Bosse v. Superior Court (Bosse) (1979)

Annotate this Case

[Civ. No. 45269. First Dist., Div. Two. Feb. 20, 1979.]

COLLEEN MARIE BOSSE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; BROOKS CARL BOSSE, Real Party in Interest.

(Opinion by Kane, J., with Taylor, P. J., and Rouse, J., concurring.)

COUNSEL

Howard & Varty, Wayne D. Howard and Gerald E. Varty for Petitioner.

No appearance for Respondent.

Brooks Carl Bosse, in pro. per., for Real Party in Interest.

OPINION

KANE, J.

In this child custody proceeding, petitioner (hereafter wife) contends that the decision of respondent court to retain jurisdiction over a custody determination frustrates the purpose of the Uniform Child Custody Jurisdiction Act (Civ. Code, § 5150 et seq.), fn. 1 in light of currently parallel proceedings pending in the County of Silver Bow, State of Montana, where wife and the child have been residing for a period of about two and one-half years. fn. 2 [89 Cal. App. 3d 442]

On January 12, 1977, an interlocutory judgment of dissolution of marriage was entered in the Superior Court of California, County of Santa Clara, wherein it was stipulated that wife have custody and control of the minor child of the parties, with specified visitation rights granted to husband.

On May 18, 1978, real party in interest (hereafter husband) sought, in the court which had issued the original custody order, an order to show cause re contempt grounded on wife's consistent refusal for over a period of two years to permit husband to communicate or visit with the minor child; and, in addition, husband moved for a change of custody and termination of child support pending the outcome of the custody determination. fn. 3

On June 6, 1978, the date set for the hearing on the order to show cause re contempt and the motion for change of custody and termination of child support, wife appeared specially through her attorney who moved to dismiss the matter or stay the proceedings pending commencement of an action in a sister state. The matter was continued to August 14, 1978; respondent court requested both parties to submit briefs on the motion to dismiss or stay the proceedings. In points and authorities in support of the motion to dismiss the matter or stay the proceedings, wife contended that the proceedings were governed by the Uniform Child Custody Jurisdiction Act or the doctrine of forum non conveniens, in that Montana was the "'home state'" of the child, the child was not physically present in California, and evidence of the child's present or future care, protection, training and personal relationships was more readily available in Montana. Wife provided the court with a copy of a parallel proceeding instituted by her in the County of Silver Bow, State of Montana, on June 27, 1978. Husband opposed wife's motion, contending that the doctrine of unclean hands permitted the California court to exercise its wide discretion to retain jurisdiction of the proceedings.

On August 14, 1978, the date set for hearing on the motion, wife did not appear, husband appeared through his attorney; and on August 28, [89 Cal. App. 3d 443] 1978, respondent court entered its order retaining jurisdiction over the custody proceeding, the order which is the subject of these proceedings. fn. 4

[1] That a California court has jurisdiction to modify its original custody order we have no doubt (Clark v. Superior Court (1977) 73 Cal. App. 3d 298, 305-307 [140 Cal.Rptr. 709]; Schlumpf v. Superior Court (1978) 79 Cal. App. 3d 892, 898 [145 Cal.Rptr. 190]). The question presented is whether respondent court should have exercised its jurisdiction to stay the custody proceeding instituted in California pending the determination of the custody proceeding subsequently initiated by wife in Montana when Montana has been shown to be a more appropriate forum.

A court which has jurisdiction to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree 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 (§ 5156, subd. (1)). fn. 5

Section 5156, subdivision (3), provides that 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. Under the criteria set forth in section 5156, subdivision (3), it is uncontroverted that Montana has been the child's home state for the past two and one-half years (§ 5156, subd. (3)(a)); Montana has a closer connection with the child and one of the contestants than does California with the child and the other contestant (§ 5156, subd. (3)(b)); evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in Montana (§ 5156, subd. (3)(c)); and that the exercise of jurisdiction by a California court could contravene the general purposes of section 5150 (§ 5156, subd. (3)(e)). Ordinarily, under these circumstances, the California court should exercise its discretion to issue a stay of the proceedings in this state to permit a final adjudication in the state [89 Cal. App. 3d 444] of the parent entitled to custody under the existing decrees (Clark v. Superior Court, supra, 73 Cal. App. 3d at p. 310; Ferreira v. Ferreira (1973) 9 Cal. 3d 824, 842 [109 Cal.Rptr. 80, 512 P.2d 304]).

Husband, however, opposed wife's motion to dismiss or stay the proceedings pending commencement of proceedings in Montana on the ground that the Uniform Child Custody Jurisdiction Act presupposes good faith on the part of both of the parties; that the evidence showed that wife had not acted in good faith; and that under the circumstances shown the court was entitled to direct its attention to the equities involved and to exercise the wide discretion provided under the act. Husband argues that the circumstances are such that a denial of jurisdiction on the part of a California court would in fact encourage the abuse that the act was designed to avoid. We therefore consider whether in this case the doctrine of unclean hands permits the California court to exercise its wide discretion to retain jurisdiction of the custody proceedings. fn. 6

The clean hands doctrine is codified in section 5157. Although section 5157 does permit a court to decline to exercise jurisdiction in circumstances where a petitioner has engaged in reprehensible conduct, none of its provisions appear to be applicable under the circumstances of this case. fn. 7 Section 5157, subdivision (1), does not apply because wife is not petitioning for an initial decree nor has she wrongfully taken the child from another state. fn. 8 Although section 5157, subdivision (2), would permit the Montana court to decline to exercise its jurisdiction because of wife's violation of the visitation provisions of the custody decree, that state may decline to exercise its jurisdiction only "if this is just and proper under [89 Cal. App. 3d 445] the circumstances." Section