Marriage of Newsome, In re

• Decision Date: 30 November 1998
• Docket Number: No. B116659,B116659
• Citation: 80 Cal.Rptr.2d 555,68 Cal.App.4th 949
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 9265, 98 Daily Journal D.A.R. 12,913 In re the MARRIAGE OF Otis W. and Grenda L. NEWSOME. Otis W. NEWSOME, Respondent, v. Grenda L. NEWSOME, Appellant.

Page 555

80 Cal.Rptr.2d 555

68 Cal.App.4th 949, 98 Cal. Daily Op. Serv. 9265,

98 Daily Journal D.A.R. 12,913

In re the MARRIAGE OF Otis W. and Grenda L. NEWSOME Otis W. NEWSOME, Respondent, v. Grenda L. NEWSOME, Appellant.

No. B116659.

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

Nov. 30, 1998.

Jane S. Preece, Legal Aid Foundation of Los Angeles, Los Angeles, for Appellant.

Jacqueline Staten, Garden Grove, for Respondent.

LILLIE, P.J.

In this dissolution of marriage proceeding, Grenda Newsome appeals from an August 12, 1997, order denying her motion to set aside an order and judgment awarding custody of the parties' four minor children to Otis Newsome. She contends (1) the trial court erred in failing to set aside the custody provisions of an interim order and the judgment as void for lack of subject matter jurisdiction, and (2) in the alternative, the court abused its discretion in failing to set aside the default and default judgment under Code of Civil Procedure section 473 on the ground of excusable neglect.

FACTUAL AND PROCEDURAL BACKGROUND

On August 16, 1996, Otis Newsome (plaintiff) filed a petition for dissolution of marriage seeking, inter alia, custody of the parties' four minor children. ¹ According to the petition, the parties married in Texas in June 1973 and separated in March 1993. The parties lived in Texas from 1973 until 1989, when the family moved to California; Agnes N. was born in August 1983; Otis N. was born in January 1986; Vincent N. was born in December 1987, and Alicia N. was born in July 1990. In April 1993, the mother returned with all four children to Texas; plaintiff remained in California.

Plaintiff's income and expense declaration indicated that he was employed by Pacific Bell as a cable splice technician and earned Accompanying the petition for dissolution, plaintiff filed an order to show cause (OSC) requesting custody of all four children and modification of a child support order of April 30, 1996, for $1,342, which was obtained against him by the State of Texas Attorney General in the Los Angeles County Superior Court. In his declaration accompanying the OSC, plaintiff charged Grenda Newsome (hereinafter defendant or appellant) with abandoning him and fleeing with the children to Texas in April 1993. Plaintiff also charged defendant with infidelity, alcohol abuse, and child neglect from 1989 to 1993; he also stated that in August 1994, Tammy N. was allegedly physically attacked by her mother, removed from her mother's home and placed with her paternal uncle in Texas until December 1994, when plaintiff went to Texas and brought Tammy N. back to live with him in California. According to plaintiff, his other four children telephoned him constantly, asking him to come live with him because of their mother's neglect. Defendant was served in Texas with the petition for dissolution and the OSC.

$72,560 per year; his total monthly disposable income was $4,666, and his monthly expenses were $1,956.

At the September 12, 1996, hearing on the OSC, plaintiff's counsel informed the court that defendant was on AFDC in Texas and that the court had issued a child support order and a wage assignment. Counsel also informed the court that defendant had been served in Texas and had not filed any response, although she had allegedly contacted plaintiff and told him that he could come and get the children. The court granted the relief requested by plaintiff, awarding him custody of the children, with monitored visitation by the mother; the court also made a temporary order suspending plaintiff's child support payments and staying the wage assignment. A formal order incorporating the foregoing rulings was filed on October 3, 1996.

By letter to the superior court dated December 30, 1996, defendant informed the court that she and her children were homeless; she had only received child support for October and November, and was evicted from her home after the child support stopped; AFDC had been stopped in order to get the child support of $1,342 per month. Defendant, in pro. per., also sent to the superior court a response seeking custody of the children, but the response was not filed; on January 8, 1997, the superior court clerk sent a form letter to defendant informing her that a $184 fee was due for her response.

