author: PER CURIAM

text:
    2001 SD 58
    STATE of South Dakota, Plaintiff and Appellee, v. Troy Martin VERHOEF, Defendant and Appellant.
    Nos. 21480, 21481, 21482, 21483, 21484.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2001.
    Decided May 16, 2001.

      Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Philip R. Parent, Madison, SD, Attorney for defendant and appellant.
   PER CURIAM

[¶ 1.] Troy Martin Verhoef appeals from a judgment of conviction on five counts of sexual contact with a child under sixteen, SDCL 22-22-7. We affirm.

FACTS

[¶ 2.] On November 18, 1999, eleven-year-old AV was “tired of it” and told her mother that her father, Verhoef, made her touch his penis and rub it up and down until yellow stuff he called sperm came out. He did so because “mom wasn’t helping him” and always asked AV “Do you think I’m a bad father?” when finished. The incidents made her afraid and she worried that “I wouldn’t be able to see my daddy” if she did not do what he asked. The encounters mainly took place when Verhoef had been drinking and using pornography. They took place in the family home and that of a friend when AV’s mother was working nights.

[¶ 3.] According to AV, the first incident occurred in February 1999 within two weeks of their move to Madison on Valentine’s Day. AV thought that her mother was at work at a casino at this time. While it was established that her mother did not begin working at the casino until March 14, 1999, she did work nights at a restaurant/bar in February.

[¶ 4.] AV testified that in March 1999, Verhoef awakened her, undressed her, and had her “help him” ejaculate in the filled bathtub he had them sit in. More touching took place in April 1999, during AV’s softball practice. The same kind of touching occurred in October 1999 a few days before a meeting between AV and her school counselor. The final incident occurred on November 18, 1999 when Ver-hoef crawled into bed with AV and tried to force her hand “down there.” She resisted touching his penis with her hand, although it did touch her leg.

[¶ 5.] At Verhoefs jury trial, the jury was selected by the “strike down” method provided in SDCL 23A-20-3. Thirty-two potential jurors were questioned. Of these, twenty had heard of the case. Ver-hoef did not challenge these for cause on this basis, although three were excused after he challenged them for cause for other reasons.

[¶ 6.] Potential juror Orton testified she knew AV from Sunday school. She also knew Verhoef and his mother. She considered herself friends “with both sides.” However she stated she would try to set her personal feelings aside and be fair and impartial.

[¶ 7.] Potential juror Muellenberg testified she had strong feelings about sexual abuse of children. She stated she “would make a big effort” to impartially act as a juror but “I’m not a hundred percent sure that I can.”

[¶ 8.] Verhoef challenged both Orton and Muellenberg for cause. The trial court denied both challenges. Thereafter Verhoef removed both by use of peremptory challenges. Because a strike down method was used, Verhoef exercised all his peremptory challenges.

ISSUE ONE

[¶ 9.] Did the trial court err by denying Verhoef s request to remove Orton and Muellenberg for cause?

[¶ 10.] Verhoef claims he suffered actual prejudice since he utilized peremptory challenges on Orton and Muellenberg that could have been used on other people impaneled on the jury.

[¶ 11.] Pursuant to SDCL 23A-20-13.1, challenges for cause may be taken on the following grounds:

⅝ ⅝ ¾*
(11) The prospective juror has knowledge of some or all of the material facts of the case, and has an unqualified opinion or belief as to the merits of the case.
(12) The prospective juror has a state of mind evincing enmity against, or bias to or against an attorney, the defendant, the prosecution, the alleged victim or complainant in the case.
⅜ * ⅜
(21) A challenge for actual bias showing the existence of a state of mind on the part of a prospective juror, in reference to the case or to the defendant, the prosecution, alleged victim, or complainant that satisfies the court, in the exercise of sound discretion, that the juror cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.

[¶ 12.] The trial court has the primary responsibility to make certain that a fair and impartial jury has been selected for a defendant’s trial. State v. Etzkom, 1996 SD 99, 552 N.W.2d 824.

The mere expression of a predetermined opinion regarding guilt during voir dire does not disqualify a juror per se. State v. Hansen, 407 N.W.2d 217, 220 (S.D.1987); [State v.] Muetze, 368 N.W.2d at [575] 585 [ (S.D.1985) ]. A potential juror should be excused for cause if that juror is unable to set aside preconceptions and render an impartial verdict. Hansen, 407 N.W.2d at 220; Muetze, 368 N.W.2d at 585.

State v. Darby, 1996 SD 127, ¶ 34, 556 N.W.2d 311, 320. A trial court has broad discretion in determining juror disqualification. State v. Daniel, 2000 SD 18, 606 N.W.2d 532. To reverse a trial court’s decision to refuse to excuse a juror for cause, actual, material prejudice must be shown. Id.

[¶ 13.] A review of the voir dire of Orton and Muellenberg shows no abuse of discretion in the trial court’s refusing to excuse them for cause. While Orton had heard about the case and was acquainted with Verhoef, AV and her grandmother, she said that she could be “fan* and impartial as far as the case.” Similarly, Muel-lenberg, who had strong feelings about the type of case, distinctly said that she did not know the facts of the case and had not made up her mind about it. “Although a potential juror may express a predetermined opinion during voir dire, once she has declared under oath that she can act fair and impartial, she should not be disqualified as a juror.” State v. Knoche, 515 N.W.2d 834, 840 (S.D.1994). Consequently, the trial court did not abuse its discretion in refusing to remove these two jurors for cause.

[¶ 14.] In addition to failing to prove error concerning Orton and Muel-lenberg, Verhoef failed to prove prejudice. State v. Daniel, 2000 SD 18 at ¶ 17, 606 N.W.2d at 535. To prevail, he must establish both. In Etzkom, this Court held that the trial court erred when it improperly failed to excuse two potential jurors for cause for failure to set aside preconceptions about the case. Although they were subsequently removed by the defendant by peremptory challenges, we held constitutional prejudice existed because if these jurors had been properly excused for cause, Etzkorn could have used his final two peremptories on other potential jurors he did not want to sit on his case.

[¶ 15.] However, in Darby, we affirmed where the defendant was forced to use peremptory challenges to excuse four potential jurors when the trial court refused to excuse them for cause. We did so because we found no abuse of discretion by the trial court in its denial of an excuse for cause but moreover because “Darby has failed to show the twelve jurors who actually heard the evidence and convicted him based upon that evidence were not impartial.” 1996 SD 127 at ¶43, 556 N.W.2d at 322.

[¶ 16.] Subsequently in Daniel the trial court refused to excuse for cause a potential juror who arguably admitted he could not be impartial. However that issue was deemed not to be determinative because:

It is not error alone that reverses judgments of convictions of crime in this state but error plus injury. SDCL 23A-44-14. Potential juror No 52H was removed by peremptory challenge and did not sit as a juror. There is no showing that those who did sit and rendered a verdict did so in an improper manner. [State v.] Garza 1997 SD 54 at ¶ 14-16, 563 N.W.2d {406] at 409-10 [ (1997) ]. Because there is no prejudice established under this record, we affirm.

2000 SD 18 at ¶ 17, 606 N.W.2d at 535.

[¶ 17.] Our most recent examination of the issue is State v. Moeller, 2000 SD 122, 616 N.W.2d 424. While acknowledging our prior decision in Etzkorn, we declared:

We find no just cause that would have warranted the removal of any of the challenged jurors. However, were we to find the trial court erred in failing to remove a potential juror for cause, we would still reject Moeller’s argument that the failure to remove the challenged jurors forced him to exhaust his peremptory challenges. The United States Supreme Court recently held that if a defendant elects to cure the erroneous refusal of a trial judge to dismiss a potential juror for cause by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any right under the Federal Rules of Criminal Procedure or the Constitution. United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).

2000 SD 122 at ¶ 47 n. 8, 616 N.W.2d at 441 n. 8. The foundation of the Court’s ruling in Martinez-Salazar was that peremptory challenges to prospective jurors are not by themselves constitutional issues but rather “are one means to achieve the constitutionally required end of an impartial jury.” 528 U.S. at 307, 120 S.Ct. at 777,145 L.Ed.2d at 798.

[¶ 18.] Under the facts before us, Martinez-Salazar clearly sets aside Etzkorn as to any claim of a denial of a federal constitutional right, be it due process or Sixth Amendment trial rights. Moeller, Id. Although South Dakota constitutional and statutory rights were a further basis for the holding in Etzkorn, Verhoef offers no convincing argument why these state rights are to be interpreted in a different manner than the corresponding federal constitutional guarantees. Based on the above analysis, we hold that Moeller, Daniel and Darby now set forth the applicable law on this issue in this state.

[¶ 19.] Verhoef has failed to show that the twelve jurors who heard the evidence and convicted him based upon that evidence were not impartial. State v. Darby, 1996 SD 127 at ¶43, 556 N.W.2d at 321. While he points to eight jurors who heard about the case, all eight said that they did not have an opinion one way or another on the case.

[¶ 20.] Consequently, the trial court did not err by denying Verhoefs request to remove Orton and Mullenberg for cause.

ISSUE TWO

[¶ 21.] Did the trial court err by denying Verhoefs motion for judgment of acquittal?

[¶ 22.] At the close of the State’s case, Verhoef moved for judgment of acquittal on the six counts. The trial court granted the motion regarding an alleged incident in May 1999 but denied it regarding incidents alleged in February, March, April, October and November. Verhoef claims the evidence was insufficient to sustain the convictions since AV’s testimony regarding the dates conflicted with the dates she told the investigating officer, who also testified. In addition, he contends that there is no evidence that his penis touching her leg on November 18, 1999 was done for sexual gratification.

