S.M. v. E.P. (184 Cal. App. 4th 1249, 2010)

Opinion

AARON, J.—

I.

INTRODUCTION

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 bom. 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 bom, 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.

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) (Earn. Code, § 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.

II.

FACTUAL AND PROCEDURAL BACKGROUND

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 bom 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 bom in Iowa.”

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. 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. 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.

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 Dist. Ct. Floyd County, case No. DRCV029319.)

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 “[protected person.” S.M. was listed as the “Restrained 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; [H [cjontact . . . , telephone, or send messages or mail or e-mail . . . ; [f] [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.

m.

DISCUSSION

A. The jurisdictional issue has been rendered moot by the parties’ stipulated agreement to proceed in an Iowa court

1. Additional background

In his opening brief, S.M. argued that the trial court erred in refusing to exercise jurisdiction over the parties’ custody dispute. After the parties filed their briefs on appeal, they notified this court that they had entered into a stipulated settlement in an Iowa court. Pursuant to that settlement, the parties agreed that the Iowa court would exercise jurisdiction over their custody dispute. On January 12, 2010, counsel for S.M. filed “Appellant’s Notice of Settlement and Request for Dismissal” in this court. That document stated that the parties had settled the issues on appeal, and requested that this court dismiss the appeal. On January 15, this court received a letter from counsel for E.P. stating that E.P. joined in S.M.’s request for dismissal of the appeal.

On January 21, before this court had entered an order dismissing the appeal, counsel for S.M. filed “Appellant’s Request to Withdraw Notice of Settlement and to Withdraw Request for Dismissal and Order Thereon.” Counsel for S.M. claimed that the settlement to which counsel had referred in the request for dismissal was “unraveling.” On January 27, counsel for E.P. filed “Respondent’s Opposition to Withdraw Request for Dismissal and Order Thereon/Request to Dismiss Appeal,” in which counsel argued that the parties had entered into a binding settlement agreement, and that the settlement agreement renders the appeal in this court moot.

On February 9, 2010, counsel for E.P. filed a document entitled “Request for Judicial Notice and to Dismiss Appeal.” Counsel requested that this court take judicial notice of a decree entered by the Iowa District Court for Floyd County. A document entitled “Decree” was attached to the request, but the document was not certified or file stamped. On February 16, counsel for E.P. filed a certified copy of the decree from the Iowa District Court. The decree incorporated, and included a certified copy of, a transcript of the relevant proceedings in the Iowa court from January 6, 2010.

In response to the parties’ various motions and requests, on February 18, 2010, this court requested that the parties submit supplemental briefs addressing whether the appeal in this case should be dismissed. Specifically, this court asked the parties to address the following questions:

“1. Should this court consider Respondent’s January 27 filing to be a request to dismiss the appeal, and if so, should the court grant the motion? In responding to this question, please address the propriety of this court taking judicial notice of the Decree from the Iowa District Court, and the effect of the Decree on the question whether the appeal should be dismissed.

“2. Should this court consider the dismissal issue with the appeal, or [are] there exceptional circumstances that support earlier consideration of the issue?”

Each party filed a supplemental brief.

2. Analysis

The decree of the Iowa District Court for Floyd County includes the following provision: “As to additional matters, the Court notes that the parties agree, and specifically [S.M.] agrees to the jurisdiction of the Iowa Court, and that by operation of law, shall have the effect of a dismissal of the California appeal regarding child custody of [C.M.], and [S.M.] shall take affirmative steps in California to request a dismissal of the California appeal.” A transcript of the court proceeding from January 6, 2010, is attached to the decree and is incorporated in the decree by reference.

We conclude that the decree of the Iowa District Court for Floyd County, as well as S.M.’s concession in his supplemental briefing in this court, establish that S.M. is no longer challenging the trial court’s May 5 minute order deferring jurisdiction over paternity and custody issues to an Iowa court. We therefore dismiss as moot S.M.’s appeal from the May 5 minute order. (See Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178 [49 Cal.Rptr.3d 825] [“Generally, courts decide only ‘actual controversies’ which will result in a judgment that offers relief to the parties. [Citations.] Thus, appellate courts as a rule will not render opinions on moot questions . . . .”].)

B. The trial court abused its discretion in issuing a restraining order against S.M. under Family Code section 6300

S.M. challenges the trial court’s issuance of a restraining order against him. The restraining order is separately appealable as an order granting an injunction (see Code Civ. Proc., § 904.1, subd. (a)(6)), and there is nothing in the Iowa court decree that suggests that S.M. agreed to dismiss his challenge to the restraining order.

1. Additional background

At the hearing on May 4, 2009, E.P. testified that early in the morning on April 23, C.M. woke up and began crying. S.M. “came in to help soothe the baby.” According to E.P., “The baby went back to sleep, and [S.M.] started to question me on my trip back to Iowa.” When asked what happened next, E.P. said, “He continued to badger me, telling me he was going to call the police when I got to the airport stating that I was kidnapping our son, when I had purchased the ticket March 10th for a round-trip ticket, [f] . . . [f] The conversation escalated. He continued to tell me that he had that restraint [i.e., the standard restraining order issued with the summons in the paternity action]. I said I had talked to my attorney—.” E.P.’s attorney stopped her at that point, and asked her, “Then what happened. [][] I’m wanting you to kind of focus on action and words between you and [S.M.].” E.P. responded, “The conversation heated. He ripped off the covers of my bed and said, [‘]I’ll kill you.[’]” E.P.’s attorney stopped her again and asked E.P. to explain where she was in the house at the time these events were unfolding.

