Segal v. Fishbein

Filed 3/22/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MICHELLE SEGAL, D080578
Plaintiff and Respondent,
v.
(Super. Ct. No. 22FL002401C)
PAUL FISHBEIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Alana W. Robinson, Judge. Affirmed.
Bickford Blado & Botros, and Andrew J. Botros, for Defendant and
Appellant.
Michelle Segal, in pro. per., for Plaintiff and Respondent.
I
INTRODUCTION
This appeal concerns precisely the kind of forum shopping that the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam.
Code, § 3400 et seq.)1 was designed to prevent. Unhappy with a Virginia
court’s order regarding the custody of his minor daughter, appellant Paul
Fishbein sought to modify that order only one month later in California
family court. When the California court found it lacked jurisdiction under
the UCCJEA to do so, Fishbein appealed. We conclude the California court
was correct: the Virginia court that entered the governing child custody
order had initial home state jurisdiction, and it never lost that jurisdiction.
Therefore, we affirm.
II
BACKGROUND
A
2017 Virginia Custody Order
When Fishbein and respondent Michelle Segal divorced in 2017, they
entered an agreement in a Virginia court regarding child custody of their
then five-year-old daughter, A.F. Because of their employment with the
United States State Department of Foreign Service, the custody agreement
addressed how the parents would handle their rotating employment postings
to various cities. Specifically, Fishbein and Segal would alternate which
parent’s assigned city or post took priority, and they would seek work
assignments in the same city until A.F. turned 18 years old. Pursuant to the
agreement, Fishbein had priority for the 2017 assignment, Segal had priority
for the 2019 assignment, and Fishbein had priority for the 2021 assignment.
As a result, A.F. has lived in a number of locations with her parents,
including Arlington, Virginia; Tokyo, Japan; Singapore; and San Diego,
California.
1 Unless otherwise designated, all further statutory references are to the
Family Code.
2
Most recently, A.F. moved to Singapore with Segal in 2019 and then,
pursuant to the custody order, moved to San Diego with Fishbein in June
2021. So that she could be near A.F. during Fishbein’s San Diego
assignment, Segal also moved to San Diego in June or August of 2021.2 She
did so under a temporary remote working agreement with her employer, the
Department of State, which is headquartered in Washington, D.C.
B
December 2021 and February 2022 Virginia Custody Orders
In December 2021, the Virginia court issued a custody order specifying
that Fishbein and Segal would continue to alternate which of their assigned
cities would take priority, beginning with Fishbein’s assigned city of San
Diego in August 2021 and then switching to Segal’s assigned city for the next
Foreign Service tour.
Segal moved for reconsideration of this custody order. At the hearing
on Segal’s motion, the Virginia court expressed that “the whole underlying
basis for the Court’s ruling that [A.F.] should reside with [Fishbein] in San
Diego ha[d] lost its legs” because Fishbein was unable to produce any
documentation showing that he did, in fact, have a position with the State
Department allowing him to telework from San Diego. Accordingly, on
February 8, 2022, the Virginia court granted Segal’s motion to reconsider.
The Virginia court modified the December 2021 custody order so that A.F.
would remain in San Diego only until the end of her school year in June 2022,
after which A.F. would be “permitted to relocate to the Northern Virginia
area with [Segal] assuming [Segal] still has her job with the State
2 The parties’ declarations are inconsistent about whether Segal moved
to San Diego in June 2021, as Fishbein contends, or in August 2021, as Segal
contends. This minor discrepancy, however, is not determinative of the
issues on appeal.
3
Department and will be working at her current position, the UNICEF desk
job in Washington, D.C.”
