legal news


Register | Forgot Password

Dorsey v. Haugo

Dorsey v. Haugo
08:28:2006

Dorsey v. Haugo



Filed 8/23/06 Dorsey v. Haugo CA4/1







NOT TO BE PUBLISHED IN OFFICIAL REPORTS




California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION ONE



STATE OF CALIFORNIA











WINIFRED DORSEY,


Plaintiff and Appellant,


v.


GUY HARVAR HAUGO,


Defendant and Respondent.



D047464


(Super. Ct. No. DV019912)



APPEAL from an order of the Superior Court of San Diego County, Earl H.


Maas III, Judge. Remanded with directions.


After moving from Oregon to California, appellant Winifred Dorsey (mother) sought a temporary restraining order against Guy Haugo, the father of their minor child. At the ensuing hearing on the matter, the superior court found it had jurisdiction to make a custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (Fam. Code, § 3400 et seq.,[1] hereafter the Uniform Act) and issued an order in part providing that father would be the primary decision maker as to the child's education and changing the child's physical residence to father's residence. Mother appeals, contending the court did not have subject matter jurisdiction to modify a prior Oregon judgment addressing child custody. She further contends the court denied her right to due process by issuing its custody order when she had only sought a temporary restraining order. Because we are unable to independently determine on this record whether the superior court had subject matter jurisdiction under the Uniform Act, we remand the matter and direct the court to hold a special hearing to determine that question.


FACTUAL AND PROCEDURAL BACKGROUND


Mother and father, who never married, are the natural parents of their minor child, who was born in March 1996. In January 1998, a judgment of paternity and to establish custody and child support was entered in Deschutes County, Oregon, where the parties resided. Among other provisions, the Oregon court awarded mother and father joint legal custody and ordered the child's primary residence to be with mother with specified visitation to father. In August of 2004, mother decided to move to San Diego County. Father did not challenge the move as he believed San Diego was a better place for him and the child. Father assisted mother with the move, driving her and the child in a moving van. They arrived in San Diego in January 2005.


On June 1, 2005, mother filed a form request for a temporary restraining order against father stemming from an incident occurring on May 30, 2005. Mother attached the judgment of paternity, custody and support from the Deschutes County Circuit Court, and lodged other various documents, including a June 1997 order lifting and dismissing a temporary restraining order and order to show cause filed in Deschutes County Circuit Court.


Father answered mother's request, indicating he did not agree to the requested stay-away and personal-conduct orders. In the form, which was filed on June 15, 2005, he checked boxes indicating he did not agree with mother's requested custody order (although she made no such request in her filing), and asking for an order that the parties comply with the Oregon court order as well as an order for visitation every Wednesday evening and every weekend from Saturday to Sunday. Father also submitted his own supporting sworn declaration vigorously denying mother's assertions and relating his version of events. He pointed out that the Oregon judgment for custody did not impose any restraining order against him and that mother voluntarily dropped her request for a temporary restraining order in 1997, resulting in its dismissal by the court in June 1997. Father stated that each of mother's allegations against him were false, and that her descriptions of their history in Oregon was full of lies and exaggerations; that she had lied to school authorities and neighbors, harassed his landlords and employers, committed insurance fraud and blamed him, and made numerous false police reports. Father further averred that the child had repeatedly expressed a desire to live with him and that he lived close to schools and had a large support group in Carlsbad. Father stated he would agree to undergo mediation to fashion a parenting plan that best suited the child's needs.


Both parties filed supplemental declarations before the July 13, 2005 hearing. Father averred he could provide a more stable home for the child as he was sober, held the same job since January of 2005 with two pay raises, and had a large group of friends including eight friends with children who knew the child. Father further averred mother had again been evicted and was living with her mother and was unemployed with no known job prospects. He stated mother used poor judgment with the people with whom she associated and allowed watch over their child, describing how, in 2002, mother had a man living with her who had been arrested at her house for a drug-related probation violation and had another male roommate who went to prison on an alcohol-related traffic offense. According to father, mother allowed the latter roommate to drive the child around town. Father again denied mother's allegations, and requested that the court make a temporary custody order making him the child's primary parent so the child could begin school in Carlsbad with better stability, giving the court the opportunity to gauge the child's progress and compare it with the child's history with mother.


