Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. S-1501-FL-595369. James L. Compton, Commissioner.
Robert E. Dowd for Appellant.
Law Offices of Michael G. York and Michael G. York for Respondent.
OPINION
HILL, J.
Appellant appeals a determination by the Kern County Superior Court that it lacked jurisdiction to modify a child custody order entered by an Idaho court. He contends the Idaho court acquired jurisdiction of the matter by fraud, its order is therefore void, and the California court should have assumed jurisdiction rather than defer to the Idaho court’s jurisdiction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 2005, after an ex parte appearance, appellant, the husband in a dissolution action, was granted temporary physical custody of his wife’s children, pending further hearing, although the children were then “on visitation” with wife. Wife was ordered to have the children present at the next hearing on September 16. On September 14, 2005, the children’s maternal grandfather initiated an action in Idaho to obtain custody. He alleged one child had been living with him since January 1, 2005, and the other since May 3, 2005. He asserted he was not aware of any other custody proceeding that could affect the Idaho proceeding, and, although he had been told a case may have been filed in Kern County, California, contact with the family court there indicated no case existed. The Kern County court apparently took no further action on the custody issue at the continued hearing. It is undisputed that the Idaho court subsequently awarded custody of the children to the maternal grandfather.
Husband concedes he is not the biological father of the children, but asserts they lived with him and bore his name.
Husband has not included any order made after the September 16, 2005, hearing in the record. Wife represents that Judge Hoover, who conducted the September 16, 2005, hearing “deferred to the Idaho proceeding and made no further order”; the judge conducting the May 10, 2007, hearing agreed with that characterization.
The Idaho custody order is not part of the record.
On May 10, 2007, nine months after a judgment of dissolution was entered, the Kern County court heard husband’s motion for change of custody. The court stated there was a threshold issue concerning whether it had jurisdiction to determine custody, because Idaho had previously made an order for the children’s custody. The court heard argument of counsel then asked for further briefing of the jurisdictional issue. On July 9, 2007, the court denied husband’s motion for a change in custody, finding that the Idaho court had assumed jurisdiction over the custody issue and husband had shown “no change or basis that would allow this court to properly assume jurisdiction.”
DISCUSSION
The judgment appealed from is appealable either as a postjudgment order (Code Civ. Proc., § 904.1; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-654; In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1524-1525) or as a final judgment on a collateral matter (Lester v. Lennane (2000) 84 Cal.App.4th 536, 563, fn. 16; In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 735-736).
California has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400, et seq.) to address questions of jurisdiction of interstate child custody disputes. The Act provides the exclusive basis for determining subject matter jurisdiction in child custody cases in this state. (§ 3421, subd. (b); In re Stephanie M. (1994) 7 Cal.4th 295, 310.) The policy of the Act is not to establish concurrent jurisdiction, but to identify one court that will exercise primary jurisdiction. “‘Courts in other states are required to defer to that court’s continuing jurisdiction and to assist in implementing its orders.’ [Citation.]” (Stephanie M., at p. 313.) The standard of review when the trial court finds, based on conflicting evidence, that it lacks jurisdiction under the UCCJEA is the substantial evidence standard. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 954.)
All further statutory references are to the Family Code, unless otherwise indicated.
A California court must recognize and enforce the custody determination of another state, if the court in the other state “exercised jurisdiction in substantial conformity with” the UCCJEA or “the determination was made under factual circumstances meeting the jurisdictional standards of” the UCCJEA. (§ 3443, subd. (a).) Once a child custody determination has been properly made by a court in another state, a California court may not modify that determination unless the California court has jurisdiction to make an initial determination under section 3421, subdivision (a)(1) or (2), and meets one of the requirements under section 3423.
Under section 3421, subdivision (a)(1) and (2), in the absence of an emergency, a California court “has jurisdiction to make an initial child custody determination only if [either] of the following [is] true:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
“(2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true:
“(A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
“(B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.” (§ 3421, subd. (a)(1) & (2).)
Under section 3423, a California court may modify the custody order of another state only if either of the following is also true:
“(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 or that a court of this state would be a more convenient forum under Section 3427.
“(b) A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.” (§ 3423, subds. (a) & (b).)
