1 Filed 8/7/14 Keisha W. v. Marvin M. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

KEISHA W., Plaintiff and Respondent,

v. MARVIN M., Defendant and Appellant. A137861, A137991
(Alameda County Super. Ct. Nos. AF12642384, AF12657968)

Defendant Marvin M. (Father) and plainti ff Keisha W. (Mother) are the parents of Marvin M. II (Minor). Father appeals from an August 2012 restraining order that, among other things, awarded custody of the Minor to Mother (A137991), and from the family court’s January 2013 acceptance of jurisd iction under the Uniform Child Custody
Jurisdiction and Enforcem ent Act (UCCJEA) (Fam. Code, § 3400 et seq.) 1 (A137861). 2 We affirm the restraining order at issue in A137991, and dismiss the appeal in A137861 as being from an unappealable order.
BACKGROUND
Case No. A137991 On August 6, 2012, Mother requested a restraining or der to protect herself and the Minor, born in April 2006, from Father. Mo ther’s accompanying de claration explained that she and Father previously lived in Texas and were in a relationship that ended in

1 All further undesignated statutory references are to the Family Code. 2 On December 9, 2013, this cour t consolidated the two appeals.2 April 2010. She described instances of dom estic violence and threatening conduct by
Father that caused her to leav e Texas with the Minor in Augu st 2011. According to the declaration, on May 31, 2012, Father picked up the Minor from his daycare in California
and absconded with the Minor to Nevada. Mother sought return of the Minor and modification of a January 2011 Texas custody order that provided for shared custody of
the Minor. Mother in formed the superior court that, in July 2012, the Texas court indicated it no longer had jurisdiction over cu stody because the pare nts and the Minor no longer lived in Texas. The superior court issued a temporary re straining order on August 8, 2012, and set a hearing on the request for a re straining order for August 31. On August 30, Father filed a written response with extensive attachment s, opposing, among othe r things, Mother’s custody request. Following the August 31 hearing, the superior court issued a restraining order protecting both Mother and the Minor from Father, and ordering that Mother have physical custody of the Minor. The court fou nd it had “jurisdiction to make child custody
orders in this case under” the UCCJEA. On September 20, 2012, the restraining order was served on Father in Nevada. On February 26, 2013, Father filed a notice of appeal of the restraining order.
Case No. A137861 On November 28, 2012, Mo ther commenced a family court proc eeding by filing a petition for custody and support. She reques ted physical custody of the Minor with supervised visitation for Father. Father challenged the family court’s ju risdiction to adjudicat e the custody issue under the UCCJEA. On January 30, 2013, the superior court conducted a UCCJEA conference call with judges from the Nevada and Texas courts. The court’s minutes reflect that the Texas court “decline[d] jurisd iction,” the Nevada court “neither accept[ed] nor decline[d] jurisdiction,” and the Califor nia court “accept[ed] jurisdiction over this matter.” At a February 4 hearing, the court retained jurisdiction “pending further notice,”
ordered that the Minor be turned over to Mother, and set hearings on the issue of jurisdiction and custody for February 21 and April 8, respectively.3 On or around February 5, 2013, Father appealed from the family court’s January 30 acceptance of jurisdiction.
DISCUSSION
I. The Appeal from the August 31, 2012 Restraining Order (A137991) At the outset, we conclude the Februa ry 26, 2013 appeal (A137991) from the August 31, 2012 restraining order was not unt imely. Under rule 8.104 of the California Rules of Court, 3 Father had 180 days after entry of th e order to appeal, unless he received notice as specified in rule 8. 104(a)(1)(A) or (B). Rule 8.10 4(a)(1)(A) requires the filing of an appeal within 60 days after “the supe rior court clerk serves on the party filing the notice of appeal a document entitl ed ‘Notice of Entry’ of judg ment or a file-stamped copy of the judgment, showing the date either wa s served.” Rule 8.104 (a)(1)(B) requires the filing of an appeal within 60 days after “the party filing the notice of appeal serves or is served by a party with a doc ument entitled ‘Notice of Entry’ of judgment or a filestamped copy of the judgment, accompanied by proof of servic e.” In the present case, the record contains a completed “Proof of Pe rsonal Service” form reflecting that Father was served with a copy of the restraini ng order on September 20, 2012. However, the
form does not reflect that the order was file-s tamped or that Father was served with a document entitled “Notice of Entry.” Thus, Fa ther had 180 days fro m entry of the order to appeal. Because February 26, 2013 is within 180 da ys from August 31, 2012, the appeal in A137991 is timely.
Father contends issuance of the restra ining order violated the UCCJEA, because a Texas family court had already issued a child custody order regarding the Minor. “[T]he
UCCJEA is the ‘exclusive means of determ ining subject matter jurisdiction in custody disputes involving other jurisdictions. [Cita tions.]’ [Citations.] The UCCJEA ensures that only one state has jurisdiction to make ‘child custody determinations,’ which, as relevant here, is defined in section 3402 , subdivision (c), to include a ‘permanent, temporary, initial, and modifi cation order’ of a ‘court provid ing for the legal custody,