C
March and April 2022 California Custody Filings
In early March 2022, Fishbein filed in the San Diego Superior Court
(the California court) a notice of registration of the Virginia court’s December
2021 custody order, modified on February 8, 2022 (the Virginia custody
order). A couple of weeks later, he filed a request in the California court for
an order modifying the Virginia custody order so that A.F. would
permanently remain in his custody in San Diego. In support of his request
for modification, Fishbein contended that A.F. was thriving in San Diego and
that he could provide her the stability she needed because he planned to
remain in San Diego for the remainder of her childhood.3
Segal responded by requesting a hearing on Fishbein’s registration of
the Virginia order in California. In her attached declaration, Segal alleged
that Fishbein was attempting to forum shop, and that he was
misrepresenting the current state of the parties and the proceedings in
Virginia. She acknowledged that she and A.F. were living in California but
contended that they were doing so only “temporarily” with plans to return to
Virginia. She stated that she and A.F. had consistently lived in the Virginia
area between all of Segal’s international postings since 2012, and she
planned to return to Virginia with A.F. at the end of the school year in June
2022, as permitted by the Virginia court’s custody order. Segal further
alleged that the Virginia court had continuing, exclusive jurisdiction under
3 Relatedly, Fishbein indicated to the California court that he left the
Foreign Service at some point in approximately 2021 or 2022, but the record
on appeal is unclear on the specific timing of his departure.
4
the UCCJEA and asked the California court to confer with the Virginia court
about jurisdiction before entering any order modifying the Virginia custody
order.
Because the California court had ordered the parties to participate in
an upcoming custody mediation, Segal also applied ex parte to either cancel
or reset the mediation and again asked that the California and Virginia
courts confer under the UCCJEA.
D
Jurisdictional Conference
At the April 7, 2022 ex parte hearing, the California court considered
the parties’ arguments on jurisdiction under the UCCJEA. Fishbein’s
counsel alleged that because Fishbein, Segal, and A.F. all lived in California,
the Virginia court “lost” jurisdiction and thus, a UCCJEA jurisdictional
conference between the Virginia and California courts would be
inappropriate. Fishbein’s counsel further stated, “This [UCCJEA] argument
may be more appropriately heard in conjunction with that [UCCJEA
jurisdictional] conference instead of [on] an ex-parte basis. It may be
appropriate for the court to swear the parties and get facts and evidence from
each party prior to making a determination as to whether or not the UCCJEA
conference is appropriate. That said, it’s only if the court obviously feels that
that is necessary at this point in time, but that would be my request. Not
that we want to delay these proceedings.”
The California court found that given the Virginia court’s recent
February 8, 2022 custody order and the parties’ representations, it was
unclear where jurisdiction existed under the UCCJEA. For that reason, it
canceled the upcoming mediation and stated its intention to hold a UCCJEA
conference with the Virginia court to discuss jurisdiction. The California
5
court then instructed the parties to return for a hearing on April 12, 2022, to
discuss that conference. Fishbein’s counsel asked to participate in the
UCCJEA conference and to have it reported, but the California court
declined, instead offering “the opportunity to argue to [the court] now any
further facts and law before the conference.” Fishbein’s counsel responded
that her arguments were what she had “already stated.”
Before the April 12, 2022 hearing, Fishbein filed an opposition
regarding Segal’s objection to his registration of the Virginia court’s custody
order in which he again contended that California was the only state having
jurisdiction over the custody dispute. In his opposition, Fishbein generally
alleged that jurisdiction was proper in California because Segal no longer
resided in, or had substantial connections to, Virginia.
At the April 12, 2022 hearing, the California court stated that it
considered Fishbein’s filing, and it gave the parties a summary of the
California court’s conference with the Virginia court. The California court
explained that the two courts discussed the history of the litigation in
Virginia and California, the evidentiary hearing in Virginia resulting in the
February 2022 child custody order, and that the Virginia court’s modified
custody order allowed Segal and A.F. to return to Virginia at the end of the
school year in June 2022. The courts agreed that the Virginia court was the
home state court, and the Virginia court determined that it would “retain
jurisdiction.” For that reason, the California court found that it lacked
jurisdiction to modify the Virginia custody order and vacated the associated
upcoming hearing. The California court noted, however, that it would still
move forward with the hearing on Fishbein’s registration of the custody
order.
