Opinion
G056461
03-10-2020
In re Marriage of MASANOBU SHINOZUKA and MARIA FENG. MASANOBU SHINOZUKA, Respondent, v. MARIA FENG, Appellant, HITTELMAN STRUNK LAW GROUP, LLP, Real Party in Interest.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Appellant. Serbin & Carmeli and Michele Carmeli for Real Party in Interest Hittelman Strunk Law Group.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17D004015) OPINION Appeal from an order of the Superior Court of Orange County, Michael J. Naughton, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Appellant. Serbin & Carmeli and Michele Carmeli for Real Party in Interest Hittelman Strunk Law Group.
I. INTRODUCTION
Masanobu Shinozuka (Masanobu) had been a brilliant professor of civil engineering. He taught at both Columbia and UCI until he retired in May 2016. He was an expert in earthquake engineering and a wealthy man. He and his second wife, Maria Feng (Maria), also a professor of civil engineering at Columbia and UCI, accumulated an estate worth around $15 million. But by January 2017, at least two UCI-connected doctors had opined Masanobu, at age 85, was suffering from dementia.
Masanobu had been living with Maria at their home in Newport Coast for about six months. But his daughter from his first marriage and his daughter-in-law thought he was being badly cared for by Maria. Maria, for her part, was worried the daughter and daughter-in-law were out to raid Masanobu's fortune. On April 27, 2017, the daughter and daughter-in-law took Masanobu, over Maria's protests, from his Newport Beach residence to their home in New Jersey. Less than three weeks later, Masanobu filed a petition for dissolution of his marriage to Maria in Orange County Superior Court.
Our record in this appeal is the story of Maria's legal efforts over the next year and half to prevent a court from entering a judgment of dissolution of her marriage before Masanobu's death. Those efforts included: (1) an elder abuse action filed in Orange County Superior Court; (2) a separate conservatorship action also filed in Orange County Superior Court; (3) a motion to quash Masanobu's dissolution petition in Orange County Superior Court on the ground he was mentally incompetent to file the petition in the first place, and, finally, (4) the subject of this appeal, a second motion to quash the dissolution petition on the ground of noncompliance with Family Code section 2320.
All further statutory references are to the Family Code unless otherwise indicated.
Section 2320 provides that no judgment of dissolution may be entered unless "one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition." Maria's theory is that neither she nor Masanobu was a resident of California on the date he filed his petition for dissolution, May 15, 2017. According to Maria, the family law court therefore had no subject matter jurisdiction to enter any orders in Masanobu's dissolution action other than to dismiss the case.
Three California Supreme Court cases construing the predecessor to section 2320 say noncompliance with the statute is not jurisdictional and any objection to its noncompliance can be waived. As we show below, Maria waived her objection based on noncompliance with section 2320 in two undeniable ways: (1) she made her motion too late and (2) she judicially estopped herself from contesting the factual issue of residency by swearing to Masanobu's and her own California residency multiple times. We therefore affirm the trial court's order denying Maria's motion to quash Masanobu's petition based on section 2320.
II. BACKGROUND
There is no dispute that as of April 27, 2017, Masanobu was living in a home on Twilight Bluff in Newport Coast, California. He had taken up residence there in June 2016, upon his retirement from Columbia. But Maria had moved her sister and her sister's husband into the house as well. In Masanobu's words, Maria "left me to live in a smaller room in my own home, while they lived in the majority of the house." Maria neglected Masanobu to the point where she missed more than 10 doctor appointments.
What exactly happened on April 27, 2017, when Masanobu was removed from his home in Newport Coast is a matter of dispute. Was it an abduction or a rescue? According to a declaration prepared for Masanobu in a conservatorship action, he had already decided he "no longer wanted to live in California and instead wanted to move to New Jersey permanently." He said he asked his children to "assist" him. According to Maria, his daughter Megumi and his daughter-in law Rei simply showed up at the Twilight Bluff residence unannounced, said they were taking him to lunch, then, seven hours later, returned to gather his belongings while keeping him locked in the car. The whole group then left for New Jersey.
