Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Imperial County, Super. Ct. No. EFL06155 Barrett J. Foerster, Judge.
McINTYRE, J.
Alma Trabanino appeals a family law court's order transferring this matter to Arizona after it determined that California was an inconvenient forum in which to decide all issues including custody and visitation as to her two children with Salvador Trabanino. (Fam. Code, § 3427, all undesignated statutory references are to the Family Code.) Alma contends the court erred by concluding that California was (1) not the children's home state under the Uniform Child Custody Jurisdiction and Enforcement Act (the Act) and (2) an inconvenient forum. We agree with the trial court's finding that neither California nor Arizona qualified as the children's home state, but conclude that the trial court abused its discretion when it relinquished jurisdiction to Arizona.
FACTUAL AND PROCEDURAL BACKGROUND
Alma married Salvador in 1995; they had two children and the family resided in Chula Vista, California where the couple owned a home. In March 2006, Salvador, an employee of the Department of Homeland Security, Immigration and Customs Enforcement, transferred his job to Arizona, moved there and purchased a home. In October 2006, Alma and the children moved to Arizona and lived there until January 20, 2007, when Alma separated from Salvador and took the children, without Salvador's knowledge, to El Centro, California where her parents lived. (All further dates are in 2007.)
On January 23, Alma filed an application in Imperial County seeking a domestic violence restraining order against Salvador. Her supporting declaration asserted that Salvador threatened to kill her when he learned that she had left with the children. She also claimed that Salvador disciplined their nine-year-old daughter with a belt when she misbehaved and threatened to kidnap the children and take them to Honduras. The trial court issued a temporary order requiring Salvador to stay away and giving Alma physical and legal custody of the children. A few days later, Alma filed a petition for a legal separation from Salvador.
Salvador moved to rescind the temporary restraining order on the ground the trial court lacked jurisdiction, claiming that Arizona had jurisdiction for all purposes. The trial court denied the motion and held that it had temporary emergency jurisdiction under the Act. (§ 3424.) After learning that Salvador had filed for divorce in Arizona, the trial court set the matter for hearing and indicated it would discuss the matter with the Arizona court. The trial court held a hearing on Alma's OSC for domestic violence and two teleconferences with the Arizona court. The two courts decided that both states had jurisdiction and Arizona was a more convenient forum, but allowed the parties to brief the inconvenient forum issue. After an additional hearing with the Arizona court, the trial court concluded that the children had no home state and that Arizona was the more convenient jurisdiction. The trial court ordered that the Arizona court would hear the case and maintained the restraining order and visitation orders.
Alma filed a notice of appeal and a petition for a writ of supersede as asking this court to stay the transfer of jurisdiction. We granted the petition and stayed transfer of the matter to Arizona until further order of this court and ordered an expedited appeal. Salvador filed a notice indicating that he disagreed with the relief sought, but would not file a responsive brief. We denied permission to the Center for Community Solutions and Legal Resource Center on Violence Against Women to file an amicus curiae brief in support of Alma's appeal.
I. Jurisdiction Under the Act
The Act is a uniform statute that has been adopted by numerous states, including California and Arizona, to create consistency in interstate child custody jurisdiction and enforcement proceedings. (§§ 3400 et seq.; Ariz. Rev. Stat. §§ 25-1001 et seq.) The instant domestic violence proceeding is a child custody proceeding within the Act's purview. (§ 3402, subd. (d).) The Act is the exclusive method for determining subject matter jurisdiction in this action (In re Claudia S. (2005) 131 Cal.App.4th 236, 245) and subject matter jurisdiction either existed or did not exist at the time the action was commenced. (Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1015, fn. 5.) As a reviewing court, we are not bound by the trial court's findings regarding subject matter jurisdiction and we independently reweigh the jurisdictional facts. (In re S.W. (2007) 148 Cal.App.4th 1501, 1508.)
There are four bases upon which California may assume jurisdiction to make an initial child custody determination: (1) California is the child's "home state"; (2) if there is no home state, the child and at least one parent have a "significant connection" to California, which is also the state where "substantial evidence" is available on the issue of the child's welfare; (3) another state has declined jurisdiction on the ground that California is the more appropriate forum; or (4) no other state has jurisdiction under the foregoing tests. (§ 3421, subd. (a).) A child's "home state" is defined as "the state in which [the] 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).)