6
Fishbein’s counsel objected to the California court’s jurisdictional
ruling, contending that the UCCJEA conference should not have been held
because there was purportedly no question about jurisdiction. Fishbein’s
counsel reiterated that “there is no dispute” that A.F. and Segal have lived in
California since June 2021—arguments she noted that she previously made
to the California court the prior week. Fishbein’s counsel further objected to
the UCCJEA conference because it was held outside the presence of counsel
and the parties and was not reported.
Fishbein’s counsel alleged that the Virginia court’s lengthy history with
the case did not allow it to “usurp jurisdiction” and, on that basis, she asked
the California court to “swear the parties in and allow [her] to ask Ms. Segal
three questions just to determine for the Court . . . whether or not UCCJEA
jurisdiction was appropriately determined . . . .” The California court
responded that there “absolutely was” a question about jurisdiction because
the Virginia court had entered child custody orders as recently as February
2022, and the Virginia court had jurisdiction and retained jurisdiction until it
relinquished it. The California court stated that it had exercised its
discretion to exclude the parties from participating in the UCCJEA
conference under section 3410, subdivision (b), but noted that it had still
informed the parties about having the conference; gave the parties an
opportunity to argue facts and law before making its decision, which Fishbein
did both orally and in writing; and memorialized the conference in a minute
order, which the court would provide to the parties that day.
After the hearing, the California court provided its signed minute order
to the parties in which it again outlined what was discussed at the UCCJEA
conference, including that the Virginia court “determined that Virginia will
7
retain jurisdiction” and that, “[t]herefore, California is without jurisdiction to
modify Virginia’s child custody orders or make child custody orders.”4
Fishbein appeals.
III
DISCUSSION
A
Motion to Dismiss
Before filing her respondent’s brief, Segal filed a motion to dismiss this
appeal on two grounds. First, she contends the appeal is moot because we
summarily denied Fishbein’s three writ petitions challenging orders related
to the California court’s jurisdictional finding, and the Supreme Court denied
review. As Fishbein contends, however, a summarily denied writ does not
preclude the filing of a subsequent appeal on res judicata grounds.
(Hoversten v. Superior Court of San Luis Obispo County (1999) 74
Cal.App.4th 636, 640.) Accordingly, we deny Segal’s motion to dismiss on
this ground.
Second, Segal contends that, because she and A.F. are now living in
Virginia and the Virginia court has issued orders while this appeal was
pending, we are unable to grant any effectual relief and must dismiss the
appeal as moot. But whether we can still grant effectual relief to Fishbein
necessarily turns on whether the California family court properly concluded
that California does not have jurisdiction over the custody dispute. Because
Segal’s motion to dismiss necessarily implicates a review of the record and
4 Before filing the present appeal, Fishbein also filed three writ
petitions—all of which we summarily denied—challenging orders related to
the California court’s jurisdictional finding. One of those petitions challenged
the April 12, 2022 ruling that Fishbein again challenges on appeal.
8
the merits of this appeal, we deferred ruling on it and instead will consider it
together with the merits.
B
The California Court Properly Deferred to the Virginia Court’s Jurisdiction
The parties agree that this appeal is governed by the UCCJEA. 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.” (In re Marriage of
Fernandez-Abin & Sanchez (2011) 191 Cal.App.4th 1015, 1037.) To that end,
“[t]he UCCJEA ensures that only one state has jurisdiction to make ‘child
custody determinations’ ” at any one time.5 (Ibid.)
Nearly every state in the country, including California and Virginia,
has adopted the UCCJEA, codified in California at Family Code section 3400
et seq. (In re C.T. (2002) 100 Cal.App.4th 101, 106 (C.T.).) It is well settled
in California that the UCCJEA is “the exclusive method of determining the
proper forum in custody disputes involving other jurisdictions.” (C.T., at
p. 106; accord, Ocegueda v. Perreira (2015) 232 Cal.App.4th 1079, 1084.)
Accordingly, when a California court is asked to make either an initial or a
modified custody determination, UCCJEA jurisdictional requirements must
be satisfied. (In re Marriage of Arnold & Cully (1990) 222 Cal.App.3d 499,
502 [under the UCCJA].)
