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A158691

In the Court of Appeal

of the State of California

First Appellate District, Division Four

=======================

C

HRISTOFFER

S

TANFORD

T

HYGESEN

Appellant and Cross-Respondent,

v.

K

AILIN

W

ANG

Respondent and Cross-Appellant

=========================

Appeal from the Superior Court, County of San Francisco

Case No. FDV-19-814465

The Honorable Richard C. Darwin Presiding

Respondent’s Answering Brief

and Cross-Appellant’s

Opening

B

rief

Kailin Wang 2481 Fairway Dr., Spanish Fork, UT 84660 (801) 645-1060 kaywg2372@gmail.com In Propria Persona Court of Appeal, First Appellate District Charles D. Johnson, Clerk/Executive Officer Electronically RECEIVED on 9/10/2020 at 1:21:28 PM

Court of Appeal, First Appellate District Charles D. Johnson, Clerk/Executive Officer Electronically FILED on 9/10/2020 by M. Garcia, Deputy Clerk

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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (Cal. Rules of Court, Rule 8.208)

The Appellant is the son of Allan Thygesen, the president of Google America, Inc. (Alphabet, Inc.), who is financing this litigation for his son.

Dated: September 10, 2020

______________________________

Kailin Wang

Respondent and Cross-Appellant In Propria Persona

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Table of Contents

Page #

Certificate of Interested Entities or Persons……….…..…...2

Table of Contents………...…...3

Table of Authorities………....…..10

Statement of Appealability………...18

Standard of Review………...……19

I. Introduction……….….20

II. I Am Defending This Appeal and Making This Cross Appeal In Propria Persona (and Why it Matters)………22

III. Statement of the Facts (The Other Side of the Story)………...23

IV. Explanation of Respondent’s Appendix………...26

V. What This Appeal is Not About (I.E., Mutual Allegations of Domestic Violence)……….26

A. Mutual Allegations of Domestic Violence………...26

B. Request for Domestic Violence Restraining Order Attaching Child Custody Order………27

C. Bifurcation of the Issues………...30

VI. The Issues on This Appeal (According to the Appellant) And Why the Trial Court’s Decision Should Be Affirmed…………32

ISSUE 1—Judge Darwin Had Every Right and a Responsibility to Change His March 6 Ex-Parte Hearing Opinion on Home State and Courageously Did So as a Result of His June 25 Evidentiary Hearing………...…32

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1. The March 6 Hearing Was an Ex-Parte Hearing…………...33

2. I Was Not Served for the Hearing……….34

3. Judge Darwin’s March 6 Order Was Not a Final Order……34

4. The UCCJEA, Family Code § 3410(b), Guaranteed Me the Right to Have an Evidentiary Hearing on any

Determination of Jurisdiction………35

5. My Objection to the Subject Matter Jurisdiction

of the Court Was Made Promptly After I Was Served……..35

6. Appellant Fully Briefed His Procedural Objection

Before the June 25 Hearing and Judge Darwin

Rightfully Rejected the Objection……….36

7. There is No Time Limit for Objecting to the Subject

Matter Jurisdiction of the Court and It Cannot Be

Waived………..40

8. Judge Darwin Had Inherent Authority to Modify His Own Interim Order to Serve the Ends of Justice... 43

9. In this Situation, I Was Not Required to File a Motion for Reconsideration, Motion to Vacate Judgment, or to Appeal the March 6 Temporary Order………...44

ISSUE 2—Judge Darwin Rightly Decided That Utah Is the Home State of the Child as a Result of His June 25 Evidentiary

Hearing………...…46

1. The California UCCJEA Statute………....………46

2. Application of the Statute to the Facts in This Case…....…..47

3. The Relevant Time Period for Determining the Home

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of This Proceeding………....51

4. My New York Activities Outside the Relevant Time

Period are Irrelevant to Determining the Home State of the Child………52

5. The Burden of Proof on the Home State Issue is on

Petitioner [Appellant]……...………... 53

6. Petitioner Has Admitted the Child Was Born in Utah

and Lived There Until After this Child Custody Pro- ceeding Was Commenced; Therefore, California

Cannot Be the Home State of My Child………....54

7. The Errors in Judge Darwin’s March 6 Decision……...55 a. Judge Darwin Made an Obvious Error in

Assuming California was the Home State of the Child at the March 6 Hearing Because He Knew the Child Was Born in Utah and Was Under Six Months of Age at the Time

of the Commencement of the Proceeding…….55

b. My Putting a California Address on the Utah Birth Certificate Was Due to My Misunder-

standing of California Law and Doesn’t Change the Fact That I Actually Lived in Utah With My Child………57

c. My Application for Child Support in Los Angeles is Not Relevant in Determining the

Home State of the Child………..59

8. Judge Darwin Heard Substantial Evidence in the

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a. Testimony of Kailin Wang……….…,63 b. Birth Certificates Showing Birth in Utah…………...65 c. Photographic Proof Showing GPS Locations of

the Child in Utah………...…...65 d. Extensive Doctor Visits by Mother and Child in

Utah During the Relevant Time Period………...68

9. Appellant’s Allegation that the Birth State of the Child is Not Controlling in Determining the Home

State of the Child is Flat-Out Wrong………...71 10. Appellant Has No Evidence That the Child was

Outside of Utah During the Relevant Time Period………...75

11. Judge Darwin’s June 25 Decision Held That the

“Great Weight” of the Evidence is That Utah Is the Home State of the Child………...…...…...76

12. Judge Darwin Did Make a Finding of Where the Mother and Child Were During the Relevant Time

Period, So There is No Need For this Case to be Sent Back to the Lower Court for Further Hearings…………...77

