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In re Marriage of Nurie

August 7, 2009

IN RE THE MARRIAGE OF GHULAM AND FIZZA RIZVI NURIE.
GHULAM NURIE, RESPONDENT,
v.
FIZZA RIZVI, APPELLANT.
GHULAM NURIE, PLAINTIFF AND RESPONDENT,
v.
FIZZA RIZVI, DEFENDANT AND APPELLANT.



(Alameda County Super. Ct. Nos. FF03-102572 & HF08-364710). Trial Judge: Honorable Wynne S. Carvill.

The opinion of the court was delivered by: Richman, J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

This case graphically confirms what we said long ago: " "controversies over custody are oftentimes long drawn out and bitter.‟ [Citation.]" (In re Marriage of Joseph (1990) 217 Cal.App.3d 1277, 1283.) This one involves an acrimonious six-year international custody battle, in which lawyers on two continents seemingly have left no stone unturned, while the parties themselves have left no rock unhurled. The accusations and counter-accusations include kidnapping, fraud, and domestic violence, all set against a backdrop of INTERPOL*fn1 warrants, armed gunmen, and flights from justice. In both California and Pakistan, mud has been slung, court orders flouted, and reputations challenged.

The issue on appeal, however, is the far less dramatic one of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). (Fam. Code, § 3400 et seq.)*fn2 We conclude the well reasoned decision of the trial court was correct: the California court that dissolved the marriage had initial home state jurisdiction, it never lost jurisdiction, and its order granting custody to Husband was valid when entered and remains valid.*fn3 Wife, of course, remains free to request modification.

FACTUAL AND PROCEDURAL BACKGROUND

Fizza Rizvi (Wife) and Ghulam Nurie (Husband) were both born in Pakistan, but Husband had lived in the United States for his entire adult life and is a naturalized United States citizen. They were married in a religious ceremony in Karachi on October 30, 2001. Shortly after the wedding, Wife came to live with Husband in his home of 16 years in Fremont, California. The couple were again married in a civil ceremony in Reno, Nevada, on January 31, 2002, and resided together in Fremont for the duration of their brief marriage.On September 16, 2002, their son (Son), was born in San Ramon, California.

On or about February 19, 2003, Wife took five-month-old Son to Pakistan, ostensibly on a four-week visit with the extended families. Husband bought round-trip airfare for them on that understanding. At the end of that time, Wife said she wanted to extend her visit for a few more weeks, and Husband agreed. Husband later learned through a third party that Wife did not plan to return.

Husband traveled to Pakistan in late May 2003 to attempt to persuade Wife to return with their Son. His efforts failed, and he returned to California alone. Wife did not directly communicate to Husband that she did not intend to return to California until the "end of May" 2003.

On June 20, 2003, Husband filed for dissolution of the marriage in Alameda County Superior Court (No. FF03-102572) (Dissolution Action). He sought custody of Son under the UCCJEA. On July 29, 2003, he obtained an ex parte order to show cause granting him temporary custody. Wife was served in Pakistan on September 16, 2003.

On September 30, 2003, Margaret Gannon, an Oakland attorney, made a special appearance on Wife‟s behalf to contest subject matter jurisdiction under the UCCJEA and to quash service of summons. At that hearing, a briefing schedule was established and a hearing on the merits set for November 4, 2003.

Wife substituted in as her own attorney on October 16, 2003, before any briefs had been filed. Wife filed no briefs, did not appear at the November 4 hearing, and took no further action to challenge the court‟s jurisdiction. The court found that Wife had been served and had notice of the hearing. After hearing testimony from Husband about Son‟s birth and first months of life, as well as the circumstances under which Son was taken to Pakistan, the court found it had home state jurisdiction and awarded sole legal and physical custody to Husband. The court issued a written order on November 5, 2003 (2003 Custody Order), with a substantially identical amended order filed November 12, 2003.*fn4

Meanwhile, on October 1, 2003, Wife filed an action seeking custody of Son in the Court of the Civil Judge and Guardian Judge (Guardian Court) in Pakistan (No. 637/2003). She neglected to disclose the pendency of the California Dissolution Action. On October 3, the Pakistani court issued an order forbidding Husband to remove Son from Pakistan. In the custody application, Wife alleged she had been physically abused by Husband during their marriage.

