N.S. v. D.M.

• Decision Date: 28 March 2018
• Docket Number: D071305
• Citation: 231 Cal.Rptr.3d 67,21 Cal.App.5th 1040
• Court: California Court of Appeals Court of Appeals
• Parties: N.S., Plaintiff and Appellant, v. D.M., Defendant and Respondent.

21 Cal.App.5th 1040

231 Cal.Rptr.3d 67

N.S., Plaintiff and Appellant,

v.D.M., Defendant and Respondent.

D071305

Court of Appeal, Fourth District, Division 1, California.

Filed March 28, 2018

Alexandra Krakovsky, San Diego, for Appellant.

D.M., in pro. per., for Respondent.

DATO, J.

In this complex custody proceeding involving two states and three different venues, N.S. (Mother) appeals the denial of her motion to recover attorney's fees, travel expenses, and childcare costs from D.M. (Father) associated with the parties' litigation in Santa Clara County and Illinois. She claims she incurred expenses in both places to challenge Father's Illinois petitions and return the custody case to Santa Clara County, where the initial custody determination was made. On appeal, she argues the trial court erred in denying expenses under Family Code sections 7605, subdivision (a) and section 3452, subdivision (a).¹ As we explain, Mother is not entitled to recover expenses under section 3452, but she may seek a need-based fee and cost award under section 7605. We therefore vacate the order and remand for the trial court to consider her request under that statute.

FACTUAL AND PROCEDURAL BACKGROUND²

Mother and Father were never married and are the parents of two minor children. They separated and in September 2012 filed a Stipulation and Order for Custody and/or Visitation of Children in Santa Clara County agreeing to joint legal and physical custody with the children residing primarily with Mother. The Santa Clara court entered a judgment of parentage the same day that contains no additional custody or visitation orders.

Mother and Father reconciled by early 2013 and moved with their children to Illinois. They separated again later that year but continued to share parenting time.

In May 2014, Mother relocated to San Diego with the children. Father filed a petition in Kane County, Illinois on June 6, 2014 to enforce the California custody order and return the children to Illinois. He filed a separate petition that same day seeking to modify custody on the basis that Illinois had become the children's home state. Mother hired Illinois counsel and moved to dismiss and/or quash service, arguing Santa Clara County retained exclusive jurisdiction to modify custody. She also filed a motion in Santa Clara County to transfer venue to San Diego.

After a telephonic conference between the Illinois and Santa Clara County courts, both courts concluded that California maintained exclusive jurisdiction over custody under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act). The Illinois court denied both of Father's petitions on October 6, 2014, and Santa Clara County assumed exclusive jurisdiction three weeks later.

In January 2015, Mother filed a motion for reimbursement of certain expenses, which the court denied pending a hearing. Venue was transferred to San Diego County in February 2015. The record does not indicate whether Santa Clara County considered Mother's expense request before the transfer.

Father filed a motion to modify custody and visitation and relocate the children to Illinois. On May 20, 2016, the San Diego County Superior Court awarded Mother sole legal and primary physical custody and ordered Father to undertake conjoint counseling.

On June 3, 2016, nearly 20 months after dismissal of the Illinois action, Mother filed a request for order in San Diego seeking fees and costs associated with the 2014 litigation in both Illinois and Santa Clara. Specifically, she identified travel expenses to Santa Clara, California attorney consultation fees, Illinois attorney's fees, court-related childcare expenses, and court costs. She also sought to recover her moving expenses to relocate from Illinois to California. Mother's points and authorities consisted in its entirety of four statutes pertaining to attorney's fees and costs in various family law contexts. (§§ 2030, subd. (a)(1), 3452, subd. (a), 271, subd. (a), 4900 et seq.) She filed a later document in "reply" adding section 7605, subdivision (a) to the list.

The court held a hearing in September 2016 and denied Mother's motion. It analyzed Mother's Santa Clara requests under section 7605 and found that statute only allowed Mother to recoup attorney's fees , not childcare or travel expenses. Because Mother was self-represented throughout the Santa Clara proceedings, it held she could not seek reimbursement of attorney's fees. As to her request for fees in Illinois, the court determined venue was improper because "this is not the appropriate place to ... seek attorney's fees from a case that was heard in Illinois."

