Kumar v. Superior Court

• Decision Date: 28 October 1982
• Docket Number: S.F. 24380
• Court: California Supreme Court
• Parties: , 652 P.2d 1003 Jitendra KUMAR, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; Yvonne KUMAR, Real Party in Interest.

Page 772

186 Cal.Rptr. 772

32 Cal.3d 689, 652 P.2d 1003

Jitendra KUMAR, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent;

Yvonne KUMAR, Real Party in Interest.

S.F. 24380.

Supreme Court of California,

In Bank.

Oct. 28, 1982.

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

No appearance for respondent.

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

KAUS, Justice.

Jitendra Kumar seeks a writ of mandate to compel respondent superior court to quash service of process and to dismiss an order to show cause in a child custody action brought by Yvonne Kumar for modification of a New York support order and custody/visitation decree. We must decide whether California has authority to modify the out-of-state custody decree, a question which has presented the most difficult problem in the interpretation and application of the Uniform Child Custody Jurisdiction Act (hereafter Uniform Act). ¹ We conclude that, under the letter and spirit of the Uniform Act, New York has continuing jurisdiction to modify its custody decree so long as it retains significant connections with the child and that, unless New York declines to exercise jurisdiction, California has no authority to modify the decree.

Yvonne and Jitendra were divorced in New York in 1974. Yvonne received custody of their only child, Sunjay. Jitendra was granted visitation rights. In 1977 a New York court modified the support agreement and enforced Yvonne's right to support. All parties continued to live in New York until April 1979 when Yvonne took Sunjay to California. ² The parties agree that Jitendra was not notified of the move until Yvonne and Sunjay had left New York.

In July 1980 Jitendra hired California counsel who registered the New York custody decree in California and procured a writ of habeas corpus directing Yvonne to produce Sunjay in court. Jitendra's visitation rights were enforced in that proceeding. Jitendra later served Yvonne with a motion in the New York court to modify the custody and visitation provisions of the New York order. On receipt of the New York papers, Yvonne sought an order to show cause in California to modify the visitation and support provisions of the New York order, to determine alleged spousal support arrearages, and to award attorneys' fees. Jitendra moved to dismiss the custody/visitation proceeding for lack of subject matter jurisdiction; he also filed a motion to quash service in the child support proceedings for lack of in personam jurisdiction.

In supporting declarations, Jitendra alleged: He was personally served in New York and did not consent to exercise of personal jurisdiction; his only contact with California was the initiation of habeas corpus proceedings and the registration of the New York decree; New York issued the initial custody decree and continues to have significant connections with Sunjay; Sunjay lived all his life in New York until removed to California; maternal grandparents and other relatives, neighbors, and friends live in New York and can testify to Sunjay's behavior and adjustment; Jitendra regularly exercised visitation rights with Sunjay until April 1979 when, without warning, Yvonne called from Tennessee to say she and Sunjay were on their way to California; Yvonne wrongfully removed Sunjay from New York; in the one telephone call she made to him, on arrival in California, she gave him a telephone number, not her own; he was unable to make contact; after six months he finally located her (address, no telephone) through her parents in New York; Yvonne did not respond to numerous telephone messages and notes directed to her through others and did not acknowledge receipt of checks which he sent; a friend contacted her in April of 1980 and he himself initiated the habeas corpus proceedings to secure a two-week visit.

In opposing declarations, Yvonne alleged: There were no visitation problems while she was in New York; she did not advise Jitendra in advance of their departure because she was afraid of him; she called him on the way to California and again after she arrived, giving him her brother's address and telephone number; Jitendra did not try to communicate with her or Sunjay until five months after their departure when he sent Sunjay a birthday card; Yvonne informed Jitendra of her telephone number as soon as she got one; she did not cash the checks because she felt he should pay "the entire amount of child support"; she at no time deprived Jitendra of his son--in fact, after the habeas corpus proceeding they made arrangements on summer and Christmas visitation.

