Kent v. Kent (In re Kent), D074529

• Decision Date: 17 May 2019
• Docket Number: D074529
• Citation: 247 Cal.Rptr.3d 466,35 Cal.App.5th 487
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE the MARRIAGE OF Molly and Samuel KENT. Molly Kent, Appellant, v. Samuel Kent, Respondent.

35 Cal.App.5th 487

247 Cal.Rptr.3d 466

IN RE the MARRIAGE OF Molly and Samuel KENT.

Molly Kent, Appellant,

v.Samuel Kent, Respondent.

D074529

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

Filed May 17, 2019

Bickford Blado & Botros and Andrew J. Botros for Appellant.

Moore, Schulman & Moore and Julie Ann Westerman for Respondent.

IRION, J.

In this appeal the appellant challenges a specific ruling of the family court on her request for an order to modify a child custody and child support order issued by a North Carolina court . The family court granted in part and denied in part the appellant's request, without first determining whether the California court had jurisdictionunder the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.¹ ). Accordingly, without reaching the merits of the arguments related to the substantive ruling on appeal, we will reverse the order because, based on the record before the family court at the time it ruled, the court lacked jurisdiction to modify the North Carolina order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Molly Kent (Mother) and respondent Samuel Kent (Father) share two children ages 13 and 11. On August 2, 2017, the General Court of Justice, District Court Division, of the State of North Carolina, County of Iredell (North Carolina Court) filed a "Consent Order Regarding Modification of Child Custody, Permanent Child Custody, and Permanent Child Support" (North Carolina Order) in case No. 17-CVD-835, entitled Kent v. Kent (North Carolina Action). The North Carolina Order is 14 single-spaced typewritten pages, containing an introduction, 18 numbered paragraphs of Findings of Fact, 7 numbered paragraphs of Conclusions of Law, and more than 65 separately numbered paragraphs containing detailed orders regarding custody, visitation, support, and raising the children.

In February 2018, Mother initiated the underlying California family law action by filing certain declarations and registering the North Carolina Order in the North County Division of the San Diego County Superior Court, as required by the UCCJEA. (§§ 3445, 3429.)

A month later, in March 2018, Mother filed a request in the California action for an order modifying 10 separate items contained in the North Carolina Order (RFO). The only one at issue in this appeal is Mother's request to delete a provision that limited each parent's contact with certain adults when the children were visiting that parent (Visitor Provision² ). Indeed, Mother's appeal is directed only to the last two sentences of the Visitor Provision—i.e., those dealing with a specific potential visitor, A.R. (A.R. Provision). (See fn. 3, post .)

The family court heard oral argument in May 2018. In the minutes from the hearing, the court "note[d]" that "[t]he parties agree that California has UCCJEA jurisdiction" and that "Father resides in North Carolina." The parties' settled statement of the oral proceedings discloses: The parties stipulated that "California has jurisdiction to make custody orders pursuant to California Family Code section 3048"; the parties stipulated and the family court "noted" that Father resides in North Carolina; and "Mother's counsel argued that the court had already determined it had jurisdiction over child custody and visitation," although there is no indication as to when or how this determination occurred.

The family court filed a findings and order after hearing (FOAH), which granted in part and denied in part Mother's RFO—expressly granting in part and denying in part Mother's request to delete of the Visitor Provision³ —without any mention of the UCCJEA or jurisdiction to modify the North Carolina Order. Mother timely appealed from the FOAH.

II. DISCUSSION

On appeal, Mother argues that the family court erred in denying that portion of her RFO in which she requested that the North Carolina Order be modified to delete the A.R. Provision. As we explain, we will reverse the FOAH without reaching the merits of Mother's appeal because the family court lacked jurisdiction to modify the North Carolina Order.

The UCCJEA determines the proper jurisdictional situs as between interested states for litigation of child custody determinations—which includes virtually any custody or visitation dispute (§ 3402, subd. (c)). As applicable here, the UCCJEA applies in a "child custody proceeding"—which, is defined in part as "a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue" (§ 3402, subd. (d))—commenced on or after January 1, 2000. (§ 3465.) " ‘It is well settled in California that the UCCJEA is the exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions.’ " ( Ocegueda v. Perreira (2015) 232 Cal.App.4th 1079, 1084, 181 Cal.Rptr.3d 845 ; accord, In re Stephanie M. (1994) 7 Cal.4th 295, 310, 27 Cal.Rptr.2d 595, 867 P.2d 706 [same; under the Uniform Child Custody Jurisdiction Act (UCCJA), Civ. Code, former § 5150 et seq. (Stats. 1973, ch. 693, § 1), which later became former § 3400 et seq. (Stats. 1992, ch. 162, § 10)⁴ ].) Accordingly, UCCJEA jurisdictional requirements must be satisfied whenever a California court is called upon to make either an initial or a modified custody determination. ( In re Marriage of Arnold & Cully (1990) 222 Cal.App.3d 499, 502, 271 Cal.Rptr. 624 [under the UCCJA].)