Here, the parties do not dispute that Virginia assumed initial
jurisdiction over their child custody dispute. (See § 3421.) Rather, they
dispute whether the California court erred by deferring to the Virginia court’s
5 As relevant here, a “ ‘child custody determination’ ” is defined to
include an order modifying a ruling previously made by a “court providing for
the legal custody, physical custody, or visitation with respect to a child.”
(§ 3402, subd. (c).)
9
determination that Virginia would retain that jurisdiction. The crux of
Fishbein’s argument is that California “was required” to assume jurisdiction
from Virginia because Segal admitted that she and A.F. had moved to
California in approximately June 2021. Segal, however, contends that the
California court correctly found it lacked jurisdiction because the Virginia
court declined to cede its jurisdiction to California, and moreover, Segal’s
intent to return to Virginia in June 2022 meant that she still “presently
resided” there. We agree with Segal and affirm.
The UCCJEA takes a strict “ ‘first in time’ ” approach to jurisdiction.
(W.M. v. V.A. (2018) 30 Cal.App.5th 64, 72.) “In general, once the court of an
‘appropriate state’—one having jurisdiction under section 3421, subdivision
(a)—has made a child custody determination, ‘that court obtains “exclusive,
continuing jurisdiction.” ’ ”6 (Ibid.) Thus, when a California court is asked to
make a custody determination but discovers that a child custody proceeding
has already been commenced in another state having jurisdiction
“substantially in accordance with” the UCCJEA,7 the California court must
stay its proceeding and consult with the other state court. (§ 3426.) If the
out-of-state court having jurisdiction “does not determine that the [California
court] is a more appropriate forum,” then the California court “shall dismiss”
the California custody proceeding. (§ 3426, subd. (b), italics added.)
6 Under section 3421, a court “has jurisdiction to make an initial child
custody determination” if it is the child’s home state. (§ 3421, subd. (a)(1).)
7 Because Virginia enacted the UCCJEA in 2001, Virginia is “in
accordance with” the UCCJEA. (Va. Code Ann. §§ 20–146.1 to 20–146.38.)
10
Here, because a child custody proceeding had already been
commenced8 in Virginia, section 3426 required the California court to consult
with the Virginia court about jurisdiction. (§ 3426, subd. (b).) Once the
Virginia court determined that it would retain jurisdiction—that California
was not “a more appropriate forum”—the California court was required to
dismiss the proceeding.9 (Ibid.) In other words, the California court was
statutorily-required to defer to the Virginia court’s decision not to cede
jurisdiction to California. And that is precisely what the California court did.
Accordingly, there was no error.
Fishbein fails to explain how, under the UCCJEA, the California court
could have disregarded the Virginia court’s decision to retain jurisdiction and
instead proceeded to consider his request to modify the Virginia custody
order. To the extent Fishbein contends the Virginia court’s jurisdictional
8 We reject Fishbein’s unsupported contention that because a
modification of custody proceeding had not been actively “pending” in
Virginia since February 2022 at the time he filed in California court in March
2022, A.F.’s Virginia home state somehow changed to California. Fishbein’s
theory is undermined by the plain language of the UCCJEA. For example,
the Virginia court did not “terminate or . . . stay[ ]” the custody proceeding
because California was “a more convenient forum under section 3427.” (See
§ 3426, subd. (a) [except in emergency jurisdiction cases, “a court of this state
may not exercise its jurisdiction under this chapter if, at the time of the
commencement of the proceeding, a proceeding concerning the custody of the
child has been commenced in a court of another state having jurisdiction
substantially in conformity with this part, unless the proceeding has been
terminated or is stayed by the court of the other state because a court of this
state is a more convenient forum under Section 3427”] [italics added].)
9 Although not at issue on appeal, we note that the California court did
not dismiss the entire proceeding, which was filed to register the Virginia
court’s order. Rather, it vacated Fishbein’s request for an order modifying
the Virginia court’s custody order.
11
determination is erroneous, his argument is with the Virginia court, not the
California court.
We are also not persuaded by Fishbein’s contention that, pursuant to
sections 3422 and 3423, the Virginia court had “lost” its exclusive, continuing
jurisdiction because Segal admitted that she and A.F. moved to California.
