Opinion
A131047
11-15-2011
In re the Marriage of JUSTINE DODDS and JAMAL KADDOURA. JUSTINE DODDS, Respondent, v. JAMAL KADDOURA, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. VF3123038A)
Jamal Kaddoura, in propria persona, appeals from an order denying his motion for reconsideration of his request to modify a child custody order and transferring jurisdiction of the matter to Massachusetts. He contends that the trial court abused its discretion in denying his motion and that it erred in transferring the case to Massachusetts. We affirm.
I. FACTUAL BACKGROUND
The parties' marriage was dissolved on December 30, 2005. The parties have two children, born July 2000 and July 2002. The parties agreed that Dodds, the children's mother, would have primary physical custody of the children and that they would reside in Massachusetts. Dodds and the children have resided in Massachusetts since 2004. On May 22, 2009, following extensive settlement negotiations, the parties reached an agreement on custody and visitation. The agreement provided that the parties would share legal and physical custody of the children with Dodds having primary physical custody and Kaddoura having regularly scheduled visitation. In particular, as pertinent here, the agreement was specific as to summer visits. "Beginning in 2009 and continuing until further order of the court, the children shall be with their father from July 2nd-July 31st, unless the children's vacation [ ] with their mother and her family commences prior to August 3, then the visit shall end at least 2 full days prior to the commencement of the Cape Cod vacation. The purpose of this two day break is to allow the children some time to transition to their next vacation and readjust to east coast time, etc. The parents shall inform each other of their flight plans at least 7 days in advance and shall confirm those plans by e-mail. Mother shall inform Father in writing by January 1 of each year of the date of the Cape Cod trip. Each year, the children will have the entire month of August with their mother."
In the summer of 2010, there was an issue concerning Kaddoura's timely return of the children. Dodds filed an action for contempt in Massachusetts. Kaddoura returned the children on July 31, 2010.
On August 25, 2010, Kaddoura moved to clarify the language in the agreement concerning return of the children following their visit in California. He argued that the phrase "prior to August 3" was ambiguous and sought to modify the language to ensure the children were with him from July 2 to July 31 of each year. On October 13, 2010, the court denied the motion, finding that the language of the agreement was clear. That same day, Kaddoura filed another motion seeking an order allowing the children to fly unaccompanied from Boston to Oakland for their summer visit, requiring Dodds to provide her home telephone number to facilitate his telephone calls with the children, and requiring her to allow web cam access during weekend calls.
On October 28, 2010, Kaddoura filed a motion for reconsideration of the court's October 13, 2010 order. He sought an order clarifying that the language, "prior to August 3rd," meant August 1 or 2. On November 4, 2010, the court, on its own motion, set January 25, 2011 as the date to hear both Kaddoura's new motion ("kid's flight, web-cam, mother home phone") and his motion for reconsideration. The court also, on its own motion, set a third motion to be considered on that date, viz., whether the case should be transferred to Massachusetts as a more convenient forum under Family Code section 3427.
Kaddoura thereafter moved to disqualify Judge Vilardi pursuant to Code of Procedure section 170.6 contending that she was biased against him. The court denied the motion, ruling that if it was a challenge for cause, it was not properly served and that Kaddoura had nonetheless not set forth a legal basis for disqualification. The court denied Kaddoura's motion for a peremptory challenge pursuant to section 170.6, noting that the right to disqualify the court under that section was extinguished since the court had already issued several rulings relating to the merits of the case.
On January 25, 2011, the court held a hearing on Kaddoura's motions and also considered the issue of whether California was an inconvenient forum for this case. Dodds appeared by telephone. The court denied the motion for reconsideration pursuant to Code of Civil Procedure section 1008, finding that Kaddoura failed to set forth any new facts, new law, or changed circumstances to merit a different result. As to Kaddoura's motion concerning telephone calls, web cam access and the children's travel, the court ordered that telephone calls between Kaddoura and the children would be on Tuesdays and Thursdays between 7:00 p.m. and 7:15 p.m. and that webcam calls would occur on Saturdays between 7:00 p.m. and 7:15 p.m. The court declined to order unaccompanied travel for the children without prejudice to renewal of the motion in the future. Finally, the court found that Massachusetts was the more convenient forum based on several factors including the history of domestic violence in the case, the length of time the children have resided in Massachusetts, and that relevant witnesses, evidence concerning the children's education, medical issues, counseling, and extracurricular activities would be found there. The court therefore stayed proceedings in the case for 45 days to permit Dodds the opportunity to commence proceedings in Massachusetts.
II. DISCUSSION
Kaddoura contends that the court erred and showed bias by not ordering Dodds to provide her home telephone number so he could call the children. On the record before us, we cannot conclude that the court abused its discretion. The court, upon being apprised of Kaddoura's difficulties in communicating with his children, ordered that calls were to be made on Tuesdays and Thursdays at a set time between 7:00 p.m. and 7:15 p.m. and that Kaddoura would have webcam access with the children on Saturdays between 7:00 p.m. and 7:15 p.m. This set schedule is designed to avoid the problems Kaddoura has had in reaching his children by telephone. We perceive no error in the court's order.
