SIPPLE v. SIPPLE

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Court of Appeal, Fourth District, Division 3, California.

Donald E. SIPPLE, Petitioner, v. The SUPERIOR COURT of California, County of Orange, Respondent; Regina A. SIPPLE, Real Party in Interest.

No. G014829.

Decided: October 27, 1993

Marjorie G. Fuller Fullerton and James K. Batchelor, Santa Ana, for petitioner. No appearance for respondent. Richard P. Sullivan, Orange, for real party in interest.

OPINION

In this case, the superior court found it had jurisdiction to modify a Missouri child custody order.   Petitioner Donald E. Sipple contends California fails to meet any of the jurisdictional requirements of the Uniform Child Custody Jurisdiction Act and, therefore, seeks a peremptory writ of mandate directing the court to vacate its order.

FACTS

Donald and real party in interest Regina A. Sipple were married in Utah in 1974 and moved to Missouri where their son Evan was born in 1977.   In 1979, Regina filed for dissolution of the marriage in Missouri and was awarded custody of Evan.

Thereafter, Donald moved to Virginia and, by 1985, Regina and Evan were living in California.   In July 1992, Regina petitioned the Missouri court for an increase in child support.   In response, Donald requested a change of custody order from the Missouri court.   The court found a substantial and continuing change in circumstances since the original order and ruled that it was in Evan's best interests to be placed in Donald's custody.   Regina was given visitation rights, including two separate periods of three weeks each in California during summer vacation.

In June 1993, Evan visited California for the first time and, on July 21, Regina filed a complaint for custody in the Orange County Superior Court.   In the complaint, she sought complete physical and legal custody of Evan, arguing there had been a substantial change in circumstances, that it was in Evan's best interests to be in her custody, and that Evan desired to have the change of custody.

Regina contended California had jurisdiction under the Uniform Child Custody Jurisdiction Act (the Act), which permits jurisdiction when a child has been abandoned and “it is necessary in an emergency to protect the child because he ․ has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.”  (Civ.Code, § 5152, subd. (a)(3).) 1  The allegations of abandonment and emergency were based primarily on the fact that Donald enrolled Evan in a school in Massachusetts against his desire to live with Regina.   As a result, Regina claimed Donald had neglected Evan's needs and an emergency existed requiring the California court to accept jurisdiction.   She also filed an order to show cause for modification, including a declaration by Evan in which he requested the court award custody to Regina.   In the declaration, Evan stated that he no longer blamed Regina “for her alcoholism problem, or for other reasons.   I now realize I am responsible for my own academic performance, and for my own happiness.   It is with this in mind that I am requesting that the court entertain a request that I be allowed to live with my mother.”   Evan detailed his unhappiness about living with Donald, recalled one incident where Donald physically abused him, and related incidents of mental abuse which he claimed required him to enter a mental hospital.   After Evan was discharged from the mental hospital, Donald enrolled him in a “school for problem children” in Massachusetts, which Evan characterized as a “prison.”

Donald appeared specially to contest jurisdiction.   However, the trial court found California had jurisdiction to hear the case, ruling that “in reviewing both the ․ Act and the federal statute on the issues, it seems that there is certainly a basis, despite emergency, on which California could exercise jurisdiction, not the least of which is, there have been significant and substantial contacts in the recent past, not within six months but within recent past, in California with both the mother and the child during a period of time when the mother was the primary custodial parent.  [¶] In addition to that, the mother has continuously lived in California and the child and the mother are, in fact, in California right now;  and that as between Missouri and California ․ California has at least as good a claim to jurisdiction as Missouri does.”

The court set a hearing on an order to show cause for modification, child custody, visitation and child support.   A further hearing was held and the court again asserted California had jurisdiction, despite the fact that there were then two motions pending in the matter in Missouri.   At that hearing, the trial judge held a conference call with counsel and the Missouri judge to discuss the question of jurisdiction.   The Missouri judge stated that Missouri had not declined jurisdiction and noted he was “concern[ed] about the fact that these parties did take advantage of the Missouri courts in rendering a decision, and that when the child moves to California for the sole purpose of visitation, that then the California courts seize jurisdiction of the matter on the basis of that visitation.”