DISCUSSION

"Under the American rule, each party to a lawsuit ordinarily pays its own attorney fees." ( Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751, 220 Cal.Rptr.3d 650, 398 P.3d 556.) This default rule can be modified by contract, statute, or rule. ( Travelers Cas. & Sur. Co. of Am. v. PG&E (2007) 549 U.S. 443, 448, 127 S.Ct. 1199, 167 L.Ed.2d 178.) Mother seeks to recover the expenses related to 2014 litigation in Santa Clara and Illinois based on two Family Code provisions, section 7605, subdivision (a) and section 3452, subdivision (a).³ As we explain, the trial court properly denied Mother's request for expenses under section 3452 but failed to exercise its discretion to fully consider her need-based fee and cost request under section 7605.

1. Mother is not entitled to expenses under section 3452, subdivision (a)

In her request for order, Mother cited section 3452, subdivision (a), the statute pertaining to the UCCJEA (§ 3400 et seq.). Section 3452 provides, in relevant part,

"The court shall award the prevailing party ... necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate." ( § 3452, subd. (a).)

Mother urges that section 3542 entitled her to recover various attorney's fees and expenses she incurred after Father initiated proceedings in Illinois. As we explain, however, Mother is not entitled to recover under this section because she was not a prevailing party in a UCCJEA enforcement proceeding within the meaning of that statute.

The interpretation of a statute is a legal issue, which we review de novo. ( Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800, 35 Cal.Rptr.2d 418, 883 P.2d 960.) " ‘We begin with the fundamental rule that our primary task is to determine the lawmakers' intent.’ " ( In re B.A. (2006) 141 Cal.App.4th 1411, 1418, 47 Cal.Rptr.3d 115.) "Where the language of the statute is clear and unambiguous, we follow the plain meaning of the statute and need not examine other indicia of legislative intent." ( In re J.P. (2014) 229 Cal.App.4th 108, 123, 176 Cal.Rptr.3d 792.) Where appropriate, we turn to legislative history as an extrinsic aid to evaluate legislative intent. ( In re J.W . (2002) 29 Cal.4th 200, 210, 126 Cal.Rptr.2d 897, 57 P.3d 363.)

The UCCJEA is a uniform act that serves to avoid jurisdictional conflict and promote interstate cooperation by litigating custody where the child and family have the closest connections. ( In re M.M. (2015) 240 Cal.App.4th 703, 715, 192 Cal.Rptr.3d 849.) California and Illinois have both adopted the UCCJEA. (§ 3400 et seq.; 750 Ill. Comp. Stats. Ann. 36/101 et seq. ) The act is divided into four chapters. The first contains definitions and general provisions (§§ 3400-3412), and the last contains miscellaneous provisions (§§ 3461-3465). Chapters 2 and 3 contain the core substantive provisions. We explore these chapters in some detail to explain why Mother is not entitled to recover expenses under section 3452.

Chapter 2 of the UCCJEA is titled "Jurisdiction" and defines the circumstances in which a trial court has jurisdiction to make a child custody determination. (§§ 3421–3430.) Once a state makes an initial child custody determination (§ 3421), it retains exclusive continuing jurisdiction over custody matters until it no longer has a significant connection with the parties or all parties move outside the state. (§ 3422, subd. (a).) Other sections in Chapter 2 explain when a court may modify another state's custody order (§ 3423), assume temporary emergency jurisdiction (§ 3424), and decline to exercise jurisdiction on the grounds of inconvenient forum or unjustifiable conduct by a party (§§ 3427–3428).

Chapter 3 is titled "Enforcement" and deals with enforcement of out-of-state custody orders. (§§ 3441–3457.) Before the UCCJEA, there was no uniform procedure to enforce a valid custody order issued in another state. (9 pt. 1A West's U. Laws Ann. (1999) U. Child Custody Jurisdiction Act, Prefatory Note.) This lack of uniformity led to inconsistent results and allowed one parent to stall enforcement proceedings for months or even years. (Ibid. ) A major purpose behind the UCCJEA was to create a uniform method for enforcement across states. (Ibid. )

The UCCJEA creates two basic enforcement methods. First, a party can file a petition to register an out-of-state custody order. (§ 3445, subd. (a).) Once it receives the paperwork, the court registers the out-of-state order and notifies the parties that unless a hearing is requested in 20 days, registration will be confirmed and further contest precluded. (§ 3445, subds. (b), (c), (e).) If a hearing is requested, the court must confirm registration unless the objecting parent can establish that the issuing court lacked jurisdiction; a court of competent jurisdiction has vacated, stayed, or modified the order; or the order was obtained without proper notice. (§ 3445, subd. (d)(1)–(3).) Once registered and confirmed, an out-of-state custody order must be enforced and may not be modified except as allowed under Chapter 2. (§ 3446, subd. ...