Emma Ekstrand v. Maxsonn Marsh

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 25, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP476 Cir. Ct. No. 2019FA70

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

EMMA EKSTRAND,

PETITIONER-APPELLANT,

V.

MAXSONN MARSH,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Polk County:
JEFFERY ANDERSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Emma Ekstrand appeals an order dismissing her
paternity action against Maxsonn Marsh in which she sought a determination of
No. 2020AP476

the legal custody and physical placement of their daughter, Brooke.1 The circuit
court dismissed Ekstrand’s action after concluding that Brooke had not lived with
Ekstrand in Wisconsin for the necessary six months immediately preceding the
Wisconsin action’s commencement. The court therefore determined that “home
state” jurisdiction under WIS. STAT. § 822.21(1)(a) (2019-20)2 lied with North
Dakota, where Ekstrand and Brooke lived prior to moving to Wisconsin.

¶2 On appeal, Ekstrand asserts the circuit court erred by focusing on
where Ekstrand and Brooke were physically located during the relevant time
period, rather than assessing the totality of the circumstances, including Ekstrand’s
subjective intent to move to Wisconsin. We conclude that the facts as found by
the circuit court demonstrate that Brooke’s home state when Ekstrand’s suit was
filed was North Dakota, even under Ekstrand’s preferred “totality of the
circumstances” analysis. We therefore affirm.

BACKGROUND

¶3 The relevant facts are largely undisputed and are taken from
evidentiary hearings on Marsh’s motion to dismiss this action. Brooke was born
to Ekstrand and Marsh on May 14, 2017, in Dickinson, North Dakota. Ekstrand
and Marsh were in a relationship between February 2015 and September 2017, but
they never married. They lived separately in North Dakota until 2016, when they
moved into a house that they owned together.

1
Consistent with the parties’ practice, we use a pseudonym to refer to the minor child.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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¶4 Ekstrand testified that the relationship grew “incredibly toxic,” and
she moved into a rented town home and then into a home that her mother was
leasing, both of which were in Dickinson. In early September 2018, Marsh
punched one of Ekstrand’s friends.3 Ekstrand then began “formulat[ing] a plan
to … relocate” to Wisconsin.

¶5 Ekstrand eventually moved to Wisconsin, where she commenced the
present action against Marsh on April 3, 2019, seeking a determination of
Brooke’s legal custody and physical placement. Ekstrand alleged in her petition
that Brooke had lived with her in Polk County, Wisconsin, since October 2, 2018.
Marsh had previously attempted to file a paternity action in North Dakota on
February 4, 2019, but he was unable to accomplish service upon Ekstrand until
April 26, 2019, making the action in Wisconsin the first-filed action.

¶6 Marsh filed a motion to dismiss the Wisconsin action, asserting that
the circuit court lacked “home state” jurisdiction under WIS. STAT. § 822.21,
Wisconsin’s statute adopting the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA).4 Marsh argued Wisconsin was not Brooke’s “home
state” because Brooke had not lived with Ekstrand in Wisconsin for a period of at
least six consecutive months before Ekstrand filed the Wisconsin action. See WIS.
STAT. § 822.02(7) (defining “home state”). Although Marsh acknowledged

3
At trial, Marsh claimed the friend lunged at him and he acted in self-defense.
4
A circuit court in Wisconsin always has subject matter jurisdiction to decide custody
matters. P.C. v. C.C., 161 Wis. 2d 277, 298, 468 N.W.2d 190 (1991). The statutory concept of
jurisdiction under the UCCJEA is more akin to the concepts of competency and personal
jurisdiction. See id.

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Ekstrand had visited Wisconsin during the relevant time frame, he asserted that
she and Brooke had continued to live in North Dakota throughout early 2019.

¶7 A circuit court commissioner ruled that Wisconsin had home state
jurisdiction. The commissioner determined that Ekstrand had moved to Wisconsin
“on or about September 19, 2018,” the date she had completed a change-of-
address form with the United States Postal Service (USPS) identifying her new
address in Siren, Wisconsin. The commissioner found Ekstrand had informed her
employer of her pending move on September 7, 2018, and had changed her
driver’s license to the Wisconsin address on October 2, 2018. The commissioner
further found that, thereafter, Ekstrand had “sporadically” returned to
North Dakota until October 31, 2018, while she finished her employment there.
Marsh was found to have lied to the commissioner about threatening Ekstrand
with harm after their breakup, and the commissioner regarded Ekstrand’s
surreptitious move to Wisconsin as being justified by her seeking “refuge from
violence in North Dakota.” Accordingly, the commissioner denied Marsh’s
motion.5

¶8 Marsh sought a de novo hearing before the circuit court, and the
court set the matter for an evidentiary hearing. Ultimately, the court took
testimony and other evidence over the course of three hearings. Relying on
Powell v. Stover, 165 S.W.3d 322 (Tex. 2005), and emphasizing the “purposes
behind the UCCJEA,” the court concluded “that a child’s physical location is a
central factor to be considered when determining a child’s home state.”

5
Based upon the court commissioner’s decision that Wisconsin had home state
jurisdiction, the North Dakota court dismissed Marsh’s action without prejudice.

