Smith v. Superior Court

• Decision Date: 28 March 1977
• Citation: 137 Cal.Rptr. 348,68 Cal.App.3d 457
• Court: California Court of Appeals Court of Appeals
• Parties: Carol Lynn SMITH, Petitioner, v. The SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; Richard Morris LYMAN, III, Real Party in Interest. Civ. 40256.

Page 348

137 Cal.Rptr. 348

68 Cal.App.3d 457

Carol Lynn SMITH, Petitioner, v. The SUPERIOR COURT OF SAN MATEO COUNTY, Respondent Richard Morris LYMAN, III, Real Party in Interest.

Civ. 40256.

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

March 28, 1977.

Hearing Denied May 26, 1977.

Ketchum & Ketchum, Myra A. Ketchum, Burlingame, for petitioner.

Sullivan, Rizzo & Eisenberg, Ralph A. Rizzo, San Mateo, for real party in interest.

ELKINGTON, Associate Justice.

We review (see Code Civ. Proc. §§ 1067--1077) two adjudications of the San Mateo County Superior Court holding petitioner Carol Lynn Smith (hereafter, for convenience only, 'Carol') in contempt for disobedience of certain of the court's orders. The orders concerned visitation rights of Carol's former husband Richard Morris Lyman III (hereafter, also for convenience only, 'Richard') with their daughter Michelle.

Our review "is limited to determining whether there was any substantial evidence to sustain the jurisdiction of the trial court" in making the contempt adjudications. (In re Buckley, 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 127, 514 P.2d 1201, 1207, cert. den., 418 U.S. 910, 94 S.Ct. 3202, 41 L.Ed.2d 1156.) ¹

But that jurisdiction in turn depended upon whether, under the state's recently enacted Uniform Child Custody Jurisdiction Act (Civ.Code, §§ 5150-5174; hereafter sometimes, the 'Act'), ² the court had jurisdiction over the subject matter when, on the parties' stipulation, it modified an earlier judgment of dissolution of the parties' marriage, in respect of Richard's custody and visitation rights with Michelle. Such visitation rights are treated as 'custody matters' under the Act.

The Act (Civ.Code, § 5152) provides, as relevant to our discussion, that:

'(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 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 this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships. . . .'

The Act, of course, generally concerns Subject matter jurisdiction, i.e., 'child custody matters,' and not Jurisdiction over the persons of the parents. Code of Civil Procedure section 410.50, subdivision (b) (enacted 1969), a statute of general application, provides: 'Jurisdiction of the court over the parties And the subject matter of an action continues throughout subsequent proceedings in the action.' (Emphasis added.) But the conflicting provisions of the Act (enacted 1973) will control over section 410.50, subdivision (b), for the Act is a special statute, and was enacted later in time. "It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment." (In re Williamson, 43 Cal.2d 651, 654, 276 P.2d 593, 594.) "Where the provisions of one statute irreconcilably conflict with those of another, the later enactment, by implication, repeals any conflicting provisions contained in the earlier." (Adams v. Superior Court, 8 Cal.App.3d 569, 572, 87 Cal.Rptr. 667, 669.) Were the rule otherwise, the Act would have little or no purpose or meaning.

Pursuant to the above-quoted subdivision (1)(b) the trial court, among other things, found: 'The Superior Court, County of San Mateo, State of California, has sufficient contacts with the matter, child, parents and relatives, to render said Court of said state jurisdiction, and does now have jurisdiction under jurisdictional prerequisites substantially in accordance with the (Act). . . .'

Substantial evidence before the court and reasonable inferences therefrom tending to support its order established the following factual context.