13. Whether my Parents Were “Acting as a Parent” in my Absence is Irrelevant…...…80

14. Home State Analysis Takes Precedence Over

Significant Contact Analysis Under the UCCJEA………..81 ISSUE 3: Appellant Was Not Unfairly Prejudiced by Running

Out of Time to Present His Full Case Before Judge Darwin………...83 1. Appellant Made an Election of Remedies to Forego a “Long-Cause” Hearing Before Another Judge and

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Hearing Would be in One

Afternoon………...…..83

2. The Parties Engaged in Comprehensive, Pre-Hearing Briefing………...………83

3. After Reading Extensive Briefs, Only the Judge Knows What

He Considers to be the Remaining Issues and It is Within His Sound Discretion to Determine What Additional Evidence He Needs to Make His

Decision………...…...84

4. Appellant Was Not Denied the Opportunity to

Present Live Testimony Under California Family

Code §217………....85 5. Under California Family Code § 217 and California

Evidence Code § 350 and § 352, the Judge is Not

Obligated to Allow Cumulative, Irrelevant Testimony…...85

6. The Trial Judge Decided What Was Meaningful Cross-

Examination………...87

7. A Decision Made Without Allowing Proffered Evidence Cannot be Set Aside Unless It Results in a Miscarriage of Justice………...….90

8. The Appellant Got What He Wanted from Introducing

Evidence Attacking My Credibility in the Trial Court…...91

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CROSS APPELLANT’S OPENING BRIEF………...94

I. Introduction………....95

II. Factual and Procedural Background………..…....97

III. Issues for Cross-Appeal……….…...98

IV. Statement of Appealability……….……..98

V. Standard of Review………....98

VI. Legal Arguments:……….…98

1. At the Time that Judge Darwin Made the Order Awarding Sole Custody of My Child to the Father My Child Was Not in California………...…..99

2. Judge Darwin’s Custody Order Was Illegal Because it Was Ex-Parte………...100

a. Family Code section 6323 Violation (Ex-Parte Order)…...100

b. California Family Code § 3064 Does Not Apply Without Demonstration of Immediate Harm to the Child and No Such Demonstration Was Made………...….101

3. Judge Darwin’s Retrieval Order Exceeded His Lawful Authority………..102

a. Family Code § 3451 Violation (Retrieval Limited to Child Living in California)………...102

b. Family Code § 3130 (Inapplicable Child Abduction Statute………....102

4. Judge Darwin Engaged in the Worst Kind of Bootstrapping...105

5. The Law is Clear that Any Orders Entered by a California

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AB INITIO. ………..…....106

6. Deprivation of My Child Without an Evidentiary Hearing is a Violation of My Fundamental Due Process Rights as Recognized by Court Decisions………...…...107

7. Judge Darwin’s Sua Sponte Decision that the Child was Subject to his Emergency Jurisdiction Without any Briefing or Hearing was a Violation of the Law………...108

8. Judge Darwin’s Exercise of Emergency Jurisdiction Without Consulting with the Utah Court was a Violation of the Statute and an Abuse of Discretion………...109

9. California’s Continuing to Exercise Temporary Emergency Jurisdiction Over my Child (Which has Continued Over 19 Months to this Day) is in Direct Violation of Judge Darwin’s Own Legal Determination that the Courts of California Do Not Have Subject Matter Jurisdiction Under the UCCJEA to Issue any Permanent Custody or Visitation Orders………....…….110

10. By Continuing to Retain Temporary Jurisdiction, California has Blocked my Ability to Obtain Custody and Visitation Orders in Utah………..……...111

Conclusion……….…112

Certificate of Word Count……….114

Proof of Service……….…115

Exhibit A—Procedural History of This Case………..…..116

Exhibit B—Ocegueda v. Perreira………..…....118

Exhibit C--Christoffer Thygesen "Pull the Trigger" Text Message...131

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Table of Authorities

Cases

Abelleira v. District Court of Appeal (1941) 17 Cal. 2d 280, 288

(109 P.2d 942)………...40

Adolph M. Schwartz, Inc., v. Burnett Pharmacy, 112 Cal.App. (Supp.) 781, 784 [295 P. 508]………...….43

Adoption of Zachariah K. (1992) 6 CA4th 1025, 1037, 8 CR2d 423, 430…..…..110

Allen v. Ellis, 191 Kan. 311, 380 P.2d 408, 412………....…...32

Anderson v. Saunders, 16 Wis.2d 55, 113 N.W.2d 831………...…....32

Atkins v. Vigil--59 P.3d 255(Alaska Sup. Ct 2002). ………...49

Baker v. Tunney, 201 So.3d 1235………...…..80

Barnick v. Longs Drug Stores, Inc., 203 Cal.App.3d 377, 379 (Cal. Ct. App. 1988)………..………..…40

B.B. v. A.B., 916 N.S.2d 920 (Sup.Ct. New York 2011)………...……50,72 Bhatia v. Bhatia (In re Marriage of Bhatia), A148151 (Cal. Ct. App. Nov. 29, 2018) ………...44

Brewer v. Carter (2013) 218 CA4th 1312, 1318, 160 CR 3d 853, 858...35, 42, 80, 82 Brokopp v. Ford Motor Company (1977) 71 Cal. App. 3d 841, 853, 139 Cal. Rptr. 888, 895………....…86

Burbank v. McIntyre, 135 Cal.App. 482, 486, 27 P.2d 400……….…...…31

Burger King v. Rudzewicz (1985), 471 U.S. 462, 475)………....…60

Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1, 9 (2008)………....….…51

Cole v. Super.Ct. (Cole) (1985) 173 CA3d 265, 271-272, 218 CR 905, 907-908………....……..35