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¶9 The circuit court discussed the evidence that had been received
during the three hearings. It noted that initially it had appeared that Ekstrand had
worked in North Dakota for fourteen days during October of 2018, but Ekstrand’s
pay stubs appeared to indicate she had worked as many as eighteen days. The
court emphasized the testimony of Ekstrand’s supervisor, to whom Ekstrand had
given her notice of termination with the expectation that she would be giving her
employer sufficient time to find another person. Ekstrand’s last day of work in
North Dakota was October 31, 2018. The court noted that testimony and evidence
from Ekstrand’s childcare provider generally corroborated the dates Ekstrand was
working, indicating that Ekstrand had been in North Dakota for at least eighteen
days in October 2018. Moreover, it was undisputed that Ekstrand and Brooke had
spent a few days at the beginning of October in South Dakota while attending a
friend’s wedding. In all, the court concluded Brooke spent no more than five or
six days in Wisconsin during the month of October 2018.

¶10 Based on the evidence, the circuit court determined that Ekstrand
“was living in North Dakota at least until the end of October, 2018.” It further
concluded the evidence demonstrated that Brooke had accompanied Ekstrand
while in North Dakota during that month. The court acknowledged that Ekstrand
had taken some steps to relocate to Wisconsin, but it stated it was “factoring out
[her] subjective intent to … move” and focusing on where Brooke was physically
located. It therefore found that Ekstrand’s Wisconsin filing was premature, as the
court could not exercise jurisdiction at the time of filing because North Dakota
was Brooke’s home state for at least a portion of the requisite six-month period.

¶11 The circuit court noted that because of the existence of parallel
proceedings in North Dakota, there should have been a stay imposed in the
Wisconsin proceedings pending communication with the North Dakota court. See

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WIS. STAT. § 822.26. The court therefore stayed the proceedings and conducted
an on-the-record conversation with the North Dakota judge to determine whether
North Dakota would accept jurisdiction. The North Dakota judge agreed that his
state was the appropriate state to exercise jurisdiction. The court then entered an
order transferring jurisdiction to North Dakota, providing for a sixty-day delay in
dismissing the Wisconsin action pending any “unforeseen circumstances.” The
case was not returned to Wisconsin, and the Wisconsin action was dismissed at the
expiration of the sixty days. Ekstrand appeals the order of dismissal.

DISCUSSION

¶12 The UCCJEA provides “a mechanism for resolving interstate child
custody disputes.” Davidson v. Davidson, 169 Wis. 2d 546, 557, 485 N.W.2d 450
(Ct. App. 1992). Unlike prior laws, the UCCJEA sets forth “clear rules” that, in
theory, always locate jurisdiction over custody proceedings in a single state.
Hatch v. Hatch, 2007 WI App 136, ¶12, 302 Wis. 2d 215, 733 N.W.2d 648.
Under the UCCJEA, “home state jurisdiction always receives priority, and other
jurisdictional bases are available only when there is no home state, or where the
home state declines jurisdiction.” Id. The determination of jurisdiction under the
UCCJEA is a question of law, which we review de novo. N.J.W. v. State, 168
Wis. 2d 646, 652, 485 N.W.2d 70 (Ct. App. 1992).

¶13 Ekstrand’s sole argument on appeal is that the circuit court failed to
apply the correct legal standard when it determined that it did not have “home
state” jurisdiction to make an initial child custody determination under WIS. STAT.

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§ 822.21(1).6 This argument depends on the application of § 822.21(1)(a), which
describes the primary way in which circuit courts of this state may exercise
jurisdiction to make an initial child custody determination. Under subsec. (1)(a),
as relevant here, a court has such jurisdiction if “[t]his state is the home state of
the child on the date of the commencement of the proceeding.” “Home state”
means “the state in which a child lived with a parent … for at least 6 consecutive
months immediately before the commencement of a child custody proceeding.”
WIS. STAT. § 822.02(7). “A period of temporary absence” is part of the home state
period. Id.

¶14 As suggested by the “commencement” language of WIS. STAT.
§ 822.02(7), the UCCJEA requirements must be met at the commencement of the
proceedings. P.C. v. C.C., 161 Wis. 2d 277, 302, 468 N.W.2d 190 (1991). The
parties concur that because this action was commenced on April 3, 2019,
Wisconsin is considered Brooke’s “home state” if she was living in Wisconsin no
later than October 3, 2018. Ekstrand contends she and Brooke began living in
Wisconsin on September 28, 2018, when they traveled to Wisconsin for the first
time with the subjective intent to “remain permanently.” Ekstrand argues that
after that date, their return trips to North Dakota were merely “temporary
absence[s]” under § 822.02(7). Marsh, on the other hand, contends “the
overwhelming evidence shows that while Ekstrand was making plans in
September and October 2018 to move to Wisconsin, she did not actually move
there until November 1, 2018 at the very earliest.”

6
Ekstrand’s challenge on appeal appears to be limited to the legal analysis the circuit
court applied. We do not discern her arguments to challenge any of the court’s factual findings as
clearly erroneous.