The standard of review for denial of a motion for judgment of acquittal is whether the “evidence was sufficient to sustain the convictions.” [State v.] Larson 1998 SD 80 at ¶ 9, 582 N.W.2d [15] at 17. “When reviewing sufficiency of the evidence, this [C]ourt, considers the evidence in a light most favorable to the verdict.” [State v.] Jones, 521 N.W.2d [662] at 672-3 [ (S.D.1994) ] (citing State v. Blalack, 434 N.W.2d 55, 59 (S.D.1988)). “A guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” Id. at 673 (quoting Blalack, 434 N.W.2d at 60). “We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence.” State v. White, 1996 SD 67 ¶ 24, 549 N.W.2d 676, 682 (citing State v. Andrews, 393 N.W.2d 76, 80 (S.D.1986); State v. Blakey, 332 N.W.2d 729, 731 (S.D.1983)).

State v. Karlen, 1999 SD 12 ¶ 49, 589 N.W.2d 594, 605.

[¶ 23.] There was some discrepancy between the dates of the incidents AV testified to and those the investigating officer testified AV told him. In addition, there was confusion over where AV’s mother worked in February, but no conflict over the fact that she worked at night, whether it be at a bar or a casino. In any event, conflicts in evidence and credibility of witnesses are matters for the jury, not this court. Karlen, 1999 SD 12 at ¶ 49, 589 N.W.2d at 605.

[¶ 24.] In addition, in viewing the evidence in the light most favorable to the verdict, it is apparent that the evidence was sufficient. AV testified in graphic detail about sexual incidents that no child that age should know. She was able to link the incidents to specific events occurring in various months of the year. In addition, Verhoefs claim that his penis touching AV’s leg was inadvertent is disingenuous. He entered his daughter’s bed where she was asleep, naked from his waist to his ankles, pleaded with her to help him, and tried to push her hands to his penis where it touched her leg.

[¶ 25.] We affirm.

[¶ 26.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, participating.

      . In Martinez-Salazar, the government on appeal conceded that failure of the trial court to remove the potential juror for cause was an abuse of discretion. 528 U.S. at 309, 120 S.Ct. at 778, 145 L.Ed.2d at 799.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    Upon the Petition of Karna Leigh JORGENSEN, Appellee, and Concerning Maurice Joseph Vargas, Appellant.
    No. 98-1385.
    Supreme Court of Iowa.
    March 21, 2001.
    Rehearing Denied May 30, 2001.

      Maurice J. Vargas, Babylon, NY, pro se.

      Diane L. Dornburg, Des Moines, for ap-pellee.
   LAVORATO, Chief Justice.

Maurice Joseph Vargas appealed from a district court judgment modifying a custody provision of a New York judgment of divorce from Kama Leigh Jorgensen. Vargas contended that, under Iowa Code chapter 598A (1997), the Uniform Child Custody Jurisdiction Act (UCCJA), the Iowa district court lacked subject matter jurisdiction to modify the New York judgment. We transferred the case to the court of appeals, which reversed and dismissed Jorgensen’s application for modification. On further review, we vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts and Proceedings.

Maurice and Kama were married in California on August 1, 1985. The following month the couple moved to New York. Their child, Isaiah, was born on December 10,1989.

In July 1992, Kama left Maurice. She and Isaiah came to Iowa, where Kama was born and graduated from high school. A month later, Kama and Isaiah returned to New York, where they stayed in a shelter for a brief time. In October, mother and son stayed with a friend before returning home to Maurice.

In January 1993, Kama and Isaiah— with Maurice’s knowledge — moved to Iowa, where Kama and Isaiah have resided ever since.

Meanwhile, in November 1993, Maurice filed for divorce in the Supreme Court of New York, County of Dutchess. Prior to that time, in September 1993, he filed a petition for custody in the Family Court of New York, County of Dutchess. The parties reached a settlement of the divorce action and entered into a stipulation providing for joint legal custody of Isaiah with a schedule specifying visitation in alternating periods of time.

On May 25, 1994, the New York Supreme Court entered a judgment of divorce that embodied the stipulation. A week later, the Family Court issued a decision on Maurice’s September 1993 petition for custody, finding that (1) New York was not the child’s home state at the time Maurice commenced the action in that court, and (2) Iowa was the child’s home state. Concluding it had no subject matter jurisdiction, the Family Court dismissed Maurice’s custody petition.

When the judgment of divorce was entered, Kama and Isaiah resided in Iowa. The stipulation expressly stated that Kar-na resided in Iowa.

From June 1994 to October 1994, Isaiah was in New York with Maurice. From the end of October to mid-December 1994, Isaiah was with Kama in Iowa. From December 1994 until May 1995, the child was with Maurice in New York, and then with his mother in Iowa from June to September 1995.

In early September, Isaiah was with his father in New York. At this time, Isaiah entered kindergarten. In April 1996, Isaiah traveled with his father to the Philippines. They returned to New York, where Isaiah completed kindergarten in June 1996. After he completed kindergarten, Isaiah returned to Iowa with his mother.

Except for a visit with his father in New York from May to August of 1997, Isaiah lived continuously with Kama in Iowa from June 1996 to June 1998. The child completed first and second grades in Des Moines. On June 2, 1998, Maurice took Isaiah to New York. At the time of trial, Isaiah was in New York, but he had not attended school in New York in over two years.

Isaiah received most of his medical care in Iowa, he was involved in school and church activities in Iowa, and he saw a counselor in Des Moines.

On January 14, 1998, Kama commenced the present action to modify the New York judgment of divorce. She asked the court to provide for (1) joint legal custody of Isaiah to the parties with primary physical care to Kama, (2) supervised visitation to Maurice, and (3) Maurice to pay child support to Kama. Maurice moved to dismiss the application, alleging lack of subject matter jurisdiction under the UCCJA. The district court, Judge Scott Rosenberg, overruled Maurice’s motion to dismiss.

Following a hearing on Kama’s modification application, Kama moved to amend to conform to the evidence. She contended the New York custody order was invalid because New York did not have subject matter jurisdiction to determine Isaiah’s custody.

District Judge Robert A. Hutchison ruled that the Iowa district court had jurisdiction to modify the New York custody order. The court declined to rule on Kar-na’s motion to conform to evidence. Instead, the court assumed — for the purposes of its ruling — that the New York judgment of divorce was valid in all respects and that the New York court had subject matter jurisdiction to enter the custody order. The court then modified the New York judgment of divorce, placing primary physical care of Isaiah with Kama and providing for a schedule of visitation for Maurice. The court also ordered Maurice to pay Kama child support in the amount of $345.39 per month.

On appeal, Maurice contended the district court- erred in failing to conclude that it lacked subject matter jurisdiction to hear the custody dispute under Iowa’s UC-CJA. He also asserted that the child custody jurisdictional provisions of 28 U.S.C. § 1738A (1994), the Parental Kidnapping Prevention Act (PKPA), had not been satisfied, thereby additionally precluding the district court from proceeding to the merits of the case.

The court of appeals first ruled that the New York Supreme Court had jurisdiction to enter the custody order because the parties had agreed that the New York court should decide the issue of Isaiah’s custody. The court concluded that Iowa may have been Isaiah’s home state under Iowa Code sections 598A.2 and .3 at the time Kama filed her application to modify the New York custody order. The court nevertheless concluded that this was insufficient to confer jurisdiction on the Iowa district court to modify the custody order. Rather, the court determined that the jurisdictional requirements in Iowa Code section 598A.14, the continuing jurisdiction provision, applied and had not been satisfied. For this reason, the court dismissed the case.

We granted Kama’s application for further review. The sole issue on further review is whether the district court had subject matter jurisdiction to modify the New York custody order.

II. Jurisdiction of the Iowa District Court.

The UCCJA and the PKPA set forth the jurisdictional requirements with regard to a custody determination. Whether those jurisdictional requirements have been met is a question of subject matter jurisdiction. St. Clair v. Faulkner, 305 N.W.2d 441, 445 (Iowa 1981). The question whether a court has subject matter jurisdiction may be raised at any time and is not waived even by consent. Id. We determine subject matter jurisdiction issues even though the parties have not raised them. Id. Additionally, we examine the grounds for subject matter jurisdiction on our own motion before we proceed further. Id. When we determine subject matter jurisdiction is lacking, the only appropriate disposition is'to dismiss the custody petition. Id.

III. Scope of Review.

We give de novo review to questions of subject matter jurisdiction under the UCCJA and the PKPA however the issue comes before us. Id.

IY. Background.

Because this is an interstate custody dispute involving the UCCJA and the PKPA, we must initially determine whether the district court had subject matter jurisdiction to modify the New York custody order under both Acts. Before proceeding to the merits, we think some background discussion about how both statutes operate would be helpful in understanding this opinion.

A. Full faith and credit regarding custody orders. Article TV, section 1, of the Federal Constitution requires that each state give “Full Faith and Credit” to the “public Acts, Records, and judicial Proceedings of every other State,” and authorizes Congress to “prescribe the Manner in which such Acts, Records and proceedings shall be proved, and the Effect thereof.” U.S. Const. Art. IV, § 1. However, “custody orders [have] held a peculiar status under the full faith and credit doctrine.” Thompson v. Thompson, 484 U.S. 174, 180, 108 S.Ct. 513, 516, 98 L.Ed.2d 512, 520 (1988). Because “custody orders characteristically are subject to modification as required by the best interests of the child ... some courts [have] doubted whether custody orders were sufficiently ‘final’ to trigger full faith and credit requirements.” Id.

However,

[e]ven if custody orders were subject to full faith and credit requirements, the Full Faith and Credit Clause obliges States only to accord the same force to judgments as would be accorded by the courts of the State in which the judgment was entered. Because courts entering custody orders generally retain the power to modify them, courts in other States were no less entitled to change the terms of custody according to their own views of the child’s best interest. For these reasons a parent who lost a custody battle in one State had an incentive to kidnap the child and move to another State to relitigate the issue. This circumstance contributed to widespread jurisdictional deadlocks ... and more importantly to a national epidemic of parental kidnapping.

Id. at 180, 108 S.Ct. at 517, 98 L.Ed.2d at 521 (citations omitted).

