Palm v. Superior Court

97 Cal. App. 3d 456, 158 Cal. Rptr. 786, 1979 Cal. App. LEXIS 2189

• Court: California Court of Appeal
• Decided: October 3, 1979
• Docket: Civ. 18601
• Status: Published

Opinions

Opinion

COLOGNE, J.

Petitioner Franklin P. Palm seeks a writ of “prohibition/mandate” to compel the Superior Court of San Diego County to vacate its order and stay further proceedings in exercise of jurisdiction in a disputed child custody matter instituted by Rebecca Palm Moody in her complaint to establish a North Dakota divorce decree. That 1974 decree gave Rebecca custody of the parties’ minor son who was then a year and a half old. Franklin seeks to stay these proceedings during the pendency of hearings concerned with the son’s custody currently being conducted in the North Dakota courts. Franklin contends California’s Uniform Child Custody Jurisdiction Act (Uniform Act) which North Dakota also adopted¹ requires the superior court to decline jurisdiction over the minor child and instead to abide by North Dakota’s determination of the son’s custodial fate.

Franklin married Rebecca in 1968. The parties separated in August 1974 and Rebecca moved to San Diego. When Franklin took the child back to North Dakota, she returned to North Dakota to regain custody. Franklin obtained a judgment of divorce on December 16, 1974, in the District Court of Cass County, Fargo, North Dakota. At that time, the North Dakota court awarded custody of their son to Rebecca with the right of reasonable visitation given to Franklin. In March 1976, Rebecca began living with a man named Ross Moody. On December 31, 1976, by stipulation, the parties agreed Franklin could have custody of the son for six months, after which time the custody would go to Rebecca with Franklin to have the right of reasonable visitation, eight consecutive weeks of visitation in the summer plus alternating Christmas and Easter holidays. Franklin took the boy for the agreed six months and immediately afterward kept the boy for the additional eight weeks to which he was entitled. On July 14, 1977, Franklin filed a petition in the district court seeking an order to show cause why he should not have the son’s custody. The matter was heard on August 19, both parties appearing in court personally and through counsel. On September 27, the court made an order amending the judgment to award Rebecca custody provided if she “resumes cohabitation with one Ross Moody, custody of the minor child . . . shall be changed” to Franklin.

Rebecca then took the son with her and the two lived in California where he began school. At this same time, she resumed cohabitation with Moody though at the time he was still married to another. On October 11, 1977, she “married” him and sent a certified copy of the marriage certificate to the court “in order to satisfy the order of the North Dakota Court.” She admitted later this was tantamount to “fraud and deceit on the North Dakota court” because Moody was not yet free to marry. Since that time, however, Moody did obtain a divorce from his wife, the “marriage” to Rebecca was annulled and he legally married her.

In April 1978, Rebecca brought an action in California to establish the foreign judgment and to modify visitation. The superior court refused to exercise jurisdiction over the matter and dismissed the complaint with prejudice.

In June 1978, Franklin took the son back to North Dakota for his eight-week visitation period.

On August 14, before the end of that period, Franklin obtained an order to show cause from the North Dakota court for the purpose of securing full custody of the child. He obtained temporary custody and a temporary restraining order was issued to prohibit interference with his custody.

On August 18, Rebecca filed a second complaint against Franklin in San Diego seeking to establish the California court’s jurisdiction over the issue of child custody, visitation and child support. On September 18, the court below determined California did have jurisdiction, California was the domiciliary of the child, it is the most convenient state to try the matter of custody, . Rebecca has legal custody under the most recent North Dakota decree, the pending change of custody proceedings in North Dakota are not in substantial conformity with the Uniform Child Custody Jurisdiction Act, and the previous action of the California court dismissing Rebecca’s action is not res judicata. It ordered Franklin to dismiss his North Dakota change of custody action, to refile it here and to transfer custody of the child to Rebecca to whom it advanced temporary custody pending a hearing on change of custody.

We are advised in November 1978, the son was picked up at school in North Dakota by his maternal grandmother and taken to California where he now resides with them at a place not revealed to Franklin and contrary to the California court order, he has not been allowed visitation privileges. Franklin characterizes this as an “abduction,” Rebecca says the son “voluntarily left school.” We take judicial notice of the fact North Dakota now has completed hearings on this matter. On May 8, 1979, that court granted full custody to Franklin subject to a right of visitation by Rebecca under Franklin’s supervision. The court later adjudicated Rebecca in contempt for failure to appear with the child, punishment to be meted out when she appears before the North Dakota court.

The situation we review is a classic example of the interstate conflict which the Uniform Act was intended to obviate.² Although both California and North Dakota have adopted the Uniform Act, we are faced here with courts in absolute conflict, California exercising jurisdiction and awarding the child to the mother, a resident of this state, and North Dakota exercising jurisdiction and awarding the child to the father, a resident of that state. The jurisdictional facts are not in dispute and if thé work of the Commission on Uniform State Laws and the respective state Legislatures is to have any relevance, this jurisdictional dispute should be resolved.