Fishbein’s theory is contrary to the plain language of the UCCJEA.
Section 3422, subdivision (a)(2) provides that, except in the case of
emergency jurisdiction under section 3424 (which is not at issue here), “a
court of this state that has made a child custody determination consistent
with Section 3421 or 3423 has exclusive, continuing jurisdiction over the
determination until . . . [¶] . . . [subdivision] (a)(2) [a] court of this state or a
court of another state determines that the child [and all parents] do not
presently reside in this state.” Accordingly, Fishbein’s theory fails at the
outset. First, no California court “ha[d] made a child custody determination,”
as was required for section 3422, subdivision (a) to apply; only Virginia had
made a child custody determination. Second, section 3422 “unambiguously
gives the decree state sole power to decide whether jurisdiction has been lost
on this basis.” (In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 510
(Nurie), italics added.) Thus, as the decree state, Virginia had this power, not
California.
Fishbein fares no better under section 3423. Section 3423, subdivision
(b) “complements” section 3422 by restricting the conditions under which one
state may modify the custody orders of another state. (Nurie, supra, 176
Cal.App.4th at p. 498.) In relevant part, it similarly provides that, except in
an emergency jurisdiction case, “a court of this state may not modify a child
custody determination made by a court of another state unless a court of this
state has jurisdiction to make an initial determination under [section 3421,
12
subdivision (a)(1) or (a)(2)] and either of the following determinations is
made: (a) The court of the other state determines it no longer has exclusive,
continuing jurisdiction under Section 3422 or that a court of this state would
be a more convenient forum under Section 3427, or (b) A court of this state or
a court of the other state determines that the child [and all parents] do not
presently reside in the other state.”10 (§ 3423, subds. (a), (b), italics added.)
At every level of this statute, Fishbein again fails to show how the
California court had jurisdiction to modify the Virginia custody order. As a
threshold matter, California was not the “home state” of A.F. under either
section 3421, subdivision (a)(1) or (a)(2). California was not A.F.’s home state
“on the date of the commencement of the proceeding” in Virginia. (Id., subd.
(a)(1).) And Virginia, which had jurisdiction, did not “decline[ ] to exercise
jurisdiction on the grounds that [California] is the more appropriate forum.”
(Id., subd. (a)(2).)
Moreover, even considering Fishbein’s contention under section 3423,
subdivision (b) that the California court was required to “assume jurisdiction”
by determining that A.F., Segal, and Fishbein “d[id] not presently reside in”
10 To the extent Fishbein contends that the Virginia court also lost
jurisdiction via section 3423, subdivision (a), he is mistaken. Section 3423,
subdivision (a) provides that a California court “may not modify a child
custody determination made by a court of another state unless . . . [¶] . . .
[subdivision](a) The court of the other state determines it no longer has
exclusive, continuing jurisdiction under Section 3422 or that a court of this
state would be a more convenient forum under Section 3427.” (§ 3423, subd.
(a), italics added.) As applied here, section 3423’s plain language requires
that the Virginia court have determined it no longer had exclusive,
continuing jurisdiction or that California was a more convenient forum; this
was not a finding left up to the California court. Accordingly, because the
record is devoid of any such determination made by the Virginia court here,
section 3423, subdivision (a) was not a path by which California could assume
jurisdiction to modify the Virginia court’s custody order.
13
Virginia, his argument misses the mark. (§ 3423, subd. (b).) The question
central to Fishbein’s theory is not whether Segal “resided” in California at
the time he filed his California request to modify, but instead, whether Segal
had stopped residing in Virginia. (See Nurie, supra, 176 Cal.App.4th at
p. 499.) Segal had not. Rather, Segal’s declaration filed with the California
court stated that she never stopped residing in Virginia and was in California
only “temporarily” with plans to return to Virginia with A.F. in June 2022.
Segal alleged that she and A.F. were in California because of the Virginia
court’s custody order requiring A.F. to move there temporarily to live with
Fishbein. And Segal explained that she moved to California so that she could
be near A.F. during this custody arrangement.
