Miller v. Superior Court

587 P.2d 723, 22 Cal. 3d 923, 151 Cal. Rptr. 6, 1978 Cal. LEXIS 328

• Court: California Supreme Court
• Decided: December 22, 1978
• Docket: L.A. 30816
• Status: Published

Opinions

Opinion

CLARK, J.

Patricia Ann McGuinness, formerly Patricia Ann Miller, seeks writ of mandate to compel respondent court to vacate its order of 10 December 1976 directing her to deliver to her former husband, Harry M. Miller, custody of their two minor children pursuant to an Australian custody decree.

Patricia and Harry were married in California in 1962. After living in New Zealand, they moved to Australia in 1964 where their two children were born. On 9 February 1967 the marriage was dissolved in Australia, the court awarding custody to Patricia with visitation rights to Harry. Denying application for change of custody in 1967, the court restrained both parents from removing the children from Australia without leave of court, required the parents’ passports to be delivered to their attorneys, and provided that should Patricia leave Australia Harry would be entitled “forthwith” to custody.

With Harry’s agreement and subject to visitation, Patricia moved to Los Angeles with the children in 1968. In 1972 Patricia remarried and moved to Australia with her present husband, an Australian citizen, and the two children. About the same time she and Harry entered another agreement providing for Harry’s visitation rights and for his arranging all schooling. Harry also remarried in 1972.

Pursuant to the 1972 agreement, Harry enrolled one of the children, Miles, as a.weekly boarder in a private school in Sydney. From 1972 to March 1976, the parties shared custody during holiday periods, and Harry had custody of the children for three six-week periods while Patricia was on foreign trips.

In 1976 Patricia, without consulting Harry, changed Miles’ enrollment to that of a day student. Harry filed an application for custody of both children, or in the alternative, for joint custody with Miles attending school as a weekly boarder, Harry continuing to be responsible for , schooling arrangements, each parent having specified access rights. Finally, Harry sought sole custody should Patricia leave the area.

On 19 March 1976, following extended hearings, the court ordered, over Patricia’s objection, that Harry have custody of the children for three weeks while Patricia went abroad.

When Patricia returned the parties entered an agreement. In accordance with the first five paragraphs of the agreement, the court on 3 May ordered that Patricia have custody of the children, that Harry have access alternate weekends from Friday night to Monday morning and certain specified holidays and school vacations, that Harry pay child support, and that the parties have general liberty to apply to the court on all matters on seven days’ notice.

Although the court order did not set forth the next four paragraphs of the agreement, the court “noted” the further provisions in the agreement. Those paragraphs provided in part that Harry would have custody during any period Patricia was out of Australia without the children, Harry would be responsible for school arrangements, and the parties would give one month’s notice through counsel of any overseas trips involving the children.

Patricia’s solicitors remained her solicitors of record. Between 25 May and 16 July the solicitors for the parties exchanged a dozen letters relating to child support, visitation, and trips.

In July 1976, Patricia decided to permanently leave Australia with the children. Deliberately failing to inform either Harry or the court of her intention, she departed on 23 July while the children were in the middle of a school term.

On 27 July Harry was informed by school officials that the children had not been in school since 22 July. His efforts that day and the next to learn of the whereabouts of Patricia and the children were fruitless.

Harry’s solicitor telephoned the office of Patricia’s solicitors on 27 July. The solicitor who had represented Patricia, Mr. Twigg, was out of Sydney and communications on the 27th and 28th were with his partner, Mr. Doolan. Mr. Doolan was unable to locate Patricia and so advised Harry’s solicitor the following morning.

On 28 July Harry’s solicitor filed an application in the Australian court seeking custody and an order restraining Patricia from leaving Australia and compelling her to surrender the children’s passports. In support of the application, Harry filed an affidavit stating that the children had been taken out of school; that his efforts to locate Patricia and the children had been unsuccessful; that she could be a “very emotional person” and capable of conduct detrimental to the children; that if there was discord in her existing marriage, she might leave for America; and that in view of her behavior in early 1976, she was not a fit and proper person to have custody of the children without the stabilizing influence of her present husband.

Copies of the application and affidavit were served on Patricia’s solicitors at 12:40 p.m., 28 July. Mr. Doolan stated that he had been unable to locate Patricia and had no specific instructions, requesting Harry’s solicitor to so advise the court.

At 2:45 p.m., 28 July the court, after hearing the matter ex parte, signed an order awarding temporary custody of the children to Harry. The order was made returnable on 3 August 1976. The order was served on Patricia’s solicitors. Mr. Twigg advised Harry’s solicitor on 29 July that he had no knowledge of Patricia’s whereabouts, that she and her second husband had separated, and that the latter was also unaware of where she might be.

On 3 August Patricia failed to appear and there was no request for continuance. The court issued warrants for the custody of the children.

On 22 October 1976 Harry initiated contempt proceedings in the Los Angeles Superior Court. Evidence was presented that under Australian law notice could be served on the solicitor of record and that in cases of urgency the court could issue ex parte custody orders. The superior court determined that the orders of 3 May and 28 July were valid and that Patricia had deliberately violated them. The court ordered Patricia to deliver custody of the children to Harry and to pay his attorney fees, travel, and other expenses.

