent.  Br. of Resp't at 12-13.  

       Neither emergency nor abuse is defined.  See RCW 26.27.021.  We then give the 

words their ordinary and common meaning, absent a statutory definition, and often turn 

to the dictionary.  Budget Rent A Car Corp. v. Dep't of Licensing, 144 Wn.2d 889, 899-

900, 31 P.3d 1174 (2001).  Emergency is "an unforeseen combination of circumstances or 

the resulting state that calls for immediate action." Webster's Third New International 

Dictionary 741 (1993).  Abuse is "a corrupt practice or custom," "improper or incorrect 

use," "a deceitful act," "language that condemns or vilifies usually unjustly," the "act of 

violating sexually," or "physically harmful treatment."  Id. at 8.  

       Washington courts have not passed on what an emergency is under the UCCJEA, 

but has done so under the earlier Uniform Child Custody Jurisdiction Act (UCCJA). See 

In re Marriage of Greenlaw, 67 Wn. App. 755, 762, 840 P.2d 223 (1992), rev'd on other 

grounds, 123 Wn.2d 593, 869 P.2d 1024 (1994).  The UCCJA provided that the state 

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No. 28640-1-III
Ruff v. Knickerbocker

may exercise emergency jurisdiction if the child "has been subjected to or threatened with 

mistreatment or abuse or is otherwise neglected or dependent." RCW 26.27.030(1)(c) 

(repealed by Laws of 2001, ch. 65, § 403).  In Greenlaw, the court held "that assumption 

of emergency jurisdiction under the UCCJA is to be undertaken only in extraordinary 

circumstances, such as where a child would be placed in imminent danger if jurisdiction 

were not exercised." 67 Wn. App. at 762.

       Here, the court concluded that it had emergency jurisdiction after adopting as its 

findings paragraphs 2.1, 2.2, and 2.4 of Ms. Ruff's "Motion/Declaration for an Ex Parte 

Restraining Order and for an Order to Show Cause" and "a need for Washington State to 

exercise emergency jurisdiction, if necessary, so child's residence remains stable pending 

the hearing." CP at 514. Ms. Ruff declared that she was afraid that Mr. Knickerbocker 

would take Kayleigh without permission.  She also declared that Mr. Knickerbocker tried 

to take Kayleigh from her daycare after he was denied permission to take her.  Of course, 

the conduct and the circumstances are troubling.  But we cannot conclude that they 

amount to "abuse."  And we have no way to pass on the court's findings that adopt 

paragraphs 2.1, 2.2, and 2.4 of Ms. Ruff's motion and declaration because Ms. Ruff's 

motion for an ex parte restraining order and temporary orders were not part of the record

here on appeal.  And neither the July 18, 2008 motion for order to show cause hearing 

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No. 28640-1-III
Ruff v. Knickerbocker

nor the show cause hearing was transcribed.  On the record available then, we cannot 

conclude that the trial court had jurisdiction to enter the July 18, 2008, and August 8, 

2008 orders based on "emergency jurisdiction."  

       But even assuming that the court correctly exercised temporary emergency 

jurisdiction on July 18, 2008, and August 8, 2008, the court did not have authority to 

enter further permanent orders.  Mr. Knickerbocker argues that the court lacked 

jurisdiction to enter the October 27, 2009 orders because the court failed to follow the

necessary procedure spelled out in the UCCJEA to move from temporary emergency 

jurisdiction to the general jurisdiction necessary to modify the Montana custody order 

permanently.  See Br. of Appellant at 18-20; see RCW 26.27.231.  We agree. 

       The UCCJEA requires that the court assuming temporary emergency jurisdiction 

communicate and coordinate with the court that made the initial custody order:

              (3) If there is a previous child custody determination that is entitled 
       to be enforced under this chapter, or a child custody proceeding has been 
       commenced in a court of a state having jurisdiction under RCW 26.27.201
       through 26.27.221, any order issued by a court of this state under this 
       section must specify in the order a period that the court considers adequate 
       to allow the person seeking an order to obtain an order from the state 
       having jurisdiction under RCW 26.27.201 through 26.27.221.  The order 
       issued in this state remains in effect until an order is obtained from the 
       other state within the period specified or the period expires.  
              (4) . . .  [U]pon being informed that a child custody proceeding has 
       been commenced in, or a child custody determination has been made by, a 
       court of a state having jurisdiction under RCW 26.27.201 through 
       26.27.221, shall immediately communicate with the other court.  A court of 

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No. 28640-1-III
Ruff v. Knickerbocker

       this state that is exercising jurisdiction pursuant to RCW 26.27.201 through 
       26.27.221, upon being informed that a child custody proceeding has been 
       commenced in, or a child custody determination has been made by, a court 
       of another state under a statute similar to this section shall immediately 
       communicate with the court of that state to resolve the emergency, protect 
       the safety of the parties and the child, and determine a period for the 
       duration of the temporary order. 

RCW 26.27.231. Simply put, RCW 26.27.231(4) requires both courts to communicate 

with each other.  This helps to "determine a period for the duration of a temporary order."  

RCW 26.27.231(4).  The temporary order gives the petitioning party enough time to seek 

an appropriate order in the state that entered the initial custody decree.  RCW 

26.27.231(3).  Also, the temporary order should have an expiration date:  either when the 

court that issued the previous custody determination issues a new order or when the 

period for obtaining that order expires.  Id. The petitioner must then get an order from 

the state that issued the initial custody order before the temporary order expires.  See id.  

