Thygesen v. Wang CA1/4 ( 2021 )

Filed 6/29/21 Thygesen v. Wang CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CHRISTOFFER STANFORD THYGESEN,
Plaintiff and Appellant,
A158691
v.
KAILIN WANG, (City & County of San Francisco
Super. Ct. No. FDV-19-814465)
Defendant and Appellant.
In this custody dispute between Christoffer Stanford Thygesen (father) and Kailin
Wang (mother), father appeals an order finding that the child’s home state under the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Family Code
section 3400 et seq.,1 is Utah. Father contends the court erred by reconsidering its prior
determination that California is the child’s home state and by failing to make the
necessary findings in support of the changed determination. He also argues that the court
violated his due process rights by peremptorily terminating his examination of mother
and his presentation of evidence at the UCCJEA trial. Mother has filed a cross-appeal
challenging the court’s reentry of its prior order granting father custody of the child under
the emergency jurisdiction provision of the UCCJEA. We conclude that the trial court’s
initial jurisdictional finding under the UCCJEA was binding on mother under section
3406 so that the court erred in considering mother’s subsequent untimely objection to
jurisdiction. The order must be reversed and the matter remanded for further proceedings,
1
All statutory references are to the Family Code unless otherwise noted.
1
so we do not reach father’s remaining arguments nor do we address the merits of
mother’s cross-appeal.
Background
Many of the facts at issue in the underlying proceedings are contested. This
appeal, however, does not require this court to resolve those factual disputes. We rely
only on those facts not reasonably subject to dispute.2
The parties’ son was born in November 2018 in Utah. It is undisputed that father
was residing in San Francisco, California at the time of the child’s birth. Mother testified
that she was residing in Utah at the time of the child’s birth but paperwork completed for
the birth certificate by mother states that her home address was in Los Angeles,
California.
Immediately following the child’s birth, mother initiated a claim with the local
child support agency in Los Angeles, California, which filed a child support action
against father in Los Angeles Superior Court. Subsequent testing in that proceeding
established father’s paternity.
Shortly after commencing the child support action in Los Angeles, mother emailed
father’s counsel suggesting that the parents agree to have the action proceed in San
Francisco. She explained that she travels between Utah, New York, and California and
that the child has been between these states since birth.
On February 15, 2019, father initiated the present action under the Domestic
Violence Prevention Act, section 6200 et seq., in San Francisco, requesting protective
orders as well as sole legal and physical custody of his son. In support of his request for a
protective order, father submitted documents evidencing mother’s repeated online
2
In addition, this court will not consider any documents filed in other court
proceedings or documents filed in the present action after entry of the order on appeal.
Accordingly, the parties’ requests for judicial notice of these documents are denied.
Mother’s request for judicial notice of an additional volume of her appendix containing
such documents is also denied. Father’s motion to strike the “new contentions and legal
arguments” asserted for the first time in mother’s reply brief is denied as unnecessary.
2
cyberstalking and harassment of father. Much if not all of the threatening and harassing
behavior alleged in the petition involves the child and the petition alleges that the child is
at risk as a result of mother’s “compulsive, obsessive and abusive behaviors.” The
petition also alleges that mother has a criminal history of domestic violence and at that
time in Utah was facing electronic harassment charges involving a different victim.
On the same day, father obtained a temporary restraining order against mother.
The court denied father’s request to make a custody determination at that time, noting in
the order that the “issue of child custody can be addressed at the hearing [on the
permanent restraining order set for March 6] if [the] court has jurisdiction.”
On February 19, mother filed a paternity action in New York seeking child support
and a restraining order against father. Mother did not disclose in her New York petition
the existence of the action she had filed in Los Angeles or the domestic violence action
pending in San Francisco. Instead, she attested under oath that no prior application had
been made for the same relief.
