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)

STORY CONTINUE FROM PART II….

DISCUSSION
I
Husband's primary contention on appeal is that the California court in the DVPA action, Judge Schall presiding, erred when it included the children in the permanent domestic violence restraining order filed on October 23, 2009, nunc pro tunc to April 9, 2009, and made various findings regarding visitation and custody in connection with that order. According to husband, because Judge Wohlfeil ruled the family court in Tijuana, Mexico, already exercised jurisdiction over the children when wife filed her request for restraining order in late November 2008, and because Judge Wohlfeil's ruling dismissing the children from the restraining order was on the merits and wife did not appeal that order, Judge Schall lacked the power under the UCCJEA to modify or alter Judge Wohlfeil's earlier final order and to ignore the visitation order of the Mexico family court.^[1]
After oral argument in this court, and at our request, the parties submitted supplemental briefing on various issues. Both parties agree in their supplemental briefing that the UCCJEA is the exclusive means of determining subject matter jurisdiction in custody disputes involving other jurisdictions, including foreign ones. However, wife argues the UCCJEA did not apply here because Judge Schall's exercise of jurisdiction over the children was not a "child custody determination" within the meaning of the UCCJEA. We turn first to that issue.
A. Whether the UCCJEA Applied in the DVPA Action
Both parties admit that the UCCJEA is the "exclusive means of determining subject matter jurisdiction in custody disputes involving other jurisdictions. [Citations.]" (In re Karla C. (2010) 186 Cal.App.4th 1236, 1268; In re Angel L. (2008) 159 Cal.App.4th 1127, 1136; In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 376.) The UCCJEA ensures that only one state has jurisdiction to make "child custody determinations," which, as relevant here, is defined in section 3402, subdivision (c), to include a "permanent, temporary, initial, and modification order" of a "court providing for the legal custody, physical custody, or visitation with respect to a child." (See also In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 497 ["[A]mong the primary purposes of the [UCCJEA and its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA)] is to encourage states to respect and enforce the prior custody determinations of other states, as well as to avoid competing jurisdiction and conflicting decisions."]^[2])
Wife, however, argues that a "protective order directing one parent to stay away from the children when they are in the lawful custody of the other parent, or to have no contact with the children except during authorized visits, is not an order 'providing for the legal custody, physical custody, or visitation with respect to a child,' " as provided in section 3402, subdivision (c). "Rather, it is an order restraining the parent's conduct during periods when [that parent] is not entitled to exercise legal rights to custody or visitation. Thus, Judge Schall had subject matter jurisdiction under the DVPA to entertain [wife's] request for non-custody protective orders pertaining to the children."
We note, however, that the UCCJEA specifically applies in domestic violence proceedings. (§ 3402, subd. (d) [the term "child custody proceeding" for purposes of the UCCJEA "includes a proceeding for . . . protection from domestic violence"].) In addition, as husband points out in his supplemental brief, the drafters of the UCCJEA and its predecessor state in the "official commentary" that the UCCJEA was enacted "long before the advent of state procedures on the use of protective orders to alleviate the problems of domestic violence. Issues of custody and visitation often arise within the context of protective order proceedings since the protective order is often invoked to keep one parent away from the other parent and the children when there is a threat of violence. The [UCCJEA] recognizes that a protective order proceeding will often be the procedural vehicle for invoking jurisdiction by authorizing a court to assume temporary emergency jurisdiction when the child's parent or sibling has been subjected to or threatened with mistreatment or abuse." (Official Commentary, Part 204, "Relationship to Protective Order Proceedings.") We thus agree with husband that the UCCJEA serves as the basis upon which subject matter jurisdiction is predicated, while the DVPA or a similar statutory scheme serves as the "procedural vehicle" to invoke subject matter jurisdiction as otherwise authorized by the UCCJEA.
The language of the temporary emergency jurisdiction statute itself supports our conclusion. (See Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 505 [a " 'statute is not to be read in isolation, [but rather] it must be construed with related statutes and considered in the context of the statutory framework as a whole.' "]) Section 3424, subdivision (a), provides a court has temporary emergency jurisdiction over a child if the child is present in this state, and as relevant here, if "it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse." (Italics added.) Thus, the language of subdivision (a) of section 3424 clearly shows the Legislature's intent that the UCCJEA apply to situations like the one at hand, where wife sought a restraining order against husband in the DVPA action.
