Marriage of Hopson, In re

• Decision Date: 06 October 1980
• Citation: 168 Cal.Rptr. 345,110 Cal.App.3d 884
• Parties: In re MARRIAGE of Barbara Diane and Johnny Paris HOPSON. Barbara Diane HOPSON, Appellant, v. Johnny Paris HOPSON, Respondent. Civ. 49135.
• Court: California Court of Appeals Court of Appeals

Page 345

168 Cal.Rptr. 345

110 Cal.App.3d 884

In re MARRIAGE of Barbara Diane and Johnny Paris HOPSON Barbara Diane HOPSON, Appellant, v. Johnny Paris HOPSON, Respondent.

Civ. 49135.

Court of Appeal, First District, Division 2, California.

Oct. 6, 1980.

William M. Hilton, Palo Alto, for appellant.

James W. Blackman, Palo Alto, for respondent.

TAYLOR, Presiding Justice.

Barbara Diane Hopson (mother) appeals from a memorandum decision granting the motion of Johnny Paris Hopson (father) to dismiss for lack of jurisdiction her action to enforce an Arizona custody decree pursuant to Civil Code section 5164. ¹ For the reasons set forth below, we have concluded that the subsequent Tennessee modification awarding custody to the father is not entitled to full faith and credit as the Tennessee court did not have jurisdiction. The best interests of the children require that we reverse and remand for a full hearing on the custody issue.

The pertinent facts as set forth by the record are as follows: In November 1976, the Arizona court issued a decree dissolving the marriage of the parties and awarding custody of the two minor children, Douglas (born 1966) and Brent (born 1971) to the mother, with rights of reasonable visitation in the father. Prior to dissolution, the parties had resided in Arizona for approximately two years, while the father was stationed in the Navy.

In December 1976, the Arizona court amended the decree to prohibit either party from removing the children from Arizona without the written permission of the other party or the court. As in the previous order, the court found that both parties were fit to have custody but that it would be in the best interest of the children to award custody to the mother; the modified order continued the father's visitation rights, which included 60 days in the summer from June 1 to July 30. A month later, the father returned to Tennessee, his childhood home, where he has resided ever since.

In February 1977, the mother left Arizona with the children and moved to California without obtaining either the consent of the father or an order of the Arizona court. In June 1977, she took the children to Hawaii for approximately two months during the period of the father's visitation. Shortly after returning from Hawaii, the mother went to Arizona with the children to assist in the sale of the parties' home and returned to California toward the end of August.

In September 1977, in Arizona, the father moved for a modification of custody; his motion was noticed for January 1978. ² In October 1977, while the Arizona change of custody proceeding was pending, the father came to California and removed the children to Tennessee without the knowledge or consent of the mother. The father claimed that he did so at the request and urging of Douglas, a matter hotly disputed by the mother. Within four days after his return, he commenced a proceeding in Tennessee to obtain custody; the mother was served in the Tennessee action. Subsequently, California charged the father with violation of Penal Code section 278 (felony child stealing).

In January 1978, the Arizona court heard the motion for modification of custody award, with the mother present, and the father apparently absent, but represented by counsel. On February 16, 1978, the Arizona court granted the mother's motion to remove the children to California "or such other place as the mother desires to reside," and denied the father's motion for custody. At the time this order was filed (and continuously since October 1977 up to and including the present time), the children have been living in Tennessee with the father.

In February 1978 (in the same month as the Arizona order) the Tennessee court denied the mother's motion to dismiss for lack of jurisdiction; she then made a general appearance in the Tennessee action. The matter was continued to March 14, 1979. At the hearing, the mother testified, as did the two children. The Tennessee court found that the children had been taken to Tennessee at their request. Although the Tennessee court was aware of the prior Arizona decree, the father's conduct and the criminal proceedings pending in California, it found that it was in the best interests of the children to award custody to the father. As to the February 1978 Arizona order permitting the mother to take the children to California, the Tennessee court stated that no such order had been admitted into evidence, but indicated that even if such an order did exist, it would not alter its finding that the children's best interests were served by awarding custody to the father. The Tennessee judgment was entered on March 22, 1979, and is now final.