Two and a half weeks later, on May 15, 2017, Masanobu filed a petition in Orange County Superior Court (case No. 17D004015 ("the Dissolution action")) to dissolve his marriage with Maria. The petition did not list a date of marriage and gave April 26 - the day before the move to New Jersey - as the date of separation. Maria immediately reacted on three separate legal fronts:
First, on May 25, 2017, Maria filed an elder abuse case (case No. 30-2017-00922670 ("the Elder Abuse action")) in Orange County Superior Court, alleging Masanobu had been removed from his home "over the objections of his wife" when he was "suffering from Severe Dementia." Maria asserted the court had jurisdiction, stating, under penalty of perjury, that "[Masanobu] is a California resident, as confirmed by the Petition for Dissolution, and he is also a registered voter in California. [Masanobu] and I jointly own our home and other properties in California. Therefore, jurisdiction lies properly with this court."
Second, on June 5, 2017, in the Dissolution action, instead of filing a standard response to Masanobu's petition, Maria filed a motion to quash Masanobu's dissolution petition for lack of mental competency on Masanobu's part ("Quash 1"). She alleged Masanobu's signatures on the petition for dissolution were forged.
And third, on June 26, 2017, Maria filed a petition to impose a formal conservatorship on Masanobu (case No. 30-2017-00928104 ("the Conservatorship action")). This was five days after the Elder Abuse action had been dismissed because the trial judge in the case determined the court had no jurisdiction since Masanobu was then physically in New Jersey.
As in the Elder Abuse action, Maria's petition in the Conservatorship action - again signed under penalty of perjury - alleged that Masanobu was a resident of California, living on Twilight Bluff in Newport Coast. Her petition accused Megumi and Rei of "abducting the Proposed Conservatee from his home in California and removing him to New Jersey[.]" It asked the court to "return him to his California residence in Orange County." Maria herself was the proposed conservator, and she gave as her address the same address on Twilight Bluff her petition asserted was also Masanobu's residence.
Masanobu counterattacked on the two remaining legal fronts in late June and early July 2017. First, in the Dissolution action, Masanobu's attorneys sought money to fund his forthcoming divorce. Specifically, in late June 2017, Masanobu sought access to funds from which he claimed Maria had locked him out. His counsel filed a request for order (RFO) seeking return of Masanobu's identification cards, an accounting of his retirement income then under Maria's control, and an order changing his direct deposits to accounts in his, not Maria's, control. Masanobu's counsel followed up the next month by filing an amended petition in the Dissolution action giving a slightly different date of separation - now April 27 instead of the original April 26 - and filling in the date of marriage (October 15, 1996).
The second counterattack was in the Conservatorship action. Masanobu opposed the appointment of Maria as his conservator. To that end, on July 7, 2017, Attorney Payson Lederman, then purporting to represent Masanobu, prepared a declaration. The declaration was verified but not signed by Masanobu, and it would later form the core of Maria's appeal in the present action. We say "purporting" to represent Masanobu because Attorney Lederman wasn't in the Conservatorship action for very long - less than one week according to the filings in our record - before he was removed by the judge in the Conservatorship action.
Lederman's first appearance in the Conservatorship action was on July 7, 2017, with the filing of the declaration, verified-but-not-signed by Masanobu. By July 12, 2017, the judge in the Conservatorship action had rejected Lederman's claim to represent Masanobu and instead had appointed different counsel. This court summarily denied Lederman's writ petition to remain in the case.
But it was the declaration Lederman prepared that would supply the grist for this appeal. After relating how Maria had neglected him in Newport Coast, Masanobu asserted an intention to remain in New Jersey permanently, not just stay there temporarily: "Eventually, I decided for sure that I no longer wanted to live in California and instead wanted to move to New Jersey permanently. I also realized that I no longer wanted to be married to Maria. I asked my children to assist me in moving to New Jersey and on April 27, 2017, they came to get me." The court in the Conservatorship action denied Maria's request for appointment as Masanobu's temporary conservator, though she continued to seek a permanent appointment.