Upon request by plaintiff to enter default, defendant's default was entered on February 24, 1997. On February 26, 1997, a default judgment was entered awarding physical custody of all of the children solely to plaintiff; defendant was awarded monitored visitation; spousal support was waived.

On June 20, 1997, defendant, through counsel, filed an application for waiver of court fees and costs, which was granted; she also filed a motion to vacate the October 3, 1996, order and the default judgment, challenging, inter alia, the provisions relating to custody and visitation on the ground that the California court had no jurisdiction over the issue of custody of the four younger children under the Uniform Child Custody Jurisdiction Act (UCCJA; Fam.Code, § 3400 et seq.), and under the Parental Kidnapping Prevention Act (PKPA; 28 U.S.C. § 1738A). Defendant asserted that it was undisputed that the home state of the four younger children was Texas and that California had no jurisdiction to enter custody and visitation orders concerning those children. As an alternative form of relief if the court determined it had subject matter jurisdiction over the custody issue, the motion also sought to set aside the default and default judgment pursuant to Code of Civil Procedure section 473, subdivision (b), because of excusable neglect. ² Defendant Defendant's motion was supported by her declaration stating that from the time she moved to Texas in 1993 through August 1996, plaintiff paid her nothing in child support, although for a year he did pay her rent of $225 directly to the landlord; in 1995, he sent her $500 to buy a car, and when that car broke down, he sent payments for another car directly to the dealership; periodically he would send gifts and money to the children; in mid 1996, the government obtained an order against plaintiff requiring him to pay child support of $1,364; she was told that she could not receive the child support until she terminated welfare, so she terminated welfare and received child support for September and October 1996; when the child support was cut off, she reapplied and received welfare for November 1996.

maintained that she failed to pay the filing fee for her response because she was supporting herself and her children on $288 per [68 Cal.App.4th 954] month, and the court did not advise her that she could apply to the court for a fee waiver.

Tammy N. also provided a declaration stating that from January 1995 to August 1996, she lived with her father in California; he gave her money for nice clothing and bought food for her and her friends; during this time, her mother would call asking for money to pay the light bill and her father told her he had no money; her father took her to a fancy banquet and told her that he had a lot of money saved; Tammy began to feel bad about "my brother and sisters suffering in a dark house back in Texas." In August 1996, her father gave her some money, which she used to buy a plane ticket to return to Texas, where she has since remained.

Although plaintiff filed a form responsive declaration in opposition to defendant's motion, stating that he did not consent to the order she requested and wanted the current orders to remain in effect, he provided no other evidence in opposition to the motion. Plaintiff's points and authorities did not dispute the fact that the home state of the four younger children was Texas; rather, plaintiff asserted that California courts had jurisdiction over the issue of child custody under 28 United States Code section 1738A(c)(1)(2)(c), based on the allegations of the existence of an emergency "because of the urgent need to protect the children from continuing mistreatment and abuse" at the hands of defendant, citing defendant's alleged abuse of alcohol and drugs. ³

At the hearing on the defendant's motion, plaintiff's counsel argued that defendant had taken the children and was in hiding in Texas and "the children are still being abused and mistreated," but the trial court responded, "No. I don't have any evidence of that." The trial court also acknowledged that this case did not present any situation of kidnapping of the children or "taking them from their home state to another state and filing actions in that state." In denying the motion to set aside the portion of the judgment dealing with the issue of custody, the court stated that it "does find that there were substantial contacts with the children in this state, and the Court has jurisdiction [under Family Code section 3403.]" The trial court also denied relief to defendant under Code of Civil Procedure section 473, finding that "her neglect in filing a response and in filing this motion in a timely manner are unexcused."

Defendant filed timely notice of appeal from the order denying her motion to set aside those portions of the October 3, 1996, order and the judgment concerning custody and visitation of the parties' four younger children.

DISCUSSION

"The exclusive method of determining subject matter jurisdiction in custody cases in California is the Uniform Child Custody Jurisdiction Act (UCCJA). [Citations.] The jurisdictional requirements of the UCCJA must be satisfied whenever a California court makes a custody determination by initial or modification decree. [Citations.] The provisions of the UCCJA apply in custody cases involving international as well as interstate conflicts. [Citation.] Since an adjudication under UCCJA requires subject matter jurisdiction, a reviewing court is not bound by the trial court's findings and may independently reweigh the jurisdictional facts." (In re Marriage of Arnold...