Filed 1/24/18 Meinhold v. La Pointe CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----





CHRISTEL MARIA MEINHOLD,

Respondent,

v.

JONATHAN S. LA POINTE,

Appellant.

C082513

(Super. Ct. No. 12FL00265)
Jonathan S. La Pointe, Father, appeals from a court order declining to exercise jurisdiction over this matter under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) and ceding jurisdiction to Johnson County, Kansas. Father contends the trial court found California an inconvenient forum without considering or weighing all the factors under Family Code section 3427, and erred in declining to exercise jurisdiction because California continues to have jurisdiction under section 3422.
As a preliminary matter, on this record, we conclude Father’s appeal is timely. On the merits, we conclude the trial court considered and weighed all the factors under section 3427. We also conclude section 3422 does not apply to this case. We affirm the orders of the trial court.
BACKGROUND
A.
Historical Background
Father and Mother are the parents of a minor child who is now seven years old.
In June 2012, the trial court granted Mother’s request to relocate to Lenexa, Kansas with the minor child. Mother was awarded primary physical custody and the parents shared joint legal custody. The court ordered daily Skype visits for Father and ordered Father to have parenting time every two months, “with a minimum of three-day, two-night visits in Lenexa, Kansas.” Father also was “to have two consecutive weeks of summer visits in California.” The parents were ordered to split the cost of travel and the court ordered Father to be tested for drugs and alcohol within 72 hours prior to his parenting time.
On August 3, 2015, Father filed a Request for Domestic Violence Restraining Order (DVRO) against Mother. In addition to the DVRO, Father sought temporary sole physical custody and an order limiting Mother’s parenting time to supervised visits. The court denied Father’s request for temporary orders and set the matter for hearing on August 20, 2015.
Eight days later, on August 11, 2015, Father filed an ex parte request for emergency temporary orders. Father asked to have sole legal and physical custody of the minor child and wanted a modification of the prior order for drug and alcohol testing. He also wanted an emergency mediation meeting. Mother opposed Father’s request. No temporary orders were issued, but the court ordered the minor child to remain in Sacramento until the next hearing, following a referral to family court services.
On August 21, 2015, the court adopted the recommendation of family court services regarding custody of the minor child. Accordingly, the parties would continue to share legal custody of their child and Mother would continue to be the primary custodial parent. During the remainder of the school year, Father would have parenting time in October, November, and December.
On September 23, 2015, the court appointed a “child custody recommending counseling” and set another hearing for November 17, 2015.
On November 17, 2015, the court adopted agreements made in a November 5, 2015 confidential “child custody hearing recommending counseling report” with some modifications.
B.
Motion to Decline Jurisdiction
On February 9, 2016, Mother asked the trial court to decline jurisdiction over this litigation under the UCCJEA and transfer the matter to Johnson County District Court in Kansas. In support of her request, Mother argued neither she nor the minor child had a significant connection to California. Since 2012, Mother argued, she and the minor child lived in Kansas and the child was with her 95 percent of the time. The child goes to school in Kansas, his health providers and counselors are in Kansas, his child care provider is in Kansas, his camps and activities are in Kansas, and his friends and their families are in Kansas. Thus, under section 3422, California no longer had exclusive or continuing jurisdiction over the custody dispute.
Mother alternately argued that under section 3427, California had become an inconvenient forum for this custody dispute, and Kansas the more appropriate forum. Mother identified each of the section 3427 factors the court was required to consider in reaching its determination and argued that, on balance, the factors weighed in favor of finding Kansas the more appropriate forum. Specifically, Mother noted the child, who was then six, had lived in Johnson County, Kansas since he was two. Air travel to Sacramento was five and a half hours and the airport closest to her residence was in Kansas City, Missouri. It was more costly for Mother to travel to California because she would have to purchase two plane tickets, Father only had to purchase one. All relevant witnesses with information related to the child’s life and circumstances were located in Kansas.
According to Mother, the child’s only relationship in California was with Father, and Father did “little to facilitate that relationship.” Mother claimed Father was not consistent with “face time, phone calls, or visits in Kansas.” She also claimed the minor child had no relationship with Father’s family and only a “limited relationship with his half-sister.” Moreover, Mother argued the custody dispute had not been litigated since 2012, so neither California nor Kansas “[had] a true familiarity with this case.”