Back on the Dissolution front, on August 9, 2017, Masanobu's attorneys had taken Maria's default on the July 5 amended petition. About a month later, the two sides stipulated to having the default vacated, "pending a ruling" on Maria's Quash 1 motion. Additionally, on September 1, 2017, Maria agreed to advance $85,000 to Masanobu's attorneys (Hittelman Strunk Lawgroup) for pendente lite attorney fees and costs. It would be more than half a year before the family law court would rule on Quash 1. From the record before us, it appears nothing happened in the Dissolution action until April 23, 2018, other than Maria's switching family law attorneys early in the year.
In the Conservatorship action, Maria's deposition was taken in November 2017. Her testimony contradicted Lederman's prepared declaration averring that Masanobu had gone to New Jersey intending to live there permanently. Rather, Maria testified (several times) that she spoke with Masanobu after his move to New Jersey in April 2017, each time Masanobu making it clear he was only staying in New Jersey "for the moment" or words to that effect.
"I ask him how's he's doing and does he want to go back. He say, yes. And not now, but will discuss with me over the phone to determine a return date." Masanobu told Maria in the presence of New Jersey police officers, "[h]e said he did not want to leave at that moment, at that time." And again "he said, 'For the moment, I will stay here.'"
Also in the Conservatorship action, an attorney representing Masanobu argued he was still compos mentis - at least enough to "participate meaningfully in the litigation now" - but with every day that passed, Masanobu was "at risk for further deterioration of his cognitive functioning."
Finally, in January 2018 Maria threw in the towel in the Conservatorship action. She withdrew her petition January 26, 2018; the court entered an order formally dismissing the case on February 1, 2018.
That left the Dissolution action as the last battlefield. On April 23, 2018, Maria's new family law attorney filed a second motion to quash Masanobu's petition and amended petitions for dissolution ("Quash 2"). This time her theory was that the family law court never acquired subject matter jurisdiction over the dissolution of her marriage to Masanobu. Her main proof was the declaration prepared by Lederman in the Conservatorship action which had Masanobu saying he wanted to live in New Jersey permanently.
In this new round of residential musical chairs, Maria took a diametrically opposite position from the one she had taken previously. Maria's new position was that Masanobu was a resident of New Jersey when the May 15 petition and July 5 amended petition were filed and Maria herself was a resident of Manhattan as of both dates.
But counsel's new theory created a timing problem. By court rule, motions to quash in family law court must be filed "within the time permitted to file a response" to a dissolution petition. Even assuming the deadline began running as late as the service of Masanobu's amended petition filed July 5, 2017, more than nine months had gone by since then. Maria's solution was to assert that because Quash 1 had yet to be decided, Quash 2 would still be timely if it was considered and ruled on prior to Quash 1. So Maria sought an ex parte motion to continue Quash 1.
Fortunately for Maria, the family law judge was agreeable to hearing Quash 2 before Quash 1. The hearing date set for Quash 2 was set for Monday May 21, 2018, while the hearing date for Quash 1 was moved back to Thursday May 24.
Masanobu's opposition to Quash 2 was equivocal about his residency in New Jersey - basically he asserted that he thought he was a resident of California when he filed the May 15 and July 5 petitions. But the focus of Masanobu's opposition was procedural: He asserted Quash 2 was untimely and Maria was judicially estopped to assert that Masanobu was a New Jersey resident when she had repeatedly sworn that Masanobu was a California resident. As against the declaration prepared for Masanobu by Attorney Lederman, Masanobu's opposition to Quash 2 noted that not only had Maria sworn Masanobu was a California resident several times, but she had actually obtained affirmative relief from the California court in the Elder Abuse action by way of a temporary restraining order issued by the court. That restraining order effectively kicked Magumi and Rei out of their house (so as to comply with the order to stay away from Masanobu), causing them to incur expenses amounting to "tens of thousands of dollars [for having to reside] in motels, for meals, and for attorneys' fees."
