Palm v. Superior Court

• Decision Date: 03 October 1979
• Citation: 158 Cal.Rptr. 786,97 Cal.App.3d 456
• Court: California Court of Appeals Court of Appeals
• Parties: Franklin P. PALM, Petitioner, v. SUPERIOR COURT of SAN DIEGO COUNTY, Respondent; Rebecca S. PALM, Real Party in Interest. Civ. 18601.

Page 786

158 Cal.Rptr. 786

97 Cal.App.3d 456

Franklin P. PALM, Petitioner, v. SUPERIOR COURT of SAN DIEGO COUNTY, Respondent Rebecca S. PALM, Real Party in Interest.

Civ. 18601.

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

Oct. 3, 1979.

Donnelley & Hulden and Charles S. Haughey, Jr., San Diego, for petitioner. No appearance for respondent.

Michael R. Avery and Thomas S. Szakall, San Diego, for real party in interest.

COLOGNE, Associate Justice.

Petitioner Franklin P. Palm seeks a writ of "prohibition/mandate" to compel the Superior Court of San Diego County to vacate its order and stay further proceedings in exercise of jurisdiction in a disputed child custody matter instituted by Rebecca Palm Moody in her complaint to establish a North Dakota divorce decree. That 1974 decree gave Rebecca custody of the parties' minor son who was then a year and a half old. Franklin seeks to stay these proceedings during the pendency of hearings concerned with the son's custody currently being conducted in the North Dakota courts. Franklin contends California's Uniform Child Custody Jurisdiction Act (Act) which North Dakota also adopted ¹ requires the superior court to decline jurisdiction over the minor child and instead to abide by North Dakota's determination of the son's custodial fate.

Franklin married Rebecca in 1968. The parties separated in August 1974 and Rebecca moved to San Diego. When Franklin took the child back to North Dakota, she returned to North Dakota to regain custody. Franklin obtained a judgment of divorce on December 16, 1974, in the District Court of Cass County, Fargo, North Dakota. At that time, the North Dakota court awarded custody of their son to Rebecca with the right of reasonable visitation given to Franklin. In March 1976, Rebecca began living with a man named Ross Moody. On December 31, 1976, by stipulation, the parties agreed Franklin could have custody of the son for six months, after which time the custody would go to Rebecca with Franklin to have the right of reasonable visitation, eight consecutive weeks of visitation in the summer plus alternating Christmas and Easter holidays. Franklin took the boy for the agreed six months and immediately afterward kept the boy for the additional eight weeks to which he was entitled. On July 14, 1977, Franklin filed a petition in the District Court seeking an order to show cause why he should not have the son's custody. The matter was heard on August 19, both parties appearing in court personally and through counsel. On September 27, the court made an order amending the judgment to award Rebecca custody provided if she "resumes cohabitation with one Ross Moody, custody of the minor child . . . shall be changed" to Franklin.

Rebecca then took the son with her and the two lived in California where he began school. At this same time, she resumed cohabitation with Moody though at the time he was still married to another. On October 11, 1977, she "married" him and sent a certified copy of the marriage certificate to the court "in order to satisfy the order of the North Dakota Court." She admitted later this was tantamount to "fraud and deceit on the North Dakota court" because Moody was not yet free to marry. Since that time, however, Moody did obtain a divorce from his wife, the "marriage" to Rebecca was annulled and he legally married her.

In April 1978, Rebecca brought an action in California to establish the foreign judgment and to modify visitation. The superior court refused to exercise jurisdiction over the matter and dismissed the complaint with prejudice.

In June 1978, Franklin took the son back to North Dakota for his eight-week visitation period.

On August 14, before the end of that period, Franklin obtained an order to show cause from the North Dakota court for the purpose of securing full custody of the child. He obtained temporary custody and a temporary restraining order was issued to prohibit interference with his custody.

On August 18, Rebecca filed a second complaint against Franklin in San Diego seeking to establish the California court's jurisdiction over the issue of child custody, visitation and child support. On September 18, the court below determined California did have jurisdiction, California was the domiciliary of the child, it is the most convenient state to try the matter of custody, Rebecca has legal custody under the most recent North Dakota decree, the pending change of custody proceedings in North Dakota are not in substantial conformity with the Uniform Child Custody Jurisdiction Act, and the previous action of the California court dismissing Rebecca's action is not res judicata. It ordered Franklin to dismiss his North Dakota change of custody action, to refile it here and to transfer custody of the child to Rebecca to whom it advanced temporary custody pending a hearing on change of custody.

We are advised in November 1978, the son was picked up at school in North Dakota by his maternal grandmother and taken to California where he now resides with them at a place not revealed to Franklin and contrary to the California court order, he has not been allowed visitation privileges. Franklin characterizes this as an "abduction," Rebecca says the son "voluntarily left school." We take judicial notice of the fact North Dakota now has completed hearings on this matter. On May 8, 1979, that court granted full custody to Franklin subject to a right of visitation by Rebecca under Franklin's supervision. The court later adjudicated Rebecca in contempt for failure to appear with the child, punishment to be meted out when she appears before the North Dakota court.

The situation we review is a classic example of the interstate conflict which the Act was intended to obviate. ² Although both California and North Dakota have adopted the Act, we are faced here with courts in absolute conflict, California exercising jurisdiction and awarding the child to the mother, a resident of this state, and North Dakota exercising jurisdiction and awarding the child to the father, a resident of that state. The jurisdictional facts are not in dispute and if the work of the Commission on Uniform State Laws and the respective state Legislatures is to have any relevance, this jurisdictional dispute should be resolved.

A state acquires jurisdiction under the provisions of section 5152. This reads in pertinent part 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 the state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.

". . ."

"Home state" is defined in section 5151 as "the state in which the child immediately preceding the time involved lived with . . . a parent . . . for at least six consecutive months . . . . Periods of temporary absence of any of the named persons are considered as part of the six-month or other period."

Under the facts of this case, the child was clearly within the jurisdiction of the California courts under the provisions of section 5152, subdivision (1)(a), since he was with his mother in California continuously from August 1977 to June 1978, with the exception of the visit with his father at Christmas. This period, immediately before the commencement of these proceedings, qualifies California as the child's "home state." ³ A California court has the right to determine its jurisdiction (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 302, 109 P.2d 942), and the superior court properly did so here.

Under the Act's provisions paralleling section 5152, subdivision (1)(b), North Dakota might well have determined it too has jurisdiction over the custody of the child. The courts of North Dakota could and properly did find it was in the best interests of the child ⁴ to assume jurisdiction because the child and the father had a significant connection with that state and the requirement of available evidence concerning the child is met. The evidence supporting such a finding may be seen from the fact the father is a resident of that state, maintains his home and business as a dry wall contractor in Fargo; the parties last lived together as man and wife there and obtained their divorce there giving that court jurisdiction to award custody in the first instance, their reputation and relationships are well established in that community; and the child lived there for ten of the last 22 months and even attended school there at least until his removal by the grandparents. During that period, the child obviously made contacts with neighbors, friends and others who could testify as to his behavior and adjustment. There is available in North Dakota substantial evidence concerning the child's present or future care, protection, housing and personal relationships.

Additionally, it should be noted the court in North Dakota which granted the dissolution has continuing jurisdiction over custody matters. This is the state of the law for California courts as well (Civ.Code, § 4600; ⁵ Clark v. Superior Court, 73 Cal.App.3d 298, 304, 140 Cal.Rptr. 709; NDCC 14-05-22; Moran v. Moran, 200 N.W.2d 263 (N.D...