Conservatorship of O'Connor (1996) 48 Cal. App. 4th 1076, 1087, 56 Cal. Rptr. 2d 386………...…..40 Consolidated Theatres, Inc. v Theatrical Stage Employees Union (l968) 69

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Cal.2d 713, 721 [73 Cal. Rptr. 213, 447 P.2d 325]………...…40 Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal. App.3d

378, 384 [94 Cal.Rptr 887]……….…86, 91 Costa v. Banta (1950) 98 Cal.App.2d 181, 182 [219 P.2d 478]………....…..41 Crawford v. Southern Pacific Co. (1935) 3 Cal. 2d 427, 429 [45 P.2d 183]…..…90

Dabney v. Dabney, 104 Cal. App. 4th 379, 127 Cal. Rptr. 2d 917………...…41

Dekinderen v. Dekinderen, No. 293443, 2010 WL 99269 (Mich. Ct. App.

Jan. 12, 2010) ... ...51

Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 523)…..…107 Emery v. Pacific Employers Ins. Co. (1937) 8 Cal.2d 663, 665-666 [67 P.2d

1046]………...41 Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 n.2 (9th Cir. 1988)………...42 Estate of Teel (1944) 25 Cal. 2d 520, 526 [154 P.2d 384]………...88 Ex parte Carstens (Ala. 1998) 728 So.2d 128, 133………....59 Escobar v. Reisinger,2003-NMCA-047, ¶ 16, 133 N.M. 487, 64 P.3d 514)…..….80 Ferreira v. Ferreira, 9 Cal. 3d 824, 833 [109 Cal. Rptr. 80, 512 P.2d 304]….105

Friedman v. Eighth Judi. Dist. Ct., 127 Nev. Adv. Op. No. 75, 57245

(2011), 264 P.3d 1161 (Nev. 2011)...43

Garcia v. Hoffman (1963) 212 CA2d 530, 536-37) ...89 Glynn v. Meslin (R.I. 1987) 532 A.2d 554, 556.) fn. 3 (In Re C.T. (2002)…..…110 Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999)

74 Cal.App.4th 1407, 1417–1418 [88 Cal. Rptr. 2d 828]………....…42

Hallock v. Jaudin, 34 Cal. 167, 173………....…41

Harding v. Harding (2002) 99 CA4th 626, 636, 121 CR2d 450, 458, cert.den. (2003) 537 US 1234………...42

Harrington v. Superior Court (1924) 194 Cal. 185, 188 [ 228 P. 15]………...…43

Haywood v. Super.Ct. (2000) 77 CA4th 949, 957, 92 CR2d 182………...…..19, 35 Hegler v. Hegler (1980) 383 So.2d 1134...107

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1125 [267 Cal. Rptr. 503]………...…62

Huffaker v. Huffaker, (Mich. Ct. App. 2013)……….…50, 73 In re A.C. (2005), 130 Cal.App.4th 854, 860……….….43, 48, 108, 121 In re A.M. (2014) 224 Cal. App.4th 593, 598………..…....42

In re Baby Boy M (2006) 141 CA4th 588, 599; 46 CR3d 196, 203 (2006)….53, 122 In re Briana C. , 2006 WL 2349189, at *1 (Cal. App. 2006)…….………..……110

In Re Burk—252 S.W.3d 736, 741 (Tex.App. 2008). ... ...50, 73 In re Calderon-Garza, 81 S.W.3d 899 (Tex. App. 2002)……...…....49, 124 In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 [82 Cal.Rptr.2d 426]……...…62

In re. D.T., 743 A.2d 108-81 (Sup.Ct. Vermont 1999)………..…………50, 73 In re E.J ., 738 S.E.2d 204, 207 (N.C. App. 2013)………...………...…111

In re E.M. (2014) 228 CA4th 828, 839-40………...….…62, 90 In re Fernandez-Abin Sanchez, 191 Cal.App.4th 1015 (Cal. Ct. App. 2011)...107, 108, 109 In re Gloria A. (2013) 213 Cal.App.4th 476, 481 [152 Cal. Rptr. 3d 550]…....…41

In re Janette H., 196 Cal.App.3d at p. 1427………...…19

In re Jorge G., 78 Cal. Rptr. 3d 552, 557 (Cal. App. 2008) ………...…110

In re Marriage of Ben-Yehoushua (1979), 91 Cal.App.3d 259, 263, 154 Cal Rptr 80………...…..43

In re Marriage of Carter (1971) 19 Cal. App. 3d 479, 494 [97 Cal. Rptr. 274]………...….89

In re Marriage of Connolly (Cal. Sup. Ct. 1979) 23 CA3d 590, 598)…...…...…89

In re Marriage of Fox (1986 180 Cal.App.3d 862 at p. 869-70………....….19

In re Marriage of Hoffmeister (1987) 191 CA3d 351, 358………...…62

In re Marriage of Medill (2002) 179 Ore.App. 630 [40 P.3d 1087, 1096]….…....59

In re Marriage of Mix (1975) 14 C3d 604, 614………...…62

In re Marriage of Newsome, 68 Cal.App.4th 949, 955-56) (1998)…………...…42

In re Marriage of Torres (1998) 62 CA4th 1367, 1374...59, 81

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In re Nelson B. (2013) 215 CA4th 1121, 1129, 155 CR3d 746, 752………...…89

In re NRM, 165 NC App 294 (2004)……….…....…107

In re R.L., 4 Cal.App.5th125………...74, 109, 110 In re S.A.H. (2014), 465 S.W.3d 662)...50, 72

In re Stephanie M. (1994) 7 C4th 295, 315, 27 CR2d 595, 606)…………...…89

In re Tieri, 283 S.W.3d 889, 893 (Tex. App. 2008)………...…51 In the Matter of N.T. 240 N.C App. 33 (2015)………...107 Irving v. Irving, 682. S.W.2d 718 (Tex.App.1985)………...……….…50, 72

James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021 [ 41 Cal.

