Marriage of Lamaria v. Ibrahim























Filed 4/8/13 Marriage of Lamaria v. Ibrahim CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




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In re the Marriage of HELEN MAMARIL LAMARIA and JOLIAN RAMEZ IBRAHIM.	B237111 (Los Angeles County Super. Ct. No. BD548861)
HELEN MAMARIL LAMARIA, Respondent, v. JOLIAN RAMEZ IBRAHIM, Appellant.

APPEAL from
an order of the Superior Court for the County
of Los
Angeles, Maren E. Nelson, Judge. Dismissed.



Law Offices of Callistus C. Anyaeto
and Callistus C. Anyaeto for Appellant.



Leslie
Ellen Shear; Law Offices of Patricia Anne Rigdon and Patricia Anne Rigdon for
Respondent.



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Appellant Jolian Ramez Ibrahim appeals from an order
granting his wife, respondent Helen Mamaril Lamaria, a href="http://www.mcmillanlaw.com/">protective order under the Domestic
Violence Prevention Act, imposing pendente lite custody and visitation orders
regarding the couple’s three minor children, and making an initial custody
determination of home-state jurisdiction in California under the Uniform Child
Custody Jurisdiction and Enforcement Act.
We conclude appellant has failed to discharge his burden of presenting
an adequate record on appeal to enable us to review the jurisdictional finding,
and that the interim custody orders are not appealable. We therefore dismiss the appeal.

>FACTS

Appellant
Jolian Ramez Ibrahim (Husband) and respondent Helen Mamaril Lamaria (Wife) met
in Wife’s country of birth, the Philippines. They married there in 1994, and then
relocated to Husband’s country of birth, Kuwait,
where he has extended family. In 2002,
the couple moved to the United States
and settled in California, where
members of Wife’s family live, including her sister.

Husband and
Wife have three minor children. Their
daughter, the eldest, was born in 1996, and the two boys were born in 2000 and
2002, respectively. All of the family
members are United States
citizens.

In 2002,
the family settled in Pasadena,
where Wife held a job as a nurse.
Sometime in 2006, Husband received a job offer for work in Kuwait. According to Wife, Husband represented it was
a temporary job that would last only for two years, and that it was a good
opportunity for the children to learn Arabic and spend more time with their
paternal cousins. Wife agreed to the
temporary move. Husband moved back to Kuwait
sometime during 2006 and Wife and the children followed in 2007. According to Husband, the move was always
intended to be a permanent relocation back to Kuwait.

In Kuwait,
the family lived in an apartment. They
held temporary residency visas which are automatically renewable so long as the
family has an employer sponsor supporting their presence in Kuwait
as foreigners. Toward the end of the
two-year job term, Husband told Wife the job had been extended another two
years.

While
living in Kuwait,
the family spent significant time in California
during the summer months when the children were out of school, staying with
Wife’s sister in Azusa. The family stored numerous belongings at the
sister’s home. Husband and Wife
maintained California driver’s
licenses and bank accounts, and Husband apparently voted in California
by absentee ballot. The family also
spent time visiting with Husband’s parents and brother who live in Connecticut.


Wife
returned to California with the
children in June 2011 and filed this action seeking the dissolution of her
marriage to Husband. Wife also filed an
application for a domestic violence protective order for her and the children,
and requested custody orders in her favor.
Husband opposed, contending he had not engaged in any abuse and that any
custody determinations had to be made in Kuwait,
the family’s country of residence.

After an
evidentiary hearing lasting several days in which both Husband and Wife
testified, the court granted a domestic
violence protective order in favor of Wife (it did not include the children
as protected persons), made interim custody and visitation orders, and found
that California has home-state jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act.

This appeal
followed.

>DISCUSSION

Husband appeals from the October
20, 2011 order granting Wife a domestic violence protective order, imposing
related pendente lite custody orders regarding the three children, and making
an initial custody determination of home-state jurisdiction in California under
the Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA (Fam.
Code, § 3400 et seq.). In addition to
challenging the merits of Husband’s appeal, Wife raises numerous procedural
objections, including that it arises from a nonappealable interlocutory order
and that Husband failed to present an adequate record of the underlying
proceedings.

