Filed 6/29/22 Marriage of Randoy CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Lawrence P. Riff, Judge. Judgment affirmed.

Marieke Randoy, in pro. per., for Appellant.

No appearance for Respondent.

INTRODUCTION

This appeal arises out of a marital dissolution action between Marieke Randoy and Reed Randoy, and related custody proceedings regarding their only child.[1]

Marieke appeals from the judgment entered on August 7, 2020 after a nine-day bench trial on the petition for dissolution, and several interlocutory rulings. Marieke contends the trial court erred by: (1) finding Reed had standing to petition for divorce when he did not meet the residency requirements set forth in Family Code section 2320; and (2) finding California was the child’s home state under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.).[2] In the alternative, assuming jurisdiction was proper, Marieke contends the trial court: (1) lacked authority to order the child be returned from Canada to California; and (2) abused its discretion by not considering the best interest of the child; impermissibly applying the “changed-circumstance” legal standard in denying Marieke custody and visitation; impermissibly making a child custody award to a non-party; and making custody and visitation awards based on its own “unlicensed mental health findings.”[3] For the reasons discussed below, we affirm.[4]

FACTUAL AND PROCEDURAL BACKGROUND[5]

Marieke and Reed were married in 2011. They had one son, born in April 2012 in Los Angeles.

In 2014, Marieke decided to try out acting in Canada after not finding much success acting in Los Angeles. Marieke and Reed discussed Marieke taking their child with her to Canada based on Reed’s work schedule and ability to save on childcare. Marieke explained to Reed that because she was a Canadian citizen, she had a better opportunity to be cast in the smaller roles of television shows shot in Canada, and that once she booked a few roles she would be able to come back to Los Angeles and audition “via ‘tape’.” Marieke and Reed also agreed that once she could replace Reed’s income in Los Angeles, he would move to Vancouver temporarily to audition and gain acting credits. Once they both had sufficient resumes, they could move back to Los Angeles and become working actors in film and television. The plan was always to come back to Los Angeles to raise their son in Hollywood.

Based on these understandings, Reed reluctantly agreed to Marieke moving with their child to Vancouver temporarily. He signed a one-year lease for an apartment beginning in April 2014. Marieke and Reed gave up their apartment in Los Angeles to save money, and Reed lived on his boat in Los Angeles while Marieke and their child lived in Canada.

Reed continued to work in Los Angeles, and flew to Canada every three-to-four weeks to visit Marieke and their child.

On April 25, 2015, Marieke returned to Los Angeles with the child. Reed told Marieke “the whole ‘[t]emporary Canada [p]lan’ was not working since she failed to achieve any success booking any acting roles” and that he really needed to be in their child’s life whenever he was not working. Marieke responded that Reed was trying to control her and he could not dictate where she lived.

On May 19, 2015, while Marieke and the child were still in Los Angeles, Reed filed a petition for dissolution of marriage in the Los Angeles Superior Court. Reed concurrently filed a “Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act” stating the child lived with both parents in Vancouver from “4/2014 to present” and also lived in Los Angeles during the exact same time (“4/2014 to present”).[6] Two days later, Marieke was personally served with the summons in Los Angeles, which included the standard family law restraining order prohibiting her from removing the child from the state without Reed’s written consent or an order of the court.

On May 28, 2015, Marieke took the child back to Canada without Reed’s knowledge or consent. In response, Reed filed an ex parte request seeking temporary emergency orders of child custody and visitation. Specifically, he sought the immediate return of the child to his sole custody, and the immediate turnover of the child’s passport. The court granted temporary sole legal and physical custody of the child to Reed with no visitation for Marieke pending a hearing (the June 5 Order). On June 26, 2015, after a hearing before Judge Tamara Hall, the court modified the June 5 Order as follows: joint legal custody of the child to Marieke and Reed, and sole physical custody of the child to Marieke (with Reed obtaining visitation rights).

On July 1, 2015, the trial court vacated the June 26, 2015 order to give the parties the opportunity to brief “the issue of jurisdiction.” After a hearing on the jurisdictional issue on July 31, 2015, the trial court found California to be the home state of the child. Specifically, it found “the minor child was born in Los Angeles County, that the minor child resided in Los Angeles County two (2) years before the move to Vancouver, that the move to Vancouver was temporary, and that California was never abandoned as the minor child’s home state.” The court ordered joint legal custody to Reed and Marieke, and sole physical custody to Reed. It also granted Marieke visits with the child every weekend, which were to take place in Los Angeles. It further ordered: “Neither party shall change the residence of the minor child from the state of California and from the [C]ounty of Los Angeles without the prior consent of the other parent or of [sic] prior order of this Court.”

