Opinion
A143745 A145315
02-28-2017
In re the Marriage of FATIMA SHAKIL MEMON and SHAKIL MEMON. FATIMA SHAKIL MEMON, Petitioner and Respondent, v. SHAKIL MEMON, Respondent and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. D09-04978)
Appellant Shakil Memon challenges a family court order requiring him to pay his ex-wife Fatima Shakil Memon $1,762 a month in child support. He contends the trial court lacked subject matter jurisdiction over child support because the issue was pending in a case he filed in India. We affirm.
BACKGROUND
We state only the background facts relevant to the issue on appeal.
Shakil and Fatima were married in India in 2002 and lived in California from 2002 to 2005. From 2005 to 2008, the couple lived in New Jersey while Fatima completed a medical residency and Shakil worked as an engineer for Oracle. Fatima gave birth to the couple's son in 2006. The parties separated in March 2008 while still living in New Jersey.
We adopt the "first names" convention commonly used in family law decisions and briefs. "Referring to the parties by their first names personalizes the opinions for the parties and, for other readers, makes the opinion easier to understand." (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)
Fatima traveled with her son to India in August 2008 for a visit, and remained there until December 22, 2008, when she moved to California to begin working for a medical group in Antioch, California. Shakil took a leave of absence from his job and returned to India in September 2008.
On December 11, 2008, Shakil petitioned the family court in Pune, India for a "restitution of conjugal rights." Fatima appeared in this action through an advocate appointed on her behalf, and on July 18, 2009, filed an application under India's Protection of Women from Domestic Violence Act (the domestic violence petition), in which she allleged verbal and financial mistreatment by Shakil and sought a protective order.
"The restitution of conjugal rights [is] a curious cause of action grounded in the idea that a court could order spouses to live together, upon pain of imprisonment or fine, where one had deserted the other without lawful cause." (Mitra Sharafi, The Marital Patchwork of Colonial South Asia: Forum Shopping from Britain to Baroda (Nov. 2010) 28 Law & Hist. Rev. 979, 993.) Its origin is British ecclesiastical law. (Id., at pp. 992-993; see Shearer v. Shearer (3rd Dist. 1965) 356 F.2d 391, 453.)
On October 9, 2009, Fatima filed a petition for dissolution of the marriage in the Contra Costa County Superior Court, the proceeding from which this appeal arises. Fatima requested custody of her son in the petition, but did not request child support from Shakil. Shakil was served with the petition and filed motions seeking to quash service on the basis of a pending "divorce" proceeding in India. The motions were denied and Shakil does not argue in this appeal that the California court lacked personal or subject matter jurisdiction over the dissolution proceeding.
On July 14, 2010, notations were made on the court copy of Fatima's domestic violence petition in the Indian action, indicating she was not "pressing" her application because a divorce action had been filed in the United States. On February 7, 2011, Fatima filed a response to Shakil's petition for restitution of conjugal rights, advising the Indian court she had filed for divorce in California and Shakil had appeared in that action.
A judgment of dissolution was entered in the California action on October 19, 2011. The court awarded Fatima and Shakil joint legal custody of their son, with Fatima to have sole physical custody and Shakil to have visitation. Shakil moved back to New Jersey in 2012.
The Indian court dismissed Shakil's petition for restitution of conjugal rights in a judgment dated January 7, 2013. The order referenced a certified copy of the California judgment of dissolution and found Shakil was not entitled to a decree of restitution of conjugal rights. It also noted that Shakil's advocate in the Indian action had submitted a declaration in the California action wrongly stating that Shakil had filed for divorce in India: "In fact, the present petition is for a restitution of conjugal rights and not for divorce."
On February 22, 2013, Fatima filed a request for child support, attorney's fees and sanctions in the California action. Shakil opposed the request on the ground the Indian action deprived the court of subject matter jurisdiction. Fatima filed subsequent applications for child support in the California action in October and December 2013.
On October 31, 2014, the family law court ruled it had subject matter jurisdiction over child support, child custody, visitation, and the division of marital assets and debts, as well as personal jurisdiction over Shakil. In an order entered on March 30, 2015, the court granted Fatima's request for child support and set the amount at $1,762 a month. Shakil separately appealed from the order determining subject matter jurisdiction and the support order, and we have consolidated those appeals.
DISCUSSION
Shakil's sole contention on appeal is that the court below did not have subject matter jurisdiction over child support because Fatima requested child support from the court in India. We reject the claim.
Former Family Code section 4908 (now section 5700.204) is part of the Uniform Interstate Family Support Act (UIFSA) and restricts California courts' jurisdiction to order support if a comparable support petition or pleading is initiated in another state or a foreign country. (In re Marriage of Newman (2000) 80 Cal.App.4th 846, 850 (Newman).) It provides: "(a) A tribunal of this state may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a pleading is filed in another state or a foreign country only if: [¶] (1) the petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state or the foreign country for filing a responsive pleading challenging the exercise of jurisdiction by the other state or the foreign country; [¶] (2) the contesting party timely challenges the exercise of jurisdiction in the other state or the foreign country; and [¶] (3) if relevant, this state is the home state of the child." A support proceeding in a foreign country can take precedence over and preclude a support proceeding in California when that country has "enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures" under UIFSA. (Former § 4901, subd. (s)(2); see § 5700.102, subd. (5)(C).)