“[I]n an effort to avoid these jurisdictional conflicts,” many states joined in the adoption of the UCCJA. Id. at 181, 108 S.Ct. at 517, 98 L.Ed.2d at 521. “The UCCJA was the first attempt at a comprehensive response to this problem and was meant, in part, to promote cooperation between the states and avoid jurisdictional competition and conflict between state courts in child custody matters.” Holm v. Smilowitz, 83 Ohio App.3d 757, 768, 615 N.E.2d 1047, 1054 (1992). The UCCJA was a “legislative response[ ] to problems with ‘interstate child snatching’ by parents seeking a favorable custody award in the forum of their choice thereby leading to ‘jurisdictional deadlocks’ among the states and a ‘national epidemic of parental kidnapping.’” Id. To alleviate these problems, “[t]he UCCJA prescribed uniform standards for deciding which State could make a custody determination and obligated enacting States to enforce the determination made by the State with proper jurisdiction.” Thompson, 484 U.S. at 181, 108 S.Ct. at 517, 98 L.Ed.2d at 521.

B.Iowa and the UCCJA. Iowa adopted the UCCJA in substantial form in 1977. See 1977 Iowa Acts ch. 189. Iowa’s version of the UCCJA is codified in Iowa Code chapter 598A. The stated purposes of chapter 598A mirror those of the UCCJA and are found in Iowa Code section 598A.1. At the time the present modification proceedings began, the Iowa Code provided that “[a]ll orders relating to custody of a child are subject to chapter 598A.” Iowa Code § 598.21(6).

Iowa Code section 598A.13 sets out the standards for determining when the courts of this state must recognize out-of-state custody decrees. It provides:

The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this chapter, or which was made under factual circumstances meeting the jurisdictional standards of this chapter, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this chapter.

Iowa Code § 598A.13.

Iowa Code section 598A.3 provides four alternative bases for conferring subject matter jurisdiction in a child custody dispute. They can be summarized as (1) home state jurisdiction, (2) best-interest and significant-connection jurisdiction, (3) emergency jurisdiction, and (4) a catchall provision allowing a court to exercise jurisdiction if no other state would have jurisdiction under the first three types of jurisdiction or if another state with jurisdiction had declined to exercise its jurisdiction. See Iowa Code § 598A.3.

C. Problems with the UCCJA. As it turned out, the UCCJA provided an imperfect remedy. Wilson v. Gouse, 263 Ga. 887, 888, 441 S.E.2d 57, 59 (1994). As the United States Supreme Court has explained:

The project foundered, however, because a number of States refused to enact the UCCJA while others enacted it with modifications. In the absence of uniform national standards for allocating and enforcing custody determinations, noncustodial parents still had reason to snatch their children and petition the courts of any of a number of haven States for sole custody.

Thompson, 484 U.S. at 181, 108 S.Ct. at 517, 98 L.Ed.2d at 521.

As one court similarly expressed,

a number of states adopted differing versions of the [UCCJA] or gave varying interpretations of its requirements. This led to the rise of concurrent jurisdiction in several states, which, in turn, engendered further state conflict and encouraged forum shopping.

Holm, 615 N.E.2d at 1054 (citation omitted).

D. The PKPA. In an effort to remedy these continuing full-faith-and-credit problems, Congress enacted the PKPA of 1980. See Thompson, 484 U.S. at 181, 183, 108 S.Ct. at 517, 518, 98 L.Ed.2d at 521, 522 (concluding that “[t]he context of the PKPA ... suggests that the principal problem Congress was seeking to remedy was the inapplicability of full faith and credit requirements to custody determinations” and that “Congress’ chief aim in enacting the PKPA was to extend the requirements of the Full Faith and Credit Clause to custody determinations”).

Congress designed the PKPA to promote “interstate cooperation, interstate enforcement of custody decrees and the avoidance of jurisdictional competition and conflict.” Holm, 615 N.E.2d at 1054. The PKPA “put[s] in place a uniform federal statute which provides clear guidelines for determining jurisdiction over interstate child custody disputes.” Wilson, 441 S.E.2d at 60; see also Shute v. Shute, 158 Vt. 242, 246, 607 A.2d 890, 893 (1992) (“The PKPA established national standards for determining subject matter jurisdiction over custody matters.”). A court should consider the PKPA whenever it must decide “ ‘which of two or more states has jurisdiction to decide a custody dispute.’ ” McDow v. McDow, 908 P.2d 1049, 1052-53 (Alaska 1996) (quoting Greenlaw v. Smith, 123 Wash.2d 593, 604, 869 P.2d 1024, 1031 (1994)).

“The PKPA imposes a duty on the States to enforce a child custody determination entered by a court of a sister State if that determination was made consistently with the provisions of the Act.” Thompson, 484 U.S. at 175-76, 108 S.Ct. at 514, 98 L.Ed.2d at 517-18.

To be consistent with the provisions of the PKPA, a “State must have jurisdiction under its own local law and one of five conditions set out in section 1738A(c)(2) must be met.” Id. at 176-77, 108 S.Ct. at 515, 98 L.Ed.2d at 518; see 28 U.S.C. § 1738A(c).

Briefly put, these conditions authorize the state court to enter a custody decree if the child’s home is or recently has been in the State, if the child has no home State and it would be in the child’s best interest for the State to assume jurisdiction, or if the child is present in the State and has been abandoned or abused.

Thompson, 484 U.S. at 177, 108 S.Ct. at 515, 98 L.Ed.2d at 518; see 28 U.S.C. § 1738A(c)(2).

Where a State has exercised jurisdiction consistently with the provisions of the PKPA,

no other State may exercise concurrent jurisdiction over the custody dispute ... even if it would have been empowered to take jurisdiction in the first instance and all States must accord full faith and credit to the first State’s ensuing decree.

Thompson, 484 U.S. at 177, 108 S.Ct. at 515, 98 L.Ed.2d at 518-19 (footnote omitted).

However, 28 U.S.C. § 1738A(f) provides an exception to this uniform rule of enforcement. See Thompson, 484 U.S. at 177 n. 2, 108 S.Ct. at 515 n. 2, 98 L.Ed.2d at 518 n. 2. Under 28 U.S.C. § 1738A(f),

[a] court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

28 U.S.C. § 1738A(f).

The jurisdictional requirements of the PKPA and the UCCJA are essentially the same, with one crucial exception: “[T]he PKPA prefers home state jurisdiction over significant connection jurisdiction.” J.D.S. v. Franks, 182 Ariz. 81, 88, 893 P.2d 732, 739 (1995). We recognized the similarity of the PKPA with Iowa Code chapter 598A in In re Guardianship of T.H., 589 N.W.2d 67, 68 (Iowa 1999). In that case, we acknowledged that both “cover the same ground and proceed from the same premise.” T.H., 589 N.W.2d at 68. That premise is that “a state court should not modify the decree of another state unless the other state no longer retains jurisdiction in the matter.” Id.

We also have acknowledged the preemptive nature of the PKPA with respect to state law in determining “when jurisdiction may be exercised in interstate custody matters.” In re Marriage of Leyda, 398 N.W.2d 815, 819 (Iowa 1987). That the jurisdictional requirements of the PKPA preempt state law, at least when there is a conflict, apparently remains the consensus on this matter. See, e.g., Rogers v. Rogers, 907 P.2d 469, 471 (Alaska 1995); In re Adoption of Child by T.W.C., 270 N.J.Super. 225, 233, 636 A.2d 1083, 1088 (1994); In re A.E.H., 161 Wis.2d 277, 320, 468 N.W.2d 190, 208 (1991).

In exercising initial jurisdiction, a state need not comply with the PKPA. See J.D.S., 893 P.2d at 739; Anne B. Goldstein, The Tragedy of the Interstate Child: A Critical Reexamination of the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, 25 U.C. Davis L.Rev. 845, 925 (1992) (stating that, as a federal law, the PKPA does not grant or withhold jurisdiction, but only specifies which state decrees are entitled to enforcement). A state, however, as a practical matter, must comply with the PKPA if it wishes other states to give full faith and credit, by virtue of federal statutory law, to its custody decree. J.D.S., 893 P.2d at 739. This has been referred to as the “coercive effect of the PKPA on the jurisdictional choices” available to states. Columb v. Columb, 161 Vt. 103, 107, 633 A.2d 689, 692 (1993). As the court in Columb explained:

[A] home state custody order issued in direct conflict with a Vermont order [issued without the full-faith-and-credit protection of the PKPA] would be entitled to full faith and credit in other states and, by virtue of the PKPA, in Vermont. Thus, if Vermont moves to assert jurisdiction when its order is not entitled to full faith and credit, the mother has every incentive to start a proceeding in Utah and refuse to comply with any Vermont order. To ignore these realities is likely to entangle this child in a web of proceedings satisfactory to no one.

Id.

For these reasons, the court in Columb concluded:

Although the PKPA does not preempt the UCCJA [in initial custody determinations], we construe the UCCJA consistent with the policies of the PKPA to avoid any conflict. The practical significance of this holding is that the home-state preference of the PKPA applies in initial custody determinations as well as in modification or enforcement proceedings involving the courts of more than one state. If a child has a home state other than Vermont at the relevant time periods, ordinarily the Vermont courts will lack subject matter jurisdiction over the custody proceeding.

Id. at 693.

V. Does the PKPA Apply in This Case?

We must determine whether the PKPA applies in this case. If we conclude the PKPA does not apply, Iowa is not required under the PKPA to give New York’s custody order full faith and credit.

As mentioned, the PKPA provides that

[t]he appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.

28 U.S.C. § 1738A(a) (emphasis added).

A. Whether the dispute involves an initial decree or modification of an existing decree. The italicized language makes clear that the application of the PKPA hinges on two questions. First, does the dispute involve an initial custody order or modification of an existing custody order?