Father opposed Mother’s request. In support of his opposition, Father argued that because he remained in California and he continued to have a relationship with the minor child, California continued to have exclusive and continuing jurisdiction over the custody dispute under section 3422.
He further argued that under section 3427, California continues to be the appropriate forum to litigate the custody dispute. Specifically, he argued Mother gave only “scant analysis” to the section 3427 factors, in particular her failure to discuss Father’s ability to be adequately represented in Kansas or a Kansas court’s ability to “review the file and oversee the recently litigated modification to the custody agreement.” He noted the factor related to the “degree of financial hardship” fell largely in his favor. He claimed he would “most likely be financially unable to participate or remain an involved parent if the case were litigated in Kansas.”
Father also argued if his parenting time had been limited, it was because of Mother. He accused Mother of absconding with the child before seeking an order to relocate in 2012. Father said Mother refused to pay for half of his travel expenses to Kansas, thus limiting his ability to exercise his parenting time in Kansas. Father also challenged Mother’s claim it was too expensive for her to litigate the dispute in California noting Mother hired a private mediator to help negotiate their current custody agreement. In addition, Father argued Mother’s claim she already spent more than $50,000 litigating this dispute, demonstrated her financial ability to litigate in California. That $50,000 was more money than Father made in a year.
Father also argued there was no authority to support Mother’s claim that “the most important factor the Court must consider is where evidence about [the child’s] home life today may be found.” This, Father argued, contravenes the purpose of the UCCJEA to avoid forum shopping.
C.
Hearing on the Motion to Decline Jurisdiction
On March 14, 2016, the trial court heard argument and testimony related to Mother’s motion. At the outset of the hearing, the court noted it would consider all the papers filed relative to the motion, including the points and authorities in support of the motion, the response to the motion, and the reply. The court then advised the parties as follows: “So just to give folks my preliminary thoughts, this is one that is on the border just given timing, so I would hear from both parties. There do appear to be some disagreements regarding desire for parenting time, actual use of parenting time, and then certainly disagreements as to when parenting time has not been exercised, why that has occurred, so I’ll go ahead and let you proceed as the moving party.”
In support of Mother’s motion, Mother’s counsel argued that under section 3422 neither Mother nor the child has a significant connection to California. The child lived in Kansas since before he was two, most of his young life. She argued Father’s lack of parenting time in Kansas was because Father delayed planning the trips and then he would cancel.
Counsel also argued Father was not complying with the court order to be tested for drugs and alcohol 72 hours prior to his parenting time, and some of the tests came back positive. Under the court’s order, a positive test ends Father’s parenting time. Mother, however, was having a difficult time enforcing those orders from Kansas, which counsel argued was an example of why California is no longer a convenient forum.
Another example of the inconvenience of California, counsel argued, was the delay in getting the child started in kindergarten the previous year. When Father filed the August 2015 motion to modify custody and parenting time, the child was ordered to stay in California until the motion was resolved. The delay in resolving the motion and getting the child back to Kansas to start school was exacerbated by the fact that “a lot of the information that was needed had to do with agencies back in Kansas.”
Father’s counsel argued Mother was ignoring the enormous financial burden placed on Father to litigate custody in Kansas. He also argued it was Mother’s burden to prove she could not afford to litigate in California. Counsel claimed Mother’s failure to pay for half of Father’s travel expenses was the only reason he was not spending more time in Kansas. He noted it took months for Father to learn of Mother’s relationship with the boyfriend who had a conviction for child abuse, and his efforts to protect the minor child in August 2015 would have been stymied had he been required to litigate that issue in Kansas.
Father testified the child traveled to California “every summer” for three weeks. Father took time off work to be with the child, and though he could not afford to exercise all his visitation in Kansas, he was in Kansas for every birthday. According to Father, he tried to make contact with the child “almost every single day,” but often his calls went unreturned.