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¶15 The parties also agree that no Wisconsin case has addressed
precisely what it means for a child to have “lived with a parent” in a claimed home
state for purposes of WIS. STAT. § 822.02(7). Ekstrand criticizes Powell’s focus
on the “child’s physical location” in the preceding six months, even though one of
the main cases she relies on appears to acknowledge the significance of physical
presence. See Garba v. Ndiaye, 132 A.3d 908, 913 (Md. App. 2016). Ekstrand
argues that when a child is not continuously present in the alleged home state
during the six months prior to filing, the proper test to apply is Garba’s “totality of
the circumstances” test for determining whether the child’s absence was merely
temporary. 7 See id. at 914-15.

¶16 We need not adopt Powell, Garba or any other case as the definitive
interpretation of WIS. STAT. § 822.02(7), because under any of the proposed
formulations, the outcome is the same in this case. The problem presents itself
because Brooke’s claimed period of “temporary absence” occurred at the inception
of the six-month period in which Ekstrand claims she and Brooke lived in this
state. And while Ekstrand undoubtedly had a subjective intent to move to
Wisconsin, the appellate record fails to show that she had the intent to make
Wisconsin her permanent home as of October 3, 2018, let alone that she had
actually accomplished that task.

7
Ekstrand relies on In re Calderon-Garza, 81 S.W.3d 899 (Tex. App. 2002), for the
proposition that Brooke should be deemed “temporarily absent” from Wisconsin because she was
first present here in September. Calderon-Garza, though, involved a parent from Mexico who
gave birth to a child in Texas and argued that her trip to the United States was merely a temporary
absence for purposes of UCCJEA. Id. at 903. The child had never been to Mexico, prompting
the court to make the unremarkable observation that one cannot be temporarily absent from a
place where one had never lived. Id. Contrary to Ekstrand’s argument, Calderon-Garza did not
hold that a court must conduct a “temporary absence” inquiry merely because a child becomes
present in the claimed home state.

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¶17 Rather, both Ekstrand’s testimony and the facts as found by the
circuit court show that she intended to accomplish a move to Wisconsin in the
general September-October time frame, but not as of any date certain. At some
point prior to September 7, it is apparent Ekstrand had decided to move from
Dickinson to her parents’ home in Siren, Wisconsin. On September 7, Ekstrand’s
parents made a trip to North Dakota and picked up some of her belongings. Also
on that date, Ekstrand, who had worked as the general manager of the Brickhouse
Grill in Dickinson, gave her employer notice that she would be ending her
employment in “about” six weeks, which Ekstrand believed was enough time to
find and train a replacement. At some point prior to September 14, Ekstrand
provided her employer with the Wisconsin address, and on September 19, she filed
a change-of-address form with the USPS. Ekstrand also began looking for
employment in Wisconsin and applied for two jobs.

¶18 Ekstrand scheduled a job interview in Wisconsin on October 2,
2018. She departed North Dakota for Wisconsin on September 28, and during that
visit she received a job offer and applied for a Wisconsin driver’s license.
Ekstrand traveled from Wisconsin to South Dakota for a friend’s wedding on
October 3rd or 4th, and then traveled from South Dakota to North Dakota to work
in Dickinson throughout October. The circuit court found that Ekstrand worked in
Dickinson on October 9th through the 13th, the 16th through the 21st, the 23rd and
24th, and October 27th through the 31st.8 Ekstrand’s child care invoices in
Dickinson generally corresponded to these dates.

8
The circuit court acknowledged there were disputes about whether Ekstrand worked on
October 20 and 26, 2018. Excluding these dates has no bearing on our determination.

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¶19 Ekstrand acknowledged that moving to Wisconsin was a “slow
process” and that it was not until mid-October when she had “most of her
belongings” in Wisconsin. Ekstrand began looking for child care in Wisconsin for
Brooke in September, but she did not register her until “early October,” and
Brooke did not start her Wisconsin day care until November 2018. Indeed,
Brooke remained in day care in Dickinson throughout October 2018. And
Ekstrand worked in Dickinson throughout October; she did not start her new job in
Wisconsin until November 2018. While Ekstrand was in North Dakota in October
2018, she continued staying in the residence leased by her mother, just as she had
in the previous months. In all, Ekstrand acknowledged being present in Wisconsin
on only five or six days in October, which appears to have included the dates at
the beginning of October as well as a very brief trip to this state around
October 25th.

¶20 The facts demonstrate that Brooke primarily lived with Ekstrand in
Dickinson, North Dakota, during October 2018, and that Ekstrand’s working and
living in Dickinson was not merely a “temporary absence” from Wisconsin. Prior
to her efforts to move to Wisconsin, North Dakota is where Ekstrand made her
home. While there was clearly a transitory period in which Ekstrand formed the
intent to move to Wisconsin and began taking the necessary steps to do so, we
cannot conclude—even under the “totality of the circumstances” test proposed by
Ekstrand—that Brooke “lived” with Ekstrand in Wisconsin for at least six
consecutive months immediately preceding the commencement of the paternity
action in this state. The circuit court properly determined North Dakota was
Brooke’s “home state” for purposes of WIS. STAT. ch. 822.

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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