People v. Howard

686 P.2d 644, 36 Cal. 3d 852, 206 Cal. Rptr. 124, 1984 Cal. LEXIS 217

• Court: California Supreme Court
• Decided: September 13, 1984
• Docket: Crim. 23091
• Status: Published

Opinions

Opinion

BIRD, C. J.

Does a reconciliation by a husband and wife cancel a child custody order which had been granted as part of an interlocutory decree of dissolution?

I.

In July 1978, after six years of marriage, Gene and Pamela Howard obtained an interlocutory judgment of dissolution, which gave Pamela custody of the couple’s two children. Gene was given visitation rights under the decree.

One month later, Gene moved back in with Pamela and their two children, and continued living with them for almost two years. During this period, Pamela and Gene resumed marital relations, and signed rental, checking and credit agreements as husband and wife. Also during this time, neither party attempted to enforce the provisions of the interlocutory decree, which, inter alia, called for the division of community property and Gene’s payment of child support to Pamela.

In June 1980, Gene went to Colorado and stayed for several weeks. He testified that he went to attend his brother’s funeral and to be with his ailing father. Pamela believed that Gene’s departure reflected the couple’s final split-up.

Sometime in July 1980, Gene telephoned Pamela and threatened to take the children without her permission. That same month, Pamela signed a request for a final judgment of dissolution^{1 2}which declared that “since entry of the interlocutory judgment, the parties have not become reconciled ”2

Gene felt that Pamela was neglecting the children.³ Accordingly, he returned to California. On August 5, 1980, Gene told the children’s babysitter that he wanted to take the children out for an hour or two. Instead, he returned with them to Colorado. While in Colorado, he refused to answer Pamela’s calls or to allow the children to call her.

Pamela notified the police. A month and a half later, Gene was arrested and charged with one count of child stealing, and was returned to California. He pled not guilty and was subsequently convicted by a jury of violating Penal Code section 278.5.⁴ Imposition of sentence was suspended and Gene was placed on probation for three years on the condition that he serve thirty days in county jail. This appeal followed.

Gene presents two contentions on appeal. First, he argues that the trial court erred in failing to instruct the jury with respect to reconciliation.⁵ As the basis for his argument, Gene contends that since he and Pamela had reconciled after the entry of the interlocutory decree, the decree and accompanying child custody order were no longer in effect. Without a valid decree, he could not have taken the children “in violation of a custody decree” as required by section 278.5.

Second, he asserts that the trial court erred in failing to give instructions involving a good faith mistake of law.⁶ Gene maintains that even if the child custody decree was still in effect, he should not be held criminally liable because he possessed a good faith but mistaken belief that the couple had reconciled, thereby nullifying the child custody order. Since appellant’s first claim is meritorious, his second contention need not be addressed.

II.

Section 278.5, subdivision (a) provided in pertinent part: “Every person who in violation of a custody decree takes, retains after the expiration of a visitation period, or conceals the child from his legal custodian, and every person who has custody of a child pursuant to an order, judgment or decree of any court which grants another person rights to custody or visitation of such child, and who detains or conceals such child with the intent to deprive the other person of such right to custody or visitation shall be punished by imprisonment in the state prison . . . .” (Italics added.)

The statute clearly required that there exist an order regarding custody rights. This court must therefore determine whether a child custody order was in effect at the time Gene took the children.⁷ To answer that question this court must decide whether a reconciliation by a husband and wife cancels a child custody order granted as part of an interlocutory decree of dissolution.

It is firmly established that “ ‘[wjhen parties become reconciled after an interlocutory decree and live together as husband and wife, the right to a final decree is destroyed [citations], and they are entitled to such rights as arise from the legal relation of husband and wife.’ [Citations.]” (In re Marriage of Modnick (1983) 33 Cal.3d 897, 911 [191 Cal.Rptr. 629, 663 P.2d 187], italics added.) The italicized language suggests that reconciliation restores each spouse to his or her full parental, as well as marital, rights—including the right to custody of the children. (See ante, fn. 7.)

