Kumar v. Santa Clara County Superior Court

• Decision Date: 27 October 1981
• Citation: 124 Cal.App.3d 1003,177 Cal.Rptr. 763
• Court: California Court of Appeals Court of Appeals
• Parties: Jitendra KUMAR, Petitioner, v. SANTA CLARA COUNTY SUPERIOR COURT, Respondent. Yvonne KUMAR, Real Party in Interest. Civ. 51874.

Page 763

177 Cal.Rptr. 763

124 Cal.App.3d 1003

Jitendra KUMAR, Petitioner, v. SANTA CLARA COUNTY SUPERIOR COURT, Respondent Yvonne KUMAR, Real Party in Interest.

Civ. 51874.

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

Oct. 27, 1981.

As Modified on Denial of Rehearing Nov. 25, 1981.

For Opinion on Hearing, see 186 Cal.Rptr. 772, 652 P.2d 1003.

Bernard N. Wolf, San Francisco, Caralisa P. Hughes, San Jose, for petitioner.

Dolly Ares, San Jose, for real party in interest.

CAREY, Associate Justice. ^*

In this case, pursuant to directions of the Supreme Court, we issued an alternative writ of mandate upon the petition of Jitendra Kumar. Petitioner seeks an order requiring respondent court to quash service of process and to dismiss an order to show cause served upon him by mail in an action brought by real party in interest Yvonne Kumar for modification of a foreign child support order and custody and visitation decree.

Procedural Background

Jitendra and Yvonne Kumar were married in New York on May 16, 1972. Their only child, Sunjay Richard Kumar, was born in New York on September 25, 1972. On October 2, 1974, the Supreme Court of New York granted Yvonne an uncontested final judgment of divorce which awarded custody of Sunjay to her and specified visitation rights to Jitendra. In May 1977 Yvonne obtained from the New York court an order modifying the support provisions of the 1974 judgment. In April 1979 Yvonne and Sunjay moved to California. Jitendra remained in New York.

In July 1980, through California counsel, Jitendra filed in respondent court a certified copy of the New York judgment of divorce, and a petition for writ of habeas corpus directing Yvonne to produce Sunjay. He alleged in the habeas petition that he was entitled to visitation and that Yvonne had "withheld and secreted" the child in derogation of his visitation rights. The writ issued; Yvonne appeared in court with Sunjay on August 19, 1980; and Jitendra was granted a two-week visit, in accordance with the summer visitation provision of the New York judgment.

On November 17, 1980, respondent court at Yvonne's request issued an ex parte order directing Jitendra to show cause on December 15 why the visitation provisions of the New York judgment, and the New York support order should not be modified with an award of attorney's fees and an assessment of arrearages. On December 11, 1980, Jitendra filed notices of motions to quash service of process for lack of personal jurisdiction and to dismiss for lack of subject-matter jurisdiction. He stated in supporting declarations that he had been personally served with process in New York; that he did not consent to the exercise of personal jurisdiction; and that he had had no contact with California except for the habeas proceeding which he had initiated and his registration in California of the New York custody decree. ¹ He declared that Sunjay had lived in New York all his life until he was taken to California, had received medical care in New York, and had attended school there; and that neighbors, relatives, teachers, doctors, and others who reside in New York could testify concerning Sunjay's behavior and adjustment. In an opposing declaration Yvonne stated that she had not left New York with the intention of depriving Jitendra of his visitation rights; that she had never secreted the child; and that Jitendra had never made any request for visitation which she had refused.

Following a jurisdictional hearing at which neither Jitendra nor Yvonne testified, respondent court by order dated January 19, 1981, denied the jurisdictional challenges. ²

On January 21, 1981, the Supreme Court of New York at Jitendra's request entered an ex parte order directing Yvonne to show cause why an order should not be made cancelling all arrearages in child support payments from April 11, 1979, until the present; awarding attorney's fees; and granting other appropriate relief. By letter dated February 6, 1981, Yvonne's counsel informed the New York court of the pending California proceeding. ³ A memorandum decision was then made by the New York court dated March 25, 1981, which stated that that court had jurisdiction to hear the matter and render a decision, and which set forth certain determinations. ⁴

This was followed by a formal order of the New York court dated May 7, 1981, ⁵ relating to continuing jurisdiction, cancelling arrearages of and suspending further payments of alimony and child support until Yvonne resides at a location reasonably conducive to Jitendra's exercise of his rights of visitation with the child.