Segal’s characterization of her move to California as “temporary” is
only further corroborated by the Virginia court’s custody order. That order
specified that the parties “shall seek to reside in the same city” so long as
A.F. is a minor and that Segal could return to Virginia with A.F. at the end of
A.F.’s school year in June 2022. Segal’s additional explanation that she was
living in California under a temporary remote agreement with her employer,
the United States Department of State, which is headquartered in
Washington, D.C., further validates her claimed intention to return to
Virginia.
As Segal’s declaration and the custody order establish, Segal still
presently resided in Virginia, despite living in California. (See e.g., Nurie,
supra, 176 Cal.App.4th, at p. 500 [For purposes of the UCCJEA, “a party may
have more than one residence.”].) Accordingly, even assuming Fishbein’s
section 3423, subdivision (b) theory was workable, Segal’s temporary stay in
California was not enough to defeat the Virginia court’s jurisdiction.
14
Further, Fishbein’s theory fails for yet another reason: section 3422
and section 3423’s plain language is clear that a judicial determination that
all parties no longer resided in Virginia was required before Virginia could
“lose” its continuing, exclusive jurisdiction. (Nurie, supra, 176 Cal.App.4th at
p. 500.) “It is not the parties’ departure itself that terminates the decree
state’s exclusive, continuing jurisdiction. Rather, it is when a
‘court . . . determines’ that all parties have ceased residing there that
jurisdiction is lost.” (Id. at pp. 500–501; § 3422, subd. (a)(2), § 3423, subd.
(b).) Without such a finding in either California or Virginia, “the statutory
condition terminating jurisdiction simply ha[d] not occurred.” (Nurie, at
p. 501.)
C
Denying Fishbein’s Request to Cross-examine Segal Was Not Prejudicial Error
In the alternative, Fishbein complains that the California court’s
refusal to allow him to cross-examine Segal before the UCCJEA conference
violated sections 3410 and 217. We are not persuaded.
1
Section 3410
Under section 3410, the court has discretion whether to allow the
parties to participate in the jurisdictional conference between the two state
courts. (§ 3410, subd. (b).) If the parties are not permitted to attend the
conference, “they must be given the opportunity to present facts and legal
arguments before a decision on jurisdiction is made.” (Ibid.) Finally, the
court must make a written record of any conference and grant the parties
access to that record. (Id., subd. (d).)
Here, we conclude that the California court fulfilled these
requirements. Both Fishbein and Segal presented evidence relevant to the
15
jurisdictional question, and the court permitted Fishbein to provide both
written and oral argument, including at the April 7, 2022 hearing. Indeed, at
the April 7, 2022 hearing, Fishbein’s counsel argued that A.F. had lived in
California since June 2021, that both Fishbein and Segal were residents of
California, and that the Virginia court lost jurisdiction over the custody case
because of the length of time that A.F. had not resided in Virginia. It is true
that the California court conducted the jurisdictional conference with the
Virginia court without the parties, but this was its right. And as required,
the California court made a “written record” of the conference via a minute
order, as well as described the conference to the parties at the April 12, 2022
hearing.11
Fishbein’s reliance on Brewer v. Carter (2013) 218 Cal.App.4th 1312,
1314 (Brewer) is misplaced. Brewer considered a father’s appeal from a
California court order finding that a different state was a more convenient
forum to make a child custody determination under section 3427. The father
contended that the California court failed to give the parties an opportunity
to present evidence, as required by section 3427.12
11 Fishbein insinuates that the California court also erred by denying his
request for a court reporter at the jurisdictional conference. We disagree.
The California court’s minute order outlining what occurred during the
jurisdictional conference was sufficient. (See, e.g., C.T., supra, 100
Cal.App.4th at pp. 111–112 [finding that section 3410 did not require the
court to record the courts’ jurisdictional conversation “verbatim” via tape
recording or a reporter’s transcript, but that compliance could be achieved by
describing the conversations “in memoranda”].)