Nonetheless, the trial court here concluded California had jurisdiction and, when Donald refused to submit to subject matter or personal jurisdiction, the matter was heard as a default.   The court denied Donald's request for continuance or extension of time to file a petition for writ of mandate, ordered the matter be heard as scheduled, then ruled “it would seem appropriate on a tentative basis to order that the minor continue to reside in California with his mother.”   Donald filed this petition for writ of mandate and, on September 10, 1993, we stayed all superior court orders in the case until further order by us.

DISCUSSION

 In California, the Uniform Child Custody Jurisdiction Act (§ 5150 et seq.) is the exclusive method of determining subject matter jurisdiction in custody cases.  (See In re Marriage of Arnold & Cully (1990) 222 Cal.App.3d 499, 502, 271 Cal.Rptr. 624;  In re Marriage of Ben–Yehoshua (1979) 91 Cal.App.3d 259, 264, 154 Cal.Rptr. 80.)   The jurisdictional requirements of the Act must be satisfied whenever a California court makes a custody determination by an initial or modification decree.  (§§ 5152, 5161.)   Since the lower court's adjudication under the Act requires subject matter jurisdiction, we are not bound by the trial court's findings and may independently reweigh the jurisdictional facts.  (In re Marriage of Arnold & Cully, supra, 222 Cal.App.3d at p. 502, 271 Cal.Rptr. 624;  In re Marriage of Fox (1986) 180 Cal.App.3d 862, 870, 225 Cal.Rptr. 823.)

The purposes of the Act, as detailed in section 5150, are to:  “(a) Avoid jurisdiction competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.  [¶] (b) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child.  [¶] (c) Assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.  [¶] (d) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.  [¶] (e) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.  [¶] (f) Avoid relitigation of custody decisions of other states in this state insofar as feasible.  [¶] (g) Facilitate the enforcement of custody decrees of other states.  [¶] (h) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child.  [¶] (i) To make uniform the law of those states which enact it.”

The threshold question is whether California has jurisdiction to assume initial or modification jurisdiction over the custody issues in this case under the prerequisites of the Act.   A court which is competent to decide a custody issue has jurisdiction to make a child custody determination by initial or modification decree if the following conditions are met:  “(1) This state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his or her removal or retention by a person claiming his or her custody or for other reasons, and a parent or person acting as parent continues to live in this state.  [¶] (2) It is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his or her parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.  [¶] (3) The child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because he or she has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent․  [¶] (4) It (A) appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2), or (3) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) is in the best interest of the child that this court assume jurisdiction.”  (§ 5152.)

 A California court may not reach any equitable concern about the “best interest of the child” unless it would have home state jurisdiction, significant contact jurisdiction, and another state has declined to exercise jurisdiction on the ground California is more appropriate.  (In re Marriage of Arnold & Cully, supra, 222 Cal.App.3d at p. 503, 271 Cal.Rptr. 624.)   Here, California does not meet the jurisdictional requirements to empower it to make an initial custody award.   Evan has not been residing in California for six months, there is no recent substantial evidence regarding his care, protection, training or personal relationships here, and Missouri clearly continues to maintain jurisdiction over the cause.

 Similarly, there is no basis for our court to assume modification jurisdiction.   Where there is an existing out of state custody order, the question is whether that order is enforceable—that is, is it in substantial compliance with the Act's jurisdictional requirements?   If the out of state decree is enforceable, as it clearly is in this case, the issue before the California court is one of modification jurisdiction.   There cannot be concurrent modification jurisdiction under the Act;  consequently, California must defer to the rendering state's continuing jurisdiction to modify even if custody proceedings are not presently pending in the rendering state.   (Kumar v. Superior Court (1982) 32 Cal.3d 689, 696, 186 Cal.Rptr. 772, 652 P.2d 1003;  see also Hogoboom & King, Cal. Practice Guide:  Family Law 1 (Rutter 1993 rev.) § 7:32.)

 Moreover, under the Act, unless it is required in the best interest of the child, “the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody.   If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.”  (§ 5157, subd. (b).)

