Filed 3/29/18 Caldwell v. Randall CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


FANCHON BRIANNA CALDWELL,
Plaintiff and Appellant,
v.
JEFFREY G. RANDALL,
Defendant and Respondent.

A148053 & A149738

(San Mateo County Super. Ct.
Nos. FAM0129072; FAM0131885)


Appellant Fanchon Brianna Caldwell appeals in case No. FAM0129072 from the San Mateo County Superior Court’s order (Hon. Susan Greenberg) granting the motion, filed by respondent Jeffrey G. Randall, to quash and dismiss appellant’s consolidated petitions to establish parental relationship as to the parties’ minor child, G.C., and their then unborn child, based on the court’s finding that California lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.) to make initial child custody determinations regarding the parties’ minor child, G.C. On appeal, appellant contends the court erred when it (1) found that then eight-month-old G.C.’s home state is Nevada for purposes of the UCCJEA; (2) included the parties’ then unborn child in its dismissal of the consolidated petitions; (3) failed to communicate with the Washoe County, Nevada court, where respondent had commenced a competing family law action; and (4) failed to render a statement of decision.
Appellant appeals in case No. FAM0131885 from the court’s order (Hon. Richard H. DuBois) granting respondent’s motion to quash and dismiss appellant’s petition to establish parental relationship as to newborn G.E.C., on the ground that it was bound by Judge Greenberg’s previous finding that California courts lacked jurisdiction under the UCCJEA with respect to G.E.C. On appeal, appellant contends (1) the petition at issue in this case was not the same petition dismissed by Judge Greenberg, and (2) section 7633 did not stay Judge Greenberg’s order and does not apply to this case.
For the reasons discussed herein, we shall reverse the orders in case Nos. FAM0129072 and FAM0131885, and remand the matters for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Case No. FAM0129072
Appellant and respondent, parents of G.C. and G.E.C., began dating around April 2012, but broke up shortly after appellant became pregnant with G.C., around April 2014. G.C. was born in San Francisco in early January 2015. It was later established by genetic testing that respondent is her father.
On April 15, 2015, respondent filed a request to determine parentage as to G.C., in Reno, Nevada.
On May 6, 2015, in case No. FAM0129072, appellant filed in the San Mateo County Superior Court a petition to establish parental relationship regarding G.C., which included a request for orders related to custody and child support.
The parties reconciled briefly in May 2015. During that reconciliation, appellant again became pregnant with a child (the unborn child or G.E.C.) who was not yet born at the time the family court entered the orders from which appellant appealed in case No. FAM0129072.
On June 15, 2015, appellant filed a request for order regarding the unborn child, which also included a request for orders related to custody and child support. At appellant’s request, this petition was consolidated with the pending petition regarding G.C.
On July 17, 2015, respondent filed a motion to quash, alleging that the court lacked subject matter jurisdiction as to either G.C. or the unborn child. Respondent also filed a declaration under the UCCJEA, stating that there was a pending paternity action in Washoe County, Nevada.
On September 4, 2015, respondent filed a request for a statement of decision “explaining the legal and factual bases for each of the court’s decisions regarding the principal controverted issues of child support, child custody and visitation, and attorney’s fees and costs.”
At a September 9, 2015 hearing on appellant’s consolidated petitions to establish parental relationship, Judge Greenberg expressed her “concern that there is a hearing in one week’s time here on the motion to quash and dismiss the petition to establish parental relationship. And it appears to me from everything that I read that that has to go forward first before we can establish child support and any attorney fees and cost requests.” The court therefore postponed the hearing on appellant’s petitions until after the hearing on respondent’s motion to quash. The judge also made temporary emergency orders regarding visitation for respondent.
The hearing on respondent’s motion to quash took place on September 15, 2015. At the conclusion of the hearing, Judge Greenberg found that under the UCCJEA, “the home state [of the minor child] is Nevada, [and] California lacks jurisdiction. The evidence is beyond clear that that is the home state of the minor child. That is[,] the evidence that would be necessary for these proceedings . . . is located in Nevada . . . . The motion to quash and dismiss is granted.” At the hearing, the judge reiterated that it had temporary emergency jurisdiction to make orders regarding visitation under the UCCJEA. Judge Greenberg stated that “the visitation until it gets sent back to Nevada will be every other day” for four hours.