3 All further undesignated rules referen ces are to the California Rules of Court.4 physical custody, or visitation with respect to a child.’ ” ( In re Marriage of FernandezAbin & Sanchez (2011) 191 Cal.App.4th 1015, 1037 ( Fernandez-Abin ).) The UCCJEA applied to the restraining order at issue in the present case. (§ 3402, subd. (d) [for purposes of the UCCJEA, the term “ ‘ch ild custody proceeding’ . . . includes a proceeding for . . . protection fro m domestic violence”]; see also Fernandez-Abin , at pp. 1037-1039.) In the present case, the superior court found it had “jurisdiction to make child custody orders in this case under the” UCCJ EA. Father argues the court did not have temporary emergency jurisd iction under section 3424, 4 because the Minor was not present in California on August 31, 2012. However, we c onclude the more pertinent question is whether the superior court had jurisdiction to modify the Texas court’s custody determination under se ction 3423. That section provides that a court may “modify a child custody determination made by a court of another state” if the California court has jurisdiction to make a custody de termination under sec tion 3421, subdivision (a)(1) or (2), and the court “determines that th e child, the child’s parents, and any person acting as a parent do not presently re side in the other state.” (§ 3423.) 5 It is undisputed that neither the Minor nor either of the parties was residing in Texas on August 31. As for jurisdiction over the Minor, subdivision (a)(1) of section 3421 provides: “(a) Except as otherwise provid ed in Section 3424, a court of this state

4 Section 3424, subdivision (a) provides : “A court of this state has temporary emergency jurisdiction if the child is present in this st ate and the child has been abandoned or it is necessary in an emergency to protect the child be cause the child, or a sibling or parent of the child, is subjected to , or threatened with, mistreatment or abuse.” 5 Section 3423 provides: “Except as otherw ise provided in Section 3424, a court of this state may not modify a ch ild custody determination made by a court of another state unless a court of this state has jurisdicti on to make an initial determination under paragraph (1) or (2) of subdivision (a) of Section 3421 and e ither of the following determinations is made: [¶] (a) The court of the other state determines it no longer has exclusive, continuing jurisdicti on under Section 3422 or that a court of this state would be a more convenient forum under Section 3427. [¶] (b) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”5 has jurisdiction to make an initial child custody determin ation only if any of the following are true: [¶] (1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months
before the commencement of the proceeding and the child is ab sent from this state but a parent or person acting as a pa rent continues to live in this state.” Mother averred she
and the Minor moved to California in A ugust 2011, which provided a basis for a
determination California was the Minor’s ho me state. (§ 3402, subd. (g).) In a supplemental letter brief, Father contends California was not the Minor’s home state
because the Minor was not resi ding in the state for six c onsecutive months immediately prior to Mother’s August 6, 2012 request to modify the custody order. But where the Minor is absent and a parent is present, se ction 3421, subdivision (a)(1) provides as an
alternative that California was the home state within six months of commencement of the proceeding. That provision applies here. ( Brewer v. Carter (2013) 218 Cal.App.4th 1312, 1317.) We conclude the superior co urt had jurisdiction to modify the Texas custody order under section 3423. 6 Father also contends the superior cour t was obligated to decline to exercise jurisdiction under the UCCJEA because Mother brought th e Minor to California in violation of the Texas order and failed to prom ptly seek modification of that order. He relies on subdivision (a) of secti on 3428, which provides that “i f a court of this state has jurisdiction under this part because a pers on seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless” the parents acquiesce in jurisdicti on, a court of a state having jurisdiction
“determines that this state is a more a ppropriate forum under Section 3427,” or “[n]o

6 For the first time at oral argument, Father cited In re Nelson B. (2013) 215 Cal.App.4th 1121, in support of a new ar gument that, until Father moved away from Texas, the Minor’s presence in California wa s an unauthorized “ ‘temporary absence’ ” from Texas that could not be counted towards the six-month residence requirement in section 3402, subdivision (g). Because the co ntention was not raised in a timely fashion, it has been forfeited. ( Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 226.)6 court of any other state would have jurisdic tion under the criteria specified in Sections 3421 to 3423, inclusive.” We conclude the superior court impliedl y found that no court of any other state had jurisdiction under the UCCJEA at the time the restraining order was issued in August 2012. (§ 3428, subd. (a)(3).) 7 Texas and Nevada were the only other states with possible claims to jurisdiction. Regarding Texas, under Texas Family Code, section 152.202, subdivision (a)(2) (the analogue to section 3423, subdivision (a)(2)), the Texas court had “exclusive continuing jurisdiction” over custody “until . . . a court of this state or a court of another state determines that the child, th e child’s parents, and any person acting as a parent do not presently reside in this state.” It is undisputed that neither the parties nor the Minor resided in Texas in August 2012. Regarding Nevada, that state did not have jurisdiction because, among other possible reas ons, the Minor had not yet resided there for six months as of August 31. (NRS 125A.085 [Nevad a analogue to § 3402, subd. (g)].) 8

