In re the Marriage of MARIA FERNANDEZ-ABIN and HIGINIO SANCHEZ







Filed 1/11/11





CERTIFIED FOR PUBLICATION


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of MARIA FERNANDEZ-ABIN and HIGINIO SANCHEZ.
MARIA DEL CARMEN FERNANDEZ-ABIN, Respondent, v. HIGINIO SANCHEZ, Appellant.	D056010 (Super. Ct. Nos. D514561, DV028320)

APPEAL from a judgment of the Superior Court of San Diego County, Lisa C. Schall, Judge. Reversed with instructions.

Victor Augustus Mordey for Appellant.
Law Offices of Martin N. Buchanan and Martin Nebrida Buchanan for Respondent.

Higinio Sanchez (husband) appeals the restraining order issued under the Domestic Violence Protection Act (DVPA) (Fam. Code,[1] § 6200 et seq.) protecting Maria Del Carmen Fernandez-Abin (wife) and their minor son and daughter. Husband claims the California court erred when it included the children within the scope of the restraining order and made various rulings regarding visitation and custody because, in an earlier proceeding before a different judge, that court had granted his motion brought under the Uniform Child Custody Jurisdiction and Enforcement Act (§ 3400 et seq. (UCCJEA)) to dismiss the children. In so doing, that court found it lacked emergency jurisdiction over the children because wife already had initiated divorce and custody proceedings in family court in Tijuana, Mexico, and thus the court in Mexico had exclusive and continuing jurisdiction over them.
According to husband, because wife did not appeal the earlier order from the California court, and because the issue of jurisdiction was adjudicated on the merits and allegedly was a final appealable order, that court was barred on a number of grounds from subsequently revisiting the jurisdiction issue in the evidentiary hearing in connection with wife's request for a domestic violence restraining order against husband.
Finally, husband claims the restraining order had the effect of denying him "all contact with his children" in violation of his fundamental rights under the 14th Amendment and claims the California court's finding regarding the "habitual residence" of the children is not supported by substantial evidence in the record.
For reasons we explain, we conclude the California court erred when, at the subsequent evidentiary hearing on wife's request for a permanent restraining order, it included the children within the scope of that order and made various rulings regarding custody and visitation ostensibly without regard to the jurisdiction of the Tijuana family court and the UCCJEA. As we discuss, the UCCJEA is the exclusive means to determine jurisdiction over a child in connection with any "child custody proceeding," which includes custody and/or visitation orders made in a domestic violence proceeding (§ 3402, subds. (c), (d)) and applies to child custody determinations made in a foreign country (§ 3405), even if the competing forum has not adopted the UCCJEA.
However, we also conclude the California court was not precluded from revisiting the issue of whether to exercise temporary emergency jurisdiction over the children under section 3424, subdivision (a), after it made findings in the evidentiary hearing that husband committed acts of domestic violence against wife witnessed by the children and that husband took the children without a court order and kept wife from seeing them for over three months.[2] Because the record shows the California court neither based its decision on section 3424 nor followed the requirements of that statute when it included the children within the permanent restraining order, and because the record also shows the California court effectively disregarded the jurisdiction of the Tijuana family court in making custody and visitation determinations in connection with that order, we conclude the prudent course is to reverse the permanent restraining order as it pertains to the children, custody and visitation, and to remand the matter with instructions.
On remand, the California court is directed to follow the UCCJEA, including, but not limited to, section 3424, subdivision (a), in determining whether jurisdiction existed over the children when it included them within the protection of wife's restraining order and made custody and visitation determinations. The California court is further directed to make appropriate findings based on this statutory scheme and if jurisdiction exists, to adhere to the statutory requirements of the UCCJEA, including, but not limited to, those set forth in subdivisions (c) and (d) of section 3424.
FACTUAL AND PROCEDURAL BACKGROUND
Husband and wife were married in Mexico in 1995. They have two children, both born in San Diego. Their daughter was born in 1998 and their son in 2003.
A. Wife Files a Petition for Separation and Divorce in Tijuana, Mexico
In early October 2007, wife filed a petition for legal separation in the family court in Tijuana. Later that month, husband requested visitation with the children, case No. 1676/2007, later renumbered case No. 702/2008 (custody proceeding). In late October 2007, husband and wife reached an agreement regarding husband's visitation rights, which wife claims never became an order of the Mexican court.
