Marriage of Leonard, In re

• Decision Date: 11 August 1981
• Citation: 122 Cal.App.3d 443,175 Cal.Rptr. 903
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARRIAGE OF J. Michael and Donna M. LEONARD. J. Michael LEONARD, Respondent, v. Donna M. LEONARD, aka, Donna M. Underwood, Appellant. Civ. 49987.

Page 903

175 Cal.Rptr. 903

122 Cal.App.3d 443

In re MARRIAGE OF J. Michael and Donna M. LEONARD.

J. Michael LEONARD, Respondent, v. Donna M. LEONARD, aka, Donna M. Underwood, Appellant.

Civ. 49987.

Court of Appeal, First District, Division 3, California.

Aug. 11, 1981.

Hearing Denied October 14, 1981.

Eugenia MacGowan, San Francisco, for appellant.

Susan C. McCune, San Francisco, for respondent.

BARRY-DEAL, Associate Justice.

Donna Leonard, a nonresident of California, appeals from the order denying her motion to quash service of summons for lack of jurisdiction and from the order granting custody of their child to her former husband, Michael Leonard. She contends that in personam jurisdiction over her is a prerequisite to the court's rendition of an order modifying the initial Georgia child custody order and that the Uniform Child Custody Jurisdiction Act (UCCJA) ¹ does not dispense with the due process requirement of personal jurisdiction. In the alternative, she seeks dismissal of the child custody modification proceedings on the grounds (1) that under the UCCJA California should not assert jurisdiction to modify the Georgia decree; (2) that California must decline jurisdiction because of respondent's improper conduct; or (3) that California is an inconvenient forum.

We do not agree with appellant's contentions, and we affirm the judgment.

Background ²

Appellant (Donna) and respondent (Michael) were married in Georgia in 1970 and resided in DeKalb County, Georgia, during their marriage. Their daughter, Emily Heather Leonard, was born in Georgia on July 19, 1971. The parties were divorced in September 1974 in DeKalb County, and by agreement Donna was awarded custody of Heather, with reasonable visitation rights reserved to Michael. In 1975, Michael moved to California and established his residence in San Mateo County; Donna remained in DeKalb County and has never resided in California.

On June 3, 1978, Heather journeyed to California to visit her father. With appellant's permission, Heather's stay with him was extended through the 1978/79 school year. Donna claims that it was understood that Heather would return to Georgia at the end of the school year. Michael claims that at the time of the agreement, Donna wished to be relieved of the custody obligation for an indeterminate period of time because of her personal problems and that it was never agreed that Heather should be returned in June of 1979.

Donna alleges that when she contacted Michael in the spring of 1979 regarding Heather's return, he informed her that Heather was not returning to Georgia. Michael alleges that the improvement in Heather during the year impelled him to seek a change of custody and that he telephoned Donna immediately after filing modification proceedings on May 30, 1979, to advise her of the California action and of his reasons for it; further, he advised her that by June 14, 1979, she could expect service of the moving papers. Donna flew to California on June 13, intercepted Heather on her way to school, allegedly asked if Heather wished to return with her to Georgia, and upon receiving an affirmative answer, took Heather then and there back to Georgia.

On June 14, 1979, Donna was served in Georgia with the summons, petition for modification of custody and order to show cause issued by the San Mateo County Superior Court. The order to show cause contained an ex parte temporary order prohibiting either party from removing Heather from California without the prior order of the court or written consent of petitioner (Michael). The next day (June 15) Michael appeared at Donna's home in Georgia, approached Heather playing in front of the house, and returned with her to California.

Thereafter, Donna appeared specially in the California proceedings to quash service of summons for lack of personal jurisdiction or to have the action dismissed for lack of jurisdiction under the UCCJA to modify the Georgia decree. A preliminary probation report submitted by the San Mateo Juvenile Probation Department indicated that at the time of the first hearing on July 30, 1979, Donna was living with her parents in Clearwater, Florida, although she apparently had plans to return to Georgia. Donna's motion to quash was denied, Michael was granted temporary custody of Heather, and the matter was referred to the probation department for a full custody investigation and report. The court found that Donna had received adequate notice and an opportunity to appear and that California should assume jurisdiction under Civil Code section 5152, subd. (1)(b). Donna did not participate in the custody investigation and report.

Donna filed a motion for reconsideration on December 24, 1979 which was denied as were her subsequent petitions for writ of certiorari/mandamus/probation in this court and in the California Supreme Court.

