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S.M. v. E.P.

May 25, 2010


APPEAL from orders of the Superior Court of San Diego County, Christine K. Goldsmith, Judge. Restraining order reversed; appeal from minute order dismissed as moot. (Super. Ct. No. D515486).

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



Appellant S.M. and respondent E.P. are the parents of a toddler, C.M. S.M and E.P. met in San Diego and lived together in San Diego, on and off, for approximately five years before C.M. was born. In 2008, around the time E.P. became pregnant with C.M., the couple began having difficulties, and E.P. eventually returned to her home state of Iowa to give birth. She returned to San Diego a few months later with C.M. so that she and S.M. could work on their relationship.

Approximately eight months after C.M. was born, S.M. filed a paternity and custody action in California. Approximately two weeks later, E.P. filed a motion to quash service of summons in the California action and sought a restraining order against S.M. E.P. also filed a custody and support action in Iowa.*fn1

The trial court issued a minute order in which the court stated that it would decline to exercise jurisdiction over the paternity and custody matter, concluding that "Iowa is the proper [s]tate of jurisdiction." The court also issued a separate restraining order that prohibited S.M. from coming within 100 yards of E.P. for a period of six months.

On appeal, S.M. raises two contentions. First, S.M. contends that the trial court erred in concluding that "Iowa is the proper [s]tate of jurisdiction." According to S.M., the trial court should have exercised jurisdiction over the paternity and custody dispute because, among other things, (a) at the time of the hearing, neither California nor Iowa could be considered C.M.'s "home state" under the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) (Fam. Code,*fn2 § 3400 et seq.); (b) C.M. had more significant connections with California than with Iowa; and (c) at the time S.M. filed his custody action in California, E.P. had not yet filed the custody action in Iowa.

Second, S.M. challenges the restraining order. S.M. contends that the trial court abused its discretion in issuing the restraining order because there was no showing that he engaged in domestic violence against E.P.

After the parties had completed their briefing on appeal, the parties notified the court that they had reached a custody settlement in an Iowa court, and that S.M. had acceded to the Iowa court exercising jurisdiction over custody and support issues. S.M. requested that this court dismiss his appeal, in view of the Iowa settlement. However, soon thereafter, S.M. retracted his request for dismissal. E.P. then sought to have the appeal dismissed.

This court requested supplemental briefing on the issue of the propriety of dismissing S.M.'s appeal. The supplemental briefs made it clear that S.M. is no longer challenging the trial court's refusal to exercise jurisdiction over the paternity and custody dispute, but that he continues to challenge the issuance of a restraining order.

We conclude that S.M.'s concession to the Iowa court's exercising jurisdiction over his paternity and custody dispute with E.P. renders moot S.M.'s appeal from the trial court's minute order deferring jurisdiction over the custody dispute to an Iowa court. However, the portion of S.M.'s appeal in which he challenges the restraining order was not rendered moot by his agreement to allow an Iowa court to take jurisdiction of the custody dispute.

We further conclude that the trial court abused its discretion in issuing the restraining order against S.M. because in issuing the order, the court misapplied the statutory requirements and misapprehended the legal effect of the order. We therefore reverse the restraining order.


E.P. moved from Iowa to California after graduating from college in summer 2003. Not long after she moved to California, E.P. met S.M. and they began to date. E.P. and S.M. had an on-again, off-again relationship over a five-year period. Late in the relationship, E.P. became pregnant. Prior to the child's birth, S.M. filed an action in a California court to establish paternity, and sought an ex parte order preventing E.P. from moving to Iowa before giving birth. The court denied S.M.'s request for a restraining order, stating, "The court finds this is not an emergency. You [S.M.] need to file your O.S.C. in due course. The court has no jurisdiction to prevent mother from traveling. That is the court's order...."

E.P. decided that she wanted to give birth to C.M near her family in Iowa. C.M. was born in August 2008 in Iowa City, Iowa. On August 11, E.P. filed a request for child support through the Iowa Department of Human Services. In September 2008, both parties signed a document entitled "STIPULATION RE: CHILD CUSTODY[] AND VISITATION." The stipulation provided in part, "The parties[] agree that Iowa shall have home state jurisdiction over the child pursuant to the UCCJEA as the child was born in Iowa."*fn3

E.P. returned to California with C.M. on November 12, 2008. E.P. resumed her work as a nurse at a hospital in San Diego, and she and C.M. moved in with S.M. and S.M.'s three children from a previous marriage.*fn4 On January 6, 2009, while still living in California together, S.M. and E.P. both signed a "VOLUNTARY PATERNITY AFFIDAVIT," which appears to be a form provided by the Iowa Department of Public Health.

