Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. ND033670. John Chemeleski, Judge.
Law Offices of Gary W. Kearney and Gary W. Kearney for Plaintiff and Appellant.
Law Offices of C. Brian Martin and C. Brian Martin for Defendant and Respondent.
DOI TODD, Acting P. J.
The divorced parents of a minor child were under a joint custody order. Mother, appellant Mafalda Casas-Cordero, a native of Chile, took the child to Chile to live. It was her position that Father, respondent Anthony A. Mira, agreed to the move. Father disagreed, asserting that Mother violated the joint custody order. He filed an order to show cause (OSC) in the California court and was awarded sole custody. The court also ordered that funds recently inherited by Mother not be released to her. At the same time, Father applied for assistance under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), but the Chilean Supreme Court denied him relief, finding return to California would pose a grave risk of harm to the child, an exception to her return to California.
Senate Treaty Doc. 11, 99th Cong., 1st Sess. 9; reprinted in Hague Internat. Child Abduction Convention, text and legal analysis, 51 Fed.Reg. 10494 (Mar. 26, 1986); see also 19 International Legal Materials (I.L.M.) 1501 (1980).
On the basis of the Chilean Supreme Court’s ruling, Mother then sought release of her funds and reinstatement of child support, but the California court denied relief. We conclude that the court erred in denying Mother release of her funds or requiring her to post a bond. Father sought relief through the Hague Convention, seeking the return of his daughter to California. He chose the forum but was denied relief. Unhappy with the result, he continues to seek to hold Mother’s inheritance hostage for his daughter’s return. We hold that the trial court abused its discretion in withholding comity to the judgment of the Chilean court absent a showing that the Chilean court lacked jurisdiction or that enforcement of the foreign order unfairly prejudiced Father’s rights or violated domestic public policy. We therefore reverse that part of the court’s order denying Mother release of her funds or requiring the posting of a bond, and we order that such relief be granted. But we are satisfied that the court was within its discretion in refusing to reinstate child support and affirm that part of the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
The minor child of the parties was born in California in 1994. The parents’ marriage was dissolved in 1999, and pursuant to stipulation, the parties were awarded joint legal and physical custody of the child, with Mother’s home serving as the child’s primary residence. The parties agreed that neither parent could move from the seven Southern California counties with the child without the written permission of the other parent or a court order. In October 2000, the custody order was modified, permitting either parent to take the child out of the country for up to two weeks after providing 45 days notice to the other parent. Father was ordered to pay child support of $249 per month, beginning November 1, 2000.
Sometime in 2004, Mother became entitled to an inheritance on the death of a friend. She received approximately $150,000 in cash, and expected to receive the balance of approximately $450,000 after the sale of the decedent’s house.
Towards the end of 2004, Father became concerned that Mother would take the child to Chile, and wrote a letter to the United States Department of State requesting that the child’s passport not be extended. He also wrote to the Consulate General of Chile in Los Angeles and the Embassy of Chile in Washington, D.C., asking that no travel documents be issued to Mother or the child as any such travel would be in violation of court orders.
In January 2005 Mother traveled to Chile with the child. She left a note with the child’s teacher that she and the child were going to take a vacation with her family in Chile. On January 13, 2005, Father submitted an application for assistance under the Hague Convention on Child Abduction to the State Department.
Father’s OSC
On February 9, 2005, Father filed an OSC seeking sole custody and modification of child support. He also sought an order requiring Mother to post a bond of $100,000. Father included a declaration that Mother had taken the child to Chile by deception, that she had obtained a travel permit claiming there was a pending death in the family, and that he had spoken with his daughter on three occasions and she expected him to visit and take her back. He also informed the court of Mother’s pending inheritance. The court set a hearing for February 28, 2005 and issued a temporary order that anyone holding funds on behalf of Mother not distribute those funds to her, and ordered Mother to return the child to Los Angeles County by February 20, 2005.
Mother was not present at the hearing on February 28, but was represented by an attorney who filed responsive papers on her behalf. Included was a lengthy declaration signed by Mother, disputing most of what Father had stated in his declaration. She declared that Father knew she and the child were leaving and agreed to the move, and that the move was to help their child receive necessary treatment for her learning disabilities. Mother stated that she had received $150,000 from an inheritance, which she was using for living expenses, and that the remaining $450,000 was ready to be released to her.
