W.M. v. V.A. ( 2019 )

Filed 1/3/19 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
W.M., B287735
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 17STPT00486)
v.
ORDER MODIFYING OPINION
V.A., [No change in judgment]
Defendant and Respondent.
THE COURT*:
The opinion herein, filed on December 13, 2018, is modified
as follows:
1. On page 3, in the FACTUAL AND LEGAL
BACKGROUND:
a. In the second paragraph, between “where they stayed”
and “until June 7, 2017” insert: “(except for a trip to
Paris in May)”.
b. In the third paragraph, first sentence, in the fragment
“while the parties were together in Belarus,” replace
“Belarus” with “Paris”.
2. On page 4, second paragraph, second sentence, replace
“Paris” with “Mallorca”.
3. On page 15, first paragraph, second sentence, replace
“Paris” with “[Mallorca]”.
There is no change in the judgment.
____________________________________________________________
*BIGELOW, P. J. GRIMES, J. STRATTON, J.
Filed 12/13/18 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
W.M., B287735
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 17STPT00486)
v.
V.A.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County. Mark H. Epstein, Judge. Reversed and
remanded.
Walzer Melcher, Christopher C. Melcher and Alan
Dershowitz for Plaintiff and Appellant.
Law Offices of Honey Kessler Amado, Honey Kessler
Amado, James A. Karagianides, Ivan B. Perkins; Wasser
Cooperman & Mandles, Laura A. Wasser, Jon L. Henningsen,
Ashley L. Montgomery; Law Offices of Sara A. Weinstein and
Sara A. Weinstein for Defendant and Respondent.
__________________________
SUMMARY
This is a child custody proceeding arising under the
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA, Fam. Code, § 3400 et seq.).1 The proceeding raises
questions of jurisdiction as between California and Belarus.
Under the UCCJEA, a California court otherwise having
jurisdiction cannot exercise its jurisdiction if a child custody
proceeding has already been commenced in a court of another
state “having jurisdiction substantially in conformity with” the
UCCJEA. (§ 3426, subd. (a), hereafter section 3426(a),
sometimes referred to as the “simultaneous proceedings” statute.)
On June 7, 2017, a Belarus court issued a decree finding
the place of residence of baby L. to be the place of residence of the
baby’s mother, V.A., in Belarus. On July 20, 2017, baby L.’s
father, W.M., who was unaware of the Belarus decree, filed a
petition in the superior court, seeking legal and physical custody
of baby L. A few days later, the trial court granted father’s ex
parte request for temporary emergency orders on child custody
and visitation. Mother responded with a motion to quash the
orders on the ground that California does not have jurisdiction to
issue child custody orders in this case.
The trial court granted mother’s motion to quash. The
court found the Belarus residency action was a child custody
proceeding within the meaning of the UCCJEA, and the Belarus
court had jurisdiction “substantially in conformity with” the
UCCJEA. Based on these findings, the court found it could not
exercise its jurisdiction.
We conclude the trial court erred. The UCCJEA mandates
that “[b]efore a child custody determination is made,” notice and
1 Further statutory citations are to the Family Code.
2
an opportunity to be heard must be given to all persons entitled
to notice. (§ 3425, subd. (a).) Because father received no notice of
the Belarus action, and because notice was not given “in a
manner reasonably calculated to give actual notice” (§ 3408,
subd. (a)), the Belarus court did not have jurisdiction in
conformity with UCCJEA standards. The trial court therefore
erred in granting mother’s motion to quash and refusing to
exercise its jurisdiction.
FACTUAL AND LEGAL BACKGROUND
Mother is a professional tennis player who was born in
Belarus and is a resident of Belarus and Monaco. Since the
beginning of her career in 2003, she has spent much of her time
travelling and competing in international tennis tournaments.
Mother and father met in late 2015 in Hawaii, where father, a
United States citizen, then lived. Their relationship produced
baby L., who was born in Santa Monica in December 2016.