12 Section 3427, subdivision (a) provides, “A court of this state that has
jurisdiction under this part to make a child custody determination may
decline to exercise its jurisdiction at any time if it determines that it is an
inconvenient forum under the circumstances and that a court of another state
is a more appropriate forum.” Subdivision (b) sets forth the factors the court
16
The Brewer court held that before determining California is an
inconvenient forum to resolve custody issues, the trial court must first give
the parties an opportunity to present evidence. (Brewer, supra, 218
Cal.App.4th at p. 1314.) Because the record lacked any evidence from which
the trial court could have considered and applied the section 3427 factors, the
Brewer court reversed. (Ibid.)
Brewer’s holding does not apply here, however, because a section 3427
inconvenient forum determination is not at issue. Nor was it required to be.
“The issue of inconvenient forum may be raised upon motion of a party, the
court’s own motion, or request of another court.” (§ 3427, subd. (a), italics
added.) Neither the California court’s minute order or its oral ruling
indicates that the issue of inconvenient forum was ever raised by either court.
(Cf. Brewer, supra, 218 Cal.App.4th at p. 1316 [“the [trial] court declined to
exercise jurisdiction under section 3427 . . .”]. And as Fishbein admits,
neither party ever raised the issue by motion or otherwise.13 Furthermore,
as Fishbein acknowledges, section 3427 “governs when California can release
UCCJEA jurisdiction to another state on the grounds of inconvenient forum.”
(Italics added.) But, as discussed previously, California did not have the
requisite initial jurisdiction to release; rather, Virginia did.
is required to consider before making such a finding and mandates that the
court “allow the parties to submit information” on those factors.
13 Fishbein complains about the minute order’s statement that, “[i]n light
of the lengthy procedural history of the case in Virginia, Judge Kemler’s
familiarity with the same, and the provisions of the UCCJEA, Judge Kemler
determined that Virginia will retain jurisdiction.” We reject Fishbein’s
contention that this statement somehow constitutes a section 3427
determination.
17
2
Section 217
Fishbein’s reliance on section 217 is similarly unavailing.14 Section
217 provides that absent a stipulation of the parties or a finding of good
cause, the court shall receive “any live, competent testimony that is relevant
and within the scope of the hearing.” (Id., subd. (a).) This includes the right
to cross-examine a party concerning statements made in a declaration.
(Swain, supra, 21 Cal.App.5th at p. 842.) “In appropriate cases, a court may
make a finding of good cause to refuse to receive live testimony and shall
state its reasons for the finding on the record or in writing.” (§ 217, subd.
(b).)
Fishbein contends we must reverse because the California court denied
his request to cross-examine Segal without making a finding of good cause
under section 217. We disagree. Even without a finding of good cause, the
court is required to receive live testimony under section 217 only if that
testimony is “relevant and within the scope of the hearing.” (Id., subd. (a).)
But Fishbein failed to explain with specificity, either in the trial court below
or in his briefing on appeal, how cross-examining Segal about her declaration
would have related to the issues underlying the California court’s
jurisdictional ruling. In the trial court, Fishbein claimed at most that cross-
examining Segal was necessary “just to determine for the Court . . . whether
or not the UCCJEA jurisdiction was appropriately determined . . . .” This
general statement, without more, is not enough. (See e.g., In re Marriage of
14 “A trial court’s decision about the admissibility of evidence is ordinarily
reviewed under the abuse of discretion standard. However, when the issue is
one of law, a de novo standard applies. . . . Here, the interpretation of section
217 is an issue of law, and we therefore apply the de novo standard of
review.” (In re Marriage of Swain (2018) 21 Cal.App.5th 830, 837 (Swain).)
18
George & Deamon (2019) 35 Cal.App.5th 476, 484 [court’s failure to make a
finding of good cause was not prejudicial where appellant “presented no
explanation in the trial court or in her appellate briefing as to how her cross-
examination of [the witness] would have related to any of the issues upon
which the family court based its sanctions order”].)
Moreover, the relevant underlying facts appear to be undisputed.
Fishbein, himself, acknowledged at the April 12, 2022 hearing that “there
[wa]s no dispute” that Segal and A.F. had lived in California since June 2021.