As mentioned, the PKPA only governs the enforceability of one state’s custody order in another state and the other state’s power to modify that order. The Act does not “purport to control jurisdiction to issue an initial order.” Columb, 633 A.2d at 692; see also J.D.S., 893 P.2d at 739 (“A state need not comply with the PKPA to exercise initial jurisdiction.”); Holm, 615 N.E.2d at 1053 (holding that PKPA is controlling only when there is a conflict between states); In re Marriage of Murphy, 90 Wash.App. 488, 495, 952 P.2d 624, 628 (1998) (“If a custody decree does not already exist ... the [PKPA] has no application.”); In re Marriage of Davidson, 169 Wis.2d 546, 555, 485 N.W.2d 450, 453 (Wis.Ct.App.1992) (holding that “compliance with the PKPA will not become an issue in a Wisconsin court unless a child custody determination by a court of another state is attacked or sought to be modified in a Wisconsin court”; court concluded that, because proceeding was an initial custody proceeding rather than a modification proceeding, state law, not the PKPA, was controlling).

The present dispute satisfies the first question because the dispute involves the modification of an existing order, not the issuance of an initial custody order.

B. Whether the New York custody order was made consistently with the provisions of the PKPA. The second question is whether the existing New York custody order was made consistently with the provisions of the PKPA. This determination is necessary because whether a state’s “child custody determination” is consistent with the provisions of the PKPA is “a precondition to [the] Act’s direction that the determination not be modified by any other state.” In re Marriage of Michalik, 164 Wis.2d 544, 551, 476 N.W.2d 586, 589-90 (Wis.Ct.App.1991); see also Glanzner v. State, 835 S.W.2d 386, 391 (Mo.Ct.App.1992) (“Under the PKPA, California would be required to give full faith and credit to the Missouri decree because the Missouri proceedings comply with the PKPA.”).

Therefore, if a custody order was not entered consistently with the PKPA, such order would not under the PKPA be entitled to full faith and credit in another state. See Atkins v. Atkins, 308 Ark. 1, 3, 823 S.W.2d 816, 819 (1992) (“[I]f a custody decree fails to conform to the requirements of the PKPA, it will not be entitled to full faith and credit in another state.”).

Was the New York custody order entered consistently with the terms of the PKPA? A child custody determination made by a court of a state is consistent with the provisions of the PKPA only if

(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B) (i) it appears that no other State would have jurisdiction under subpara-graph (A), and (ii) it is in the best interests of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D) (i) it appears that no other State would have jurisdiction under subpara-graph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

28 U.S.C. § 1738A(c); see Matthews, 649 A.2d at 235 (“Under subsection (c) of the Act, a custody determination is consistent with the PKPA if two requirements are fulfilled. First, the issuing court must have jurisdiction under state law.... Second, one of the five conditions listed in PKPA subsection (c)(2) must be met.”).

For purposes of our analysis, we will assume that when Maurice filed for divorce in November 1993, the New York Supreme Court had subject matter jurisdiction under its own laws to enter the custody order. (Later in this opinion, we find such jurisdiction was lacking.) However, for reasons that follow, we find that, when Maurice filed for divorce in November 1993, none of the five conditions listed in PKPA subsection (c)(2) were met.

The PKPA defines “home State” to mean “the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months.... Periods of temporary absence of any of such persons are counted as part of the six-month or other period.” 28 U.S.C. § 1738A(b)(4).

As mentioned, in January 1993, following a period of marital difficulty, Karna and Isaiah moved to Iowa. Except for two visits to Maurice from May 4,1993, to June 6, 1993, and from August 15, 1993, to September 24, 1993, Isaiah remained in Iowa with Karna until June 1994. Additionally, the stipulation that the parties executed on May 8, 1994, states that Kar-na was residing at 2555-53rd Ct., Des Moines, Iowa. Therefore, Isaiah resided in Iowa approximately ten months before Maurice filed for divorce in New York in November 1993. We find that Iowa, not New York, was Isaiah’s home state at the time Maurice filed for divorce in November 1993.

Further support for our finding is the Family Court’s decision filed a week after the divorce decree was entered. The Family Court found that Iowa, not New York, was the child’s home state when Maurice filed a petition for custody in September 1993. Nothing occurred between September 1993 and November 1993, when Maurice filed for divorce, to change that status.

For these reasons, we conclude the New York custody order does not satisfy the “home state” condition of subsection (c)(2)(A) because New York was not Isaiah’s home state “at the commencement of the proceeding.”

Nor does (c)(2)(B) apply. This subsection essentially provides that a custody order is consistent with the PKPA if, in entering the decree, the best interests of the child demanded that the decretal state assume jurisdiction because, among other things, the child and a contestant had “significant connection” with the decretal state. However, subsection (c)(2)(B) applies only when “it appears that no other state would have jurisdiction under [subsection (c)(2)(A).]” — the home state requirement. 28 U.S.C. § 1738A(c)(2)(B)(i). As mentioned, Iowa, not New York, was Isaiah’s home state when Maurice filed for divorce in November 1993.

Nor is the condition in subsection (c)(2)(C) satisfied. There is nothing in the record to suggest that Isaiah had been “abandoned” or that he “had been subjected to or threatened with mistreatment or abuse.”

We are left with subsections (c)(2)(D) and (E). According to subsection (c)(2)(D), a child custody determination by a court of a State is consistent with the PKPA if

(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction.

28 U.S.C. § 1738A(e)(2)(B). This subsection does not apply because a state other than New York, i.e., Iowa, was Isaiah’s home state. Nor had a state declined jurisdiction on the ground that New York was the more appropriate forum to determine custody of Isaiah.

Obviously, subsection (c)(2)(E) does not apply because this provision only applies in situations in which a court has already entered a custody order and a party seeks to modify that custody order in another state. The New York custody order was an initial custody order.

Because none of the conditions in 28 U.S.C. § 1738A(c)(2) has been met, we conclude the New York decree was not a child custody determination made consistent with the provisions of the PKPA. For that reason, the provisions of the PKPA, which require Iowa to give full faith and credit to the New York custody order, do not apply. Therefore, the Iowa district court here was not required by the PKPA to give the New York custody order full faith and credit.

VI. Does Iowa Law Require the Iowa District Court to Give the New York Custody Order Full Faith and Credit?

Although the PKPA does not require the Iowa district court to accord full faith and credit to the New York custody order, that does not necessarily mean the Iowa district court is free to ignore it or not to enforce it. Whether the Iowa district court is permitted to do either still depends on state law. As one court noted,

[h]aving concluded that neither the Full Faith and Credit Clause nor the provisions of the [PKPA] foreclosed the exercise of jurisdiction by the district court in Wyoming, we still must consider ivhether the exercise of that jurisdiction was precluded under some provision of Wyoming law.

Quenzer v. Quenzer, 653 P.2d 295, 301 (Wyo.1982) (emphasis added); see Davidson, 485 N.W.2d at 453 (upon concluding that the PKPA did not apply to initial custody proceeding, court turned to state law to determine jurisdiction to hear interstate custody dispute).

As mentioned, at the time the present modification proceedings began, Iowa Code section 598.21(6) provided that “[a]ll orders relating to custody of a child are subject to chapter 598A,” Iowa’s version of the UCCJA. “It is therefore necessary that all jurisdictional requirements under chapter 598A be met where that chapter is applicable to a proceeding to modify a custody decree.” Pierce v. Pierce, 287 N.W.2d 879, 882 (Iowa 1980). Clearly, chapter 598A applies to Kama’s application to modify the New York custody order.

As we also mentioned, Iowa Code section 598A.13 governs whether the Iowa district court was required to give the New York custody order full faith and credit. See O’Neal v. O’Neal, 329 N.W.2d 666, 667 (Iowa 1983). Iowa Code section 598A.14 governs the district court’s authority to modify an out-of-state custody decree. Id.

Iowa Code section 598A.13 provides:

The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which has assumed jurisdiction under statutory provisions substantially in accordance with this chapter, or which was made under factual circumstances meeting the jurisdictional standards of this chapter, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this chapter.

Iowa Code § 598A.13 (emphasis added).

Whether the Iowa district court must recognize and enforce an out-of-state custody order pursuant to section 598A.13 depends on a finding from the evidence that the other state had subject matter jurisdiction to enter the original decree. See O’Neal, 329 N.W.2d at 667-69; see also In re Adoption of C.L.W., 467 So.2d 1106, 1109 (Fla.Dist.Ct.App.1985) (interpreting statute identical in language to Iowa Code section 598A.13); In re Wilber, 136 A.D.2d 786, 787, 523 N.Y.S.2d 249, 250 (1988) (same). This determination in turn depends on whether the other state, here, New York, acquired subject matter jurisdiction according to the UCCJA as adopted by that state. See D.B. v. P.B., 692 So.2d 856, 860 (Ala.Civ.App.1997) (holding that pursuant to UCCJA, Alabama court must recognize and enforce valid custody judgment of another state; only if foreign court did not have jurisdiction under its own law to decide issue of custody is its judgment not entitled to full faith and credit); C.L.W., 467 So.2d at 1110. Therefore, we must decide whether the New York court acquired subject matter jurisdiction to determine custody according to the UCCJA as adopted by New York. In short, whether New York had jurisdiction depends on New York law.

At the time the New York custody order was entered, the UCCJA was in effect in New York. See N.Y. Dorn. Rel. Law §§ 75a-75z (McKinney 1988). Its version is substantially similar to Iowa’s. As mentioned, Iowa Code section 598A.3 governs the jurisdiction of the district court to decide child custody matters. The New York counterpart to Iowa Code section 598A.3 is New York Domestic Relations Law section 75-d. Section 75-d is identical to section 598A.3. Therefore, New York has subject matter jurisdictional “provisions substantially in accordance with” the provisions of chapter 598A. Additionally, the New York custody order has not been modified.

However, we find, for reasons that follow, that the New York court could not have assumed jurisdiction under New York law at the time Maurice filed his divorce action in November 1993. For that reason, the Iowa district court was not required to recognize and enforce the New York custody order. We therefore do not reach the issue of the district court’s jurisdiction to modify the New York custody decree pursuant to Iowa Code section 598A.14.

New York Domestic Relations Law section 75-d provides:

1.A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) this state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(b) it is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and the child’s parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(c) the child is physically present in this state, and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(d) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b), or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
2. Except under paragraphs (c) and (d) of subdivision one of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
3. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

N.Y. Dom. Rel. Law § 75-d (emphasis added).

