Q.: My wife moved to the desert with our two sons about 5 months ago. Up to that time, we were living together at our home near Watsonville in Santa Cruz county, where I still live. Yesterday she served me with a divorce petition filed in Indio, in Riverside County. We own several parcels of property in northern California, and I have a business here. All my family members live within 50 miles of our home. I have no connections with southern California or the Palm Springs area. Is there anything I can do to move the case to Santa Cruz?
Joshua, Watsonville, CA
A. When partners separate it may be ill-advised to simply wait and react
to the choices the other makes rather that taking steps to protect oneself.
Particularly when a spouse moves out of the area, more so with children,
you need to be alert to the possibility that they are establishing residency
elsewhere - it can be another county or another state.
There is a time rule in service of papers from competing jurisdictions
that goes like this: The first party to serve the other party with papers,
so long as the papers were filed in the proper venue, determines which
courts will decide the case. This may force you to come to him or her,
rather than the reverse, and dramatically increase the costs of a case.
If children are involved and you don't oppose the move at the outset,
it may become an accomplished fact and also make it more difficult to
change venue since information concerning the children is now best found
in the location where there parent has moved to and enrolled them in school.
Being forced to litigate far from home is a serious disadvantage.
All that is required for a resident of California to file a dissolution
action within a given county is that they have resided there for at least
3 of the preceding 6 months.They don't even need to establish the
3 months in cases of Petitions for Legal Separation. This is also true
for domestic violence.
You may file a motion or OSC for change of venue. You are asking the court
to voluntarily give up the case and move it to another jurisdiction, which
requires a court order. Parties can agree between themselves to transfer
venue and can submit a Stipulation and Order for Change of Venue, but
if one side does not agree the court will make a decision based upon which
venue, or forum, is the most efficient forum for adjudicating the issues.
One ground for changing venue is the doctrine of forum non conveniens,
which simply means " inconvenient forum."
You may be able to succeed in moving the case to Santa Cruz County depending
upon all the facts. "A court may, in its discretion, choose to refrain
from exercising its jurisdiction to hear a case if the case may be more
appropriately tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744).
California codified this principle, known as
forum non conveniens, in Code of Civil Procedure section 410.30." Code of Civil Procedure
section 410.30, subdivision (a),(2) provides as follows: "When a
court upon motion of a party or its own motion finds that in the interest
of substantial justice an action should be heard in a forum outside this
state, the court shall stay or dismiss the action in whole or in part
on any conditions that may by just." Courts sometimes reframe the
question as whether the chosen forum is "seriously" inconvenient.
The party seeking change venue has the burden of proof.
Generally, these are the principles and questions which the court needs
to answer to decide whether to move a case: whether the alternate forum
is a "suitable" place for trial. If it is, the next step is
to consider the private interests of the litigants. The private interest
factors are those that make trial and the enforceability of the ensuing
judgment expeditious and relatively inexpensive, such as the ease of access
to sources of proof, the cost of obtaining attendance of witnesses, and
the availability of compulsory process for attendance of unwilling witnesses.
The public interest factors include avoidance of overburdening local courts
with congested calendars, and weighing the competing interests of California
and the alternate jurisdiction in the litigation.
When a motion to change venue is made on the grounds of "convenience
of witnesses and the ends of justice" pursuant to Code Civ. Proc.
§396b, the party tendering that issue bears the burden of showing
through affidavits, declarations or other admissible evidence, both the
reasons it would be inconvenient for witnesses to attend, and the materiality
of their anticipated testimony. (Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 643, 346 P.2d 418.)
At the very minimum, the evidence and supporting declarations should show:
- The name of each witness for whom it will be inconvenient to testify;
- The substance of their anticipated testimony;
- The reasons why it would be inconvenient for the witnesses to appear in that court; and
- Why the ends 'ends of justice' would be promoted by the requested change of venue.
The declaration should be very specific and contain, for example, evidence
showing "the locality in which they live, stay or work; or, if employed
where, when, by whom, or the nature of their employment; or the accessibility
to or remoteness of the court or the lack of means of conveyance or time
for attending the trial; or the lack of convenience due to distance, inability
to leave work or home, health or old age." (
Id. at p. 645.)
The declarations must be competent evidence, i.e. should not consist solely
of hearsay, generalities and conclusions. (Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919, 225 Cal.Rptr. 845).
Based upon a proper showing, and considering the whether the competing
evidence is also compelling, you may succeed in changing venue. For instance,
the court will consider competing hardships and expenses to the resisting
party. The longer a party is in the county or forum you wish to change,
the harder it can become to move the case.
But, in your case, given that mother has only been with in Riverside County
for five months, the children probably haven't established such ties
to local resources that local witnesses on custody for visitation issues
are more important than those where the children have lived all their
lives (you can see this factor would be less important with young children).
Also, if there are disputes over values and characterizations of your
real estate and your business, this is a strong argument that the proper
venue for you may be Santa Cruz county.
This doctrine also applies as between larger forums - for instance, deciding
whether another state or even another country is a more appropriate forum.
At the same time, if there is already a proceeding or Judgment in another
state or country, it may be impossible to change a forum and move a divorce
case unless specific requirements are met - which is all the subject of
a different article.
TWA