In addition, subdivision (b) of section 3424 provides if there has been no previous child custody determination and a child custody proceeding has not been commenced in a state under sections 3421 to 3423, a "child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 3421-3423, inclusive." However, if there has been a previous child custody determination that is entitled to be enforced under the UCCJEA, or if a child custody proceeding has been commenced in a court in a state under sections 3421 to 3423, subdivision (c) of section 3424 states an order issued by a court of this state must follow the statutory requirements in subdivision (c).
Thus, it is clear from the plain language of subdivisions (b) and (c) of section 3424 that the "child custody determination" and "child custody proceeding" each refers to involve those made or commenced in a state before the court in this state determines whether it has temporary emergency jurisdiction. As such, wife's argument that there was no child custody determination when Judge Schall included the children within the scope of the restraining order focuses on the wrong point in time, and plainly ignores the fact that there appears to have been such a determination made by, and such a proceeding previously initiated by wife in, the family court in Tijuana.
Finally, we note that under subdivision (d) of section 3424, the Legislature declared its intent to "afford all children found in California the protection of California's juvenile court[s] in exigent circumstances" (In re Angel L., supra, 159 Cal.App.4th at p. 1138), and to expand the grounds under which a court may exercise temporary emergency jurisdiction to include, among others, "cases involving domestic violence." (§ 3424, subd. (e) (italics added).)^[3] Again, the statutory scheme makes clear the Legislature's intent that the UCCJEA apply in domestic violence proceedings. We thus reject wife's argument that Judge Schall's determination to include the children within the scope of the protective order in the DVPA action was not a "child custody determination" within the meaning of the UCCJEA.
B. The UCCJEA
Section 3421 provides that except as authorized by section 3424 (the temporary emergency jurisdiction statute), California courts must recognize and enforce another forum's child custody determination, even if that forum has not adopted the UCCJEA, if the forum court exercised jurisdiction in substantial conformity with the UCCJEA or the determination was made under factual circumstances meeting UCCJEA jurisdictional standards. (§ 3443, subd. (a); see also In re Marriage of Zierenberg (1992) 11 Cal.App.4th 1436, 1442-1443.)
Under the UCCJEA's definitional and jurisdictional provisions, a court of this state must "treat a foreign country as if were a state of the United States . . . ." (§ 3405, subd. (a); see also In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 490.)^[4] Thus, a "child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of [the UCCJEA] must be recognized and enforced . . . ." (§ 3405, subd. (b).)
Generally, the UCCJEA takes a strict " 'first in time' approach to jurisdiction." (In re Marriage of Paillier (2006) 144 Cal.App.4th 461, 469.) With certain exceptions discussed post, "once the court of an appropriate state [citation] has made a 'child custody determination,' that court obtains 'exclusive, continuing jurisdiction . . . .' [Citation.]" (Ibid.; see also Grahm v. Superior Court (2005) 132 Cal.App.4th 1193, 1200; In re Karla C., supra, 186 Cal.App.4th at p. 1268.) As such, the court of another state, including California, "[c]annot modify the child custody determination (Fam. Code, §§ 3421, subd. (b), 3422, subd. (a), 3423, 3446, subd. (b))" and "[m]ust enforce the child custody determination (Fam. Code, §§ 3443, 3445, 3446, 3448, 3453)." (In re Marriage of Paillier, supra, 144 Cal.App.4th at p. 469.)
" '[S]ubject matter jurisdiction [under the UCCJEA] either exists or does not exist at the time the action is commenced' " (In re A.C., supra, 130 Cal.App.4th at p. 860; see also Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 701), which is when the first pleading is filed. (§ 3402, subd. (e).) "There is no provision in the UCCJEA for jurisdiction by reason of the presence of the parties or by stipulation, consent, waiver, or estoppel." (In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 491; § 3421, subd. (c) ["Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination."])
Finally, the "best interests of the child" is not relevant to the issue of whether a court has the authority under the UCCJEA to exercise jurisdiction. (In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 492 [the term "best interests" of the child has been eliminated from the UCCJEA " 'to clearly distinguish between the jurisdictional standards and the substantive standards relating to child custody and visitation.' [Citations.]")
C. Temporary Emergency Jurisdiction
However, even when UCCJEA jurisdiction rests with another state or country, as noted ante a California court may exercise temporary jurisdiction if the child is present in this state and, as relevant here, the exercise of such jurisdiction is "necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse." (§ 3424, subd. (a).)
The authority to exercise temporary emergency jurisdiction is not unlimited, however. Subdivision (c) of section 3424 provides: "If there is a previous child custody determination that is entitled to be enforced under this part . . . any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction . . . . The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires."
