Opinion
E074971
11-12-2021
In re the Marriage of MEREDITH AND ALEX MICHAEL R. v. ALEX MICHAEL R., Appellant. MEREDITH R., Respondent,
Law Offices of Sarah A. Stockwell and Sarah A. Stockwell for Appellant. Westover Law Group and Andrew L. Westover for Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. FLHE1905627. Timothy F. Freer, Judge. Reversed.
ORIGINAL PROCEEDINGS in mandate. Timothy F. Freer, Judge. Petition granted.
Law Offices of Sarah A. Stockwell and Sarah A. Stockwell for Appellant.
Westover Law Group and Andrew L. Westover for Respondent.
OPINION
MENETREZ J.
Meredith R. and Alex R. married in 2005 in Riverside County, California. The couple and their three minor children moved to San Antonio, Texas in 2015. In September 2019, Meredith fled Texas for Murrieta, California, where Meredith's parents live, and she took the children with her. Within days of arriving in California, she petitioned the Riverside County Superior Court for legal separation and requested a domestic violence restraining order (DVRO). Alex moved to quash service of process. The trial court denied the motion to quash with respect to the DVRO request and granted Meredith's request for a three-year DVRO.
Because this case involves proceedings under the Domestic Violence Prevention Act, we refer to the parties by first name and last initial to protect Meredith R.'s privacy interests. (Cal. Rules of Court, rule 8.90(b)(1), (11).) For ease of reading, we omit the parties' last initial in subsequent references. No disrespect is intended.
Alex argues that the court erred by denying the motion to quash and granting the DVRO. He contends that the court lacked personal jurisdiction over him. He further contends that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to make the child custody and visitation orders incorporated into the DVRO. (Fam. Code, § 3400 et seq.; unlabeled statutory citations refer to this code.) We agree on both counts. We therefore reverse the child custody and visitation orders, vacate the DVRO and the order denying the motion to quash, and direct the court to enter an order granting the motion to quash with respect to the DVRO request.
BACKGROUND
I. Meredith's Request for a DVRO
Meredith's request for a DVRO sought personal conduct and stay-away orders protecting her and the children. The request also sought sole legal and physical custody of the children, no visitation for Alex, child support, and spousal support. The court set the DVRO request for a hearing but denied Meredith a temporary restraining order (TRO).
The court held a hearing on the DVRO request in early October 2019. Alex specially appeared through counsel and orally moved to quash service of process. He also advised the court that he had filed a family law case in Texas. The court directed him to file a written motion to quash and made "[t]emporary [o]rders" under the UCCJEA giving both parties legal custody of the children and Meredith physical custody. (See § 3424, subd. (a) [permitting a California court to exercise "temporary emergency jurisdiction" when the child's home state is elsewhere].) The court continued the hearing on the DVRO request.
II. Alex's Motion to Quash
Alex filed a written motion to quash, arguing that the court lacked personal jurisdiction over him. His declaration in support of the motion stated that the parties owned a home in Texas and had resided there for the last three years, they had four vehicles registered in Texas, and they had Texas driver's licenses. Alex still resided in Texas. In addition, their children had attended school in Texas for three years until Meredith had moved them to California without his knowledge or consent in September 2019. Alex declared that he had owned no property in California and had not lived in the state since 2010. He had no contacts with California except for brief visits for work or vacation.
In her brief opposing the motion to quash, Meredith argued that the court had personal jurisdiction over Alex for purposes of the DVRO request because he had stalked, harassed, and surveilled her after her move to California. She also contended that the parties were domiciled in California, even if the parties had resided in Texas for the last several years. In addition, she argued that the court had personal jurisdiction for purposes of the petition for separation.
