Schlumpf v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: REYNOSO
• Citation: Schlumpf v. Superior Court, 79 Cal.App.3d 892, 145 Cal.Rptr. 190 (Cal. App. 1978)
• Decision Date: 15 March 1978
• Parties: Walter E. SCHLUMPF, Petitioner, v. SUPERIOR COURT OF the State of California COUNTY OF TRINITY, Respondent; Bobbie F. SCHLUMPF, Real Party in Interest. Civ. 17286.

Page 190

145 Cal.Rptr. 190

79 Cal.App.3d 892

Walter E. SCHLUMPF, Petitioner, v. SUPERIOR COURT OF the State of California COUNTY OF TRINITY, Respondent Bobbie F. SCHLUMPF, Real Party in Interest.

Civ. 17286.

Court of Appeal, Third District, California.

March 15, 1978.

Stephen Adams, Bernard N. Wolfe, San Francisco, for petitioner.

Jane L. Skanderup, Yreka, for real party in interest.

REYNOSO, Associate Justice.

We are asked to consider the applicability of the Uniform Child Custody Jurisdiction Act. (Civ.Code, § 5150, et seq.)

The father, petitioner Walter E. Schlumpf, urges alternative views: (1) that California lacks jurisdiction under the Act to modify the existing child custody order and (2) that if California has jurisdiction the facts of this case compel the conclusion that Wyoming is a more appropriate jurisdiction to make the determination. Thus, he argues, the California court should stay the proceedings until the Wyoming court has an opportunity to act on the matter. On the other hand, the mother (real party in interest, Bobbie E. Schlumpf) contends that California not only has jurisdiction but is also the appropriate forum. In addition, she claims that the father waived his objection by making a general appearance.

We hold that California has jurisdiction under the Act to make the determination sought in the mother's motion for modification. Nonetheless, the California court should stay the proceedings to permit such a proceeding to be brought in Wyoming. Our decision is based upon Civil Code section 5156. We thus reject the mother's contention that the father may not make the motion after making an appearance. ¹ Its applicability, we hold, is not waived.

On February 17, 1967, respondent Superior Court of Trinity County granted the father an interlocutory judgment of divorce against the mother. The terms of the interlocutory judgment and a property settlement and separation agreement entered into by the parties provided that the mother would have custody of the parties' three children, Jeffrey E. Schlumpf, born March 25, 1962, Zachrey D. Schlumpf, born December 27, 1963, and Tonya K. Schlumpf, born October 11, 1965, such custody to be subject to the father's reasonable rights of visitation. On October 2, 1967, a final judgment of divorce was entered incorporating the terms of the interlocutory judgment.

The next year, in September 1968, respondent court issued an order modifying the interlocutory and final decrees of divorce, holding that there had been no prior contested hearing regarding the custody of the children, and that the best interest of the children requires that custody be given to the father subject to the mother's right of visitation. The father, upon receiving a job promotion, moved to Wyoming with his new wife and the children.

Nearly nine years later, on June 16, 1977, the mother filed a notice of motion seeking modification of the custody order and change of venue. She sought custody of the children. Further, she asked the Trinity County Superior Court to transfer the cause for hearing to Siskiyou County where she now resides. The mother filed a declaration stating that she has been prevented from exercising her full rights of visitation by actions of the father, and that she can now provide a home for the children more suitable than the father. Since she lives in Siskiyou County, she declares that the motion for a change of venue is appropriate. By a supplemental declaration she states that the evidence she wishes to have considered is available in that county.

The father filed points and authorities in opposition to the motion to change venue. He urged the court to hear the matter because the trial judge had heard the earlier motions and was more familiar with the case. Further, he was better able to attend court sessions in Trinity than in Siskiyou. During the venue hearing, held August 22, 1977, the father moved for a "change of venue" to Albany County, Wyoming. On appeal the mother maintains that the motion was made as an alternative to the father's request that the court hear the matter.