New York Domestic Relations Law section 75-c(5) provides in part:

“Home state” means the state in which the child at the time of the commencement of the custody proceeding, has resided with his parents, a parent, or a person acting as a parent, for at least six consecutive months....

N.Y. Dom. Rel. Law § 75-d. Iowa Code section 598A.3 defines “home state” in substantially the same way.

Section 75-d(l)(a), (c), and (d) of the New York Domestic Relations Law is substantially similar in language to section 1738A(e)(2)(A), (C), and (D) of the PKPA. Additionally, the definition of “home state” in the New York Domestic Relations Law is substantially similar to the definition of “home state” in the PKPA. Our previous analysis under the PKPA leads us to conclude that, under New York law, Iowa not New York was Isaiah’s home state when Maurice filed for divorce in November 1993. Additionally, that analysis leads us to conclude that the provisions of section 75-d(l)(a), (c), and (d) of the New York law were not met when Maurice filed for divorce.

That leaves for our consideration section 75 — d(l)(b), the “significant connection” provision. The only difference between this provision and its counterpart in the PKPA is the additional language “it appears that no other State would have jurisdiction under [the home state provision]” found in subsection (c)(2)(B) of the PKPA. The New York courts generally appear to agree that, in an initial custody dispute, the child’s “home state” has exclusive jurisdiction when the “significant connection” provision in section 75-d(l)(b) is relied on to establish jurisdiction. See, e.g., Warshawsky v. Warshmosky, 226 A.D.2d 708, 709, 641 N.Y.S.2d 877, 879 (1996); Perri v. Mariarossi, 172 A.D.2d 671, 672, 568 N.Y.S.2d 637, 638 (1991); Michael P. v. Diana 156 A.D.2d 59, 64-65, 553 N.Y.S.2d 689, 692-93 (1990); see also Hahn v. Rychling, 258 A.D.2d 832, 835-36, 686 N.Y.S.2d 136, 140 (1999) (Mikoll, J.P., dissenting). This is because the language “it appears that no other State would have jurisdiction under [the home state provision]” found in subsection (c)(2)(b) of the PKPA is given preemptive effect over the jurisdictional options available under New York Domestic Relations Law section 75-d(l) by virtue of the Supremacy Clause of the Federal Constitution. See Michael P., 156 A.D.2d at 64-65, 553 N.Y.S.2d at 692-93. Because, according to New York law, the PKPA preempts the “significant connection” provision in section 75-d(l)(b), that provision is not available in an original custody dispute as a basis for jurisdiction if there is another home state. Id.

We conclude that under New York’s UCCJA and the interpretation given to it by the New York courts, the New York Supreme Court did not have subject matter jurisdiction to determine Isaiah’s custody. (Subsequent to the commencement of these proceedings, the Iowa legislature repealed Iowa Code chapter 598A, see 1999 Iowa Acts ch. 103, § 47, and adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See 1999 Iowa Acts ch. 103. The initial custody jurisdiction provisions of the UCCJEA track the language of the PKPA. Specifically, the UCCJEA allows a court to assume jurisdiction in an initial child custody determination on the basis of significant connection only if the child has no home state. See Unif. Child Custody Jurisdiction & Enforcement Act § 201, 9 U.L.A. 671 (1999) (codified at Iowa Code § 598B.201 (Supp.1999)).)

Apart from this analysis, we think there is an additional reason to support our conclusion that the New York Supreme Court did not have subject matter jurisdiction to determine Isaiah’s custody. The New York divorce judgment notes that Kama was in default. The court made no findings that it had subject matter jurisdiction under New York’s UCCJA to determine Isaiah’s custody. So essentially we have a default decree with no finding that the court had subject matter jurisdiction under New York’s UCCJA to determine Isaiah’s custody.

In these circumstances, we conclude the New York court did not assume jurisdiction over the custody determination in substantial conformity with the provisions of its UCCJA. See Iowa Code § 598A.13. Because the New York court had not properly assumed jurisdiction, the Iowa district court was not required to recognize and enforce the New York custody order pursuant to Iowa Code section 598A.13. See Brewington v. Serrato, 77 N.C.App. 726, 336 S.E.2d 444, 447 (1985) (applying the same reasoning).

The fact that Kama was a party to the divorce action and a party to the stipulation regarding custody does not alter our conclusion that the New York Supreme Court lacked subject matter jurisdiction to determine custody. The parties cannot confer, or consent to, such jurisdiction. See St Clair, 305 N.W.2d at 445; see also In re Marriage of Newsome, 68 Cal.App.4th 949, 956, 80 Cal.Rptr.2d 555, 559 (1998) (“Subject matter jurisdiction either exists or does not exist at the time the action is commenced. There is no provision in the UCCJA for jurisdiction by reason of presence of parties or by stipulation or consent.” (Citation omitted.)); Muller v. Muller, 43 Conn.App. 327, 333, 682 A.2d 1089, 1092 (1996) (rejecting argument that, in agreeing to a stipulation regarding visitation, parties implicitly consented to the exercise of subject matter jurisdiction; holding that “[o]nly the enabling legislation, in this case the UCCJA, can confer subject matter jurisdiction”); Murphy, 952 P.2d at 628 (holding that former wife’s stipulation to jurisdiction in dissolution proceeding's in another state did not establish that state’s subject matter jurisdiction under the UCCJA and did not oblige trial court to give full faith and credit to the custody provision of the dissolution decree entered by the foreign state); Gomez v. Gomez, 86 A.D.2d 594, 595, 446 N.Y.S.2d 127, 129 (1982) (holding in UCCJA proceeding that “subject matter jurisdiction is not waivable”).

The Family Court’s decision is an additional reason supporting our conclusion that the New York Supreme Court did not have subject matter jurisdiction to determine custody. The Family Court determined it did not have such jurisdiction at the time Maurice filed for custody in September 1993. The Family Court reached its conclusion after a thorough analysis under New York’s UCCJA. Although the Family Court’s decision was not rendered until a week after the judgment of divorce and custody order, the decision was the only New York determination in this case on custody under the New York UCCJA. There were no facts between September 1993, when Maurice petitioned for custody in the New York Family Court, and November 1993, when he filed for divorce in the New York Supreme Court, to alter that determination. Therefore, if the New York courts did not have subject matter jurisdiction in September 1993, those courts certainly did not have it when Maurice commenced the divorce action two months later. Maurice did not appeal from that ruling, so it was binding on him.

VII. Did the Iowa District Court Have Subject Matter Jurisdiction to Make a Custody Determination?

Because the New York Supreme Court did not have subject matter jurisdiction, we are not required by Iowa law to give its decree full faith and credit. Thus, what we have here is in essence a request by Kama to make an initial custody determination. The question is whether the Iowa district court has jurisdiction to make such a determination. See O’Neal, 329 N.W.2d at 669 (following refusal to recognize and enforce Arizona custody decree pursuant to Iowa Code section 598A.13, this court proceeded to determine whether the Iowa district court had subject matter jurisdiction to make custody determination). Whether the Iowa district court has jurisdiction to make an initial custody determination depends on whether any of the provisions of Iowa Code section 598A.3 are satisfied.

For reasons that follow, we find the Iowa district court does have subject matter jurisdiction to make an initial custody determination based on the “home state” provision found in Iowa Code section 598A.3, which provides:

1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child-custody determination by initial or modification decree if:
a. This state is the home state of the child at the time of commencement of the proceeding, or had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of the removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state.

Iowa Code § 598A.3.

The Iowa Code defines “home state” to mean

the state in which the child, immediately preceding the time involved, lived with the child’s parents, a parent, or a person acting as parent, for at least six consecutive months.... Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

Iowa Code § 598A.2(5).

Isaiah lived in Iowa from June 16, 1996, through the filing of the application to modify on January 14, 1998, interrupted only by a single, seventy-seven-day visit with Maurice in the summer of 1997. We find this visit fits within the “temporary absence” exception to the six-consecutive-month requirement in section 598A.2(5). Furthermore, Karna has continued to live in this state throughout these proceedings. We therefore find that the Iowa district court had subject matter jurisdiction to make a custody determination because, at the time Karna filed the application to modify on January 14, 1998, Iowa was Isaiah’s home state and because Karna has continued to live in Iowa.

As mentioned, what we now have is an initial custody determination because we are not affording full faith and credit to the New York custody order. The district court proceeded on the basis it was modifying the New York custody order. It therefore considered whether there had been a substantial change in circumstances as well as the best interests of the child. See In re Marriage of Hunnell, 398 N.W.2d 877, 878 (Iowa 1987). In making an initial custody determination, however, the district court employs only a best-interests-of-the-child standard. See In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). Therefore, the district court here employed a stricter standard than was necessary, so there was no prejudice to Maurice. After very detailed findings, the court found that Isaiah’s best interests required that Karna be the primary caretaker of the child.

In his appeal, Maurice does not challenge the standard the district court employed or the merits of the court’s best-interests determination. His only complaint is that the district court lacked subject matter jurisdiction to make a custody determination. For these reasons and because the district court had subject matter jurisdiction pursuant to Iowa Code section 598A.3 to make a custody determination, we will not determine custody anew. The district court’s decision on that issue stands.

VIII. Disposition.

In sum, we conclude that the New York custody order did not conform to the provisions of the PKPA. Therefore, the Iowa district court was not required to give the New York custody order full faith and credit under that statute. We further conclude the New York Supreme Court did not have subject matter jurisdiction to make the custody determination in this case. For that reason, Iowa Code section 598A.13 did not require the Iowa district court to recognize and enforce the New York custody order. Finally, we conclude the Iowa district court had subject matter jurisdiction pursuant to Iowa Code section 598A.3 to make a custody determination, a determination that we elect not to disturb.

Accordingly, we vacate the court of appeals decision and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.


text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Michael T. PRACHT, Respondent.
    No. 01-0190.
    Supreme Court of Iowa.
    May 31, 2001.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Rex J. Ridenour and Anton J. Suchy, Davenport, for respondent.
   LAVORATO, Chief Justice.