Husband’s appeal of the trial
court’s October 20, 2011
order does not raise any substantive arguments as to the portion of the order
granting Wife a domestic violence protective order. Husband only argues the initial custody
determination under the UCCJEA is erroneous, and that the href="http://www.fearnotlaw.com/">custody and visitation orders are
improper and tantamount to a denial of visitation.

We address
the custody and visitation orders first.
The orders were interim orders and therefore are not appealable. “A temporary custody order is interlocutory
by definition, since it is made pendente lite with the intent that it will be
superseded by an award of custody after trial.
[Citation.] Code of Civil
Procedure section 904.1 bars appeal from interlocutory judgments or orders
‘other than as provided in paragraphs (8), (9), and
(11). . . .’ (Code Civ.
Proc., § 904.1, subd. (a)(1)(A).) [Fn.
omitted.] Temporary custody orders are
not listed in any of those paragraphs.
Therefore this statute precludes the appealability of such orders.” (Lester
v. Lennane (2000) 84 Cal.App.4th 536, 559-560 (Lester).)

As for the
court’s finding of home-state jurisdiction under the UCCJEA (Fam. Code, §
3421), Husband fails to cite any authority expressly holding that an initial
custody determination under the UCCJEA is immediately appealable. Husband’s bare citation to Family Code
section 3454 is not determinative of the issue presented here.href="#_ftn1" name="_ftnref1" title="">^[1] Section 3454, by definition, applies only to
appeals arising under chapter 3 titled “Enforcement.” (§ 3454 [“[a]n appeal may be taken from a
final order in a proceeding under this
chapter . . .”; italics added].)
Chapter 3 of the UCCJEA is devoted to efforts to enforce orders for the
return of a child under the Hague Convention on the Civil Aspects of
International Child Abduction or an existing child custody determination from
another state. (See § 3441 [defining a
“petitioner” under chapter 3 as “a person who seeks enforcement of an order for
return of a child under the Hague Convention on the Civil Aspects of
International Child Abduction or enforcement of a child custody
determination”]; see also Enrique M.
v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377 [“The Family Code
contains no express provision governing appeals of child custody orders, except
for those to enforce an order for the return of a child under the Hague
Convention on the Civil Aspects of International Child Abduction.”].) There is no child abduction order or existing
order from another jurisdiction at issue here.

However, an
initial custody determination under the UCCJEA becomes binding on all parties
duly served with a copy of the order who had notice and an opportunity to
participate in the hearing, and the custody determination imparts exclusive, continuing
jurisdiction on the issuing court to decide all subsequent custody
disputes. (See Fam. Code, §§ 3406,
3422.)href="#_ftn2" name="_ftnref2" title="">^[2]

Of particular relevance is Family
Code section 3406, which renders the initial custody determination >conclusive as to persons who participated
in the hearing. Section 3406
provides: “A child custody determination
made by a court of this state that had jurisdiction under this part binds all
persons who have been served in accordance with the laws of this state or
notified in accordance with Section 3408 or who have submitted to the
jurisdiction of the court, and who have been given an opportunity to be
heard. As to those persons, the determination is conclusive as to all decided
issues of law and fact except to the extent the determination is
modified.” (Italics added.) It is undisputed that both Husband and Wife
participated in the hearing below.

An initial
custody determination under the UCCJEA therefore bears the hallmarks of a
collateral order that is separately appealable notwithstanding the one final
judgment rule. “One exception to the
‘one final judgment’ rule codified in Code of Civil Procedure section 904.1 is
the so-called collateral order doctrine.
Where the trial court’s ruling on a collateral issue ‘is substantially
the same as a final judgment in an independent proceeding’ [citation], in that
it leaves the court no further action to take on ‘a matter which
. . . is severable from the general subject of the litigation’
[citation], an appeal will lie from that collateral order even though other
matters in the case remain to be determined.”
(Lester, supra, 84 Cal.App.4th at p. 561; see also 9 Witkin, Cal. Procedure,
supra, Appeal, § 99, p. 162 [“A
necessary exception to the one final judgment rule is recognized where there is
a final determination of some collateral matter distinct and severable from the
general subject of the litigation.”].)