And he failed to suggest to the California court—either at the April 7 or April
12 hearings—that any facts were in dispute. Fishbein also does not dispute
that Segal intended to return to Virginia at the end of A.F.’s school year. To
the extent Fishbein contends the California court should not have believed
that Segal intended to return to Virginia, he fails to explain what testimony
he would have elicited to change this fact—particularly when it was
corroborated by the Virginia court’s order permitting this very custody
arrangement.
We additionally observe that Fishbein waived his objection at the April
7, 2022 hearing when the California court gave him “the opportunity to
argue . . . now any further facts and law before the [jurisdictional]
conference,” and his counsel responded only that her arguments were what
she had “already stated.” Further, Fishbein’s request at the April 12, 2022
hearing—to ask Segal “three questions” pertaining to jurisdiction—did not
necessarily make clear he was invoking his right to cross-examine Segal
about her declaration pursuant to section 217. Nor did Fishbein object to the
court’s refusal to accept this live testimony or argue that such an objection
would have been futile. (See e.g., Mendoza v. Ramos (2010) 182 Cal.App.4th
680, 687 [“Appellate courts will not consider objections that were not
19
presented to the trial court.”]; In re Marriage of Binette (2018) 24 Cal.App.5th
1119, 1127 [In the context of section 217, “the right to live testimony may be
forfeited.”]; see also In re the Marriage of Kerry (1984) 158 Cal.App.3d 456,
466 [even if affidavit in support of motion is objectionable, failure to object
“waives the defects, and the affidavit becomes competent evidence”].)
Fishbein’s reliance on Swain, supra, 21 Cal.App.5th 830 does not
change our conclusion. In Swain, the husband appealed from an order
denying his motion to terminate spousal support. At the hearing, the
husband objected to the wife’s declaration, raising his due process rights and
his right to cross-examine her. (Id. at p. 834.) He further pointed out that
the wife “was ‘not here to ask to put [her declaration] into evidence.’ ” (Ibid.)
Nonetheless, the court relied on the wife’s declaration in denying the
husband’s motion. (Id. at pp. 834–836.)
The appellate court concluded this was error and reversed, reasoning
that “the hearsay exception in Code of Civil Procedure section 200915 does
not apply to a motion to modify a family law judgment where . . . the opposing
party seeks to exclude the declaration on the ground that he or she is unable
to cross-examine the declarant. In that situation, the opposing party’s
objection not only seeks to exclude hearsay evidence, but also amounts to an
assertion of the party’s right under section 217 to ‘live, competent testimony
that is relevant and within the scope of the hearing.’ ” (Swain, supra, 21
Cal.App.5th at p. 841.)
15 Code of Civil Procedure section 2009 provides an exception to the
hearsay rule by allowing a motion hearing to be decided based on
declarations. (Code Civ. Proc., § 2009 [“An affidavit may be used . . . upon a
motion, and in any other case expressly permitted by statute.”].)
20
Although we agree with the Swain court’s analysis of section 217,
Swain is distinguishable.16 In Swain, the husband specifically objected to
the wife’s declaration and sought to cross-examine her. Here, in contrast,
Fishbein never objected to Segal’s declaration. Nor did he make any
unqualified request to cross-examine her about her declaration. Rather,
Fishbein’s request for live testimony was phrased as a request to ask Segal
“three questions,” without any explanation about what he hoped to elicit with
those questions and without any suggestion that his questions were intended
to test Segal’s declaration under section 217.
Accordingly, for the previous reasons, we conclude the California court
did not prejudicially err by deciding the jurisdictional question without
receiving live testimony or making a good cause finding.
16 Notably, the Swain court expressly did “not answer the general
question whether section 217 makes written declarations submitted in
connection with family law motions subject to the hearsay rule in every case.”
(Swain, supra, 21 Cal.App.5th at p. 841.)
21
IV
DISPOSITION
The order is affirmed. Costs are awarded to respondent.
McCONNELL, P. J.
WE CONCUR:
IRION, J.
BUCHANAN, J.
22