Inoue v. Inoue (In re Marriage of Inoue)

• Decision Date: 27 March 2020
• Docket Number: B289261,c/w B290642
• Parties: In re Marriage of MARIKO and KEN INOUE. MARIKO INOUE, Plaintiff and Respondent, v. KEN INOUE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

In re Marriage of MARIKO and KEN INOUE.

MARIKO INOUE, Plaintiff and Respondent, v. KEN INOUE, Defendant and Appellant.

B289261

c/w B290642

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

March 27, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. YD065106)

APPEAL from a judgment and order of the Superior Court of Los Angeles County. Dianna J. Gould-Saltman, Judge. Affirmed.

Edward Stephen Temko for Defendant and Appellant.

Law Offices of Honey Kessler Amado, Honey Kessler Amado and James A. Karagianides for Plaintiff and Respondent.

____________________

The trial court entered judgment dissolving the marriage of defendant and appellant Ken Inoue (Ken) and plaintiff and respondent Mariko Inoue (Mariko).¹ The judgment contained custody and visitation orders regarding Ken and Mariko's minor son, including permission for Mariko to relocate to Japan with him. To ensure enforceability, the court ordered Mariko to register the judgment in Japan. Ken filed a notice of appeal from the judgment.

Shortly thereafter, on the ground that it was not possible to register a foreign judgment in Japan, Mariko requested an order relieving her from the registration requirement or, in the alternative, for a new trial or to reopen evidence. The trial court accepted declarations from Mariko's Japanese counsel and Ken's Japanese counsel, and relied on them to modify the judgment. The court stayed the registration requirement pending the resolution of Ken's appeal of the judgment and ordered the parties to participate in mediation in Japan. Ken filed a notice of appeal from the order modifying the judgment. We consolidated Ken's appeals.

Ken raises two issues. First, he argues that the trial court abused its discretion by failing to guarantee the enforceability of its custody and visitation orders in Japan, as required by In reMarriage of Condon (1998) 62 Cal.App.4th 533 (Condon). Second, he contends that the court erred by accepting new evidence regarding the impossibility of the registration requirement without reopening the trial and hearing live testimony subject to cross-examination.

We affirm.

BACKGROUND

I. Petition for Dissolution of Marriage and Mariko's Request to Relocate to Japan with Minor

Both Ken and Mariko were born and raised in Japan. They met in the United States in 2003, and were married in 2007. Their only child (minor) was born in Torrance, California, in March 2009. Mariko filed a petition for dissolution of marriage in June 2014. After a period of reconciliation, Mariko and Ken separated in September 2016, and their divorce proceedings resumed.

In November 2016, Mariko requested primary physical custody of minor and permission to relocate with him to Tokyo, Japan. Mariko stated that moving to Japan was "the only option" for her to become self-sufficient; she was minor's primary caregiver since his birth; and minor would have a "strong support system" in Japan given that both her family and Ken's family lived there.

Ken opposed Mariko's request. He contended that the move would not serve minor's best interests because a California custody order would not be enforceable in Japan; joint custody arrangements are not recognized under Japanese law; minor would be harassed in Japan because of his American name and his parents' divorce; and minor was "not sufficiently fluent [in Japanese] to thrive in Japan."

In December 2017, the trial court conducted a five-day trial on custody issues, including Mariko's relocation request.²

II. The Trial Court's Judgment Permitting Mariko to Relocate with Minor

On March 13, 2018, the trial court entered judgment dissolving Mariko and Ken's marriage and making orders regarding, inter alia, custody of minor (the Judgment).

A. Factual Findings

The Judgment set forth the factual findings underlying the trial court's custody orders.

Mariko and Ken were both "good, loving parents." Although minor had "an excellent relationship with both parents" (underlining omitted), Mariko was his primary caretaker. Thus, the preponderance of the evidence indicated that "the loss of daily interpersonal contact with [Mariko] would likely create greater harm for [minor] tha[n] the loss of daily interpersonal contact with [Ken]."