The evidence shows that the children lived in California, moved to Arizona in October 2006 and lived there until January 20, 2007, when Alma returned them to California and then filed this action three days later. Because the children had not lived in either Arizona or California "for at least six consecutive months immediately before the commencement of [the] child custody proceeding," neither state acquired home state jurisdiction. (§ 3402, subd. (g).) Thus, the trial court correctly determined that neither state qualified as the children's home state, but it erroneously ended the analysis after making this determination.
Under the "significant connection" and "substantial evidence" provision of the Act, California may still have jurisdiction if: "(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," and "(B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships." (§ 3421, subd. (a)(2).) A significant connection requires "maximum rather than minimum contacts with the state." (Plas v. Superior Court, supra, 155 Cal.App.3d at p. 1016.)
The evidence established that Alma and Salvador raised the children in California since 2000 and the children lived here until Alma moved them to Arizona in October 2006. The children lived in Arizona for about three months, when Alma separated from Salvador and moved them back to California to live near her parents in El Centro. Based on these respective time periods, it is clear that the children and Alma have a "significant connection" with California other than their mere physical presence and that significant evidence is available in California concerning the children's care, protection, training, and personal relationships because the children lived in California for six years. Although Salvador presented a lengthy witness list and numerous declarations to establish his good character and relationship with his children, more relevant evidence concerning the custody dispute, particularly Salvador's relationship with Alma and the children, is available in California where the children currently reside and the family lived for many years. Accordingly, subject matter jurisdiction existed in California under section 3421, subdivision (a)(2) at the time Alma commenced this action and California has exclusive continuing jurisdiction over the matter. (§ 3422.)
II. Inconvenient Forum Determination
A court having jurisdiction under the Act may decline to exercise its jurisdiction if it finds it is an inconvenient forum under the circumstances (§ 3427) or because a person seeking to invoke its jurisdiction has "engaged in unjustifiable conduct" (§ 3428, subd. (a)). As a threshold matter, our review of the record indicates that one of the seminal issues in the case was the veracity of Alma's domestic violence claims and whether she alleged domestic violence as a mere pretext to avoid being accused of kidnapping when she removed the children from Arizona without Salvador's knowledge. The trial court held an evidentiary hearing on Alma's claims and concluded that there was "rather overwhelming credible evidence" that the incidents Alma alleged took place and granted a one-year restraining order against Salvador. Salvador did not file a notice of appeal and the propriety of that order is not before us.
The only question before this court is whether the trial court abused its discretion when it found California to be an inconvenient forum and relinquished jurisdiction to Arizona. (In re Stephanie M. (1994) 7 Cal.4th 295, 311-312.) Factors relevant to the forum non conveniens determination include the following:
"(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." (§ 3427, subd. (b).)
The trial court allowed the parties to brief this issue, held a hearing on the matter in which the Arizona court participated and reviewed the relevant factors before deciding that Arizona was the more convenient forum. Because the trial court's decision involved factual matters, we must evaluate the factual basis for the trial court's exercise of discretion, which is similar to analyzing the sufficiency of the evidence for the ruling. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground as noted in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) We address the trial court's findings on each factor seriatim.
Without any discussion, the trial court noted that the domestic violence occurred in Arizona. While this may be a correct statement of the facts, the question is not where the domestic violence occurred, but rather which state could best protect the parties and the children. (§ 3427, subd. (b)(1).) Although the California court has already held a trial on the domestic violence issue and subjected Salvador to a one-year restraining order, Arizona law accords such an order full faith and credit as if it had been issued in Arizona for as long as the order is effective in California. (Ariz. Rev. Stat. § 13-3602(S).) Thus, it appears that both states are equal on this factor.
On the issue of the length of time the children had resided outside of California (§ 3427, subd. (b)(2)), the trial court stated that the evidence was ambiguous and treated the factor as being equal between California and Arizona. The evidence, however, was not ambiguous. Other than short periods of vacation time, it was undisputed that the children grew up in California and spent only three months in Arizona. Thus, the evidence on this factor favored California.
There was no agreement between the parties as to which state should assume jurisdiction (§ 3427, subd. (b)(5)) and the trial court noted that, geographically, the respective courts in Arizona and California were close and treated that factor as equal. (§ 3427, subd. (b)(3).)
