Marriage of Cisneros and Lujan

Filed 8/7/09 Marriage of Cisneros and Lujan CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of Imperial County, Donal B. Donnelly, Barrett J. Foerster, Judges; Poli Flores, Commissioner. Affirmed.

In this dissolution action, Appellant Wendy Lujan (Wendy) challenges the 2008 postjudgment orders of the family court that granted the motion by her former husband, Respondent David Cisneros (David), to modify child custody orders originating in the 2004 stipulated judgment of dissolution between the parties. By agreement, Wendy was awarded custody of the parties' twins, born in 2000, and David was awarded visitation rights. From 2001-2006, Wendy and the children lived off and on in Mexico and in Imperial County. Shortly after the 2004 entry of judgment, extensive litigation on custody issues began and has continued in both California and Mexico, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, 3400 et seq.; all further statutory references are to this code unless noted.)

Beginning in February 2005, David sought throughout a number of California proceedings to modify the judgment's custody orders on the basis that the children were being neglected and abused in Wendy's care, and he obtained a California order of sole custody in June 2005. However, from June through December, 2005, pursuant to Mexican court orders, the children were placed in shelter care there, based on findings of Wendy's drug abuse that adversely affected her parenting abilities. The parties and the Mexican court agreed that the children could be released to joint custody of the parents, but since January 2006, David has kept them in California.

The California orders that Wendy appeals were issued in March 2008 and formalized in August 2008. Pursuant to a mediation agreement reached by the parties, they award legal and physical custody to David, with Wendy to have supervised visitation on weekends. On appeal, Wendy asserts the trial court erred as a matter of law in finding that California has continuing jurisdiction over the custody issues. ( 3421, subd. (a)(1); 3422, subd. (a).) She also contends the trial court abused its discretion by failing to give adequate weight, for purposes of the custody determination, to the amount of time that Wendy had cared for the children while they were in Mexico, because stability and continuity are important values in custody matters. (Burchard v. Garay (1986) 42 Cal.3d 531, 535; Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 999.)

We reject Wendy's arguments that it was improper for the California superior court to continue to exercise its jurisdiction to supervise the parties' custodial arrangements, because their dissolution petition originated here and jurisdiction was never adequately transferred to Mexico under the standards of the UCCJEA. ( 3421, subd. (a); 3422.) We further find that the trial court did not abuse its discretion in making the custody and visitation awards, in light of all the relevant factors shown in the record, including changed circumstances. ( 3040, subd. (b) [best interest standard]; In re Marriage of Burgess (1996) 13 Cal.4th 25, 37, fn. 8 (Burgess).) The orders will be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

A. 2004 California Judgment; 2005 California

Modification Requests; Mexican Proceedings

The parties were married in 1999 and separated two years later. Their twins, D. and M., were born in San Diego in 2000. From about 2001 to 2003 and thereafter, Wendy took the children to live in Mexico. In July 2003, Wendy sought domestic violence restraining orders against David in Imperial County Superior Court, claiming residency there, but her claims were denied.

David originally filed his dissolution petition in 2001 in San Diego Superior Court, but he sought a change of venue to Imperial County in October 2003, due to his residence and employment there. On July 30, 2004, the Imperial County court issued a stipulated judgment of dissolution that included an award of joint legal and physical custody to both parties, with Wendy to have primary custody and David to have weekend visitation. This judgment was never appealed.

At this juncture, we note that although the parties have extensively discussed and argued the facts about the conditions under which the children were living from 2001 through the postjudgment period, as well as the parties' respective abilities to parent, it is not necessary for this court to summarize all the details that were presented to the trial court, because the nature of the legal issues presented on appeal do not require this kind of factual detail for a complete analysis. We are aware that the parties disagree on the accuracy of the factual summaries presented by each in their briefs, but we are required only to present the broad contours of the proceedings below, in the interest of focusing on the legal basis for the challenged postjudgment rulings.

On February 17, 2005, David brought a motion to modify the child custody orders to grant him sole physical custody, with Wendy to have joint legal custody. David alleged that the children were receiving gravely substandard parental, medical and dental care in Mexico, were not going to school, and his visitation efforts were being thwarted. Wendy responded that the children did not have any health or other problems, but that David had been violent toward her in the past. In an order issued in April 2005, the court did not modify the original custody award, except by adding conditions on visitation, medical appointments, and telephone access.