III. Meredith's Amended Request for a DVRO and Alex's Supplemental Declaration
Meredith filed an amended request for a DVRO. According to her declaration in support of the amended request, Alex had a history of verbally abusing her by calling her profane names and shouting other obscenities at her. She described specific incidents in February, April, July, and September 2019. Recently, he had punched holes in a wall and a door of their house and had grabbed her arms so tightly that he bruised her. Meredith and the children left Texas while Alex was traveling for work. Since her move, Alex had solicited friends to contact her and her family via text message or Facebook. Those friends were "inquir[ing] as to [her] whereabouts" and "stalk[ing]" her. One recent evening, a car with a Texas license plate and Marine Corps stickers parked outside her parents' house in Murrieta for a few hours. Meredith knew that the car did not belong to Alex, but she "ha[d] a feeling" that it was one of Alex's friends; he was well connected in the Marine Corps and had several friends in the area. She called the Riverside County Sheriff's Department, but the car was gone by the time an officer arrived. Meredith declared that Alex and his friends "continue[d] to harass [her] through text message," social media applications, "and any other means possible."
On October 22, 2019, four days after Meredith filed the amended DVRO request, the court issued a TRO protecting her and the children from Alex. The TRO included personal conduct and stay-away orders, granted Meredith sole legal and physical custody of the children, and denied Alex visitation. The personal conduct orders prohibited him from contacting her directly or indirectly.
Alex subsequently filed a supplemental declaration in support of his motion to quash. He stated that he had not contacted Meredith since she served him with the TRO in late October 2019. He attempted to contact her before then because he wanted to speak to the children, and he was trying to determine why she had left abruptly and where she had taken them. He had contacted her family and friends for the same reasons. He had not caused anyone to threaten, harass, or stalk her. But soon after Meredith left Texas, two of his friends offered to contact her to confirm that she and the children were safe.
IV. UCCJEA Conference with the Texas Court and the Texas Orders
On November 8, 2019, the superior court held a hearing on the DVRO request and motion to quash, but it continued both matters to January 17, 2020. On November 13, 2019, the superior court and the Texas court held a UCCJEA conference via phone. A Texas court reporter transcribed the conference, and the record includes a copy of that transcript.
The California court informed the Texas court that it was hearing Meredith's DVRO request in January 2020 and that it had granted temporary orders. Both courts agreed that Texas was the children's home state under the UCCJEA and that the California court had only temporary emergency jurisdiction to issue custody orders. But they disagreed about the extent of emergency jurisdiction. The California court asserted that its emergency jurisdiction continued until the evidentiary hearing in January on the DVRO request. The Texas court asserted that the California TRO should remain in place only until the Texas court could hold an evidentiary hearing and issue a custody order. The Texas court did not agree that there was "an emergency until January," and it proposed that the courts "just agree to disagree." The Texas court found that Texas was the children's home state and that the California court had emergency jurisdiction only until further order of the Texas court. The California court noted that it was not "relinquish[ing]" jurisdiction.
Later in November 2019, the Texas court held an evidentiary hearing on Alex's motion for temporary orders and made detailed orders regarding custody, visitation, and child support. Both parties were present and represented by counsel at the Texas hearing. The Texas orders were effective until the final decree of divorce in the Texas case or further order of the Texas court.
In relevant part, the Texas orders appointed Meredith "Temporary Sole Managing Conservator" of the children and appointed Alex "Temporary Possessory Conservator" of them. Meredith had the exclusive right to decide where the children would primarily reside. The Texas court set forth a schedule that permitted Alex to have "possession" of the children on certain weekends, holidays, and school breaks, while Meredith would have possession of them at all other times. Alex's periods of possession were to be unsupervised, provided that he completed an anger management parenting course. The parent who did not have possession of the children at any given time was entitled to "liberal electronic contact with the children," including brief nightly telephone or video calls at the children's bedtime. The parent who had possession of the children was supposed to place those calls, and if that parent received a message from the other parent, he or she was to return the call within two hours. The Texas court ordered Alex to pay Meredith $2,081 per month in child support. It also enjoined the parties from coming within 100 yards of each other, except to exercise visitation rights peacefully. Finally, the Texas court ordered the parties to communicate through the "Our Family Wizard" application and prohibited them from communicating in a harassing or threatening manner.
V. Hearing on the Motion to Quash and the DVRO Request
Meredith testified at the January 2020 hearing on the motion to quash and the DVRO request. Alex was not present but appeared through counsel.