After describing where she had been in the house, E.P. then testified, “I told him multiple times, I said calm[ly], I said, [‘]I really do not want to discuss this right now. Can we please go back to sleep? I have an early flight.[’] And he said, [‘]No, we are not going to go back to sleep.[’] He turned on the hallway light and would not give me back the covers at all.” E.P. also testified that S.M. called her “names,” including “[c]old bitch” and “spoiled brat.” E.P. called S.M.’s sister at around 3:33 a.m., because E.P. “didn’t want to directly call the police” and “thought maybe she could calm him down.” When asked why she was going to call the police, E.P. responded, “Because he had threatened my life.” E.P.’s attorney asked, “Were you afraid?” E.P. responded, “I was at the moment, yes.”

E.P. said that she spoke with S.M.’s sister only briefly, and that the call was disconnected. S.M. continued to call E.P. names like “cold bitch” and “spoiled brat.” He told her to “go ahead and call the police” because he was “going to call them anyways in the morning.” E.P. asked S.M. to leave the room, but he would not, so she called the police.

E.P. testified on cross-examination that S.M. had never threatened to hurt her before, and that he had never “been physical with” her. She had never known S.M. to threaten physical harm to anyone, other than the threat that she said he made on this occasion. The baby, who was in the same room as E.P. and S.M. that morning, remained asleep throughout the incident. S.M.’s three other children, who were also in the house that night, also slept through the argument, until they were awakened just prior to S.M. being placed under arrest.

S.M.’s attorney asked E.P., “Did the police make any comment to you prior to arresting [S.M.] that they planned on arresting him?” E.P. responded, “Yes,” and explained, “They just said they would if he continued to talk out of line. He was not obeying what they were saying.” S.M.’s attorney sought clarification, asking E.P., “It was only if he continued to talk out of line they expressed their intent to arrest him, correct?” E.P. said, “No. When he was saying that I could not leave the house, that’s when they started speaking up.”

S.M. testified that he had discussed with E.P. “the restraining order contained on the summons which prevented] her from leaving the state with the baby.” When asked how E.P. responded when S.M. pointed out the terms of that restraining order to her, S.M. said, “Angrily and just pretty much ignoring what I would say, not even making any response. . . . [Bjasically ignoring the whole issue.” According to S.M., he got up in the early morning hours of April 23, gave the baby a bottle, and went back to sleep. S.M. explained that there “ended up being an argument, but it started with me telling her that it wasn’t just about [C.M.], that I wanted her to stay and live here. And she said, [‘]Oh, it’s always that way with you when I get ready to leave,!’] or something like that.” When asked how the conversation progressed, S.M. said that he asked E.P. what incentive she had to bring C.M. back to California, and she acknowledged that she had none. S.M. said that he responded, “I’m going to stop you from taking him. I’m going to call the police in the morning to keep you from taking [C.M.] to Iowa.”

At first, E.P. told S.M. to “go ahead” with his plan to call the police in the morning, but then said that she was going to call the police. S.M. told her to “go ahead” and call the police, and E.P. said that she would tell the police that S.M. had hit her. S.M. again told E.P. to go ahead and call the police because he was going to call them anyway. E.P. called S.M.’s sister first, and then called the police. When E.P. called the police, she told the person who answered her call that S.M. had threatened to kill her.

S.M. testified that both before and after E.P. made these telephone calls, he had said to her, “I’m sleeping in the bed, and you can go out to the couch, or you can leave the house, either one.” He further testified, “I never tried to stop her. I wanted her to leave. I was trying to reconcile in some way. So I told her to leave and go out on the couch.”

After E.P. called the police, S.M. called his sister to tell her “what was going on.” According to S.M., when the police arrived, “immediately they were hostile to me. I was not enraged. I was on the phone with my sister the whole time, but I was not enraged. I was not angry. They were right away hostile. They wouldn’t let me say one word. Then they were asking [E.P] what happened. And I would try and speak, and they would just, you know: □Shut up; you’re going to go to jail,[’] that kind of thing, right away.” S.M. testified that he kept his sister on the telephone because he “was scared that [he] was going to be arrested, that this whole thing was going to be taken out of control, that [E.P.’s] statements were going to be believed . . . .”

S.M. testified that when the police officers told E.P. that under the terms of the standard restraining order issued with the summons in S.M.’s paternity action, she could not take the baby out of the state, E.P. responded, “Well, my lawyer said I could.” According to S.M., the officers told E.P. that she had “got[ten] bad advice,” but also told her that she could leave the house, because there was nothing in that restraining order that prevented her from taking the baby out of the house. S.M. indicated that he did not want E.P. to take the baby out of the house because it was 4:00 a.m. and the baby was asleep. S.M. asked, “What if I don’t want [C.M.] to leave? Don’t I have the same right she does?” According to S.M., the police officers kept telling him that there was nothing to prevent E.P. from taking C.M. out of the house. In response to S.M.’s repeated questioning of the officers as to whether he had the same rights as E.P. regarding C.M. and asking, “[W]hat if I don’t let her take him,” an officer replied, “Then we have to call the detectives, and they may take the child away from both of you.”

The officers told S.M. to wake up his other children. Once the children were awake, officers spoke with each child. At some point, the officers told S.M., “If you don’t let [E.P.] take the baby out of this house, we’re going to arrest you.” S.M. asked, “For what? What did I do?” When the officers responded that S.M. had made a threat, S.M. told the officers, “[T]hat never happened. You guys weren’t even going to arrest me until I said I don’t want her taking the baby out of the house . . . .” The officers then placed S.M. under arrest.

On cross-examination, counsel for E.P. asked S.M. if it was his testimony that while the police officers were at his house, he was “just as a calm as a cucumber, and . . . just did everything the police said.” S.M. responded, “No. That’s not my testimony at all, but I did do everything the police said. [