Guardianship of Morgan H. CA1/2

Filed 11/19/13 Guardianship of Morgan H. CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re Guardianship of MORGAN H. et al.,
Minors.

C. P.,
Petitioner and Appellant, A138630
v.
CHRISTINE H. et al., (Contra Costa County Super. Ct.
No. P13-00054)
Objectors and Respondents

Petitioner C. P. appeals from the probate court’s order dismissing her petition for
the appointment of a guardian for her two grandchildren. The court determined it lacked
jurisdiction to consider her petition for several reasons, including that Montana was the
children’s “home state” under the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA) (Fam. Code, § 3400 et seq.). C. argues the probate court erred because it
had both continuing subject matter jurisdiction as the result of a previous family court
ruling regarding the children’s custody, and initial jurisdiction under the UCCJEA
because the bulk of the time the children had lived in Montana should not have been
considered by the court in determining whether that was their home state under the
UCCJEA. We affirm the probate court’s order.

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 BACKGROUND
We summarize those facts and procedural history relevant to our consideration of
C.’s appellate claim. On January 22, 2013, C., through counsel, filed a petition in the
probate court of the Contra Costa County Superior Court seeking the appointment of a
guardian for her granddaughters, Payton H. and Morgan H., who were 9 and 8 years old
respectively at the time. She declared that the parents, C.’s daughter Christine H. and the
children’s adoptive father, Z.H., had had a “short, domestically violent marriage” that
ended in divorce in 2011, and had remarried in late 2012. The parents had physically,
mentally, and emotionally abused the children for a long time, and neglected their
medical needs. Also, Christine H. abused drugs and suffered from a mental disorder that
affected the children’s well being.
C. addressed why the probate court had jurisdiction to consider her guardianship
petition, even though Christine H. and the children were living in Montana. C. contended
that Christine H. had “fled” to Montana in order to avoid her legal obligations in
California. She also contended that Z.H. worked and resided in Contra Costa County
and, therefore, was a parent with significant connections with California. She asserted
that the probate court was the appropriate jurisdiction and forum for the proceeding
because almost all of the witnesses, medical records, and other court documents relevant
to the merits of her petition were located in Contra Costa County or elsewhere in
California. Also, C. argued, the Contra Costa County Superior Court had continuing
jurisdiction to decide child custody issues pursuant to the UCCJEA because its family
court had adjudicated the children’s custody in the previous dissolution of marriage
proceeding between Christine H. and Z.H., held before the two remarried.
The parents, appearing in propria persona, filed written responses to C.’s petition.
The parents objected to the petition and denied all of C.’s negative allegations about
them. They declared that Christine H. was the biological mother and Z.H. was the
adoptive father of Morgan H. and Payton H. The two had married in November 2007,
and Z.H. had adopted the children in February 2008. After their previous marriage had
ended, they remarried each other on June 25, 2012, in Missoula, Montana. The children

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were in their second year of school in Missoula and doing “wonderful” there, had made
friends, and lived in a stable home.
According to the parents, the children were “fearful” of C., never had a loving
relationship with her, only had had contact with her for a short time, and had been
“traumatized” by her. C. had “a long history of instability, aggressive and manipulating
behavior, uncontrolled rages, and irrational outbursts.” Her behavior led to strained
relations with Christine H., and a restraining order was filed in California in late 2011 to
ensure a safe move to Missoula in December 2011.
The parents also contended that C. had misrepresented events in their previous
dissolution of marriage proceeding in the family court. In fact, the family court had
denied C.’s motion for joinder because she was not an indispensable party, denied her
request for a stay of the judgment, and denied her request that it retain jurisdiction
because, it concluded, C. should raise her issues before a Montana court. The parents
also argued that the family court’s previous jurisdiction over them and their children had
terminated as a result of their subsequent remarriage, citing Davis v. Davis (1968) 68
Cal.2d 290 (Davis). A few days later, they filed a longer memorandum of points and
authorities, in which they made additional arguments as to why the probate court did not
have jurisdiction or, at the very least, should not exercise it pursuant to the doctrine of “
‘inconvenient forum.’ ”1
A court investigator submitted a report to the probate court requesting that,
because of his office’s limited resources, the court first determine if it had jurisdiction
and, if it did, continue the matter to allow the investigation to be completed. The probate
court then held a hearing in March 2013 regarding the jurisdiction issues.
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C. contends none of the parents’ response papers were served on her.
Nonetheless, the record suggests that C. had the opportunity to at least review these
papers prior to the hearing held by the court, discussed below. The record contains an
April 2013 declaration by Erin Houck, the same individual who had previously signed a
proof of personal service on Z.H. of C.’s petition papers. Houck stated that he had
reviewed the court files for the guardianship action and found responses filed by the
parents, but did not find any indication that these responses were served on C. or her
lawyer.