Mother flatly denied father's allegations against her. She also attempted to refute and "correct" certain assertions made by a Family Court Services (FCS) mediator in a report based on interviews conducted with father and mother before the hearing.[2] Mother asserted that the court had no jurisdiction to modify the Oregon order; she asked the court to keep the Oregon custody order in place because it was in the child's best interest to continue to live with her.


At the hearing on the temporary restraining order, the court indicated it had reviewed the entire file and the FCS report, observing the FCS mediator proposed a significant change in child custody arrangements. Father confirmed he was asking the court to adopt the mediator's recommendations. Mother asked the court to keep the Oregon order unchanged and in effect. At the court's request, father's counsel addressed the court's jurisdiction to make a custody order, agreeing with the court's assessment that jurisdiction was conferred because California was the child's "habitual place of residence at this time and [the child was] intending to go to school here."


Finding a change to be in the child's best interests, the court adopted the FCS mediator's recommendations as to changing the child's primary residence to live with father, but modified some of the recommendations to give mother more visitation time. It kept the temporary restraining order in place with an exception for exchanges and telephone communication for the purposes of looking after the child's needs. In its written findings and order after hearing, the court set out these and other findings, including a finding that it had jurisdiction to make child custody orders under the Uniform Act. Mother filed this appeal.[3]


DISCUSSION


I. Subject Matter Jurisdiction


Mother contends the superior court did not have subject matter jurisdiction under the Uniform Act to modify the prior Oregon judgment establishing her and father's child custody arrangement. She asserts the court did not make findings, acknowledge the Oregon order, communicate with the Oregon court, or address the issue of jurisdiction or application of the Uniform Act. She maintains the court simply issued an order changing primary custody to father "without notice." She also argues that under the Uniform Act, the Oregon court would have continuing jurisdiction as long as it did not concede it and here, Oregon "did not concede its jurisdiction because it was never informed of the California court's desire to modify the custody orders."


Subject matter jurisdiction is necessary before a court can determine a case. (Marlow v. Campbell (1992) 7 Cal.App.4th 921, 928.) If the superior court lacks subject matter jurisdiction, the judgment is void. (Ibid.) "Unlike personal jurisdiction, subject matter jurisdiction cannot be conferred on a court by consent of the parties, waiver, or estoppel. A judgment rendered by a court that does not have subject matter jurisdiction


. . . may be attacked anywhere, directly or collaterally, by parties or by strangers." (Ibid.) Where the evidence is not in dispute, we determine subject matter jurisdiction as a matter of law, exercising de novo review. (In re Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 701.)


The Uniform Act is the exclusive means for determining subject matter jurisdiction in custody disputes involving different states, superceding contrary decisional or statutory law. (In re Stephanie M. (1994) 7 Cal.4th 295, 310 [holding under the former Uniform Child Custody Jurisdiction Act or UCCJA]; Brown v. Brown (1999) 71 Cal.App.4th 358, 364; In re C.T. (2002) 100 Cal.App.4th 101, 106.) It provides the court with authority to make custody decisions on the merits, including whether or not it must recognize and enforce a foreign court order. (Brown v. Brown, at pp. 364-365.)


Under the Uniform Act, a California court may not modify a child custody determination made by a court of another state unless a California court has jurisdiction to make an initial custody determination as specified in the Uniform Act, and either "[t]he court of the other state determines it no longer has exclusive, continuing jurisdiction . . . or that a California court would be a more convenient forum" or a California court or a court of another state "determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state." (§ 3423, subds. (a), (b).) With exceptions for temporary emergency jurisdiction, a California court has jurisdiction to make an initial child custody determination if "(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state . . . [or] . . . [¶] (2) A court of another state does not have jurisdiction under paragraph (1), or 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 . . . and both of the following are true: [¶] (A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence. [¶] (B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships . . . [or] . . . [¶] (3) All 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 custody of the child . . . [or] . . . [¶] (4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3)." (§ 3421, subd. (a).)


