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Case of the Month (from CFLR Monthly)

February 2019
[Archive]

Tennis player mom learns how the jurisdictional ball bounces. . .

 

In reversal, Second District holds that trial court erred by concluding that it lacked UCCJEA jurisdiction and deferring to UCCJEA jurisdiction exercised by Belarus trial court; that court failed to give father notice of the child custody proceeding in a manner reasonably calculated to give him actual notice and thus, lacked jurisdiction in conformity with UCCJEA standards

 

W.M. v. V.A.

(December 13, 2018)

California Court of Appeal 2 Civil B287735 (Div 8) 30 Cal.App.5 th 64, 241 Cal.Rptr.3d 170, 2018 FA 1867, per Grimes, J (Bigelow and Stratton, JJ, concurring). Los Angeles County: Epstein, J, reversed and remanded. For appellant: Christopher Melcher, CFLS, (818) 591-3700. For respondent: Honey Kessler Amado, CALS, (310) 550-8214. CFLP §H.83.

 

V.A., a professional tennis player born in Belarus, met W.M., a U.S. citizen, in Hawaii in 2015. As their relationship progressed, V.A. became pregnant with his child (L.) who was born in Santa Monica in December 2016. In March 2017, the couple took 10-week-old L. to Belarus, where they stayed until June, except for a trip to Paris in May. They went to Mallorca for a tennis tournament on June 7, then on to London so that V.A. could compete at Wimbledon.

 

Meanwhile, unbeknownst to W.M., V.A. filed an application in a Belarus trial court for a determination of L.'s place of residence. She claimed that her relationship with W.M. "was 'in decline'" and that he "'scandalized, raised his voice, threatened to take away the child'" and now disputed L.'s place of residence. V.A. asked the Belarus court to declare that L.'s residence was the same as her residence in a Minsk apartment. On May 29, 2017, the Belarus trial court sent a letter to W.M. at the Minsk apartment, his registered residence in Belarus, advising him of V.A.'s application and of a hearing set for June 7, 2017.

 

The parents left for Paris early in June 7, 2017, so V.A.'s mother, A.V.A. appeared at the hearing for her; no one appeared for W.M. When the hearing concluded, the Belarus trial court found that V.A. was a citizen of Belarus, who had a permanent residence in Minsk, and that L. carried a Belarusian passport registered at V.A.'s Minsk address. The court also found that W.M.'s registered residence was the Minsk apartment and that he and V.A. had a dispute about L.'s residence. The Belarus trial court then determined that L.'s place of residence was V.A.'s place of residence in Minsk.

 

The parties were in London in July when they had "'an awful disagreement'" that marked the end of their relationship. W.M. left for the U.S. in July 12. A few days later, V.A. and L. arrived in Manhattan Beach, where she began training for the U.S. Open. On July 20, W.M. filed a petition, seeking legal and physical custody of L. He followed up on July 26 with an ex parte request for temporary emergency child custody and visitation orders. In response, V.A. contended that the Los Angeles trial court lacked child custody jurisdiction because neither she, W.M., nor L. resided in California. The LA trial court issued temporary orders precluding either parent from removing L. from Los Angeles County, requiring the surrender of L.'s passports, and granting temporary physical custody of the baby boy to W.M., with visitation for V.A.

 

On July 28, V.A. filed a motion to quash, stating that she had already filed an action in the Belarus trial court, which had determined that L.'s residence was Belarus and that she was "'in the process of initiating custody proceedings there.'" On that same date, she filed a statement of claim in the Belarus trial court, seeking an order permitting W.M. to visit L. once a month at the Minsk apartment in her presence. The Belarus court sent a letter to W.M. at the Minsk apartment, advising him of V.A.'s action and of the hearing date of August 3, 2017. When that hearing concluded, the Belarus court issued the order that V.A. had requested.