In October 15, 2015 written findings and orders after hearing, Judge Greenberg ordered, inter alia:
“1. [Respondent’s] Motion to Quash and Dismiss is granted, and [case No.] F0129072 is dismissed.
“2. Nevada is the home state of the minor child, [G.C.], and Nevada is the proper state to exercise jurisdiction under the UCCJEA.
“3. Temporary, emergency visitation is ordered for [G.C.’s] father. . . , pending further order from the Nevada Court, [case No.] FV15-02673, pending in Washoe County Nevada.”
On April 5, 2016, appellant filed a notice of appeal.
Case No. FAM0131885
G.E.C. was born in February 2016 in San Francisco. On February 16, in case No. FAM0131885, appellant filed a petition to establish parental relationship regarding G.E.C. in the San Mateo County Superior Court, which included a request for orders related to custody and child support. On March 8, appellant filed a request for order to establish, inter alia, child support and attorney fees, also as to G.E.C.
On March 21, 2016, respondent filed a motion to quash, alleging that the court lacked subject matter jurisdiction as to G.E.C. under the UCCJEA.
On May 26, 2016, DCSS filed a declaration stating that it did not consent to respondent’s requested order.
On July 7, 2016, appellant filed a request for order to establish custody and visitation as to G.E.C.
On July 14, 2016, DCSS filed an order to show cause for child support in case No. FAM0131885, in which counsel for DCSS stated that it was intervening in the case and requested a judgment as to G.E.C. regarding, inter alia, parentage and child support.
On July 15, 2016, at the conclusion of the hearing on respondent’s motion to quash, Judge DuBois stated that he was going to grant the motion to quash and dismiss the case before him, “based upon the fact that this matter has been previously litigated [by Judge Greenberg], and the court has to follow the rulings in the case that had the exact same issues. [¶] The appeal portion of it, I just point out, that it is on appeal. If it comes back and it turns out Judge Greenberg’s ruling was wrong, then we’re back in the ball game, and you really don’t need a new petition at that point in time because it would come back to me under the case ending 072.”
On August 30, 2016, Judge DuBois entered, inter alia, the following findings and orders after hearing: “This court, the Honorable Judge Susan Greenberg, at the hearing held on September 15, 2015, and by Order filed October 15, 2015, granted [respondent’s] motion to quash and dismiss two petitions filed by [appellant] for paternity and custody claims regarding [G.C.] and then unborn [G.E.C.] in case No. FAM0129072 involving the same parties herein, finding that: California lacked jurisdiction under the UCCJEA, that Nevada was the appropriate state to exercise jurisdiction under the UCCJEA; and that the evidence that would be necessary to litigate such petitions is located in Nevada . . . .
“ . . . . The Order finding Lack of Jurisdiction, including dismissal of both petitions is currently pending on appeal . . . before the California Court of Appeal.
“ . . . . This court will not disturb, and will follow the Order Finding Lack of Jurisdiction, unless directed otherwise by the California Court of Appeal.
“ . . . . Based on the argument at the hearing and the evidence and arguments submitted in the timely filed briefs regarding [respondent’s] motion, the court grants the motion.
“ . . . . Having granted [respondent’s] motion, case No. FAM0131885 is dismissed, judgment is entered dismissing such case, and all subsequently scheduled hearings in case Nos. FAM0131885 and FAM0129072 are vacated.
“The DCSS matter on calendar is dismissed for lack of service.”
On October 28, 2016, appellant filed a notice of appeal.
DISCUSSION
I. The UCCJEA
“California adopted the UCCJEA effective January 1, 2000. [Citations.] The UCCJEA is the exclusive method of determining subject matter jurisdiction in child custody cases. (§ 3421, subd. (b); [citation].) Subject matter jurisdiction over a child custody dispute either exists or does not exist at the time the petition is filed, and jurisdiction under the UCCJEA may not be conferred by mere presence of the parties or by stipulation, consent, waiver, or estoppel. [Citation.]
“The purposes of the UCCJEA are ‘to avoid jurisdictional competition between states or countries, promote interstate cooperation, avoid relitigation of another state’s or country’s custody decisions and facilitate enforcement of another state’s or country’s custody decrees. [Citation.]’ [Citation.] ‘Pursuant to the UCCJEA, California courts have jurisdiction over child custody determinations only if the child’s home state is California, or the child’s home state does not have jurisdiction or declined jurisdiction in favor of California. (§ 3421.)’ [Citation.] The UCCJEA prioritizes home state jurisdiction over other bases of jurisdiction. [Citations.]” (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1287–1288, fn. omitted.)