Mother agreed the child was in California with Father every summer for three weeks, “give or take a day.” She also testified that often they do not take Father’s calls because he did not call at the agreed upon time and they would be engaged in another activity, or the child refused to talk to him. Mother’s counsel explained the $50,000 mother paid to litigate custody in California was from her 401K, and not emblematic of her income.
At the close of the hearing, the court asked: “So beyond the two weeks that occurred in California, is there any other contact with this state?” Mother’s counsel said: “No, Your Honor.” Mother said: “No.” Neither Father nor Father’s counsel answered the question: “[Father’s Counsel]: My understanding is that he has made a few visits to Kansas, but he’s had great difficulties, and I do believe telephone contact, [Skype] contact, and all the other types of contact are significant contacts with this state since they’re following this state’s court orders.
“[Mother’s Counsel]: Other than summer, Your Honor, no.
“[Father]: Like, I said, I visit him every year for his birthday. That is when I can afford to bring --
“THE COURT: So you go to Kansas once a year and he comes here once a year?
“[Father]: If I had made more money I would go visit him more often.
“THE COURT: The court is going to take a short -- is there anything else that needs [to] be added regarding this? I do want [to] make clear, the issues that the Court’s looking at are the continuing contacts, and so there was a good deal of testimony regarding expenses paid by both parties. The Court finds that less critical in this issue, but I do want to -- I’m going to take a short recess and go through the notes. There’s been a fair amount of argument and I want to re-review the papers.”
D.
The Court’s Ruling
Returning from the recess, the court indicated it “read the papers” and considered the parties’ testimony. Based on the papers and testimony, the court ruled: “the contacts with California include a two-week visit each summer, and then depending on how you want to characterize it, the phone calls. Based on that the Court does find that almost all of the contacts and information at this point are in Kansas. [The child] at this point is in school, his doctors are in Kansas, his teachers are in Kansas. He has at this point resided most of his life in Kansas. It [has] been four years. At this point he simply does not have any real contacts in the state of California.
“Based on that, the Court is willing to cede venue and jurisdiction in Kansas once there is something that’s been established in Kansas.” The court subsequently issued written orders reflecting the same ruling.
DISCUSSION
A.
Timeliness
Mother contends Father’s notice of appeal was not timely filed because it was filed more than 60 days after both the March 14, 2016 and March 29, 2016 orders were issued. Father contends his appeal from the March 29, 2016 amended findings and order was timely filed because there is no evidence that order “was ever served by the clerk or either counsel.” On this record, Father has the better argument.
California Rules of Court, rule 8.104(a)(1) provides: “Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-endorsed copy of the judgment, showing the date either was mailed; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.”
Here, Father filed two notices of appeal. The first was filed on June 21, 2016, and indicated Father was appealing from an order dated March 25, 2016. The second was filed on July 5, 2016, and indicated Father was appealing from an order dated March 29, 2016. There is no March 25, 2016 order in the record on appeal. There are, however, two orders filed on March 29, 2016, only one of which includes a proof of service.
The first order issued on March 29, 2016 is titled “Order Setting Aside: Order - Change of Venue Dated 3/22/16” and includes a “certificate of service by mail.” According to that certificate, this order was served by the clerk, on Father, via the United States mail, on March 29, 2016. The order reads as follows: “Due to clerical error, on March 22, 2016 an Order-Change of Venue was signed by the Judge Thomas E. Warriner. After review of the file, Sacramento Superior Court actually declined jurisdiction over child custody and child visitation issues pursuant to [UCCJEA], the intention was not to change the venue of the case. Therefore, the Order - Change of Venue must be set aside.” Neither the order itself nor the certificate indicates any other orders were attached or served simultaneously.
The second March 29, 2016 order is entitled: “Amended Findings and Order After Hearing.” This order reflects the court’s ruling following the March 14, 2016 hearing on mother’s motion to “Decline Jurisdiction/Transfer Action (UCCJEA).” In this order the trial court declined to exercise jurisdiction and acceded jurisdiction to Johnson County District Court in Kansas. The court amended its prior ruling by deleting language relative to granting a change of venue to Johnson County, Kansas.