Husband filed responsive papers, informing the Guardian Court of California‟s 2003 Custody Order. On December 1, 2003, the Pakistani court dismissed Wife‟s custody application, deferring to the California court‟s jurisdiction.

Wife appealed that decision to the district court in Karachi (No. 74/2003), which issued an order temporarily forbidding the removal of Son from Pakistan. The parties agreed to settle the appeal by entering into an agreement on December 16, 2003, under which they were to reconcile as a couple in the United States and share custody of Son (2003 Compromise). Husband agreed not to "mal-treat" Wife or her family, and if he broke that agreement, Wife was entitled to recourse under California law. Husband also agreed to furnish the California court with a copy of the 2003 Compromise after both parties returned to California. Incorporating the terms of the parties‟ agreement, the Pakistani court issued an order disposing of the appeal (No. 74/2003) (December 2003 Order).

Under their agreement, Wife was to return to California with Son on or about December 31, 2003. She failed to do so, however, claiming that Husband had verbally abused her after the agreement was signed. Husband returned to the United States alone in late December 2003 or early January 2004.

The Alameda County District Attorney‟s Office then got involved. Wife corresponded by email with its investigator, detailing her allegations of abuse and neglect by Husband. Nevertheless, on March 1, 2004, the district attorney‟s office issued an arrest warrant for Wife, alleging two felonies for child abduction and unlawful deprivation of custody (Pen. Code, §§ 278, 278.5).

On March 1, 2004, Wife, represented by new California counsel, Hannah Sims, sought an ex parte order to show cause in California, requesting that the court modify the 2003 Custody Order or, in the alternative, "abdicate" jurisdiction to Pakistan. Wife‟s request included a declaration by her alleging physical and psychological abuse at Husband‟s hands during their marriage, and detailing events in Pakistan leading up to and following the December 2003 Order. Husband responded, in part, by requesting judicial notice of a number of documents that had been filed in the Pakistani courts.

On March 5, 2004, the court denied Wife‟s ex parte application and set a hearing for May 5, 2004. Wife‟s attorney subsequently took her motion off calendar, as Wife would not risk arrest and prosecution to appear at the hearing.

Sometime in 2004,*fn5 Husband returned to Karachi, where Wife alleges he bought a house in October 2004. She claims he lived there almost continuously for three years thereafter, enjoying regular visitation with Son. Husband acknowledges that he visited Pakistan frequently from 2004 through October 2007 and that he did exercise some supervised visitation with Son, but claims their time together was "unconscionably limited" by Wife. Husband claims he was only in Pakistan temporarily to fight for custody of Son and always intended to return to his home in California.

Husband did initiate substantial litigation in Pakistan over the years, most of it aimed at either enforcing, or obtaining relief from, the December 2003 Order, which the Pakistani courts treated as binding on the issue of joint custody.*fn6 Husband also sought orders for visitation with Son, the most recent being the July 12, 2006 order that Wife seeks to enforce in this proceeding (July 2006 Order).

Meanwhile, on October 29, 2004, while Husband was evidently in Pakistan, his attorney had Wife‟s default entered in the Dissolution Action in California, with notice to Wife‟s attorney of record. On January 21, 2005, judgment of dissolution was granted, with legal and physical custody awarded to Husband, again with notice to Wife‟s counsel. On February 1, 2005, Hannah Sims formally withdrew as Wife‟s counsel. Wife claims, however, that she had no knowledge of the default judgment until December 18, 2007.

