Kent v. Kent (In re Kent)
Kent v. Kent (In re Kent)
Opinion of the Court
*491In this appeal the appellant challenges a specific ruling of the family court on her request for an order to modify a child custody and child support order issued by a North Carolina court . The family court granted in part and denied in part the appellant's request, without first determining whether the California court had jurisdiction *468under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Molly Kent (Mother) and respondent Samuel Kent (Father) share two children ages 13 and 11. On August 2, 2017, the General Court of Justice, District Court Division, of the State of North Carolina, County of Iredell (North Carolina Court) filed a "Consent Order Regarding Modification of Child Custody, Permanent Child Custody, and Permanent Child Support" (North Carolina Order) in case No. 17-CVD-835, entitled Kent v. Kent (North Carolina Action). The North Carolina Order is 14 single-spaced typewritten pages, containing an introduction, 18 numbered paragraphs of Findings of Fact, 7 numbered paragraphs of Conclusions of Law, and more than 65 separately numbered paragraphs containing detailed orders regarding custody, visitation, support, and raising the children.
*492In February 2018, Mother initiated the underlying California family law action by filing certain declarations and registering the North Carolina Order in the North County Division of the San Diego County Superior Court, as required by the UCCJEA. (§§ 3445, 3429.)
A month later, in March 2018, Mother filed a request in the California action for an order modifying 10 separate items contained in the North Carolina Order (RFO). The only one at issue in this appeal is Mother's request to delete a provision that limited each parent's contact with certain adults when the children were visiting that parent (Visitor Provision
The family court heard oral argument in May 2018. In the minutes from the hearing, the court "note[d]" that "[t]he parties agree that California has UCCJEA jurisdiction" and that "Father resides in North Carolina." The parties' settled statement of the oral proceedings discloses: The parties stipulated that "California has jurisdiction to make custody orders pursuant to California Family Code section 3048"; the parties stipulated and the family court "noted" that Father resides in North Carolina; and "Mother's counsel argued that the court had already determined it had jurisdiction over child custody and visitation," although there is no indication as to when or how this determination occurred.
*469The family court filed a findings and order after hearing (FOAH), which granted in part and denied in part Mother's RFO-expressly granting in part and denying in part Mother's request to delete of the Visitor Provision
*493II. DISCUSSION
On appeal, Mother argues that the family court erred in denying that portion of her RFO in which she requested that the North Carolina Order be modified to delete the A.R. Provision. As we explain, we will reverse the FOAH without reaching the merits of Mother's appeal because the family court lacked jurisdiction to modify the North Carolina Order.
The UCCJEA determines the proper jurisdictional situs as between interested states for litigation of child custody determinations-which includes virtually any custody or visitation dispute (§ 3402, subd. (c)). As applicable here, the UCCJEA applies in a "child custody proceeding"-which, is defined in part as "a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue" (§ 3402, subd. (d))-commenced on or after January 1, 2000. (§ 3465.) " 'It is well settled in California that the UCCJEA is the exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions.' " ( Ocegueda v. Perreira (2015)
" '[A]mong the primary purposes of the [UCCJEA and its predecessor, the UCCJA,] is to encourage states to respect and enforce the prior custody determinations of other states, as well as to avoid competing jurisdiction and conflicting decisions.' " ( In re Marriage of Fernandez-Abin & Sanchez (2011)
Except in emergency situations not present here (§ 3424), section 3423 directs that a California court may not modify an out-of-state custody order unless both of the following have been established:
1. California has jurisdiction to make an initial determination under section 3421, subdivision (a)(1) or (2); and
2. Either -
a. The out-of-state court has determined either that it no longer has exclusive continuing jurisdiction under section 3422 or that California would be a more convenient forum under section 3427, or
b. The out-of-state court or a California court determines that the child and the child's parents do not presently reside in the out-of-state forum.
If a California court determines from either party's first pleadings related to the foreign custody order under section 3429 (at times, section 3429 documents) that a child custody proceeding has been commenced in an out-of-state forum having jurisdiction "substantially in accordance with" the UCCJEA, then the California court "shall stay " its proceeding and communicate with the other state's court . (§ 3426, subd. (b), italics added.
In the present case, both parties' attorneys and the family court were fully and formally advised of the North Carolina Action generally and the North Carolina Order specifically. Nonetheless, the court *471ruled on Mother's RFO without first determining whether it had modification jurisdiction under the UCCJEA. The family court's notation in its minutes that "[t]he parties agree that California has UCCJEA jurisdiction" is insufficient to establish modification jurisdiction, because " '[t]here is no provision in the UCCJEA for jurisdiction ... by stipulation[.]' "
Accordingly, the family court erred in considering Mother's RFO. Because of the pendency of the North Carolina Action, the North Carolina Order, and the uncontradicted evidence in the section 3429 documents that Father resided in North Carolina, the California family court was required to stay the California proceedings and communicate with the North Carolina Court. (§ 3426, subd. (b).) In short, at the time the family court ruled on Mother's RFO, the court did not have modification jurisdiction under the UCCJEA, and on that basis the FOAH must be reversed.
In response to our request for supplemental briefing on the potential application of the UCCJEA to the underlying proceedings, both parties agree that the family court was not presented with and did not determine the issue of modification jurisdiction under the statutorily required procedures. On this basis, Mother contends the FOAH is void and, as we have just concluded, should be reversed.
