Clark v. Superior Court

• Decision Date: 14 September 1977
• Citation: 140 Cal.Rptr. 709,73 Cal.App.3d 298
• Parties: Norma CLARK, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MENDOCINO, Respondent; Jimmie CLARK, Real Party in Interest. Civ. 41382.
• Court: California Court of Appeals Court of Appeals

Page 709

140 Cal.Rptr. 709

73 Cal.App.3d 298

Norma CLARK, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MENDOCINO, Respondent Jimmie CLARK, Real Party in Interest.

Civ. 41382.

Court of Appeal, First District, Division 1, California.

Sept. 14, 1977.

Legal Services Foundation of Mendocino and Lake Counties, Jane M. Ball, Fowler & Ball, Ukiah, for petitioner.

Lee S. Adams, Ukiah, for real party in interest.

SIMS, Acting Presiding Justice.

On the petition of the former Norma Clark (now Norma J. Garnes), the mother of Tanya L. Clark and the respondent in the original divorce proceedings pending below, we issued an alternative writ of mandate to determine whether proceedings, arising out of the request of the child's father for an order changing the custody of the child from the mother to him, should be quashed or dismissed under the provisions of the Uniform Child Custody Jurisdiction Act (Civ.Code, § 5150 et seq.) because of the nonresidence of the mother and the child.

The mother contends that under the provisions of section 5152 of the Civil Code ¹ an uncontested dissolution proceeding five years prior to the filing of the request for change of custody does not confer continuing jurisdiction upon the California court to make a subsequent modification order, when the child and her mother were living in Oregon, a state in which similar provisions are in effect (O.R.S. 109.700 et seq.), at the time the original custody decree was entered and have resided and been domiciled there at all times thereafter. Alternatively, the mother seeks a ruling that the proceedings should be dismissed because, under the circumstances of this case, the California court is an inconvenient forum to make a custody determination, and an Oregon court would furnish a more appropriate forum to resolve the issues raised by the father's request for an order for change of custody. (See Civ.Code, § 5156.) ²

On review we conclude that in view of the possibility of concurrent jurisdiction of the California court and an Oregon court, it was, under the circumstances of this case, an abuse of discretion for the California court to fail to stay the local proceedings on condition that the father timely take appropriate proceedings in Oregon, and that the mother submit to jurisdiction there for a determination of the father's request for a change of custody. The policy of the act which dictates that the issue of custody should be decided in the court with greatest access to the relevant evidence requires no less in this case where the father's right to relief is predicated upon his information and belief as to conditions in the child's 'home state.' ³

The facts are not contested. They may be gleaned from the father's request for an order to show cause why modification of custody should not be ordered, the mother's affidavit, and declaration under Uniform Custody of Minor Act, the findings of the trial court in its order denying the mother's motion to quash, and from the interlocutory decree of divorce, with a copy of which we have augmented the record. (See Cal.Rules of Court, rule 12.)

As a result of the union of the parties, which was dissolved approximately five years after their marriage by proceedings in the case under review, Billy M. Clark was born January 21, 1967 and Tanya L. Clark, whose custody is presently questioned, was born May 27, 1969. On the latter date, according to the mother's affidavit, the parents were living in 'Garverville' (sic Garberville Humboldt County(?)) in this state. She states that the family moved to Arkansas in November 1971. The court, however, found that for the four years immediately prior to the dissolution of their marriage, the father and mother were residents of the State of California. The mother alleged and the court found that in January 1972 the mother and daughter established their separate residence in Oregon. Nevertheless the court also found that they, along with the father and son, were residents of the County of Mendocino at the time of the dissolution. The mother and daughter remained in Oregon continuously ever since January 1972, with the exception of Tanya's visits to her father, as noted below. The daughter has attended school, commencing with kindergarten in Oregon, and was in the second grade at the time of the proceedings in the court below. She also attends Sunday school in that state, and is a patient of a pediatrician there.