On October 7, 2016, Marieke visited the child in Los Angeles for the first time in approximately eight months. She took the child back to Canada without Reed’s (or the court’s) knowledge or consent, and refused to return the child to Reed after her weekend visit.

In response, Reed filed a request for a domestic violence restraining order against Marieke, seeking the immediate return of the child to Los Angeles. He also sought an order granting him sole physical custody of the child, suspension of visitation pending a hearing, a permanent order allowing only supervised visitation in Los Angeles at a professional monitoring center, and “stay-away” and “no contact” orders. Reed also sought an order that Marieke “submit to a psychiatric/mental health examination prior to being awarded any unsupervised visitation.”

The trial court granted a temporary restraining order, ordered legal and physical custody to Reed, and ordered no visitation for Marieke. The court set a hearing for October 31, 2016. Without citation to the record, Marieke states that on October 20, 2016, Reed “obtained from the Court in Canada an order authorizing the seizure . . . of [the child]. Canadian police seized [the child], handed him over to Reed, whereupon Reed and [Reed’s girlfriend] returned to Los Angeles with [the child].”

After the October 31, 2016 hearing, at which Marieke did not appear, the trial court granted Reed’s request for a domestic violence restraining order, finding Reed “has met his burden of proof to show that an act or acts of domestic violence occurred.” The court issued the restraining order for a period of five years (which expired on November 1, 2021). It further ordered sole legal and physical custody of the child to Reed, and no visitation to Marieke “except at the discretion of [Reed].” It further ordered that Marieke submit to a psychological mental health examination before any visitation with the child at the discretion of Reed.

A trial on Reed’s petition for dissolution began on March 27, 2018 (Judge Lawrence Riff, presiding). The court heard testimony from Marieke, Reed, and Christine Dannerth (Reed’s girlfriend) during the course of a nonconsecutive nine-day trial.

On August 7, 2020, the trial court entered a judgment of dissolution, which included the trial findings and orders. Among other things, the trial court ordered that Reed “continue to have sole legal and sole physical custody of the minor child per Judge Tamara Hall’s October 31, 2016 order of protection” and that Marieke “shall have no visitation with the minor child and shall submit to a psychological mental health examination before being allowed any visitation, supervised or unsupervised, with the minor child at the discretion of [Reed].”

Marieke timely appeals from the judgment.

DISCUSSION

1. Reed’s Petition for Dissolution

Marieke contends Reed did not meet the residency requirements set forth in section 2320,[7] and therefore, the “entire case below is [void].” Because Marieke waived this contention by not raising it within the time to file a response to the petition for dissolution, we decline to address the merits.

Any challenge to the required California domicile of at least one of the parties must be raised at the initiation of the matter or the issue will be waived. (See Cal. Rules of Court, rule 5.63(b)(3) [“Within the time permitted to file a response, the respondent may move to quash the proceeding, in whole or in part, for any of the following reasons: [¶] . . . [¶] (3) Failure to meet the residence requirement of Family Code section 2320.”].) “The parties are deemed to have waived the grounds set forth in [rule 5.63](b) if they do not file a request for order to quash within the time frame set forth.” (Cal. Rules of Court, rule 5.63(e).)

Here, Marieke failed to file a motion to quash raising Reed’s alleged failure to meet the residency requirements set forth in section 2320. Instead, she filed a response to the petition. Although Marieke’s response to the petition is not in the record on appeal, at the June 26, 2015 hearing on Reed’s ex parte request for order, the trial court stated: “The petition was filed; the response was filed; so the time has come and [passed] for you to file a motion to quash challenging the court’s jurisdiction.”

Marieke does not dispute the trial court’s finding that she failed to timely file a motion to quash. Rather, she argues the residency requirement in section 2320 cannot be waived because the issue is one of standing or subject matter jurisdiction. Marieke is incorrect. Domicile under section 2320 is not an issue of standing. Marieke argues Reed failed to meet the residency requirements to file a petition in California, not that he does not have a “right to make a legal claim or seek judicial enforcement.” (See Carachure v. Scott (2021) 70 Cal.App.5th 16, 26 [“‘Black’s Law Dictionary defines standing as a “party’s right to make a legal claim or seek judicial enforcement.”’”). Nor is this an issue of subject matter jurisdiction. The parties’ domicile gives the court in rem jurisdiction over the marriage to be dissolved. (See In re Marriage of Zierenberg (1992) 11 Cal.App.4th 1436, 1444 [“Dissolution is an in rem proceeding, in which marriage is the res that is adjudicated.”].) Unlike subject matter jurisdiction, absence of in rem jurisdiction may be waived. (See Zaragoza v. Superior Court (1996) 49 Cal.App.4th 720, 725 [explaining the “concept of ‘res’ as jurisdiction is tied to the concept of personal jurisdiction,” and like personal jurisdiction, is waived unless a challenge is timely raised.].)