In June 2005, David filed ex parte and noticed motions in California to modify the custody orders, contending the children were being severely neglected. After a hearing in Imperial County, Judge Donnelly issued an order July 6, 2005, granting David sole legal and physical custody of the children pending further hearing, based upon evidence showing that Wendy's drug abuse and lifestyle were leading to ongoing harm to the children. California was designated as the primary jurisdiction for custody purposes, although the court acknowledged that Mexico had concurrent jurisdiction regarding the health, safety and welfare of the children.

In mid-June, 2005, David requested an investigation of Wendy's care of the children by the Mexican agency for child protective services, which is called "Integral Family Development" (DIF). David participated in the Mexican proceedings by seeking custody orders and claiming residence there, and he made a criminal complaint against Wendy for child abuse. DIF took the children into shelter custody after investigating and finding unsuitable Wendy's home situation, due to the use of drugs and domestic violence between Wendy and her boyfriend. Psychological evaluations of the children were carried out and the children were kept in custody until December 2005. No criminal charges were brought against Wendy, and she tested negative for drugs in July 2005 and again in 2006.

From August 2005 through November 2005, many continuances of the California custody matter were ordered, while the superior court attempted to and did contact the Mexican authorities, eventually discussing the case by telephone with a Mexican judge. Wendy challenged the DIF custody order by filing an amparo petition (similar to habeas corpus) in the Mexican court system.

Wendy's amparo petition was eventually successful, when in December 2005, the parents reached an agreement, accepted by the Mexican authorities, that the children would be released to the parents with alternating physical custody on a weekly basis. In January 2006, David stopped returning the children from California to Wendy in Mexico.

B. 2006 Stay of Custody Proceedings; Lifting of Stay in 2007

From February 2006, further litigation was pursued in California on the pending custody motion by David, and in Mexico on custody requests by Wendy. Each party was arguing jurisdictional issues and each sought a convenient forum determination, respectively. In March of 2006, Wendy obtained a Mexican custody order or "definitive judgment" in her favor. The Mexican court did not consider the existing California custody orders to be binding because they were not certified nor accompanied by letters rogatory.

On June 23, 2006, Wendy filed a petition in California requesting the return of the children to Mexico under the terms of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). (42 U.S.C.  11601 et seq.) The filing of this petition had the effect of staying and suspending the custody motion brought by David. Wendy's parents, Rodolfo and Irma Lujan, wanted to help her regain custody and assisted her in pursuing this jurisdictional challenge to the California court orders. Expert legal testimony was presented and the superior court took judicial notice of the terms of the Hague Convention.

From July 2006 through April 2007, numerous hearings took place in California on Wendy's Hague petition, in which she was claiming that the "habitual residence" of the children and herself (a term of art) was in Mexico. Both parties presented evidence about Wendy's parenting abilities and problems, and her occasional drug use and clean drug test in December 2006. Psychological evaluations of the children dated February 2006 were lodged with the trial court, reporting they had adjustment difficulties that the interviewer attributed to the neglect and abuse at Wendy's home, as reported by the children and David's relatives.

On April 13, 2007, the court (assigned Judge Foerster) ruled against Wendy's Hague petition claims, on the basis that the evidence showed California was the children's habitual residence, and Wendy retained significant California ties. In doing so, the court stated that it was not required to address a critical defense to the petition raised by David, that the children would be at a grave risk of harm if they were returned to Mexico. Instead, the court stated that the dispositive issue was that Wendy had not demonstrated that Mexico was the children's habitual residence, based upon the evidence of their living conditions and psychological states, and based on the existing California court orders and the 2004 dissolution judgment, which was final and binding. The court set a status conference to reactivate the custody and visitation motion brought by David.

Although Wendy originally appealed the ruling on the petition, that appeal was abandoned.