In early December 2007, wife filed for divorce in Tijuana, case No. 1995/2007 (divorce proceeding). The court in Tijuana "opened the case" in January 2008, granted wife legal and physical custody of the children and ordered husband to pay child support. The court in Tijuana also ordered husband not to leave the country without the court's permission, unless husband had an attorney available in Mexico.
In April 2008, wife filed a challenge to the judge in the custody proceeding. However, before her motion was heard, that judge withdrew from the case. In late April 2008, the custody proceeding was reassigned to Judge Josefina Magana.
In mid-June 2008, husband, accompanied by about 10 armed men carrying assault weapons, went to wife's parents' house in Tijuana, took the children and never returned them home.[3] The following day, wife went to the district attorney in Tijuana and reported the abduction of the children. Wife also filed a request in the custody proceeding for the return of her children. In early July 2008, Judge Magana ordered the Tijuana district attorney to investigate the abduction of the children and terminated the parties' visitation agreement.
Although husband admitted he took the children and had them in his custody, he alleged he did so because wife committed incest and abused the children. Husband thus sought his own order for custody of the children.
On July 9, 2008, Judge Magana confirmed husband did not have primary custody over the children and ordered husband not to have any visitation with them or to remove them from Tijuana. That same day, the Tijuana district attorney notified Judge Magana that an investigation had been initiated regarding the children and their abduction.
In mid-July 2008, wife completed a Hague application, which was sent to the United States Central Authority, forwarded to the California Attorney General's Office and finally sent to the San Diego County District Attorney's Office. In August 2008, wife moved to San Diego after she obtained legal residency.
In August 2008, Judge Magana denied husband any visitation with the children unless and until he returned them to wife. Husband refused.
In early September 2008, the family court in the Mexico divorce proceeding ordered the court clerk and law enforcement to use any force necessary to recover the children from husband's Tijuana residence and return them to wife. The court also ordered husband to "refrain from bothering or causing any damage to [wife], in the understanding that if he does not obey such order, he shall be punishable with a fine equivalent to THIRTY TIMES the minimum daily wage for this region, which can be duplicated if violation is repeated." That same day, Judge Magana in the separate custody proceeding ordered the children enrolled in school, as the school semester in Tijuana had commenced in late August 2008.
On two occasions in early September 2008 the court clerk and law enforcement in Mexico went to husband's home in Tijuana to enforce the family court's order to recover the children and return them to wife. On both occasions, neither the husband nor the children were present. Rather than return the children as ordered, husband filed in federal court in Tijuana a request to suspend that order. That request was denied.
B. Wife Files a Request for Restraining Order in San Diego Superior Court
The hearing on wife's Hague petition took place in San Diego in late September 2008 (case No. D511991). Based on that hearing, the Child Abduction Unit of the San Diego District Attorney's Unit sent a team of officers to remove the children from husband's home in Chula Vista, California, where they were living. Later that day after the children and wife were reunited, wife claimed that husband told her during a telephone conversation that he would have her killed if she returned to Tijuana.[4] Wife took the children to Mexico, and then crossed the border back into the United States. Wife and the children went to a domestic violence shelter in an undisclosed location in San Diego, afraid that if husband knew their whereabouts he would attempt to abduct the children.
On November 7, 2008, wife filed in Superior Court of California, County of San Diego (case No DV028320) (DVPA action), a request for restraining order to protect herself and the two children. Wife declared under penalty of perjury in support of her request that husband was armed and dangerous, she was afraid to return to Mexico because of his threats to kill her and husband was a "very powerful man in Tijuana" and was able to pay and get most anything he wanted.
Wife further alleged, in support of her request, that husband was abusive for the majority of their relationship, his violent behavior toward her had escalated and she had become very frightened of him. In addition to his threat to kill her, wife recounted another incident of domestic violence that took place in late September 2007, which she said was the deciding factor for her to leave husband:
"At approx[imately] 8:00 pm Respondent [husband] called me into our bedroom. Our children were also present. He was angry that our children didn't want to attend the children's birthday party being thrown by his sister. He was infuriated and yelled accusations at me about turning our children against his family. I told him that it wasn't true and tried to diffuse the situation. The fact is that he often says terrible things about my family members in front the children, not the other way around. The tension was high. A short while later, while I was preparing his dinner, he got angry and started calling me every foul name imaginable. He claimed that I had made a face at him. The children were present and I didn't want them exposed to this type of language, so I left the kitchen and went towards the stairs. He continued to yell at me and also accused me of having an affair. He started rubbing his hands over my body in an unwelcome and disgusting manner. I ran up the stairs. Respondent ran after me and caught me in the hall. He continued to accuse me of infidelity and even accused me of having sex with my father. I could see that he was out of control. I was terrified. I tried to diffuse the situation because the children weren't too far from us. I wanted them to bed before anything else erupted. Later, after they were in bed, I thought Respondent had also calmed down. As I was walking, Respondent came towards me and forcefully shoved me down the hall. He hit me with such force, I flew about six feet and landed on my knee. I felt excruciating pain because I had just completed seven months of physical therapy due to a serious auto accident. The children came out of their rooms to see me lying down in pain. I got up quickly to avoid having him kick me as he has in the past. I could see the anger in Respondent's face. I moved towards the door as fast as I could. The children followed, terrified by the incident and crying. I got into my car. Respondent struck the car with his fists. I yelled for the children to get in. As my daughter was trying to enter the car, Respondent grabbed them both and prevented them from getting in. I told them I would be back for them. I went directly to the Police Station and reported the incident . . . . These two attacks follow years of such episodes. He has sexually assaulted and attacked me too many times to count. In June of 2007, Respondent put his hands around my neck three times and strangled me while we were getting ready to go out. I have been living in fear for a very long time. The violence got progressively worse over the years. Many of the incidences happened in the presence of our children. Respondent has a friend who is an MD. He prescribes him narcotics or any drugs that he desires. Respondent often mixes the drugs with alcohol and the result is disasterous (sic). He is even more violent and irrational. Now that I have left him, and have full custody of our children, he is angrier than ever. He has done things to my family member[s] that I never could have imagined . . . . He had my brother's house bombed and framed my father, which resulted in his arrest and damage to his good reputation. It is common knowledge in Tijuana that he wants me dead. I don't want our children to be caught in the crossfire."[5]
The California court, Judge Lorna Alksne presiding, granted wife an ex parte temporary restraining order and set the matter for hearing on December 1, 2008. The ex parte temporary restraining order included personal conduct and stay-away orders protecting wife and the children. The California court also temporarily granted legal and physical custody of the children to wife, with no visitation for husband.[6]
C. Husband Files a Request for Visitation in the Mexican Family Court
In early October 2008, while wife was living in the United States with the children, husband filed a request for visitation in the custody proceeding in Mexico. Judge Magana on October 17, 2008, ordered husband, wife and the children to undergo a psychological evaluation as a condition to visitation and ordered the children to appear before her on November 19, 2008. Wife claimed she was not informed of that order until November 8, 2008, a day after she had filed the restraining order in San Diego family court.[7]
Three hearings took place in Tijuana on November 19, 2008. In the first hearing, the court in the divorce proceeding ordered wife's clothing and other items returned to her. To carry out that order, an official of the Mexican court and wife's attorney in Mexico went to husband's Tijuana home and retrieved her belongings. In a second hearing in the custody proceeding, the court confirmed its decision for the psychological evaluation. Husband and his attorney were at the hearing, but neither the children nor the wife attended. Finally, there was a third hearing that day in a Mexican federal court regarding husband's request to stay the child support order.
On November 25, 2008, Judge Magana issued an order allowing husband 10 hours each week of visitation with the children, under wife's supervision, and 60 minutes of telephone contact each day by mobile phone (or other means) provided by husband.[8] Judge Magana's order was based in part on wife's lack of compliance with that court's October 17, 2008 order, which required wife and the children to attend the November 19, 2008 hearing in Mexico. Although wife was granted guardianship and custody of the children, Judge Magana noted husband was entitled to spend time with his children, particularly because he had not yet lost "[l]egal [c]ustody" of them. Judge Magana also ruled wife was to inform the court within three days of the November 25 order where she and the children were living and cautioned wife that if she did not comply, she could face sanctions equal to "twenty times the minimum wage in the economic area."