As a result of proceedings commenced by the father in respondent superior court, in which the mother voluntarily appeared on March 14, 1972, the court following a hearing on March 17, 1972, awarded the husband an interlocutory decree of divorce. The interlocutory decree, which was entered the same day, bears the signature of the mother following 'Approved As to Form,' and provides with respect to the custody and support of the children as follows: 'The court also orders that the custody of BILLY M. CLARK, a son, born January 21, 1967 is awarded to Petitioner, and the custody of TANYA L. CLARK, a daughter, born May 27, 1969 is awarded to Respondent, with each party to have reasonable rights of visitation with the children. Petitioner is ordered to pay to Respondent the sum of $60.00 per month for the support and maintenance of TANYA L. CLARK until said child reaches the age of majority, marries, becomes self-supporting, or the further order of this Court.' A final decree was granted and filed on September 19, 1972.

The father and his son thereafter continued to make their home in Mendocino County. Pursuant to the decree the father enjoyed visitations with his daughter in Mendocino County in the summer of 1972, 1973, 1975 and 1976; ⁴ two of these visitations were more than a month in duration; and no visit was made in 1974 because the son was visiting with his sister and mother in Oregon.

On March 17, 1977, five years after the entry of the interlocutory decree the father filed the request giving rise to the proceedings under review. ⁵ The mother appeared specially and requested the court to dismiss or quash the order to show cause because the pleadings were defective because of a lack of supporting documents, which, if filed, would show a lack of jurisdiction; because the court was without jurisdiction under the Uniform Child Custody Jurisdiction Act; and because California was an inappropriate forum, so that the action should be dismissed under section 5156 of the Civil Code.

The court, except as noted, made findings in accordance with the facts as set forth above and denied the mother any relief. The petition giving rise to these proceedings was filed. After reviewing the father's opposition (Cal.Rules of Court, rule 56(b)) we issued an alternative writ. By the father's request, his opposition has been treated as a return to the writ, and the matter has been submitted.

I

Civil Code section 4600 provides in part, 'In any proceeding where there is at issue the custody of a minor child, the court may, during the pendency of the proceeding or At any time thereafter, make such order for the custody of such child during his minority as may seem necessary or proper . . .' (Emphasis added.) The emphasized language in this and prior law (former Civ.Code, § 138) has been construed as follows: 'This section has been held to expressly reserve to the California divorce court jurisdiction to modify its custody awards even though the children later become domiciled in another jurisdiction. (Citations.)' (Forslund v. Forslund (1964) 225 Cal.App.2d 476, 484, 37 Cal.Rptr. 489, 494. See also Ferreira v. Ferreira (1973) 9 Cal.3d 824, 838, fn. 18, 109 Cal.Rptr. 80, 512 P.2d 304; McDowell v. Orsini (1976) 54 Cal.App.3d 951, 962, fn. 5, 127 Cal.Rptr. 285; and Davis v. Davis (1960) 177 Cal.App.2d 75, 77, 1 Cal.Rptr. 923.) As we indicate below (part II), prior to the adoption of the Uniform Act, the foregoing principle was qualified by application of the doctrine of forum non conveniens. (Ferreira v. Ferreira, supra, 9 Cal.3d 824, 838, fn. 18, 109 Cal.Rptr. 80, 512 P.2d 304; and see Comment (1974) 62 Cal.L.Rev. 365, 391--405.) We first consider, however, the effect of the provisions of the Uniform Act upon the local court's exercise of jurisdiction.

A reading of paragraph (a) of subdivision (1) of section 5152 (fn. 1 above) alone indicates that Oregon as the 'home state' has jurisdiction to make a child 'custody determination' by 'modification decree.' ⁶ That observation, however, does not dispose of this case. The question of modification of a decree of a court of another state is expressly provided for in section 5163, which reads in pertinent part: '(1) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (a) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this title or has declined to assume jurisdiction to modify the decree and (b) the court of this state has jurisdiction. . . .' Before the Oregon court could act on the matter before the court it would have to find that the California court which rendered the initial decree does not now have jurisdiction under any of the jurisdictional requirements found in section 5152.

The father contends that the provisions of paragraph (b) of subdivision (1) and subdivision (3) of section 5152 (fn. 1 above) demonstrate that the California court does now have jurisdiction to modify its original order. We recognize that the physical presence of the child in Oregon does not deprive the California court of jurisdiction to determine her custody if other factors are present; that the father has a significant connection with this state; and that there is available in this state substantial evidence concerning the child's future care, protection, training and personal relationships insofar as they...