Thus, when there is a previous order entitled to be enforced under the UCCJEA, the California court's order exercising emergency jurisdiction " 'must specify [in that order] "a period that the court considers adequate to allow the person seeking an order to obtain an order from the state [or foreign country] having jurisdiction." [Citation.] It "remains in effect until an order is obtained from the other state [or country] within the period specified or the period expires." [Citation.]' " (A.C., supra, 130 Cal.App.4th at p. 863.) However, "[e]ven though emergency jurisdiction is intended to be short term and limited, [a court] may continue to exercise its authority as long as the risk of harm creating the emergency is ongoing." (In re Angel L., supra, 159 Cal.App.4th at p. 1139.)
Subdivision (d) of section 3424 further requires a California court, informed that another court from a different forum has made a prior custody and/or visitation determination in substantial conformity with the UCCJEA or is then entertaining such a proceeding, to communicate immediately with that other court. "Immediately" means "as soon as possible after learning of the existence of proceedings in the sister state court. The courts must 'resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.' (§ 3424, subd. (d).) To make an appropriate order under the [UCCJEA], the California court needs to know whether the sister state court wishes to continue its jurisdiction and how much time it requires to take appropriate steps to consider further child custody orders. [Section 3424, subdivision (d)] does not allow the California court to wait to contact the other court until it makes a determination under the [UCCJEA] to assume emergency jurisdiction." (In re C.T., supra, 100 Cal.App.4th at pp. 110-111 [concluding the California juvenile court erred when it waited almost a month to contact the Arkansas court after learning of the latter's custody order], fns. omitted.)
"The finding of an emergency 'should not be made "in a rush to judgment" but rather "after a full and fair evidentiary hearing." [Citation.]' (People v. Beach (1987) 194 Cal.App.3d 955, 963; see also Matter of C.O. and J.O. (1993) 1993 Okla.Civ.App. 64 [856 P.2d 290, 294] [the 'court has the duty to take evidence on the issue of abuse to determine whether emergency jurisdiction is proper'].)" (In re C.T., supra, 100 Cal.App.4th at p. 107.) Thus, mere allegations "are insufficient to invoke emergency jurisdiction." (Ibid.)^[5]
When reviewing a jurisdictional order under the UCCJEA, a court of review is not bound by the trial court's findings and may independently reweigh the jurisdictional facts. (In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 492; In re Marriage of Sareen, supra, 153 Cal.App.4th at p. 376.)
D. Analysis
The record here shows the California court, Judge Wohlfeil presiding, on December 1, 2008, exercised temporary emergency jurisdiction over the children when it reissued the restraining order and included the children within the scope of that order's protection. However, the court noted it was "extremely uncomfortable" continuing jurisdiction after December 10, 2008, because the family court in Mexico already had made various orders regarding the children, custody and visitation. As a result, at the December 10 hearing it granted husband's motion to quash and dismiss the children for lack of jurisdiction and set the matter for hearing on wife's request for a permanent restraining order.
The record also shows that in the two hearings in April 2009, Judge Schall presiding, the California court did not appear to rely on the UCCJEF in determining whether it could exercise jurisdiction over the children, including on a temporary emergency basis, despite the fact the UCCJEF is the exclusive means to determine jurisdiction over a child in a "child custody proceeding." (In re Karla C., supra, 186 Cal.App.4th at p. 1268; In re Angel L., supra, 159 Cal.App.4th at p. 1136.) Instead, Judge Schall found she was entitled to include the children in the domestic violence protection order and make custody and visitation determinations in connection with that order because Judge Wohlfeil in December 2008 had merely denied wife's "ex parte application" for a restraining order.
We note, however, there is no "ex parte" exception to the UCCJEF, and in any event, this "finding" is not supported by the record, which instead shows Judge Wohlfeil declined to exercise emergency jurisdiction over the children because the Tijuana family court already had such jurisdiction, which, with certain exceptions, is exclusive under the UCCJEA. (See § 3405, subd. (b) [a "child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of [the UCCJEA] must be recognized and enforced"]; see also In re Marriage of Zierenberg, supra, 11 Cal.App.4th at pp. 1442-1443 [Puerto Rico custody order entitled to enforcement in California]; In re Marriage of Malak (1986) 182 Cal.App.3d 1018, 1026-1029 [Lebanese custody order enforced in California]; but see In re Marriage of Sareen, supra, 153 Cal.App.4th at p. 377 [California not required to enforce prior custody order from India, where jurisdiction was not in substantial conformity with UCCJEA standards because husband filed his petition for custody only nine days after the family arrived in India].)
However, we are not persuaded that Judge Schall was precluded under the facts presented from revisiting the issue of emergency jurisdiction in April 2009, after the California court found that husband engaged in domestic violence against wife that was witnessed by the children and found that husband took the children from wife without an order from any court and prevented wife from seeing them for more than three months.^[6]