Rptr.2d 762]………...…62 Johnson v. Pratt Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622

[ 34 Cal.Rptr.2d 26]………...62 Keiffer v. Bechtel Corp. (1998) 65 Cal. App. 4th 893, 896, 76 Cal. Rptr.

2d 827)………...…41

Keith R. v. Super.Ct. (H.R.) (2009) 174 CA4th 1047, 1053, 96 CR3d

298, 301-302.. . . .. . . ……….…...28

Laursen v. Tidewater Assoc. Oil Co., 123 Cal.App.2d 813, 816, 268 P.2d 104...31 Le Francois v. Goel (2005) 35 Cal4th 1094, 1109………...…43

Lester v. Lennane (2000) 84 CA4th 536, 561………...…34, 45

Maguire v. Cunningham, 64 Cal.App. 536, 540 [222 P. 838]…………...…43

Marriage of Arnold & Cully (1990) 222 CA3d 499, 502, 271 CR 624,

625-626………...……....49, 72, 75

Marriage of Balcoff 2006, 141 CA4th 1509, 1531………...…62 Marriage of Dellaria (2009) 172 CA4th196, 205, 90 CR3d 802, 809……...….91 Marriage of DeRoque (1999) 74 CA4th 1090, 1095………...….….86 Marriage of Fink (1976) 54 CA3d 357, 360, 126 CR 626, 628…………..….…...18 Marriage of Gruen (2011) 191 CA4th 627, 637-638, 120 CR3d 184, 191-192...18 Marriage of Jensen (2003) 114 Cal.App.4th 587, 592; 7 Cal. Rptr. 3d 701, 705...44 Marriage of Loyd (2003) 106 CA4th 754, 759………...…...90

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Marriage of Nurie (2009) 176 CA4th 478,493...42, 48, 49, 72, 123, 125, 130 Marriage of Sareen (2007) 153 CA4th 371, 376-377, 62 CR3d 687,

691-692…...42, 50, 59, 121 Matter of Montanez v Tompkinson 2018 NY Slip Op 08305; Decided on

December 5, 2018 Appellate Division………...…..……107

McDowell v. Orsini (1976) 54 CA3d 951, 961-962, 127 CR 285, 291-292...…105

Meena v. Blau, CASE NUMBER: CV 19-01520-CJC (AGRx) (C.D. Cal. Mar. 8, 2019)………...…41

Mendoza v. Ramos (2010) 182 CA4th 680, 687)………...…...86

Meyeres v. Meyeres, 196 P.3d 604, 609 (Utah Ct. App. 2008)………...73

Mooren v. King, 182 Cal.App.2d 546, 551, 6 Cal.Rptr. 362………..….….31

Monasky v. Taglieri, No. 18-935, U.S. Supreme Court (Feb. 25, 2020)...112

Morrell v. Mock, 270 F.3d 1090, 1100 (7th Cir. 2001)...108

Nestle v. City of Santa Monica (1972) 6 Cal. 3d 920, 925 [101 Cal. Rptr. 568, 496 P.2d 480]………...…89

Norager v. Mountain States L. Ins. Co., 10 Cal.App.2d 188, 192 [ 51 P.2d 443]………...………...43

Ocegueda v.Perreira (2015) 232 CA4th 1079, 181 CR3d 845...42, 49, 51, 71,79, 82, 106, 118 Olson v. Olson (1985) 64 Md.App. 154 [ 494 A.2d 737, 744-745]……….….59

Parker v. Harbert (2012) 212 CA4th 1172, 1178, 151 CR3d 642, 647………...90

Penaat v. Guasco, 84 Cal.App.2d 445, 453 [ 191 P.2d 564]………..…..…41

People v. Ashley, 166 Cal. App. 2d 249, 254 [332 P.2d 758]………..….89

People v. Atchley, 53 Cal. 2d 160, 172 [346 P.2d 764]……….…....…89

People v. Barragan, 163 Cal. App. 2d 625, 629 [329 P.2d 733]…….……...…89

People v. Beach (1987) 194 Cal. App. 3d 955, 963;...109

People v. Coit Ranch, Inc., 204 Cal. App. 2d 52, 57 [21 Cal. Rptr. 875]……....42

People ex rel. Dept. Pub. Wks. v. Miller (1964) 231 Cal. App. 2d 130, 134 [41 Cal. Rptr. 645]………...…87

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People v. Golden, 55 Cal. 2d 358, 372 [11 Cal. Rptr. 80 359 P.2d 448]……….89 People v. Jordan, 169 Cal. App. 2d 727, 729 [337 P.2d 912]……….89 People v. LaMacchia, 41 Cal. 2d 738, 743 [264 P.2d 15]………..………87 People v. Lara (2010) 48 Cal.4th 216, 225 [106 Cal. Rptr. 3d 208,

226 P.3d 322]………....42 People v. Murphy, 59 Cal. 2d 818, 830 [31 Cal. Rptr. 306, 382 P.2d 346]…...….87 People v. Rodriguez, 134 Cal. 140, 142 [66 P. 174]………..…….89 People v. Winston, 46 Cal. 2d 151, 157 [293 P.2d 40]………....…87 People v. Wissenfeld, 36 Cal. 2d 758, 765 [227 P.2d 833]………...…...87 PGA W. Residential Assn. v. Hulven International Inc. (2017) 14 Cal.App.5th

156, 176, n. 10………...……...50

Plas v. Superior Court (1984), 155 Cal.App.3d 1008, 1013-14, 202 Cal.