As to the degree of financial hardship to the parties in litigating in one forum over the other (§ 3427, subd. (b)(4)), the trial court noted that Alma had no income, but found that the hardship to the parties of litigating in California was equal. Later in the hearing, the trial court found that Salvador had a large enough income to hire people to interview the children in California. The trial court's conclusion that the financial hardship was equal makes little sense given its factual findings regarding the party's respective resources and the evidence on this factor favored California.
In evaluating the nature and location of the evidence required to resolve the pending litigation (including testimony of the children) (§ 3427, subd. (b)(6)), the trial court indicated that there would be no more than four witnesses including the parties and that the older nine-year-old child could be interviewed, as it had previously done. It also noted that it did not have a counselor or psychologist available, but that it could refer the matter to the probation department to conduct a child custody evaluation or hire a psychologist to hear the case. After noting that the Arizona court had a service that interviewed children, it concluded that this factor weighed in Arizona's favor because of the limited resources of the court and the county it was in.
As a threshold matter, the limited resources of Imperial County are not a factor in deciding where this matter should be litigated. As the trial court noted, it has the authority to appoint an investigator, including a probation officer, to examine the health, safety, welfare, and best interests of the children. (§ 3110 et seq.; Cal. Rules of Court, rule 5.220; Imperial County Super. Ct. Local Rules, rule 5.10.) Where, as here, one party resides in another jurisdiction, the investigator may cooperate with professionals in the other jurisdiction for assistance in gathering information (Cal. Rules of Court, rule 5.220(f)) and every court is required to develop procedures for expeditious and cost-effective cross-examination of evaluators, including video conferences, telephone conferences, audio or video examination and scheduling of appearances. (Cal. Rules of Court, rule 5.220(i).) Furthermore, the cost of the investigator can be allocated between the parties. (§ 3112; Cal. Rules of Court, rule 5.220(d)(1)(D); Imperial County Super. Ct. Local Rules, rule 5.10.)
When looked at properly, this factor appears equal because Arizona has similar provisions in place regarding the appointment of investigators in child custody proceedings. (Ariz. Rev. Stat. §§ 25-405 et seq.) Additionally, the Act (adopted in both states) provides the means of mitigating the inconvenience to witnesses and parties living outside the forum state. The trial court may direct that evidence be taken by deposition outside the forum state (§ 3411, subd. (a)) and may permit an out-of-state resident to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in the other state. (§ 3411, subd. (b).) Also, either court can request that the other hold an evidentiary hearing, order a person to produce or give evidence, order that an evaluation be made with respect to the custody of a child and forward a certified copy of the transcript of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request. (§ 3412, subd. (a).)
On the final two factors regarding the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence (§ 3427, subd. (b)(7)) and the familiarity of the court of each state with the facts and issues in the pending litigation (§ 3427, subd. (b)(8)), the trial court found that California had the advantage as to the domestic violence issue and was more familiar with the case, but that Arizona could catch up quickly and ultimately found that the states were equal. The trial court believed that Arizona had the advantage in getting the case heard the earliest because it could hear the matter in seven months, whereas the Arizona court could hear the matter in four months. Ultimately, the trial court thought it would be more convenient to hear the matter in Arizona because it would be most expeditious and entered an order to that effect.
As discussed above, both jurisdictions have procedures in place to decide the custody issue conveniently and expeditiously. The trial court correctly noted that California was more familiar with the facts and issues in the case, but discounted this factor stating that the Arizona court could "catch up." By discounting its finding that California was more familiar with the action, the trial court essentially nullified a factor that the Legislature required it to evaluate. While the Arizona court could undoubtedly "catch up" over time, the process of doing so rendered the three-month difference in getting the matter to trial inconsequential.
In summary, the trial court's conclusions on three of the factors (§ 3427, subd. (b)(2), (4) & (8)) conflicted with its factual findings and supported retention of this matter in California. The evidence on the remaining five factors stood in relative equipoise and did not support relinquishing jurisdiction to Arizona. On this record, we conclude that the trial court did not have an adequate factual basis to determine that Arizona was a more convenient forum and reverse the order transferring this matter to Arizona.
DISPOSITION
The order transferring jurisdiction of this matter to Arizona is reversed.
WE CONCUR: BENKE, Acting P.J., HUFFMAN, J.