The Uniform Act defines "home state" as "the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding." (§ 3402, subd. (g), emphasis added.) A "child custody proceeding" means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue, and it includes a proceeding for "protection from domestic violence, in which the custody issue may appear." (§ 3402, subd. (d).) Such a proceeding commences at the time of filing of the first pleading. (§ 3204, subd. (e).) Here, the superior court found the child's habitual residence was in California, and thus it implicitly determined the child and at least one parent were not presently residing in Oregon. (§ 3423, subd. (b).) The court was then required to determine whether under section 3421 it had jurisdiction to make an initial custody determination. (§ 3423.) As stated, jurisdiction under that section can be met under several alternative bases, including (1) where California was the child's home state on June 1, 2005, the date mother commenced her proceeding for a temporary restraining order (§§ 3402, subds. (d), (e), 3421, subd. (a)(1), also known as "home state" jurisdiction) or (2) where the Oregon court itself did not have "home state" jurisdiction on June 1, 2005, or declined to exercise jurisdiction on the ground California was the more appropriate forum, and the child and the parents (or at least one parent) have a significant connection with this state other than mere physical presence, and substantial evidence is available in California concerning the child's care, protection, training and personal relationships (§ 3421, subd. (a)(2), also known as "significant connection" jurisdiction).[4] As indicated, subject matter jurisdiction may also be conferred where all other states having home state or significant connection jurisdiction have declined to exercise their jurisdiction on the ground California is the more appropriate forum to determine custody. (§ 3421, subd. (a)(3).)


The court did not make either of these determinations. Because it focused only on whether California was the child's habitual place of residence, it did not address whether California was the child's home state or whether there was a significant connection between the child and at least one of his parents and the state of California and whether substantial evidence was available in California concerning the child's care, protection, training and personal relationships. The record does not show whether any other court had declined to exercise jurisdiction at the time the superior court entered its custody order. Although normally we may independently reweigh the jurisdictional facts to make these determinations de novo, on this record we cannot do so. We are unable to say whether California was the child's home state on June 1, 2005, because it is not clear that the child was living in this state for at least six consecutive months immediately before mother filed her request for a temporary restraining order. Father's declaration states only that he drove mother and the child to San Diego in a moving van and "arrived in San Diego in January, 2005 . . . ." Mother and the child would have had to begin living in San Diego on or before December 1, 2004, in order for home state jurisdiction under section 3421, subdivision (a)(1) to apply.


Nor can we determine independently whether the court could exercise subject matter jurisdiction under the "significant connection" standard. (§ 3421, subd. (a)(2).) The record only permits us to conclude the Oregon court did not have home state jurisdiction on June 1, 2005, which is the first part of the inquiry in determining whether California has significant connection jurisdiction. Oregon was not the child's home state at that time because even assuming mother and the child resided in Oregon for at least six months consecutively before their move to San Diego, it was not six consecutive months immediately before mother's filing.


As for the remainder of the inquiry, however, the record is undeveloped. When, as here, a record is undeveloped on the issue of subject matter jurisdiction under the Uniform Act, we may remand the matter for the trial court to determine the issue. (See In re Nada R. (2001) 89 Cal.App.4th 1166, 1175-1176.) On remand, the court may not consider the child's current circumstances; rather, the court must consider whether it had subject matter jurisdiction as of June 1, 2005. (Weller v. Weller (Wyo. 1998) 960 P.2d 493, 496.) To do otherwise "would undermine the legislative function, the purposes behind the [Act's] jurisdictional requirements, and the basic doctrine of subject matter jurisdiction." (Ibid.) Because factual findings are needed to determine whether the trial court had either home state or significant connection jurisdiction, we remand for the court to hold a special hearing on the issue, giving both mother and father an opportunity to present evidence on these inquiries or any other basis for subject matter jurisdiction.[5]


II. Due Process


In the event on remand the superior court determines it had subject matter jurisdiction to consider father's custody request, we now address and reject mother's contention that she was denied her right to due process by the superior court's consideration of the matter. Due process requires that a party be given notice and an opportunity to defend. (In re Marriage of O'Connell (1992) 8 Cal.App.4th 565, 574.) Further, due process "requires affording a litigant a reasonable opportunity, by continuance or otherwise, to respond to evidence or argument that is new, surprising, and relevant." (Ibid.) However, a party's failure to specify a particular issue in his or her pleadings does not necessarily preclude a court from granting relief on that issue if the noticed motion implicitly places the issue before the court and the losing party had a reasonable opportunity to respond to the issue. (Id. at pp. 574-576.)