Because Marieke failed to timely raise her contention that Reed failed to meet the residency requirements in section 2320, we deem her contention waived.

2. Subject Matter Jurisdiction Under the UCCJEA

1. Applicable Legal Principles and Standard of Review

“It is well settled in California that the UCCJEA is the exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions. [Citations.] The UCCJEA applies to international custody disputes as well as interstate disputes. [Citations.] Under the Act, foreign countries are to be treated as states for the purpose of determining jurisdiction . . . . [Citations.]” (In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 376.)

As relevant here, section 3421, subdivision (a) confers jurisdiction on a California court if California “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.” (§ 3421, subd. (a)(1).)

Section 3402, subdivision (g) defines “home state” as it is used in section 3421: “‘Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period.”

“The term ‘lived’ for the purpose of conferring home state jurisdiction is properly interpreted to mean physical presence.” (In re Aiden L. (2017) 16 Cal.App.5th 508, 518.) “‘Temporary absence,’ on the other hand, another aspect of the home state analysis, necessarily requires consideration of the parents’ intentions, as well as other factors relating to the circumstances of the child’s or family’s departure from the state where they had been residing.” (Ibid.)

“It is the responsibility of the [trial] court in the first instance to hold an evidentiary hearing to determine whether any basis exists under the UCCJEA for it to exercise jurisdiction and to make child custody orders beyond the temporary emergency orders authorized by section 3424. [Citation.] Our role, once the [trial] court has evaluated witnesses’ credibility, resolved conflicts in the evidence and made its findings, is to ensure that the provisions of the UCCJEA have been properly interpreted and that substantial evidence supports the factual basis for the [trial] court’s determination whether California may properly exercise subject matter jurisdiction in the case.” (In re Aiden L., supra, 16 Cal.App.5th at p. 520, fn. omitted.)[8]

2. Substantial Evidence Supports the Trial Court’s Finding that California was the Home State of the Child

Although the child lived with Marieke in Canada from April 2014 to April 2015, Reed argued the year spent in Canada was a “temporary absence” from Los Angeles. Therefore, he argued, California was the child’s “home state” for purposes of section 3421, subdivision (a). As discussed above, in support of his position, Reed declared he and Marieke planned on raising their family in Los Angeles and “Canada was a temporary situation and was solely for Marieke to earn acting credits so she could then return to Los Angeles County. It was never intended to be a permanent move. It was only when the 1-year trial period expired that Marieke suddenly decided that Vancouver was her and [the child’s] home.” Marieke countered that the move to Canada was not temporary, relying on the length of time spent in Canada and the fact they signed a one-year apartment lease.

After weighing the evidence and hearing argument from the parties, the trial court found the “child resided in Los Angeles County two (2) years before the move to Vancouver, that the move to Vancouver was temporary, and that California was never abandoned as the minor child’s home state.” We conclude the record contains substantial evidence to support the trial court’s finding that California was the child’s home state under the UCCJEA.

Marieke’s reliance on Ocegueda v. Perreira (2015) 232 Cal.App.4th 1079 (Ocegueda), is misplaced. There, the issue was whether California was the home state of a child who was born in Hawaii, remained in Hawaii for six weeks with his mother, then traveled to California with his mother, where, within 24 hours of his arrival, custody proceedings were commenced by his father in a California court. (Id. at p. 1081.) The court concluded “the child lived in Hawaii by virtue of the child’s presence in Hawaii for the six weeks following his birth, leaving the state and traveling to California only 24 hours before father initiated these proceedings.” (Ibid.) “Because the child was born in Hawaii and lived in Hawaii with his mother following his birth, Hawaii is the child’s home state.” (Ibid.)