C. 2008 Rulings: Custody and Visitation

David's motion to modify was argued on March 18, 2008. Both parents were present and Wendy was assisted by her Mexican attorney as an interpreter. The parties had reached an agreement in mediation, that David would have sole legal and physical custody, with supervised visitation to Wendy. Wendy's parents, Rodolfo and Irma Lujan, were no longer pursuing a request that they have access to the children for visitation purposes. The court (Commissioner Flores) accepted the custody and visitation agreement, and essentially confirmed the 2005 custody order by Judge Donnelly. The court set a case management conference and made an interim attorney fee award in favor of David, but reserved any further determination on attorney fees for future proceedings. Wendy filed her notice of appeal on July 30, 2008.

A formal order summarizing the above rulings was signed August 5, 2008. The appeal is timely as to the March and August 2008 custody orders, although the time to appeal the July 2004 judgment has lapsed. The parties each filed their designations of the record. Several items that were designated by Wendy do not appear in the record, however. These include supplemental declarations by David, filed September 21, 2007, and by Wendy, filed October 1, 2007. Also, an order referring the parties to mediation in October 2007, and David's renewed motion filed December 21, 2007, were apparently omitted from the clerk's transcript. Wendy requested that the trial court issue an order relieving her from paying for additionally designated documents for the record, but the result of this motion is not included in our record.

DISCUSSION

I

INTRODUCTION, STATE OF THE RECORD

Wendy first contends that the 2004 California judgment's custody orders should have remained in effect, and that the trial court's legal and discretionary rulings otherwise were erroneous, or represented an abuse of discretion. In the alternative, she argues that California never had subject matter jurisdiction over the custody issues, or lost it at some point, because she had the right to move to Mexico and did so before the judgment was issued, without any timely objection by David. She requests that the Mexican orders for custody in her favor should now be enforced, or that a new hearing be ordered in California.

Before addressing these arguments, we first take note that the record, while extensive, does not include some of the designated material, such as the supplemental declarations apparently executed by the parties in September and October 2007. Under California Rules of Court, rule 8.155(b)(1), a remedy is provided for correcting the omission of such documents that were designated. If the court clerk omits a designated portion of the record, "a party may serve and file a notice in superior court specifying the omitted portion and requesting that it be prepared, certified, and sent to the reviewing court." (Ibid.) Apparently, there was a dispute during preparation of the record about who should pay, and those documents are not in the current record. As the appellant, Wendy has the burden of providing an adequate record, and of showing that error occurred and that it was prejudicial. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

In any case, this extensive record provides an ample basis against which to evaluate her claims, both those which are jurisdictional and reviewed de novo, and those that are discretionary and are based upon an allegedly incorrect evaluation of the criteria displayed in the record. (See pts. II, III, post.) The applicable standards of review do not permit this court to undertake discretionary reweighing of the factors relating to custody determinations, nor to substitute our judgment calls for those made by the trial court in discretionary matters. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) Hence, even though some materials (declarations) are missing, the record provided is adequate for our review of the 2008 postjudgment orders, as we next explain.

II

SUBJECT MATTER JURISDICTION: DE NOVO REVIEW

To the extent that Wendy is attacking the trial court's legal ruling that California may properly exercise jurisdiction over these custody disputes, we examine those arguments under a de novo standard of review on appeal. The essential facts of the parties' access to the court systems are not disputed, and the application to those facts of statutory provisions, such as the UCCJEA, presents questions of law suitable for appellate resolution de novo. (Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366-368; Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1148-1149; Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1180; Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) 8:4, p. 8-2.)

Even though the orders on appeal were reached pursuant to mediation agreements, Wendy is not prevented from challenging them for an alleged lack of subject matter jurisdiction. "The very nature of subject matter jurisdiction, as a required element distinct from that of jurisdiction of the parties, indicates that it cannot be conferred by consent, waiver, or estoppel." (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction,  13, p. 585; see, e.g., In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 593; In re Marriage of Ben-Yehoshua (1979) 91 Cal.App.3d 259, 263 [a parent's acceptance of service in California did not confer subject matter jurisdiction over custody of child, if the requirements of the UCCJEA were not met for California jurisdiction].)