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 At the court’s request, Z.H. testified briefly at the hearing. He indicated that he
was the adoptive father of the children; Christine H. and the children had moved to
Montana in December 20122 and the children had continuously lived there since that
time; he took up residence in Montana in January 2012; he had a California, but not a
Montana driver’s license; and he resided with his parents in California at times.
After hearing argument, the court dismissed C.P’s guardianship petition for lack of
jurisdiction, explaining its ruling in a seven-page order. Among other things, the court
rejected C.’s argument that the custody orders previously issued by the family court
allowed the probate court to retain jurisdiction under the UCCJEA. The court concluded
that C. did not have standing to assert any rights in the matter because she was not a party
in the family court proceedings; C. was required to raise her issues before that family
court because she was indirectly challenging its previous denial of her motion that it
retain jurisdiction; and Christine H. and Z.H.’s 2012 remarriage “rendered any prior
custody filing and decree null and void” pursuant to Davis, supra, 68 Cal.2d 290.
The probate court also ruled that it did not have jurisdiction to consider C.’s
guardianship petition under Family Code section 3421, subdivision (a)(1) of the UCCJEA
because the children had lived in Montana for the past 14 months or more (when six
months was the relevant time period (Fam. Code, § 3421, subd. (a)(1)). Therefore,
Montana, not California, was their “home state.” The court also found that no evidence
suggested that a court of another state did not have jurisdiction or that a court of a home
state had declined to exercise jurisdiction because California was a more appropriate
forum.
Finally, the court stated that, even if it did have jurisdiction, it would decline to
exercise it under the doctrine of inconvenient forum for a number of reasons.
At the beginning of the hearing, the court attempted to appoint counsel for the
children, but the counsel selected indicated she could not serve because of an ethical

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Z.H. initially answered affirmatively when asked by the court if the initial move
to Montana was in November of 2011. However, he later corrected the court when it
referred to that date, indicating that the move was in December 2011.

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conflict. The court stated it was “likely” it would be appointing counsel for the children
but proceeded with the hearing. The following week, after the court issued its order
dismissing C.’s guardianship petition, it issued an order appointing counsel to represent
the interests of the children in the proceeding.
C. filed a timely notice of appeal. C. filed an opening brief, but no further briefing
was submitted by any parties.
DISCUSSION
C. argues the superior court erred in dismissing her petition for several reasons.
We conclude that two of those reasons lack merit and are dispositive of her appeal.
I. C. P.’s Continuing Jurisdiction Claim
C. first argues that the probate court erroneously dismissed her petition because it
had continuing subject matter jurisdiction regarding custody of the children. The family
court had previously exercised this jurisdiction in ruling on the children’s custody in the
prior dissolution proceeding between Christine H. and Z.H. C. argues that, as a result,
the superior court, including its probate court, had continuing, exclusive subject matter
jurisdiction regarding custody of the children after that time.
We reject C.’s continuing jurisdiction argument for two reasons.3 The first is
waiver. We do not need to discuss the details of her argument because she ignores an
essential part of the legal foundation for the probate court’s ruling. Specifically, the court
determined that any jurisdiction previously exercised by the family court was rendered
null and void pursuant to Davis, supra, 68 Cal.2d 290. In Davis, our Supreme Court
recognized that, “[w]hile it appears that no California case has considered this question or
one closely analogous to it, the rule as developed in other jurisdictions is that if the

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We also note that C.’s trial counsel, who is also her appellate counsel, may have
conceded below that the remarriage of Christine H. and Z.H. had terminated the family
court’s jurisdiction. He stated at one point during the hearing, “The remarriage is kind of
a red herring because remarriage certainly ended the jurisdiction they’re talking about.”
When the court asked if that was the jurisdiction C. was “attempting to piggyback on,”
counsel said no, and that C. could not go back into the family court. Because the import
of counsel’s statements is not entirely clear, we do not further discuss it.

