Perry v. Superior Court

• Decision Date: 22 July 1980
• Citation: 108 Cal.App.3d 480,166 Cal.Rptr. 583
• Parties: Roxanna Marie PERRY, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent; Frederick Lee PERRY, Real Party in Interest. Civ. 5486.
• Court: California Court of Appeals Court of Appeals

Page 583

166 Cal.Rptr. 583

108 Cal.App.3d 480

Roxanna Marie PERRY, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent Frederick Lee PERRY, Real Party in Interest.

Civ. 5486.

Court of Appeal, Fifth District, California.

July 22, 1980.

Hearing Denied Nov. 4, 1980.

[108 Cal.App.3d 481] Young, Wooldridge, Paulden & Self and Michael R. Young, Bakersfield, for petitioner.

No appearance for respondent.

Richard M. Long, Bakersfield, for real party in interest.

OPINION

GEO. A. BROWN, Presiding Justice.

The issue in this case is whether in a marital dissolution action the superior court has jurisdiction to award visitation privileges to a spouse who is not a parent (natural or adoptive) of a minor child of the other spouse. We hold that it does not because Civil Code section 4351 expressly limits the jurisdiction of the superior court in a marital dissolution action to minors who are "children of the marriage." ¹ We arrive at this conclusion notwithstanding the provisions of Civil Code section 4601 which states in pertinent part: "In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child." ² We construe the latter section to permit the court to award reasonable visitation rights to a nonparent only if in the proceeding before it the court otherwise has jurisdiction over the issue of custody.

FACTS

Frederick Lee Perry (Husband) and Roxanna Marie Perry (Wife) were married on March 31, 1973. Approximately six years later, on May 7, 1979, Wife filed a petition for dissolution of the marriage. The interlocutory decree of dissolution was entered on June 8, 1979, and the final decree of dissolution on November 20, 1979.

Wife is the mother of Lonnie Yale Langworthy, whose father is her former husband. ³ Lonnie was born approximately nine months before Wife's marriage to Husband. He was approximately seven years old at the time of these proceedings.

The interlocutory decree distributed the community property in accordance with a stipulation of the parties. It was silent as to the custody of or visitation with Lonnie. Husband and Wife's stipulation provided that there were no minor children of the marriage. No contention has been made to the contrary, nor has any contention been made that Husband adopted Lonnie.

Pursuant to an order to show cause issued upon the petition of the Husband seeking visitation with Lonnie, the court order defined visitation rights with the minor and ordered a probation study on the suitability of the Husband to exercise visitation with Lonnie. The probation report was favorable to Husband.

Wife challenged the jurisdiction of the court to award visitation to Husband by a motion to dismiss the order to show cause. In denying the motion the trial court noted:

"COURT ORDERS: Petitioner's Motion to Dismiss O.S.C. re: Visitation upon the ground that the Court lacks jurisdiction to entertain said cause is Denied.

"MEMO: The issue presented seems to be one of first impression. Neither side has offered authority that is directly in point.

"There is a prima facie showing that the respondent has filled the role of father in every respect most of the child's life. The fact that there is no 'blood relationship' seems inconsequential, logically speaking, when viewing the ultimate issue which concerns the best interest of the child. Of course, the extent and frequency of said visitation or whether any order should be made depends upon the evidence presented at the hearing (including the Probation Officer's Report) and what is determined to be in the best interest of the minor."

Wife filed with this court the instant petition for writ of prohibition.

DISCUSSION

Preliminarily we note something that may be self-evident: visitation rights, while not equivalent to full custody (see In re Marriage of O'Connell (1978) 80 Cal.App.3d 849, 858, 146 Cal.Rptr. 26), is a limited form of custody during the time the visitation rights are being exercised. Thus, Civil Code section 5151, subdivision (2), which is part of the Uniform Child Custody Jurisdiction Act (Civ.Code, §§ 5150-5174), recognizes that a "custody determination" includes a court decision regarding visitation rights. That section provides in pertinent part:

"As used in this title:

" . . .

