Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1188601, Denise de Bellefeuille, Judge.
Dawn Willson, in pro. per., for Appellant.
Law Office of Herb Fox, Herb Fox for Respondent.
PERREN, J.
Dawn Willson appeals from a Santa Barbara Superior Court order dismissing her petition for dissolution of marriage and declining to assume jurisdiction to modify a child custody order issued by a Spanish court. We affirm. Under the Uniform Child Custody Jurisdiction and Enforcement Act, Family Code section 3400 et seq. (UCCJEA), the California court had no jurisdiction and was required to dismiss the petition.
All statutory references are to the Family Code.
FACTS AND PROCEDURAL HISTORY
Appellant Dawn Willson (Dawn) and respondent Alex Willson (Alex) were married in May 2001, in Santa Barbara, California. Their daughter, Raquel, was born in Santa Barbara in July 2001. The family resided there until August 2003. In August, the family visited England and, in September 2003, established a residence in Spain. The couple's relationship deteriorated and they separated in March 2004.
On June 2, 2004, while in Spain, Dawn attempted to fax file a petition for legal separation in the Santa Barbara Superior Court. Five days later, on June 7, 2004, Dawn filed a petition for legal separation and custody of Raquel in a court in Vera, Spain. Alex filed a counter-petition in a different Spanish court on June 17, 2004.
The Santa Barbara Superior Court clerk notified Dawn in writing on July 8, 2004, that the petition was not filed because it was defective in several respects. The clerk also informed her that her attempted service on Alex was invalid.
On July 26, 2004, the Spanish court issued an order setting a hearing for October 28, 2004, on Dawn's petition for separation. Dawn failed to appear for the hearing, and her petition was dismissed.
Without Alex's consent, Dawn returned to the United States with Raquel on September 27, 2004. They did not return to California, but instead moved in with Dawn's parents in Eau Claire, Wisconsin. On October 24, 2004, Dawn filed a petition for dissolution in the Eau Claire County circuit court.
In November 2004, Alex filed kidnapping charges against Dawn. The Spanish court issued a summons on January 8, 2005, ordering Dawn to appear in court on January 19, 2005, to answer the charges. The hearing was continued to February 25, 2005. Dawn failed to appear, although she was represented by an attorney at the hearing. The Spanish court issued an order on March 3, 2005, granting physical custody of Raquel to Alex and visitation for Dawn.
On March 14, 2005, Alex filed a petition for return of the child in the Eau Claire circuit court and a motion to dismiss the Wisconsin case for lack of jurisdiction on March 8, 2005. On June 2, 2005, the Wisconsin court issued an order for return of the child. Alex and Raquel returned to Spain that day. Alex and Raquel continue to reside in Spain.
On or about February 27, 2007, Dawn submitted to the Santa Barbara Superior Court an ex parte motion for judge to accept original divorce petition requesting that the petition for legal separation she attempted to file on June 2, 2004, in the Santa Barbara Superior Court be deemed the original divorce petition. In the motion, Dawn did not inform the court of the proceedings pending in the Spanish and Wisconsin courts. On March 14, 2007, the court granted the motion and ordered Alex served with the petition by April 6, 2007.
On April 17, 2007, the Spanish court issued a judgment of dissolution giving permanent physical custody of Raquel to Alex. After a hearing on May 10, 2007, the Santa Barbara court dismissed the case, stating: "After considering the arguments presented and reviewing a translated decree of divorce from Spain granting the dissolution of marriage and making a custody award, this Court rules that the pending petition for dissolution of marriage is dismissed as moot. By petitioner's own declaration the minor child has resided in Spain for the past two years. No previous order regarding custody has ever been issued in California. Her remedy lies with the Spanish Courts. The Court's previous order accepting jurisdiction is vacated." On June 7, 2007, this court denied Dawn's petition for writ of supersedeas and/or prohibition.
In this appeal, Dawn asserts the trial court erred in dismissing her petition because Spain lacked jurisdiction to issue the divorce and custody orders. She argues California is Raquel's "home state," Raquel has a "significant connection" with California, and the Spanish decree was not "registered" in California as required by the UCCJEA.
DISCUSSION
Standard of Review
When reviewing a jurisdictional order under the UCCJEA, an appellate court is not bound by the trial court's findings and may independently reweigh the jurisdictional facts. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1136; In re S.W. (2007) 148 Cal.App.4th 1501, 1508; In re A.C. (2005) 130 Cal.App.4th 854, 860; In re Marriage of Newsome (1998) 68 Cal.App.4th 949, 955-956; Adoption of Zachariah K. (1992) 6 Cal.App.4th 1025, 1034.)
We are aware that another division of this court has stated that a finding of jurisdiction under the UCCJEA is reviewed for substantial evidence or abuse of discretion. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 954.) We respectfully disagree.
The UCCJEA Governs Jurisdiction in Child Custody Cases
The UCCJEA is the exclusive method for determining the proper forum for custody disputes involving other jurisdictions. (In re Angel L., supra, 159 Cal.App.4th at p. 1136.) The UCCJEA's aim is to ensure that only one state will have jurisdiction to adjudicate child custody at any point in time and that a jurisdictionally sound custody order will be recognized and enforced across state and national lines. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 7:80.3, p. 7-26.)