Discussion

We are principally concerned with two jurisdictional principles: subject-matter jurisdiction, and personal jurisdiction.

We note at the outset that "there is a distinction between the power to exercise judicial jurisdiction to determine the custody of children and the exercise of judicial jurisdiction to provide for the support of children. The former deals essentially with judicial jurisdiction over status while the latter is governed primarily by the principles applicable to jurisdiction over persons." (Titus v. Superior Court (1972) 23 Cal.App.3d 792, 797, 100 Cal.Rptr. 477.) Titus stated that "custody is a question of status and hence is subject to the control of the state where the child is domiciled or physically present (J)urisdiction to determine the custody of the children in the instant case (because they were present in the state when custody proceedings were instituted) does not depend on whether petitioner (their nonresident father) is personally subject to the jurisdiction of California." (Id., at pp. 797-798, 197 P.2d 739; see Sampsell v. Superior Court (1948) 32 Cal.2d 763, 777-780, 197 P.2d 739.)

Here, as in Titus, the minor child was physically present in California when modification proceedings were instituted in respondent court. Titus, however, was decided before California adopted the Uniform Child Custody Jurisdiction Act (UCCJA; Civ.Code, § 5150 et seq.), which limits jurisdiction and is the exclusive method for determining subject matter competence of California courts to proceed with custody adjudications. ⁶ (In re Marriage of Hopson (1980) 110 Cal.App.3d 884, 891, 168 Cal.Rptr. 345.) Visitation rights are treated as custody matters under the UCCJA. (Smith v. Superior Court (1977) 68 Cal.App.3d 457, 461, 137 Cal.Rptr. 348.)

Civil Code section 5152 ⁷ sets forth specifically the basis upon which custody jurisdiction may be exercised. Subdivision (1) thereof provides: "A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the conditions as set forth in any of the following paragraphs are met: (P) (a) This state (i) is the home state of the child at the time of commencement of the proceeding (P) (b) It is the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships."

Section 5151, subdivision (5), defines "home state" as "the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months " Respondent court's jurisdiction to adjudicate visitation rights in this case is established under either one of the alternative tests set forth above. (See In re Marriage of Hopson, supra, 110 Cal.App.3d at p. 894, 168 Cal.Rptr. 345.)

The California court correctly determined that it was the child's "home state" (§ 5152, subd. (1)(a); § 5151, subd. (5)). The New York decree had awarded custody to the mother and she and the child met the jurisdiction requirements, having moved to California in April 1979 and residing therein for over 18 months before the respondent court issued its order to show cause for modification in November 1980.

Initially we are concerned with whether there are in this case statutory limitations on the exercise of jurisdiction which would preclude the California court from modifying the New York decree.

Petitioner contends that under Civil Code section 5152, subdivision (1)(b), the New York court retains jurisdiction to make custody determinations; and that because the New York court has continuing jurisdiction, the California court may not modify the New York decree.

Subdivision (1) of section 5163 provides: "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."

Pursuant to the provisions of section 5163, subdivision (1), the New York decree cannot be modified unless it appears that the New York court "does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with" the California version of the UCCJA (see In re Marriage of Hopson, supra, at pp. 892-899, 168 Cal.Rptr. 345). If the New York court presently would have jurisdiction, by California standards, to modify its own decree, then the California court must abstain from doing so. New York, however, "should not assume the authority to modify a custody decree solely upon the fact that it was the state that initially made the custody determination." (In re Marriage of Steiner (1979) 89 Cal.App.3d 363, 371, 152 Cal.Rptr. 612.) The basis upon which petitioner would predicate New York's continuing jurisdiction to modify is contained in section 5152, subdivision (1) (b): "It is...