The family law judge denied Quash 2. He reasoned that Maria had waived her challenge based on section 2320 by not filing Quash 2 within 30 days of the original May 15 petition. He rejected the idea that Quash 1's pendency made Quash 2 timely. He also concluded that judicial estoppel "tends to apply" because Maria had taken "truly inconsistent positions."
Given the narrow time span before Quash 1 was going to be heard, Maria's counsel prepared the formal findings and order after the May 21 hearing on Quash 2. The family law judge signed the document that day. The findings and order - surprisingly - do not mention judicial estoppel as one of the reasons given by the trial court for the denial. Rather, it mentions only Quash 2 being untimely under rule 5.63 and that there were no obstacles in terms of "fundamental fairness" or due process in proceeding with the Dissolution action in California.
On May 24, Quash 1 was finally heard. And denied. The family law judge concluded that by rejecting Maria's quest to be appointed temporary conservator back in July 2017, the court in the Conservatorship action had impliedly found Masanobu sufficiently mentally competent to seek a dissolution of his marriage.
Five days later, on May 29, 2018, a third hearing was held in the Dissolution action. This one focused on Masanobu's attempt to obtain pendente lite attorney fees filed back in August 2017. The result was a formal order, filed May 31, 2018, requiring Maria to disperse $125,000 to the Hittelman Strunk Lawgroup for pendente lite attorney fees. It is that order from which Maria timely appealed June 18, 2018.
III. DISCUSSION
A. Appealability
The notice of appeal says it is the order filed May 31, 2018, that is being appealed. But that order is most assuredly not what appellant Maria is really challenging in this appeal. The opening brief is inescapably clear that the only question presented is whether the trial court lacked subject matter jurisdiction over Masanobu's dissolution petition. Subject matter jurisdiction was adjudicated in Quash 2, decided May 21, not May 29 and then later embodied in an order of May 31.
The problem for Maria is that she cannot directly appeal from the May 21 order denying Quash 2. It is an interlocutory order not made specifically appealable in section 904.1 of the Code of Civil Procedure.
That said, Maria's whole point is that the trial court never had subject matter jurisdiction to make any order in the Dissolution action, other than perhaps to make an order saying it had no jurisdiction and dismiss the case. If Maria is correct, the trial court had no authority to enter even the May 31 order.
And the May 31 order itself is most certainly appealable, since it is well established in family law that pendente lite attorney fee orders are appealable as collateral matter. (E.g., In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311.) We thus have jurisdiction to consider Maria's argument that noncompliance with section 2320 deprived the family law court of subject matter jurisdiction, despite the fact the order from which she is appealing is not the one she really wishes to challenge. B. The Merits
The family law judge denied Maria's motion in Quash 2 on the basis it was not timely under California Rules of Court, rule 5.63. Timeliness would require filing within 30 days of the service of the petition for dissolution. (See section 2020 ["A responsive pleading, if any, shall be filed and a copy served on the petitioner within 30 days of the date of the service on the respondent of a copy of the petition and summons."].)
The judge correctly concluded Quash 2 was not timely. We quote the salient parts of rule 5.63 in the margin. It provides that lack of legal capacity to sue is a basis for moving to quash different from the failure to meet the residency requirements of section 2320. The two grounds are distinct, as are the additional grounds of a prior judgment or another action pending.
"(b) Respondent's application[.] Within the time permitted to file a response, the respondent may move to quash the proceeding, in whole or in part, for any of the following reasons:
"(1) Lack of legal capacity to sue;
"(2) Prior judgment or another action pending between the same parties for the same cause;
"(3) Failure to meet the residence requirement of Family Code section 2320; or
"(4) Statute of limitations in Family Code section 2211.
"(c) Service of respondent's request for order to quash[.] The request for order to quash must be served in compliance with Code of Civil Procedure section 1005(b). If the respondent files a request for order to quash, no default may be entered, and the time to file a response will be extended until 15 days after service of the court's order denying the request for order to quash.