This second March 29, 2016 order appears to be the one from which Father appealed as none of his arguments on appeal relate to the court’s decision to set aside a prior order regarding a change of venue. Indeed, Father’s arguments on appeal are limited to the court’s decision to decline jurisdiction. Because there is no evidence in the record Father was served with this order, he had 180 days from the date the order was filed to file his notice of appeal. His notice of appeal from that order was filed on July 5, 2016, within the 180-day statutory period. As a result, his appeal is timely.
B.
Section 3427
Father argues the trial court did not properly consider or weigh the section 3427 factors.
Under section 3427, a California court with “exclusive, continuing jurisdiction to make child custody determinations ‘may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.’ ” (In re Cristian I. (2014) 224 Cal.App.4th 1088, 1098.)
In making this determination, “the court shall allow the parties to submit information and shall consider all relevant factors, including: [¶] (1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child. [¶] (2) The length of time the child has resided outside this state. [¶] (3) The distance between the court in this state and the court in the state that would assume jurisdiction. [¶] (4) The degree of financial hardship to the parties in litigating in one forum over the other. [¶] (5) Any agreement of the parties as to which state should assume jurisdiction. [¶] (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child. [¶] (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence. [¶] (8) The familiarity of the court of each state with the facts and issues in the pending litigation.” (§ 3427, subd. (b).)
“The court has broad discretion with respect to weighing the applicable factors and determining the appropriate weight to accord to each. However, the court cannot ignore any relevant circumstance enumerated in section 3427, subdivision (b); rather, the trial judge must recognize and apply each applicable statutory factor. Under the doctrine of ‘implied findings,’ if the record is silent, we must presume the trial court fully discharged its duty to consider all of the relevant statutory factors and made all of the factual findings necessary to support its decision for which there is substantial evidence.” (Brewer v. Carter (2013) 218 Cal.App.4th 1312, 1320.)
Here, Father’s argument the court did not consider the section 3427 factors is contrary to the record. Both parties presented arguments addressing the section 3427 factors in their briefs and at the hearing. The minor child was in California every year for approximately three weeks. This fact directly impacted the “nature and location of the evidence required to resolve the pending litigation.” (§ 3427, subd. (b)(6).) There was discussion about the fact the child, then six years old, had been living in Kansas since he was two. Thus, he had been living outside the state of California for more than half of his young life. (§ 3427, subd. (b)(2).)
There was significant discussion about the financial burden on both parties relative to the cost of traveling between Kansas and California, both for parenting time and litigation. (§ 3427, subd. (b)(4).) And Mother discussed the distance between her home in Kansas and the courthouse in Sacramento. (§ 3427, subd. (b)(3).) Father also raised his concern the Kansas court would not be able to oversee the current custody agreement. (§ 3427, subd. (b)(7).) Mother addressed the relatively brief history of litigation in California. (§ 3427, subd. (b)(8).)
Before ruling, the trial court took a break expressly to “re-review” the parties’ briefs and testimony. We must, therefore, assume the court reviewed the parties’ evidence and argument related to the section 3427 factors and weighed them because “[u]nless the record is to the contrary, we must take the trial court at its word and assume it did its duty.” (Acree v. General Motors Acceptance Corp. (2001) 92 Cal.App.4th 385, 400 citing Evid. Code, § 664.) On this record, we conclude the trial court considered and weighed the section 3427 factors.
C.
Section 3422
Father contends the “trial court erred in declining jurisdiction to Kansas because California continues to have exclusive and continuing jurisdiction.” In support of his contention, Father relies on section 3422. There was no error.
Section 3422 provides in relevant part that “[e]xcept as otherwise provided in Section 3424, a court of this state that has made a child custody determination consistent with Section 3421 or 3423 has exclusive, continuing jurisdiction over the determination until either of the following occurs:
“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.
“(2) A court of this state 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 this state.” (§ 3422, subd. (a).)
Section 3422 addresses when a California state court has, and then may lose, subject matter jurisdiction over a custody dispute. Here, the trial court did not find it no longer had subject matter jurisdiction over the dispute under section 3422. Rather, the court declined to exercise its jurisdiction under section 3427, finding California to be an inconvenient forum.
Accordingly, there was no error.
DISPOSITION
The orders of the trial court are affirmed.



/s/
HOCH, J.



We concur:



/s/
RAYE, P. J.



/s/
MURRAY, J.