In March 2017, when baby L. was 10 weeks old, the family
travelled to Belarus, where they stayed until June 7, 2017, when
they travelled to Mallorca for a tennis tournament and then on to
London where mother competed at Wimbledon.
On May 25, 2017, while the parties were together in
Belarus, mother filed an application in the Belarus courts to
determine baby L.’s place of residence. The application stated
that mother’s relationship with father was “in decline, the
defendant scandalized, raised his voice, threatened to take away
the child,” and “[n]ow we have a dispute about the place of
residence of the child.” She asked the court to determine
baby L.’s residence “by my place of residence” at an apartment in
Minsk.
3
On May 29, 2017, the Belarus court issued a letter
addressed to father at the Minsk apartment. (Father had a visa
allowing him to be in Belarus, and the Minsk apartment was
father’s registered address in Belarus.) The court’s May 29 letter
advised father of mother’s claim “regarding determination of
place of residence of [baby L.]” and that a hearing would be held
on June 7, 2017.
On June 7, 2017, the Belarus court held a hearing. Neither
mother nor father attended, having left early that morning for
Paris. Baby L.’s maternal grandmother, A.V.A., appeared at the
hearing for mother, and no one appeared for father. (Father
claimed he was completely unaware of the hearing, while mother
says she told father about it. The trial court credited father’s
testimony, and concluded father “was unaware of the application,
the hearing, or the decree until August 2017, when it came to
light in the California action.”)
The June 7, 2017 Belarus decree found that plaintiff
(mother) “takes care of the child herself from the moment of his
birth”; “in spite of the itinerant nature of work, the child is
always with her”; and in addition, A.V.A. “helps her to care for
her child.” The court found mother was a Belarus citizen, had a
permanent place of residence in Minsk, and the child was
documented by a Belarusian passport, registered at the mother’s
place of residence. The court found defendant (father) owned no
housing accommodation himself, and was registered at mother’s
place of residence. The court found mother and father “have a
dispute about the place of residence of the child.” The court
decided “[t]o determine the place of residence of [baby L.], born
[in December 2016], by the place of residence of his mother, at
the address [in Minsk].”
4
In July 2017, while in London, mother and father had “an
awful disagreement” and ended their relationship. Father
returned to the United States on July 12, 2017, and mother
travelled to the United States with baby L. a few days later, to
prepare and train for the U.S. Open in August. (Mother owns a
single-family home in Manhattan Beach. She has a P1 visa for
athletes that authorizes her presence in the United States to
compete and for other related activities; she is not a permanent
resident.)
On July 20, 2017, father filed his petition in Los Angeles,
and on July 26, 2017, he sought temporary emergency orders on
child custody and visitation. That day, mother responded by
arguing the court did not have jurisdiction over child custody
because neither of the parties (nor baby L.) resided in California,
and all issues should be determined in Belarus. The court issued
temporary orders that day, preventing the parties from removing
baby L. from Los Angeles County, requiring surrender of
baby L.’s passports, and giving father temporary physical custody
with visitation for mother.
On July 28, 2017, mother filed her motion to quash, stating
she had filed a court action in Belarus in May 2017; the court had
already determined, on June 7, 2017, that baby L. was a resident
of Belarus; and mother was “in the process of initiating custody
proceedings there.”
Also on July 28, 2017, mother filed a statement of claim in
the Belarus court (referred to as the visitation action), asking the
court to allow father to visit his son once a month at the address
of the baby’s residence in Belarus in the presence of mother.
On July 31, 2017, the Belarus court issued a letter
addressed to father at the Minsk apartment, notifying him of
5
mother’s claim “regarding definition of order of communication
with the child,” and that a hearing would be held on August 3,
2017.
On August 3, 2017, the Belarus court held a hearing and
decided that father could “communicate[] with [baby L.] once a
month in the presence of [mother] at the address of [baby L.’s]
residence” in Minsk, or in any other place as agreed by the
parties.