Here, father first raised the issue of custody in his response to mother's request for a temporary restraining order. Thereafter, both parties filed supplemental declarations addressing the child custody issue. Although the FCS mediator's report is not before us in the record, we readily infer from the trial court's comments at the hearing that child custody was a significant issue addressed at the FCS mediation involving both parties, which was conducted before the hearing. Indeed, mother filed a second supplemental declaration addressing the mediator's custody and visitation recommendations. Mother's sole cited authority for her due process challenge, In re Marriage of Lippel (1990) 51 Cal.3d 1160, is inapposite, as Lippel involved a default hearing in which the court made a child support order even though child support had not been checked in the standard printed form petition. (Id. at p. 1163.) There, the Supreme Court vacated the default judgment because it violated due process requirements as embodied in Code of Civil Procedure section 580, based on the utter lack of notice to father that he could be liable for child support. (Lippel, at pp. 1166-1168.)


In the present case, mother had ample notice that child custody was in issue, and because mother had a reasonable opportunity to address the custody issue both in FCS mediation and in declarations submitted to the court before the hearing, she was not denied her due process rights by the court's consideration of father's custody request.


DISPOSITION


The matter is remanded and the court is directed to hold a special hearing to determine whether it had subject matter jurisdiction to issue its July 15, 2004 custody order under the Uniform Child Custody Jurisdiction and Enforcement Act. If the court determines it had subject matter jurisdiction, the custody order and all other orders shall be reinstated in full. If the court determines it did not have subject matter jurisdiction, the custody order and all subsequent orders shall be vacated. The parties shall bear their own costs on appeal.



O'ROURKE, J.


WE CONCUR:



NARES, Acting P. J.



McINTYRE, J.


Publication Courtesy of California free legal resources.


Analysis and review provided by Spring Valley Property line attorney.


[1] All statutory references are to the Family Code unless otherwise indicated.


[2] The FCS mediator's report is not included in the record on appeal, but it is apparent from the record that such a mediation took place before the hearing.


[3] Father has not filed a respondent's brief in this appeal. We nevertheless may decide the case based on mother's opening brief and the record. (Cal. Rules of Court, rule 17(a)( 2).)


[4] Mother's challenge to the superior court's order is based on portions of statutes cited in Kumar v. Superior Court (1982) 32 Cal.3d 689 and her assertion that the Oregon court had continuing and exclusive jurisdiction over the matter under section 3414 and In re Marriage of Condon (1998) 62 Cal.App.4th 533. For several reasons, these arguments do not persuade us that the court lacked subject matter jurisdiction. First, both Kumar and Marriage of Condon were decided under the former law, the Uniform Child Custody Jurisdiction Act (UCCJA), in effect before January 1, 2000 (In re C.T. (2002) 100 Cal.App.4th 101, 106), and the quoted passages are from the former statutes. When the Uniform Act was adopted in 1997 and enacted on January 1, 2000, the standards for modification jurisdiction changed to those set out in section 3423, discussed ante. In 1999, the Legislature repealed section 3414, which prevented a California court from modifying another state's child custody decree as long as the first court did not concede jurisdiction. (Stats. 1999, c. 867 (S.B. 668), § 2; In re Marriage of Condon, at p. 555.)


[5] We elected to judicially notice the superior court file. (§ 452, subd. (d); § 459, subd. (a).) In particular, we note a November 23, 2005 minute order indicating that on that day, the superior court advised the Oregon Circuit court of the pending San Diego action and findings were made that Oregon does not have continuing exclusive jurisdiction because all parties were residing in San Diego, and there was no current modification or enforcement proceeding pending in the Oregon Circuit court. The minute order reflects that the Oregon court declined to exercise jurisdiction under the Uniform Act. These findings permit a reasonable inference that as of November 23, 2005, the Oregon court found California to be the "more appropriate forum" to exercise jurisdiction under the Uniform Act. (§§ 3421, subd. (a)(3); 3426, subd. (b).) Had such findings been made at the time of the superior court's July 13, 2005 order, we could uphold the superior court's finding of subject matter jurisdiction under section 3421, subdivision (a)(3). We express no opinion as to whether the Oregon court may issue an order declining to exercise jurisdiction so as to confer subject matter jurisdiction on the superior court as of the date of its custody order.





Description A decision regarding temporary restraining order and custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act.
Rating
0/5 based on 0 votes.

    Home | About Us | Privacy | Subscribe
    © 2024 Fearnotlaw.com The california lawyer directory

  Copyright © 2024 Result Oriented Marketing, Inc.

attorney
scale