In re Marriage of Jensen

• Decision Date: 18 December 2003
• Docket Number: No. D040234.,D040234.
• Citation: 114 Cal.App.4th 587,7 Cal.Rptr.3d 701
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE of Julie and Peter JENSEN. Ubolratana Mahidol, Appellant, v. Peter L. Jensen, Respondent.

7 Cal.Rptr.3d 701

114 Cal.App.4th 587

In re the MARRIAGE of Julie and Peter JENSEN Ubolratana Mahidol, Appellant, v. Peter L. Jensen, Respondent.

No. D040234.

Court of Appeal, Fourth District, Division 1.

December 18, 2003.

Review Denied April 14, 2004.

Law Offices of Allen I. Neiman, Los Angeles, Allen I. Neiman and Amy L. Neiman, for Appellant.

Law Offices of Stephen Temko, Stephen Temko; Cannon Parks & Oberhansley, Robert J. Parks and Marjeta D. Six, San Diego, for Respondent.

McCONNELL, P.J.

We hold in this case that in a proceeding under the Family Code the superior court lacked in personam jurisdiction and subject matter jurisdiction to enforce provisions of the parties' marital settlement agreement (MSA) requiring an adult disabled child living in Thailand to visit his father in California. We further hold the court lacked subject matter jurisdiction to enforce provisions of the MSA requiring the mother to encourage and implement visitation and give the father written updates on their son's activities. The effect of those provisions is to control the son's conduct, and the mother has no legal authority over him because he has reached 18 years of age. Accordingly, the mother may not be subject to the court's contempt powers for any refusal or failure to sufficiently meet her affirmative duties under the MSA. The MSA purports to confer continuing subject matter jurisdiction on the trial court, but jurisdiction to adjudicate an adult child's personal rights, ostensibly through a parent, cannot be conferred by consent, waiver or estoppel. We reverse the court's order and remand the matter for its entry of a new order denying the father's request for visitation and other relief under the MSA.

FACTUAL AND PROCEDURAL BACKGROUND

Ubolratana Mahidol, formerly Julie Jensen (Julie), and Peter L. Jensen married in 1972, and Julie petitioned for dissolution of the marriage in 1998. The parties have three children: Ploypailin, born in 1981; Poomi, born in August 1983; and Sirikittiya Mai, born in 1985. Poomi is autistic.

The parties' MSA was incorporated into the August 2000 judgment on reserved issues. Under the MSA, the parties shared joint legal custody of the two minor children, Julie was awarded primary physical custody of them and Peter was awarded visitation. Further, the MSA acknowledged Julie's "close ties to her parents and to the country of Thailand," and gave her the right to move with the minor children to Thailand, subject to certain conditions affecting Poomi after he turned 18 years of age, including Peter's continued right to visitation, and Julie's obligations to encourage Poomi to visit Peter, to assist in the scheduling of visitation and "in carrying out all visitation schedules," and to keep Peter informed of Poomi's "activities, including academic, enrichment and extracurricular activities."

The MSA also stated: Poomi "currently suffers from a disability and falls within the scope of Family Code¹ section 3910. It is possible that after he attains age 18 Poomi may continue to be incapacitated from earning a living and without sufficient means. For so long as Poomi continues to be a person within the scope of ... Section 3910, as determined by the court and for so long as the Superior Court ... has jurisdiction over Poomi, it shall make such custody, visitation and support orders as are reasonable, necessary and in his best interest." (Italics added.)

Julie moved with Poomi to Thailand in July 2001, after his graduation from Torrey Pines High School.² The following month Poomi turned 18 years of age. In October, Peter caused the issuance of an order to show cause regarding visitation. In a declaration, Peter stated Julie violated the MSA by not implementing visitation and by not informing him of Poomi's "academic, social, and extra curricular [sic] development or his medical status." Peter sought an order requiring Poomi to visit him in San Diego during Thanksgiving week.

In opposition, Julie, now represented by different counsel, argued the court lacked in personam jurisdiction and subject matter jurisdiction to make visitation orders concerning an adult child.³ Julie unsuccessfully moved for dismissal of the order to show cause, and this court denied her petition for writ of mandate and request for stay, without prejudice to her seeking appellate review of the superior court's ruling. (Jensen v. Superior Court (Apr. 12, 2002, D039795).)

