Wang v. Jiaojiao Zhou (In re Wang)
| Decision Date | 09 April 2021 |
| Docket Number | H046250 |
| Citation | 62 Cal.App.5th 1098,277 Cal.Rptr.3d 302 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE the MARRIAGE OF Sean WANG and JIAOJIAO ZHOU. Sean Wang, Respondent, v. Jiaojiao Zhou, Appellant. |
Stuart Fishman, The Law Offices of Stuart Fishman, LLP, for Appellant.
Sean Wang, in pro. per.
In 2016, the Superior Court of Santa Clara County (the trial court) exercised its temporary jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) ( Fam. Code, § 3400 et seq.1 ), and issued custody orders regarding appellant Jiaojiao Zhou's (Zhou) and respondent Sean Wang's (Wang) child, who lived primarily in China. Zhou and Wang incorporated the custody orders into their stipulated dissolution judgment in 2017, reiterating that the trial court made the orders pursuant to its emergency jurisdiction under the UCCJEA.
In 2018, a court in China issued a custody order as part of a judgment (the Chinese judgment), awarding sole custody of the child to Zhou, who registered the custody order in the trial court. Wang opposed the registration. The trial court first issued temporary emergency orders vacating service of the registration. Following a hearing, it denied registration of the Chinese judgment. Zhou contends the trial court erred by vacating the registration because China had exclusive jurisdiction to make custody orders under the relevant provisions of the UCCJEA. Finding no error in the trial court's decision to deny registration of the Chinese judgment, we affirm.
Zhou and Wang married in 2010 and separated in 2016; the trial court entered a judgment of dissolution in September 2017. Wang initiated the dissolution proceedings and the trial court acquired jurisdiction over Zhou in February 2016 when she appeared in the proceedings. The parties have one child of the marriage, a daughter, born in 2013 in China.2 Daughter lived primarily in China with Zhou, but made frequent, extended trips to the United States to visit Wang, who worked in California. Daughter had a United States passport, although it was expired at the time it was referenced in the record.
Prior to the trial court's first hearing in the matter, each party filed requests for various orders, including a request by Zhou to "return to domicile," and a request by Wang for a domestic violence restraining order against Zhou.3 The court held hearings on these requests in March 2016. Wang asked the trial court to take emergency jurisdiction over custody, as it did not appear that California had "regular" jurisdiction; Wang asserted the "emergency" was Zhou's desire to take Daughter back to China.4 Zhou stated she would file an action in China "right away" if she was allowed to return to China. Based on this representation, the trial court stated that any exercise of its emergency jurisdiction would not be "long term." Wang did not dispute that Daughter lived in China in the six months prior to the case being filed, such that California would only have jurisdiction to make custody orders under section 3424. Wang contended that under subdivision (b) of that statute, such jurisdiction could become a final determination if California became Daughter's home state. The record on appeal does not include the minute order from the hearing, or the portion of the transcript indicating what findings or orders, if any, the court made during this first hearing.
The court held a second hearing the following day. The parties conceded that jurisdiction over custody rested with China, unless the trial court exercised emergency jurisdiction. The court held an off-the-record discussion with the parties about custody and visitation issues. Thereafter the parties agreed that California would assume emergency jurisdiction, despite the fact that China was Daughter's country of habitual residence. The parties agreed they would "either register the order from [California] or create an identical order in China so that there will be a fully enforceable order in both jurisdictions."
At the end of the hearing, the trial court indicated that it would "include in its orders the language of Family Code section 3048 that California has jurisdiction to make the custody order especially having made the finding that China is the country of habitual residence; United States had emergency jurisdiction and makes these orders within that context recognizing that China will now be the custodial jurisdiction state." The parties reached additional agreements regarding their visitation with Daughter, which the court memorialized in a written order filed in July 2016. The written order confirmed that the court "assumed emergency child custody jurisdiction," and ordered that a copy of the written order either be registered in China, or that an order be filed in China reflecting the same terms and conditions as set forth in the California order. Under the terms of the order, Daughter would return to China with Zhou, and then return to California, with Zhou, for several extended periods during the year, at which time Daughter would have regular visitation with Wang.