Rptr 490……….…43 Pool v. City of Oakland (1986) 42 C3d 1051, 1069, 232 CR 528, 538………...…91

Powell v Stover, 48 Tex Sup Ct J 780;165 SW3d 322, 326 (2005)…...….….79, 123

Powers v. Wagner, 716 S.E.2d 354 (NCApp. 2011). ………...59 Roberts v. District Court of Larimer County (1979) 198 Colo. 79, 82

[596 P.2d 65, 68]………...….109 Russell v. Electrical Workers Local 569 (1966) 64 Cal.2d 22, 28, fn. 5 [48

Cal.Rptr. 702, 409 P.2d 926]………...……….…41 Ruth v. Ruth (2004) 32 Kan.App.2d 416 [ 83 P.3d 1248, 1252]……….……59 Saffer v. JP Morgan Chase Bank, N.A. (2014) 225 Cal. App. 4th 1239,

1246, 171 Cal. Rptr. 3d 111………....…41 Sampsell v. Superior Court, 32 Cal. 2d 763, 773 [197 P.2d 739]; ...42 Schlumpf v. Superior Court of Trinity County (145 Cal.Rptr. 190, 79 Cal.

App.3d 892 (1978)………...…...41 Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1286)………..…19 Schwartz, Inc. v. Burnett Pharmacy, 112 Cal.App. Supp. 781, 784-785

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Shamblin v. Brattain (1988) 44 Cal. 3d 474, 478-479 [243 Cal. Rptr.

902, 749 P.2d 339])………90

Slay v. Calhoun, 772 S.E.2d 425 (2015)……….51

Smith v. Smith (2012) 208 CA4th 1074, 1084, 146 CR3d 135, 143…..….18, 34, 45 Snowney v. Hurrah’s Entertainment Inc. (2005) 35 Cal. 4th 1054, 1064-65)

(CalSup.Ct.2005)……….…..60 Spector v. Spector (2018) 24 CA5th 201, 2014……….….44 Spencer v. Marshall (2008) 168 Cal. App. 4th 783, 792-793 [85 Cal. Rptr.

3d 752]………..……..62 Spencer v. Spencer (1967) 252 CA2d 683, 689 [60 Cal.Rptr 747]………....18 Staats v. McKinnon, 206 S.W.3d 532, 546 n.31 (Tenn. App. 2006)……….…...111 Steven D. v. Nicole J (2013) 308 P.3d 875 (S.Ct. Alaska)………....…110 Summers v. Superior Court (1959) 53 Cal.2d 295, 298 [1 Cal. Rptr.

324, 347 P.2d 668]………..…43 Tenenbaum v. Sprecher (1987) 133 A.D.2d 371, 373 [519 N.Y.S.

2d 273, 274]……….…110 Thornsbury v. Thornsbury147 W.Va. 850, 131 S.E.2d 713, 722……….…...36 Tilbury v. Fox, No. 15-cv-01266-HSG (PR) 1, 23 (N.D.Cal. August 1, 2016)…....87 Totten v. Hill (2007) 154 Cal.App.4th 40, 46 [64 Cal. Rptr. 3d 357, 361]……….40 Troxell v. Troxell (1965) 237 Cal. App. 2d 147, 152 [46 Cal. Rptr. 723]…….…..89 Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196

[25 Cal. Rptr. 3d 298, 106 P.3d 958]……….107 Ungefug v. D’Ambrosia (1967) 250CA2d61,69)………....31 Walker v. Superior Court (1991) 53 Cal. 3d 257, 272 [279 Cal. Rptr. 576,

807 P.2d 418]………...….90 Wallace v. Super.Ct. (Jasis) (1993) 15 CA4th 1182, 1186-1187,

19 CR2d 157, 160]………82 West v. Super.Ct. (Lockrem) (1997) 59 CA4th 302, 309, 69 CR2d 160,

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W.M. v. V.A., 30 Cal. App. 5th 64, 68 (Cal. Ct. App. 2018)...29

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)…...…60

Constitutions and Statutes U.S. Constitution Fourteenth Amendment………..……....…108

California Constitution, art. 6, section 13………...…90

Cal. Rules of Court, Rule 8.208……….…...2

California Code of Civil Procedure § 475………...…...90

California Code of Civil Procedure § 533………..…...43

California Code of Civil Procedure § 657………...…..44

California Code of Civil Procedure § 1008………....…….….44

California Evidence Code §350………...86

California Evidence Code § 352………..………...……...86

California Evidence Code § 773………....………….…..88

Family Code § 217. ……….85, 86, 87 Family Code § 243………..………34, 35 Family Code § 3064………..……….……….…100, 101 Family Code § 3130………...……….……101, 102, 103 Family Code § 3402………….…...46, 47, 48, 52, 53, 57, 59, 81, 118, 121, 122, 123 Family Code §3410 (b)………...…34, 35, 129 Family Code §3421. ………....……46, 47, 57, 79, 81, 110, 120, 121, 130 Family Code §3424………...46, 97, 99, 106, 108, 108, 109, 110 Family Code § 3425………...…29, 108, 109 Family Code §3451………..………..……102 Family Code § 3454………..………...…18 Family Code § 3461………..………50 Family Code § 6323………..…………...100 Family Code § 7620………..………61