On August 9, 2017, the California court made various
orders setting discovery, briefing and hearing schedules on the
jurisdiction issue, and temporary orders that alternated physical
custody of baby L. between mother and father (with security
guard monitors outside mother’s home during nights when she
had custody of baby L.).
On August 15, 2017, the parties stipulated to a temporary
order detailing the terms of their shared physical custody of
baby L. and various child abduction prevention orders, including
security guard monitoring and surrender of baby L.’s passports.
This order was renewed several times during the litigation.
On January 12, 2018, the trial court granted mother’s
motion to quash. The trial court found, among other things, the
Belarus residency action was a child custody proceeding, and the
Belarus court had jurisdiction “substantially in conformity with”
the UCCJEA. The court vacated its orders concerning mother’s
right to travel out of the jurisdiction with baby L. and other
orders restraining mother and baby L., but stayed the effect of its
6
order for three weeks, allowing father time to seek an additional
stay from this court.2
Father filed a timely notice of appeal, and then a petition
for writ of supersedeas. We granted the writ (over a dissent),
staying the trial court’s order pending resolution of the appeal.
Our order, however, vested the superior court with jurisdiction to
grant any subsequent temporary custody, visitation, or support
orders, including travel orders for the removal of baby L. from
California for domestic or international travel.
2
The court also ruled on many other contested issues. None
of these has been challenged on appeal. Thus, the court found
Belarus is a “state” for purposes of the UCCJEA (§ 3405,
subd. (a)), and its child custody law does not violate fundamental
principles of human rights (§ 3405, subd. (c)). Neither California
nor Belarus is the “home state” of baby L. (§ 3421, subd. (a)(1).)
Both California and Belarus meet the jurisdictional standards of
section 3421, subdivision (a)(2) (the child and at least one parent
have a significant connection with the state, and substantial
evidence is available in the state concerning the child’s care and
protection). And, although the court concluded Belarus had
jurisdiction substantially in conformity with the UCCJEA, the
court declined to enforce the Belarus decrees, because they were
both made without giving father notice and an opportunity to be
heard. The court also ruled on the alternative issue mother
raised of inconvenient forum, “in the event that its jurisdictional
determination is reversed.” On the forum issue, the court
concluded that “on balance it would exercise its jurisdiction.” The
factor tipping the scales was California’s procedural safeguards
ensuring “that both sides are heard, and therefore that the best
decision is ultimately made.”
7
DISCUSSION
We begin with a description of the statutory background
and pertinent provisions of the UCCJEA, and then turn to its
application in this case.
1. The UCCJEA
The statutory background of the UCCJEA is described in In
re Marriage of Paillier (2006) 144 Cal.App.4th 461, 469 (Paillier).
In 1973, California adopted a predecessor statute.3 (Ibid.) In
1997, the National Conference of Commissioners on Uniform
State Laws approved a revised version, the UCCJEA.
(10 Witkin, Summary of Cal. Law (11th ed. 2017) Parent & Child,
§ 308, p. 402.) California adopted the UCCJEA in 1999. (Ibid.)
“Its purpose, in addition to harmonizing inconsistent case law
under the [predecessor act], was to ‘bring[] a uniform procedure
to the law of interstate enforcement’ by ‘provid[ing] . . . a
remedial process to enforce interstate child custody and visitation
determinations.’ ” (Paillier, at p. 469.)
“The UCCJEA takes a strict ‘first in time’ approach to
jurisdiction.” (Paillier, supra, 144 Cal.App.4th at p. 469.) In
general, once the court of an “appropriate state” – one having
jurisdiction under section 3421, subdivision (a) – has made a
child custody determination, “that court obtains ‘exclusive,
continuing jurisdiction . . . .’ ” (Paillier, at p. 469.)
Under section 3421, a court “has jurisdiction to make an
initial child custody determination” if it is the child’s home state
(id., subd. (a)(1)). If there is no home state (as in this case), the
court has jurisdiction to make an initial child custody
3 Civil Code former section 5150 et seq., added by Statutes
1973, chapter 693, section 1, pages 1251-1259.