On February 28, 2005, the court ordered Mother to return the child to California by March 18, 2005. The court ordered that if the child was not returned by that date, Father was awarded temporary sole legal and physical custody with no visitation for Mother, pending the next hearing, set for April 5, 2005.
Both sides filed additional opposing declarations before the matter was finally heard on April 5, 2005. Mother had not returned by that date and the court awarded sole legal and physical custody of the child to Father with no visitation for Mother. The court suspended Father’s child support obligations, continued the prior order restraining the distribution of Mother’s funds, awarded Father $10,000 in attorney fees and costs, and continued the matter to July 13, 2005.
Hague Convention Proceedings in Chile
Father’s application for the child’s return under the Hague Convention was heard by the Chilean First Instance Court on May 26, 2005. That court issued an order that stated, in part, that Mother “was fully aware that she was violating the provisions of the Court of Los Angeles County which obligated her to return, and says that she felt discriminated against by the American legal system because she is Latin American. The minor . . . states that she does not wish to return to [Father] and wants to stay in Chile; however, the reporter acknowledges that the mother has instilled a bias against him.” The order indicated that Father was represented at one hearing, that testimony was heard, and that any findings adverse to Father were made based on his failure to respond to interrogatories. The court ordered the child be returned to Los Angeles. Mother appealed the order.
On September 2, 2005, the Court of Appeals in Santiago, Chile affirmed the order. Mother again appealed the order, and on November 16, 2005, the Chilean Supreme Court reversed, holding that despite Mother’s wrongful taking of the child to Chile, she had proven a defense to the request for return under the Hague Convention. The court found a grave risk that return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation; and that the child objected to being returned and was of an age and maturity where her views should be taken into account.
In addition to the prior California court orders initially granting the parties joint custody and later awarding sole custody to Father and ordering immediate return of the child to California, the Chilean Supreme Court considered the following facts: Father had three prior marriages; of his three children from those marriages one died, one was addicted to heroin and had infrequent contact with his father, and one had no contact with the father; a doctor had previously made a report of suspected child abuse by Father based on the fact that when the child was six years old, she slept in the same bed with Father during visits despite there being two bedrooms in his apartment; an evaluation report suggested that Father wear pajamas when the child stayed with him; and a psychiatric report recommended Mother be granted custody “for the sake of the mental health of the child.” The Supreme Court also relied on the child’s statements that she did not want to see Father again and that she wanted to stay in Chile because all her family was there and that she did not miss Father and was afraid he would remove her from Chile. She recalled that he was a person who never took care of her, never showed affection to her and frequently abused Mother.
The Supreme Court concluded that Father was very undemonstrative and inconsiderate with his other children and that the risk of sexual abuse may be heightened because of the child’s then age of 11, and that returning her to the United States would leave her without an extended family. The court found that the lower Chilean courts had failed to properly analyze the background information and had disregarded the best interest of the child. On the basis of its findings, the Chilean Supreme Court denied Father’s application for return of the child.
Mother’s OSC for Child Support and Release of Funds
On December 21, 2005, based on the Chilean Supreme Court’s ruling on Father’s Hague Convention application, Mother filed an OSC seeking child support retroactive to April 5, 2005, return of funds previously released to Father pursuant to the court’s earlier orders, and release of the funds the court had restrained from distribution.
Father filed a responsive declaration which attached the Chilean trial court decision and a copy of a cable from the American Embassy in Santiago of a failed attempt to visit the child pursuant to Hague Convention procedures. Mother reportedly rejected the visitation request asserting that any attempts would constitute harassment and were examples of the United States intervening in the affairs of small countries. Father further stated that he was not aware of any interrogatories until he read a translated copy of the first appeal which stated he did not answer interrogatories. He complained that evidence relied upon by the Chilean Supreme Court was hearsay and had been discounted by the trial court before joint custody was awarded. He asked that impounded funds, held by his attorney, be used for his fees, costs and travel expenses to Chile.
The funds actually appear to be held by a trustee, attorney John Trommald. It is unclear whether he was the original trustee for the distribution of the estate which was the source of Mother’s inheritance or whether a separate account was established specifically for these funds.
The court denied Mother’s request for release of her inherited funds, for child support and attorney fees. It found the abduction of the child to be a continuing act and ruled that it had the jurisdiction to attach and hold the funds and the authority to require Mother to post a bond in the amount of $250,000, indicating that on the posting of the bond the court would consider a release of the funds.