At the April 2002 hearing, the court ruled the MSA gave it continuing jurisdiction over custody and visitation issues pertaining to Poomi. The court's order provides the "court sets a four-week period of visitation, four consecutive weeks starting June 15 and concluding on or about July 13," and the "court further orders a ten-day period in December 2002, which commences December 18 and concludes December 28." Additionally, the court's order requires Julie to (1) "cooperate and assist in scheduling visitation"; (2) cooperate "in carrying out this visitation by assisting Poomi in all respects by including getting him to the airport in Thailand and providing him with a person to accompany him on the flight here or in the alternative letting [Peter] receive him at the airport in Thailand, and have either him physically or one of his aides accompany Poomi over here from Thailand for the flight"; (3) "not interfere in or preclude visitation in any way and to encourage this visitation to take place"; and (4) "keep [Peter] informed once per month in writing of Poomi's activities, including his academic enrichment and extracurricular activities."

This court granted Julie's petition for writ of supersedeas and request for stay of the order, pending disposition of her appeal.

DISCUSSION

I

Julie contends the trial court lacked in personam jurisdiction and subject matter jurisdiction to issue its order. These are questions of law we review independently. (Gilliland v. Medical Board (2001) 89 Cal.App.4th 208, 211-212, 106 Cal.Rptr.2d 863.)

II

"The superior court has jurisdiction in proceedings under" the Family Code. (§ 200.) "In general, `jurisdiction' to adjudicate matters in a marital case involves three requirements: 1) that the court have authority to adjudicate the specific matter raised by the pleadings (subject matter jurisdiction) (see ... § 2010); 2) that the court have `in rem' jurisdiction over the marital `res' to terminate marital status (`in rem' jurisdiction) [citation]; and 3) that the court have jurisdiction over the parties to adjudicate personal rights and obligations (personal jurisdiction)." (Muckle v. Superior Court (2002) 102 Cal.App.4th 218, 225, 125 Cal.Rptr.2d 303.)

In personam jurisdiction requires a relationship between the person whose rights are at issue and the state, such as domicile or residence; due process, or notice and opportunity to be heard; and compliance with statutory requirements of process. (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 110, p. 648.) The superior court indisputably lacked in personam jurisdiction over Poomi. Peter contends such jurisdiction was unnecessary because the court's order does not require Poomi to visit Peter, and thus his personal rights were not adjudicated. The court, however, did order visitation. The order is titled "ORDER RE VISITATION" and states the "court sets a four-week period of visitation, four consecutive weeks starting June 15 and concluding on or about July 13," and the "court further orders a ten-day period [of visitation] in December 2002, which commences December 18 and concludes December 28." (Italics added.) Any order entered by a court without personal jurisdiction is void and subject to collateral attack at any time. (Rochin v. Pat Johnson Manufacturing Co. 67 Cal.App.4th 1228, 1239, 79 Cal.Rptr.2d 719.)⁴

Moreover, the court lacked subject matter jurisdiction to issue its order. "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter...." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942; In re Marriage of Siller (1986) 187 Cal.App.3d 36, 47, 231 Cal.Rptr. 757.) "Jurisdiction in any proceeding is conferred by law; that is, by the Constitution or by statute. Jurisdiction of the subject-matter cannot be given, enlarged, or waived by the parties." (Harrington v. Superior Court (1924) 194 Cal. 185, 188, 228 P. 15; Abelleira v. District Court of Appeal, supra, at p. 288, 109 P.2d 942; Marlow v. Campbell (1992) 7 Cal.App.4th 921, 928, 9 Cal.Rptr.2d 516; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003), ¶ 3.2, p. 3-2; 2 Witkin, supra, Jurisdiction, §§ 6, 12, pp. 551, 556.) An order entered by a court without subject matter jurisdiction is also void and subject to collateral attack. (Rochin v. Pat Johnson Manufacturing Co., supra, 67 Cal.App.4th at p. 1239, 79 Cal.Rptr.2d 719.)

Section 2010 gives the superior court in a dissolution proceeding subject matter jurisdiction "to inquire into and render any judgment and make orders that are appropriate concerning," among other things, the "custody of minor children of the marriage." (§ 2010, subd. (b), italics added.) Further, section 3022 provides: "The court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary and proper." (Italics added; see also Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 225, 125 Cal.Rptr.2d 303; Zaragoza v. Superior Court (1996) 49 Cal.App.4th 720, 725, 57 Cal.Rptr.2d 1; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2003) ¶ 3:4.1, pp. 3-2 to 3-3.) By statute, a minor is a person under 18 years of age. (§§ 6500, 6501.)

Visitation is a form of custody (Perry v. Superior Court (1980) 108 Cal.App.3d 480, 483, 166 Cal.Rptr. 583), and thus under the plain terms of sections 2010,...