In this lawyer disciplinary proceeding, we review the Grievance Commission’s recommendation that Michael T. Pracht’s license to practice law in Iowa be suspended for two years. The recommended suspension is for Pracht’s violations of DR 1-102(A)(4), (5), and (6) stemming from his unauthorized removal of court document filing system records from the Scott County District Court Clerk’s office. Upon our de novo review, we agree with the commission that a two year suspension is warranted.

I. Facts.

The facts in this case are for the most part undisputed. Michael “Mick” Pracht practices law in Davenport. He has practiced law since 1976. His practice consists primarily of real estate transactions and preparation of title abstracts. Pracht’s work often required him to spend much of his day in the Scott County Courthouse in the offices of the auditor, recorder, and clerk of court.

Marlene Nelson is the clerk of court. In her capacity as clerk, Nelson is responsible for approximately 55,000 active court flies located in the clerk’s office, plus an additional 120,000 inactive flies stored in the courthouse basement.

Through the years, an honor system had developed in which lawyers were allowed to remove court files for certain periods of time. According to the system in place just before the events in question, lawyers could “check out” flies for twenty-four hours. However, in doing so, lawyers had to fill out a check-out card with his or her name, phone number, and file name and number. The lawyer had to leave the card in place of the removed file.

Over time, problems arose because lawyers would not put a properly completed card in place of the removed file or would not return the file within the specified time. Because of these breaches of the rule, the clerk’s office had difficulty tracking case files. On occasion, clerk’s office employees had to go to lawyers’ offices to retrieve files. Additionally, at times, files would be missing on matters that were scheduled for hearing. In those instances, judges hearing the case had to rely on court documents furnished by the lawyers trying the case.

These problems prompted Judge John A. Nahra, Chief Judge of the Seventh Judicial District, to install a sensormatic electronic system in the clerk’s office. The system called for placing mylar strips on case files. The strips would activate an audible alarm if a file was removed from the clerk’s office without first being properly checked out and without the mylar strip being deactivated by office employees.

Before installing the system, Chief Judge Nahra informed the local bar by letter dated June 24, 1999 of his intentions to install the system. He asked lawyers to return all files to the clerk’s office by July 2,1999.

Following this communication, the clerk’s office began receiving files in large numbers. Pracht, himself, returned 100 files to the clerk’s office. The clerk of court made arrangements for fifteen people to come into the office on July 10 to put the mylar strips on the files.

Sometime after June 24 but before July 2, Pracht talked with Nelson. In this conversation, Nelson told Pracht that once the deadline had expired, the clerk’s office was going to pull all remaining check-out cards and track down the remaining files.

Though he did not express his concern to Nelson, Pracht was frustrated because he believed Nelson was operating under the false assumption that for every missing file, there was a corresponding check-out card. He also believed that many files were missing for which no one had ever prepared check-out cards.

To “remedy” the problem, Pracht took matters into his own hands. On July 2, 1999, during office hours, Pracht and his son removed — without authorization — all remaining check-out cards from the clerk’s office and from the storage area in the basement. ' Pracht’s plan was to keep these cards hidden, intending to force the clerk’s office to conduct a full inventory of every court file for which the office was responsible. Pracht apparently hoped that forcing a full accounting would lead Nelson to realize there were many more files missing than she believed. Later that afternoon, the clerk’s office discovered the cards were missing.

The Scott County Sheriffs office and the Division of Criminal Investigation (DCI) began investigating immediately. Investigators placed crime scene tape in the clerk’s office. They also checked files, cabinets, and desks for fingerprints. Additionally, they interviewed Chief Judge Nahra, asked several persons to take polygraph tests, and fingerprinted employees. They also questioned two local attorneys and searched the attorneys’ garbage at their homes and offices for signs of the removed cards. Pracht’s removal of the cards caused the clerk’s office to conduct a full inventory of its files.

On or about July 20, an attorney told William Davis, the Scott County Attorney, that Pracht probably had the missing cards. Davis confronted Pracht who admitted he had the cards and turned them over to Davis. Davis turned the cards over to Chief Judge Nahra.

In early December, Pracht met with Chief Judge Nahra at the Chiefs suggestion and apologized for taking the cards. He explained his actions to the Chief by stating he knew the clerk’s records better than the clerk herself, that there had been a “misappropriation” or “misallocation” of court funds amounting to between $100,000 and $250,000, and that by taking the cards, he hoped to prompt a full investigation. Pracht also told Chief Judge Nahra that there was a conspiracy that ran from the top of the system, which included the chief judge, through the clerk and through people on staff down through the ranks. Additionally, Pracht stated he had told this to the DCI investigators in July.

The allegations about the misappropriation were never mentioned in the DCI reports. Pracht had never mentioned these allegations to the Chief before this December meeting. Several weeks later, Pracht renewed the allegations during a second meeting with the Chief. Also present at this meeting were Pracht’s attorney and another judge.

These allegations prompted another investigation by the DCI. Investigators reviewed approximately twenty-five years of clerk records, audit reports, and state court administration reports. The investigators also looked into Pracht’s allegations that the previous chief judge was aware of the alleged misallocation and cover-up. The investigators ultimately concluded that there had been no misappropriation or misallocation of funds and no conspiracy. To the contrary, the investigators concluded the audits had approved all actions of the clerk.

The county attorney declined to file charges against Pracht because he believed Pracht had no criminal intent and placing a value on the check-out cards would be difficult. Chief Judge Nahra, however, barred Pracht from entering the clerk’s office. Pracht never responded to a request from the attorney general’s office as to whether he intended to voluntarily make restitution sufficient to cover the cost — approximately $12,000 — of the file inventory.

On February 8, 2000, Pracht sent a letter of apology to the clerk’s office. In it, Pracht stated that he would not have taken the check-out cards had he perceived the problems that would arise. He also stated that he never intended to cause any personal difficulties and that he merely wished “to assure that all of the files were inventoried and a complete attempt to [locate] the missing files.” He further explained that when he learned of the investigation, he believed that it concerned missing files, not the missing check-out cards.

II. Complaint.

On September 28, 2000, the Board of Professional Ethics and Conduct filed a complaint against Pracht. The board alleged that Pracht’s actions constituted violations of Iowa Code of Professional Responsibility for Lawyers DR 1 — 102(A)(4) (lawyer shall not engage in conduct involving dishonesty, deceit, or misrepresentation), (5) (lawyer shall not engage in conduct prejudicial to the administration of justice), and (6) (lawyer shall not engage in conduct that adversely reflects on the fitness to practice law).

Pracht denied the allegations in his response to the board’s request for admissions. In particular, he denied that he or his son had removed the check-out cards.

At the hearing on the complaint, Chief Judge Nahra, County Attorney Davis, Clerk of Court Nelson, and Pracht testified.

In his testimony, Pracht admitted that he had taken the cards. He testified further that he did so to force a full accounting of all court files as well as to make people aware of the “missing funds.” He additionally admitted that he “probably shouldn’t have taken the cards” and that “[b]esides joining the Marine Corps, [taking the cards] was probably the second dumbest thing [he] ever did.”

Pracht also testified that in the early 1980s he first learned from a clerk-of-court employee about the alleged misappropriation of funds. He admitted he did not tell Nelson or the chief judge about these problems. His excuse for not doing so was that he believed both were involved in the misappropriation and cover-up and for that reason they would not have listened to him.

Following the hearing, the Grievance Commission found that the board had met its burden in proving the charges of unethical conduct. Citing a previous public reprimand, the serious nature of Pracht’s actions, and his failure to appreciate the consequences of his actions, the commission recommended a two-year suspension. The commission also recommended that “[a] condition of his reinstatement should be a complete and satisfactory addressing of the issue involving restitution to the Judicial Branch.”

III. Scope of Review.

Pracht has not appealed from the commission’s recommendation. See Ct. R. 118.11. However, he has filed a statement. We review the record de novo. Ct. R. 118.10. Although we give respectful consideration to the commission’s recommendation, this court must ultimately determine what discipline is appropriate under the facts of each case. Id.; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lyzenga, 619 N.W.2d 327, 329 (Iowa 2000). However, we do give weight to the commission’s findings, particularly when the credibility of a witness is in question. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 283 (Iowa 1998).

The board must prove the alleged ethical violations by a convincing preponderance of the evidence, a burden of proof that is greater than in a civil case but less than in a criminal case. Lyzenga, 619 N.W.2d at 329.

IV. Commission’s Findings.

We agree with the commission that the board proved by a convincing preponderance of the evidence violations of DR 1 — 102(A)(4), (5), and (6).

In taking the check-out cards from the clerk’s office and directing his son to remove the cards from the files in storage, Pracht clearly engaged in conduct evidencing dishonesty and deceit in violation of DR 1-102(A)(4). He compounded his wrongful conduct when he failed to come forward with the check-out cards once they were discovered missing. We agree with the commission that “[t]he very act itself involves deceit as [Pracht] removed the cards without any consent or knowledge on the clerk’s part.” He continued to conceal his possession of the cards until the county attorney directly confronted him. That he eventually admitted having the cards does not excuse his lengthy concealment of the truth.

Pracht testified that he did not realize that the police investigation centered on recovering the check-out cards. He claimed that he believed they were looking for other missing files. The commission did not believe Pracht. Nor do we. He had the cards, the investigation commenced immediately after he took them, and the missing cards were a “hot topic” of conversation in the legal community. As Chief Judge Nahra testified, such a contention is “nonsense.”

Pracht’s conduct was also prejudicial to the administration of justice in violation of DR 1-102(A)(5). In taking and hiding the check-out cards, Pracht caused an intensive, resource-demanding investigation resulting in an expenditure of nearly $12,000. Innocent people were targeted. According to Nelson, the investigation caused “a lot of morale problems” among her staff.

Additionally, Pracht’s unfounded allegations attacking the character and reputation of the former chief, the current chief, the clerk of court, and her staff caused an additional time consuming investigation, all for naught. Evidently, Pracht has no qualms about making such allegations because he continues to make them in the statement he filed with this court.