Meredith testified that the parties married in Riverside County and lived there on and off until 2010, but they had not lived in the county since then. Meredith described numerous acts of abuse that occurred in Texas. Alex humiliated her by calling her names in public. He physically restrained her from calling 911 or leaving their home. He choked her and punched holes in a wall of their home and their bedroom door. He unlocked her cell phone while she was sleeping to look through her text messages with her friends and family. On one occasion, she told him that she did not want to have intercourse and "passed out," and she was awakened by him vaginally penetrating her without her consent. He tried to "gaslight" her by telling her parents lies about her and causing them to cut off communication with her. He also threatened to kill himself and held a gun to his head while the children were in the next room crying. He had multiple guns at their Texas home.
Since Meredith's arrival in California, Alex had mutual friends contact her on his behalf. A friend sent her a text message one week after she left Texas and asked her to arrange a call between Alex and the children. Alex also sent her text messages asking when he could see the children or when he was going to hear from her. She got a new cell phone and phone number the day before she left Texas, and she did not give Alex the new number, but he somehow discovered it and called her at that number. That call happened in early November 2019, after she had served him with the TRO and before the Texas court had issued its orders. She did not answer the call, and he did not leave a voicemail, but she reported that violation of the TRO to law enforcement. He also sent her one text message after service of the TRO and before the Texas orders; the message was about mailing their son his phone. After the Texas court issued its orders, Alex continued to call, and she received "constant" emails from his Texas counsel.
Meredith believed that the unfamiliar car that had parked outside her parents' house was connected to Alex. The car had a Texas license plate that was also a military veteran's plate, and it had military stickers on it. Her parents lived in a rural area, and the car parked where the occupant could see the children playing. Meredith thought that Alex could have many associates whom she did not know because of his time in the military and his work-related travel.
The parties established a bank account in Riverside County when they lived here and continued to receive statements for that account at an address in Sun City, California. The parties did not own any real property in California.
Meredith's father also testified at the hearing. Alex called him the day Meredith left Texas and again two days after that. After the Texas court issued its orders, Alex called him four more times. Meredith's father did not answer the calls, but Alex left a few voicemails. The voicemails indicated that Alex was trying to contact the children through Meredith's father.
After the testimony, Alex argued that the court could not assert personal jurisdiction over him because the evidence did not show the required minimum contacts with California. He further argued that the court had emergency UCCJEA jurisdiction only until the Texas court had issued its orders, but the court no longer had the power to make custody or visitation orders.
The court ruled that it had personal jurisdiction over Alex and denied the motion to quash. It observed that there was a "nexus" with California because Meredith felt that she had "'nowhere to go'" and needed to relocate to a safe place. The court found that once Meredith was in California, Alex's "pattern of contacting her, finding out where she is[] [and] where she's going to be" continued, even after the court had issued the TRO prohibiting contact. The court concluded that Alex's behavior amounted to harassment. It granted Meredith a three-year DVRO.
The court also ruled that it still had temporary emergency jurisdiction under the UCCJEA, so it could issue orders as to the children. The court included the children as protected parties under the DVRO and awarded Meredith sole legal and physical custody of them. The DVRO prohibited Alex from contacting Meredith, except for brief and peaceful contact to exercise his visitation rights. The DVRO permitted him peaceful contact with the children to exercise his visitation rights. The court granted Alex supervised visitation in California with 72 hours advance notice and ordered that he could not remove the children from California. The court granted Meredith child support "as previously ordered" but denied without prejudice her request for spousal support.
The record does not contain a previous child support order. In any event, in September 2020, the California court issued an order finding that Texas had exclusive jurisdiction over child support and that the Texas child support order controlled "as to amount of child support and commencement date."
The court found that Texas was the children's home state. It stated that it intended to relinquish jurisdiction after the next UCCJEA conference with the Texas court in a few days. At that point, the Texas court could modify the custody and visitation orders. The court declared that the Texas court's November 2019 orders were invalid because California still had temporary emergency jurisdiction at that time.
The court admitted into evidence the Texas court's November 2019 orders and the transcript of the UCCJEA conference.
Finally, the court expressly declined to rule on whether it had jurisdiction for purposes of Meredith's petition for separation.