7 In the present case, both parties allege the other engaged in unjustified conduct— Mother by leaving Texas with the Minor and failing to promptly seek a modification of the Texas custody order; Father by taking the Minor to Nevada without Mother’s consent or knowledge, and retaining the Minor in violation of the Texas order. (See In re Marriage of Nurie (2009) 176 Cal.App. 4th 478, 511-512.) Because section 3428, subdivision (a)(3) was applic able, we need not decide whether Mother engaged in unjustified conduct. Neither need we decide whether the separate domestic violence exemption in section 3428, subdivision (d) was applicable. Finally, we note that, even if Nevada had a claim to jurisdiction, NRS 125A.375 (the Nevada an alogue to section 3428) might have required Nevada to declin e to exercise jurisdic tion due to Father’s allegedly unjustified conduct. 8 Father contends section 3426, subdivis ion (b) obligated the superior court to communicate with Texas and Nevada before modifying the Texas custody order. However, neither of those states had jurisd iction over the Minor on August 31, 2012. Even assuming section 3426, subdivision (b) a pplied, Father cites no authority that any failure to communicate requires reversal of th e superior court’s ruling, where in fact no other state had jurisdiction over the Minor.7 For the above reasons, the superior cour t had jurisdiction unde r section 3423 to modify the Texas court’s custody de termination on August 31, 2012. 9

II. The Appeal from the January 30, 2013 UCCJEA Confer ence (A137861) On January 30, 2013, the Californi a family court conducted a UCCJEA conference call with judges from the Nevada and Texas courts. The court’s minutes reflect that the Texas court “decline[d] jurisd iction,” the Nevada court “neither accept[ed] nor decline[d] jurisdiction,” and the Califor nia court “accept[ed] jurisdiction over this matter.” At a February 4 hearing, the court retained jurisdiction “pending further notice,”
ordered that the Minor be turned over to Mother, and set hearings on the issue of jurisdiction and custody for February 21 and April 8, respectively. Father appealed from the superior court’s January 30, 2013 acceptance of jurisdiction. He contends that act wa s an appealable collateral order, citing RichardsonMerrell, Inc. v. Koller (1985) 472 U.S. 424 ( Richardson-Merrell ), which explained that “[t]he collateral order doctrine is a ‘narro w exception,’ [to the final judgment rule] [citation] whose reach is limited to trial c ourt orders affecting rights that will be irretrievably lost in the absence of an immediate appeal.” ( Richardson-Merrell , at pp. 430-431; see also Lester v. Lennane (2000) 84 Cal. App.4th 536, 561 ( Lester ).) However, even assuming a UCCJEA jurisdictional determ ination could come within the scope of the collateral order doctrine, for an order to be appealable under that doctrine it must “leave[] the court no further acti on to take on” the issue. ( Lester , at p. 561.) In the present case, the January 30 acceptance of jurisdiction was not in the language of an order, and, on February 4, the family cour t continued the matter to February 21 for a “Long Cause hearing on the issu e of Jurisdiction.” Thus, the January 30 acceptance of

9 Father also contends the superior court lacked personal jurisdiction over him
, because he lacked the minimum contacts with California necessary for assertion of such jurisdiction. However, he fails to presen t any reasoned argument with citations to relevant supporting authorities ( Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785) that the superior court needed personal jurisd iction over him to issue a restraining order and modify the Texas cust ody order under the UCCJEA. (See § 3421, subd. (c) [“Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.”].)8 jurisdiction was not “ ‘substantially the same as a final judgment in an independent proceeding’ ” ( Lester , at p. 561), as is necessary for application of the collateral order exception to the one fi nal judgment rule. 10 Because the January 30, 2013 acceptance of jurisdiction was not an appealable order, the appeal in A137861 must be dismissed.
DISPOSITION In A137991, the August 31, 2012 restraining order is affirmed. In A137861, the appeal is dismissed. Respondent is awarded her costs on appeal.

_ ____________ ____________ SIMONS, J.

We concur.

_____________ ____________ JONES, P.J.

_____________ ____________ BRUINIERS, J.

10 On March 21, 2013, the family cour t conducted a hearing on the issue of jurisdiction and ruled, “California has jurisd iction over this matter.” Father has not requested that we construe his notice of appeal as from that order, and, even if he had, we would decline to exercise our discretion to do so. ( In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1341, fn. 1. ) Among other things, the record on appeal does not include a transcript of the March 21 hearing.