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parties again intermarry[,] child custody and support orders as between themselves are
thereupon terminated, as well as the jurisdiction of the court to enforce such orders, and
that this is true whether or not the parents subsequently divorce again.” (Id. at p. 292.)
By ignoring this critical aspect of the probate court’s ruling, C. has waived the
issue of whether Davis controls here. (Hambrose Reserve, Ltd. v. Faitz (1992) 9
Cal.App.4th 129, 133 [failure to address a point on appeal was a waiver of any challenge
to the lower court’s ruling on that basis], overruled on other grounds in Trope v. Katz
(1995) 11 Cal.4th 274, 292.)
Even if C. had not waived the issue, we conclude we would be compelled to
follow Davis here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Therefore, C.’s argument lacks merit as well.4
II. C. P.’s “Initial Jurisdiction” Claim
C. also argues that the probate court erroneously determined it did not have subject
matter jurisdiction to make an initial child custody ruling. C.’s “initial jurisdiction”
argument is also unpersuasive.
“It is well settled in California that the UCCJEA is the exclusive method of
determining subject matter jurisdiction in custody disputes involving other jurisdictions.”
(In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 376 (Sareen).) Among other
things, a California court has jurisdiction to make an initial child custody determination if
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
4
Although C. is less than clear, she may also be arguing that the superior court
had continuing subject matter jurisdiction because a California court ruled on the
children’s custody in the course of the 2005 dissolution of marriage proceeding between
Christine H. and her previous husband, the children’s biological father. Her counsel also
briefly alluded to this proceeding in the hearing below. To the extent C. argues this on
appeal, she fails to explain why such previous jurisdiction survived the later adoption of
the children by Z.H., as well as the two subsequent marriages to Z.H. by the children’s
mother, Christine H., particularly in light of Davis, supra, 68 Cal.2d 290. Therefore, she
has waived this issue. (Hambrose Reserve, Ltd. v. Faitz, supra, 9 Cal.App.4th at p. 133;
People v. Stanley (1995) 10 Cal.4th 764, 793 [failure to support appellate argument with
legal authority grounds for waiver].)

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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.” (Fam. Code, § 3421, subd.
(a)(1).) The probate court found that the children had resided in Montana for more than
14 months prior to the date of the hearing. Therefore, Montana, not California, was the
children’s home state pursuant to Family Code section 3421, subdivision (a)(1).5
Although the court did not expressly so state, this portion of its ruling was
necessarily a rejection of C.’s argument that it should construe the children’s residency in
Montana to be less than six months, based on case law. According to C.’s counsel in the
hearing below, “once an action or proceeding is occurring in a state . . . the fact that
somebody moves away does not count towards their six months somewhere else. . . . In
this case there was a proceeding, Marriage of Hites, which ended towards the end of July.
I think around the 25th of July a judgment was entered. So at the time we filed our
petition, six months had not elapsed. We had to file in California. No one could have
filed in Montana.”
C. essentially repeats this argument on appeal, except that she asserts the family
court’s jurisdiction terminated on a different date, and upon the occurrence of a different
event. Rather than rely on the entry of judgment, which she now acknowledges occurred
on May 10, 2012, C. relies on the family court’s filing of its written order denying her
postjudgment motions, which occurred on August 2, 2012. According to C., the period
between August 2, 2012, and her January 22, 2013 filing of her guardianship petition is
the length of time the children should be construed as residing in Montana. Since it is
less than six months, the probate court erred in ruling that it did not have initial
jurisdiction to consider her petition pursuant to Family Code section 3421, subdivision
(a)(1).

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Although the probate court did not expressly say so, its ruling suggests that it
found, or at least assumed for the purposes of its analysis, that Z.H. was “a parent [who]
continue[d] to live” in California within the meaning of Family Code section 3421,
subdivision (a)(1).

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 C.’s appellate argument is unpersuasive for three reasons. First, she does not
indicate she asserted below that the family court’s jurisdiction ended on August 2, 2012,
when it filed its order denying her postjudgment motions, and we have found no
indication in the record that she did so. By not presenting this theory first in the court
below, she has waived the argument on appeal. (Estate of Westerman (1968) 68 Cal.2d
267, 279 [“a party to an action may not, for the first time on appeal, change the theory of
the cause of action”].)
Second, even in the absence of waiver, C. relies on an inapposite case to argue that
the probate court, in determining whether the children had resided in Montana for longer
than six months, should not have counted any time they lived there during the pendency
of the previous family court proceeding. In the case she relies on, Sareen, supra, 153
Cal.App.4th 371, the couple involved were married in India in 2002 and moved to New
York, where their daughter was born in February 2004. (Id. at pp. 373-374.) In August
2004, the couple traveled to India and separated; the father filed divorce and child
custody proceedings in India that same month. (Id. at p. 374.) The parties proceeded to
litigate their disputes in India. (Ibid.) The mother left India in November 2005, and
moved to California with the child, where, in January 2006, she filed a petition for child
custody in the Sacramento County Superior Court. (Ibid.)
One of the issues before the Sareen court was whether, under the UCCJEA,
California could exercise jurisdiction regarding the mother’s petition when the child had
resided in India for a year and then moved to California, where the mother filed her
petition less than three months later. (Sareen, supra, 153 Cal.App.4th at pp. 377-378.)
Under these circumstances, the father argued to the trial court, India was the “home
state.” The trial court agreed and dismissed the mother’s petition. (Id. at p. 378.)
The appellate court reversed. Not finding any California case law on the subject,
it reviewed cases from other states that had concluded that “time spent in a forum after
the filing of a child custody petition may not be counted towards the time necessary for
home state jurisdiction.” (Sareen, supra, 153 Cal.App.4th at p. 379.) Based on this case
law, the appellate court held that “a parent may not take a child to a jurisdiction, file a