VI. The Attempted UCCJEA Conference
Shortly after the superior court issued the DVRO, the Texas court sent a letter to the superior court denying the request to hold a second UCCJEA conference. The Texas court did not see the need for another conference because the parties had begun litigation in Texas, and the Texas court had issued orders in November 2019. The letter asserted that Texas had home state jurisdiction under the UCCJEA and had never relinquished jurisdiction "outside of emergency jurisdiction."
After receiving that letter, the superior court entered a minute order stating that it was relinquishing jurisdiction to Texas under the UCCJEA. The court also stated that Texas must "incorporate the findings and orders of the permanent restraining order hearing into any custody and visitation in accordance with Texas law."
Meredith asked the court to stay relinquishment of jurisdiction for 60 days. The court granted the request and stayed its relinquishment until March 2020.
DISCUSSION
I. Appealability
Alex's notice of appeal states that he is appealing from an order or judgment entered on January 17, 2020, the date that the court denied the motion to quash and granted the DVRO. The DVRO is appealable as an order granting an injunction. (Code Civ. Proc., § 904.1, subd. (a)(6); S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1257-1258.) Meredith does not argue otherwise. But she argues that we have no jurisdiction to review the order denying the motion to quash because it is reviewable only by writ petition. We reject Meredith's argument and elect to treat the appeal from the order denying the motion to quash as a petition for writ of mandate.
An order granting a motion to quash service of process is an appealable order, but an order denying such a motion is not appealable. (Code Civ. Proc., § 904.1, subd. (a)(3).) If the trial court denies the motion, the defendant may seek interlocutory review of the order only by filing a petition for writ of mandate. (Code Civ. Proc., § 418.10, subd. (c); McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 257.) The time to file the petition starts running when the defendant is served with a written notice of entry of the order denying the motion. (Code Civ. Proc., § 418.10, subd. (c).) The defendant must file the writ petition within 10 days after service of the notice of entry, although the court may extend that period to 20 days for good cause. (Ibid.)
Alex acknowledges that the order denying the motion to quash is not appealable. He nevertheless argues that we should treat his appeal as a writ petition, as the court did in ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198 (ViaView). We conclude that ViaView is analogous, and we find its reasoning persuasive.
The trial court in ViaView did not issue a written order denying the defendant's motion to quash, so no one served the defendant with written notice of entry of the order. (ViaView, supra, 1 Cal.App.5th at p. 212.) Consequently, the defendant's time to file a writ petition never ran. (Ibid.) In addition, other "'unusual circumstances'" warranted treating the appeal as a petition for writ of mandate. (Id. at p. 213.) Normally, the court hears a motion to quash as a threshold matter, before it hears other motions or tries the merits of a case. (Ibid.) But the ViaView trial court heard the motion to quash on the same day that it adjudicated the plaintiff's petition for a workplace violence restraining order. (Ibid.) The record and briefs on appeal were adequate for review of the personal jurisdiction issue presented by the motion to quash. (Ibid.) Both parties asserted that the order denying the motion to quash was appealable. (Ibid.) The fact that the trial court was not a party was "not an obstacle 'since there [was] no indication that the court . . . would . . . become more than a nominal party.'" (Ibid.) And it made "no sense to dismiss the appeal as to [the jurisdictional] issue, decide the other issues presented, and then address the jurisdictional question in a later writ proceeding" after the defendant had been served with notice of entry of the order. (Ibid.) Accordingly, to avoid "piecemeal litigation and further delay," the appellate court opted to treat the appeal from the order denying the motion to quash as a petition for writ of mandate. (Ibid.)
Most of the same circumstances that were present in ViaView are present here. The superior court did not issue a formal written order denying the motion to quash. The minutes of the hearing documented the court's denial of the motion to quash, but there is no indication in the record that anyone served Alex with written notice of entry of the minute order. Thus, the time to seek writ review has not started running. Moreover, the court denied the motion to quash and adjudicated the DVRO request at the same hearing, and both parties have briefed the personal jurisdiction issue on appeal. The record contains the materials necessary for writ review of the jurisdictional issue. There is no indication that the superior court would be anything more than a nominal party in a writ proceeding. And it would cause unnecessary delay to dismiss part of this appeal, address Alex's other contentions about the DVRO, and decide the jurisdictional issue in a later writ proceeding. Finally, although Meredith does not assert that the order denying the motion to quash is appealable, she fails to address Alex's reliance on ViaView and his argument that we should treat the appeal as a writ proceeding.
