Filed 5/17/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of MOLLY and
SAMUEL KENT.
D074529
MOLLY KENT,
Appellant, (Super. Ct. No. 18FL001703N)
v.
SAMUEL KENT,
Respondent.
APPEAL from an order of the Superior Court of San Diego County, Cynthia A.
Freeland, Judge. Reversed.
Bickford Blado & Botros and Andrew J. Botros for Appellant.
Moore, Schulman & Moore and Julie Ann Westerman for Respondent.
In 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 under the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400
et seq.1). Accordingly, without reaching the merits of the arguments related to the
substantive ruling on appeal, we will reverse the order because, based on the record
before the family court at the time it ruled, the court lacked jurisdiction to modify the
North Carolina order.
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.
In 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.)
1 Further unidentified "section" or "§" references are to the Family Code.
2
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
Provision2). Indeed, Mother's appeal is directed only to the last two sentences of the
Visitor Provision—i.e., those dealing with a specific potential visitor, A.R.
(A.R. Provision). (See fn. 3, post.)
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.
2 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."
3
The 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 Provision3—without any mention of the
UCCJEA or jurisdiction to modify the North Carolina Order. Mother timely appealed
from the FOAH.
II. 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
3 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.' "
4
California that the UCCJEA is the exclusive method of determining subject matter
jurisdiction in custody disputes involving other jurisdictions.' " (Ocegueda v. Perreira
(2015) 232 Cal.App.4th 1079, 1084; accord, In re Stephanie M. (1994) 7 Cal.4th 295,
310 [same; under the Uniform Child Custody Jurisdiction Act (UCCJA), Civ. Code,
former § 5150 et seq. (Stats. 1973, ch. 693, § 1), which later became former § 3400
et seq. (Stats. 1992, ch. 162, § 10)4].) Accordingly, UCCJEA jurisdictional requirements
must be satisfied whenever a California court is called upon to make either an initial or a
modified custody determination. (In re Marriage of Arnold & Cully (1990) 222
Cal.App.3d 499, 502 [under the UCCJA].)
" '[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) 191 Cal.App.4th 1015, 1037 (Fernandez-
Abin).) "The UCCJEA ensures that only one state has jurisdiction to make 'child custody
determinations' " at any one time. (Ibid.) In this regard (and as applicable in this appeal),
the UCCJEA defines a "child custody determination" to include a "modification order" of
a ruling by a "court providing for the legal custody, physical custody, or visitation with
respect to a child." (§ 3402, subd. (c).)
4 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) 28
Cal.App.5th 108, 116.)
5
Once an out-of-state custody order is registered in California under the
UCCJEA—as Mother did in initiating the underlying action here—as a matter of full
faith and credit, the order determining child custody is enforceable in California as a
California judgment by way of any relief normally available under California law.
(§ 3441 et seq.) However, as an independent consideration, there is the additional issue
of whether California has jurisdiction to modify an out-of-state custody order: "A court
of this state shall recognize and enforce, but may not modify, except in accordance with
[section 3421 et seq.], a registered child custody determination of a court of another
state." (§ 3446, subd. (b), italics added.) That is because, in cases like the present one,
" 'once the court of an appropriate state [citation] has made a "child custody
determination," that court obtains "exclusive, continuing jurisdiction[.]" ' " (Fernandez-
Abin, supra, 191 Cal.App.4th at p. 1040, italics added.) As such, absent the requisite
determination outlined in the immediately following paragraph, "the court of another
state, including California, '[c]annot modify the child custody determination[.]' " (Ibid.;
see §§ 3421, subd. (b), 3422, subd. (a), 3423, 3446, subd. (b).)
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—
6
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.5) "The aim is for the two courts together to determine which of them is the 'more
appropriate' forum to exercise jurisdiction." (Hogoboom & King, Cal. Practice Guide:
Family Law (The Rutter Group 2018) ¶ 7:129, p. 7-60.) If the out-of-state court having
jurisdiction "substantially in accordance with" the UCCJEA does not determine that the
California court is a "more appropriate" forum, then the California court "shall dismiss"
its custody proceeding. (§ 3426, subd. (b).)
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
5 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).)
7
specifically. Nonetheless, the court ruled 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[.]' "6 (Fernandez-Abin, supra, 191
Cal.App.4th at p. 1040.) Further, the parties' stipulation and the court's finding that
Father resides in North Carolina necessarily preclude any suggestion that the California
court was authorized to determine it had modification jurisdiction under the UCCJEA
without communicating with the North Carolina Court. (§ 3423, subd. (b).)
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
6 Indeed, in requested supplemental briefing, Mother and Father each acknowledge
this limitation.