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premature custody petition, and then use the time the child remains in that jurisdiction
pending resolution of the petition to meet the six-month UCCJEA home state period,
either in that custody proceeding or as a defense to the other parent’s competing custody
proceeding in another state. To do so would condone blatant forum shopping . . . .” (Id.
at p. 380, italics added.) Thus, given that the child had spent less than six months in India
before the father filed his custody proceeding there in August 2004, India was not the
child’s home state when the mother filed her petition in the Sacramento County Superior
Court in January 2006. (Id. at pp. 380-381.)
As that portion of Sareen that we have italicized indicates, the court’s holding was
limited to particular circumstances that do not exist here. The Sareen court determined it
should not count the time a child lives in a jurisdiction in which a parent (the father in
that case) files a premature custody petition because to do so would encourage forum
shopping, in a case that involves competing child custody proceedings. Here, we are not
concerned with a premature child custody proceeding initiated in Montana and there are
no competing child custody proceedings. Instead, C. argues that the proceeding which
caused the residency “clock” for the children to be stopped was the previous family court
proceeding, which was initiated in California in 2011 before C. raised her concerns about
the children’s custody. Nothing indicates that proceeding was initiated to forum shop
regarding the adjudication of the children’s custody. In short, the limited holding of
Sareen does not apply to the present circumstances, and we can think of no good reason
why the court should have excluded the period the children resided in Montana during the
prior dissolution proceeding in determining whether Montana was the children’s home
state pursuant to Family Code section 3421, subdivision (a)(1).
Third, even if there were no waiver here and Sareen did apply, C.’s argument
nonetheless would lack merit because more than six months did pass between the end of
the family court proceeding and C.’s filing of her guardianship petition in probate court.
Sareen did not address how to calculate residency time after the termination of any court
proceedings and C. offers no guidance on the question, other than to assert that the
children’s residency should be calculated from the date the family court denied her

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postjudgment motions on August 2, 2012. We disagree. The family court entered
judgment on May 10, 2012. “The entry of judgment ordinarily terminates a trial court’s
jurisdiction to rule on the merits of a case,” aside from considering postjudgment
motions, such as those made by C. below. (Ballona Wetlands Land Trust v. City of Los
Angeles (2011) 201 Cal.App.4th 455, 479.) We fail to see why C.’s motions, denied by
the family court, should be construed as extending that proceeding beyond entry of the
May 10, 2012 judgment. Also, to conclude that these motions did so would allow forum
shoppers to unilaterally shorten the period of residency used to calculate a home state just
by filing meritless postjudgment motions. Therefore, we conclude that, if Sareen did
apply here, the period of time the children should be found to have resided in Montana
would be from May 10, 2012 to January 22, 2013, when C. filed her guardianship
petition. Because this is longer than six months, we would agree with the trial court that
Montana, not California, was the children’s “home state.”
Finally, C. argues that the probate court “impliedly recognized” that it had subject
matter jurisdiction when it appointed counsel for the children after dismissing C.’s
guardianship petition. According to C., if the court lacked jurisdiction, it lacked
jurisdiction to make this appointment. Therefore, the order “demonstrates either the
court’s underlying belief that it did truly have subject matter jurisdiction but simply
lacked the will to proceed in California or its confusion regarding the jurisdiction issue.”
In light of the court’s dismissal of C.’s petition for lack of jurisdiction in a well-reasoned
seven-page order, this argument is utterly unpersuasive.
For each and all of these reasons, we conclude the probate court did not err in
concluding that Montana, not California, is the home state of the children pursuant to
Family Code section 3421, subdivision (a). Given our conclusion, we have no need to,
and do not, address C.’s other arguments, including that the trial court erred in relying on
certain “threshold” considerations and declining to exercise jurisdiction pursuant to the
doctrine of inconvenient forum.

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 DISPOSITION
The court’s order appealed from is affirmed.

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 _________________________
Brick, J.*

We concur:

_________________________
Kline, P.J.

_________________________
Haerle, J.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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