In contrast to the facts in Ocegueda, here the child was born in California and lived here until the relocation to Canada. Thus, the issue is whether the child’s move to Canada was a “temporary absence” from California. Citing Ocegueda, Marieke argues the subjective intent of the parties to return to California is irrelevant because the child “lived” (i.e., was physically present) in Canada. (See Ocegueda, supra, 232 Cal.App.4th at pp. 1088-1089 [“lived” connotes physical presence in the state].) Marieke confuses two separate aspects of the “home state” jurisdiction analysis, i.e., the meaning of “lived” and the meaning of “temporary absence.” The court in Ocegueda makes clear that although we look to objective factors in determining where a child “lived” (id. at p. 1088), we look at the parties’ subjective intent in determining whether the child’s move to another state is a “temporary absence”: “This is not to suggest that the parties’ subjective intent to remain in a jurisdiction is never relevant in determining home state jurisdiction, only that it is never relevant for determining whether a child ‘lives’ in a particular state. When the child is moved to another state and ‘lives’ in that second state, whether that is a temporary absence from the first state will often require inquiry into a party’s subjective intent to remain in that state.” (Id. at p. 1088, fn. 5.)

Accordingly, we conclude the trial court properly analyzed the parties’ subjective intent in determining whether the child’s move to Canada was a temporary absence from Los Angeles, and the court’s finding that California was the home state of the child is supported by substantial evidence.

3. The Trial Court’s June 5, 2015 Order

Next, Marieke contends the June 5 Order for the immediate return of the child to Los Angeles was “void” because the court acted in “absence of all jurisdiction” and “the alleged international service upon Marieke was ineffective.” The June 5 Order granted temporary sole legal and physical custody of the child to Reed with no visitation for Marieke pending a hearing on Reed’s ex parte request for temporary emergency orders of child custody and visitation. As explained above, however, on June 26, 2015, the trial court modified the June 5 Order and ordered joint legal custody of the child to both parents and sole physical custody to Marieke. Accordingly, Marieke’s objection to the June 5 Order is moot because it was superseded by the June 26, 2015 order. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 555-566.)

4. The Trial Court Did Not Abuse Its Discretion

Alternatively, Marieke contends the trial court abused its discretion by: (1) failing to consider properly the best interest of the child; (2) impermissibly applying the “changed-circumstances” legal standard in denying Marieke all custody and all visitation; (3) making what amounts to a child custody award to non-party Christine Dannerth (Reed’s girlfriend); and (4) making a custody and visitation award based on its own “unlicensed mental health findings.”

After a nine-day trial, the trial court (Judge Lawrence P. Riff) made several findings regarding child custody and visitation, including the following: (1) It was “more likely than not that [Marieke] did not appear at the October 31, 2016 hearing on [Reed’s] request for a DVPA [Domestic Violence Prevention Act] order of protection because she had removed the minor child unlawfully from California and the U.S.A., because she had already once been found to have violated the ATROs [automatic temporary restraining orders] earlier by such a removal, and she feared the consequence of returning to California for the hearing”; (2) the evidence was “sufficient to support findings that [Marieke] has shown poor judgment regarding her compliance with court orders in the past and the conduct relative to [Reed] and Ms. Dannerth is sufficient to support findings that she can be hostile, combative and lacking in impulse control”; (3) “there is not changed circumstances warranting any modification of the current award of sole legal and physical custody to [Reed], and in any event, [ ] it is not in the best interests of the minor child to change the current orders on legal or physical custody; and (4) “a modification of the current visitation orders would [not] be in the minor child’s best interests at this time because (i) it is apparent to the Court that [Marieke] has not yet accepted the wrongfulness of her conduct that resulted in the five-year order of protection, and the Court is concerned that [Marieke] presents a risk of further abduction; (ii) there is no credible evidence before the Court that [Marieke] has taken any steps to comply with Judge Hall’s specific order that no visitation for [Marieke] was to occur, supervised or unsupervised, without [Marieke] first submitting to a ‘psychological mental examination’; (iii) the Court has seen little evidence that [Marieke] has internalized the benefit to the minor child of a true co-parenting relationship between her and [Reed], and the fact of the minor child’s now having a relationship with Ms. Dannerth; and, (iv) [t]he Court finds that [Marieke] presently presents a genuine risk of inducing, or seeking to induce, parental alienation between the minor child and his father.” Based on the “totality of the evidence” before the trial court, it found: “there is at present an unacceptable risk, even in a supervised visitation setting, that [Marieke] would conduct herself around the minor child in a fashion that would be at a minimum confusing and upsetting to the minor child who is still too young, at age nine, to truly understand the dynamic that exists between his parents.” Thus, the trial court declined to modify the visitation order contained in the October 31, 2016 order (no visitation) “because such modification is not in the minor child’s best interests.” The court observed, however that “this could change in the future based on new facts.”