On March 4, in the San Francisco proceedings, father submitted a memorandum of
points and authorities in support of the court’s jurisdiction under the UCCJEA and a
declaration detailing his unsuccessful attempts to serve mother with the temporary
restraining order and notice of the March 6 hearing. The declaration explains that after
investigators located mother with her parents in Utah, father attempted through the Office
of the Utah County Constable to serve mother at her parents’ home. Affidavits signed by
constables detail their unsuccessful attempts at service. On three occasions no one
answered the door. On seven additional occasions, the grandparents told the person
attempting service that mother did not live there and that they had no contact information
for her. On February 19, a constable attempted service through mother’s criminal defense
lawyer, but was refused based on mother’s instructions that her attorney not accept
service on her behalf. On February 20, father’s attorney emailed mother’s criminal
defense attorney a copy of the temporary restraining order, which included notice of the
March 6 hearing. Father’s declaration also states that service was attempted twice at the
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New York address given to father’s counsel by mother but the process server was
informed by the manager of the building that mother does not live there.
On March 6, the court continued the hearing on the permanent restraining order
but issued an amended temporary restraining order awarding father sole custody of the
child and authorizing him to retrieve the child, with the assistance of local authorities,
from wherever the child might be. Based on mother’s statement on the birth certificate
and her filing of the paternity action in Los Angeles, the court found that it had
“jurisdiction to make child custody orders in this case under the Uniform Child Custody
Jurisdiction and Enforcement Act.” The court found further that mother was “given
reasonable notice and an opportunity to be heard as provided by the laws of the State of
California.”
At the conclusion of the hearing, the court stated on the record that mother had
called the court clerk during the course of the hearing. The court asked the clerk whether
mother had asked to remain on the line for the hearing or indicated a preference regarding
the date for the continued hearing on the permanent restraining order. The clerk
responded that she had not, but indicated she would call back. The court found that
mother’s phone call was not sufficient to excuse service of notice of the date for the
hearing on a permanent restraining order but “clearly” reflected that she was aware of the
proceedings.
On March 7, father retrieved his son from the grandparents’ home in Utah. He was
then required to attend a shelter hearing before a Utah court on March 18. At that hearing,
at which mother was represented by counsel and was present “at court, but not in the
courtroom,” the Utah court issued an order finding that “[t]here is a substantial danger to
the physical health and safety of the child based upon the mother’s social media posts,
which are found to be irrational and histrionic, the mother’s pending criminal charges,
and the mother’s threat of killing herself and the child. The court finds that the mother’s
behaviors are evidence of the mother’s mental instability and immediate risk of harm to
the child. The child’s physical health or safety may not be protected without removing
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the child from the custody of the mother.” Since then the child has resided in California
with his father.
On March 15, mother filed a paternity petition in Utah. In the petition she stated
under penalty of perjury that her son had resided with her in Utah since his birth. The
Utah court stayed the case based on California’s prior exercise of custody jurisdiction. At
the same time, mother’s parents filed a petition for custody or grandparent visitation in
Utah, in which they alleged, under penalty of perjury, that mother had moved to New
York and that the child had lived with them in Utah since his birth. The Utah court stayed
that case as well.
In her response filed on April 5 and at a hearing on May 8 in the San Francisco
action, mother objected to the court’s jurisdiction over the child and requested an
evidentiary hearing under the UCCJEA. Father argued that the March 6 determination
was final and not subject to reconsideration under section 3406 of the UCCJEA.
On June 25, the court held an evidentiary hearing on mother’s objection to
jurisdiction. Initially, the court concluded that mother’s objection was timely and that the
prior determination was not binding because it was not made at a contested proceeding.
The court explained, “I can’t see how due process is served if a jurisdictional decision
under UCCJEA can be made and considered to be final with only evidence presented by
one side. . . . I know how it played out here, and it just so happened she called in. But
literally anybody can file a [domestic violence restraining order] request, and they are
always heard. I hear them every day. They land on my desk, and they are uncontested.
It’s just the application and a request for a temporary restraining order and whatever
evidence they presented. [¶] And that would be whether it happened the way it did here
or even in that situation where I say, ‘Okay.’ ‘Looks like the kid is in California or born
here,’ and I check the box saying you get your custody visitation orders, and that’s done,
that’s a done deal, even though if you look at the papers that respondents are served with,
they get the notice of hearing, they get something called a DV-120 information packet
that says if you disagree with these orders here is how you come in and contest it. [¶] And
they would say, ‘Okay. Well, clearly the judge got it wrong on that custody part; so I will
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come in and follow the directions of my papers I just got served with and then to be told
‘Sorry. You’re too late on that one issue. You had to do something completely different
that is not mentioned in these papers.’ [¶] And that’s why I struggle with this idea that my
determination on March 6 with one side here and the other side not was a final
determination, and at this point it’s final forever absent an appeal that she would not even
know to make.”