Wendy has several alternative theories why subject matter jurisdiction in California is lacking. She first claims that since the orders on review are postjudgment orders, any basis for California jurisdiction could have lapsed when she took the children to live in Mexico before or after judgment, such that Mexico developed an interest in asserting jurisdiction over them based upon residence there. She also claims that since David participated in the Mexican litigation when the shelter care issues arose in mid-2005, he therefore submitted to its jurisdiction and California should have deferred to the Mexican courts. She faults the California courts for failing to do more to communicate with the Mexican courts. (See  3443, subd. (a) [allowing California courts to "recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with [the UCCJEA]"]; Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 956-957.) Wendy contends that, at most, only "temporary emergency jurisdiction" was being exercised in California at the relevant time periods. ( 3424; also see  3444 [regarding modification of other jurisdictions' temporary orders].)

Under section 3421, subdivision (a)(1), California courts have jurisdiction to make initial child custody determinations where, as relevant here, California was "the home state of the child on the date of the commencement of the proceeding." Also, if California were the home state of a parent for six months before the commencement of the proceeding, but the child was absent, jurisdiction would still be proper here. David and the children are U.S. citizens and David continued to live in California after he filed the dissolution petition here, and while the judgment was being processed, and afterwards. Also, Wendy has made no sufficient showing under section 3421, subdivision (a)(2) that the Mexican courts had a right to determine the case, on the basis that no other court was "available" to exercise jurisdiction from 2005 forward. In light of these statutory provisions, Wendy cannot rely on the postjudgment phase of the proceedings as giving rise to primary jurisdiction in Mexico.

Instead, the dispositive facts are that the dissolution petition was filed in California, and the judgment recites that the children resided in the United States at the time of filing. Under section 3422, the California court that made the initial child custody determination "has exclusive, continuing jurisdiction over the determination," absent the making of a ruling that no significant California contacts remained for the child, parent, or parental figure. (In the latter event, there would be no substantial evidence available "in this state concerning the child's care, protection, training, and personal relationships," but that is not the case here;  3422, subd. (a)(1), (2).)

A plain reading of section 3421 et seq. shows that the initial jurisdictional determinations were made in California and that California courts at all times retained the responsibility to supervise the parties' custodial arrangements. There was no obligation under section 3443, subdivision (a), for the California court to "recognize and enforce a child custody determination of a court of [Mexico]," because it was not demonstrated that the Mexican courts were exercising jurisdiction in substantial conformity with the UCCJEA. Rather, at the time that the Mexican courts were adjudicating Wendy's request for custody in 2005-2006, primary jurisdiction had already been asserted by California courts under the UCCJEA: First, when the dissolution petition was filed, again when the stipulated judgment was entered, and when the February 2005 and June 2005 custody proceedings were adjudicated. Wendy has no tenable basis to claim that the Mexican proceedings interrupted or superseded the subject matter jurisdiction of the California courts over these custody matters.

III

CUSTODY: ABUSE OF DISCRETION REVIEW

When a trial court makes an initial custody determination, it has " ' "the widest discretion to choose a parenting plan that is in the best interest of the child." [Citation.] It must look to all the circumstances bearing on the best interest of the minor child. [Citation.]' [Citation.]" (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1087 (LaMusga), italics omitted; Burchard v. Garay, supra, 42 Cal.3d 531, 535.) The considerations and interests in both initial custody determinations and "change of circumstances" custody matters are closely interrelated. (Burgess, supra, 13 Cal.4th 25, 37, fn. 8;  7501.) " 'The [changed circumstance] rule requires that one identify a prior custody decision based upon circumstances then existing which rendered that decision in the best interest of the child. The court can then inquire whether alleged new circumstances represent a significant change from preexisting circumstances, requiring reevaluation of the child's custody.' [Citation.]" (Burgess,supra, at p. 37.)

Here, we had a judicial custody determination in the 2004 judgment (joint), and again in June 2005 (sole custody to David, subject to further hearings). Essentially, although David was the original moving party in 2005, and he obtained a sole custody order pending further hearings, that order was not confirmed until March 2008. Wendy is now in the position of a parent whose demonstrated lack of care in 2004-2005 led to placement of the children in a shelter and her loss of joint custody as ordered by the dissolution judgment. She is now seeking to restore the original custody plan. However, there is substantial evidence in the record that David has been acting as the custodial parent since the 2005 order and the 2006 nonreturn of the children (e.g., by providing medical care). (Haywood v. Superior Court, supra, 77 Cal.App.4th 949, 954.) When he did not return the children, that decision was allowable under the California order, even though there was a conflicting Mexican order (that was not shown to be in conformity with the UCCJEA, under all the circumstances).