Here, wife's request for a domestic violence restraining order was still to be decided and thus required further judicial action when the matter was pending before Judge Wohfeil. As such, we conclude that Judge Wohlfeil's order declining to exercise temporary emergency jurisdiction over the children was provisional in nature, and that a California court could revisit that issue if and when a restraining order issued.^[7] (See La Francois v. Goel (2005) 35 Cal.4th 1094, 1096 [a court possesses the inherent authority to reconsider its own interim orders prior to entry of final judgment, even in the absence of new law or new facts]; Art Movers, Inc. v. NI West, Inc. (1992) 3 Cal.App.4th 640, 650 [concluding an appeal from the denial of a permanent injunction was not reviewable because review could "only be intelligently accomplished when the merits of the litigation had been determined"]; Bishop Creek Lodge v. Scira (2000) 82 Cal.App.4th 631, 633 [ruling an interlocutory order denying a permanent injunction was not immediately appealable because further proceedings were necessary (e.g., to determine whether the plaintiff was entitled to damages as opposed to equitable relief)]; Lyon v. Goss (1942) 19 Cal.2d 659, 670 [as a general rule, where something "further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory"].)
Indeed, at the time Judge Wohlfeil declined to exercise emergency jurisdiction over the children, they were living with wife in the United States in a domestic violence shelter and she had primary custody over them. As such, any order restraining husband under the DVPA necessarily would involve the children, and at a minimum would require the California court to make certain, even if limited, determinations regarding custody and visitation in connection with that order.
We decline the invitation of husband to adopt a rule that prevents as a matter of law a California court from exercising temporary emergency jurisdiction over a child merely because that court previously refused to exercise such jurisdiction before it made a finding of domestic violence. Such a rule would undermine a California court's ability to protect a child present in California from immediate harm, in contravention of the intent of the Legislature, which we infer from the statutory scheme, to "afford all children found in California the protection of California's juvenile court[s] in exigent circumstances." (In re Angel L., supra, 159 Cal.App.4th at p. 1138; see also § 3424, subd. (e).)
We thus conclude that Judge Schall in April 2009 did not lack authority to revisit the December 10, 2008 interlocutory order of Judge Wohlfeil declining to exercise emergency jurisdiction over the children, in light of the findings of the California court that husband committed domestic violence against wife that the children witnessed, and that husband took the children under wife's custody and prevented wife from seeing them for more than three months. (See Lacey v. Bertone (1952) 109 Cal.App.2d 107, 110 ["It is obvious that where an issue is referred to a second judge by an interlocutory judgment and all the evidence on that issue is heard by that [second] judge there is no reason why [that judge] may not make new findings on that issue, regardless of the findings of the first judge."])
However, because the record shows Judge Schall ostensibly did not base her decision to exercise jurisdiction over the children on section 3424, subdivision (a), and, in any event, made no findings in that regard, and because, as a result, Judge Schall did not follow the statutory requirements of section 3424, including specifying in her order a "period that the court considers adequate to allow the person seeking an order to obtain an order from the state [or foreign country] having jurisdiction" (see § 3424, subd. (c)) and communicating immediately with the family court in Mexico (see § 3424, subd. (d)), we conclude the prudent course here is to reverse the April 9, 2009 permanent restraining order as it pertains to the children, custody and visitation,^[8] and to remand the matter to the California court.
On remand, the California court is instructed to follow the UCCJEA in determining whether in April 2009 emergency jurisdiction existed when it included the children in wife's permanent restraining order, to make appropriate findings based on this statutory scheme and if jurisdiction^[9] exists under section 3424, subdivision (a), to adhere to the statutory requirements of that statute, including specifying in the order a period it considers adequate for the husband to obtain an order from the family court in Mexico (§ 3424, subd. (c)); and communicating immediately with the family court in Mexico to "resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order." (§ 3424, subd. (d).)
In light of our decision to reverse and remand with instructions, we conclude it is unnecessary to resolve husband's contention that the California court's April 9, 2009 restraining order had the effect of denying him "all contact with his children" in violation of his fundamental rights under the 14th Amendment and his contention that there was insufficient evidence in the record to support a protective order for the children.^[10]
DISPOSITION
The domestic violence restraining order filed by the California court on October 23, 2009, nunc pro tunc to April 9, 2009, is reversed as it pertains to the children, custody and visitation. The case is remanded to the California court with instructions that it adhere to the UCCJEF in determining whether emergency jurisdiction existed in April 2009 when it included the children in wife's permanent restraining order, and if jurisdiction exists under section 3424, subdivision (a), to make appropriate findings based on this statutory scheme and adhere to its statutory requirements. The parties to bear their own costs of appeal.


BENKE, Acting P. J.

WE CONCUR:



HALLER, J.



McINTYRE, J.



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