The court that entered the initial custody order can: (1) retain jurisdiction and decide 

whether to modify its initial order, (2) decline to exercise jurisdiction in favor of a court 

with a more convenient forum, or (3) decline to exercise jurisdiction because the 

petitioner "engaged in unjustifiable conduct." RCW 26.27.221, .261, .271.  Only once 

that state declines jurisdiction may the state with temporary emergency jurisdiction then 

exercise jurisdiction to permanently modify the initial custody order.  See RCW 

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No. 28640-1-III
Ruff v. Knickerbocker

26.27.231(3).  

       This procedure was not followed and no one suggests otherwise.  On this record 

the Spokane County Superior Court never communicated with the Montana court.  See

RCW 26.27.231(4).  None of the court's orders contemplate how long it might take Ms. 

Ruff or Mr. Knickerbocker to get an order from the Montana court.  See RCW 

26.27.231(3).  None of the court's orders have an expiration date.  See id..  

       Ms. Ruff argues that strict compliance with these procedures is not required.  Br. 

of Resp't. at 25.  She also suggests that its requirements are procedural, and therefore, the 

court's orders only voidable.  Br. of Resp't at 12 (citing In re Marriage of Furrow, 115 

Wn. App. 661, 669, 63 P.3d 821 (2003)).  Washington courts have not passed on whether 

RCW 26.27.231 requires strict compliance to assert jurisdiction.  But other states have.  

Those states agree that a court asserting temporary emergency jurisdiction cannot enter 

permanent orders without following the procedures set forth in the UCCJEA.  An 

Alabama court concluded that a trial court that had temporary emergency jurisdiction 

erred by granting a permanent custody order.  S.C. v. J.T.C., 47 So. 3d 1253, 1257-58 

(Ala. Civ. App. 2010).  The court had jurisdiction to enter a temporary order.  So the 

appellate court vacated the permanent order and remanded the case so that the court could 

follow the UCCJEA's procedures.  Id. at 1258. Similarly, a Nebraska court concluded 

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No. 28640-1-III
Ruff v. Knickerbocker

that there was temporary emergency jurisdiction.  But, because the court failed to 

communicate with the court that had issued the initial custody decree, that court too 

remanded with instructions to follow the UCCJEA's procedures.  In re Interest of 

Maxwell T., 15 Neb. App. 47, 61, 721 N.W.2d 676 (2006).  A California court also 

concluded that a court that had temporary emergency jurisdiction under the UCCJEA 

lacked jurisdiction to enter findings in a dependency proceeding.  In re C.T., 100 Cal. 

App. 4th 101, 110, 121 Cal. Rptr. 2d 897 (2002). 

       Here we are led to conclude that the court did not have jurisdiction to enter any 

final orders, even assuming that it had the authority to temporarily assume emergency

jurisdiction.  Spokane County Superior Court was required to communicate with the 

Montana court "immediately" and it did not do so.  See RCW 26.27.231(4).  There is also

no expiration date for the temporary emergency jurisdiction as required.  RCW 

26.27.231(3).  The court then did not follow the mandatory procedure that would allow it 

to exercise jurisdiction to enter a permanent order.

       Ms. Ruff points out that the Montana court ultimately determined that Washington 

was a more appropriate forum and the Montana court declined to exercise its jurisdiction 

in favor of the Washington courts exercising jurisdiction.  From this, she argues that the 

parties were in substantial compliance with the UCCJEA.  Br. of Resp't at 25.  We 

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No. 28640-1-III
Ruff v. Knickerbocker

disagree.  The court did not follow the UCCJEA's mandatory procedures for exercising 

jurisdiction substantially or otherwise.  The court did not comply with the UCCJEA.

       Finally, it is difficult for us to criticize the superior court judge for doing what the 

parties asked her to do here.  Indeed, her decisions are most reasonable; and were our 

standard of review one of abuse of discretion, we would easily affirm the orders.  But 

both we and she are hamstrung by an intricate and specific uniform body of rules where, 

unfortunately, one size is calculated to fit all.  But that problem requires a legislative fix 

not a judicial one.  Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 509, 198 P.3d 

1021 (2009).

Attorney Fees

       Both Mr. Knickerbocker and Ms. Ruff request attorney fees under RAP 18.1.  The 

UCCJEA provides for attorney fees to a prevailing party.  RCW 26.27.511(1). There are 

no Washington cases that address whether a party who successfully argues a 

jurisdictional issue under the UCCJEA is entitled to attorney fees.  But the court in 

Virginia has addressed the question in an opinion that we find persuasive.  Tyszcenko v. 

Donatelli, 53 Va. App. 209, 215-21, 670 S.E.2d 49 (2008).  There the court concluded 

that when the issue is only jurisdiction, fees are only proper when the party seeking to 

invoke jurisdiction has "engaged in unjustifiable conduct."  Id.; see RCW 26.27.271(3).  

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No. 28640-1-III
Ruff v. Knickerbocker

Clearly that is not the case here and we therefore will not award fees.  See also Delgado 

v. Combs, No. A11A1948, 2012 WL 639120 (Ga. Ct. App. Feb. 29, 2012).   We deny the 

requests for attorney fees. 

       We reverse the orders and remand for further proceedings.

                                                    _______________________________
                                                    Sweeney, J.
I CONCUR:

________________________________
Kulik, J.

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