“[A]s with any statute, interpretation of the UCCJEA is a question of law we review de novo. [Citations.]” (Schneer v. Llaurado, supra, 242 Cal.App.4th at p. 1287.)
II. The Court’s Failure to Communicate with the Nevada Court
Regarding the 2015 Consolidated Petitions
Appellant contends Judge Greenberg prejudicially erred when she failed to communicate with the Washoe County, Nevada court, where respondent had commenced a competing family law action as to G.C. We agree.
A. Trial Court Background
At the September 9, 2015 hearing, Judge Greenberg postponed the hearing on appellant’s consolidated petitions for child support, attorney fees, and costs until after it determined the jurisdiction question at a hearing scheduled for September 15. She did, however, make temporary emergency orders regarding visitation, pending the September 15 hearing.
Judge Greenberg also stated that “between now and next Tuesday [September 15], what I will have to do is speak with the court in the other county where the other petition has been filed which is [Washoe County]. [¶] With regard to the UIFSA [Uniform Interstate Family Support Act] issue and who has frankly, jurisdiction to make any temporary orders with regards to visitation. I believe I saw in [appellant’s] pleadings that there was a suggestion for supervised visitation pending the Family Court Services mediation. Again, I’m not even sure that that will happen in this county depending on my discussion with the court in Washoe County and what happens on September 15th. But if the parties wanted to set up something like that in the next to tie us over for one week [sic], I wouldn’t be opposed to it.” The following exchange then occurred:
“[Appellant’s attorney]: I certainly would be willing to discuss that . . . . I would point out to the court that the Nevada action initiated by [respondent] is being contested, and as I understand it, there is an upcoming hearing on that contest.
“THE COURT: I remember reading that. I don’t remember the date of the hearing.
“[Appellant’s attorney]: I don’t think that it has been set yet, has it?
“[Appellant]: No.
“THE COURT: Okay, that’s why I don’t remember the date.”
Subsequently, some two months after Judge Greenberg ordered case No. FAM0129072 dismissed, the Nevada family court held a case management conference in the Nevada action regarding the older child, G.C. On December 24, 2015, the Nevada judge entered an interim order in which she stated: “According to the Parties, the issue of child custody jurisdiction was fully litigated in California, including depositions. The California court made a finding in September 2015 that Nevada was the home state for UCCJEA jurisdiction purposes. This determination was made without communicating with this court, as is required by the UCCJEA. Nevertheless, the California court dismissed their custody action, but in its order for dismissal it included a temporary emergency visitation schedule. . . .
“The parties continue to dispute home state jurisdiction. However, the parties desired this court enter temporary orders regarding custody, which the court finds is in the best interest of their child due to the high conflict between the parties and based upon the California court’s finding that Nevada is the home state. [Citation.] Further, the court finds the necessity to have a UCCJEA conference call with the California court based upon NRS 125A.355 to verify the California court’s findings.” The Nevada judge therefore made temporary custody and visitation orders, and also stated that it would attempt to schedule a conference call with the California court.
Two months later, at a February 25, 2016 hearing at which the parties and their Nevada counsel were present, the Nevada judge made a UCCJEA conference call to Judge Greenberg. The Nevada judge explained to Judge Greenberg that, “according to our UCCJEA statutes in Nevada, when there’s simultaneous proceedings, there’s a required UCCJEA call which is why I arranged this telephone conference.” After Judge Greenberg stated that she had found that Nevada was the home state of G.C., had made temporary emergency visitation orders, and ordered the petition dismissed, the Nevada judge asked Judge Greenberg, “[I]s there a reason why there wasn’t a UCCJEA call at the time of your hearing?” Judge Greenberg responded that she had asked at the September 15, 2015 hearing about the Nevada “judge the case had been assigned to and was told [by counsel that] it had not yet been assigned and it had just been filed and they had no information on who I could call.” Judge Greenberg said she had “accepted that representation” by counsel.
The Nevada judge stated that a department is assigned in the Nevada family court on the day a petition is filed, that the petition in this case was filed on July 18, 2015, and that the information that the matter had been assigned to Department 5 was therefore available at the time of the September 9 hearing in California. After respondent said that he had heard no statement made to Judge Greenberg at the September hearing regarding there being no assigned judge in the Nevada case, the Nevada judge told Judge Greenberg, “obviously you were not fully informed by . . . either party potentially about the assignment of the Nevada case to a specific judge, otherwise you would have had the UCCJEA call.” Judge Greenberg responded, “Exactly.”