In evaluating whether a custody and visitation order represents an abuse of discretion, appellate courts generally seek to determine "whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citation.]" (In re Marriage of Loyd (2003) 106 Cal.App.4th 754, 759.) An important circumstance that must be considered in deciding whether to maintain an ongoing custody arrangement is the child's "paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds . . . ." (In re Marriage of Melville (2004) 122 Cal.App.4th 601, 611; Burgess, supra, 13 Cal.4th at pp. 32-33.) The trial court " 'should preserve the established mode of custody unless some significant change in circumstance indicates that a different arrangement would be in the child's best interest.' [Citation.]" (Id. at p. 38.)

Even where the trial court's ruling does not expressly enumerate the criteria considered, "the lack of such a statement does not constitute error and does not indicate that the court failed to properly discharge its duties. [Citation ['A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness'].]" (LaMusga, supra, 32 Cal.4th at p. 1093.) As the appellant, Wendy has the burden of showing that a prejudicial abuse of discretion occurred. (Maria P. v. Riles, supra, 43 Cal.3d 1281, 1295-1296.)

Wendy now contends that (assuming California courts have subject matter jurisdiction), the 2008 modification orders represent an abuse of discretion (even in light of her agreements to them after mediation), because the custody determination failed to take into enough account any positive effects or stability interests attributable to her previous custody of the children, from 2001 until June 2005. With regard to the time while the children were in shelter care, she asserts that she continued to visit them, while David did not, and therefore the California court did not give her enough credit for her efforts. Also, she tested free of drugs in July of 2005 and again in 2006.

Wendy continues to rely on the ruling on her Hague petition, by claiming it contains no finding that there would be a grave risk of harm to the children if they were returned to her care in 2006 or thereafter. She points out that she has a right to change her place of residence, and also those of the children if their best interests would not be adversely affected. ( 7501.)

Notwithstanding Wendy's selective citation of the evidence in favor of her parenting abilities, the record contains an ample basis for the trial court to make a discretionary determination that modification of the original custody orders was justified, due to a " 'significant change in circumstance [that] indicates that a different arrangement would be in the child's best interest.' [Citation.]" (Burgess,supra, 13 Cal.4th at p. 38.) The trial court presented with David's ongoing modification requests in 2008 was aware of the history of litigation in both the Mexican and California courts, and of the documentation of the various problems that the children had while in Wendy's care. Their February 2006 psychological evaluations were lodged and available to the trial court, and showed they had adjustment difficulties that the interviewer attributed to the neglect and abuse at Wendy's home, as reported by the children and David's relatives.

When reviewing courts evaluate a superior court custody ruling, they inquire " 'whether the trial court could have reasonably concluded that the order in question advanced the "best interest" of the child.' " (LaMusga,supra, 32 Cal.4th 1072, 1086; Burgess, supra, 13 Cal.4th at p. 32.) " '[I]n view of the child's interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change [in custody] is in the child's best interests.' [Citation.]" (Burgess,supra, 13 Cal.4th 25, 37.) In 2008, the trial court had to take into account both the original joint custody plan and the 2005 modification of it on a temporary basis. If we view Wendy as the noncustodial parent who is now seeking to alter the more recent sole custody order, she would have to show there was a substantial change of circumstances to justify a return to the original status quo, to best promote the children's welfare. (Ibid.)

From all of the circumstances reported to the trial court, it could very reasonably conclude that confirming the modification order, to place sole custody in David, would advance the "best interest" of the children. (LaMusga,supra, 32 Cal.4th 1072, 1087; Burgess, supra, 13 Cal.4th at p. 32.) It was not necessary for the court to rule that Wendy's care would inevitably present "grave risks" to the children, within the meaning of the Hague Convention terminology. (That portion of the case was concluded.) Based on the entire history of the case as revealed in this record, the trial court acted well within its discretion in making express and implied findings that modification was appropriate based on changed circumstances, because the children would benefit the most from an award to David of their sole legal and physical custody. Wendy cannot show any abuse of discretion in the trial court's decision to modify the original custody orders.

DISPOSITION

The orders are affirmed. Wendy shall bear all costs on appeal.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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