A state acquires jurisdiction under the provisions of section 5152. This reads in pertinent part as follows: “(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a chjld custody determination by initial or modification decree if the conditions as set forth in any of the following paragraphs are met:

, “(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 his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.

. “(b) It is in the. best interest, of the child that a court of this state assume jurisdictioq,because (i) the child and his 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.

■“Home state’” íá defined in section 5151 as “the state in which the child immediately preceding the time involved lived with ... a parent... for at least six consecutive months .... Periods of temporary absence of any of the named persons are considered as part of the six month or other period.”

Under- the facts of this case, the child was clearly within the jurisdiction of. the California courts under the provisions of section 5152, subdivision (l)(a), since he was with his mother in California continuously.from August 1977 to June 1978, with the exception of the visit with his father at Christmas. This period, immediately before the commencement of these proceedings; qualifies California as the child’s “home state.”³ A California court has the right to determine its jurisdiction (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 302 [109 P.2d 942, 132 A.L.R. 715]), and the superior court properly did so here.

Under the Uniform Act’s provisions paralleling section 5152, subdivision (l)(b), North Dakota might well have determined it too has jurisdiction over the custody of the child. The courts of North Dakota could and properly did find it was in the best interests of the child⁴ to assume jurisdiction because the child and the father had a significant connection with that state and the requirement of available evidence concerning the child is met. The evidence supporting such a finding may be seen from the fact the father is a resident of that state, maintains his home and business as a dry wall contractor in Fargo; the parties last lived together as man and wife there and obtained their divorce there giving that court jurisdiction to award custody in the first instance, their reputation and relationships are well established in that community; and the child lived there for 10 of the last 22 months and even attended school there at least until his removal by the grandparents. During that period, the child obviously made contacts with neighbors, friends, and others who could testify as to his behavior and adjustment. There is available in North Dakota substantial evidence concerning the child’s present or future care, protection, housing and personal relationships.

Additionally, it should be noted the court in North Dakota which granted the dissolution has . continuing jurisdiction over custody matters. This is the state of the law for California courts as well (Civ. Code, § 4600;⁵ Clark v. Superior Court, 73 Cal.App.3d 298, 304 [140 Cal.Rptr. 709]; N.D. Century Code, § 14-05-22; Moran v. Moran (N.D. 1972) 200 N.W.2d 263).

Faced with a similar factual situation, though one not involving competing exercise of jurisdiction, the Court of Appeal in Smith v. Superior Court, 68 Cal.App.3d 457 [137 Cal.Rptr. 348], held California had jurisdiction of the custody question on the basis of the Uniform Act which controls over the more general continuing jurisdiction provision of Code of Civil Procedure section 410.50, subdivision (b).⁶ In that case, the parties obtained a judgment in California dissolving their marriage. The mother received custody. She remarried and eventually moved to Oregon with the child. They lived there approximately five years, then entered a stipulation concerning custody and visitation, including a visit during Easter 1976. The judgment was modified according to the stipulation. The mother, on the child’s strenuous resistance, and on the advice of a psychologist in Oregon, refused to send the child to California for the Easter visitation. The father sought an order of contempt against the mother in California. The trial court determined it had jurisdiction to modify the judgment and to hold the mother in contempt; it was affirmed on appeal.

In Smith, the reviewing court conceded Oregon was the “home state” of the child under the provisions of section 5152, subdivision (l)(a). The court concluded, however, under section 5152, subdivision (l)(b), the child had equal or stronger ties to California and “there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships” in spite of the fact he had been absent for five years. The court relied on the language of the statute, the Code Commissioner’s Notes and the facts, as earlier stated, among which were the facts the child’s grandparents lived in San Francisco and his relatives there had a good relationship with him. It noted there is additional significance in the fact the parties themselves had submitted the issue of the child’s custody and visitation rights to the California court and, while that does not confer jurisdiction, an inference may be reasonably drawn the parties themselves considered the ties to California are stronger. (Smith v. Superior Court, supra, 68 Cal.App.3d 457, 464-465, fn. 3.)

By analogy it may be said, just as in Smith where California assumed jurisdiction though it was not the “home state” of the child, North Dakota also has the right to assume jurisdiction. North Dakota’s jurisdiction in the case before us rests on the same basis as did California’s jurisdiction in Smith.

It is apparent under the Uniform Act both California, as the home state, and North Dakota have jurisdiction over the custody of this child. The question remaining is which state should exercise it.