“‘The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) It is the appellant’s burden to address all the evidence in the record in arguing an order is an abuse of discretion; otherwise, the contention is forfeited. (See Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182-1183 (Rich).)

Marieke has failed to carry her burden. First, Marieke contends the trial court did not properly consider the best interest of the child. She argues the court ignored evidence that the child “missed his Mommy and wanted to go home to Canada” and failed to consider proper factors in finding Marieke failed to rebut the presumption in section 3044.[9] Marieke fails to address any of the other evidence, however, presented over the course of the nine-day trial. This contention is, therefore, forfeited. (See Rich, supra, 200 Cal.App.4th at pp. 1182-1183 [a reviewing court is not “required to undertake an independent examination of the record when appellant has shirked [her] responsibility” to “set forth a fair and adequate statement of the evidence which is claimed to be insufficient.”].)

Second, we reject Marieke’s contention that the court improperly applied the “changed circumstances” standard. After a ““judicial custody determination, the noncustodial parent seeking to alter the order for legal and physical custody can do so only on a showing that there has been a substantial change of circumstances so affecting the minor child that modification is essential to the child’s welfare.’ [Citation.]” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) Here, Marieke sought custody of the child (i.e., a modification of the October 31, 2016 domestic violence restraining order awarding Reed sole legal and physical custody of the child). Marieke fails to cite, and we have not located, any case law supporting her contention that the “changed circumstance standard” is improperly applied when the custody order in place at the time was a domestic violence restraining order as opposed to a “parenting plan.”

Third, Marieke argues the trial court made what “amounts to a child custody award to non-party Christine Dannerth.” It did not. The plain language of the judgment states: “[Reed] shall continue to have sole legal and sole physical custody of the minor child per Judge Tamara Hall’s October 31, 2016 order of protection.” That Reed and the child live in Ms. Dannerth’s house is not tantamount to an award of physical custody to Ms. Dannerth.

Finally, the trial court did not make mental health findings, as Marieke contends. The trial court found the evidence presented at trial supported findings that Marieke “can be hostile, combative and lacking in impulse control.” These are factual findings after weighing the evidence, not medical diagnoses. Based on these factual findings, the trial court properly exercised its discretion by ordering Marieke to submit to a psychological mental health examination before being allowed any visitation.

DISPOSITION

The judgment and interim rulings are affirmed. Marieke is to bear her own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

WILLHITE, J.

[1] Because the parties share the same last name, we refer to them by their first names to avoid confusion. No disrespect is intended. To protect the personal privacy interest of their child, we do not use his name. (Cal. Rules of Court, rule 8.90(b)(1).)

[2] Statutory references are to the Family Code unless otherwise stated.

[3] At oral argument, Marieke raised several additional arguments. We decline, however, to address issues not raised in Marieke’s appellate brief. (See Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [“[A]n appellant’s failure to discuss an issue in its opening brief forfeits the issue on appeal.”].)

[4] No respondent’s brief was filed. The rule we follow in such circumstances “is to examine the record on the basis of appellant’s brief and to reverse only if prejudicial error is found. [Citations.]” (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55; accord, Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 80, fn. 2.)

[5] Consistent with the substantial evidence standard of review for reviewing a family court’s findings regarding subject matter jurisdiction under the UCCJEA (see In re Aiden L. (2017) 16 Cal.App.5th 508, 519-520), we recite the facts established by the record in the light most favorable to the judgment. (Los Angeles Unified School Dist. v. Casasola (2010) 187 Cal.App.4th 189, 194, fn. 1.)

[6] According to Marieke, the address provided for Los Angeles in the declaration is a mailbox at a UPS store (because, as stated above, Reed was living on a boat in Los Angeles at the time).

[7] Section 2320, subdivision (a) provides, in relevant part: “[A] judgement of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.”

[8] We recognize there is a split in authority on the standard of review (substantial evidence or independent review of jurisdictional facts). (See In re Aiden L., supra, 16 Cal.App.5th at p. 519.) We conclude the reasoning in Schneer v. Llaurado (2015) 242 Cal.App.4th 1276 (Schneer), the decision the court in In re Aiden L. relied upon in applying the substantial evidence standard of review, is more persuasive. (See Schneer, supra, 242 Cal.App.4th at p. 1285 [“[t]he notion an appellate court may independently reweigh the trial court’s findings of jurisdictional facts runs counter to the fundamental principle that appellate courts do not reweigh facts and generally must defer to the trial court's resolution of credibility and conflicts in the evidence.”].)

[9] Section 3044, subdivision (a) provides, in relevant part: “Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, . . . , there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interests of the child . . . .”