Mother was the sole witness during the evidentiary portion of the hearing. She
testified that, other than some “temporary absences,” she had lived in Utah since 2017.
She has a Utah driver’s license. She files taxes in Utah. She has received public benefits
in Utah including food stamps and Medicaid since April 2018. In the summer of 2018 she
enrolled at Utah Valley University paying “in-state” tuition. On cross-examination,
mother was impeached with her numerous contradictory statements contained in her
filings in the New York and Los Angeles actions. Over father’s objection, the court cut
his cross-examination short, indicating that the court was out of time. Following a few
minutes for redirect, the court issued its ruling. The court stated, “[H]aving taken
everything into account and having listened to respondent’s testimony, while I have some
difficulty with her credibility on a number of issues, I do find that Utah is the home state.
I think [the child] was born there. He lived there for, by my count, about 70 days out of
80, between his birth and the date that this action was initiated in mid February. There
was some indication that he -- from emails -- that he was back and forth between other
states, but none of the other evidence suggests that. [¶] So my conclusion is that custody
and visitation issues will have to be litigated and decided by a Utah court. [¶] So as I
mentioned earlier, again, I make that determination based on everything that I heard and
notwithstanding some concerns I have about the credibility of the respondent’s testimony
and some contradictory emails and communications, I think a great weight of the
evidence supports that the child was in Utah almost continuously up until the day he was
-- when this action was initiated.”
A written order confirming the ruling was filed on July 18. The order provides in
relevant part: “On the threshold question of whether procedurally the court can properly
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revisit the finding of home state made in March, that finding was issued without evidence
from one side, which is typical for [domestic violence restraining orders]. Like almost all
orders issued on an ex parte basis and certainly those under the Domestic Violence
Prevention Act, the order issued was temporary, pending a contested, evidentiary hearing.
With mother’s first appearance in this case, through her response filed on April 5th, she
raised a challenge to, among other things, the jurisdictional basis of the court’s custody
orders included in the March 6th TRO. [¶] . . . Because mother is able to challenge the
request for a permanent restraining order on any basis, the court finds that she did not
waive her right to challenge any part of the TRO issued on March 6th by failing to file a
motion to reconsider or to appeal. This includes the issue of custody jurisdiction, and the
underlying custody and visitation orders.” The court’s written order also provides under
the emergency custody jurisdiction of the UCCJEA that “the current custody orders,
awarding sole legal and physical custody . . . to father, will remain in place until this
matter is taken up by the court in Utah.”
Father timely filed a notice of appeal challenging the home state determination and
mother timely filed a notice of cross-appeal challenging the emergency custody order.
Discussion
1. The UCCJEA
The UCCJEA provides the exclusive means for determining the proper forum and
subject matter jurisdiction for child custody proceedings involving two states. (§ 3421.)
“The UCCJEA is designed to avoid jurisdictional conflicts between states and relitigation
of custody decisions, promote cooperation between states, and facilitate enforcement of
another state’s custody decrees.” (In re R.L. (2016) 4 Cal.App.5th 125, 136, disagreed
with on other ground by In re J.W. (2020) 53 Cal.App.5th 347, 366–367.)
As relevant here, jurisdiction is proper in California if California is the “home
state of the child” or alternatively, if no other state qualifies at the child’s home state and
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the child and at least one parent have a “significant connection” with California. (§ 3421,
subd. (a)(1), (a)(2).)3
“Home state” under the UCCJEA means “the state in which a 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. In the case of a child less than
six months of age, the term means the state in which the child lived from birth with any
of the persons mentioned. A period of temporary absence of any of the mentioned
persons is part of the period.” (§ 3402, subd. (g).)
A court without jurisdiction under section 3421, subdivision (a), may exercise
“temporary emergency jurisdiction” when a “child is present in this state and . . . it is
necessary in an emergency to protect the child because the child . . . is subjected to, or
threatened with, mistreatment or abuse.” (§ 3424, subd. (a).)
