Opinion
E032153.
7-22-2003
In re the Marriage of JONATHAN and MELANIE MARK. JONATHAN M. MARK, Plaintiff and Respondent, v. MELANIE MARK, Defendant and Appellant.
Caldwell, Kennedy & Porter, Clarissa A. Dodd; John L. Dodd and Lisa DiGrazia for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A former wife appeals from a judgment for dissolution of marriage on the ground that the California court lacked personal jurisdiction over her. Finding that she consented to the courts jurisdiction by filing a response to the petition for dissolution, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jonathan M. Mark and Melanie Mark were married in June of 2000. Their only child, a daughter, had been born in California in February of that year. The family lived in Barstow from the time of her birth until December 15, 2000. On that date, Melanie flew to Germany with their daughter. Thereafter, Melanie told Mark that neither she nor the daughter would return from Germany.
In January of 2001, Jonathan filed a petition for dissolution of marriage in which he asked for legal and physical custody of his daughter. He subsequently noticed an ex parte application for an order to show cause regarding custody of the child. The ex parte application was heard on January 26, 2001. Melanie participated by telephone in the hearing on the application. The trial court granted the application and issued an OSC returnable at a hearing on February 26, 2001. Melanie was ordered to return the child to Jonathan pending the hearing.
The hearing on the OSC was continued from February 26, 2001, to April 16, 2001, because Jonathan had been unable to effect service on Melanie. On March 19, 2001, Jonathan successfully applied for an amended OSC, also returnable on April 16, 2001, which again ordered Melanie to return the child to Jonathan pending the hearing.
On April 16, 2001, Melanie participated in the hearing on the OSC by telephone from Germany. At that time, the trial court continued the hearing to July of 2001. On July 30, 2001, Clarissa Dodd, an attorney, appeared specially for Melanie, informed the court that Melanie was questioning the courts jurisdiction over her, and requested a continuance "in order to retain an attorney to file some sort of response." The continuance was granted to October of 2001.
On September 21, 2001, Melanie signed a postal receipt for copies of the summons, petition, and various orders to show cause that had been sent to her by certified or registered mail by Jonathan.
Meanwhile, on September 11, 2001, Melanie moved for an order quashing service of summons and vacating the interim orders previously issued on the ground that she had not been effectively served and that the trial court lacked personal jurisdiction over her. (Code Civ. Proc., § 418.10.) The motion was heard in October of 2001 and denied in November of that year.
Melanie did not petition this court for a writ of mandate directing the trial court to grant that motion. (Code Civ. Proc., § 418.10, subd. (c).) Instead, Melanie filed a response to the petition for dissolution in December of 2001.
For a time, she litigated the matter on the merits through her attorney of record, Ms. Dodd. However, Melanie later substituted in as her own attorney in propria persona. After trial, at which Melanie did not appear, the trial court entered a judgment resolving all issues in the dissolution. Melanie appeals from the judgment.
CONTENTIONS
Melanie contends that the trial court lacked personal jurisdiction over her and lacked subject matter jurisdiction to determine whether her daughter must be returned to California from Germany.
ANALYSIS
A. MELANIE HAS WAIVED ANY PERSONAL JURISDICTIONAL DEFECT.
To support her contention that the California courts never established personal jurisdiction over her, Melanie argues (1) that the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applied to her, (2) that she was never served in a manner required by that international treaty as adopted by Germany, and (3) that she never waived that defect by making a general appearance or otherwise consenting to the jurisdiction of the California courts. As we shall explain, the third leg of her argument is incorrect, rendering it unnecessary for us to consider the first two.
In arguing that she never made a general appearance, Melanie focuses entirely on events that occurred prior to the ruling on her motion to quash. Accordingly, she ignores the dispositive effect of the general appearance that she made when she filed a response to the petition for dissolution.
By making a general appearance in an action, a party consents to the courts jurisdiction of the person, thereby dispensing with the requirement of service of process. (Code Civ. Proc., § 410.50, subd. (a); Lacey v. Bertone (1949) 33 Cal.2d 649, 651, 203 P.2d 755; 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756.) A defendant makes a general appearance by participating in an action in a manner that implicitly recognizes the authority of the court to proceed. (Hamilton v. Asbestos Corp . (2000) 22 Cal.4th 1127, 1147, 998 P.2d 403.) For instance, a defendant makes a general appearance by filing a responsive pleading that "seeks some relief or raises some objection other than that of lack of jurisdiction of the person. Thus, an answer on the merits is clearly a general appearance." (2 Witkin, supra, § 201, p. 767, emphasis omitted; accord, Code Civ. Proc., § 1014.)
The same rule applies in the context of marital dissolution proceedings: "A respondent or defendant appears in a proceeding when he or she files: [P] (1) A response or answer . . . ." (Cal. Rules of Court, rule 5.120(a).) Accordingly, Melanie generally appeared and submitted to the personal jurisdiction of the California courts when she filed her response to the petition for dissolution.