Given Pracht’s long-time interaction with the clerk’s office and his familiarity with the card check-out system, he was well aware of the impact his actions would have. As the commission recognized, the file cards were the only method the clerk’s office had of knowing where the files were when they were checked out. Viewed in this manner, the cards were vital to the integrity of the court records. Pracht’s actions and the resulting chaos surely damaged the ability of the clerk’s office— indeed the whole of the Scott County District Court — to smoothly and efficiently administer justice. See, e.g., Committee on Prof'l Ethics & Conduct v. Chipokas, 493 N.W.2d 414, 418 (Iowa 1992) (determining that attorney’s unauthorized acceptance of settlement offer that forced the district court to take valuable time to hear a subsequent suit to enforce the settlement that would not have occurred except for attorney’s conduct was prejudicial to administration of justice); In re Bock, 128 N.J. 270, 271, 607 A.2d 1307, 1308 (1992) (determining that attorney’s actions in faking his own death were prejudicial to the administration of justice when an ensuing “police manhunt” into his disappearance resulted in needless “expenditure of public funds and diversion of police from needed public-safety measures”).

Pracht’s actions also clearly reflect adversely on his fitness to practice law in violation of DR 1-102(A)(6). He never attempted to voice his concerns about the files to the clerk, her staff, or any judges. Rather, Pracht engaged in what the commission characterized as “vigilante justice” to bring to light what he thought were problems of integrity and efficiency in the clerk’s office. Like the commission, we discern that Pracht displayed a cavalier attitude — and still does as evidenced by his statement to this court — that he was justified in doing what he did and in the end performed some great service in the interest of justice.

As an officer of the court, Pracht — as any other lawyer — has the responsibility to act in a manner that is not detrimental to the court. As an officer of the court, Pracht should help to improve the administration of justice in whatever way he can. In this instance, however, he crossed the line between helpful and harmful conduct.

V. Discipline.

A variety of important considerations guide our determination of the appropriate discipline. They include the nature of the alleged violations, the need for deterrence, the protection of the public, the maintenance of the reputation of the bar, and Pracht’s fitness to continue in the practice of law. See Lyzenga, 619 N.W.2d at 829-30.

This court has also consistently recognized that

“[fjundamental honesty is the base line and mandatory requirement to serve in the legal profession. The whole structure of ethical standards is derived from the paramount need for lawyers to be trustworthy. The court system and the public we serve are damaged when our officers play fast and loose with the truth. The damage occurs without regard to whether misleading conduct is motivated by the client’s interest or the lawyer’s own.”

Lesyshen, 585 N.W.2d at 288 quoting Committee on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990)).

Equally important is that

“[a] lawyer has a very special responsibility for candor and fairness in all his dealings with a court. Absent mutual trust and confidence between a judge and a lawyer — -an officer of the court— the judicial process will be impeded and the administration of justice frustrated.”

Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 546 N.W.2d 215, 217-18 (Iowa 1996)).

Pracht’s actions reflect his disdain for these basic considerations — considerations that should guide lawyers in dealing with the court. Additionally, Pracht’s continued insistence that he was forced to commit his misdeeds to expose the improprieties of others smacks of little more than blame-shifting. Although the board did not allege Pracht’s unfounded allegations of misappropriation of funds as separate ethical violations, these allegations nevertheless further evidence his tendency to blame others rather than himself.

Furthermore, this is not the first time Pracht has violated our disciplinary rules. See Committee on Prof'l Ethics & Conduct v. Pracht, 505 N.W.2d 196 (Iowa 1993) (holding that undertaking probate matters beyond competency, neglecting those matters, and failing to cooperate with Committee on Professional Ethics & Conduct warranted public reprimand). Though not similar to the violations at issue here, the prior reprimand is an aggravating factor. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999).

As mentioned, the commission recommended a two-year suspension and we agree with that recommendation. We therefore suspend Pracht’s license to practice law in Iowa with no possibility of reinstatement for two years from the filing date of this opinion. The suspension applies to all facets of the practice of law. See Ct. R. 118.12. Court Rule 118.12 shall govern any application for reinstatement.

We assess costs against Pracht pursuant to Court Rule 118.22.

LICENSE SUSPENDED.


author: STREIT, P.J.

text:
    Kenneth A. FLANAGAN, Plaintiff-Appellee, v. CONSOLIDATED NUTRITION, L.C., Defendant-Appellant.
    No. 99-2024.
    Court of Appeals of Iowa.
    March 28, 2001.

      Stanley J. Thompson and Debra Recten-baugh Pettit of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.
    Richard J. Barry of Montgomery, Barry & Bovee, Spencer, for appellee.
    Heard by STREIT, P.J., and HECHT and VAITHESWARAN, JJ.
   STREIT, P.J.

A feed company that wanted a long-term contract to sell pigs to a farmer was content to abide by certain stringent rules regarding contract formation as long as those rules worked to its advantage. Now that the farmer claims the parties did not have a contract under those rules, the company argues more flexible rules should apply. We affirm the trial court’s finding that the parties did not have a contract.

I. Background Facts & Proceedings.

Kenneth Flanagan and Consolidated Nutrition dispute whether they have a contract to buy and sell pigs. Flanagan, an O’Brien County farmer, raises pigs at his wean-to-finish operation. Consolidated, an Iowa limited liability company with its principal place of business in Omaha, Nebraska, sells livestock feed products and pigs. Flanagan considered acquiring segregated early-weaned (“SEW”) pigs for his operation from Consolidated.

Sometime before June 5, 1998, Flanagan received an unsigned document from Consolidated titled “Weaned Pig Sales Agreement.” The document set forth a purchase price of $33.25 per SEW pig and a term of three-and-one-half years. Flanagan returned the document to Bob Kneip, Consolidated’s district manager in Le Mars, on June 10 after making various changes to it. The changes included the following: (1) inserting “ +/- 20 head” into the phrase “Buyer agrees to purchase from Consolidated, and Consolidated agrees to sell to Buyer, approximately 1050 Segregated Early Weaned Pigs (“SEW Pigs”) each 9 weeks during the term of this agreement;” (2) inserting a definition of “competitive” into a paragraph requiring Flanagan to purchase his feed requirements from Consolidated “[f]or so long as Consolidated’s feed products and services are competitive with other suppliers;” (3) inserting a liquidated damages clause; and (4) changing the choice of law provision from Nebraska to Iowa. Flanagan did not sign the document.

On June 25 Flanagan went to Consolidated’s Le Mars office to review the company’s revised version of the “Weaned Pig Sales Agreement;” Kneip was not present. The document included Flanagan’s definition of “competitive” and a damages clause acceptable to him. It did not include the phrase “+/-20 head” or an Iowa choice of law provision. Flanagan again made these two changes to the document, initialed his changes, and signed and left one copy of the document at the office. This is the only document bearing Flanagan’s actual signature.

Before June 29 Flanagan received a telephone call from Kneip regarding delivery of SEW pigs. Flanagan agreed to accept delivery of several hundred SEW pigs from Consolidated for $33.25 per pig beginning June 29 — the same day as the contract commencement date set forth in the “Weaned Pig Sales Agreement” Flanagan had signed June 25. Both Flanagan and Kneip agreed the parties were not buying and selling the pigs pursuant to that document because Consolidated had not yet accepted it and returned it to Flanagan.

On July 15 Flanagan received another version of the “Weaned Pig Sales Agreement.” Terry Myers, one of Consolidated’s vice-presidents, had signed the document. Once again, it did not include the phrase “+/-20 head” or an Iowa choice of law provision. Flanagan did not sign the document or return it to Consolidated.

On August 12 Kneip called Flanagan asking whether he was ready for the next delivery of SEW pigs from Consolidated. Flanagan told Kneip he was not going to accept the pigs because the parties did not have a contract. The following day, Flanagan sent a letter to Consolidated reiterating the parties did not have a contract and stating he was withdrawing the offer he had made to Consolidated in Le Mars.

On August 20 Flanagan received yet another copy of a “Weaned Pig Sales Agreement” from Consolidated. The document appears to be a copy of the “Weaned Pig Sales Agreement” Flanagan changed and signed on June 25 except for the following: (1) someone made editing marks on the document that were consistent with the format and content of the ‘Weaned Pig Sales Agreement” Flanagan received on July 15; (2) the first paragraph of the document included the typewritten date June 25, 1998; and (3) Flanagan’s copied signature and Terry Meyer’s signature are at the end of the document.

Sometime after August 20 Flanagan and Consolidated agreed to disagree about whether they had a contract. Flanagan bought SEW pigs from Consolidated until August 1999, but generally paid only market price for them — not the higher price set forth in the parties’ purported contract. During this period, Flanagan received another “Weaned Pig Sales Agreement” from Consolidated that the company claimed was the parties’ contract. The document, sent December 16, appears to be a copy of the “Weaned Pig Sales Agreement” Flanagan signed on June 25, except it does not have an attachment defining “competitive.” Nor does the document contain the editing marks or typewritten date found in the “Weaned Pig Sales Agreement” Flanagan received August 20. The document does bear Flanagan’s copied signature and Terry Meyer’s signature.

Flanagan filed a petition for declaratory judgment asking the district court to find the parties did not have a contract. Consolidated filed a counterclaim asking the court to find Flanagan owed the company over $90,000 for the SEW pigs for which he had not paid $33.25 per pig. After a bench trial, the court found the parties did not have a contract under either the common law or the Iowa Uniform Commercial Code (U.C.C.). Consolidated appeals. The company claims the parties had a binding long-term contract in which Flanagan was obligated to buy approximately 1050 SEW pigs every nine weeks for three-and-one-half years.

II. Scope of Review.

We review for correction of errors of law. See Iowa R.App.P. 4; Van Oort Constr. Co. v. Nuckoll’s Concrete Serv., Inc., 599 N.W.2d 684, 689 (Iowa 1999). We are not bound by the trial court’s legal conclusions and application of legal principles. See Hodges v. Hodges, 572 N.W.2d 549, 551 (Iowa 1997). However, the trial court’s findings of fact have the effect of a special verdict and are binding on us if supported by substantial evidence. See Van Oort, 599 N.W.2d at 689. “Evidence is substantial for purposes of sustaining a finding of fact 'when a reasonable mind would accept it as adequate to reach a conclusion.” Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). “We view the evidence in a light most favorable to the trial court’s judgment.” Van Oort, 599 N.W.2d at 689.