The court found that the father had lived in Wyoming for the past five years and that the children had lived with the father since 1968. One partial exception was daughter Tonya, who had resided with the mother from July 1975 to May 1976. The court noted that Wyoming is the children's home state under the Act and would therefore seem to have a closer connection with the children and one of the contestants. The court observed that the emotional well-being and education of the children as they relate to the father and his present wife can be determined in either state. The physical suitability of the father's home is not questioned by the mother. Further, the court noted that the physical suitability of the mother's home and her present emotional stability are matters of concern to any court that would consider the custody issue. The court ruled that the purposes of the Act would be served by the retention of jurisdiction in California. He thus transferred the matter to Siskiyou County. On October 14, 1977, the court issued its order granting the motion for change of venue to Siskiyou County. This petition followed.

We are urged to reverse on the basis that under the Uniform Child Custody Jurisdiction Act (the Act), California is without jurisdiction to consider a modification of the child custody order then in effect.

In 1973, California adopted the Act, effective January 1, 1974. (See Civ.Code, § 5150, et seq., Stats.1973, ch. 693.) Section 5152, ² which is set out in full in the margin, provides the jurisdictional requisites for child custody determinations. The court's decision rested on subsection (1)(b) and it is this subsection which the mother now urges as the provision requiring denial of the father's petition.

The court found that Wyoming would appear to have a closer connection with the children and one of the contestants, the father. This would indicate that jurisdiction is proper in Wyoming under section 5152(1)(b). Nevertheless, the court impliedly found that the children and the mother have a significant connection with California and that there is present in this state substantial evidence concerning the children's future care, protection, training and personal relationships. Thus, California would also appear to have jurisdiction under the Act. The court's decision is supported by the following: the parties lived in California during their marriage, the divorce proceeding and subsequent modification of the child custody decree were heard and determined by a California court, the mother has remained a resident of California since the divorce, the children have visited the mother here and Tonya resided with the mother for a ten-month period during 1975-1976, and much of the evidence relative to the mother's fitness as a custodial parent is in California. Those facts, in our view, support the court's determination that California has jurisdiction under the Act. ³

Wyoming alone, according to the father, has jurisdiction pursuant to Civil Code section 5152(1)(b). We disagree. Nothing in that section indicates that when one state has jurisdiction another is precluded from jurisdiction. Rather, the Act contemplates that more than one state will meet the jurisdictional requisites under the provisions of the Act. (See Civ.Code, §§ 5155, 5156, and Clark v. Superior Court (1977) 73 Cal.App.3d 298, 307, 140 Cal.Rptr. 709.)

Clark v. Superior Court, supra, 73 Cal.App.3d 298, 140 Cal.Rptr. 709, considered this issue. There the mother resided in Oregon with the minor child for five years since the California dissolution giving her custody of the minor child. The court noted the dilemma presented on the facts of the case but found it unnecessary to resolve the issue. The court stated: ". . . we will assume that grounds for the exercise of jurisdiction to make a modification decree exist in both this state and Oregon." The court went on to hold that California should stay the proceeding under Civil Code section 5156 pending the institution of a modification proceeding in Oregon. (Id. at p. 308, 140 Cal.Rptr. at p. 714.) The court in Clark thus recognized the possibility that more than one state could have jurisdiction. That a California court issued the initial order was viewed as important in determining whether California continues to have jurisdiction. ⁴ Other jurisdictions which have considered the effect of the uniform act on similar statutes have found jurisdiction to modify custody orders in the court making the original order. (See Moore v. Moore (Or.App.) (1976) 546 P.2d 1104, 1107; Moran v. Moran (N.D.) (1972) 200 N.W.2d 263.)

In the present case the mother has never lost contact with California or with the children and the children have maintained some contact with California since the awarding of custody to the father. Under the facts of this case the trial court did not err in determining that California continues to have jurisdiction to modify its child custody order. ⁵

II

The court has jurisdiction to modify a child custody decree. We now turn to the issue of whether the court should have exercised its power. The father contends that the court should decline to determine the matter and should stay the proceeding pending a determination by a Wyoming court. We agree.

Civil Code section 5156, ⁶ set out in full in the margin, provides the circumstances under which a court may decline to exercise its jurisdiction.

The court found that Wyoming is the children's home and has a closer connection with the children and the father. Initially, these factors indicate that Wyoming is a more appropriate forum. However, we must also consider whether evidence concerning the children's present or future care, protection, training, and personal relationships is more readily available in California. Finally, we must examine whether the exercise of jurisdiction in...