The Uniform Act authorizes a court to relinquish jurisdiction or to stay proceedings in favor of the proceedings in the court of a sister state if it finds it is an inconvenient forum⁷ or if there is misconduct.⁸ Our courts have on occasion held it an abuse of discretion not to stay proceedings where the other court is clearly the most convenient forum with access to relevant evidence (Schlumpf v. Superior Court, 79 Cal.App.3d 892 [145 Cal.Rptr. 190]; Clark v. Superior Court, supra, 73 Cal.App.3d 298). Nothing in the Uniform Act, however, gives a court the authority to determine it has a superior right to proceed where another court is also asserting jurisdiction. On the contrary, the Uniform Act provides a means to resolve the issue in an orderly manner without letting a state make factual rulings binding on another. Section 5155 reads as follows:

“(1) A court of this state shall not exercise its jurisdiction under this title if at the time offiling the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this title, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

“(2) Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under 5159 and shall consult the child custody registry established under 5165 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.

. “(3) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with Sections 5168 through 5171. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it ¡shall likewise inform the other court to the end that the issues may be. litigated in the more appropriate forum.” (Italics added.)

The Uniform Act was thus designed to solve this very problem of conflicting jurisdictions. The state which enjoys priority of time in initiating the proceedings will proceed if the dispute is not resolved by agreement or consent of the other court.⁹

Moreover, where a custody decree has been made, section 5163, subdivision (1), becomes relevant. That provision reads: “(1) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (a) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this title or has declined to assume jurisdiction to modify the decree and (b) the court of this state has jurisdiction.”

Professor Bodenheimer, the reporter for the committee which prepared the Uniform Law, interprets the effects of section 5163 (§ 14 of the Uniform Act) as follows: “A typical example is the case of the couple who are divorced in state A, their matrimonial home state, and whose children are awarded to the wife, subject to visitation rights of the husband. Wife and children move to state B, with or without permission of the court to remove the children. State A has continuing jurisdiction and the courts in state B may not hear the wife’s petition to make her the sole custodian, eliminate visitation rights, or make any other modification of the decree, even though state B has in the meantime become the ‘home, state’ under section 3 [Civ. Code, § 5151(5)]. The jurisdiction of state A continues and is exclusive as long as the husband lives in state A unless he loses contact with the children, for example, by not using his visitation privileges for three years.” (Bodenheimer, Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws (1969) 22 Vand. L.Rev. 1207, 1237; see similar examples in Commissioner’s Notes to § 3, Uniform Child Custody Jurisdiction Act.) Substitute North Dakota for “A” and California for “B” and you have the present fact situation. All petitions for modification are to be addressed to the state which rendered the original decree if that state has jurisdiction under the standards of the Uniform Act (In re Marriage of Schwander, 79 Cal.App.3d 1013, 1019 [145 Cal.Rptr. 325]).

We can understand the trial judge’s concern over California not being able to determine custody of its own residents and the possibility of multiple proceedings in the action. This very concern states have for their residents or for those merely within their borders has caused the interstate conflicts and thus prompted the Legislature to adopt the Uniform Act.

The Uniform Act permits the state which first obtained jurisdiction to exercise it. It does not shock the conscience that California must bow to North Dakota and yet appear to have greater access to the facts.¹⁰ The North Dakota court may have abused its discretion in not permitting California to exercise jurisdiction. “ ‘[T]here is no reason why [the] courts of one state should not be able to “assume with confidence that the courts of the other jurisdiction will act with wisdom and sincerity in all matters pertaining to the welfare of this child.” [Citations.]’ ” (Ferreira v. Ferreira, 9 Cal.3d 824, 841, fn. 21 [109 Cal.Rptr. 80, 512 P.2d 304]; see also In re Marriage of Steiner, 89 Cal.App.3d 363, 372-373 [152 Cal.Rptr. 612].) In this connection, the statements of the referee related to the trial judge here do not necessarily establish the fact the North Dakota court will not exercise its jurisdiction substantially in conformity with this Uniform Act.

If California is the more appropriate forum for the custody decision because of the location of witnesses, etc., North Dakota should stay its proceedings and allow California to proceed (§ 5156). If the North Dakota trial court makes the wrong decision on whether to stay its proceedings, the appellate court of North Dakota should rectify the mistake. This is not the California trial or reviewing court function. The purpose of section 5156 is to provide the court with a tool to allow another court to go forward, not to create a confrontation or deny another court the authority to proceed. Were the roles of North Dakota and California reversed on these facts, we would expect the courts of North Dakota would require the proceedings in that state to be stayed (see Bosse v. Superior Court, 89 Cal.App.3d 440, 443-445 [152 Cal.Rptr. 665]; In re Marriage of Kern, 87 Cal.App.3d 402 [150 Cal.Rptr. 860]).