Further statutory references are to the Family Code except where otherwise indicated.
Shakil suggests the laws and procedures pertaining to child support in India are "substantially similar" to those under UIFSA. He represents that child support or maintenance in India is governed by that nation's Code of Criminal Procedure (1973), as amended 2001. Section 125 of that Code requires an award of maintenance for a minor child who is "unable to maintain" himself or herself, "at such monthly amount as [the] Magistrate sees fit." Section 127 of the Indian Code of Criminal Procedure allows a modification of a maintenance order upon a change in circumstances, and section 128 provides for the enforcement of such orders through a magistrate.
The statutes cited by Shakil contain nothing comparable to California's mandatory and specific guidelines for child support, nor do they establish an enforcement scheme comparable to UIFSA. (See §§ 4052-4055; In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 385-386.) Shakil has not established that these provisions are "substantially similar" to the laws and procedures of Calfornia.
In Kalia v. Kalia (Ohio 2002) 151 Ohio App.3d 145, 158, an Ohio court concluded India was not a "state" within meaning of UIFSA because the Indian Civil Code section cited by the parties in that case did not mention the issuance and enforcement of support orders.
Even if the provisions cited by Shakil could be deemed substantially similar to California's child support procedures, we need not decide whether a pending child support proceeding in India would, as a general matter, preclude a California court from issuing a support order. Simply put, no action for support was pending in India at the time Fatima requested child support in the California dissolution action, and no support order was ever issued by a court in India. (See In re Marriage of Richardson (2009) 179 Cal.App.4th 1240, 1244 [no need to determine whether Japan was child's "home state" under former version of UIFSA because there was no proceeding in Japan addressing issue of support; California had subject matter jurisdiction to enter support order as part of California divorce proceeding even though child was living with mother in Japan].) "[A] California court, which otherwise has jurisdiction over the issues and the parties, is not deprived of jurisdiction to award [] support by the pendency of a proceeding in another state that does not address that issue." (Newman, supra, 80 Cal.App.4th at p. 851.)
Shakil takes the position that a support action was pending in India because Fatima requested "maintenance" to her son in the amount of $2,000,000 rupees per month, as part of her domestic violence petition filed on July 18, 2009. But this request was filed in the action for restitution of conjugal rights, which was dismissed on January 7, 2013, without the issuance of a support order. "When there is no out-of-state support proceeding or support order, the UIFSA has no application." (Hogoboom and King, California Practice Guide: Family Law (The Rutter group 2016) paragraph 3:7:1, page 3-6.)
Shakil argues that India maintained exclusive subject matter jurisdiction over child support even if the Indian action was later dismissed, citing the principle that " '[w]hether the forum court satisfies applicable subject matter jurisdiction standards is tested as of the time the action is commenced—i.e., when the first pleading is filed. . . . Subject matter jurisdiction either exists or does not exist at the time the action is commenced.' " (In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 376.) He suggests that Fatima's California action for child support was "commenced" when she filed the petition for dissolution on October 9, 2009, at which time her request for maintenance was still pending in the Indian action.
In support of his claim, Shakil notes that the original petition for dissolution was presented on Judicial Council Form FL-100, Item 7 of which contains preprinted statements advising the respondent "the court will make orders for the support of the children upon request and submission of financial forms. . . ." (See Hogoboom and King, California Practice Guide: Family Law (The Rutter group 2016) paragraph 3:269, pages 3-1023-103.) We are not persuaded that by virtue of this language, Fatima commenced an action for child support. The advisory language on the form is designed to resolve "potential due process problems that might otherwise arise in default cases where, because of a petitioner's failure to check a box requesting child support, the court would be without jurisdiction to order child support payable by a defaulting respondent." (See Hogoboom and King, California Practice Guide: Family Law (The Rutter group 2016) paragraph 3:269, pages 3-1023-103.) Indeed, the advisement makes clear a support order would issue only upon request. Fatima did not commence her action for child support in California until she filed a request for child support on February 22, 2013, two and a half years after she had withdrawn the domestic violence petition in the Indian action and one month after the entire Indian action had been dismissed.
Shakil asks us to take judicial notice of a petition filed by Fatima in India on October 11, 2013, to obtain a declaration that the marriage had been dissolved by the California divorce decree. This pleading does not pertain to child support and was filed after both the dismissal of the Indian action for the restitution of conjugal rights and Fatima's application for child support in the California dissolution. Assuming this filing in the court of a foreign nation is a document of which we can take judicial notice under Evidence Code sections 459 and 452, we deny the request as irrelevant. (See Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1488, fn. 3.)
Whether we apply the de novo standard of review advocated by Shakil (Lundahl v. Telford (2004) 116 Cal.App.4th 305, 312) or the substantial evidence standard of review advocated by Fatima (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1286-1287), we conclude the family court did not err in ruling that it had subject matter jurisdiction over child support and in issuing a support order.
DISPOSITION
The judgment is affirmed. Fatima shall recover her ordinary costs on appeal.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.