"(2) 'Custody determination' means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; . . . "

It also must be recognized that a marital dissolution proceeding is only one of a number of proceedings in which custody and visitation rights can be litigated. In In re B. G. (1974) 11 Cal.3d 679, 696, 114 Cal.Rptr. 444, 455, 523 P.2d 244, 245, the court observed: "In fact, California has at least eight separate proceedings in which custody questions can be litigated," citing Bodenheimer, The Multiplicity of Child Custody Proceedings Problems of California Law (1971) 23 Stan.L.Rev. 703, 704-705. ⁴

There can be no doubt that if the issue of custody or visitation is properly before the court in one of these proceedings the court has the authority to award custody or visitation to a nonparent pursuant to Civil Code sections 4600 and 4601. Moreover, the standards set forth in Civil Code section 4600 for determining who should receive custody govern all proceedings. (In re B. G., supra, 11 Cal.3d at p. 695, 114 Cal.Rptr. 444, 523 P.2d 244; In re Reyna (1976) 55 Cal.App.3d 288, 296-297, 126 Cal.Rptr. 138.)

The plain fact, however, is that in a marital dissolution proceeding the legislative grant of authority to the court to deal with custody or visitation matters is constricted by Civil Code section 4351 to the "minor children of the marriage." It follows that the court in such a proceeding is limited in regard to visitation orders in the same way as it is limited to adjudicating the rights of the parties in marital property (see Porter v. Superior Court (1977) 73 Cal.App.3d 793, 803-805, 141 Cal.Rptr. 59) and to ordering parents to pay child support (see Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 665-666, 672-676, 11 Cal.Rptr. 707.)

If the rule were otherwise, then in a dissolution proceeding between "A" and "B" visitation rights to a child of "C" and "D" could be litigated simply because, during the marriage of "A" and "B," "A" was like a father to the child and he could prove that it was beneficial to the child that he be awarded custody or visitation. That would be attempting to litigate the status of a child not before the court and, of course, would be absurd. Conceptually, however, the situation does not differ from that before us.

In re Marriage of Valle (1975) 53 Cal.App.3d 837, 126 Cal.Rptr. 38 inferentially supports our conclusion. There the father asserted the court had no jurisdiction to award custody or impose support obligations because the minor children involved were not "children of the marriage." In fact, the natural parents of the children involved were the husband's brother and sister-in-law. The appellate court noted that pursuant to the authority to determine the parentage of a child the trial court had found the father/husband was estopped from denying his parenthood. ⁵ They affirmed that factual decision. The court cited Clevenger v. Clevenger, supra, 189 Cal.App.2d 658, 11 Cal.Rptr. 707, for the proposition that a court may order support payments from a person estopped to deny parentage. The court concluded that if that were so, estoppel to deny parenthood would also allow a court to have jurisdiction to award custody because the child would then, through a legal/factual conclusion, be a child of the marriage. (In re Marriage of Valle, supra, 53 Cal.App.3d at p. 842, 126 Cal.Rptr. 38.) By necessary implication the court held that courts have no jurisdiction to award custody or support if the child is not "of the marriage." (Id. at pp. 842-843, 126 Cal.Rptr. 38; cf., Adoption of Bonner (1968) 260 Cal.App.2d 17, 66 Cal.Rptr. 812.)

From what has been said, it follows that had Lonnie been a child of the marriage between Husband and Wife, then under the provisions of Civil Code section 4601 the court upon proper petition could have determined visitation rights of an uncle, grandparent, surrogate father, or "any other person having an interest of the welfare of the child." (See In re Marriage of Meier (1975) 51 Cal.App.3d 120, 123 and fn. 3, 123 Cal.Rptr. 822; Cal.Rules of Court, rule 1252(b).)

We do not find the result in this case particularly palatable. However, in view of the language in the relevant code sections, we feel compelled to hold the trial court had no jurisdiction to make any order concerning visitation in the proceeding before it. We are aware that in this modern society there are probably a considerable number of stepparents and stepchildren in situations substantially similar to that before us. The Legislature has the power to address this thorny problem of visitation...