Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 100837
Ruvolo, P. J.
Valerie Ann Cooper asks this court to vacate a superior court order dismissing her action for dissolution of marriage. We conclude the court abused its discretion when it did not allow Cooper to amend her pleading. We will direct the superior court to vacate its dismissal order.
BACKGROUND
Valerie (wife) and Christopher (husband) Cooper married in 1995. They moved to California in 2000, and purchased a home in San Mateo in 2001. Their son H. was born in Palo Alto in June 2005.
The Cooper family moved to China in December 2005 when husband accepted a position there with PricewaterhouseCoopers. He committed to spending two to three years in China for his employer.
On September 10, 2008, wife filed a petition for dissolution of marriage in San Mateo County Superior Court. She sought physical custody of H. In a declaration filed under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), she stated the family had moved to Beijing, China in December 2005, but that move had been temporary with no change of residence from their San Mateo home. In a separate declaration, she acknowledged the family had been living in China since that time. She also reported her belief that husband had initiated custody proceedings in China.
Wife sought an ex parte order seeking to secure H.’s presence in California. She represented to the court that she had flown to California on September 8, 2008 (presumably from China), and that she expected husband and H. to arrive in California on September 14, 2008.
The court issued a temporary order for H.’s return to California “forthwith.”
Husband and H. did not make the trip to California. Instead, husband moved to quash the summons and the proceedings. He argued the court had no jurisdiction over the status of the marriage because neither party was a resident (domiciled) in California. (See Fam. Code, § 2320 [no judgment of dissolution unless one of the parties is a resident of the state for 6 months and of the county for 3 months].) He further asserted the court could not exercise personal jurisdiction over him. He opposed the court’s temporary order.
The term “resident” as used in Family Code section 2320 is synonymous with domicile. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 3:69.1, p. 3-35 (rev. #1, 2006).)
Wife filed a response in which she asked the court to renew the order to return H. to California immediately. She further asked the court to impose sanctions on husband for failure to comply with the temporary order, and to freeze his United States bank accounts.
On September 30, 2008, the court continued a hearing on husband’s motion to quash and on wife’s various requests, but it did issue an order freezing all assets or funds on deposit owned by either party at “Citibank NA” and its subsidiaries.
By the time of the continued proceedings on October 8, 2008, the parties had each submitted multiple declarations and exhibits in support of their respective positions. Husband’s evidence purported to show the parties were domiciled in China and that a court proceeding pending in that country was the appropriate forum to resolve the issue of custody. Wife’s evidence purported to show the parties’ domicile was San Mateo, California, and that she could not obtain a fair adjudication in a Chinese court.
At the hearing the court observed the domicile issue was a “very close question,” but that a decision by husband earlier in the year to accept new employment in China tipped the balance in favor of finding the parties were residents of China and thus not subject to the jurisdiction of the court. The court disagreed with wife’s observation that custody jurisdiction under the UCCJEA remained to be litigated. The court, however, indicated it was amenable to wife filing an amended complaint for legal separation, after which the court could “take a look at the requirements of the UCCJEA.” The court indicated the fairness of the Chinese courts would be at issue. Inexplicably, however, the court proceeded to dismiss the action and dissolve its temporary orders.
Wife filed a petition for extraordinary relief in this court. This court issued a stay of the trial court’s order and asked for opposition from husband. After considering the opposition and additional briefing submitted by the parties, we conclude the issuance of a peremptory writ in the first instance is appropriate as the petition may be decided under settled legal principles, and the issue we resolve does not turn on disputed facts. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1259-1260.)
DISCUSSION
Wife concedes the dismissal order can be reviewed on appeal. (See, e.g., In re Marriage of Thornton (1982) 135 Cal.App.3d 500.) She nevertheless urges this court to review this matter by way of extraordinary writ given the urgency of the situation. She believes she will not be able to see her son while an appeal is pending, and she fears husband may obtain a wholly inequitable custody order from a Chinese court in the interim.
We agree this matter needs urgent attention. To that end, we believe the most expeditious way to resolve this matter is to put it back on the track it should have followed—an amendment to the original pleading and litigation of the pertinent UCCJEA issues.
UCCJEA issues may be litigated in a legal separation proceeding. (Fam. Code, § 3402, subd. (d); see Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 7:82, p. 7-25 (rev. #1, 2008).) Further, custody may be determined under the UCCJEA without regard to the physical presence of, or personal jurisdiction over, the parties. (Fam. Code, § 3421, subd. (c).) Among the most pressing issues is the question as to whether China is an appropriate forum to resolve this custody dispute. (See Shao v. Ma (2007) 861 N.E.2d 788, 793-794 [whether custody law of China is substantively comparable to U.S. law is “far from certain”].) A subsidiary a question is why a Chinese court would be interested in resolving a custody dispute in which all parties (including the child) are United States citizens, and in which, based on the record before us, none has taken any steps to become a Chinese citizen.
The parties have represented to this court that wife has filed an amended petition, but that it remains in limbo given the dismissal of the underlying action. In addition, wife has expressed concern that merely allowing her to proceed on her amended pleading will lead to husband arguing he must be re-served under Chinese law, a difficult task at best, and that in the meantime the temporary orders will dissolve.
We do not purport to know what issues and arguments the parties will raise during further trial court proceedings, but our intent is to vacate the dismissal and to place the parties in the procedural posture they would have been in had the court granted leave to amend at the October 8, 2008 hearing. (See Cal. Rules of Court, rule 5.121(e) [when motion to quash is granted, the court may grant leave to amend].) Wife’s post-dismissal amended petition should be treated as an amendment to the original petition. As for the temporary orders, they should remain in place pending a new hearing, which should occur as soon as possible.
Husband suggests, citing Family Code section 242, that the trial court’s temporary orders would have automatically dissolved even if the trial court had granted leave to amend. Husband may make the argument to the trial court on remand.
Wife has urged us to review and overturn the trial court’s ruling on the parties’ domicile. We decline to review the issue at this time. Wife may pursue the issue on appeal if she wishes, though we hasten to add we are not encouraging such an appeal. Notwithstanding her claim that the issue may be decided as a matter of law, we believe the issue presents a question of fact (see In re Marriage of Dick (1993) 15 Cal.App.4th 144, 153), reviewed under the substantial evidence standard. Attacking an order under that standard is not an enviable task.
DISPOSITION
Let a peremptory writ of mandate issue directing the trial court to vacate its October 8, 2008 order dismissing the underlying action and voiding the temporary orders. The court shall conduct a new hearing on the propriety of the temporary orders and the relevant UCCJEA jurisdictional issues as soon as possible.
Wife shall recover her costs for this proceeding. (Cal. Rules of Court, rule 8.490(m)(1)(A).) This decision shall be final as to this court immediately upon filing. (See rule 8.264(b)(3).) The stay previously imposed by this court shall remain in effect until the trial court complies with the peremptory writ, at which time the stay will dissolve.
We concur: Sepulveda, J., Rivera, J.