>Lester suggests a jurisdictional finding
under the analogous federal statute, the Parental Kidnapping Prevention Act of
1980 (28 U.S.C. § 1738A), is directly appealable as a collateral order. (See Lester,
supra, 84 Cal.App.4th at p. 563, fn.
16, explaining Rogers v. Platt (1988)
199 Cal.App.3d 1204.) While the >Lester court’s discussion is dicta, we
find it instructive here and are inclined to find a jurisdictional
determination under the UCCJEA is an appealable collateral order.href="#_ftn3" name="_ftnref3" title="">^[3]

Assuming, without deciding, that
the initial custody determination is an appealable collateral order, we
nonetheless determine Husband’s appeal must be dismissed in light of his
failure to provide an adequate record upon which the asserted jurisdictional
error can be decided.

It is a general principle of
appellate practice that the “order of the lower court is ‘“presumed to be
correct on appeal, and all intendments and presumptions are indulged in favor
of its correctness.”’ [Citation.]” (State
Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610; see
also Osgood v. Landon (2005) 127
Cal.App.4th 425, 435.) It is the
appellant’s burden to overcome that presumption of correctness. (Ibid.) In order to do so, the appellant must provide
the reviewing court with “an adequate record to assess error.” (Maria P.
v. Riles (1987) 43 Cal.3d 1281, 1295; accord, In re Kathy P. (1979) 25 Cal.3d 91, 102; 9 Witkin, Cal.
Procedure, supra, Appeal, § 628, p.
704 [“The appellant must affirmatively show error by an adequate
record.”].) Where an appellant fails to
furnish an adequate record, his or her claim “must be resolved against them.” (Maria P.,
at p. 1296; accord, Foust v. San Jose
Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 [“‘Failure to
provide an adequate record on an issue requires that the issue be resolved
against [appellant].’”].)

Despite the fact his primary
contention on appeal is that the California courts lack jurisdiction under the
UCCJEA, Husband did not include in
the record Wife’s declaration of jurisdictional facts filed with the court
pursuant to Family Code section 3429 in connection with her petition for
dissolution of marriage. Wife’s separate
declaration, outlining her allegations of domestic abuse submitted in
connection with her request for a protective order against Husband, was
included as part of the record, and that declaration expressly refers to her
jurisdictional declaration under the UCCJEA in connection with her statement
that the family’s stay in Kuwait was intended to be temporary: “Please see my declaration attached to the
UCCJEA Declaration filed with the Petition for Dissolution of Marriage where I
have set forth in detail facts related to our stay in Kuwait.” The full reporter’s transcript from the
evidentiary hearing, which took place over several days, also was not included,
leaving out a portion of Wife’s testimony.
Although some of Wife’s testimony was included in the reporter’s
transcript, along with all of Husband’s testimony, and the testimony of Wife’s
sister, Wife objects that other portions of the record are missing.

In his
reply brief, Husband minimizes his failure to present a proper record by arguing,
in part, that his statement of facts and opening brief adequately set forth
Wife’s “purported ‘facts’” and version of events. Husband’s claimed recitation >in his brief of Wife’s facts regarding
jurisdiction does not in any way comport with the requirement to provide the
evidentiary record. Cherry-picking
certain portions of the record does not constitute compliance. After the respondent’s brief raised the
issue, Husband made no effort to augment the appellate record, in order to
provide us with any materials he may have inadvertently omitted.

As Husband
correctly notes, as a reviewing court considering the issue of subject matter
jurisdiction under the UCCJEA, “we are ‘not bound by the trial court’s findings
and may independently weigh the jurisdictional facts.’ [Citations.]”
(In re Marriage of Nurie
(2009) 176 Cal.App.4th 478, 492; accord, In
re Angel L. (2008) 159 Cal.App.4th 1127, 1136.) However, we cannot fairly weigh and consider the question of subject matter
jurisdiction under the UCCJEA without a complete
and adequate record. Husband has
failed to discharge his burden as an appellant to affirmatively show error
based upon the presentation of a proper record.
We therefore dismiss the appeal.

>DISPOSITION

Appellant Jolian Ramez Ibrahim’s appeal of the court’s
October 20, 2011 order is dismissed.
Respondent Helen Mamaril Lamaria is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS







GRIMES,
J.



WE CONCUR:







BIGELOW, P. J.







RUBIN, J.