 Here, Regina, in violation of the Missouri custody order, has retained Evan in California after the visitation period.   It is precisely such actions as this which the Act is designed to prevent.   The Missouri court has made it clear it does not intend to decline jurisdiction.   As the Missouri judge put it, this action in California brought by Regina “does not divest this Court of its continuing jurisdiction over the custody of said minor child and this Court shall continue to exercise said jurisdiction.”   Indeed, there are now pending in the Missouri court two motions in this matter—one for contempt and one to modify visitation—as a result of Regina's retention of Evan in California in violation of the Missouri custody order.

Finally, the California court may not exercise modification jurisdiction without communicating with the rendering court on the status of its continuing or exclusive jurisdiction.  (McArthur v. Superior Court (1991) 235 Cal.App.3d 1287, 1292–1293, 1 Cal.Rptr.2d 296.)   Here, although the trial court contacted the Missouri court, it chose to ignore that court's declaration that two motions in the matter are pending and that it intended to continue to assert jurisdiction over the matter.

 Congress enacted the Parental Kidnapping Prevention Act of 1980 (28 U.S.C., § 1738A) to prevent jurisdictional conflict and competition over child custody and to deter parents from abducting children for the purpose of obtaining a custody award.  (Peterson v. Peterson (1983 Me.) 464 A.2d 202, 204.)   Under that act, California may assume jurisdiction for initial custody or modification jurisdiction purposes only if, as with the Uniform Child Custody Jurisdiction Act, the state is the child's home state at the time of the commencement of the proceeding, or had been the child's home state within six months before the date of commencement of the proceeding and the child is absent from the state because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in the state, or it appears that no other state would have jurisdiction and it is in the best interest of the child that the court assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with the state “other than mere physical presence in such State,” and there is substantial evidence concerning the child's present or future care, protection, training, and personal relationships present in the state.   No such facts exist here.

 The provisions of the Parental Kidnapping Prevention Act, like those of the Uniform Child Custody Jurisdiction Act, are not to be liberally construed to find jurisdiction (Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1017, 202 Cal.Rptr. 490), and the concept of “emergency” is to be narrowly interpreted to apply only where there is the threat of a genuine, immediate and substantial physical harm to the child.  (Hafer v. Superior Court (1981) 126 Cal.App.3d 856, 864–865, 179 Cal.Rptr. 132.)   Here, the allegations of emergency and abandonment of Evan by Donald are insufficient to convey jurisdiction.  “Judges are not Solomons or gods.   We cannot know, any more than any mortal can, what custodial situation is correct in every situation.   We do know, however, what rules govern the choice of forum.   It is our job consistently to enforce those rules.   The [Act's] jurisdictional mandate requires child custody litigation to take place in the home state absent compelling jurisdiction for removal.   The rule exists to prevent abduction, child stealing, and forum shopping, all of which conduct the Legislature finds to be in the best interest of no one.   Our decision here fulfills the mandate of the law.   No case we have found permits removal from the home state on a showing remotely comparable to what we have here.   There is no justification to permit it.”  (Hafer v. Superior Court, supra, at p. 867, 179 Cal.Rptr. 132.)   We do not in any way mean to minimize the concerns raised by Regina or Evan.   However, the Missouri court has the jurisdiction, the ability, and the expressed willingness, to adjudicate the matter.   Accordingly, the California courts must defer to the Missouri court.

DISPOSITION

We have followed the procedures and given the notice described in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–183, 203 Cal.Rptr. 626, 681 P.2d 893.   There are no disputed factual issues, the legal error is clear, and the matter should be expedited.2  A peremptory writ in the first instance is thus appropriate.  (Alexander v. Superior Court (1993) 5 Cal.4th 1218, 23 Cal.Rptr.2d 397, 859 P.2d 96.)

Let a preemptory writ of mandate issue directing the superior court to vacate its order declaring California to have subject matter jurisdiction and to dismiss Regina's complaint for custody.   California shall not entertain further proceedings unless and until Regina demonstrates the unavailability of a suitable Missouri forum.   This decision shall be final 15 days from the date of filing.  (Cal.Rules of Court, rule 24(d).)

FOOTNOTES

1.   All statutory references are to the Civil Code unless otherwise specified.

2.   We publish this decision because it involves a legal issue of continuing public interest.  (Cal.Rules of Court, rule 976(b)(3).)

MOORE, Associate Justice.

SILLS, P.J., and CROSBY, J., concur.