8
determination if the child and at least one parent “have a
significant connection with this state other than mere physical
presence,” and “[s]ubstantial evidence is available in this state
concerning the child’s care, protection, training, and personal
relationships.” (§ 3421, subd. (a)(2)(A)&(B).) And, under
section 3425, “[b]efore a child custody determination is made
under [the UCCJEA], notice and an opportunity to be heard in
accordance with the standards of Section 3408 must be given to
all persons entitled to notice . . . .”4 (§ 3425, subd. (a), hereafter
section 3425(a).)
The notice required for the exercise of jurisdiction when a
person is outside the state “may be given in a manner prescribed
. . . 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), hereafter section 3408(a).)5
California courts must treat a foreign country as if it were a
state for purposes of applying the general and jurisdictional
provisions (§§ 3400-3430) of the UCCJEA. (§ 3405, subd. (a).) A
California court need not apply the UCCJEA if the child custody
law of a foreign country violates fundamental principles of
human rights. (§ 3405, subd. (c).) With that exception, “a child
custody determination made in a foreign country under factual
4 The UCCJEA “does not govern the enforceability of a child
custody determination made without notice or an opportunity to
be heard.” (§ 3425, subd. (b).)
5 “Proof of service may be made in the manner prescribed . . .
by the law of the state in which the service is made.” (§ 3408,
subd. (b).)
9
circumstances in substantial conformity with the jurisdictional
standards of [the UCCJEA] must be recognized and enforced
under Chapter 3 [enforcement].”6 (Id., subd. (b).)
Finally, a California court “may not exercise its jurisdiction
under this chapter [§§ 3421-3430] if, at the time of the
commencement of the proceeding, a proceeding concerning the
custody of the child has been commenced in a court of another
state having jurisdiction substantially in conformity with [the
UCCJEA] . . . .” (§ 3426(a).)
2. This Case
We preface our discussion with some observations that may
facilitate an understanding of the error that undermined the trial
court’s otherwise thorough and lucid resolution of the many
issues and arguments the parties raised in this case.
The flaw in the trial court’s analysis was the failure to
consider section 3425 – the jurisdictional provision requiring
notice and an opportunity to be heard “[b]efore a child custody
determination is made under [the UCCJEA].” (§ 3425(a), italics
added.) Instead, the trial court apparently concluded that so long
as the Belarus court “ha[d] jurisdiction to make an initial child
custody determination” under the section 3421 standards – that
is, “a significant connection” of the child and a parent to Belarus,
and substantial evidence in Belarus concerning the child – then
6 Under section 3443, a California court “shall recognize and
enforce a child custody determination of a court of another state
if the latter court exercised jurisdiction in substantial conformity
with [the UCCJEA] or the determination was made under factual
circumstances meeting the jurisdictional standards of [the
UCCJEA] . . . .” (Id., subd. (a).)
10
no more was required to conclude that Belarus “ha[d] jurisdiction
substantially in conformity with [the UCCJEA].” (§ 3426(a).)
As we explain further post, that is not correct. Adequate
notice is always a factor fundamental to jurisdiction, and custody
proceedings under the UCCJEA are no exception to that
principle.
a. The standard of review
The role of the appellate court, “once the [trial] court has
evaluated witnesses’ credibility, resolved conflicts in the evidence
and made its findings, is to ensure that the provisions of the
UCCJEA have been properly interpreted and that substantial
evidence supports the factual basis for the [trial] court’s
determination whether California may properly exercise subject
matter jurisdiction in the case.” (In re Aiden L. (2017)
16 Cal.App.5th 508, 520.) Accordingly, we review matters of
statutory construction de novo, and review the trial court’s
factual findings for substantial evidence.
b. Contentions and conclusions
Father raises only two issues on appeal: whether the
Belarus residency action was a child custody proceeding as
defined in the UCCJEA, and whether Belarus had jurisdiction
substantially in conformity with the UCCJEA. We need not
examine the first point, because the jurisdictional point is
dispositive. Belarus did not have jurisdiction to make a child
custody determination because it did not give father “notice and
an opportunity to be heard” (§ 3425(a)) in a manner “reasonably
calculated to give actual notice” (§ 3408(a)).
i. The law on jurisdiction
The fundamental principle here is simple. A court cannot
make a child custody determination without first having the
11
jurisdiction to do so. That is so generally, and it is so under the
UCCJEA. There is no authority to the contrary.