A defendant who has moved unsuccessfully to quash service of summons may, within 10 days of the service of notice of entry of the order denying the motion, petition the Court of Appeal for a writ of mandate "to require the trial court to enter its order quashing the service of summons or staying or dismissing the action." (Code Civ. Proc., § 418.10, subd. (c).) As noted above, Melanie chose not to continue her jurisdictional challenge by bringing such a petition.
Instead, Melanie appears to contend that she may renew that challenge on appeal after making a general appearance and defending on the merits. She is mistaken.
In McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 74 Cal. Rptr. 389, 449 P.2d 453, the City moved to quash service. (Id., p. 256.) "The Citys motion to quash was denied. The City did not seek appellate review of the order of denial, but filed an answer to the . . . complaint." (Ibid .) By "so doing, it appeared generally, waived its jurisdictional objection, and therefore cannot assert the objection on this appeal." (Id., p. 258.)
A defendant may preserve a jurisdictional objection for review on appeal from the ultimate judgment without seeking an extraordinary writ "if, after the denial of his motion to quash, he makes no general appearance but suffers a default judgment. The defendant in the present case, however, proceeded to defend on the merits and cannot avoid the fact of its waiver of the jurisdictional objection." (McCorkle v. City of Los Angeles, supra, 70 Cal.2d at p. 258.)
The same is true of Melanie. Accordingly, she has waived her personal jurisdictional objection.
Melanie appears to rely on In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419 and In re Marriage of Torres (1998) 62 Cal.App.4th 1367 for the proposition that this rule does not apply in family law. Her reliance is misplaced. These cases hold only that, pursuant to Family Code section 2012, no general appearance is made by contesting pendente lite requests for relief while a motion to quash is pending (In re Marriage of Fitzgerald & King, pp. 1429-1431), so long as the party that moved to quash does not request any affirmative relief (In re Marriage of Torres, p. 1381). Neither case supports the proposition that, if the motion to quash is denied, the moving party may thereafter contest the action on the merits without waiving his or her jurisdictional objection.
B. MELANIE FAILED TO DEMONSTRATE THAT THE TRIAL COURT
LACKED SUBJECT MATTER JURISDICTION WHEN IT ORDERED THAT THE CHILD BE RETURNED TO CALIFORNIA.
In apparent references to the OSCs entered on January 26 and March 19, 2001, Melanie contends that California courts lack subject matter jurisdiction over the issue of whether her daughter should be returned from Germany to California. The authorities that she cites fail to support that contention.
Congress has expressly found that "the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights. Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies. The Convention provides a sound treaty framework to help resolve the problem of international abduction and retention of children and will deter such wrongful removals and retentions." (42 U.S.C. § 11601(a)(4).)
The United States and Germany are both parties to that convention. (Friedrich v. Friedrich (6th Cir. 1993) 983 F.2d 1396, 1400.) The International Child Abduction Remedies Act (42 U.S.C. § 11601 et seq.) establishes "procedures for the implementation of the Convention in the United States." (42 U.S.C. § 11601(b)(1).)
"Any person seeking to initiate judicial proceedings under the Convention for the return of a child . . . may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." (42 U.S.C. § 11603(b).) The court hearing the abduction claim has the jurisdiction "to determine only rights under the Convention and not the merits of any underlying child custody claims." (Id., § 11601(b)(4).) In other words, "the court is to determine only whether the removal or retention of a child was wrongful under the law of the childs habitual residence, and if so, to order the return of the child to the place of habitual residence for the court there to decide the merits of the custody dispute, unless the alleged abductor can establish one of a few defenses." (Shalit v. Coppe (9th Cir. 1999) 182 F.3d 1124, 1128.)
Melanie asserts that, under these provisions, "Germany has jurisdiction to determine whether [her daughters] removal and/or retention in Germany was wrongful and whether or not any of the exceptions to her prompt return apply." We agree.
But Melanie also contends that Germanys jurisdiction over this issue is exclusive, depriving California courts of the jurisdiction to order Melanie to return the child to California. None of the authorities that she cites establishes that the jurisdiction of the country receiving the allegedly abducted child has exclusive jurisdiction over the abduction claim.
Besides, even assuming that Germany did have exclusive jurisdiction, it would be exclusive jurisdiction over "judicial proceedings under the Convention for the return of a child . . . ." (42 U.S.C. § 11603(b), emphasis added.) Here, there is no indication that Jonathans application for an order to show cause was intended to invoke either the Hague Convention on the Civil Aspects of International Child Abduction or the International Child Abduction Remedies Act.
For both of those reasons, Melanie has failed to establish that the trial court acted without subject matter jurisdiction when it ordered her to return her daughter to California.
DISPOSITION
The judgment is affirmed. Jonathan shall recover his costs on appeal.
We concur: Richli, J., King, J.