“To avoid the possibility of conflicting initial custody decrees in two states, the UCCJA [the predecessor of the UCCJEA] ‘uses a combination of three basic devices: (1) the parties are obligated to inform their respective courts of pending proceedings in another jurisdiction [citation]; (2) a court, upon being informed of an action pending in another state, is required to communicate and consult with the other state court to the end that the case may be litigated in the most appropriate forum [citation]; and ultimately (3) if the conflict is not resolved by communication and consultation between the courts, the priority-of-filing rule applies [citation].’ [Citation.] ‘[An] ultimate conflict between two opposing custody decrees is averted by the priority-of-filing rule of the Act. The second court must yield jurisdiction to the court in which a custody action was pending first.’” (In re Janette H. (1987) 196 Cal.App.3d 1421, 1429, last bracketed insertion appears in the original material.) The UCCJEA contains similar provisions. (§§ 3429, 3426.)
It is undisputed that, after being informed of the pendency of custody proceedings in Idaho, the Kern County court made no further custody orders in the California dissolution action after the September 9, 2005, ex parte order, and it apparently deferred to the Idaho court’s jurisdiction. It is also undisputed that the Idaho court made an order determining the custody of the children.
When husband filed his request for modification of the custody order, the Kern County court was required to give full faith and credit to the Idaho custody order, unless the Idaho court did not exercise jurisdiction in substantial conformity with the UCCJEA. If the Idaho court properly exercised jurisdiction, the Kern County court had jurisdiction to modify the Idaho order only if (1) the Idaho court determined that it no longer had exclusive, continuing jurisdiction, (2) the Idaho court determined that a court of this state would be a more convenient forum, or (3) either court determined that the child, the child's parents, and any person acting as a parent did not then reside in Idaho.
I. The Idaho court’s exercise of jurisdiction
Idaho has adopted the UCCJEA. (Idaho Code, § 32-11-101, et seq.) Under the UCCJEA, the state that “is the home state of the child on the date of the commencement of the proceeding” has jurisdiction to make an initial custody order. (§ 3421, subd. (a)(1); Idaho Code, § 32-11-201, subd. (a)(1).) “‘Home state’” is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” (§ 3402, subd. (g); Idaho Code, § 32-11-102, subd. (g).) The UCCJEA also authorizes the exercise of temporary emergency jurisdiction, if the child is present in the state and has been abandoned or is in need of protection from mistreatment or abuse. (§ 3424; Idaho Code, § 32-11-204.) The maternal grandfather’s complaint for custody alleged the older child had been living with him for eight months. It alleged the younger child had been living with him for four months, but was subject to Idaho’s emergency jurisdiction because his biological father had abandoned him and, “if he were returned to the state of California, he would be subject to or threatened with mistreatment or abuse,” because his mother had “no home within which to provide for” him and she was “involved in an abusive relationship with her current husband.”
The record of the trial court proceedings does not contain any records of the Idaho court’s custody proceedings, except the grandfather’s complaint. Consequently, it is unknown what evidence the trial court had before it at the hearing concerning the Idaho court’s exercise of jurisdiction. Further, there is nothing in the record to indicate what information or evidence the Idaho court had before it when it chose to exercise jurisdiction or on what ground it assumed jurisdiction. The record also does not include any proceedings after the September 9, 2005, ex parte hearing until July 25, 2006. Thus, it does not indicate whether the two courts communicated concerning the jurisdictional issue or whether the Kern County court declined to exercise jurisdiction under section 3421, subdivision (a)(2).
“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) The burden is on the appealing party to furnish an adequate record to assess error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) If he fails to do so, the appeal must be resolved against him. (Id. at pp. 1295-1296.) The record supplied by husband does not demonstrate that the Idaho court’s exercise of jurisdiction was not in substantial conformity with the UCCJEA. Consequently, it does not establish that the Idaho court lacked jurisdiction under the UCCJEA when the grandfather’s custody proceeding was commenced.