The Nevada judge took the matter under submission, and on August 25, 2016, entered an “Order after Hearing on Inconvenient Forum.” In that order, the judge made a number of findings, including, inter alia, the following: “The child has resided primarily in California since her birth”; “[b]oth courts have had hearings and litigation regarding the family and California currently has an appeal pending. Therefore, both courts appear to have familiarity with the facts and issues of the pending litigation. California already has entertained a case on a younger sibling of [G.C.], who was born in California and has continuously resided in California, which this court has not entertained.”
The Nevada judge continued, “Based upon the foregoing, this court finds it would be an inconvenient forum to address custody in Nevada under the circumstances and that California is a more appropriate forum. There exists in California an entire life of evidence regarding the parties and their child[ren] and it would be in the child[ren]’s best interest that the California court address custody.” The judge then made the following orders:
“1. This court declines to exercise jurisdiction based on inconvenience. [Citation.]
“2. This matter is stayed upon the condition that a child custody proceeding be promptly commenced in California. [Citation.]
“3. The interim order after case management conference shall continue until an order from California is issued.
“4. The trial dates set in this matter . . . are hereby vacated.”
B. Legal Analysis
“ ‘Section 3424 provides an exception to the exclusive jurisdictional bases for making a child custody determination in California.’ [Citation.] ‘A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.’ (§ 3424, subd. (a).) In enacting section 3424, subdivision (a), the Legislature intended to expand the grounds on which a court may exercise temporary emergency jurisdiction. (§ 3424, subd. (e).)
“Before a child custody determination is made under section 3424, notice and an opportunity to be heard must be given to all persons entitled to notice under the law of this state as in child custody proceedings. (§ 3425, subd. (a).) An evidentiary hearing, such as a detention hearing, that substantially complies with the essential procedural requirements of the UCCJEA is adequate to sustain temporary emergency jurisdiction. [Citation.]
“As relevant here, section 3424 states that ‘[i]f there is no previous child custody determination . . . and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, a child custody determination [made pursuant to temporary emergency jurisdiction] remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 3421 to 3423, inclusive. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.’ (§ 3424, subd. (b).)
“A court of this state can properly exercise emergency jurisdiction under section 3424, but it is required to contact, and provide notice to, a court of the other state to determine whether the other state wishes to assert jurisdiction under section 3421 and commence proceedings to protect the child. [Citation.] In addition, when a court of this state acting under temporary emergency jurisdiction is informed there is or has been a child custody proceeding in a court of a state having jurisdiction under section 3421, this court must immediately communicate with the other court. (§ 3424, subd. (d).) ‘Although the statute states the court shall immediately contact the other court, it does not provide any penalty for noncompliance. When a statute does not provide any consequence for noncompliance, the language should be considered directory rather than mandatory.’ [Citation.] Thus, even if the California court erred by not contacting the other court when it was required to do so, the error does not warrant reversal unless there is a showing of prejudice. [Citation.]
“Failure to comply with the procedural requirements of the UCCJEA is subject to harmless error analysis. [Citation.] [Appellant] must show it is reasonably probable that a result more favorable to [her] would have been reached in the absence of the error. [Citations.]” (In re R.L. (2016) 4 Cal.App.5th 125, 142–143 (R.L.), citing People v. Watson (1956) 46 Cal.2d 818, 836.)
In this case, at the time of the September 15, 2015 hearing on respondent’s motion to quash, Judge Greenberg knew that a child custody proceeding had been filed in Nevada. Indeed, the judge made clear at the September 9 hearing, when she first took temporary emergency jurisdiction of the matter, that she intended to contact the Nevada court before the next hearing. Judge Greenberg, however, failed to contact the Nevada court, as required under the UCCJEA, before the September 15 hearing when she again exercised temporary emergency jurisdiction under section 3424, found that Nevada was G.C.’s home state and that California therefore lacked jurisdiction over the child custody matter, and dismissed the consolidated petitions. This was error. (See R.L., supra, 4 Cal.App.5th at pp. 142-143.)
