Brown v Brown (Cal.App. 4 Dist 3 Div 1999)—- Cal.App.4th —-
G 021199
2 International Abduction [US 1999]
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
Certified for Publication
13 Apr 1999
G021199
(Super. Ct. No. 94 P 0063)
FILED
31 Mar 1999
Stephen M. Kelly, Clerk
JOHN L. BROWN,
Plaintiff and Appellant,
v
SHELLEY ANN BROWN,
Defendant and Respondent.
OPINION
Appeal from an order of the Superior Court of Orange County,
Robert D. Monarch, Judge.
Affirmed.
Johnson & Flyer and David R. Flyer for Plaintiff and
Appellant.
Irene Casson Gilbert and William M. Hilton for Defendant and
Respondent.
001 We have met these litigants before. In a relentless
struggle for custody of his daughter S., now seven years
old, John L. Brown has forum-shopped his way through three
continents. In California alone, he and the child’s mother,
Shelley Ann Brown, have invoked the jurisdiction of the
state and federal courts at the trial and appellate levels.
Their intransigent hostilities harmed their daughter,
specifically by prolonging her stay in the dependency
system, with its attendant uncertainties.
002 This time around, John challenges the family law
court’s order granting Shelley’s motion to dismiss John’s
order to show cause for change of custody and visitation
rights. Finding the appeal wholly without merit, we affirm.
I
003 John and Shelley met in 1986, when John, a peripatetic
Australian-born international entrepreneur, was in
California on business. Shelley accompanied him to Vienna,
where the couple took up residence, marrying in July 1987.
In 1991, When they separated, Shelley was pregnant. She
returned to California, giving birth to S. on January 16,
1992.
004 Three weeks later, mother and daughter rejoined John
in Vienna, but the husband/wife relationship remained rocky.
When S. was five months old, Shelley, who was pursuing
studies in photography, took a series of highly
inappropriate black and white photographs of the naked
child, posed with nude men. John found the photographs in
September. After showing them to his lawyer, he decided to
keep them on hold for leverage in anticipated dissolution
proceedings, In November, there was an altercation with
Shelley. John took the baby from the sitter’s house, crossed
the border into Germany, sent copies of the photographs to
the authorities in Vienna, and absconded to Australia with
the child.
005 Shelley obtained an ex parte order in Vienna for
physical custody of the minor and initiated efforts in
Australia to secure heir return. But John, armed with the
photographs, obtained temporary custody of S.. The
Australian court eventually determined Austria had
jurisdiction under the Hague Convention on the Civil Aspects
of International Child Abduction (Convention), implemented
in the United States in the International Child Abduction
Remedies Act (ICARA), 42 U.S.C. sections 11601 et seq. FN01
006 Shelley and S. returned to Vienna. For the next year,
Shelley’s progress was monitored daily by the child welfare
agency, acting at the direction of Vienna’s juvenile court.
Meanwhile, John conducted an international media blitz,
inter alia utilizing tabloids and talk shows to call
attention to Shelley’s miscreant conduct. He rarely visited
Austria. No dependency petition was ever filed there in
light of Shelley’s cooperation with social services and the
strong mother/daughter bond.
007 In December 1993, when S. was almost two years old and
the Austrian juvenile court matter was winding down, Shelley
and the minor flew to California for a holiday visit with
Shelley’s family. John arrived only a few steps behind and
promptly filed an ex parte application for S.’s custody,
handing out copies of the photographs to the police and the
Orange County Social Services Agency (SSA). On January 5,
1994, S. was taken away from Shelley.
008 The SSA dependency petition alleged the minor had been
sexually abused by her mother and was at substantial risk of
further abuse, it also alleged John knew or had reason to
know of Shelley’s acts and failed to protect S.. The
juvenile court exercised emergency jurisdiction under the
Uniform Child Custody Jurisdiction Act (the Act), codified
in Family Code sections 3400 et seq. Shelley’s motion to
dismiss the petition for lack of jurisdiction under the Act
was denied.
009 By February, hostilities between the parents had
escalated to the point that the minor’s attorney sought —
and the parties stipulated to — the addition of a count in
the dependency petition under Welfare and Institutions Code
section 300, subdivision (c), alleging S.’s risk of
suffering serious emotional damage due to her parents’
“ongoing and continuous . . . intense custody battle,” which
by this time had sucked into its vortex the maternal and
paternal relatives. On March 1, the court determined it had
dependency jurisdiction and found the petition true.