". . . .
"(e) Waiver[.] The parties are deemed to have waived the grounds set forth in (b) if they do not file a request for order to quash within the time frame set forth." (Italics added.)
This structural separation has logical consequences, namely that one ground to quash does not cover any other ground to quash. Thus if the respondent in a dissolution case has multiple reasons to quash (say, both lack of residency under section 2320 and lack of legal capacity), there is no reason the respondent cannot assert both in the same motion. A timely motion to quash for reason A thus cannot excuse a second, untimely motion to quash for reason B.
Maria's theory that one timely motion on one ground is sufficient to make a second motion on another ground timely is too susceptible to manipulation to be consonant with the rule. This case furnishes a great example of that danger: Masanobu filed for dissolution on May 15, 2017. Maria's argument that he wasn't a resident of California wasn't decided until more than a year later, on May 21, 2018. What is particularly problematic about the delay here is that Maria's motion to quash for lack of compliance with section 2320 was based completely on facts discovered more than 30 days after Masanobu's May 15 petition. Maria had no facts to bring a section 2320 motion to quash within 30 days of the service of Masanobu's petition on her.
However, it is not a sufficient answer to Maria's appeal to say Quash 2 was untimely. A rule of court cannot contradict a statute. (E.g., In re Jesse W. (2007) 157 Cal.App.4th 49, 63-64.) If Maria is right that noncompliance with section 2320 deprives the family law court of subject matter jurisdiction, then the fact Quash 2 was untimely under rule 5.63 - or that Maria waived her objection under rule 5.63 - is irrelevant. "Subject matter jurisdiction . . . cannot be conferred by waiver, consent, or estoppel." (E.g., Sullivan v. Delta Airlines, Inc. (1997) 15 Cal.4th 288, 307, fn. 9.)
But Maria is not right about section 2320 being a matter of subject matter jurisdiction. Seldom do we have a case which is resolved by three California Supreme Court cases on point, but this is one of them.
California has had a statutory residence requirement to institute a proceeding for "divorce," (later "dissolution") since 1872. Prior to the enactment of the Family Code, those requirements were set forth in former section 128 of the Civil Code. Whether those requirements had to be met for the trial court to have subject matter jurisdiction was first examined in In re Estate of McNeil (1900) 155 Cal. 333 (McNeil), and the answer the high court there provided was a resounding "No."
McNeil was a battle between a first wife and a second wife over a rich man's estate. The trial court ruled the second wife was the true surviving wife, and the first wife appealed. She argued that when the rich man obtained a default divorce from her in 1892, there was no compliance with former Civil Code section 128. (McNeil, supra, 155 Cal. at p. 339.) The high court said that noncompliance with the Civil Code made no difference: the trial court acquired subject matter jurisdiction regardless. We quote the definitive language of the McNeil opinion, which eviscerates the argument the residency requirement of section 2320 must be complied with for subject matter jurisdiction to exist:
"If we assume that there is force in either of these objections [noncompliance with former [Civil Code] section 128 and an argument there was no evidence to support divorce on the ground of extreme cruelty], it is apparent that they go solely to the question whether or not the complaint sufficiently stated facts warranting a divorce, and that the alleged defects in no degree affected the jurisdiction of the court to hear and determine the action, provided the court obtained jurisdiction of the person of the defendant. This is, of course, obvious as to any defect in the allegations of acts of cruelty, and, we think, equally clear as to any defects in allegations of residence. The superior court is by the constitution given general jurisdiction of actions for divorce. Under this grant, when a complaint is filed asking for a divorce the court at once acquires jurisdiction of the subject-matter of the action regardless of whether or not the complaint states facts warranting the granting of a divorce, and when it has obtained jurisdiction of the person of the defendant, it has the power to hear and determine the cause. . . . Section 128 of the Civil Code, relative to residence of the plaintiff, does not impose any limitation on the jurisdiction of the superior court in the matter of divorces, but simply prescribes certain facts as essential to the making out of a case warranting a divorce, and allegations in regard to residence stand upon the same footing as any other allegation of facts showing the right to a divorce. If they are defective in any respect and the court nevertheless holds them to be sufficient, we have nothing more than error in the exercise of jurisdiction." (McNeil, supra, 155 Cal. at p. 339-341, italics added.)