In addition, prejudice is demonstrated by the Nevada court records, which indicate that, had Judge Greenberg contacted the Nevada court, she would have learned that that court would “decline[] to exercise jurisdiction based on inconvenience,” after finding that “California is a more appropriate forum.” Under subdivision (a) of section 3421, Judge Greenberg likely would have found that the California courts have jurisdiction because, even assuming she would still find that California was not G.C.’s home state (§ 3421, subd. (a)(1)), it is reasonably probable that she would have found that California has jurisdiction because “a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum,” the child and at least one parent “have a significant connection with this state other than mere physical presence,” and “[s]ubstantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships” (§ 3421, subd. (a)(2)(A) & (B)), or because “[a]ll courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child” (§ 3421, subd. (a)(3)).
Hence, Judge Greenberg’s error in failing to make the required UCCJEA call (§ 3424, subd. (d)) before granting respondent’s motion to quash and dismissing the petitions was prejudicial to appellant. (See R.L., supra, 4 Cal.App.5th at p. 143; see also People v. Watson, supra, 46 Cal.2d at p. 836.)
III. Inclusion of the Unborn Child in Judge Greenberg’s Order Granting the
Motion to Quash and Judge DuBois’s Subsequent Related Order
Appellant contends Judge Greenberg erred when she included the parties’ then unborn child, G.E.C., in the 2015 order granting respondent’s motion to quash the consolidated petitions and dismissing the action, based on her finding that Nevada, not California, is the home state for purposes of UCCJEA jurisdiction. Appellant further contends Judge DuBois erred in failing to address the issue on the merits in the 2016 case before granting respondent’s motion to quash the subsequent petition as to G.E.C. and dismissing the action.
Section 3402, subdivision (g) defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” (Italics added.)
Thus, by its terms, subdivision (g) of section 3402 applies only to a child who has been born and, therefore, no jurisdictional finding can properly be made until after a child’s birth. (See Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955 (Haywood) [because child “was unborn when [mother] initiated the California action, California was not [child’s] home state ‘at the time of commencement of the proceeding, or . . . within six months before commencement of the proceeding” for purposes of determining home state jurisdiction under former § 3403, subd. (a)(1) (now § 3421, subd. (a)(1))].)
Here, at the time Judge Greenberg made her orders, G.E.C. was not yet born. In her written orders, the judge did not purport to decide either paternity or subject matter jurisdiction as to the unborn child. She did, however, dismiss the petition related to that child. Given that the record is not clear as to the court’s intent at the time of its order, we conclude that either Judge Greenberg made no findings as to the unborn child’s home state before dismissing the consolidated action, which included the petition as to the unborn child, or prematurely found that Nevada was that child’s home state for purposes of subject matter jurisdiction under the UCCJEA. (See § 3402, subd. (g); Haywood, supra, 77 Cal.App.4th at p. 955; accord, Ocegueda v. Perreira (2015) 232 Cal.App.4th 1079, 1085 [“according to the plain language of [section 3402, subdivision (g)], the period for determining the home state of a child who is less than six months of age starts with the child’s birth”].)
Moreover, even assuming, as respondent argues, that Judge Greenberg could make some order as to the unborn child under section 7633, which provides that “[a]n action under this chapter[ ] may be brought, an order or judgment may be entered before the birth of the child, and enforcement of that order or judgment shall be stayed until the birth of the child,” she plainly could not, as already discussed, properly make any jurisdictional determinations under the UCCJEA. (See § 3402, subd. (g); Haywood, supra, 77 Cal.App.4th at p. 955.)
Accordingly, because Judge Greenberg’s order as to the unborn child was either inadvertent or premature and, in any case, without effect, Judge DuBois was not in fact bound by that order in determining newborn G.E.C.’s home state and whether California has subject matter jurisdiction under the UCCJEA. (See § 3421, subd. (a).)
DISPOSITION
The orders in case Nos. FAM0129072 and FAM0131885 are reversed, and the matters are remanded to the family court for further proceedings consistent with this opinion, including a de novo jurisdictional determination as to G.C. and G.E.C. under the UCCJEA (§ 3421), in light of the rulings of the Nevada trial court, as discussed herein. (See § 3421, subds. (a)(1), (2) & (3). Costs on appeal are awarded to appellant, Fanchon Brianna Caldwell.


















_________________________
Kline, P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.

























Caldwell v. Randall (A148053 & A149738)