The trial court did not find evidence demonstrating that Mariko's reasons for wanting to return to Japan were "either fanciful or subterfuge to deprive [Ken] of parenting time." Mariko was unable to "acculturate" to the United States, had not made "extensive friendships" here, and was more comfortable speaking Japanese than English. Further, Mariko's "difficulty in assimilating into American culture made it difficult [for her] to maintain employment[.]" With both her family and Ken's family located in Japan, Mariko believed that was where she would have "the best opportunity to work and have family support."

Regarding the enforceability of the custody orders in Japan, the trial court found no evidence postdating Japan's 2014 signature to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) indicating "that Japan would act in a way which is contrary to any child custody orders made by the California court." The court further noted that, in 2016, Mariko had sought to use "legal, not extrajudicial, means" to resolve the custody issue and had returned to the United States from Japan with minor "as promised."

B. Custody Orders

Pursuant to the custody orders included in the Judgment, Mariko and Ken were awarded joint legal custody of minor, and Mariko was permitted to relocate with minor to Japan. The Judgment set forth detailed provisions regarding the allocation of physical custody while the parties remained in California and for when minor would move to Japan.

The Judgment stated that the United States was and would remain minor's country of habitual residence. California, minor's home state, would "retain exclusive jurisdiction" over the issue of minor's custody, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, as long as either Mariko or Ken resided here. And, California law would apply to minor's custody.

The trial court ordered Mariko to "take all steps to register [the] Judgment in Japan" prior to relocating with minor. In the event that Mariko failed to comply with any of the Judgment's child custody provisions, the Judgment provided that Ken, after 15 days, was permitted to deposit his child support obligationinto a trust account, which he could then use to pay litigation costs to secure Mariko's compliance.

III. Ken's Appeal from the Judgment

On March 23, 2018, Ken filed a notice of appeal from the Judgment.

IV. Mariko's Request for Order Seeking Relief from the Requirement to Register the Judgment or, in the Alternative, for a New Trial; Ken's Opposition

On March 28, 2018, Mariko filed a request for order seeking relief from the requirement that she register the Judgment in Japan. In the alternative, she sought a new trial to modify or vacate the Judgment's registration requirement or to reopen evidence to address the legal impossibility of registration.

Based on the declaration of her Japanese counsel, Eriko Matsuno (Matsuno), which accompanied the request for order, Mariko contended that no procedure existed under Japanese law to register a foreign judgment and, therefore, the Judgment contained a legal impossibility. Japan would, however, "automatically" recognize the Judgment provided certain jurisdictional requirements were met.³ The parties could also participate in Japanese mediation, which would create a mediation record mirroring the terms of the Judgment and having "the same force and effect as" a Japanese court order.⁴ Mariko requested that the Judgment's registration provision bereplaced by a requirement that she and Ken participate in the mediation process in Japan. This, she argued, would afford Ken "the very same protections of registration of the Judgment in Japan but in a manner which conforms to Japanese process."

Ken opposed Mariko's request. He argued that the trial court lacked subject matter jurisdiction to grant a new trial or to modify its judgment. He also disputed Mariko's factual assertions and whether she had demonstrated the legal impossibility of registering the Judgment in Japan.

In support of his opposition, Ken submitted the declaration of Seiya Sato (Sato), a Japanese attorney practicing international family law. According to Sato, the Judgment could be recognized in Japan if it met the requirements of article 118 of the Japanese Code of Civil Procedure, but to qualify for recognition the Judgment had to be "final"—meaning "no longer appealable." Sato also stated that the mediation process could be used to create an agreement reflecting the terms of the Judgment. However, in Sato's opinion, a Japanese court would still be unlikely to cede jurisdiction over minor's custody to California or apply California law.

In her reply declaration, Mariko's Japanese counsel, Matsuno, disagreed with Sato's characterization of enforcement of the Judgment's custody provisions in Japan as impossible. Matsuno also opined that California law could be applied by a Japanese court if custody was contested there and that, in her experience, "it is very difficult for one parent to obtain sole custody of the minor child in Japan if joint custody has been ordered in a foreign country."

V. Order Staying the Registration Requirement and Mandating Mediation

At the May 2, 2018 hearing, the trial court was "satisfied that the registration of the California Judgment . . . [was] not available in Japan."

The trial court overruled Ken's objection that Matsuno's...