Jurisdiction does not consist only of so-called “subject
matter” jurisdiction. Venerable authorities explain that, unless a
defendant submits to the court’s jurisdiction, “a court’s power,
i.e., jurisdiction to render judgment in an action, requires . . .
jurisdiction of the subject matter of the action, territorial
jurisdiction of the action, and adequate notice to the defendant.”
(2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 7, p. 580,
citing Rest.2d, Judgments, § 1; cf. Gamet v. Blanchard (2001) 91
Cal.App.4th 1276, 1286 [“A judgment entered without notice is
void and can be attacked at any time.”].)
The same principles govern under the UCCJEA: “Even
though the court has jurisdiction of the subject matter under the
traditional bases (domicile or physical presence [citation]) or
under the alternative bases prescribed by the [UCCJEA],
jurisdiction of the parties depends upon sufficient notice. A
custody proceeding is in personam, not in rem; hence, the process
requirements of personal actions apply, and notice of the
proceeding must be given to the parents.” (2 Witkin, Cal.
Procedure, supra, § 279, p. 886, italics added.) Further: “[A]
parent’s right to notice of custody proceedings affecting his or her
child is constitutionally compelled, and a custody order made in
the absence of such notice is invalid.” (2 Cal. Fam. Law Prac. &
Proc. (2d ed. 2017) § 32.40[1].)
The principle is likewise clear from the UCCJEA on its
face: “Before a child custody determination is made under [the
UCCJEA], notice and an opportunity to be heard in accordance
with the standards of Section 3408 must be given to all persons
entitled to notice . . . .” (§ 3425(a).)
12
ii. The facts in this case
That brings us to the factual question in this case: Did the
Belarus court give father notice and an opportunity to be heard
at the June 7, 2017, hearing in accordance with the standards of
section 3408? Those standards require that notice be given to
father “in a manner reasonably calculated to give actual notice.”
(§ 3408(a).)
On this point, the trial court – applying the section 3408
standard and recognizing that actual notice is not required –
expressly stated that it would not enforce the June 7, 2017
decree. After first stating it would not enforce the Belarus court’s
August 3, 2017 visitation decree (“[t]he process went from
application [mailed July 31] to judgment [August 3] in record-
breaking time”), the court stated:
“The Court also will not enforce the June 7, 2017 decree
either, although the question is a closer one. . . . [I]t remains the
case that the order was made without notice or an opportunity to
be heard.”
Substantial evidence supports the trial court’s conclusion
that the June 7, 2017 decree was made without notice to father.
That evidence consists of father’s testimony that he had no notice
of the June 7, 2017 hearing, and the testimony of father’s expert
on Belarusian law, Dr. Aliaksandr Danilevich. The trial court
stated that it “credit[ed] [father’s] testimony that he had no
notice and Dr. Danilevich’s testimony concerning Belarus law.”