On May 1, 1979, pursuant to Civil Code section 5164, the mother sought to enforce the amended Arizona decree, which awarded her custody and the February 16, 1978, order authorizing her to remove the children to California. She also filed an order to show cause and declaration re contempt (marriage) to compel the father's compliance with the Arizona order and to return the children to her.

On May 10, 1979, the father filed the Tennessee custody decree in California and moved to dismiss the mother's action on grounds of lack of jurisdiction. On May 15, 1979, the matter was heard and taken under submission. On July 25, 1979, the trial court granted the father's motion to dismiss for lack of jurisdiction and accorded full faith and credit to the Tennessee judgment. This appeal ensued.

We turn first to the father's contentions that the mother's general appearance conferred jurisdiction of the custody issue on the Tennessee court and thereby renders that court's ruling res judicata, and not subject to collateral attack. We do not agree. The res judicata effect of a custody decree is contingent upon the court having jurisdiction. "Collateral attack is proper to contest lack of personal or subject matter jurisdiction ..." (Armstong v. Armstrong, 15 Cal.3d 942, 950, 126 Cal.Rptr. 805, 809, 544 P.2d 941, 945).

The exclusive method of determining subject matter jurisdiction in custody cases in California is the Uniform Child Custody Jurisdiction Act (Civ.Code §§ 5150-5174; ³ UCCJA). ⁴ As Division One of this court established in Smith v. Superior Court, 68 Cal.App.3d 457, 461-462, 137 Cal.Rptr. 348, the provisions of the UCCJA supersede any contrary decisional and statutory laws (accord: In re Marriage of Ben-Yehoshua, 91 Cal.App.3d 259, 264, 154 Cal.Rptr. 80; In re Marriage of Steiner, 89 Cal.App.3d 363, 152 Cal.Rptr. 612; Neal v. Superior Court, 84 Cal.App.3d 847, 858, 148 Cal.Rptr. 841). The father's reliance on Mattos v. Correia, 274 Cal.App.2d 413, 79 Cal.Rptr. 229, which predates the UCCJA, is inapposite.

Section 5152 sets forth specifically the bases upon which jurisdiction over the custody issue may be exercised. There is no provision in the act for jurisdiction to be established by reason of the presence of the parties or by stipulation or consent. ⁵ The section expressly provides that the mere physical presence or the absence of the minor is neither a prerequisite to, nor is it determinative of, the custody issue (§ 5152, subds. (2)(3)).

Subdivision (1) sets forth the criteria here applicable so far as pertinent as follows: "(1) 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:

"(a) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.

"(b) It is in 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."

In construing this portion of the statute, the court in Marriage of Ben-Yehoshua, supra, 91 Cal.App.3d, pages 263-264, 154 Cal.Rptr. 80, concluded that personal jurisdiction over the parties did not give a California court subject matter jurisdiction of the custody issue.

In In re Marriage of Schwander, 79 Cal.App.3d 1013, 145 Cal.Rptr. 325, the court was faced with a similar question of enforcing a custody decree of a sister state (Illinois), which, like Tennessee here, had not adopted the UCCJA. Interpreting section 5162, the court stated at page 1018, 145 Cal.Rptr. at page 327: "This statute declares, as a matter of state law, that custody decrees of sister states will be recognized and enforced. Recognition and enforcement are mandatory if the state in which the decree was rendered (1) had adopted the Act, (2) has statutory jurisdictional requirements substantially like those of the Act, or (3) would have had jurisdiction under the facts of the case if the Act had been the law in the state. (9 U.L.A. 120, Commissioners' Note following § 13 of the Act.)" ⁶

The record here indicates that the court below determined only that California failed to meet the jurisdictional requirements of section 5152 as to subdivision (1)(a), as at the commencement of this action, the children had been away from California for the preceding 19 months; and that as to subdivision (1)(b), they had no significant connection to this state, as they had lived here only eight months (two of which were spent in Hawaii), and had since been in Tennessee. Although the court below was aware that the children had been taken to Tennessee, in violation of the Arizona decree, it...