010 A few weeks later, the Austrian court concluded the
juvenile proceedings in Vienna, determining it was in S.’s
best interest to remain with Shelley, who was awarded sole
custody. FN02 John filed an appeal in Austria. In early
April, the Orange County Juvenile Court coming to a
conclusion diametrically opposed to that of the Austrian
court, declared S. a dependent child, removed her from
Shelley’s custody and placed her with John under SSA’s
supervision. Shelley appealed from that judgment.
011 Shelley also filed a petition in the federal district
court for return of S. to Austria under the Convention. The
district court took judicial notice of the dependency file,
particularly its materials relating to the sexual abuse
allegations. It confirmed Austria was S.’s habitual
residence and her retention in California by SSA was a
“wrongful retention” under the Convention. But it declined
to order her return to Austria, invoking the “grave risk”
exception which permits a court to dismiss a petition for
return where the child might be exposed to physical and
psychological harm or otherwise placed in an intolerable
situation. On July 7, it dismissed the petition.
012 While Shelley’s appeal from that decision was pending
in the Ninth Circuit, the juvenile court at the six-month
review hearing found continued supervision necessary due,
not to sexual abuse concerns, but to John’s and Shelley’s
“inability to resolve [their dispute] without court
intervention” and the risk “that one parent will interfere
with [the] other’s contact or custody of the minor.” The
court gave Shelley custody during the week, John on
weekends. Describing both parents as “obsessive,” it
directed them to undergo counseling “to address working
together an issues affecting [S.].”
013 In April 1995, we dismissed Shelley’s appeal of the
jurisdictional and dispositional judgment. We explained our
hands were tied by the district court’s denial of Shelley’s
petition for S.’s return to Austria: We found that order
subsumed the Act and dependency jurisdiction issues, leaving
us without power to grant relief. And we noted the juvenile
court’s order for shared custody mooted all other issues.
014 In July, the juvenile court, satisfied that S. no
longer needed protection, terminated jurisdiction, giving
Shelley sole physical custody and John visitation rights.
Due to illness, Shelley could not immediately return to her
home in Austria. For three months, she and S. remained in
California. John did not visit, contact or support S. during
that time. In October, mother and daughter finally went home
to Vienna. At about that time, Austria’s appellate court
rejected as without merit John’s appeal from the custody
order.
015 On July 1, 1996, the Ninth Circuit dismissed Shelley’s
appeal from the district court’s denial of her petition
under the Convention. It stated, “Because S. is no longer in
the custody or under the protection of Orange County
authorities and is no longer subject to the jurisdiction of
the district court, this appeal is moot.”
016 John immediately filed an order to show cause in
family court in Orange County and managed to obtain a
default order granting him sole legal and physical custody
of the child. However, as it turned out, he had neither
provided Shelley with notice of the continued date of the
hearing nor disclosed to the court the existence of the
Austrian court order awarding Shelley sole custody.
Shelley’s motion to set aside the order was granted on July
30, on grounds of surprise, fraud and the court’s own
excusable neglect in failing to undertake a review of the
pertinent files.
017 The very next day, the Austrian court denied John’s
petition for S.’s return to California and placement in his
custody. It found the petition without “legal basis,” noting
the asserted factual grounds were belied by the record.
Specifically, it found Shelley had never relinquished her
Vienna residence, but was forced to stay in the United
States due to the dependency proceedings; she had enjoyed
sole, not shared, custody of S. for several years, thus
John’s claim of kidnapping was “excluded by definition;” no
conditions for S.’s removal from her mother’s care existed
under the Convention, and even if such conditions existed,
John’s petition could not be granted because he “did not
have custody and an untenable situation would be created for
the child if she were returned to him. She would be torn
from her [] familiar surroundings in Vienna which would
undoubtedly cause emotional harm to the child.”
018 On August 23, John returned to California and filed a
second order to show cause, again seeking to modify child
custody on the basis of changed circumstances — Shelley’s
“wrongful removal” of S. from California in violation of “a
federal order barring such removal.” On Shelley’s motion,
the case was dismissed for lack of subject matter
jurisdiction and on the basis of forum non conveniens. That
order generated this utterly meritless appeal. FN03
II
019 The central thesis of John’s appeal can be stated in
three sentences: The federal district court denied Shelley’s
petition for S.’s return to Austria. Because the Ninth
Circuit dismissed Shelley’s appeal, the undisturbed order
prevents Shelley from leaving California with the child.
