Schneer v. Llaurado

• Citation: 242 Cal.App.4th 1276,195 Cal.Rptr.3d 858
• Decision Date: 09 December 2015
• Docket Number: E060040
• Court: California Court of Appeals
• Parties: Barry SCHNEER, Plaintiff and Appellant, v. Alice LLAURADO, Defendant and Respondent.

242 Cal.App.4th 1276

195 Cal.Rptr.3d 858

Barry SCHNEER, Plaintiff and Appellant,

v.Alice LLAURADO, Defendant and Respondent.

E060040

Court of Appeal, Fourth District, Division 2, California.

Filed December 9, 2015

Law Office of Herb Fox and Herb Fox, Los Angeles, for Plaintiff and Appellant.

Patrick McCrary for Defendant and Respondent.

OPINION

McKINSTER, J.

Plaintiff and appellant Barry Schneer (father) appeals from an order of the family court finding California lacks jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) ( Fam. Code,¹ § 3400 et seq. ) to make an initial child custody determination regarding his daughter (the child). Father contends the family court erred by ruling California was not the child's home state for purposes of the UCCJEA because the child did not reside in California during the six-month period immediately before father filed his child custody petition and, instead, argues California is the child's home state because the child resided in California for six continuous months and was taken to Florida by her mother, defendant and respondent Alice Llaurado (mother), less than six months before father filed his petition. We agree with father's interpretation of the UCCJEA and reverse the family court's order.

I.FACTS AND PROCEDURAL BACKGROUND

Father filed his child custody petition on June 24, 2013. In support of the petition, father declared the child was born in June 2011 in Miami, Florida, and that the child and mother resided with father in Twentynine Palms, California, from April 2012 onward. In an attachment to a request for an emergency decree, father alleged mother took the child to Florida to visit the child's grandparents "under [the] presumption of her return following a short visit," but mother and the child had been in Florida for more than three months "with no date of return."

In her response and in a motion to quash and dismiss the petition, mother alleged the child lived in Miami since her birth and never resided in California. Mother declared she and the child visited California several times between August 2012 and March 2013, but she never stayed more than a few weeks at a time. Mother denied having any intent to relocate to California, and denied residing in any state other than Florida.

In her points and authorities in support of the motion to quash, mother argued neither California nor Florida was the child's home state under the UCCJEA because the child did not live in either state for six continuous months immediately before father filed his petition. Instead, mother argued Florida had jurisdiction over the dispute because she and the child have a "significant connection" to Florida. However, because neither parent had yet to file a child custody proceeding in Florida, the courts of that state had not declined to exercise jurisdiction over the dispute. Therefore, mother asked the family court to dismiss the action so one or the other parent could file a child custody action in Florida.

Father opposed the motion to quash, contending mother knowingly made false statements regarding the child's residence and was estopped from denying her residence in California based on sworn statements mother made in connection with a petition for child support she filed in the Riverside Superior Court regarding her son from another relationship.

At an evidentiary hearing, mother testified she and father both lived in Florida when they met and they continued to live in Miami after the child's June 2011 birth. Mother could not recall when father moved to California, but she testified she and the child continued to live in Miami. Mother and the child traveled to California to visit father and, at father's request, they stayed in California for an extended visit from late August 2012 until early March 2013. Mother registered her son in a local school the day after she arrived in California.

However, during the extended visit, mother returned to Florida "[a]t least once a month" for doctor's appointments, and for most of those trips to Florida she took the child with her. Mother testified she worked in Florida as a nurse and visited a physician for a back injury up to the time she and the child visited father in California, and she testified she and the child did not live with father in California before August 2012.

Mother testified she returned to Florida in March 2013 because she wanted to resume her life there, and she had stayed in California longer than she originally planned. Mother withdrew her son from school in California and enrolled him in school in Florida. Thereafter, father visited the child in Florida at least once a month and would stay for a week or so.

Gennaro Pana, a business associate of father, testified that in December 2011, father and mother attended a Christmas party at Pana's New Jersey home. During the party, both father and mother told Pana they decided to move to Twentynine Palms to help grow the business. Pana testified that from late December 2011 through January 2012, both father and mother searched for a home in Twentynine Palms. Pana visited with father and mother at their Twentynine Palms residence various times starting mid-April or early March 2012, and the child was there each time Pana visited. On cross-examination, Pana testified mother told him she did not like living in Twentynine Palms, but Pana denied mother told him she did not want to move to California.

Nora Llaurado, the child's maternal grandmother, testified she lives in Miami, Florida, and in January and April 2012 the child resided in her home. She testified mother and the child traveled with father to California at the end August 2012, and that on the day they left father told her not to worry because they were "just going for a couple months."

David Llaurado, the child's paternal grandfather, testified mother and the child lived in his home from January through August 2012. He could not recall when mother and the child traveled to California, but he testified they returned in March 2013 and have since lived in his home.

Jose Sarria, an employee of father's business, testified father, mother, and the child moved into their Twentynine Palms residence in April 2012. Sarria testified he drove mother's son to and from school every day, and he would regularly see mother and the child in Twentynine Palms.

James Koenig, another employee of father's business, testified that in early January 2012, the company found housing for father's family in Twentynine Palms. Koenig testified father, mother, and the child moved into the home in late March or April 2012. Koenig visited the home three or four times a week throughout 2012 and into early 2013. Mother was usually at the home during these visits, except for a few times when mother had traveled to Florida.

Father testified he decided to move to Twentynine Palms in December 2011. He and mother discussed and then agreed on moving to California to take advantage of a business opportunity, and they announced their decision at Pana's Christmas party. Father, mother, and the child moved to Twentynine Palms in April 2012. Father testified that from April to August 2012, mother traveled to Florida every four or five weeks for doctor's appointments and would stay there for a couple days at a time. During that same period, father, mother, and the child traveled together to Miami. Father testified that mother had her mail forwarded from Florida to Twentynine Palms and transferred the child's medical records to a Twentynine Palms pediatrician.

Father also testified that in March 2013 mother traveled to Miami for surgery, and at the time he believed she would be returning once the surgeon released her. Mother left her clothing and personal property at the Twentynine Palms home. She did not tell father she was moving back to Florida.

After the close of testimony, the family court asked the attorneys to address the six consecutive months before father filed his petition in June 2013. To assist the attorneys in narrowing their arguments, the court stated it was satisfied father and mother moved to California with the expectation of having a future here, and that the couple lived in California with the child through March 2013.

Mother's attorney argued the family court could not find California to be the child's home state unless it found the child lived here continuously for six months immediately before father filed his petition in June 2013. Counsel argued California was not the child's home state because mother and the child did not reside full time in California until October 2012 and moved back to Florida in March 2013. Moreover, counsel argued Florida was not the child's home state either because mother and the child moved back to Florida only four months before father filed his petition. Instead, counsel argued Florida had jurisdiction because mother and the child had a significant connection with Florida.

Father's attorney argued California had home state jurisdiction under section 3421, subdivision (a)(1). Although mother and the child moved back to Florida almost four months before father filed his petition, counsel argued the statute was satisfied because the child resided in California for six continuous months less than six months before father filed the petition, and father continued to reside in California. According to counsel, "this would have to be true of so many of these cases, your Honor, involving situations where one parent leaves with the child. And if that parent leaves with the child for a month or two months before somebody can file papers and get into court, then we would never have a home-state finding." Counsel argued the facts clearly showed that mother and the child resided in California at least from August 2012 through March 2013, and that the court had to find California had home state jurisdiction based on the plain language of the statute.

The family court concluded the six-month period for home state...