The court described Dr. Danilevich’s testimony:
“Dr. Danilevich testified that under Belarus law, notice is
typically made by registered mail (sent by the court) with a
return receipt.” While that manner of notice was “certainly
reasonable,” the trial court found that “[t]he problem here is that
13
there is absolutely no evidence that any return receipt was
submitted for either application [referring to the applications
resulting in the June 7 and the August 3 decrees].” And:
“Dr. Danilevich also testified that where the registered mail
option was uncertain, the court had the ability to give notice by
email, fax, or other means. However, again, there is no evidence
that the Belarus court made any attempt to do so. And, while it
is true that the Belarus court likely did not have [father’s] email
address, [mother] had it. She could have provided that
information to the Belarus court, especially given that she knew
for a certainty that the mailed notice addressed to an apartment
in Minsk where [father] had never actually lived would never
reach [father].”7
7 While the trial court did not specifically cite it,
Dr. Danilevich also testified that under Belarus law, the
petitioner in a case “has to provide the court with all contacting
[data], all possible contacting data, phone number, e-mails, all
the – of the party to give to the court the possibility [to] contact
him or her in any way. Different ways.” Mother’s expert,
Dr. Alena Babkina, testified to the contrary, that under Belarus
law mother had no obligation to provide the court with father’s e-
mail address, and she complied with her duty to provide
information about father by providing his official address. But as
mother herself tells us, the disputed meaning of a foreign law is a
question of fact for determination by the trial court. (See, e.g.,
Estate of Schluttig (1950) 36 Cal.2d 416, 424 [where “the issue to
be determined involved questions as to the existence, translation,
interpretation and effect of [foreign] laws,” and the trial court
heard “highly conflicting testimony by experts upon the laws of
those countries and their application under given circumstances,”
the determination of the issue “was one of fact, and the finding of
the trial court, if supported by substantial evidence, will not be
disturbed on appeal”].)
14
The trial court also described father’s testimony. Father
stated, among other things, “that he had no idea there was going
to be a hearing on June 7, 2017, which was the day that he and
[mother] left Belarus for Paris.”8 The court stated it “believes
[father] when he states that he would not have left the country on
the same day as a court hearing involving his son was going to go
forward.”
Mother recognizes that section 3425(a) “requires notice and
opportunity to be heard before a court may exercise its
jurisdiction to make a custody order.” She does not dispute that
father and Dr. Danilevich testified as described by the trial court.
Nor does she suggest that their testimony is not substantial
evidence father had no notice of the June 7, 2017 proceeding.
Mother also acknowledges that a determination of “substantial
conformity” with the UCCJEA “requires analyzing the facts and
circumstances under which the sister-state [here, Belarus]
exercised jurisdiction.”
Despite her understanding of these principles, mother
contends that “Belarus procedures satisfy the notice
requirements for an exercise of jurisdiction,” and the trial court
determined that “the notice procedures under Belarusian law”
were reasonably calculated to give actual notice. Neither claim
has merit.
8 The court also described father’s testimony as stating “that
he never got the notice in the mail at the apartment in Minsk,”
that he was “given a different, and innocuous reason” for the fact
that baby L.’s maternal grandmother (who attended the hearing
for mother) was staying behind in Belarus, and that father
“produced a contemporaneous email that supports his version of
events.”
15
The fundamental flaw in mother’s analysis is her reliance
on Belarus procedures, rather than on whether and how the
procedures were employed in the particular case. Yes, the trial
court found that Belarus procedures could theoretically be applied
so that notice is given “in a manner reasonably calculated to give
actual notice.” (§ 3408(a).) But theory does not satisfy section
3408. As the trial court put it, “as a theoretical matter,” both of
the notice methods to which Dr. Danilevich and Dr. Babkina
testified “at least potentially on their face may satisfy section
3408. But that does not answer the question when applied to this
specific case.” We agree, it does not.
Section 3408 expressly states that notice “must be given in
a manner reasonably calculated to give actual notice.” (§ 3408(a),
italics added.) The trial court found that notice compliant with
section 3408 standards was not given. The court quoted the
section 3408 standards at the beginning of its notice discussion,
and in the end, after again referring to section 3408, stated that
“it remains the case that the [June 7, 2017] order was made
without notice or an opportunity to be heard.” That being so, the
Belarus court had no jurisdiction to make a child custody
determination.