Although the reconciliation issue has arisen in a variety of contexts,⁸ there does not appear to be any decision involving the question as to whether a custody order which is part of an interlocutory decree retains vitality after the parents have reconciled. However, in the related context of spousal support, “[reconciliation and a resumption of marital relations cancel the executory provisions of a property settlement agreement.” (Harrold v. Harrold (1950) 100 Cal.App.2d 601, 609 [224 P.2d 66]; Tompkins v. Tompkins, supra, 202 Cal.App.2d at pp. 59-60; Purdy v. Purdy (1956) 138 Cal.App.2d 402, 405 [291 P.2d 1005]; Morgan v. Morgan (1951) 106 Cal.App.2d 189, 192 [234 P.2d 782]; Peters v. Peters (1936) 16 Cal.App.2d 383, 386-387 [60 P.2d 313]; see also Cochran v. Cochran (1970) 13 Cal.App.3d 339, 349 [91 Cal.Rptr. 630] [“a bona fide reconciliation render[s] the restrictions in the interlocutory judgment nugatory . . . .”].) Under this reasoning, a reconciliation would cancel a child custody order granted as part of an interlocutory judgment.

This result is in harmony with the concept of reconciliation. In In re Marriage of Modnick, supra, 33 Cal.3d 897, this court observed that to determine if there has been a reconciliation, one “considers only the intent of the parties to permanently reunite as husband and wife.” (Id., at p. 912, fn. 14.) “[T]he party asserting the fact of reconciliation . . . must establish by ‘clear and cogent proof’ that the spouses mutually intended to resume their marital status and to live together on a permanent basis. . . . [f] The intention to reunite must be unconditional and contemplate a complete restoration of all marital rights.” (Id., at p. 911.)

When the parties have reconciled within the meaning of Modnick, they have decided to resume their marriage, and the interlocutory decree no longer governs.⁹ Thus, upon reconciliation the general rights and obligations of the marital relationship become effective once again. (Modnick, supra, 33 Cal.3d at p. 911.) As one out-of-state authority explained: “Itwould [sic] be a hard rule to hold that where the parties resume the marital relationship after entry of the interlocutory decree, that regardless of how happy the parties may have been for six months, one, two or three years, that one party could hold the interlocuory [szc] decree over the head of the other and demand that the line be toed.” (Lund v. Lund (1957) 6 Utah 2d 425, 427 [315 P.2d 856, 858]; accord Thomas v. Thomas (1982) 294 Md. 605 [451 A.2d 1215, 1223].)

Apply this analysis to the custody setting and it becomes clear that an order for child custody, like other aspects of the interlocutory decree, is cancelled when the parties effect a reconciliation before a final judgment of dissolution is entered.

The evidence introduced at trial established that Gene and Pamela had reconciled as a matter of law. Both testified that they had reconciled after the interlocutory decree was entered. They lived together as husband and wife for almost two years after the decree was issued. During this period, Pamela and Gene held themselves out as husband and wife, signing a rental agreement, maintaining a joint checking account, purchasing a bed on credit, signing contracts, engaging in sexual relations, and sharing the responsibility of raising their two children. Neither took any steps to enforce the provisions of the interlocutory decree. Clearly, Gene and Pamela “mutually intended to resume their marital status and to live together on a permanent basis. ... [1] [Their] intention to reunite [was] unconditional and contemplate[d] a complete restoration of all marital rights.” (Modnick, supra, 33 Cal.3d at p. 911.)¹⁰

Since Gene and Pamela reconciled before a final judgment of dissolution was entered, the child custody order which had been granted as part of the interlocutory decree was cancelled. Thus, the state failed to establish one of the essential elements of section 278.5—an existing child custody order. This failure alone requires reversal.

However, a general reversal is not an adequate remedy since a retrial would place appellant in jeopardy once again. (§ 1262.) Having once failed to establish all of the requisite elements of a section 278.5 charge, the prosecution is barred by the double jeopardy clause from retrying appellant. (Burks v. United States (1978) 437 U.S. 1, 11, 18 [57 L.Ed.2d 1, 9, 14, 98 S.Ct. 2141]; People v. Green (1980) 27 Cal.3d 1, 62 [164 Cal.Rptr. 1, 609 P.2d 468]; see also People v. Belton (1979) 23 Cal.3d 516, 527 [153 Cal.Rptr. 195, 591 P.2d 485].)

Accordingly, the judgment of conviction is reversed.

Kaus, J., Broussard, J., Reynoso, J., and Grodin, J., concurred.

1 Pamela signed the request on July 14, 1980, and it was filed two weeks later. Pamela testified that by the time of trial, the dissolution was final. The record, however, does not indicate when the final judgment of dissolution was actually entered.

2 At Gene’s trial, Pamela first testified that in the declaration for the final judgment of dissolution, she stated that she and Gene had not reconciled. On cross-examination, she admitted that that declaration was not true.

3 Gene’s mother, who lived across the street from Pamela, had told Gene that Pamela was not properly caring for the children in that she would leave them alone in the house at various times without supervision.

At the time of these events, the children were four and seven years old.