The second case, Bullard v. Bullard (1922) 189 Cal. 502 (Bullard), even more acutely shows that section 2320 does not implicate subject matter jurisdiction because in Bullard, the court actually enforced the statutory residency requirement and still made it clear subject matter jurisdiction was not involved.
In Bullard, a wife living in San Francisco filed for separate maintenance. Her husband lived in Alameda County. But he filed a cross-complaint for divorce in the wife's action in San Francisco. The husband prevailed in the San Francisco action despite his failure to allege the wife resided in San Francisco. The Supreme Court held that because the husband was not a resident "of the county in which the action was commenced and tried" the judgment of divorce was indeed "in violation of the mandatory provisions" of the former section 128. (Bullard, supra, 189 Cal. at p. 506.) It was a victory for the wife, but the court hastened to disabuse the wife of her argument the San Francisco court had no jurisdiction to grant the husband his divorce. "The point as presented in appellant's brief was to the effect that 'the court was without jurisdiction to grant the defendant a divorce,' because of the matters stated above. To this the respondent makes answer that by the filing of the complaint for separate maintenance and the service of summons upon the defendant the court acquired jurisdiction of the parties and the subject matter, which it thereafter retained for all purposes of the action. Both of these arguments misconceive the real nature of the objection. It is not a question of the lack of jurisdiction, as was pointed out by this court in Estate of McNeil, 155 Cal. 333, but of error in the exercise of jurisdiction. The court undoubtedly had jurisdiction in this case, but erred in deciding that the defendant was entitled to a decree of divorce." (Bullard, supra, 189 Cal. at p. 506, italics added.)
The third case is DeYoung v. DeYoung (1946) 27 Cal.2d 521 (DeYoung). There a wife sued for separate maintenance, but the husband defended on the ground he had already gotten a divorce in Mexico. She lost and appealed. After the case had gone all the way to the Supreme Court and even after oral argument in that court, the wife advanced an argument that former Civil Code section 128 had not been complied with. The DeYoung court made short shrift of the wife's belated contention: "A sufficient answer to this contention is that section 128 of the Civil Code does not impose any limitation upon the jurisdiction of the superior court. [Citations to Bullard and McNeil.] The attack plaintiff makes upon the Mexican judgment is collateral, and such attack cannot be successfully made upon grounds which would amount, at most, to a showing of error in the exercise of jurisdiction." (DeYoung, supra, 27 Cal.2d at p. 526.)
To paraphrase Maria's reply brief, when the Supreme Court speaks, we listen. (See App. Rep. Br. at p. 9.) McNeil, Bullard and DeYoung all dealt with former section 128, the earlier iteration of section 2320, and there has been no material change in the structure of the statute since. Switch out "one year" in the previous statute for the current "six months," and change "divorce" to "dissolution," and the statutes are functionally identical.
Compare former Civil Code section 128 quoted in McNeil: "At the time the action was brought [in 1892], section 128 of the Civil Code provided, as it does now, that 'a divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months next preceding the commencement of the action,'" (McNeil, supra, 155 Cal. at p. 339) with current section 2320: "Except as provided in subdivision (b) [which is not relevant to this appeal], a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition." --------
Maria does not mention either McNeil or Bullard in her briefing. In her reply she tries to distinguish DeYoung on the theory that the case involved a Mexican divorce, and the wife's attack was collateral. But we don't see the significance of that distinction. Bullard did not involve a collateral attack - the wife appealed directly from the judgment - and the high court still said the residence requirement did not implicate jurisdiction. And the DeYoung court made it clear in the language we have quoted that noncompliance with the residency requirements of the statute did not go to subject matter jurisdiction, regardless of whether the attack is direct or collateral.