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STATEMENT OF APPEALABILITY

I concur with Appellant appealing the July 18, 20191 Order of Judge Darwin finding Utah to be the home state of the child. In addition to Appellant’s reliance on Family Code § 3454 and Code of Civil Procedure § 904.1(a)(1), this case is appealable as a final order on a bifurcated collateral issue. This case was filed by Appellant (Petitioner) as a Request for a Domestic Violence Restraining Order (DVRO). A request for custody orders was collateral thereto. Judge Darwin bifurcated the domestic violence and custody issues (May 8 Hearing Transcript, p. 23, lines 18-28, 2 RT 50:18-28; p. 25, lines 1-23, 2 RT 52: 1-23; June 25 Transcript, 4 RT 94: 20-24; 107:8-10; 169:6-25; 170:1-2). Judge Darwin’s order finding that California is not the home state and California has no authority to grant custody or visitation orders is “final” on that issue and is, therefore, immediately appealable.. Bifurcated judgments are separately and immediately appealable. Marriage of Fink (1976) 54 CA3d 357, 360, 126 CR 626, 628; Marriage of Van Sickle (1977) 68 CA3d 728, 736, 137 CR 568, 572. An interim judgment or order is directly appealable as a “collateral” final judgment or order if it finally determines the rights of the parties in relation to that matter, leaving no further judicial acts to be done in regard thereto. In effect, such a decision is the equivalent of a final judgment in an independent proceeding. Marriage of Skelley (1976) 18 C3d 365, 368-369, 134 CR 197, 199-200; Marriage of Gruen (2011) 191 CA4th 627, 637- 638, 120 CR3d 184, 191-192; Smith v. Smith (2012) 208 CA4th 1074, 1084, 146 CR3d 135, 143;

Meehan v. Hoppes (1955) 45 CA2d 213, 216-217 [288 P.2d 267]; Spencer v. Spencer (1967) 252 CA2d 683, 689 [60 Cal.Rptr 747]. Questions of UCCJEA jurisdiction must, on a party’s request, be given priority on the calendar “and

handled expeditiously”. [Fam.C. § 3407] The Appellant has objected to

1 Please note: unless otherwise stated, all date references hereinafter will be to the year 2019 to avoid needless repetition and reduce the word count for this Brief.

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enforcement of Judge Darwin’s Order in the State of Utah, so I am just anxious that this Court expeditiously affirm the lower court decision so any ambiguity about which state is the child’s home state can be resolved as soon as possible and I can get on with getting custody and visitation orders.

STANDARD OF REVIEW

It appears I have some disagreement with Appellant over the standard of review for two of the three issues as follows:

1. First Issue: I agree with Appellant that the standard of review for Appellant’s first issue (procedural authority of Judge Darwin to reverse his initial opinion regarding home state) is an issue of law and this Court has the authority to review it de novo.

2. Second Issue: In regard to the Appellant’s second issue—the only issue relating to the merits—it appears Appellant is trying to argue that this should be reviewed under the de novo standard, but this Issue is not just an interpretation of the law; Judge Darwin heard all the evidence, evaluated the demeanor of the witness, and made a legal determination based on his analysis of the facts. As such, this Court must affirm Judge Darwin’s ruling if it finds there is substantial

evidence to support his ruling. See Schneer v. Llaurado (2015) 242 Cal.App.4th

1276, 1286) (“We agree with those two decisions [Haywood v. Superior Court 77 Cal.App.4th 949 at p. 954 and In re Janette H., 196 Cal.App.3d at p. 1427] and with

Fox [In re Marriage of Fox (1986 180 Cal.App.3d 862 at p. 869-70], when the

facts are contested, a trial court’s jurisdictional finding under the UCCJEA is reviewed under the deferential substantial evidence standard”). (“If you are appealing because you think that the decision of the trial court is not supported by substantial evidence, the appellate court uses the substantial evidence standard. The appellate court reviews the record to make sure there is substantial evidence that reasonably supports the trial court’s decision. The appellate court's function is not to decide whether it would have reached the same factual conclusions as the judge or

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jury. The appellate court just decides whether a reasonable fact-finder could have come to the same conclusion based on the facts in the record. If there is a conflict in the evidence and a reasonable fact-finder could have resolved the conflict either way, the appellate court will not overturn the trial court's decision. Because the

judge or jury at the trial saw the witnesses and heard what the witnesses said, they were in a better position to decide what actually happened and who was telling the truth” (from this Court’s website). I assert that there is substantial evidence in support of Judge Darwin’s ruling.

3. Third Issue: In regard to the third issue (Judge Darwin’s decision to cut

short some of Appellant’s cross-examination of me) this must be reviewed under the

abuse of discretion standard (“If you are appealing a decision that involved the trial court's use of discretion, the abuse of discretion standard is used by the appellate court in its review. Any decision that involves the judge using his or her discretion (such as whether to admit certain evidence in the trial) comes under this standard. Abuse of discretion occurs when the trial court judge makes a ruling that is arbitrary or absurd. This does not happen very often”) (from this Court’s web-site).

I. INTRODUCTION

On February 15, 2019, Christoffer Thygesen (Petitioner in the trial court and Appellant in this Court) filed a Request for a Domestic Violence Restraining Order (DVRO) against me, Kailin Wang (Respondent/Appellee) (1 AA2 14). On March 6, 2019, in an ex-parte hearing, Judge Richard C. Darwin of the San Francisco Superior court, as a part of the application for a DVRO, issued a child custody, and no travel orders (DV-140, 145) based upon one-sided evidence that California was the home state of my child under the Uniform Child Custody and Jurisdiction

2 AA- Appellant’s Appendix (i.e.; Volume 1 AA (Appellant’s Appendix, Page 14).

RA- Respondent’s Appendix RT- Reporter’s Transcripts

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Enforcement Act (UCCJEA) (2 AA 311, 318-19). On June 25, as a result of a full evidentiary hearing on the home state of the child, Judge Darwin reversed his determination and determined that Utah, not California, is the home state of the child, [Order dated July 18, 2019, par. 8]; (7 AA 1537-39).