4 Gene was convicted of violating the 1976 version of section 278.5. (Stats. 1976, ch. 1399, § 11, p. 6315.) That statute was amended in 1983. (Stats. 1983, ch. 990, §4, p. —.) All further references to section 278.5 are to the 1976 version.

All statutory references are to the Penal Code unless otherwise noted.

5 At the conclusion of the trial, the defense requested an instruction on reconciliation. The proposed instruction read: “A husband and wife who are separated have reconciled when the facts show that they intended to reconcile. If reconciliation has occurred the duration of the reconciliation is of no consequence and it is irrelevant that the parties separate again.”

The trial court refused to give this instruction and instead instructed the jury that “[t]he validity or invalidity of the court order ... is not for your determination and must not enter into your deliberations in any way.”

6 The defense requested that the trial court give CALJIC No. 4.35, fourth edition 1979. That instruction provides: “An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime. [1] Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission lawful.”

Although CALJIC No. 4.35 is entitled “Ignorance or Mistake of Fact,” the trial court wrote on the face of the requested instruction “mistake of law denied.”

7 Without a custody decree in effect, both parents are equally entitled to custody of an unmarried minor. (See Civ. Code, § 197.) In addition, this court has stated that “ ‘[i]n the absence of an order or decree affecting the custody of a child, it is generally held that a parent . . . does not commit the crime of kidnapping by taking exclusive possession of the child.’ [Citations.]” (Wilborn v. Superior Court (1959) 51 Cal.2d 828, 830 [337 P.2d 65].) A similar conclusion obtains as to the crime of child stealing. (See Cline v. Superior Court (1982) 135 Cal.App.3d 943, 947 [185 Cal.Rptr. 787].)

8 See, e.g., Nelson v. Nelson (1936) 7 Cal.2d 449 [60 P.2d 982] (reconciliation bars entry of final judgment after subsequent separation; parties who have reconciled retain their status as husband and wife and are liable for the support of children conceived after the reconciliation); Estate of Abila (1948) 32 Cal.2d 559 [197 P.2d 10] (reconciliation permits spouse to claim inheritance rights); Estate of Edwards (1972) 25 Cal.App.3d 906, 912-913 [102 Cal.Rptr. 216] (same); Rickards v. Noonan (1940) 40 Cal.App.2d 266 [104 P.2d 839] (reconciliation allows surviving spouse to obtain full wrongful death damages despite absence of support provision in interlocutory decree); Tompkins v. Tompkins (1962) 202 Cal.App.2d 55, 59-63 [20 Cal.Rptr. 530] (reconciliation permits wife to bring new divorce action, free of the restrictions of prior interlocutory decree).

9 As a number of decisions have explained: “One of the great purposes of the law enforcing a . . . delay between the interlocutory and final decrees of divorce is to provide a period during which the parties may become reconciled and thus avoid the unhappy consequence of a final decree of divorce. ... It has been declared that one of the important purposes of the law is to give the spouses a chance to effect a reconciliation, which the law always favors.” (Rickards v. Noonan, supra, 40 Cal.App.2d at p. 274; see, e.g., Olson v. Superior Court (1917) 175 Cal. 250, 252 [165 P. 706, 1 A.L.R. 1589].)

10 The dissent asserts that there was only an “attempted reconciliation” and implies that Gene and Pamela merely cohabitated after the interlocutory decree was filed. (See post, at p. 864.)

The facts are to the contrary. Apart from all the indicia of reconciliation—from the couple’s buying a waterbed to their holding themselves out as husband and wife—there is Pamela’s testimony that: (1) things “worked out” sometimes; (2) she and Gene had resolved their differences; (3) she told others that she and Gene had reconciled; and (4) her signed declaration, stating that she and Gene had not reconciled, was false. This indicates a clear intent to “resume [the] marital status and to live together on a permanent basis.” (Modnick, supra, 33 Cal.3d at p. 911.)

The fact that the reconciliation failed is irrelevant. “If ... a reconciliation has occurred . . . the duration of the reconciliation is of no consequence, nor is it relevant that the parties again split up.” (Nacht v. Nacht (1959) 167 Cal.App.2d 254, 261 [334 P.2d 275].)

The dissent also concludes that the jury accepted Pamela’s “depiction of the events” as to the reconciliation (post, at p. 865), and “did not buy defendant’s story that he believed there had been a reconciliation that wiped out the previous order . . . .” (Post, at p. 866.)

The trial court, however, refused to give the jury any instructions on the question as to whether there had been a reconciliation. (Ante, fn. 5.) Thus, the jury never made any determination as to the reconciliation.