An initial custody determination under the UCCJEA becomes binding on all
parties duly served with a copy of the order who had notice and an opportunity to
3
Section 3421, subdivision (a) reads in relevant part: “[A] court of this state has
jurisdiction to make an initial child custody determination only if any of the following are
true: [¶] (1) 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. [¶] (2) A court of another state
does not have jurisdiction under paragraph (1), or a court of the home state of the child
has declined to exercise jurisdiction on the grounds that this state is the more appropriate
forum under Section 3427 or 3428, and both of the following are true: [¶] (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.
[¶] (B) Substantial evidence is available in this state concerning the child’s care,
protection, training, and personal relationships. [¶] (3) All courts having jurisdiction
under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a
court of this state is the more appropriate forum to determine the custody of the child
under Section 3427 or 3428. [¶] (4) No court of any other state would have jurisdiction
under the criteria specified in paragraph (1), (2), or (3).”
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participate in the hearing. (§ 3406.)4 The “[n]otice required for the exercise of jurisdiction
when a person is outside this state may be given in a manner prescribed by the law of this
state for service of process or by the law of the state in which the service is made. Notice
must be given in a manner reasonably calculated to give actual notice but may be by
publication if other means are not effective.” (§ 3408, subd. (a).) As such, section 3408
authorizes the giving of UCCJEA notice by a method that would not suffice for formal
service of process so long as that method is reasonably calculated to give actual notice.
(See In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 494 [notifying mother’s
attorney of record in open court “clearly satisfied” section 3408 requirement], disagreed
with on other ground by Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1283 &
fn. 2.)
Once a court has made a child custody determination consistent with section 3421,
that court has “exclusive, continuing jurisdiction over the determination until either of the
following occurs: [¶] (1) A court of this state determines that neither the child, nor the
child and one parent, nor the child and a person acting as a parent have a significant
connection with this state and that substantial evidence is no longer available in this state
concerning the child’s care, protection, training, and personal relationships. [¶] (2) A
court of this state or a court of another state determines that the child, the child’s parents,
and any person acting as a parent do not presently reside in this state.” (§ 3422,
subd. (a).)
An order determining jurisdiction under the UCCJEA is an appealable order. (See
Schneer v. Llaurado, supra, 242 Cal.App.4th at p. 1279 [reviewing family court order
finding California lacks jurisdiction under the UCCJEA to make an initial child custody
Section 3406 provides: “A child custody determination made by a court of this
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state that had jurisdiction under this part binds all persons who have been served in
accordance with the laws of this state or notified in accordance with Section 3408 or who
have submitted to the jurisdiction of the court, and who have been given an opportunity
to be heard. As to those persons, the determination is conclusive as to all decided issues
of law and fact except to the extent the determination is modified.”
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determination regarding daughter], disagreed with on other ground by In re J.W. (2020)
53 Cal.App.5th 347, 366–367; In re Marriage of Sareen (2007) 153 Cal.App.4th 371,
376 [reviewing order granting motion to quash jurisdiction under the UCCJEA],
disagreed with on other ground by Schneer v. Llaurado (2015) 242 Cal.App.4th 1276,
1283 & fn. 2.)
2. Father’s Appeal
In its March 6 order, the court expressly found that it had “jurisdiction to make
child custody orders in this case under the Uniform Child Custody Jurisdiction and
Enforcement Act” and that mother was “given reasonable notice and an opportunity to be
heard as provided by the laws of the State of California.”5 On appeal, father contends
mother’s subsequent objection to jurisdiction was untimely and that the court erred in
reconsidering its jurisdictional finding. We agree.
Initially, we reject mother’s argument that a challenge to jurisdiction under the
UCCJEA “may be raised at any time.” The statutory scheme clearly provides that the
initial jurisdictional finding is binding on those with notice of the proceedings and an
opportunity to be heard and grants continuing jurisdiction to the California courts until
certain changes in circumstances are established. (See also In re J.W., supra,
53 Cal.App.5th at p. 365 [UCCJEA does not implicate fundamental jurisdiction and
challenge to jurisdiction is subject to rules regarding forfeiture].)
To the extent the trial court’s order suggests that jurisdiction under the UCCJEA is
subject to reconsideration at a hearing on a permanent restraining order, we disagree.