Kaddoura also argues that the court erred in denying his motion for reconsideration. He asserts that the court failed to explain how the order was clear as to any date. He also contends that the court did not permit him to present any new evidence. The record reflects that Kaddoura argued the motion at the January 25, 2011, hearing but did not proffer any new evidence for the court's consideration and simply reargued his earlier motion for clarification of the language in the agreement. As the court found, Kaddoura failed to raise any new or different facts, circumstances or law to support reconsideration of the order. (See Code Civ. Proc., § 1008, subd. (a) .) Accordingly, under Code of Civil Procedure section 1008, the court properly denied the motion.
Subdivision (a) of section 1008 of the Code of Civil Procedure provides: "When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown."
We note that the language, "prior to August 3" is not ambiguous and that the record reflects that the parties understood the language and its intent to provide Kaddoura with his summer visit while enabling the children to have a two day transition period before their annual vacation with Dodds in Cape Cod.
Kaddoura next contends that the court erred in raising the issue of transferring the case to Massachusetts on its own motion.
Family Code section 3427 specifically provides that the court, on its own motion, can raise the issue of whether it should decline to exercise jurisdiction on a child custody determination because it is an inconvenient forum. (Fam. Code, § 3427, subd. (a).) "The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court." (Ibid.) In making the determination of whether it is an inconvenient forum, a court must consider all relevant factors including: "(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child. [¶] (2) The length of time the child has resided outside this state. [¶] (3) The distance between the court in this state and the court in the state that would assume jurisdiction. [¶] (4) The degree of financial hardship to the parties in litigating in one forum over the other. [¶] (5) Any agreement of the parties as to which state should assume jurisdiction. [¶] (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child. [¶] (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence. [¶] (8) The familiarity of the court of each state with the facts and issues in the pending litigation." (Family Code, §3427.) If the court determines that it is an inconvenient forum, it shall stay proceedings upon the condition that a child custody proceeding be commenced in the more appropriate forum. (Family Code, § 3427, subd. (c).) "Whether a trial court stays its proceedings [under section 3427] is purely discretionary, and the ruling will not be disturbed on appeal unless there was a clear abuse of discretion." (In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 513.)
Here, the court determined that Massachusetts is the more convenient forum. It reasoned that "[w]hile the existence of a history of domestic violence is the first consideration in the statute, and there is such a history in this case, I think the more relevant consideration is the length of time that the minors have resided outside of California. It does mean that all of the witnesses and evidence and testimony about their schooling, any counseling issues[,] about extracurricular activities, their medical treatment, everything about the children is going to be found where they reside, which is why that's such a high-has such a high place in the priority. . . ." The court acknowledged the long history of the case in California, but noted that there was no guarantee the same bench officer would be assigned the case in the future and the court was confident that a Massachusetts court would be able to address issues that may arise in the case.
The court did not abuse its discretion in finding Massachusetts to be the more appropriate forum. It considered the relevant factors listed in Family Code section 3427 and found that they predominated in favor of declaring Massachusetts to be a more convenient forum. Given the factors militating in favor of transferring the cause including that Dodds and the children have resided in Massachusetts for more than seven years, that the evidence concerning the children is available there, and the fact that Kaddoura spends time in Massachusetts to visit with the children pursuant to the agreement, we cannot conclude that the court abused its discretion.
Pieri v. Superior Court (1991) 1 Cal.App.4th 114, relied upon by Kaddoura, is distinguishable. In Pieri, there were circumstances that prevented the non-custodial parent's ability to maintain contact with his son, who lived in Switzerland with the custodial parent. (Id. at pp. 116-117.) The appellate court held that the trial court did not abuse its discretion in retaining jurisdiction of the child custody matter because evidence pertinent to the issue of non-custodial parent's ability to maintain contact with his son and otherwise obtain the benefits of his custody agreement were more readily available in California. (Id. at pp. 120-122.) Here, by contrast, the court concluded that the relevant evidence was present in Massachusetts and that other circumstances including the children's residence in Massachusetts favored a finding that California was an inconvenient forum.
Finally, Kaddoura argues that the court was biased against him. While Kaddoura moved to challenge Judge Vilardi below, he did not seek review of the orders denying his disqualification motions by filing a petition for writ of mandate. Litigants challenging denial of a judicial disqualification motion, whether a peremptory challenge under Code of Civil Procedure section 170.6 or a challenge for cause, are required to seek mandate as provided in Code of Civil Procedure section 170.3, subdivision (d). This expedited procedure is the exclusive means for reviewing an unsuccessful challenge. (People v. Webb (1993) 6 Cal.4th 494, 522-523; People v. Hull (1991) 1 Cal.4th 266, 268.) Having failed to seek mandate, Kaddoura cannot now litigate the disqualification issues on appeal.
"The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought . . ." within 10 days of notice to the parties of the decision and only by the parties to the proceeding. (§170.3, subd. (d).)
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III. DISPOSITION
The order is affirmed.
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RIVERA, J.
We concur:
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RUVOLO, P. J.
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SEPULVEDA, J.