The marriage of the parties was dissolved in 1966 by a judgment of the San Mateo County Superior Court. Custody of the parties' then two-year-old daughter Michelle was awarded to Carol with certain visitation rights to Richard. Both parties thereafter remarried. Carol first lived with her new husband and Michelle for about a year in Guatemala. They then moved to Oregon, where her husband 'entered graduate school and received his Ph.D. in Economics' and Carol secured employment as a schoolteacher. He had since completed his graduate work but was unable to find employment. Michelle's maternal and paternal grandparents lived in the San Francisco Bay area, as did several other relatives on Richard's side of the family; there were family gatherings on Richard's side, and all appeared to have shown an interest in, and affection for, Michelle. Several members of Richard's family had been sending gifts to Michelle 'for Christmas and her birthday . . ..' Michelle had a half sister, and was soon to have another half sister or half brother, living with Richard. And but for her mother, Carol, it appears that Michelle had no relatives in Oregon. Carol was on good terms with her parents in the San Francisco Bay area, and she and Michelle visited occasionally with them.

At a time when Michelle had lived with her mother and stepfather in Oregon for about five years, Carol and Richard entered into a stipulation concerning the latter's custody and visitation rights with Michelle. It provided, among other things, that Michelle would be sent to the California home of Richard, at his expense, during the 'week of Spring school break at or near Easter, 1976, whether it be Easter or another week from Saturday immediately after the Easter break to the following Saturday; however, if the Sunday immediately after the end of such visitation shall be Easter Sunday, then such visitation shall also include Easter Sunday, and in such event, the minor child of the parties shall be returned so that she will arrive at her residence no later than 8:00 P.M. Easter Sunday; . . .' At the request of both parties their judgment of dissolution of marriage was, by the San Mateo County Superior Court, modified to that effect.

As stated by Carol: 'Due to the child's strenuous resistance, and on the advice of a psychologist in Oregon . . . the child was not sent to California for visitation during the Spring break of 1976.' Richard commenced contempt proceedings which resulted in the first of the two orders here under review. The superior court then made another order as follows: 'Petitioner Carol Lynn Smith . . . is ordered and directed by this Court to be personally present on, and to produce personally in this Court Michelle Catherine Lyman, on August 11, 1976 at 2:00 P.M.; ( ) . . . The parties hereto and the minor child Michelle Catherine Lyman are ordered to report to the Probation Department and a psychologist of the Child Development Services at Chope Hospital, County of San Mateo, is directed to conduct an interview of the parties and render an independent opinion as to the effect upon Michelle Catherine Lyman of visitation as previously ordered by this Court; . . .' Neither Carol nor Michelle appeared as required by the latter order. This resulted in the second of the two contempt adjudications.

In our determination whether the contempt adjudications are supported by substantial evidence, we are aided by Notes of the National Conference of Commissioners on Uniform State Laws (hereafter 'Commissioners') appended to sections 3 and 14 of the Uniform Child Custody Jurisdiction Act (9 Uniform Laws Ann. (master ed. 1973) pp. 106--109, 121--123)), which sections have been adopted without material change by California as Civil Code sections 5152 and 5163. "Reports of commissions which have proposed statutes that are subsequently adopted are entitled to substantial weight in construing the statutes." (Keeler v. Superior Court, 2 Cal.3d 619, 630, 87 Cal.Rptr. 481, 487, 470 P.2d 617, 623; Van Arsdale v. Hollinger, 68 Cal.2d 245, 249, 66 Cal.Rptr. 20, 437 P.2d 508.)

Under the Act (Civ.Code, § 5152), Michelle having lived in the State of Oregon for more than six months prior to the custody and visitation rights modification proceedings, that state was her 'home state.' (See Civ.Code, § 5152, subd. (1)(a).) No contrary contention is made.

The Commissioners' Notes (op. cit.) recite the following, among other things:

'Paragraphs (1) and (2) of subsection (a) (of § 3 of the Act; reclassified as pars. (a) and (b) of subd. (1) of Civ.Code, § 5152) establish the two major bases for jurisdiction. In the first place, a court in the child's home state has jurisdiction, and secondly, if there is no home state or the child and his family have equal or stronger ties with another state, a court in that state has jurisdiction. . . . ( ) Paragraph (2) ((1)(b) of Civ.Code, § 5152) comes into play either when the home state test cannot be met or as an alternative to that test. . . . ( ) . . . The first clause of the paragraph is important: jurisdiction exists only if it is in the Child's interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be...