The only exception noted in the Uniform Act for a state exercising jurisdiction contrary to this provision giving priority to the time the proceeding is initiated is where the child is abandoned or endangered (§ 5152, subd. (l)(c)) or where no forum has jurisdiction under the provisions. Neither of these conditions exists (§ 5152, subd. (l)(d)). While full faith and credit has never been given to foreign custody decrees by California courts (see 53 Harv.L.Rev. 1024, 1029), foreign decrees must be given “due consideration” on the grounds of comity (Sampsell v. Superior Court, 32 Cal.2d 763, 780 [197 P.2d 739]). The Uniform Act makes a comprehensive attempt to accommodate all these state interests (see The Uniform Child Custody Jurisdiction Act and the Continuing Importance of Ferreira v. Ferreira, 62 Cal.L.Rev. 365). It should be adhered to by our courts.

We hold under the facts of this case the California court was required to stay its proceedings under Civil Code section 5155, subdivision (1), because a custody proceeding was already pending in North Dakota and the relief sought amounted to a modification of the North Dakota decree when that state still had jurisdiction and had assumed it (§ 5163, subd. (l)(a)). North Dakota has continuing jurisdiction under the Uniform Act and the right to exercise it. There is nothing in the record to show North Dakota was not acting substantially in conformity with this Uniform Act.

Let a writ of prohibition issue directing the respondent San Diego County Superior Court to stay all proceedings in case number 421423 until such time as it may resume such custody proceedings in accordance with Civil Code section 5155 and the other sections of the Uniform Child Custody Jurisdiction Act and to vacate all orders made in connection with such proceedings.

Brown (Gerald), P. J., concurred.

1 All references to sections of the Uniform Act are in the California Civil Code unless otherwise designated. The Uniform Act may be found in section 5150 et seq. The language of the Uniform Act adopted by California and North Dakota (N.D. Century Code, §§ 14-14-01 to 14-14-26) is not significantly different as it relates to the issues raised in this case.

2 Section 5150 of the Uniform Act reads as follows: “(1) 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.”

3 The court found the child was “domiciled” in California, a fact not necessary to finding jurisdiction (see-Commissioner’s Notes to § 3 of the Uniform Act (our § 5152); Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, (1969) 22 Vand.L.Rev. 1207, 1224-1226).

4 Jurisdiction exists only if it is in the child’s best interest, not merely the interest or convenience of the contending parties (see Commissioner’s Notes to § 3 of the Uniform Child Custody Jurisdiction Act).

5 Section 4600 provides in part, “In any proceeding where there is at issue the custody of a minor child, the court may, during the pendency of the proceeding, or at any time thereafter, make such order for the custody . . . .” (Italics added.)

6 Code of Civil Procedure section 410.50, subdivision (b), provides: “Jurisdiction of the court over the parties and the subject matter of an action continues throughout subsequent proceedings in the action.”

7 Section 5156 reads as follows: “(1) A court which has jurisdiction under this title to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

“(2) A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.

“(3) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:

“(a) If another state is or recently was the child’s home state.

“(b) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.

“(c) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.

“(d) If the parties have agreed on another forum which is no less appropriate.

“(e) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Section 5150.

“(4) Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.

“(5) If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.

“(6) The court may decline to exercise its jurisdiction under this title if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.

“(7) If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorney’s fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.

“(8) Upon dismissal or stay of proceedings under this section the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.

“(9) Any communication received from another state informing the state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction the court of this state shall inform the original court of this fact.”

The authority given is strictly to relinquish or stay when there is a finding it is an inconvenient forum. Subdivision (4) gives authority to communicate with the court of a sister state hopefully to reconcile any differences.

8 Section 5157 deals generally with the clean hands doctrine which is not in issue in this case.

9 The Code Commissioner’s Notes to section 5155 (§ 6 of the Uniform Act) read in part: “Because of the havoc wreaked by simultaneous and competitive jurisdiction . . . this section seeks to avoid jurisdictional conflict with all feasible meáns, including novel methods. Courts are expected to take an active part under this section in seeking information about custody proceedings concerning the same child pending in other states. In a proper case jurisdiction is yielded to the other state either under this section or under section 7 [§ 5156], Both sections must be read

“When the courts of more than one state have jurisdiction under sections 3 [§ 5152] or 14 [§ 5163], priority in time determines which court will proceed with the action, but the application of the inconvenient forum principle of section 7 [§ 5156] may result in the handling of the case by the other court.

“While jurisdiction need not be yielded under subsection (a) if the other court would not have jurisdiction under the criteria of this Act, the policy agairist simultaneous custody proceedings is so strong that it might in a particular situation be appropriate to leave the case to the other court even under such circumstances. . . .

“Once a custody decree has been rendered in one state, jurisdiction is-determined by sections 8 [§ 5157] and 14 [§ 5163].”

10 Section 5156, subdivision (7), allows necessary travel expenses and costs of the parties and their witnesses in the more convenient forum.