8
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 court'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.7 As
we explain, however, we decline to apply those principles on the present record, where
the jurisdictional issue was never considered; and, based on the record on appeal, the
court's consideration of the RFO was an act in excess of the UCCJEA's modification
jurisdiction set forth in section 3446, subdivision (b).
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) 33 Cal.4th 49, 56
(Marriage of Goddard); accord, In re Marriage of Jackson (2006) 136 Cal.App.4th 980,
997 (Marriage of Jackson) ["the party challenging the order or judgment must also
7 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."
9
demonstrate the error was prejudicial, that is, that it is reasonably probable a result more
favorable to that party would have been reached in the absence of the error"]; see Cal.
Const., art. VI, § 13; Code Civ. Proc., § 475.)
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.)
Because the family court's consideration of Mother's RFO (to modify the North Carolina
Order) was an act in excess of the California court's jurisdiction—i.e., not merely a
procedural error, but a violation of a clear restriction or limitation on the court's power to
act8 (see Marriage of Goddard, at p. 57)—the RFO may be reversed without a showing
by Mother that she was prejudiced by this error. (See Marriage of Jackson, supra, 136
Cal.App.4th at pp. 997-998 [termination of parental rights].)
Father contends that " 'failure to comply with the procedural requirements of the
UCCJEA is subject to harmless error analysis['] " (quoting In re Cristian I. (2014) 224
Cal.App.4th 1088, 1098 (Cristian I.) and citing In re C.T. (2002) 100 Cal.App.4th 101,
110 (C.T.)). More precisely, Father argues that, "if communication between the
California trial court and the judicial officer in North Carolina took place, the out of state
court would have determined that it no longer had exclusive jurisdiction and that
8 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).)
10
California would be the more convenient forum under the Family Code." We disagree
with Father's suggestion for a number of reasons.
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.) Under the UCCJEA, as of August
2, 2017, the North Carolina Court had " ' "exclusive, continuing jurisdiction" ' " over the
parties' child custody determinations. (Fernandez-Abin, at p. 1040.) At the time of the
May 2018 hearing on Mother's RFO, both California and North Carolina had enacted the
UCCJEA (§ 3400 et seq.; N.C. Gen. Stats. § 50A-101 et seq.), and both the parties and
the family court knew of the North Carolina Action and the North Carolina Order. Under
such circumstances—in addition to the mandatory language in section 3446,
subdivision (b), by which a California court "may not modify, except in accordance with
11
[statutory requirements not established in the present record], a registered child custody
determination of a court of another state"—respect and comity also dictate that the
California court should have contacted the North Carolina Court before considering
modification of the North Carolina Order.9
Finally, the harmless error analyses in Cristian I., supra, 224 Cal.App.4th 1088,
and C.T., supra, 100 Cal.App.4th 101, are not persuasive here, since those cases are
materially distinguishable. In each of those cases, the juvenile court was exercising its
dependency jurisdiction under Welfare and Institutions Code section 300 when, due to
prior custody proceedings out of state, the court was required to exercise its "temporary
emergency jurisdiction" under the UCCJEA (§ 3424) in order to consider the well-being
of the child under California dependency law.10 (Cristian I., at pp. 1091-1092; C.T., at
p. 105.) In this regard, section 3424 provides an exception to the exclusive jurisdictional
basis for modifying a sister-state custody order. (§§ 3421, subd. (b), 3423.) Under
section 3424, subdivision (a), a California court may exercise "temporary emergency
9 "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) 29 Cal.4th 697,
707.)
10 The UCCJEA applies to dependency proceedings. (§ 3402, subdivision (d);
In re M.M. (2015) 240 Cal.App.4th 703, 715 [" 'A dependency action is a ' "[c]hild
custody proceeding" ' subject to the UCCJEA.' "].)
12
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." An "emergency" exists when there is an immediate risk of danger to the child
if the child is returned to a parent. (Cristian I., at p. 1097.) In short, the present case—
i.e., in which one parent sought to modify an order under which she had been precluded
from allowing the children to be in the presence of a specified individual for more than
seven months—did not involve either dependency proceedings to remove a child from an
abusive situation or an emergency. Thus, the present case does not involve the same
harmless error analysis as in Cristian I. and C.T.
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.11
Having been supplied section 3429 documents disclosing that a child custody proceeding
had been commenced in the North Carolina Court, the California family court was
required to "stay its [modification] proceeding and communicate with the court of the
other state." (§ 3426, subd. (b).)
III. DISPOSITION
The July 2, 2018 FOAH is reversed. The parties shall bear their respective costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
11 This opinion does not preclude, yet expresses no views regarding, further trial
court proceedings related to the North Carolina Order.
13
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
GUERRERO, J.
14