5
The court did not, as mother suggested at oral argument, refuse to make any
findings regarding the child’s home state. Mother misreads the portion of the transcript in
which the court states, “I am going to take off the extra sections on these findings
because this is being done on an ex parte basis. So I am not making any findings at this
point other than he’s established, and the court already did that, found that there was
domestic abuse sufficient to issue a temporary restraining order. I don’t want to make it
that we’ve done anything beyond that. I haven’t made any findings. There’s been no
evidence, there has not been an evidentiary proceeding. I don’t want to imply there has.”
The findings to which the court refers, and which were stricken from the draft order
presented to the court, were findings regarding mother’s “defaming” father.
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While the custody determination itself is subject to reconsideration, jurisdiction under the
UCCJEA once established at a hearing for which the opposing party had proper notice
and an opportunity to be heard persists and remains exclusive until the conditions for
termination have been met. Mother made no attempt to demonstrate, nor could she, that
those requirements specified in section 3422, subdivision (a) had been met.
A “child custody proceeding” includes a proceeding for “protection from domestic
violence.” (§ 3402, subd. (d).) A “child custody determination” includes “a judgment,
decree, or other order of a court providing for the legal custody, physical custody, or
visitation with respect to a child. The term includes a permanent, temporary, initial, and
modification order.” (§ 3402, subd. (c).) Accordingly, when the court issues a temporary
restraining order awarding custody of the child to a parent, the court makes a “child
custody determination” at a “child custody proceeding” within the meaning of the
UCCJEA. To do so, the court is required to determine its jurisdiction—which it did in
this case. The court is likely correct that a restrained party under a temporary restraining
order would in the usual circumstances not have notice and an opportunity to be heard
until the hearing on the permanent restraining order, thus the determination would not be
binding. The facts in this case, however, are unusual. The relevant question is whether
mother was given notice and an opportunity to be heard as required by section 3408
before the jurisdictional finding was made.
Mother unquestionably had actual notice of the hearing. While she testified at the
evidentiary hearing that she randomly called courts in Los Angeles, New York, and San
Francisco and just happened to reach the San Francisco court during the hearing, the
court reasonably found her testimony lacked credibility. At oral argument, mother
acknowledged making the call and admitted that she knew that the hearing was taking
place because she had searched the court docket. She asserted, however, that she did not
know that custody of the child was being addressed at the hearing. Mother could not have
obtained access to the docket in the family law department without knowing the case
number, which strongly suggests that although avoiding service, she had received the
father’s notice of the hearing. The notice contained in the temporary restraining order
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emailed to the attorney representing her in her pending criminal case in Utah expressly
stated that the court intended to determine its jurisdiction over the child at the hearing.
The docket, of which we take judicial notice, indicated the scheduled hearing and that
father was requesting “domestic violence protective orders and custody orders.” Mother’s
failure to take any action in the face of this actual notice renders the court’s jurisdictional
finding binding. (See In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 494 [where
mother had actual notice of hearing but failed to appear, “[t]rial court properly found that
[mother] had an opportunity to be heard and simply failed to avail herself of it”]; In re
Marriage of Torres (1998) 62 Cal.App.4th 1367, 1380 [court’s jurisdictional finding
upheld where mother was given notice of the impending custody determination by
overnight mail and record reflects mother had actual notice of hearing].)
Moreover, mother was served on March 18 with the amended temporary
restraining order, which included the express finding that she had been given notice and
an opportunity to be heard before the custody order was entered. Mother took no action to
appeal or seek to have the trial court revise that order. Rather, on April 5, mother
submitted a response challenging jurisdiction on the ground that Utah was the child’s
home state, and on May 18 her attorney appeared at a hearing and argued that mother was
entitled to challenge jurisdiction at any time.
While perhaps arising from an unusual procedural circumstance, the result is
entirely consistent with the purpose of the UCCJEA. The UCCJEA is designed to prevent
“ ‘ “ ‘the harm done to children by shifting them from state to state to relitigate
custody.’ ” ’ ” (In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 497.) Exclusive,
continuing jurisdiction provides certainty and consistent judicial oversight of custody
determinations. (Id. at p. 501.) Mother’s attempts at forum shopping are entirely
inconsistent with the purposes of the UCCJEA and all the more reason that one court
should provide consistent oversight of the child’s custody.
Accordingly, the order finding that Utah is the child’s home state is reversed and
the matter remanded for further proceedings.
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Disposition
The order is reversed. Father is to recover his costs on appeal.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
BROWN, J.
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