For all of these reasons, we elect to treat the appeal from the order denying the motion to quash as a petition for writ of mandate.
II. Motion to Quash for Lack of Personal Jurisdiction
Alex argues that the superior court lacked personal jurisdiction over him, so it should have granted his motion to quash and dismissed the case with prejudice. We agree that the court lacked personal jurisdiction over Alex for purposes of the DVRO request. However, whether the court had jurisdiction for purposes of the petition for separation is a different question, and the court expressly declined to rule on that issue. We therefore direct the court to issue an order granting the motion to quash with respect to the DVRO request, but we decline to order the case dismissed.
California courts may assert personal jurisdiction over defendants "on any basis not inconsistent with the Constitution of this state or of the United States." (Code Civ. Proc., § 410.10.) When a nonresident defendant has been served with process outside of California, due process requires that the defendant have "such minimum contacts with the state that the assertion of jurisdiction does not violate '"traditional notions of fair play and substantial justice."'" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 (Vons).)
"Personal jurisdiction may be either general or specific. A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are 'substantial[, ] . . . continuous and systematic.'" (Vons, supra, 14 Cal.4th at p. 445.) Meredith does not argue that the court had general jurisdiction over Alex. The only question is whether it had specific jurisdiction over him.
Specific jurisdiction exists if the nonresident defendant "has purposefully availed himself or herself of forum benefits [citation], and the 'controversy is related to or "arises out of" [the] defendant's contacts with the forum.'" (Vons, supra, 14 Cal.4th at p. 446.) "[T]he defendant's suit-related conduct must create a substantial connection with the forum [s]tate." (Walden v. Fiore (2014) 571 U.S. 277, 284 (Walden).) Standing alone, the plaintiff's contacts with the forum cannot "satisfy the defendant-focused 'minimum contacts'" test. (Ibid.) The "analysis looks to the defendant's contacts with the forum [s]tate itself, not the defendant's contacts with persons who reside there." (Id. at p. 285.) While the defendant's contacts with the forum may be intertwined with his or her interactions with the plaintiff (id. at p. 286), "the plaintiff cannot be the only link between the defendant and the forum." (Id. at p. 285.)
"When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable. [Citation.] When there is conflicting evidence, the trial court's factual determinations are not disturbed on appeal if supported by substantial evidence." (Vons, supra, 14 Cal.4th at p. 449.) "The ultimate question whether jurisdiction is fair and reasonable under all of the circumstances, based on the facts which are undisputed and those resolved by the court in favor of the prevailing party, is a legal determination warranting our independent review." (Integral Development Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 585 (Integral).)
Here, the court erred by asserting specific jurisdiction over Alex for purposes of the DVRO request. Alex did not have sufficient minimum contacts with California. The evidence of abuse that occurred when both parties resided in Texas does not confer personal jurisdiction over Alex in California. Apart from that Texas-related evidence, the evidence showed that Alex called or sent Meredith and her father text messages seeking access to the children, trying to determine why she left abruptly, or asking when Alex was going to hear from her. One of his text messages involved sending their son his phone. Alex's friend sent Meredith a text message trying to arrange a call between Alex and the children. Meredith also received emails from Alex's Texas counsel. None of those contacts with Meredith created a substantial connection between Alex and California. The only connection to California is that Meredith received those calls and text messages in California because she chose to reside here. But "the plaintiff cannot be the only link between the defendant and the forum." (Walden, supra, 571 U.S. at p. 285.)