Appellant is appealing three paragraphs of Judge Darwin’s July 18 Order. Appellant is appealing what they call the “Threshold Procedural Issue” of Judge Darwin’s July 18 Order (Issue 1) and the “UCCJEA Custody Jurisdiction” portion of his Order (Issue 2). (Appellant’s attorneys wrote the July 18 Order and it was adopted without change by Judge Darwin; therefore, any ambiguity in the Order must be construed against Appellant).

The paragraphs being appealed are as follows:

Threshold Procedural Issue:

6. On the threshold question of whether procedurally the Court can properly revisit the finding of home state made in March, that finding was issued without evidence from one side, which is typical for DVRO3s. Like almost all orders issued on an ex parte basis and certainly those under the Domestic Violence Prevention Act, the order issued was temporary, pending a contested, evidentiary hearing. With Mother’s first appearance in this case, through her Response filed on April 5th, she raised a challenge to, among other things, the jurisdictional basis of the Court’s custody orders included in the March 6th TRO.

7. Because Mother is able to challenge the request for a permanent restraining order on any basis, the Court finds that she did not waive her right to challenge any part of the TROs issued on March 6th by failing to file a motion to reconsider or to appeal. This includes the issue of custody jurisdiction, and the underlying custody and visitation orders.

UCCJEA Custody Jurisdiction:

8. Although the Court has some difficulty with Mother’s credibility on a number of issues, it finds that Utah is [K.W.]’s home state. This is based on the Court’s finding that [K.W.] was born in Utah, and it appears that he was physically present in Utah for 70 out of the 80 days between the date of his birth and the

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date that this action was initiated in mid February. There was some indication from e-mails that [K.W.] was back and forth between other states during that time period, but none of the other evidence suggests that. (7 AA 1537-39)

II. I AM DEFENDING THIS APPEAL AND MAKING THIS

CROSS-APPEAL IN PROPRIA PERSONA (AND WHY IT

MATTERS).

I am responding to the Appellant’s appeal (and filing my cross-appeal) as an in Pro Per litigant. On the other side, representing the Appellant Christoffer Thygesen in the California courts is a team of 5 attorneys, including Darrick T. Chase (Family law), Erica T. Johnstone (Internet law), Douglas L. Rappaport (Criminal law), Michelene Insalaco (Appellate specialist), and Janet Simonds (Appellate specialist). All of these attorneys charge between $585 and $750 per hour and are among the cream of the crop of San Francisco attorneys. I estimate that Christoffer Thygesen has spent at least $1,250,000 on those attorneys on this case during the past 19 + months. I have spent approximately $250,000 of my own money and most of my parents’ retirement savings, thus bankrupting me in the process.

Since Christoffer Thygesen became aware of the pregnancy on June 20, 2018 (1 AA 206), he did not support any medical costs he abandoned the child and myself financially and emotionally. He denied that he was the father; he never attended a single doctor’s appointment. Christoffer made no offers at any time other than the offer to pay for an abortion and he showed no interest in parenting the child. On June 24, 2018, Christoffer sent the following text message to me:

“I can’t be a real father to a kid at this point in my life. Financially, emotionally, any way” (1 AA 251). “The longer you wait, the harder

it is going to be to pull the trigger.” “I do not know what you have been researching or who has been giving you advice, but this will not

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play out favorably for anyone. Guaranteed. I can't sugar-coat this since it's so late already.” (1 AA 251-252).

The threat of an unfavorable outcome if I did not have an abortion indicated that Christoffer wanted no relationship at all with (the child), as an abortion would have ensured that no relationship could ever develop, he showed no interest in becoming a father in a true relational sense throughout the entire pregnancy, and seemingly expressed an interest only upon receiving the Child Support Services Complaint served on him on December 20, 2018 (1 AA 31).

Four days later, on December 24, 2018, Christoffer Thygesen alleged I started cyber stalking him (1 AA 19). Since then, the Thygesen family has pursued me relentlessly without any conscience to deprive me of any parental rights to my child. The child has been completely cut off from half of his cultural identity and the most instrumental person in his early life, his mother, not to mention his loving grandparents. I have been stripped of any custody rights4 to my only child, without ever having a single evidentiary hearing on the best interests of the child.

How has Christoffer Thygesen, a young man of 27 years of age been able to hire five attorneys and spend all that money attacking me? ... The answer is he is the son of Allan Thygesen, President of Google America (Alphabet, Inc.), one of the largest tech companies in the world. Allan Thygesen makes tens of millions of dollars annually and has financed and prosecuted this child custody and visitation battle for his son.

III. STATEMENT OF THE FACTS (THE OTHER SIDE OF

THE STORY)

When I read Christoffer Thygesen’s Opening Brief I was shocked at how he

4 MS. INSALACO: “We also would like to ask that the Court would modify the caption of the case to use the parties' initials because that's the best way to be sure that [K.W.]'s

information isn't located down the road when he is older. And if you prefer a separate -- I have a brief I have prepared, but if you prefer a separate motion, we can do that. I don't know if respondent opposes the request.” (4 RT 109: 4-10)

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(and his attorneys) portrayed me. It is a perfect example of the “no holds barred” “scorched earth” policy they have pursued to attack me. This appeal is limited to very narrow UCCJEA jurisdictional legal issues and NONE of the so-called “facts” in Appellant’s “Factual Background” portion of his Opening Brief were relied upon by Judge Darwin to make his June 25 determination or to support his July 18 Order, which Appellant is now appealing. I still want to defend my honor and protect myself from any prejudice or bias that might arise in this Court by believing Christoffer Thygesen’s slanderous and misleading account of the factual background, but I will keep my recitation of the facts short.