At the hearing, Mother’s counsel represented that the amount held was approximately $250,000.
DISCUSSION
I. Contentions on Appeal and Standard of Review
Mother contends on appeal that the trial court erred in (1) restraining distribution of her funds until she returns with the child to the United States or, alternatively, requiring the posting of a bond, and (2) refusing to order child support. She asserts that the Chilean Supreme Court’s finding that the child faces a grave risk of harm or an intolerable position under the Hague Convention refutes the trial court’s finding that her relocation to Chile with the child constitutes a “continuing abduction.” Father responds that regardless of the Chilean Supreme Court’s refusal to order the child’s return, Mother’s relocation with the child was a violation of the trial court’s custody orders and deprives the child of contact with him. According to Father’s argument, the sole effect of the Chilean order is that it prevented a Chilean court from ordering the child’s return; it did not and cannot interfere with the trial court’s separate orders.
We review the trial court’s extension or denial of comity to a foreign order for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 314 (Stephanie M.).) Additionally, “[t]he standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.” (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 549 (Condon).) That includes the review of any requirements imposed in international custody disputes by the trial court to secure the enforceability of its orders. (Ibid.) To the degree we are called upon to interpret statutes, we do so de novo. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219 (Bravo).)
II. Appealability
The parties have failed to address the appealability of the order restraining distribution of Mother’s funds or requiring the posting of a bond instead and the continued refusal to order child support. We therefore consider the issue sua sponte. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)
An appellant’s opening brief must state that the judgment appealed from is final or explain why the order appealed from is appealable. (Cal. Rules of Court, rule 8.204(a)(2)(B).)
A. Child Support
Direct appeal lies from an order in a family law case granting or modifying child support. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368; In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 554; see also In re Marriage of Lugo (1985) 170 Cal.App.3d 427, 432, fn. 7 [child support order made after judgment that affects enforcement of the judgment deemed appealable].)
Pursuant to the October 2000 custody order, Father was to pay child support of $249 per month. That order remained in force until April 19, 2005 when, in response to Father’s application for an OSC with respect to the child’s abduction, the court awarded him sole legal and physical custody and suspended his child support obligations. But that order also provided: “This matter is continued for further hearing . . . on July 13, 2005. Any relief requested by either party for that hearing shall be filed and served on the other party . . . .” Therefore, the April 19, 2005 modification was not an appealable order. (See, e.g., County of San Diego v. Arzaga (2007) 152 Cal.App.4th 1336, 1343–1344 [interim orders are not separately appealable, but may be reviewed on appeal from an appealable judgment or order].)
We have no record of the result of the continued hearing, but another application for an OSC was filed and resolved by stipulation and order dated August 18, 2005, pursuant to which Mother was ordered to apprise the court of the status of the ongoing Hague Convention proceedings in Chile. She did so by way of her application for child support retroactive to April 5, 2005, the denial of which underlies this appeal. The order denying her application is appealable as an order modifying child support. (See Fam. Code, § 3554; Code Civ. Proc., § 904.1; County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246, 1250.)
B. Restraint on Distribution of Funds and Bond Requirement
Mother also appeals the court’s refusal to release her inheritance funds and its requirement that to obtain those funds she must post a bond. We deem these portions of the order to be appealable as well. An order refusing to discharge an attachment and an order refusing to dissolve an injunction are made appealable by statute. (Code Civ. Proc., § 904.1, subds. (a)(5) & (a)(6).) An order requiring and setting the amount of a bond made in conjunction with an attachment or injunction order is appealable under Code of Civil Procedure sections 904.1 and 906. (County of Los Angeles v. City of Los Angeles (1999) 76 Cal.App.4th 1025, 1028–1029.)
Finally, we note that Mother prematurely filed her notice of appeal on June 29, 2006 from the order entered on July 17, 2006. Because the notice otherwise clearly delineates the order that is subject to her appeal, we deem the notice timely filed. (Cal. Rules of Court, rule 8.104(e).)