Moreover, the presence of an unfamiliar car outside of Meredith's parents' home did not confer specific jurisdiction over Alex. Any finding that the car had a connection to Alex was not supported by substantial evidence. Meredith speculated that the car belonged to Alex's associate because the car had a Texas license plate, a veteran's plate, and military stickers. But speculation or conjecture does not amount to substantial evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)
Even if Meredith had shown the requisite minimum contacts with California, the reasonableness requirement was not met. "[A]n essential criterion in all cases is whether the 'quality and nature' of the defendant's activity is such that it is 'reasonable' and 'fair' to require him to conduct his defense in that [s]tate." (Kulko v. Superior Court of California (1978) 436 U.S. 84, 92.) The nature of Alex's communications with Meredith rendered the court's assertion of personal jurisdiction unreasonable and unfair. Alex had legitimate reasons for contacting Meredith and learning her whereabouts: She had fled with their children, and he wanted contact with the children. And after the Texas court issued its orders giving him liberal visitation rights, including daily phone or video calls, he had all the more reason to contact her peacefully to exercise those rights. Alex could not "reasonably have anticipated being 'haled before a [California] court'" for such communications with his coparent. (Id. at pp. 97-98.)
Moreover, Meredith had access to the Texas courts. (Integral, supra, 99 Cal.App.4th at p. 591 [factors to be considered in the reasonableness determination include '"the ease of access to an alternative forum"'].) Indeed, both parties appeared and testified at the Texas hearing on Alex's motion for temporary orders. Meredith could have registered in California any protective order that she obtained from a Texas court, and the California courts and law enforcement authorities would have enforced that protective order. (§§ 6402 [providing for judicial enforcement of foreign protective orders], 6403 [providing for nonjudicial enforcement of foreign protective orders], 6404 [providing for registration of foreign protective orders and their entry in the California Restraining and Protective Order System].)
Meredith relies on Hogue v. Hogue (2017) 16 Cal.App.5th 833 (Hogue) to demonstrate that the court had specific jurisdiction over Alex, but Hogue is distinguishable and does not assist her. The wife in Hogue moved to California and sought a DVRO against her estranged husband, who lived in Georgia. (Hogue, supra, at p. 836.) The wife "invoke[d] a species of specific jurisdiction in which a defendant acting elsewhere causes effects in California of a nature that are '"exceptional"' and subject to '"special regulation"' in this state." (Id. at p. 838.) The Hogue court held that the Domestic Violence Prevention Act (DVPA) (§ 6200 et seq.) amounted to "special regulation" of "an exceptional type of conduct." (Hogue, at p. 839.) The court also concluded that the husband had caused exceptional effects in California by purposefully sending the wife a video in which he pretended to shoot himself in the mouth with a shotgun. (Id. at pp. 836, 839.) The court reasoned that the video message was "indisputably conduct that would disturb [the wife's] peace of mind within the meaning of the [DVPA]." (Ibid.) Additionally, the court concluded that it would not be unreasonable to assert personal jurisdiction over the husband; he did not have any difficulty engaging the services of counsel to specially appear for him, and it was not "an injustice to grant a restraining order against a party eschewing any further contact with this state." (Ibid.) Hogue thus held that the trial court had specific jurisdiction over the husband for purposes of the DVRO request. (Ibid.)
Unlike the mock suicide video in Hogue, Alex's calls and text messages to Meredith and her father did not amount to conduct that was exceptional in nature and that would "indisputably" disturb Meredith's peace of mind. (Hogue, supra, 16 Cal.App.5th at p. 839.) Telephone calls and text messages can constitute abuse under the DVPA (§§ 6203, subd. (a)(4), 6320, subds. (a), (c)), but there was no evidence that Alex's communications threatened Meredith in any way or said anything harassing or intimidating. The evidence about the content of the communications showed that they were all appropriate in substance.
Even if the mere act of contacting Meredith violated the DVPA or the TRO, asserting personal jurisdiction over Alex on those grounds did not meet the reasonableness requirement, further distinguishing this case from Hogue. The husband in Hogue claimed no legal entitlement to send a mock suicide video to his wife, and there was no legitimate reason for doing so. Further, Alex is not "eschewing any further contact" with California. (Hogue, supra, 16 Cal.App.5th at p. 839.) Under the Texas orders, Meredith has the right to decide where the children reside. To the extent that she chooses California for their residence, Alex will likely have some contact with them in California to exercise his visitation rights. And although Alex engaged counsel to specially appear for him in California, that was not without difficulty. His declaration in support of the motion to quash stated that it was difficult for him to engage California counsel on his modest income; he had to pay for representation on credit, and he would not be able to continue a defense in California if litigation was prolonged.
