Marriage of Condon, In re

• Decision Date: 23 March 1998
• Docket Number: No. B103574,B103574
• Citation: 62 Cal.App.4th 533,73 Cal.Rptr.2d 33
• Parties: , 98 Cal. Daily Op. Serv. 2108, 98 Daily Journal D.A.R. 2924 In re the MARRIAGE OF Christopher and Deborah Cooper CONDON. Christopher CONDON, Appellant, v. Deborah Ann COOPER, Respondent.
• Court: California Court of Appeals Court of Appeals

Page 33

73 Cal.Rptr.2d 33

62 Cal.App.4th 533, 98 Cal. Daily Op. Serv. 2108,

98 Daily Journal D.A.R. 2924

In re the MARRIAGE OF Christopher and Deborah Cooper CONDON Christopher CONDON, Appellant, v. Deborah Ann COOPER, Respondent.

No. B103574.

Court of Appeal, Second District, Division 7, California.

March 23, 1998.

[62 Cal.App.4th 535] Christopher Condon, in propria persona, for Appellant.

Patrick DeCarolis, Jr., Los Angeles, for Respondent.

JOHNSON, Acting Presiding Justice.

This case tests the very outer limits of a legal principle the California Supreme Court first announced in 1996. That principle allows a spouse with primary physical custody of a child to move away unless the other spouse can demonstrate the move would be against the best interests of the child. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473.) In Burgess, the approved move was forty miles--from Tehachapi to Lancaster and was within the state of California. Here, respondent argues Burgess applies to justify a move-away of some eight thousand miles--from this state and nation to another, and from this continent on one side of the Pacific Ocean to another continent on the other side of that vast body of water.

With some reluctance we conclude this court should not interfere at this late date with the trial court's carefully constructed order allowing this relocation of mother and children. However, we find the order is not guaranteed enforceability in the Australian courts in its present form and remand for the trial court to obtain an enforceable concession of jurisdiction from respondent wife, a concession that party has volunteered to make. We also express our concerns about relocation orders of this dimension, even as we recognize they may be more frequently requested in future years as we move toward a global community.

FACTS AND PROCEEDINGS BELOW

Appellant, Christopher Condon, and respondent, Deborah Ann Cooper, were married on September 26, 1988, in Australia. Ms. Cooper is a native of Australia and Mr. Condon is an American citizen. Both of their sons, Bayard, born on February 5, 1989, and Henry, born in September 3, 1991, were born in Australia. But the family resided for several years in Los Angeles and the dissolution and child custody proceedings were decided in the California courts.

Ms. Cooper alleges numerous incidents of physical abuse throughout the marriage. Mr. Condon acknowledges he was arrested in November 1989, after pulling down Ms. Cooper's pants and spanking her following an argument. He was released with no charges filed. He testified he never struck or slapped his wife again after this incident. The trial court thought Ms. Cooper exaggerated the level of violence perpetrated by Mr. Condon against her, though the court believed there had been more than two occasions of physical violence against Ms. Cooper.

On or about July 8, 1993, Ms. Cooper, with the agreement of Mr. Condon, departed for France with the children for two months. During her time in France, Ms. Cooper purchased a home (possibly with a monetary contribution from Mr. Condon) and enrolled Bayard in school. The circumstances under which Ms. Cooper extended her stay in France and Mr. Condon delayed his arrival are unclear. Mr. Condon arrived in France in late October and stayed through New Year's 1994. Ms. Cooper was in France for a total of seven months, and returned with the children to Los Angeles in February with the understanding she could return to France in the Summer of 1994, as long as she helped finance the trip.

On the morning of June 28, 1994, an altercation took place between Mr. Condon and Ms. Cooper. The parties dispute what exactly happened, but it included Mr. Condon knocking Ms. Cooper's hands down, and his pulling the phone out of the wall. Ms. Cooper claims her hands were up in a defensive posture, while Mr. Condon claims she had raised her fists to him. He also claims she struck him with a cast-iron frying pan. A building security guard called the police and after speaking to them, Mr. Condon agreed to leave for a few days. Later that evening, Mr. Condon returned to the apartment to The next morning Mr. Condon took keys from Ms. Cooper's possession and went to his office. Ms. Cooper later went to his office and demanded the return of her office keys. When Mr. Condon refused, Ms. Cooper opened his desk drawer, took the family's passports (including Mr. Condon's) and a checkbook, and left. Later that same day, Ms. Cooper went to Mr. Condon's office accompanied by a police officer and secured the return of her keys. She then withdrew all the money in their joint checking account ($2,000), packed her and the children's belongings, and left their apartment for good. She purchased tickets to Australia and flew there with the children, arriving on July 5, 1994. Though Ms. Cooper was in contact with Mr. Condon's solicitor in Australia, Mr. Condon had no contact with his children for at least four months.

shower and change clothes. He assisted with the laundry, putting the children to bed, and slept in the children's room.