III. The Trial Court Erred in Failing to Give Deference to the Order Issued by the Chilean Supreme Court
The parties dispute the effect of the Chilean Supreme Court’s denial of Father’s Hague Convention application for the child’s return. Mother contends that the trial court must give full faith and credit to the Chilean Supreme Court’s denial, thus undercutting the trial court’s finding of a “continuing abduction” and eliminating the basis upon which the court continued the attachment of her funds, or alternatively ordered a bond under Family Code section 3048, subdivision (b)(2)(B). Father, on the other hand, argues that the Chilean Supreme Court’s ruling was limited solely to the issue of whether Chile was obligated to return the child to California and had no impact on the trial court’s ability to attach funds or require a bond in order to enforce its custody orders. Moreover, Father emphasizes that despite denying the petition for return, the Chilean courts nevertheless found Mother to be an abducting parent thus providing a basis for the trial court’s attaching her assets or requiring a bond.
Family Code section 3048 provides in relevant part: “(b)(1) In cases in which the court becomes aware of facts which may indicate that there is a risk of abduction of a child, the court shall . . . determine whether measures are needed to prevent the abduction of the child by one parent [¶] . . . [¶] (2) If the court makes a finding that there is a need for preventative measures . . . the court shall consider taking one or more of the following measures to prevent the abduction of the child. [¶] (B) Requiring a parent to post a bond in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to offset the cost of recovery of the child in the event there is an abduction.”
A. The Hague Convention
The Hague Convention is an international treaty that provides a civil mechanism “for the prompt return of children who have been wrongfully removed” from their country of habitual residence. (42 U.S.C. §11601(4).) Both the United States and Chile are bound by the treaty. (See http://www.hcch.net/e/status/abductoverview-e.xls; see also Gonzalez v. Gutierrez (9th Cir. 2002) 311 F.3d 942, 944, fn. 2.) The United States implements the treaty through the International Child Abduction Remedies Act (42 U.S.C. § 11601 et seq.). The Convention must be followed in state courts. (U.S. Const., art. VI [“all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . . .”].)
“The Hague Convention provides two methods to secure . . . return of a child from a country that is a treaty signatory. The first . . . is in the courts. . . . [Citations.] The second method . . . is administrative in nature.” (Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 705 (Ariana K.).) As part of the administrative procedures, Article 6 of the Hague Convention provides that a “Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.” (The Convention, art. 6; 19 I.L.M. 1501.) In this case, Father pursued the Hague Convention’s administrative procedures by filing his application with the United States Department of State, which, in turn, cooperated with Chile’s central authority under Title 42 United States Code section 11606.
“Title 42 United States Code section 11606 establishes a United States ‘Central Authority.’ President Ronald Reagan appointed the Department of State as the Central Authority for Hague Convention purposes. [Citations.] The Central Authority is authorized to seek the return of children from other signatory countries. [Citations.] The State Department has promulgated regulations for its operation as the Hague Convention Central Authority. [Citations.]” (Ariana K., supra, 120 Cal.App.4th at pp. 705–706.)
A petitioner under the Hague Convention “bears the burden of proving the child’s wrongful removal or retention by a preponderance of the evidence. (42 U.S.C.A. § 11603(e) (1).” (In re Marriage of Forrest and Eaddy (2006) 144 Cal.App.4th 1202, 1211 (Eaddy).) A removal is “wrongful” under the Convention “where it breaches the petitioner’s rights of custody, provided that the petitioner was exercising those rights at the time of the retention or removal. [Citations.]” (Ibid.) If the petitioner succeeds in showing a wrongful removal or retention, the court must order the child’s return to the country of habitual residence unless the respondent demonstrates that one of four exceptions applies. (See 42 U.S.C. § 11601(a)(4); Blondin v. Dubois (2d Cir.1999) 189 F.3d 240, 245–246 (Blondin).)
One of the statutory exceptions to returning a child is “where there is a ‘grave risk’ that doing so ‘would expose [her] to physical or psychological harm or otherwise place [her] in an intolerable situation.’ [Citations.] [¶] . . . [¶] . . . . The classic example of when the exception has been applied is where a child had previously been subjected to sexual abuse by the custodial parent. [Citations.]” (Eaddy, supra, at p. 1211.) This exception must be established by clear and convincing evidence. (In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963 [66 Cal.Rptr.2d 586, 593].) Additionally, the foreign court need not return the child if it finds that the child has reached an appropriate age and degree of maturity and objects to being returned. (Tsai-Yi Yang v. Fu-Chiang Tsui (3d Cir. 2007) ___ F.3d ___, 2007 WL 2377463, at p. ___ [pp. 13–14] (Tsai-Yi Yang); Blondin, supra, at p. 247.) The court in In re Marriage of Witherspoon, supra, 155 Cal.App.4th 963, recently discussed this exception, noting: “The importance of this exception is explained in the Perez-Vera Report on the Convention: ‘[T]he Convention also provides that the child’s views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children the possibility of interpreting their own interests.’ [Citation.]” (Id. [66 Cal.Rptr.2d at p. 594].)