While the court erred by asserting personal jurisdiction over Alex for purposes of the DVRO request, Alex has not shown that Meredith's petition for separation should be dismissed. The court expressly declined to rule on whether it had jurisdiction for purposes of the petition. Consequently, there is no order for us to review. Moreover, "[w]here, as here, the spouses live in different states, the court may adjudicate the marital 'res' without obtaining personal jurisdiction over the nonresident spouse." (In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1428; see also Estin v. Estin (1948) 334 U.S. 541, 544 [Nevada divorce decree met the "requirements of procedural due process" when the nonresident wife had been served by publication and the husband was domiciled in Nevada]; In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1250 ["The bona fide domicile of one spouse in a state is sufficient to give that state power to grant a valid divorce entitled to full faith and credit elsewhere"].) That does not mean that the court may adjudicate property rights or financial obligations without obtaining personal jurisdiction over Alex. It cannot. (Muckle v. Superior Court (2002) 102 Cal.App.4th 218, 226, 230 [trial court had in rem jurisdiction to adjudicate the status of the parties' marriage, but it could not assert personal jurisdiction over the nonresident husband for purposes of determining property rights and spousal support].) But Alex's motion to quash for lack of personal jurisdiction failed to demonstrate that the court lacked in rem jurisdiction to adjudicate the parties' marital status.
For all of these reasons, the court erred by denying Alex's motion to quash with respect to the DVRO request. We direct the court to vacate the DVRO and the order denying the motion to quash and enter an order granting the motion with respect to the DVRO request.
III. UCCJEA Jurisdiction
Alex argues that the superior court also lacked jurisdiction under the UCCJEA to make the child custody and visitation orders incorporated into the DVRO. Although we have determined that the court did not have personal jurisdiction over Alex for purposes of the DVRO, personal jurisdiction over the parents is not necessary to make child custody determinations under the UCCJEA. (§ 3421, subd. (c); In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 493.) For that reason, we reach the UCCJEA argument and conclude that the superior court erred by making the custody and visitation orders incorporated into the DVRO.
"'The UCCJEA is the exclusive method in California to determine the proper forum in child custody proceedings involving other jurisdictions.'" (In re J.W. (2020) 53 Cal.App.5th 347, 355.) Texas has also adopted the UCCJEA. (Tex. Fam. Code, § 152.101 et seq.; In re J.W., supra, at p. 355.) The purpose of the UCCJEA is "to avoid jurisdictional competition between states or countries, promote interstate cooperation, avoid relitigation of another state's or country's custody decisions and facilitate enforcement of another state's or country's custody decrees." (In re Gloria A. (2013) 213 Cal.App.4th 476, 482.)
A child's home state under the UCCJEA is the state in which the child lived with a parent "for at least six consecutive months immediately before the commencement of a child custody proceeding." (§ 3402, subd. (g).) "A child's home state has priority over other jurisdictional bases." (In re Aiden L. (2017) 16 Cal.App.5th 508, 518, citing § 3421, subd. (a)(1).) The parties agree that Texas is the home state of the children. Texas indicated its intent to exercise its home state jurisdiction and make custody decisions regarding the children. The only issue is whether the superior court here properly exercised "temporary emergency jurisdiction" under the UCCJEA. (§ 3424, subd. (a).)
A California court may exercise temporary emergency jurisdiction when "the child is present in this state and . . . it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse." (§ 3424, subd. (a).) If a child custody proceeding has been commenced in the home state, any temporary emergency order issued by a California court must specify "a period that the court considers adequate to allow the person seeking an order to obtain an order from the [home] state . . . . The order issued in this state remains in effect until an order is obtained from the [home] state within the period specified or the period expires." (§ 3424, subd. (c).) Emergency jurisdiction should be short term and limited, but the court "'may continue to exercise its authority as long as the risk of harm creating the emergency is ongoing.'" (In re Marriage of Fernandez-Abin & Sanchez (2011) 191 Cal.App.4th 1015, 1041.)