Following a hearing, on January 19, 1981, the trial court found the service of process "adequate" and denied Jitendra's dismissal motion for the following reasons: "1. The closest contacts with the child's present and future living environment, present and predictable development, as well as available witnesses are in the State of California. [p ] 2. Respondent has sought, and received, assistance with enforcement of visitation rights by [the California court] having accepted and enforced the foreign New York decree. [The California court] can fairly adjudicate further similar issues as they arise. [p] 3. The best interests of the child can best be gauged by the jurisdiction with the closest contacts with the child. The relative convenience of either party should not be a paramount consideration."

Jitendra seeks a writ of mandate and/or prohibition to dismiss the proceedings below or, alternatively, to stay such proceedings pending a determination by the State of New York as to whether it will continue to assume jurisdiction in this matter.

To date New York has not refrained from exercise of its jurisdiction. On January 21, 1981--two days after the respondent court's order--the trial court of New York entered an ex parte show cause order and, on March 25, 1981, determined it had jurisdiction and rendered its decision, ³ followed by a formal order on May 7, 1981. ⁴

As to the requested adjudication of support and attorneys' fees, Jitendra contends he had insufficient contacts with California for in personam jurisdiction and that use of the state courts in securing habeas corpus relief was not a "contact" for the purpose of a child support motion. With respect to the custody/visitation proceedings, Jitendra claims that (1) California lacks jurisdiction to modify the New York decree because of Yvonne's wrongful conduct in removing Sunjay from New York (§ 5157, subd. (2)); (2) California should decline to exercise jurisdiction because custody proceedings are pending in New York (§ 5155, subd. (1)); and (3) California has no authority to modify the New York decree unless New York declines to exercise its continuing jurisdiction to modify (§ 5163, subd. (1)).

We conclude that Jitendra had insufficient minimum contacts to establish personal jurisdiction (Kulko v. California Superior Court (1978) 436 U.S. 84, 91-92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132) and that principles of fairness preclude use of Jitendra's habeas corpus proceedings as a contact to establish personal jurisdiction (Titus v. Superior Court (1972) 23 Cal.App.3d 792, 100 Cal.Rptr. 477). Further, we agree that section 5163 is controlling in this case--that New York has continuing jurisdiction to modify its custody order and that California has no authority to modify that order unless New York declines jurisdiction.

SUBJECT MATTER JURISDICTION

The Uniform Act, adopted in 44 states by 1981, was promulgated for the stated purposes of avoiding jurisdictional competition and conflict, promoting interstate cooperation, litigating custody where child and family have closest connections, discouraging continuing conflict over custody, deterring abductions and unilateral removals of children, avoiding relitigation of another state's custody decisions, and promoting exchange of information and other mutual assistance between courts of sister states. (Uniform Act, § 1; Civ.Code, § 5150.) ⁵

The jurisdictional grounds for making a child custody determination are set out in section 5152 of the Uniform Act. Sections that follow address due process rights of the parties and prescribe appropriate procedures. Other sections, crucial to our determination, articulate the circumstances or situations in which the courts may or should decline to exercise jurisdiction. The sections relied upon by Jitendra (§§ 5155, 5157, and 5163) fall in the latter category. We stress this point because both parties speak of either California or New York as lacking "jurisdiction" to act in the instant matter, when the crucial question is really whether the Uniform Act directs or allows exercise of jurisdiction. As shall appear, it is obvious that each state can claim to have jurisdiction from among the multifaceted components of section 5152. Indeed, this case is a good example of the "jurisdictional competition and conflict" (§ 5150) which the Uniform Act was designed to alleviate.

While the courts have given lip service to the policies provided by the Uniform Act, some have been reluctant to forego what they see as concurrent jurisdiction to proceed under the act. In no area has the confusion been greater than in the modification of out-of-state custody decrees.

Consistent with its goal of avoiding "relitigation of custody decisions of other states in this state insofar as feasible" (§ 1, subd. (6); Civ.Code, § 5150, subd. (f)), the Uniform Act commands in section 13 (Civ.Code, § 5162) that the courts of this state shall recognize and enforce "an initial or modification decree" of a court of another state which had assumed jurisdiction under the terms of the act. The next section, section 14 of the Uniform Act (Civ.Code, § 5163), governs the authority of California to modify an out-of-state decree. ⁶ Section 5163 provides: "(1) If a court of another state has made a custody decree, a court of this state shall not modify that...