Here, the Chilean Supreme Court refused to return the child, finding both that her return would expose her to harm or otherwise place her in an intolerable situation and that her objections to being returned should be taken into account given her age and maturity. These findings constituted exceptions to the requirement of a child’s return under the Hague Convention.
B. Comity
We have not found, nor have the parties cited, a California case assessing the effect of a finding by a foreign court under the Hague Convention that a child abducted in violation of a California joint custody order need not be returned to California. Mother contends that the Chilean ruling is entitled to “full faith and credit” under the Convention. Though not a correct statement of the law—as “full faith and credit” under the Convention applies only to orders of sister states, not foreign countries—the ruling of the Chilean Supreme Court must, nevertheless, be accorded “considerable deference,” under the doctrine of comity. (Diorinou v. Mezitis (2d Cir. 2001) 237 F.3d 133, 142 (Diorinou), italics added; see Miller v. Miller (4th Cir. 2001) 240 F.3d 392, 400 [“‘comity is at the heart of the Hague Convention . . . .’”].) “The doctrine of comity prescribes that a court of this nation recognize the judgment of a court of a foreign nation when the foreign court had proper jurisdiction and enforcement does not prejudice the rights of United States citizens or violate domestic public policy. [Citations.]” (Stephanie M., supra, 7 Cal.4th at p. 314.)
Father made no showing below sufficient for the trial court to withhold comity in this case. That is particularly so because it was Father who initiated the proceedings under the Hague Convention and now refuses to be bound by that result. (See Stephanie M., supra, 7 Cal.4th at p. 314; see also Fam. Code, § 3442 [court may enforce return order under the Convention in same manner as foreign custody order].) There was no record before the trial court to establish that the jurisdiction of the Chilean courts was invalid. As such, proper jurisdiction, the first condition under Stephanie M., supra, 7 Cal.4th at page 314, was satisfied.
Father averred that the Chilean proceedings were a “travesty,” the result “absurd,” and the courts “notorious for prejudice and subject to pay offs.” We recognize that a petitioning parent does not choose the foreign court he is forced to utilize under the Hague Convention. Nevertheless something more concrete is required to substantiate contentions of systemic corruption. Furthermore, we note that Father makes those accusations only as to the Chilean Supreme Court even as he relies upon the rulings of the lower Chilean courts in his arguments.
Likewise, the overriding domestic public policy pertinent to this case is reflected in the Hague Convention and its implementing legislation. (See 42 U.S.C. 11601 et seq.; Fam. Code, § 3442.) Father has not indicated that the specific procedures outlined by the Hague Convention were not followed with respect to his application. Instead, the record reflects that his application followed the normal course anticipated by the treaty, namely, filing with the Department of State, which then coordinated prosecution of the application in the Chilean courts. (See Ariana K., supra, 120 Cal.App.4th at pp. 705–706.) Though Father criticized the foreign discovery procedures, he offered insufficient substantiation that the process employed was so unfair as to warrant no deference to the outcome. For example, he averred that he was not aware of interrogatories served on him and eventually deemed admitted against him for a failure to respond. But he was represented in at least the Chilean First Instance Court, and failed to explain whether his silence in the face of the interrogatories was the result of inherently unfair procedures, a miscommunication with Chilean counsel or the State Department, or inattentiveness on Father’s part. Similarly, Father declared that the evidence relied upon by the Chilean courts was either unreviewed by him, based on hearsay or previously reviewed and apparently discounted by the Los Angeles Court before joint custody was awarded, but those bare contentions are not supported by explanation or citation to the disputed evidence. Nor are we persuaded by Father’s reliance on Ariana K., supra, 120 Cal.App.4th 690 to argue that the trial court’s interest in its orders trumped the Chilean order rendered under the Hague Convention. In that case, the court determined only that the existence and availability of the Hague Convention procedures did not deprive the trial court of jurisdiction to consider the merits of a guardianship petition. (Ariana K., supra, 120 Cal.App.4th at pp. 706–707.) The case did not involve an order issued by a foreign court pursuant to a Hague Convention application and is thus inapposite.