Husband contends the Idaho court lacked jurisdiction because it assumed jurisdiction based on fraud; he asserts the grandfather failed to inform the Idaho court that custody proceedings had already commenced in California prior to the filing of the grandfather’s complaint. Under the UCCJEA, a party is required to state in his first pleading or affidavit whether he “[k]nows of any proceeding that could affect the current proceeding.” (§ 3429, subd. (a)(2); Idaho Code, § 32-11-209, subd. (a)(2).) Additionally, “[e]ach party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.” (§ 3429, subd. (d); Idaho Code, § 32-11-209, subd. (d).) If the court determines from this information that a child custody proceeding has been commenced in another state with jurisdiction, it must stay its proceeding and communicate with the court in the other state, to determine whether that court will defer to it as the more appropriate forum. (§ 3426, subd. (b); Idaho Code, § 32-11-206, subd. (b).)
The grandfather’s complaint disclosed that the grandfather was told a case might have been filed in Kern County, but on contacting that court, he learned no case existed. It does not state when the Kern County court was contacted; the Idaho complaint was filed only three court days after the ex parte proceedings in the Kern County case. Because the record does not contain any documents or transcripts from the Idaho proceedings other than the complaint, it does not reflect whether the Idaho court communicated with the Kern County court to determine for itself whether a custody proceeding had been filed there, whether the grandfather or anyone else subsequently disclosed to the Idaho court the existence of the Kern County proceeding, or whether the Kern County court, in communications with the Idaho court, deferred to the Idaho court as the more appropriate forum. The record does not demonstrate that the jurisdiction of the Idaho court was acquired by fraud, as asserted by husband. We cannot infer error from an inadequate record.
Husband also seems to contend the Idaho custody order is invalid because he was not permitted to intervene in the Idaho proceeding, and therefore he was denied due process. The record contains no court records or transcripts reflecting husband’s efforts to intervene in the Idaho proceeding. It does not identify the grounds asserted or evidence adduced in support of his request to intervene. Arguments in briefs must be supported by appropriate reference to the record and citation of authorities or they may be deemed waived. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Husband has not demonstrated by citation of authority and reference to facts or evidence in the record that he had a right to intervene in the Idaho proceeding and was improperly denied that right.
Husband has not demonstrated that the Idaho court lacked jurisdiction under the UCCJEA, and therefore he has not shown that the Kern County court erred in according the Idaho custody order full faith and credit.
II. The Kern County court’s jurisdiction to modify the Idaho order
When husband’s request to change custody of the children came before the Kern County court for hearing on May 10, 2007, the court had jurisdiction to modify the Idaho custody order only if: (1) the Idaho court determined that it no longer had exclusive, continuing jurisdiction, (2) the Idaho court determined that a court of this state would be a more convenient forum, or (3) either the Idaho court or the Kern County court determined that the child, the child's parents, and any person acting as a parent did not then reside in Idaho. The record contains nothing indicating the Idaho court made any of these determinations.
The Kern County court did not determine that the child, the parents, and any person acting as a parent did not reside in Idaho at the time modification was requested. Husband points to nothing in the record from which the Kern County court could have concluded that none of the relevant persons resided in Idaho at that time. He asserts that he provided the trial court with declarations from persons who were present at the May 10, 2007, hearing and ready to testify that they observed the children with wife in California in the months preceding the hearing. No testimony was taken at the hearing, and any such declarations have not been made part of the record.
Wife’s attorney asserted at the hearing that the children were still living in Idaho at that time.
“‘Person acting as a parent’ means a person, other than a parent, who: (1) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and (2) has been awarded legal custody by a court or claims a right to legal custody under the law of this state.” (§ 3402, subd. (m).) Husband concedes that the maternal grandfather was awarded legal custody of the children, and that the grandparents had physical custody during much of 2005. Husband cites nothing in the record demonstrating the grandparents ceased to have physical or legal custody. He cites nothing in the record to suggest the grandparents no longer reside in Idaho.
The burden is on the appellant to furnish an adequate record to assess error. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295.) Husband has failed to furnish a sufficient record to support his contention that the trial court’s finding that it lacked jurisdiction to modify the Idaho custody order was not supported by substantial evidence. Consequently, he has not overcome the presumption that the trial court’s order is correct. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.)
DISPOSITION
The order denying modification of the Idaho custody order is affirmed. Respondent wife is awarded her costs on appeal.
WE CONCUR: WISEMAN, Acting P.J., LEVY, J.