In August 2016, the parties entered into an agreement concerning property and support issues and agreed that the July 2016 custody order would remain in full force and effect. Thereafter the parties signed a stipulation for judgment in September 2017, agreeing that the Neither party appealed that judgment.
In June 2018, Zhou filed the Judicial Council form to register the Chinese judgment, issued by the Beijing Xingcheng District People's Court in China in May 2018. The English translation of the Chinese judgment states that the Chinese court conducted a trial, at which Zhou and her "designated agent," and Wang and his designated agents appeared to participate in the lawsuit. The Chinese judgment indicates Zhou informed the Chinese court of the dissolution proceedings in California, referencing a "provisional hearing" in the United States regarding custody, wherein the California court issued a "temporary order." The Chinese judgment also indicates Zhou alleged to the Chinese court that she was "tricked" or "forced" by Wang into the California dissolution. Zhou asked the Chinese court to award her custody of Daughter, with Wang to have visitation in China one weekend per month.
According to the Chinese judgment, Wang denied tricking or forcing Zhou into the California dissolution. He alleged the parties entered into a voluntary settlement agreement, which they both followed after the California court entered the judgment of dissolution. While he believed it was in Daughter's best interest to be raised by him in California, if the Chinese court determined Zhou was to have custody, Wang asked that Daughter be allowed to visit him in California for extended periods.
The Chinese court denied Wang's request to admit and implement the California dissolution judgment, as "the divorce case of both parties was in trial of Chinese court according to the provision Item (4), Clause I, Article 12 of Provision of Supreme People's Court on Chinese Citizen Applying for Admitting Divorce judgment Procedure of Foreign Court. " The Chinese court determined that Zhou should have "full and sole child custody" of Daughter, with Wang to have visitation on Saturday and Sunday in the third week of every month. The Chinese judgment specifies that either party could appeal the judgment to the Beijing Second Intermediate People's Court.
Wang filed written opposition to Zhou's registration of the out-of-state custody order with the trial court and asked the trial court to order Zhou to renew Daughter's United States passport, and to return Daughter to the United States for visitation in Summer 2018. According to Wang, the Chinese judgment was not yet operative, because he had appealed the judgment, resulting in a stay of the order. Wang supported his claim with a "legal opinion" prepared by his attorneys in the Chinese action, as well as a declaration from a Chinese legal expert, all of whom opined that the Chinese judgment was not yet in effect due to Wang's appeal. Thus, he asked the trial court to vacate the registration of the Chinese judgment and order Zhou to comply with the July 2016 custody order.
Wang asked for the following temporary emergency orders pending the hearing on his requests, which the trial court granted: "1) Vacate the service of [Zhou's] registration of Out of State Custody Order, and enforce Custody Order filed on July 21, 2016[;] [¶] 2) Compel [Zhou] to renew child's U.S. passport by August 10, 2018 at U.S. Embassy in Beijing, China, using expressed [sic ] service for delivery of new U.S. Passport book and card; child shall then return to U.S. with a valid U.S. passport and spend the rest of summer as [Wang's] vacation with the child till August 31, 2018, pursuant to Custody Order filed on July 21, 2016. [Father] shall keep Passport card."
In response to Wang's requests, Zhou contended that China had jurisdiction over child custody pursuant to section 3421, as the parties agreed China was Daughter's home state. While section 3424, subdivision (a) allowed a California court to exercise emergency custody jurisdiction if the child was present in California and such an exercise was necessary to protect the child from mistreatment or abuse, no such emergency existed. Based on this assertion, Zhou obtained custody orders from the Chinese court, and registered the order with the trial court, in compliance with the trial...
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