Unaware of his family's whereabouts, Mr. Condon petitioned for legal separation on July 5, 1994, in Los Angeles Superior Court. At the same time he secured a temporary restraining order restraining Ms. Cooper from removing the children from Southern California, and filed an order to show cause seeking sole legal and physical custody of the children, with visitation of the children for Ms. Cooper.

Simultaneous with Mr. Condon's filings in California, Ms. Cooper sought to initiate divorce proceedings and secure a protection order from the Australian court. She later dismissed the matrimonial proceeding. She repeatedly refused to provide information concerning the children's whereabouts to Mr. Condon's Australian counsel, and rejected all indirect methods of contact. Her parents even took out protection orders against Mr. Condon, which effectively denied his solicitor the ability to contact them to find the children. ¹ Mr. Condon's counsel proceeded to exchange letters with Ms. Cooper's various counsel, and finally via fax with Ms. Cooper herself, seeking to mediate a resolution to the parties' conflict. Mr. Condon's Australian counsel was ultimately unsuccessful in his mediation efforts.

Mr. Condon initiated proceedings on September 9, 1994, in Australia seeking return of his children to the United States under the Hague Convention on the Civil Aspects of International Child Abduction. Ms. Cooper was served by the Australian Capitol Territories Family Court in October under these proceedings, which facilitated Mr. Condon in serving her with this action before the Los Angeles Superior Court. On December 5, 1994, the Australian Family Court ordered the children returned "forthwith" to the United States.

The trial court issued an order on Mr. Condon's request for an order to show cause on December 23, 1994, giving sole legal custody to Mr. Condon and joint physical custody to both parties. The order further required Ms. Cooper to immediately notify Mr. Condon upon the children's return to Los Angeles, give him their physical location and telephone number, and notify him of any change in location within twelve hours of the change. Another order was issued on January 12, 1995, requiring Ms. Cooper to hand over the children's passports to Mr. Condon upon her arrival in Los Angeles, stating the superior court had jurisdiction over the issues of custody and visitation without prejudice, and restating she could not remove the children from Southern California.

Ms. Cooper returned to Los Angeles on or about February 2, 1995. She filed her own order to show cause and petitioned for dissolution of marriage on February 9, 1995. On February 3, 1995, Mr. Condon's order to show cause came on for hearing. The trial court found too much uncertainty in the matter to make final orders, and continued the hearing until May 17, 1995. The court further noted the children's passports were in the possession of Mr. Condon's counsel, awarded joint legal and physical custody to the parties, and established a schedule of visitation for Mr. Condon averaging two afternoons Ms. Cooper's order to show cause came on for hearing on March 10, 1995. In its findings and order, the trial court reserved the issue of attorney's fees until May 17th; ordered Mr. Condon to pay $510 per month in spousal support and $1,075 per month in child support; ordered Mr. Condon to maintain Ms. Cooper and the children on his major medical insurance policy; and continued Ms. Cooper's order to show cause for contempt until May 17, 1995. The May 17th date was continued until June 15th, and on that date the parties stipulated to mutual restraining orders to prevent each other from coming within 100 yards of each other, and from contacting each other except in case of an emergency regarding their minor children.

each week and alternating weekends.

The matter was called for hearing on June 15, 1995, the trial court and counsel conferred in chambers, and the matter was continued to August 16th. The child custody evaluation was filed on June 15, 1995. On July 20, 1995, (perhaps because of what he read in the court-ordered custody evaluation), Mr. Condon retained new counsel. On July 24th, new counsel for Mr. Condon made an ex parte motion to continue a hearing set for July 25th. In its order after the hearings on July 25, 1995, the trial court clarified issues related to the pickup and drop-off of the children for visitation, required the parties to communicate with each other only through the exchange of written communication placed in the children's back packs, and arranged for Ms. Cooper to retrieve her art supplies and finished works from Mr. Condon.

On August 16, 1995, the trial court began a hearing for temporary orders pending trial. The court-ordered child custody evaluation was entered into evidence and sealed by...