Though the circumstances are disputed, it is fairly clear that Husband was not in Pakistan from October 2005 until April 2006, and we may infer that he returned to California.*fn7 He again returned to Pakistan in April 2006 and began to seek court-ordered visitation with Son. In mid-June, believing Wife was going to flee with Son, Husband sought an order prohibiting Son‟s removal from Pakistan. A hearing was scheduled for June 27, 2006, and "in the meantime" the court ordered that Son not be removed from its jurisdiction. Wife and Son were detained by Pakistani immigration officials at the airport, although she claimed she was simply taking him on a pre-planned family vacation to Turkey. Another order was issued June 27, 2006, continuing the matter until July 5, 2006, and retaining the non-removal order in effect "in the meanwhile."*fn8

On July 12, 2006, the SHC, in accordance with the parties‟ agreement,ordered supervised visits for two hours each week between Husband and Son, to be conducted at the office of Wife‟s attorney in Karachi. There was no explicit non-removal clause in the July 2006 Order. According to Wife, this arrangement continued for approximately 15 months.

Then, Wife alleges that on October 26, 2007, Husband and three armed accomplices kidnapped Son from outside her lawyer‟s office in Karachi, as she brought him for the scheduled visitation. An order prohibiting Son‟s removal from Pakistan was issued by the SHC on October 29, 2007, which was followed by a warrant for Husband‟s arrest and placement of Son‟s and Husband‟s names on an "Exit Control List" to prevent them from leaving Pakistan. Husband somehow escaped the country and returned to California with Son. On April 18, 2008, the SHC authorized issuance of an INTERPOL red warrant for Husband‟s arrest.

Husband, for his part, claims the seizure of Son was perfectly legal and was conducted by the Pakistani Federal Investigation Agency (FIA), which was enforcing an INTERPOL yellow warrant issued as a result of the abduction charges against Wife in California. Husband declares that he and Son left Pakistan with the cooperation of the United States government and arrived back in the United States on November 21, 2007.

Either way, Son was brought back to California and kept at an undisclosed location. He now lives with Husband in California and attends school here.

On January 8, 2008, Wife registered the July 2006 Order from Pakistan in Alameda County Superior Court in No. HF 08-364710 (Registration Action), and shortly thereafter filed an order to show causeto modify the earlier California custody order and to enforce the foreign order under section 3405. (See also §§ 3443, 3446.) The trial court consolidated the Registration Action with the Dissolution Action.

A hearing was held on the Registration Action on February 19, 2008. On February 21, 2008, the court denied registration and enforcement of the July 2006 Order, and refused to take judicial notice of unauthenticated documents from Pakistan filed by both parties. In that order the court found that: (1) its jurisdiction under the UCCJEA and the issue of service were litigated and resolved in Husband‟s favor in the Dissolution Action; (2) the November 5, 2003 custody order entered in that action, and subsequently incorporated into the January 21, 2005 default judgment, was valid and enforceable; (3) Wife‟s then counsel was served with notice of entry of judgment; and (4) the time limitations for seeking relief from entry of a default judgment had passed.

In March 2008, Wife resubmitted most of the Pakistani court documents with proper authentication. After further briefing and argument, the parties agreed to have the matter decided on declarations rather than live testimony.

The court issued a written order on May 12, 2008, reaffirming its findings in the February 21 order and concluding that California‟s jurisdiction under the UCCJEA was exclusive and continuing, that it did not lose jurisdiction by reason of Husband‟s prolonged presence in Pakistan or the loss of "significant connections" with Son, that the alleged kidnapping of Son by Husband did not require California to relinquish jurisdiction, and that California would not voluntarily decline jurisdiction as an inconvenient forum.*fn9 The court‟s lengthy and well-reasoned order will be cited further in our opinion, as we affirm its conclusions.

DISCUSSION

I.THE LEGAL STANDARDS

Thankfully, it is not our task to decide all of the hotly contested factual issues between these warring parties. We are, however, asked to decide between two core concepts in child custody jurisdiction that appear to compete in this case, namely "home state" jurisdiction and "exclusive, continuing" jurisdiction. (§§ 3421, 3422.) We conclude the method for resolving any conflict between these legal principles is dictated by the UCCJEA, and decide the case accordingly.