Her removal of S. to Austria violated the order, justifying
the change of custody sought by John. The thesis collapses
for lack of support.
A. The Federal Court’s Order Dismissing Shelley’s
Petition Under the Convention.
020 We first disenchant John of any notion the district
court’s order somehow compels Shelley and S. to live out the
days of their lives in California. The court’s dismissal of
the petition was not, as John would insist, the functional
equivalent of an order enjoining Shelley from leaving
California with the minor. The issue was not whether Shelley
had the right to leave the country with S.. Rather, it was
whether the court was at that time obligated under the
Convention to return S. to her habitual residence in
Austria. The court simply determined it had no such
obligation, invoking the grave risk exception to the return
rule. FN04 As the Ninth Circuit aptly noted, the juvenile
court’s termination of jurisdiction and its return of the
child to Shelley mooted any issue of S.’s procedural right
under the Convention to be returned to her habitual
residence in Austria,
B. Child Custody Jurisdiction
021 Having determined there was nothing wrong in Shelley’s
leaving the country with S. after the juvenile court case
was terminated, we turn to the issue of the state court’s
unquestionable lack of jurisdiction to modify the Austrian
court’s order awarding sole custody to Shelley.
022 The Act is the exclusive means for determining the
proper forum in all custody disputes involving different
states or nations. (Fam. Code, 3402, 3403, 3424; In re
Joseph D. (1993) 19 Cal.App.4th 678, 696.) FN05 It
supersedes any contrary decisional or statutory law. (See In
re Marriage of Ben-Yehoshua (1979) 91 Cal.App.3d 259, 264.)
And it provides authority for a court to make custody
decisions on the merits, including whether or not a foreign
custody order must be recognized and enforced. (Fam. Code,
3413), Zenide v. Superior Court (1994) 22 CaL.App.4th
1287, 1293-1294.)
023 Family Code section 3414 controls the authority of
California courts to modify an out-of-state custody decree.
Subdivision (a) provides, “If a court of another state has
made a custody decree, a court of this state shall not
modify that decree unless (1) it appears to the court of
this state that the court which rendered the decree does not
now have jurisdiction under jurisdictional prerequisites
substantially in accordance with this part or has declined
to assume jurisdiction to modify the decree and (2) the
court of this state has jurisdiction.”
024 In regard to the first factor, there is no evidence
Austria, which rendered the custody decree, does not now
have jurisdiction conforming with the Act. (See Kumar v.
Superior Court (1982) 32 Cal.3d 689; In re Gloria F (1989)
212 Cal.App.3d 576; Souza v. Superior Court (1987) 193
Cal.App.3d 1304; and In re Marriage of Ratshin (1983) 144
Cal.App.3d 974.) Nor has it declined to assume jurisdiction
to modify the decree: Quite the opposite, it has
consistently asserted its jurisdiction, most recently in
1996, when it rejected, on its merits, John’s appeal of the
lower court’s denial of his petition to obtain an order
returning S. to California and placing her in his custody.
025 Moreover, with regard to the second factor, there is
no basis for California jurisdiction based on S.’s best
interest or any “significant connection” with this state.
(Fam. Code, 3403, subd. (a)(2).) FN06 Neither her birth
here nor her involuntary presence during the dependency
proceedings establish a significant connection with
California. Her parents do not live here. (See, e.g., In re
Marriage of Hopson (1980) 110 Cal.App.3d 884.) S. took up
residence in Vienna when she was 24 days old, and she has
lived there virtually her entire life. That is where she
goes to school, has friends, obtains medical care and enjoys
day-to-day activities, The minor’s best interest and
significant contacts are clearly in Austria, not California.
Thus, the court properly found it had no jurisdiction under
the Act to modify the Austrian court’s custody decree.
C. Inconvenient Forum.
026 Even assuming the court had concurrent jurisdiction
with the Austrian court, its refusal to exercise
jurisdiction on the ground of inconvenient forum was
correct. Under Family Code section 3407, “(a) A court which
has jurisdiction under this part to make an initial or
modification decree may decline to exercise its jurisdiction
… if it finds that it is an inconvenient forum to make a
custody determination under the circumstances of the case
and that a court of another state is a more appropriate
forum. [] . . .[] (c) In determining if it is an
inconvenient forum, the court shall consider if it is in the
interest of the child that another state assume
jurisdiction. For this purpose it may take into account the
following factors, among others: [l (1) If another state is
or recently was the child’s home state. [] (2) If another
state has a closer connection with the child and the child’s
family or with the child and one or more of the contestants.