Father argues that a reversal on jurisdictional grounds would be "a miscarriage of justice," because Mother is just displeased with the family *496court's ruling and merely wants another opportunity to litigate the issue of striking the A.R. Provision. To support his position, Father relies on the principles of harmless error and lack of prejudice.
We begin with the understanding that a procedural error by itself is generally insufficient to set aside a judgment or order. That is because "the presumption in the California Constitution is that ... '... any error as to any matter of procedure' is subject to harmless error analysis and must have resulted in a 'miscarriage of justice' in order for the judgment to be set aside." ( In re Marriage of Goddard (2004)
This general rule, however, is inapplicable where, as here, the trial court has acted in excess of its jurisdiction. Under such circumstances, error has occurred, and the resulting order is "voidable and reversible on appeal even where ... it is clear from the record [that no prejudice resulted]." ( Marriage of Goddard , supra , 33 Cal.4th at p. 54,
*497Father contends that " 'failure to comply with the procedural requirements of the UCCJEA is subject to harmless error analysis['] " (quoting In re Cristian I. (2014)
First, from the section 3429 documents, we know nothing about the North Carolina Action and the proceedings that resulted in the North Carolina Order generally and the A.R. Provision specifically-including, for example, the basis on which the North Carolina Court ordered that Mother is precluded from allowing the children to be in the presence of A.R. For this reason, Father's suggestion that, had the North Carolina Court been advised of Mother's effort to modify the North Carolina Order, the North Carolina Court "would have determined that it no longer had exclusive jurisdiction" is speculative, and we reject it.
Second, to accept Father's harmless error analysis fails to consider the potential injustice to the North Carolina Court. One of " 'the primary purposes' " of the UCCJEA " 'is to encourage states to respect and enforce the prior custody determinations of other states, as well as to avoid competing jurisdiction and conflicting decisions.' " ( Fernandez-Abin , supra , 191 Cal.App.4th at p. 1037,
In summary, the family court's failure to have contacted the North Carolina Court before considering a modification to the North Carolina Order is reversible error.
*499III. DISPOSITION
The July 2, 2018 FOAH is reversed. The parties shall bear their respective costs on *474appeal. ( Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR:
BENKE, Acting P. J.
GUERRERO, J.
Further unidentified "section" or "§" references are to the Family Code.
The Visitor Provision in the North Carolina order is entitled "Persons of the Opposite Sex" and provides in full: "Neither Father nor Mother shall have any adult unmarried person of the opposite sex unrelated by blood or marriage stay overnight at their place of residence when the minor children are in their physical custody. Should either party engage in an adult romantic relationship with any other individual, said party shall not intentionally allow said individual to be in the presence of the minor children until such time that the parties have obtained a divorce judgment. The minor children shall at no time intentionally be in the presence of Mr. [A.R.]. That should the minor children be unintentionally in the presence of Mr. [A.R.], Mother has the affirmative obligations to remove the minor children from Mr. [A.R.]'s presence."
In the FOAH, the family court ruled in part as follows: "[The Visitor Provision] is revised to strike the first two sentences of the provision. [¶] ... Finding that the parties previously agreed to this provision and that it does not relate to custody and visitation, the court denies [Mother's] request to modify and have stricken the [A.R. Provision], which state[s] as follows: 'The minor children shall at no time intentionally be in the presence of Mr. [A.R.]. That should the minor children be unintentionally in the presence of Mr. [A.R.], Mother has the affirmative obligations to remove the minor children from Mr. [A.R.]'s presence.' "
The UCCJA is the predecessor to, and was repealed and reenacted in major part in, the UCCJEA, found at current section 3400 et seq. (Stats. 1999, ch. 867, § 3). " '[C]ases interpreting the UCCJA are instructive in deciding cases under the UCCJEA except where there is a conflict between the two statutory schemes.' " (R.B. v. D.R. (2018)
As applicable here, Mother's UCCJEA registration of the North Carolina Order and her accompanying declaration-in which she properly disclosed the North Carolina Action and North Carolina Order-qualify as section 3429 documents. Also, North Carolina is "in accordance with" the UCCJEA, having enacted the UCCJEA in 1999. (N.C. Gen. Stats. § 50A-101 et seq. (S.L. 1999-223, § 3).)
Indeed, in requested supplemental briefing, Mother and Father each acknowledge this limitation.
According to Father, Mother did not establish that, had the family court followed the UCCJEA's procedures for determining modification jurisdiction, there is a reasonable probability that Mother would have received a more favorable determination: "Here, the fact that the trial judge in California did not contact North Carolina to relinquish jurisdiction[ ] would not have changed the outcome of the trial court's ruling as no other evidence would have been presented which ultimately was not already presented to the trial Court."
In the present case, absent a specified showing and a required determination, the California court was required to stay or dismiss Mother's RFO. (§ 3426, subd. (b).)
"Comity is based on the belief ' " 'that the laws of a state have no force, proprio vigore, beyond its territorial limits, but the laws of one state are frequently permitted by the courtesy of another to operate in the latter for the promotion of justice, where neither that state nor its citizens will suffer any inconvenience from the application of the foreign law. This courtesy, or comity, is established, not only from motives of respect for the laws and institutions of the foreign countries, but from considerations of mutual utility and advantage.' " ' (Advanced Bionics Corp. v. Medtronic, Inc. (2002)
The UCCJEA applies to dependency proceedings. (§ 3402, subdivision (d); In re M.M. (2015)
This opinion does not preclude, yet expresses no views regarding, further trial court proceedings related to the North Carolina Order.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.