The exclusive method of determining subject matter jurisdiction in custody cases is the UCCJEA. (§ 3421, subd. (b).) Under the UCCJEA, a California court must "treat a foreign country as if it were a state of the United States for the purpose of" determining jurisdiction. (§ 3405, subd. (a).) Moreover, with limited exception, "a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this part must be recognized and enforced" in California. (§ 3405, subd. (b); see also § 3443; In re Marriage of Zierenberg (1992) 11 Cal.App.4th 1436, 1442-1443 [Puerto Rico custody order entitled to enforcement]; In re Marriage of Malak (1986) 182 Cal.App.3d 1018, 1026-1029 [Lebanese custody order enforced in California]; but see In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 377 [California not required to enforce prior custody order from India, where jurisdiction was not in substantial conformity with UCCJEA standards].)

Subject matter jurisdiction either exists or does not exist at the time an action is commenced. (Adoption of Zachariah K. (1992) 6 Cal.App.4th 1025, 1035.)There is no provision in the UCCJEA for jurisdiction by reason of the presence of the parties or by stipulation, consent, waiver, or estoppel. (Ibid.; In re Marriage of Sareen, supra, 153 Cal.App.4th at p. 376; In re Marriage of Newsome (1998) 68 Cal.App.4th 949, 955-956.)

Under the UCCJEA, the state with absolute priority to render an initial child custody determination is the child‟s home state on the date of commencement of the first custody proceeding, or alternatively, the state which had been his home state within six months before commencement if the child is absent from the home state but a parent continues to live there. (§ 3421, subd. (a)(1).) "Home state" means "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period." (§3402, subd. (g).)

A court that properly acquires initial jurisdiction has exclusive, continuing jurisdiction unless one of two subsequent events occurs: (1) a court of the issuing stateitself determines that "neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child‟s care, protection, training, and personal relationships," or (2) there is a judicial determination by either the issuing state or any other state that "the child, the child‟s parents, and any person acting as a parent do not presently reside in" the issuing state. (§ 3422, subd. (a)(1) & (a)(2).)

"The UCCJEA takes a strict "first in time‟ approach to jurisdiction. Basically, subject to exceptions not applicable here [citations], once the court of an appropriate state (Fam. Code, § 3421, subd. (a)) has made a "child custody determination,‟ that court obtains "exclusive, continuing jurisdiction . . . .‟ (Fam. Code, § 3422, subd. (a).) The court of another state: [¶] (a) Cannot modify the child custody determination (Fam. Code, §§ 3421, subd. (b), 3422, subd. (a), 3423, 3446, subd. (b)); [and] [¶] (b) Must enforce the child custody determination (Fam. Code, §§ 3443, 3445, 3446, 3448, 3453) . . . ." (In re Marriage of Paillier (2006) 144 Cal.App.4th 461, 469.)

Wife urges us to consider the overriding interest of the child in making our decision on jurisdiction. She asks us to take into account the trauma Son must have suffered in being torn away from his mother, his familiar culture, and his extended family in Pakistan, where he had spent most of his first five years.

While we are not unconcerned with the child‟s best interests,*fn10 the UCCJEA in fact "eliminates the term "best interests‟ from the statutory language to clearly distinguish between the jurisdictional standards and the substantive standards relating to child custody and visitation." (10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 158(2)(e), p. 230; see also 9 West‟s U. Laws Ann. (1999) UCCJEA, Pref. Note, 652, com. to § 201, p. 672.)*fn11 As the trial court aptly noted, "The issue currently before the court . . . is not what is in the best interest of the child. Rather the issue now before the court is which jurisdiction has the authority to engage in that inquiry and adjudicate the competing claims."

With respect to purely factual findings, we will defer to the trial court‟s assessment of the parties‟ credibility, even though the determination was made on declarations rather than live testimony. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479; Khan v. Superior Court (1988) 204 Cal.App.3d 1168, 1170, fn. 1.) " "In a matter in which an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contentions of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom.‟ [Citations.]" (Necessary v. Necessary (1962) 207 Cal.App.2d 780, 782.) Since subject matter jurisdiction is at issue, however, we are "not bound by the trial ...


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