 

On August 9, the LA trial court issued orders regarding discovery, briefing, and hearings on the jurisdiction issue, plus temporary orders for shared custody and for security guard monitors to be stationed outside V.A.'s home on nights when she had custody of L. The custody provisions were further detailed in stipulated temporary shared custody orders, including child abduction prevention orders and passport relinquishment re L. At the hearing, W.M. testified that he had no notice of the June 7 hearing and would not have gone to Paris if he had known. His expert on Belarusian law, Dr. Aliaksandr Danilevich, testified about notice requirement under Belarus law, which require notice by registered mail, return receipt requested, or alternatively, by email, fax, or other means. When the hearing concluded, the LA trial court credited W.M.'s testimony that he had not received notice and stated that it would not enforce either the Belarus trial court's June 7 order or its August 3 visitation order because W.M. had not received adequate notice or opportunity to be heard in either case. However, the court also found that the Belarus court action re L.'s residence was a child custody proceeding and that the Belarus court had jurisdiction substantially in conformity with the UCCJEA. Deferring to that court's UCCJEA jurisdiction, the LA trial court vacated its orders regarding V.A.'s right to travel outside the jurisdiction with L. and the other restraining orders, but stayed their effect to allow W.M. to petition the Second District for a further stay.

 

W.M. appealed, and also petitioned for a writ of supersedeas, which was granted by a Second District majority, who stayed the LA trial court's order pending resolution of the appeal, but permitted the lower court to make further custody, visitation, support, or travel orders regarding L. Acting on his appeal, the Second District reversed and remanded.

 

It says here. . .
The justices began by briefly reviewing that statutory history and fundamental concepts underlying the UCCJEA. They then turned to what they find is "the flaw in the trial court's analysis": its failure to consider Fam C §3425 provisions regarding notice. The panel reasoned that per Fam C §3425(a), a trial court may not make a custody determination under the UCCJEA unless all parties entitled to notice have been given notice and an opportunity to be heard in accordance with the standards of Fam C §3408. Fam C §3408(a) provides that the notice required when a person is outside the state may be given in a manner authorized by the law of that state and reasonably calculated to give actual notice, including publication. Here, the justices noted, the trial court "apparently concluded" that if the Belarus trial court had UCCJEA jurisdiction under the provisions of Fam C §3421, such as having significant connections with the child, then it had jurisdiction substantially in conformity with the UCCJEA. However, the justices found, the fact that another trial court may qualify for jurisdiction under Fam C §3421 standards does not mean that it may exercise UCCJEA jurisdiction where there has not been proper notice under Fam C §3425(a).

 

Can't have one without the other. . .
The justices explained that jurisdiction includes both subject matter jurisdiction and adequate notice to the defendant; without proper notice, any judgment is void. In this case, the trial court refused to enforce the Belarus trial court's orders of June 7 and August 3 because it determined that W.M. had not been given adequate notice. The trial court credited W.M.'s testimony that he had not known about the June 7 hearing and had not received notice at the Minsk apartment and other evidence showing the absence of any return receipt to verify that notice had been given by registered mail. Moreover, there was no showing that the Belarus trial court had tried to give W.M. notice by another authorized means. The panel acknowledged that Belarus notice procedures "could theoretically" give adequate notice, but concluded that in this case, they had not.

 

Bye, bye Belarus. . .
Having found that the Belarus court failed to give W.M. proper notice of the custody proceeding, the panel concluded that that court did not have UCCJEA jurisdiction. That means, the justices said, that the LA trial court had UCCJEA jurisdiction, and it erred by refusing to exercise its jurisdiction and granting V.A.'s motion to quash. Accordingly, the justices reversed that order and remanded to the lower court for further proceedings.

 

 

Comment

  

In most UCCJEA cases, the issue of which court has jurisdiction revolves around which one meets the Fam C §3421 standards. It's easy to overlook the role that proper notice plays; we tend to just jump over that aspect. And, in most cases, adequate notice has been given. Note that here, the trial court relied on W.M.'s testimony that he had not received proper notice, but not on that alone. In a foot note, the justices tell us that he bolstered his testimony with "'a contemporaneous email that supports his version of events.'"

 

 

We found it interesting that V.A. sought an order regarding the child's residence in the Belarus court. That sounds similar to the kind of determination that a court would make in a Hague Convention case, where the child's habitual residence is an issue and the court decides whether the child has been wrongfully removed or retained from his or her habitual residence and must be returned. We wondered whether V.A. might have been laying the groundwork in case an issue like that arose. The issue that did arise was a custody one, however, and the Hague Convention does not deal with custody issues.

 

 

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