D. Jurisdiction and Forum Non-Conveniens
On November 26, 2008, husband in the DVPA action filed a motion to quash and dismiss the domestic violence proceedings for lack of jurisdiction and on the grounds of forum non conveniens. In his motion, husband claimed the California court lacked jurisdiction because both husband and wife were citizens of Mexico and domiciled in Tijuana, and because both the children, although citizens both of Mexico and the United States, also were domiciled in Tijuana.
Husband further claimed the California court lacked jurisdiction because a divorce proceeding initiated by wife was pending in the Tijuana family court, which already had made orders regarding custody, parenting and related issues. As such, husband claimed the Tijuana family court was the appropriate forum to resolve all such issues and accused wife of "forum shopping" to avoid the Tijuana family court's November 25, 2008 visitation order.
Finally, husband claimed the California court lacked jurisdiction because the "two children have been wrongfully taken and concealed, and [husband's] parental rights . . . have been violated, in contravention of the orders of the Tijuana Family Court entered on various dates . . . ." According to husband, because there was no emergency or other legally cognizable basis for the California court to assume jurisdiction, and because the proceedings in the Tijuana family court were not concluded and that court had not renounced jurisdiction, the California court in the DVPA action lacked jurisdiction over their "dissolution and other related matters."
At the December 1, 2008 hearing on husband's motion, the California court, Judge Joel Wohlfeil presiding, addressed whether California had "jurisdiction to issue custody orders" in light of the fact the family court in Mexico already had made various orders in connection with the children and husband's visitation. After a lengthy oral argument, the California court continued the matter to December 10, 2008.
In so doing, that court found it had temporary emergency jurisdiction over the children pursuant to section 3424, subdivision (a), admonished husband that at least until the December 10 hearing he was to comply with the order permitting wife to be the primary custodial parent of the children and cautioned wife to respect husband's visitation rights as reflected under the most recent order by the family court in Mexico. The California court further directed both parties to appear in a court in Mexico as soon as reasonably possible, but before the December 10 hearing, to "clarify any ambiguities" that may exist as a result of the most recent custody and visitation order issued by the court in Mexico.
Finally, the California court said it was "extremely uncomfortable" exercising jurisdiction over the children after December 10 but that if it was to err, it was going to do so on the side of protecting the children in light of the allegation that husband and armed body guards had taken the children from wife's parents' house in Mexico.[9]
At the December 10 hearing, the California court noted the only issue before it was whether the court intended to take "emergency jurisdiction" of the children to make custody determinations. Wife indicated her legal counsel in Mexico was timely challenging the November 25, 2008 order by Judge Magana giving husband 10 hours of visitation with the children. In response to the court's question of what relief was available in the DVPA action in California that was not available to wife in the custody proceeding in Mexico, wife's counsel noted the issue was the "integrity of the judicial system" in Mexico, and pointed out that it took a Hague Convention petition and the S.W.A.T. team to recover the children from husband.
The California court reviewed the pertinent "facts" taken from wife's declaration and concluded Judge Magana's orders were "reasonable, fair and balanced," Judge Magana was discharging her obligations properly and nothing done by the Tijuana family court caused the California court in the DVPA action to question Judge Magana's integrity. To avoid making orders that conflicted with those of the family court in Mexico, the California court refused to assume jurisdiction over the children without Judge Magana first relinquishing such jurisdiction.
The California court reissued the temporary restraining order to protect wife and set an evidentiary hearing to consider wife's request for a permanent restraining order. However, as to the children, the California court granted husband's motion to quash and to dismiss "on the basis that this court lacks jurisdiction to issue orders involving the two minor[s]."[10] The California court informed the parties at the conclusion of the hearing their case was being reassigned to Judge Lisa Schall because Judge Wohlfeil was being transferred to another department.


TO BE CONTINUED AS PART II….

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