We review any factual findings underlying the trial court's jurisdictional ruling for substantial evidence. (Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1286.) The trial court's interpretation of the UCCJEA is a question of law subject to de novo review. (Ibid.)
In this case, the court erred by determining that it had temporary emergency jurisdiction to issue the child custody and visitation orders incorporated into the DVRO. Any finding of an emergency at the hearing on the DVRO request was not supported by substantial evidence. By that time, the California court and the Texas court had conferred, the Texas court had held an evidentiary hearing at which both parties were present and represented by counsel, and the Texas court had rendered custody and visitation orders. The California court was aware of the Texas orders and admitted them into evidence. Those orders gave Meredith primary physical custody of the children and gave Alex liberal visitation rights, but those visits were unsupervised only so long as he completed an anger management parenting course. The orders also enjoined the parties from coming within 100 yards of each other, except to exercise visitation rights peacefully, and required them to communicate through the "Our Family Wizard" application. Given the Texas orders, there was no evidence of an ongoing emergency that required the California court to protect the children.
The court's erroneous exercise of temporary emergency jurisdiction requires reversal of the custody and visitation orders independently of our determination that the DVRO must be vacated for lack of personal jurisdiction. "[T]he jurisdictional rules of the UCCJEA are mandatory." (In re J.W., supra, 53 Cal.App.5th at p. 357.) Noncompliance with a mandatory rule '"has an invalidating effect"' (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 924), so long as the noncompliance argument is preserved. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 342; In re J.W., supra, at pp. 357-358.) Alex preserved the UCCJEA jurisdictional argument by raising it in the superior court. The custody and visitation orders therefore are invalid. (See In re Gloria A., supra, 213 Cal.App.4th at pp. 479, 484-485 [reversing the dependency court's orders for lack of UCCJEA jurisdiction].)
Even if the UCCJEA jurisdictional error did not invalidate the orders, and a harmless error analysis were required, we would find that the erroneous assertion of temporary emergency jurisdiction was prejudicial. The custody and visitation orders were supposed to be effective only for the limited period that the court considered adequate for Meredith to seek orders from the Texas court. The court issued the DVRO for three years, but the attached custody and visitation orders contained no expiration date and stated that they would "remain in effect after" the DVRO expired. The court's relinquishment of jurisdiction to Texas did not cure the problem. The statement of relinquishment still did not specify an expiration date for the California orders. The Texas court refused to participate in another UCCJEA conference after the DVRO hearing because as far as it was concerned, it had resolved the emergency by issuing custody and visitation orders in November 2019. There is no evidence in the record that Meredith sought protective orders from the Texas court after the DVRO hearing. Instead, it appears that the conflicting California and Texas orders remain in effect. Accordingly, there is a reasonable probability of a more favorable result for Alex in the absence of the court's UCCJEA jurisdictional error: The Texas orders, which gave him more access to the children, would indisputably govern custody and visitation.
In sum, the superior court lacked jurisdiction under the UCCJEA to make the custody and visitation orders incorporated into the DVRO. We accordingly must reverse those orders.
In light of our conclusions invalidating the DVRO and custody and visitation orders, we need not address Alex's remaining argument that the court violated his due process rights at the hearing on the DVRO and the motion to quash.
DISPOSITION
As to the appeal from the DVRO, the child custody and visitation orders incorporated into the DVRO are reversed. As to the writ proceeding challenging the order denying the motion to quash, let a peremptory writ of mandate issue directing the superior court to (1) vacate the DVRO, (2) vacate the order denying the motion to quash, and (3) enter an order granting the motion to quash with respect to the DVRO request and denying the DVRO request in its entirety. Alex shall recover his costs incurred in this writ proceeding and appeal. (Cal. Rules of Court, rules 8.278(a)(1), 8.493(a)(1).)
We concur: MILLER Acting P. J. RAPHAEL J.