On March 14, 1980, the court found that Donna had received adequate notice and an opportunity to appear and that the court had jurisdiction pursuant to the requirements of Civil Code section 5152 (UCCJA § 3). ³ Having considered the probation report and having interviewed the child and listened to the testimony of respondent, the court modified the Georgia custody order by awarding custody to Michael and reasonable visitation rights to Donna in California in the presence of a neutral third party, without prejudice to her seeking additional visitation rights after participating in the probation department investigation. The record does not reflect whether Donna has availed herself of these visitation rights.

In Personam Jurisdiction

Appellant contends that since the San Mateo County Superior Court could not obtain jurisdiction over her person, it was without power to modify the Georgia custody decree. Both parties agree that under the UCCJA the California court met the "home state" requirement for jurisdiction to modify the decree based on Heather's residence with her father in this state for over six months before respondent's petition to modify custody was filed. (See Civ. Code, §§ 5152, subd. (a) and 5151, subd. (5); UCCJA §§ 3 and 2.) Although appellant does not dispute respondent's compliance with notice requirements under the Act (Civ. Code, § 5154; UCCJA § 5), she nevertheless asserts that due process ⁴ prohibits a determination of her parental rights.

By the summer of 1980, 44 states had adopted the provisions of the UCCJA in some substantial form. (Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Family Law Quarterly 203 (1981) ABA Section of Family Law). The Uniform Act is primarily designed to eliminate conflicting decrees resulting from concurrent jurisdiction in more than one state and was in large part prompted by a growing concern with the escalation of "seize and run" tactics and parental child abductions. (See Civ. Code, § 5150; UCCJA § 1; Uniform Child Custody Jurisdiction Act (Commissioners' Prefatory Note), reprinted in 9 Unif. Laws Annot. 111-114 (West 1979); Bodenheimer and Neeley-Kvarme, Jurisdiction Over Child Custody and Adoption After Shaffer and Kulko (1979) 12 U.C. Davis L.Rev. 229, 246.)

The jurisdiction requirements of the Uniform Act focus on the contacts of the child with the forum state rather than the domicile or presence of the child and personal jurisdiction over the parties. (Compare Civ. Code, § 5152; UCCJA § 3, with Rest., 2d Conflict of Laws, § 79; Sampsell v. Superior Court (1948) 32 Cal.2d 763, 779, 781, 197 P.2d 739.)

The adoption of the UCCJA in California in 1973 has prompted a number of California decisions which address various issues in the interpretation and practical application of the Act. (See, e. g., In re Marriage of Hopson (1980) 110 Cal.App.3d 884, 168 Cal.Rptr. 345; Allison v. Superior Court (1979) 99 Cal.App.3d 993, 160 Cal.Rptr. 309; Palm v. Superior Court (1979) 97 Cal.App.3d 456, 158 Cal.Rptr. 786; In re Marriage of Ben-Yehoshua (1979) 91 Cal.App.3d 259, 154 Cal.Rptr. 80; and the chart in Adams and Sevitch, 1979 California Family Law Report (CFLR) 1006, analyzing nine prior cases.) These cases mainly concern problems relating to subject matter jurisdiction, forum non conveniens and the "unclean hands" doctrine. None consider whether due process requires personal jurisdiction over both parties. The cases that have mentioned the issue agree that the Act makes no provision for personal jurisdiction. (See Smith v. Superior Court (1977) 68 Cal.App.3d 457, 461, 137 Cal.Rptr. 348; In re Marriage of Ben-Yehoshua, supra, 91 Cal.App.3d at 264, 154 Cal.Rptr. 80; In re Marriage of Hopson, supra, 110 Cal.App.3d 884 at 891, 168 Cal.Rptr. 345.)

United States Supreme Court Decisions ⁵

In challenging jurisdiction, appellant places reliance chiefly on one pre-UCCJA United States Supreme Court custody case and one recent child support case: May v. Anderson (1953) 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 and Kulko v. Superior Court (1978) 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132.

May is cited by appellant as holding that personal jurisdiction is required for a binding custody decree. In May, the parties were married and lived in Wisconsin. Marital problems developed and the mother went to Ohio with the three children to consider her future course. She opted to remain in Ohio and unilaterally decided not to return the children to the father in Wisconsin as previously agreed. Father filed for divorce in Wisconsin and personally served mother in Ohio; she did not appear. The Wisconsin court granted the divorce and awarded custody of the children to father. The children were physically retrieved by father, but four years later, following a visit with mother, she once again refused to return them. Father sought a writ of habeas corpus in Ohio asking for their return.

The Ohio court decided that the full faith and credit clause of the United States Constitution ⁶ required recognition of the Wisconsin decree and granted the...