We note two further points. Mother tells us that
jurisdiction is “a separate concept from enforcement,” so while
notice “was insufficient for enforcement purposes,” there were
“sufficient standards for due process under the Belarusian legal
system” for jurisdictional purposes.9 This is just another way of
9 The trial court also distinguished between the
jurisdictional provisions of the statute (ch. 2) and its enforcement
provisions (ch. 3), stating that “the additional notice
requirements are found exclusively in the chapter dealing with
16
saying that if notice procedures are theoretically adequate, a
court may exercise jurisdiction in a particular case despite a lack
of notice. As we see it, that is not correct. Moreover, basic
principles of statutory construction do not allow us to construe
provisions of the same statute without regard to the statute as a
whole. “[A]ll parts of a statute should be read together and
construed in a manner that gives effect to each, yet does not lead
to disharmony with the others.” (City of Huntington Beach v.
Board of Administration (1992) 4 Cal.4th 462, 468.) To suggest
that a court may make a child custody determination under
lesser notice standards than those required for enforcement of a
sister state’s custody determination would not comport with this
principle of statutory construction.
Finally, mother relies heavily on AO Alfa-Bank v. Yakovlev
(2018) 21 Cal.App.5th 189 (AO Alfa-Bank). That case states the
principle that “due process does not require actual notice; it
requires only a method of service ‘reasonably calculated’ to
impart actual notice under the circumstances of the case.” (Id. at
p. 195, italics added.) That is undoubtedly so; indeed, that
principle is the same principle stated in section 3408, and the
trial court here recognized and applied that principle. AO Alfa-
Bank – which is not a child custody case – does nothing to
advance mother’s position.
In AO Alfa-Bank, the parties, in the surety agreement that
generated the lawsuit, agreed that notices would be sent to the
the enforcement of a foreign decree.” That is simply not so – the
section 3425 notice requirement is a chapter 2 jurisdictional
provision and an express precondition for making a child custody
determination under the UCCJEA.
17
defendant at his residence in Russia (the same address as the
address he registered with the government), and he was
contractually obligated to notify the plaintiff of any new address
within five days. He did not do so before (or after) he fled the
country to seek asylum in the United States, and the plaintiff did
not know he had fled the country until years after it filed suit.
(AO Alfa-Bank, supra, 21 Cal.App.5th at pp. 195-196.) The
Russian court file showed, among other things, two summons
letters in succeeding months, as well as two telegrams sent from
the court to the defendant’s Moscow residence in later months.
(Id. at pp. 204-205.) The court found that “[u]nder these
circumstances, we conclude the procedure used was reasonably
calculated to apprise [the defendant] of the pendency of the action
and afford him an opportunity to respond.” (Id. at p. 209, italics
in original; id. at p. 210 [“Critical to our conclusion is the fact
that under the surety agreement, [the defendant] was required to
keep his official registered address up to date.”].) In short, under
those circumstances, notice was reasonably calculated to give
actual notice. (Id. at p. 202.)
There is no similarity with the circumstances in this case.
Moreover, AO Alfa-Bank demonstrates the proper approach to
the issue: “We first consider whether the evidence establishes
proper service under Russian law. [Citations.] If it does, we then
consider whether such service was reasonably calculated, under
all the circumstances, to impart actual notice.” (AO Alfa-Bank,
supra, 21 Cal.App.5th at p. 203.) Here, substantial evidence
clearly supports the trial court’s finding that the notice standards
in section 3408 of the UCCJEA were not met.
Because the Belarus court did not provide notice to father
consistent with the standards specified in section 3408, and
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because notice is required before a court may make a child
custody determination (§ 3425(a)), the Belarus court did not
“hav[e] jurisdiction substantially in conformity with [the
UCCJEA]” under section 3426(a). Accordingly, the California
court has “first in time” jurisdiction, and the trial court erred in
ceding jurisdiction to the Belarus court under section 3426(a).
Mother’s motion to quash the trial court’s orders on the ground
that California does not have jurisdiction to issue child custody
orders in this case should have been denied.
DISPOSITION
The order refusing to exercise jurisdiction and granting
mother’s motion to quash is reversed, and the matter is
remanded to the trial court for further proceedings. Father shall
recover his costs on appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
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