In his points and authorities below, Father’s counsel specified that “Respondent filed an action under the Hague Convention. The U.S. State Department handled the action, hiring a Chilean attorney.”
Finally, while Father may believe his rights were prejudiced by the Chilean Supreme Court order, something more than the adverse ruling itself must be shown before a California court may disregard a foreign order otherwise validly rendered under the Hague Convention. (See Diorinou, supra, 237 F.3d at p. 146.) In particular, Father emphasizes that the Chilean courts found that Mother’s relocation to Chile was wrongful and in derogation of the trial court’s orders. But the finding of a wrongful “abduction” will always be a necessary prelude to the finding that one of the Hague Convention’s defenses to returning the child exists. Were we to find the wrongful abduction a sufficient basis to ignore a foreign no-return order under the Hague Convention, then the Hague Convention’s defenses impermissibly would be rendered a nullity. (See Ariana K., supra, 120 Cal.App.4th at p. 706 [courts must apply “just rules of interpretation” to treaty].)
We hold, therefore, that the trial court erred in failing to recognize the Chilean Supreme Court order that the child need not be returned to California.
C. The Attachment or Alternative Bond
The trial court’s restraint on the distribution of Mother’s inheritance or its alternative requirement of a bond was based on Family Code section 3048, subdivision (b) which authorizes a court to implement measures to prevent a child abduction, including requiring the posting of a bond or imposition of some other financial deterrent. (Fam. Code, § 3048, subds. (b)(1) & (2)(B).) The measures authorized under that statute are expressly characterized as “preventative measures,” designed to be imposed when needed to “prevent the abduction of the child” by one parent. (Fam. Code, § 3048, subd. (b)(2), italics added.) Here, the Chilean Supreme Court determined that there was a factual and legal basis for the child to reside with Mother in Chile and that Mother was not required to return the child to California. The trial court was required to recognize the Chilean Supreme Court order, and therefore had no basis to impose measures designed to prevent conduct expressly authorized by that order. Accordingly, the order restraining distribution of Mother’s funds on the posting of a bond must be reversed.
IV. The Denial of Child Support Was Within the Trial Court’s Discretion
“[A] determination regarding a request for modification of a child support order will be affirmed unless the trial court abused its discretion, and it will be reversed only if prejudicial error is found from examining the record below. [Citation.]” (In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 555.) In Condon, supra, 62 Cal.App.4th 533, the appellate court confirmed that trial courts have discretion to modify support orders when a custodial parent defies a state court order and relocates to a foreign country with the child. The Condon court observed that in the ordinary case, a noncustodial parent’s obligation to pay child support generally remains unaffected by a custodial parent’s violation of court orders, because “[t]o allow noncustodial parents to unilaterally curtail child support payments would risk their children’s well-being and in many cases impose the burden of their support on California taxpayers.” (Condon, supra, at p. 548, fn. 10.) Pertinent here, the court continued: “These considerations do not apply, however, when the custodial parent has moved to a foreign country. If the custodial parent disobeys the California visitation order and defies the jurisdiction of the California courts, the noncustodial parent lacks the ordinary remedy of seeking an enforceable motion to compel in the California courts. [¶] Furthermore, since the children now reside in a country several thousand miles away, California taxpayers no longer bear the risk the loss of child support payments will leave them to the public dole.” (Ibid.)
Here, Mother objects to the order terminating child support on the ground that it is punitive in nature. But as explained in Condon, when custodial parent relocates to a foreign country with a child in violation of a state court order, that parent assumes the risk of the foreign court’s inability to enforce any support order and eliminates the state’s interest in ensuring that the noncustodial parent continues to provide support. The court aptly recognized that an order terminating or reducing child support payments “would be appropriate if the move-away parent sought and obtained foreign court order inconsistent with the California order.” (Condon, supra, 62 Cal.App.4th at p. 548.) Because the precise scenario posed by the Condon court occurred here, we cannot say that the trial court abused its discretion in suspending Father’s child support obligations.
DISPOSITION
The order restraining the distribution of Mother’s inheritance or requiring the posting of a bond is reversed. The order discontinuing Father’s child support obligations is affirmed. Each party to bear its own costs on appeal.
We concur: ASHMANN-GERST, J., CHAVEZ, J.