In Re Marriage of Parker

California Court of Appeal Apr 22, 1981 No. Civ. 58934Published

Before: Cobey

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Holding. The court held that a trial court exceeds its jurisdiction by excluding a spouse from the family residence based solely on a child custody award, and that such an order must satisfy the specific evidentiary requirements of Civil Code section 5102.

Issues

Whether a trial court may exclude a spouse from the family residence pendente lite solely as an incident to a child custody award.
Whether the current requirements of Civil Code section 5102 apply to an injunctive order on appeal.

Disposition. reversed

Quotations verified verbatim against the opinion

“In making this order granting Wife such exclusive use of the family residence, pendente lite, and thereby excluding Husband therefrom, as an incident to the court’s contemporaneous child custody award, the trial court plainly exceeded its jurisdiction”

“In view of the very substantial change in the showing which now must be made to obtain this type of injunction, the current law, rather than the law in existence at the time the order was made, controls our disposition of this matter”

Opinion

COBEY, J.

Clark E. Parker, Sr. (Husband) appeals from that portion of a minute order, dated March 4, 1980, made in the dissolution proceeding between the Parkers, excluding him from their family residence in Beverly Hills, pendente lite. This order is appealable as an order granting an injunction. (Code Civ. Proc., § 904.1, subd. (f).) It has not been stayed. (See Code Civ. Proc., § 917.7.)

We intend to reverse this order for reasons that follow.

Facts

The Parker family residence is approximately 12,000 square feet in size and contains 3 suites of rooms. The Parkers have two children, a daughter, Alysia, now fourteen years of age, and a son, Clark, now five years of age. The trial court granted temporary legal custody of these

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children jointly to the Parkers, but granted their temporary physical custody exclusively to their mother, Jeanette Parker (Wife).

The trial court also granted, in the order under review, Wifo, pendente lite, sole and exclusive use of the family residence solely because of its physical child custody award therein and “for no other reason.” In fact the order expressly states that its provision awarding Wife such use of the family residence is made pursuant to the court’s award of physical custody of the children to her.

Discussion

In making this order granting Wife such exclusive use of the family residence, pendente lite, and thereby excluding Husband therefrom, as an incident to the court’s contemporaneous child custody award, the trial court plainly exceeded its jurisdiction under the Family Law Act. (Civ. Code, § 4000.) The exclusion of a spouse from the family residence is, and has been at all times material herein, the subject matter solely of Civil Code section 5102, a section of the Family Law Act of which the child custody sections are also a portion. (See Civ. Code, §§ 4600-4607.) These child custody sections do not mention the kind of dwelling exclusion order that is before us. Plainly the Family Law Act must be construed so as to give harmonious effect to all of its provisions (see

In Re Marriage of Parker

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COBEY, J.

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