[] (3) If substantial evidence concerning the child’s
present or future care, protection, training, and personal
relationships is more readily available in another state.”
027 To set forth the statutory language is to demonstrate
why, under the circumstances of this case, the doctrine of
inconvenient forum applies, We need not belabor the point:
It is self-evident and utterly irrefutable. FN07
Conclusion
028 The Austrian court’s order awarding Shelley sole
custody of S. is entitled to full faith and credit. The
same is true as to that court’s denial of John’s petition
for the return of S. to California and his custody.
029 In closing, we express our ardent hope John will, at
long last, give up his “judicial fishing [using S. as bait.”
(Fry v. Ball (Colo. 1975) 544 P.2d 402, 405.) For the
child’s sake, this sorry tale must come to an end. FN08
030 The order is affirmed. Shelley shall recover her costs
on appeal.
SONENSHINE, J
WE CONCUR:
SILLS, P. J.
RYLAARSDAM, J.
Footnotes
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1. The Convention ‘”establishes legal rights and
procedures for the prompt return of children who have
been wrongfully removed or retained. . . .”‘
(Application of Ponath (D. Utah 1993) 829 F.Supp. 363,
364.)
2. In October 1994, the order was registered in
California pursuant to Family Code sections 3416, 3417
and 3424.
3. We are disturbed by the misrepresentations and evasive
oversights in John’s briefs. He presents a distorted
and, in some instances outright false history of the
case. It is one thing to make legal arguments without
a solid foundation; it is quite another to make
factual statements which are unsupported or
contradicted by the record.
4. Under Article I of the Convention, children wrongfully
removed to or retained in any contracting state must
be promptly returned to the state of their habitual
residence. In this case, Shelley sought to show the
juvenile court had wrongfully retained S. in
California, violating the minor’s rights under the
Convention, The district court simply determined that
returning S. to Austria might place the child at grave
risk, as evidenced in the juvenile court proceedings
of which it took judicial notice.
5. The district court did not and could not rule on the
underlying merits of the custody dispute. The
Convention provides no structure for such a
determination: Rather, it mandates those matters be
resolved in the forum of the child’s habitual
residence. (42 U.S.C. 11601(b)(4).)
6. As the court stated in Plas v Superior Court (1984)
155 Cal.App.3d 1008, 1016, the child’s best
interest/significant connection clause ‘”was phrased
in general terms in order to be flexible enough to
cover many fact situations too diverse to lend
themselves to exact description. But its purpose is to
limit jurisdiction rather than to proliferate it. The
first clause of the paragraph is important:
jurisdiction exists only if it is in the child’s
interest, not merely the interest or convenience of
the feuding parties to determine custody in a
particular state. The interest of the child is served
when the forum has optimum access to relevant evidence
about the child and family. There must be maximum
rather than minimum contact with the state'” (Original
italics)
7. We reject out of hand John’s argument the federal
court’s order preempts California custody law. While
it is true state law bends to the Convention in a
conflict (U.S. Const., art. VI, 2), there is no
conflict. The procedural issue in the district court
did not control the substantive issue of custody.
That issue was not presented to that court which, in
any case, had no power to decide it.
8. The record indicates John may still have in his
possession materials which the juvenile Court ordered
him to surrender within 10 days of the terminating
order, to wit, the original negatives, any and all
duplicates, copies and reproductions of the offensive
photographs. We trust if this is the case, John will
immediately rectify the situation and comply with the
court’s order.
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOHN L. BROWN,
Plaintiff and Appellant,
v.
SHELLEY ANN BROWN,
Defendant and Respondent.
G021199
(Super. Ct. No. 94P0063)
ORDER DIRECTING PUBLICATION
OF OPINION
THE COURT:
Pursuant to rules 976(b) and 978 of the California Rules of
Court, the request for publication of the opinion of this
court filed March 31, 1999, is granted.
The opinion is ordered published in the Official Reports.
____________________________
SONENSHINE, J.
WE CONCUR:
___________________________
SILLS, P. J.
___________________________
RYLAARSDAM, J.