III. The Merits.

Consolidated claims the U.C.C. applies to this case and, under the U.C.C., the parties had a contract. Specifically, Consolidated argues it presented Flanagan with an offer on June 25, 1998, in Le Mars and Flanagan accepted the offer that same day. Consolidated further argues the signed document Flanagan received on July 15 was a written confirmation of the parties’ purported contract. See Iowa Code § 554.2207(1) (1997).

A. The U.C.C.

Consolidated’s starting premise is correct: The U.C.C. undoubtedly applies to this case. Article 2 of the U.C.C. applies to “transactions in goods.” Id. § 554.2102. Goods include “all things ... which are movable at the time of identification to the contract for sale other than the money which is to be paid, investment securities ... and things in action.” Id. § 554 .2105. Because this definition of “goods” encompasses livestock, article 2 governs the parties’ purported contract to buy and sell SEW pigs. See Embryo Progeny Assocs. v. Lovana Farms, 203 Ga.App. 447, 416 S.E.2d 833, 834 (1992) (noting sales of animals are transactions in goods); Vince v. Broome, 443 So.2d 23, 26 (Miss.1983) (same).

The facts of this case warrant a brief discussion about the relationship between article 2 and the common law of contracts. Article 2 relaxes many of the legal formalisms and technicalities of contract formation associated with the common law of contracts. For example, at common law “an offer [has] to be accepted exactly ‘as is’ or the response amount[s] only to a counter-offer.” Tralon Corp. v. Cedarapids, Inc. 966 F.Supp. 812, 823 (N.D.Iowa 1997) (explaining the mirror-image rule); cf. Shell Oil Co. v. Kelinson, 158 N.W.2d 724, 728 (Iowa 1968) (“The rule is well settled that in a contract by offer and acceptance, the acceptance must conform strictly to the offer in all its conditions, without any deviation or condition whatever.”). Similarly, when “an offer prescribes the place, time or manner of acceptance its terms in this respect must be complied with in order to create a contract.” Restatement (Second) of Contracts § 60 (1981). In contrast, article 2 is less stringent: Section 554.2204(1) provides “[a] contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.” Section 554.2206(l)(a) provides “an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances.” Finally, section 554.2207(1) provides “[a] definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon.”

Article 2 does not, of course, entirely eliminate the common law of con-

tracts. See Iowa Code § 554.1103 (“Unless displaced by the particular provisions of this chapter, the principles of law and equity ... shall supplement its provisions.”). Significantly, contracting parties like Flanagan and Consolidated must still reach an agreement in order to have an enforceable contract. See DP-Tek, Inc. v. AT&T Global Info. Solutions Co., 891 F.Supp. 1510, 1517 (D.Kan.1995), aff'd, 100 F.3d 828 (10th Cir.1996) (stating article 2 “does not eliminate the requirement that the parties must have intended to enter into a binding agreement and that there be a mutual manifestation of assent on ... material point[s]”). The relationship between this basic contract law principle and article 2’s liberal rules regarding contract formation is as follows:

[W]hen there is basic agreement, however manifested and whether or not the precise moment of agreement may be determined, failure to articulate that agreement in the precise language of a lawyer, with every difficulty and contingency considered and resolved, will not prevent formation of a contract [for the sale of goods]. But, of equal importance, if there be no basic agreement, the code will not imply one.

Kleinschmidt Div. of SCM Corp. v. Futuronics Corp., 41 N.Y.2d 972, 395 N.Y.S.2d 151, 363 N.E.2d 701, 702-03 (1977).

Nor does article 2 prevent parties involved in “transactions in goods” from adhering — by choice — to the common law rules of contract formation that have been replaced by the article’s less stringent rules. For example, section 554.2206(1) relaxes common law rules concerning the means and medium of an acceptance to a particular offer — “unless otherwise unambiguously indicated by the language or circumstances.” Iowa Code § 554.2206(1). Consequently, “where the circumstances indicate that a particular manner of contract formation is contemplated by the parties, a binding contract is not formed in the absence of compliance with the contemplated procedure.” Jim L. Shetakis Distrib. Co. v. Centel Communications Co., 104 Nev. 258, 756 P.2d 1186, 1188 (1988).

Equipped with this background information, we turn to the remainder of Consolidated’s argument: As was stated previously, Consolidated argues it presented Flanagan with an offer on June 25, 1998, in Le Mars and Flanagan accepted the offer that same day. Consolidated further argues the July 15 document, with Flanagan’s copied signature, was a written confirmation of the parties’ purported contract.

B. Existence of a Contract.

The remainder of Consolidated’s argument is misguided. Implicit in the company’s argument that Flanagan accepted its offer on June 25 is the assumption the parties actually reached an agreement on that date. This assumption contradicts, of course, the trial court’s finding that Consolidated and Flanagan had “no contract under the U.C.C.” See Iowa Code § 554.1201(11) (stating a contract is the “total legal obligation which results from the parties’ agreement”).

We are bound by this finding of fact if it is supported by substantial evidence. See Van Oort, 599 N.W.2d at 689; see also Audus v. Sabre Communications Corp., 554 N.W.2d 868, 871 (Iowa 1996) (stating the existence of an oral contract is ordinarily a question of fact); 2 Ronald A. Anderson, Uniform Commercial Code §§ 2-204:59-60, at 408-09 (3rd ed.1996) (stating the existence of a contract under the U.C.C. is generally a question of fact). Here, as will be discussed in greater detail below, the record shows Flanagan and Consolidated’s concerted efforts to reach an agreement never culminated in a binding contract because they did not adhere to their self-imposed rules of contract formation. See Jim L. Shetakis Distrib. Co., 756 P.2d at 1188. Accordingly, we must affirm the trial court.

Flanagan and Consolidated contemplated they would not have a binding contract until they both signed a “Weaned Pig Sales Agreement” that had been processed and approved by appropriate Consolidated personnel. Consolidated complains the facts tell a different story. The company’s own conduct, however, belies its protestations. For example, after Flanagan signed the “Weaned Pig Sales Agreement” on June 25, Consolidated sent him a letter stating they would “get [his] contract back” after he gave them his financial statement — the implication being that some additional things had to happen before the parties had a binding contract. Moreover, when Consolidated returned the “Weaned Pig Sales Agreement” to Flanagan on July 15, it was a new version that did not incorporate all of Flanagan’s June 25th alterations. Indeed, a Consolidated employee subsequently wrote a memo characterizing the document as a “new contract” — a fact at odds with the company’s present claim the document merely confirmed the parties’ purported June 25 contract. Rather, such conduct is consistent with the supposition the parties would not have a binding contract until they both signed a “Weaned Pig Sales Agreement” that had been processed and approved by appropriate Consolidated personnel.

Flanagan and Consolidated never timely complied with this manner of contract formation. The above-discussed conduct demonstrates that, as late as July 15, the parties were still engaged in efforts to reach an agreement. On August 12 Flanagan informed Consolidated he did not believe the parties had a contract and effectively revoked any offer he had made to the company. See Emmons v. Ingebretson, 279 F.Supp. 558, 573 (N.D.Iowa 1968) (“An offer may be withdrawn by a communication prior to acceptance which expressly or by implication notifies the offeree that the offeror does not intend to perform the contract.”). On August 20 Flanagan received a “Weaned Pig Sales Agreement” from Consolidated bearing each party’s signature. The inconsistencies between this document, the document Consolidated had delivered to Flanagan in July, and the document Consolidated later sent to Flanagan in December support the trial court’s finding the August 20 document was part of Consolidated’s belated attempt to establish the parties had a binding contract. These efforts by Consolidated to finally comply with the parties’ self-imposed rules of contract formation were made after the company learned Flanagan was no longer interested in entering into a long-term contract — and, consequently, were made too late.

Thus, to reiterate, substantial evidence supports the trial court’s finding that Flanagan and Consolidated had “no contract under the U.C.C.” In reaching this conclusion, we have not overlooked the fact that on June 29, July 2, and July 6 of 1998 Flanagan accepted delivery of several hundred SEW pigs for $33.25 per pig — the price set forth in every “Weaned Pig Sales Agreement” exchanged between the parties. Consolidated argues this conduct demonstrates the existence of a binding long-term contract between the parties. See Iowa Code § 554.2204. Flanagan testified, however, the parties bought and sold these SEW pigs pursuant to a separate agreement because they did not have a binding long-term contract at that time. His explanation for his conduct is consistent with the theory of the case discussed above. Accordingly, we uphold the trial court’s finding that Flanagan’s testimony regarding this matter was more credible.

TV. Conclusion.

The facts and circumstances of this case show that Flanagan and Consolidated considered their interplay, their exchange of differing drafts, their proposals and coun-terproposals, as part of the dialogue of parties seeking to reach an agreement. They never met their goal. Consolidated cannot now ignore the parties’ self-imposed rules of contract formation, wind back the clock, point to one of the earlier moments in the parties’ contracting dialogue, and claim the parties had a binding contract as of that time. We affirm the trial court. Flanagan and Consolidated did not have a contract to buy and sell SEW pigs.

AFFIRMED.

      . SEW pigs are weaned earlier (ten to twenty-one days old) than conventionally-weaned pigs (twenty-eight to thirty-five days old) and are housed in nurseries segregated from the rest of the pig population. This process is intended to protect SEW pigs from endemic diseases. See Minnesota Impacts!: Performance of Segregated Early Weaned Pigs, at http ://www. extension .umn .edu/mnimpacts/im-pact.asp?projectID=21 (last visited Feb. 16, 2001).

      . Kneip testified he did not recall saying Consolidated had not signed the "Weaned Pig Sales Agreement” as of June 29 and denied it was his opinion that, at that time, the parties did not have a contract. The trial court found Flanagan’s testimony to the contrary more credible.