" ‘[A]mong the primary purposes of the [UCCJEA and its predecessor, the 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.’ " ( In re Marriage of Fernandez-Abin & Sanchez (2011) 191 Cal.App.4th 1015, 1037, 120 Cal.Rptr.3d 227 ( Fernandez-Abin ).) "The UCCJEA ensures that only one state has jurisdiction to make ‘child custody determinations’ " at any one time. ( Ibid. ) In this regard (and as applicable in this appeal), the UCCJEA defines a "child custody determination" to include a "modification order" of a ruling by a "court providing for the legal custody, physical custody, or visitation with respect to a child." (§ 3402, subd. (c).)

Once an out-of-state custody order is registered in California under the UCCJEA—as Mother did in initiating the underlying action here—as a matter of full faith and credit, the order determining child custody is enforceable in California as a California judgment by way of any relief normally available under California law. (§ 3441 et seq.) However, as an independent consideration, there is the additional issue of whether California has jurisdiction to modify an out-of-state custody order: "A court of this state shall recognize and enforce, but may not modify, except in accordance with [section 3421 et seq. ], a registered child custody determination of a court of another state." (§ 3446, subd. (b), italics added.) That is because, in cases like the present one, " ‘once the court of an appropriate state [citation] has made a "child custody determination," that court obtains "exclusive, continuing jurisdiction [.]" ’ " ( Fernandez-Abin , supra , 191 Cal.App.4th at p. 1040, 120 Cal.Rptr.3d 227, italics added.) As such, absent the requisite determination outlined in the immediately following paragraph, "the court of another state, including California, ‘[c]annot modify the child custody determination[.]’ " ( Ibid. ; see §§ 3421, subd. (b), 3422, subd. (a), 3423, 3446, subd. (b).)

Except in emergency situations not present here (§ 3424), section 3423 directs that a California court may not modify an out-of-state custody order unless both of the following have been established:

1. California has jurisdiction to make an initial determination under section 3421, subdivision (a)(1) or (2); and

2. Either —

a. The out-of-state court has determined either that it no longer has exclusive continuing jurisdiction under section 3422 or that California would be a more convenient forum under section 3427, or

b. The out-of-state court or a California court determines that the child and the child's parents do not presently reside in the out-of-state forum.

If a California court determines from either party's first pleadings related to the foreign custody order under section 3429 (at times, section 3429 documents) that a child custody proceeding has been commenced in an out-of-state forum having jurisdiction "substantially in accordance with" the UCCJEA, then the California court "shall stay " its proceeding and communicate with the other state's court . (§ 3426, subd. (b), italics added.⁵ ) "The aim is for the two courts together to determine which of them is the ‘more appropriate’ forum to exercise jurisdiction." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶ 7:129, p. 7-60.) If the out-of-state court having jurisdiction "substantially in accordance with" the UCCJEA does not determine that the California court is a "more appropriate" forum, then the California court "shall dismiss" its custody proceeding. (§ 3426, subd. (b).)

In the present case, both parties' attorneys and the family court were fully and formally advised of the North Carolina Action generally and the North Carolina Order specifically. Nonetheless, the court ruled on Mother's RFO without first determining whether it had modification jurisdiction under the UCCJEA. The family court's notation in its minutes that "[t]he parties agree that California has UCCJEA jurisdiction" is insufficient to establish modification jurisdiction, because " ‘[t]here is no provision in the UCCJEA for jurisdiction ... by stipulation[.]’ "⁶ ( Fernandez-Abin , supra , 191 Cal.App.4th at p. 1040, 120 Cal.Rptr.3d 227.) Further, the parties' stipulation and the court's finding that Father resides in North Carolina necessarily preclude any suggestion that the California court was authorized to determine it had modification jurisdiction under the UCCJEA without communicating with the North Carolina Court. (§...