In early April 2009, E.P. indicated to S.M. that she would be traveling to Iowa to attend a baby shower on April 24, and that she planned to take C.M. with her. E.P. also told S.M. that she wanted to move back to Iowa at some point in time after the baby shower.

On April 16, 2009, S.M. filed another action in California to establish paternity and custody.*fn5 E.P. was served with a summons in the action on April 21. The back page of the summons included a "STANDARD RESTRAINING ORDER" that provides: "You and the other party are restrained from removing from the state the minor child or children for whom this action seeks to establish a parent-child relationship without the prior written consent of the other party or an order of the court."

E.P. refused to discuss the issue of the summons and restraining order whenever S.M. attempted to talk with her about it, and she continued to plan her trip to Iowa. S.M.'s attorney had "drawn up" a stipulation that S.M. wanted E.P. to sign, which provided that E.P. would agree to bring C.M. back to California after her trip to Iowa. E.P. refused to sign the stipulation. E.P.'s refusal to sign caused S.M. to become concerned that E.P. might not return C.M. to California.

Early in the morning on April 23, 2009, E.P. and S.M. had an argument. E.P. confirmed her intention to leave for Iowa with C.M. later that day, despite the terms of the standard restraining order that was issued with the summons in the paternity and custody action. The parties argued, and E.P. eventually called the police. At least two police officers arrived at S.M. and E.P.'s residence and spoke with the parties for approximately an hour. The officers ultimately arrested S.M. when he said that he did not want E.P. to take C.M. out of the house.*fn6

On April 23, 2009, E.P. flew to Iowa with C.M. to attend the baby shower. On April 24, 2009, E.P. filed a motion in the California court to quash summons. In her motion, E.P. argued that California does not have jurisdiction to determine the paternity and custody of C.M. E.P. also sought a restraining order against S.M., based on the incident that occurred in the early morning hours of April 23. In her request for a restraining order, E.P. described "the most recent abuse" committed by S.M. as follows: "He woke me up. Tore off the covers and said, 'I'll kill you.' He then called me a 'cold bitch.' When the police came he was arrested...."

The court held an ex parte hearing on April 24. The court entered an order shortening time for hearing E.P.'s motions, set a hearing for May 4, and ordered E.P. to return to California with C.M. for the May 4 hearing.

On April 30, E.P. filed an action in the Iowa District Court for Floyd County to establish custody and child support. (E.P. v. S.M., Iowa District Court for Floyd County, case No. DRCV 029319.)

The trial court held the hearing on E.P.'s motion to quash and her request for a restraining order on May 4. The parties agreed that neither California nor Iowa could be considered C.M.'s "home state" under the UCCJEA because C.M. had not lived in either state for six consecutive months. After the hearing that day, the court filed a document entitled "Restraining Order After Hearing (Order of Protection)" against S.M. The order had an expiration date of November 3, 2009. The six-month restraining order named E.P. as the "[p]rotected person." S.M. was listed as the "[r]estrained person," and he was ordered not to "[h]arass, attack, strike, threaten, assault... hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements; [¶] [c]ontact..., telephone, or send messages or mail or e-mail....; [¶] [t]ake any action, directly or through others, to get the addresses or locations of any protected persons or their family members, caretakers, or guardians." The order also required S.M. to "stay at least 100 yards away from" E.P.

On May 5, the trial court issued a minute order concerning the jurisdictional question. The minute order stated that the court had spoken with the court in Floyd County, Iowa, to discuss the matter of jurisdiction over the case, and had concluded that Iowa, and not California, should have jurisdiction over the paternity and custody matter between E.P. and S.M. The court stated that E.P. would be permitted to "return to Iowa at any time."

On May 26, 2009, S.M. filed a timely notice of appeal from the court's May 4 restraining order and the May 5 minute order. The parties completed their appellate briefing on November 29, 2009.


A. The Jurisdictional Issue has been Rendered moot by the Parties' Stipulated Agreement to ...

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