By contrast, the single Supreme Court case on which Maria relies, Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280 (Abelleira), is highly distinguishable. It dealt with a different statute and statutory scheme. Abelleira centered on the issue of whether an appellate court had jurisdiction to stop unemployment insurance payments made by the California Employment Commission at a point prior to the Commission determining whether the payments were improper as a made during a trade dispute. (See Abelleira, supra, 17 Cal.2d at p. 284.) The appellate court didn't have subject matter jurisdiction because the Unemployment Insurance Act simply didn't allow for it at that stage. (See id. at pp. 291-292.) That was a statutory wrinkle not present here.
Since Abelleira is not on point, it appears Maria mainly cites Abelleira for one sentence in its general discussion of jurisdiction: "A court has no jurisdiction to adjudicate upon the marital status of persons when neither is domiciled within the state. See Restatement, Conflict of Laws, sec. 111; Ryder v. Ryder [(1934)], 2 Cal.App.2d 426, 37 P.2d 1069 [Ryder]." (Abelleira, supra, 17 Cal.2d at p. 288.)
But if one examines Ryder, it is obvious what the Abelleira court was saying in its reference to neither party being domiciled with the state. Ryder involved the question of whether a California court should give effect to a mail-order Mexican divorce decree when neither party was ever domiciled in Mexico. (See Ryder, supra, 2 Cal.App.2d at p. 432.) Ryder certainly was not construing California's residency requirements in former Civil Code section 128. Put another way, unlike Ryder, the case before us does not involve the question of whether California should enforce an out-of- state divorce decree when neither party was ever domiciled in that state. And that was all the Abelleira dictum was about.
Finally, we must note that Maria mistakes what is really "in rem" jurisdiction for "subject matter" jurisdiction. It is well established that the dissolution of a marriage qua dissolution is an in rem proceeding and does not deal with subject matter jurisdiction. (Zaragoza v. Superior Court (1996) 49 Cal.App.4th 720, 724-725 (Zaragoza); In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13 (Obrecht).) And in rem jurisdiction can be waived by failing to object timely. (Zaragoza, supra, 49 Cal.App.4th at pp. 725-726 [upholding applying predecessor of rule 5.63].)
Here, Maria waived any objection based on section 2320 in two undeniable ways: First, as we have shown, Maria's objection certainly was not timely. California Rules of Court, rule 5.63 does not contemplate piggybacking multiple motions to quash.
And second, Maria is judicially estopped from asserting noncompliance with section 2320. Section 2320 requires residence in California for the six months preceding the filing of a petition for dissolution. Residence is equated with domicile, and domicile is a test of two elements, actual physical presence plus a subjective intention to stay in a given jurisdiction indefinitely. (See Obrecht, supra, 245 Cal.App.4th at pp. 13-14.)
It might be argued that Maria's sworn declarations that Masanobu was a California resident should be excused since she had no personal knowledge of his mental state on May 15. But it is a logical inference that since the two of them were living together as of April 27, she had enough information to know he had no intention of moving to New Jersey as of April 27; after all, she characterized his move to New Jersey as an "abduction."
Even more telling is that Maria has no excuse for misleading the court as to her own residence. If, on May 15, she had moved to New York with an intention to take up residence in Manhattan, she had no business allowing the court to think she was a California resident living in Newport Coast. And yet that was her theory in both the Elder Abuse action and the Conservatorship action.
Instead, in filing after filing Maria told the story of her and Masanobu living in "our home" in Newport Coast. Her claim of residency in New York was made only in the April 2018 Quash 2 motion. Since domicile is a question of fact (Obrecht, supra, 245 Cal.App.4th at p. 14), the family law court was well within its power in impliedly holding that Maria was estopped from contesting residency under section 2320.
IV. DISPOSITION
The collateral order made May 31, 2018 is affirmed. Real party shall recover its costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.