While aware of the Australia court orders by 9 August, Patricia has made no effort to reopen the Australian proceedings, to appeal, or to seek modification of the order.

Civil Code section 5172, part of the Uniform Child Custody Jurisdiction Act, provides: “The general policies of this title extend to the international area. The provisions of this title relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.”

Patricia contends that she was not given reasonable notice and opportunity to be heard in the Australian proceedings and that the Australian custody order should be denied enforcement because its purpose assertedly was to punish her for removing the children from Australia.

Prior to the 1963 enactment of the provision now found in Civil Code section 4809, California law provided that, when there was aff attorney of record, motions to modify custody were to be served on the attorney (Code Civ. Proc., § 1015). The provision was held constitutional because it is “established that the Legislature may provide that once the court has jurisdiction over the subject matter of a proceeding and over the person of the party affected, it may bind such person by orders made after he has left the state.” (Reynolds v. Reynolds (1943) 21 Cal.2d 580, 583 [134 P.2d 251]; see 38 State Bar J. 639 (1963).) Although the Legislature has changed the rule, the former practice did not constitute unreasonable notice. In addition, it must be pointed out that Patricia’s solicitors were still acting on her behalf respecting the 3 May order as late as 16 July, 12 days before the service of the 28 July application.

More importantly, Patricia’s contentions are based on a mischaracterization of the Australian orders of 28 July and warrants of 3 August. It is obvious that the order was not intended to effect a permanent change in custody. Rather, it provided a change of custody with a return date. The order contemplated that Hariy would have custody pending a hearing and determination whether he or Patricia should have custody. The period contemplated for Harry’s custody was short, at most six days if Hariy was successful in immediately locating the children. The interim order far from denying Patricia a right to be heard, is designed to permit Patricia full right to be heard on the custody issue—a right still available to her before the Australian court.

Code of Civil Procedure section 527 provides for temporary restraining orders to be granted ex parte returnable in a short period. In United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 913 [122 Cal.Rptr. 877, 537 P.2d 1237] this court held that in First Amendment cases, the party seeking the restraining order must make a reasonable, effort in good faith to give notice, in either formal or informal fashion, to either the defendant or his counsel. The court recognized that the hearing will often be held promptly—perhaps immediately. (Id., at pp. 913-914.) A concurring and dissenting opinion suggests that the requirement of reasonable efforts to give notice should apply in all cases, including custody cases. In any event, it is clear that counsel was served with the application and reasonable attempts were made to locate Patricia.

Section 527 requires that “great or irreparable injury” must appear before a temporary restraining order will issue without notice. Earlier in 1976, litigation had been triggered before the Australian court by Patricia’s changing school attendance, assertedly in violation of her agreement with Harry that he would ¡ be responsible for all school arrangements for the children. In settlement of that litigation Patricia had again agreed that Harry would have responsibility for all school arrangements. Withdrawing the children from school without Harry’s consent as shown by his affidavit was an apparent violation of her agreement. In addition, in the absence of some explanation or excuse, withdrawal of young children from school and their continued absence must be viewed as presumptively detrimental to the children. Harry’s affidavit also provided reasonable cause to believe that Patricia had left Australia in violation of the 30-day notice provision of the agreement and her disappearance with the children would frustrate performance of the visitation rights ordered by the court. Irreparable harm was shown by the affidavit.

One main factor to be considered by a judge in determining whether to issue an interim restraining order without full contested hearing is the severity of the injunctive restrictions sought. (United Farm Workers of America v. Superior Court, supra, 14 Cal.3d 902, 914.) Harry had previously been given substantial custodial rights. Under the 3 May order he was entitled to custody on alternate weekends from Friday night to Monday morning, on certain holidays, and for extensive periods during vacations and Patricia’s trips abroad. In the light of Harry’s extensive custodial rights the order granting him custody pending further hearing of the custody issue may not be considered a severe restraint.

We are satisfied that the Australian court order granting Harry custody pending further hearing of the custody issue did not involve a deprivation of reasonable notice and opportunity to be heard. Because of the temporary nature of the order, there is no basis to the claim that the Australian court intended to punish Patricia.

Our conclusion that the Australian court order granting Harry custody pending further proceedings should be enforced in California has the effect of determining that further hearings may be held in Australia to modify the Australian custody orders. Such result is in full accord with the purposes of the Uniform Child Custody Jurisdiction Act. (Civ. Code, § 5150 et seq.)¹

The alternative writ is discharged and the peremptory writ denied.

Mosk, J., Richardson, J., and Manuel, J., concurred.

1 Civil Code section 5150 provides: “(I) The general purposes of this title are to: [¶] (a) Avoid jurisdiction competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being. [¶] (b) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child. [¶] (c) Assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state. [¶] (d) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child. [¶] (e) Deter abductions and other unilateral removals of children undertaken to obtain custody awards. [¶] (f) Avoid relitigation of custody decisions of other states in this state insofar as feasible. [¶] (g) Facilitate the enforcement of custody decrees of other states. [¶] (h) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child. [¶] (i) To make uniform the law of those states which enact it. [¶] (2) This title shall be construed to promote the general purposes stated in this section.”