A "'[c]hild custody determination'" is defined as "a judgment, decree, or other order of a court providing for legal custody, physical custody, or visitation with respect to a child." (§ 3402, subd. (c).) For purposes of the UCCJEA's definitional and jurisdictional provisions, a court of this state must "treat a foreign country as if it were a state of the United States . . . ." (§ 3405, subd. (a); see In re Stephanie M. (1994) 7 Cal.4th 295, 310 [UCCJA applies to international custody disputes].) "[A] child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of [the Act] must be . . . enforced" under the Act's enforcement provisions. (§ 3405, subd. (b).) The only exception is that "[a] court of this state need not apply [the UCCJEA] if the child custody law of [the] foreign country violates fundamental principles of human rights." (§ 3405, subd. (c); see, e.g., In re Marriage of Zierenberg (1992) 11 Cal.App.4th 1436, 1444 [UCCJA authorized trial court to enforce Puerto Rico court's order that mother, who had moved to California, return the child to Puerto Rico].)
In 1997, the Uniform Child Custody Jurisdiction Act (UCCJA) was amended and renamed the Uniform Child Custody Jurisdiction and Enforcement Act. Cases interpreting the UCCJA are instructive in deciding cases under the UCCJEA except where the two statutory schemes vary. (In re A.C., supra, 130 Cal.App.4th at p. 860.)
"The UCCJEA takes a strict 'first in time' approach to jurisdiction." (In re Marriage of Paillier (2006) 144 Cal.App.4th 461, 469.) "[S]ubject to exceptions not applicable here . . ., once the court of an appropriate state (Fam. Code, § 3421, subd. (a)) has made a 'child custody determination,' that court obtains 'exclusive, continuing jurisdiction. . . .' (Fam. Code, § 3422, subd. (a).)" The court of another state cannot modify the child custody determination (§§ 3421, subd. (b), 3422, subd. (a), 3423, 3446, subd. (b)), and must enforce it (§§ 3443, 3445, 3446, 3448, 3453). Subject matter jurisdiction either exists or does not exist at the time the action is commenced and cannot be conferred by stipulation, consent, waiver or estoppel. (Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1013-1014, 1015, fn. 5.)
(§§ 3422, subd. (a)(1)-(2), 3423, subds. (a) & (b), 3450, subd. (a)(1)-(2).)
Spain Is Raquel's Home State and the Spanish Court's Order is Valid
Under the UCCJEA, a child's "home state" is the proper forum to adjudicate child custody matters. (In re Marriage of Newsome, supra, 68 Cal.App.4th at pp. 956-957; § 3421, subd. (a)(1).) A child's home state is the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. (§ 3402, subd. (g).) The UCCJEA gives absolute priority jurisdiction to the child's home state in all initial custody adjudications, even in the absence of a pending action in that state. (§ 3421, subds. (a)(2), (b); Newsome, at pp. 957-959.)
Section 3421, subdivision (a)(1) provides: "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."
Here, Spain had jurisdiction to enter the dissolution and custody orders because the evidence shows that Raquel lived in Spain with at least one parent from at least December 17, 2003, to June 17, 2004, when Alex filed his petition in the Spanish court. Despite Dawn's contention that the family went to Spain for a two-month vacation, the record shows that Alex, Dawn and Raquel went to Spain to live in September 2003. The Spanish court's findings of facts in Dawn's June 7, 2004, application for separation state: "The couple established their residence in the Village of Garrucha, Almeria, in September 2003. [¶] Certificate of Registration is attached as Document no. 2." Dawn's judicial admission with respect to Spanish residency is binding on her in this proceeding. (See, e.g., Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 [doctrine of judicial estoppel precludes party from asserting inconsistent facts in a court proceeding].)
Because the record establishes that Spain is Raquel's "home state" and the Spanish court had jurisdiction to issue the dissolution and custody orders, it is unnecessary for us to address Dawn's argument that Raquel has a significant connection with California.
Alex and Raquel have lived in Spain for more than the six-month statutory period required to confer jurisdiction on the Spanish court. The Spanish court had issued valid and enforceable dissolution and custody orders at the time Dawn sought to invoke the jurisdiction of the Santa Barbara Superior Court. That court correctly dismissed her petition. Where, as here, a California court is presented with a child custody dispute and is informed that a court of another state already may have exercised jurisdiction, the proper inquiry is not whether California could exercise jurisdiction but whether the first-in-time court's exercise of jurisdiction was in accordance with the UCCJEA and whether that court continues to exercise jurisdiction. (In re Marriage of Zierenberg, supra, 11 Cal.App.4th at p. 1442.) The record is clear that the Spanish court has exercised such jurisdiction.
Failure to Register the Spanish Order in California Does Not Affect its Validity
Dawn's argument that the Spanish custody decree is not binding is flawed. Under the UCCJEA, "[a] child custody determination issued by a court of another state [or foreign country] may be registered in this state, with or without a simultaneous request for enforcement . . . ." (§§ 3445, 3405.) Once the order is registered, any party may move to enforce it under the UCCJEA. Under section 3443, subdivision (a), a "court of this state shall recognize and enforce a child custody determination of a court of another" if the other court's determination satisfies certain jurisdictional standards. (§ 3443, subd. (a).) Registration and subsequent confirmation by a court precludes further contest of the order with respect to any matter that could have been asserted at the time of the registration. (§ 3445, subd. (c)(3).)
Here, Dawn is not attempting to enforce the Spanish court's custody order, but rather seeks to have it overturned. Therefore, whether the order has been registered is irrelevant.
CONCLUSION
Appellant was the first to invoke the jurisdiction of the Spanish court. Evidently dissatisfied with the direction of the case, she dismissed her action but could not dismiss respondent’s cross-action. That court ultimately issued a thorough and thoughtful order ending the marriage with appropriate child custody and support orders. Unhappy with the result, she sought relief not only in the courts of this state but of Wisconsin as well. In presenting her case it appears that she was less than candid in disclosing the extent of the orders issued by the Spanish court and of the facts that gave rise to its jurisdiction over her.
The order is affirmed. Respondent shall recover costs.
We concur: YEGAN, Acting P.J., COFFEE, J.