The parties met on the internet through a dating app, and went on two dates together in San Francisco on February 28th and March 4th of 2018 (1 AA 61, 70, 194, 203) At that time I was living in Utah and Christoffer Thygesen was living in San Francisco.

On June 20, 2018, I felt nauseous. I “googled” my symptoms online and went in for a medical check-up at Utah County Health Department located in Provo, Utah. To my disbelief, I was pregnant; here I was, 35 years old and pregnant for the first time in my life.

On June 20, 2018 I texted Christoffer and told him about the pregnancy (1 AA 32 (par.9), 61, 93, 205). At first, an abortion was agreed upon. I then went from my home in Spanish Fork, Utah to Salt Lake City to view the Temple of The Church of Jesus Christ of Latter-day Saints, the Church I was baptized in. I texted a picture of the Temple to Christoffer (1 AA 217-218), and contemplated about this life-changing decision. Christoffer knew I was living in Utah.

On June 20, 2018, Christoffer Thygesen, sent the following message to me:

“The longer you wait, the harder it is going to be to pull the trigger.” “I do not know what you have been researching or

who has been giving you advice, but this will not play out favorably for anyone.” Guaranteed... I can't sugar-coat this since it's so late already.” (1 AA 251-252) (3 AA 615, 616) .

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On June 21, 2018, I went to Las Vegas intending to have an abortion (1 AA 221), but I was having second thoughts. I caught a glimpse of the baby on the Ultrasound Screen---the baby was moving and looked completely human. At that moment, my heart literally melted, my maternal instincts kicked in. I stepped outside, got in my car, and drove away. I then immediately returned the abortion money to Christoffer via Venmo5. Afterward, I informed Christoffer about my decision. Christoffer did not take the news well. He was enraged, infuriated; he repeatedly called me, desperately urging, coercing me to proceed with the abortion. In a 36-minute phone conversation, he affirmed that his parents would disown him if they found out he fathered a “Chink” [Chinese] baby6 (5 AA 1138; 6 AA 1310).

The last time Christoffer and I communicated was on October 11, 2018 (1 AA 33 (par. 12), 80, 280-283). Christoffer displayed his anger towards the baby and me. He said this wasn’t his decision to keep the child. He urged me to do an invasive, disturbing prenatal genetic test. This test, if performed at the 37-week stage of gestation, can be deadly and potentially cause miscarriage. I tried to communicate with Christoffer further about the baby but he blocked me from all methods of communication.

Christoffer refused to attend the birth of the baby on November 26, 2018 in Orem, Utah. He never sent any congratulations, or offer any financial support. He did not tell his parents he was a father. They learned about the baby when I sent them e-mail with pictures of the child nine days after my son was born asking whether Christoffer wanted to be involved in his child’s life.

5 Venmo is a mobile payment service owned by PayPal. Venmo account holders can transfer funds to others via a mobile phone app; both the sender and receiver have to live in the U.S.

6 Racist Overtones; the shame of Baby [K.W.] being a bi-racial baby is manifest

throughout evidence obtained during discovery. On March 6, 2019, on a Central Utah 911 Dispatch Call, Thygesen referred to Baby-[K.W.] as a "White Baby”. In Baby-K's Stanford Medical Reports, Thygesen declined to disclose [K.W.].'s ethnicity; he further illegally changed the baby’s first and surname from [K] Wang to Liam Thygesen to eliminate any Chinese connection. (3 RA 496)

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See: Email to Allan C. Thygesen, and Terry Thygesen, (3 AA 600-602). Terry Thygesen replied to my e-mail on December 6, 2018 saying she and her husband Allan had not been aware of the pregnancy and asked what my plans for the baby were (3 AA 600-602). When I replied that “adoption” and “termination of parental

rights” were not options for me, both Allan Thygesen and Terry Thygesen blocked

me on the Internet from any further communication. That was the last time I communicated with the family. His parents subsequently reported the emails to the police alleging extortion and harassment.

By e-mail dated February 3, I again politely asked Christoffer’s attorney if Christoffer would be interested in being in [K.W.]’s life (5 AA 1021). He did not respond. I soon learned that blitzkrieg war would be initiated against me (described in Section V).

PLEASE NOTE: A procedural history of the parties’ cases is attached as

(Exhibit A)

IV. EXPLANATION OF RESPONDENT’S APPENDIX:

Due to not receiving a copy of Appellant’s copy of the Reporter’s Transcripts, I will cite from my copies of Respondent’s Reporter Transcripts and Respondent’s Appendix in addition to citing Appellant’s Appendix.

V. WHAT THIS APPEAL IS NOT ABOUT (I.E., MUTUAL

ALLEGATIONS OF DOMESTIC VIOLENCE)

A. Mutual Allegations of Domestic Violence. As part of Christoffer

Thygesen’s Opening Brief “Factual Background” narrative he alleges that, beginning December 24, 2018, I began making posts on public blogs that humiliated, him, which he alleges constituted disturbing the peace under the DVPA. Since there is no final order on the DVRO in this case and this appeal relates solely

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to the issue of UCCJEA home state, subject matter jurisdiction, these allegations are apparently made to slander me and prejudice this Court against me.

What Christoffer Thygesen neglects to mention is that he, directly and indirectly through his wealthy parents and his agents, engaged in extensive abusive domestic violence against me, my parents, and my child in retaliation for deciding not to abort the baby. (2 RA 316-442) (3 AA 605-618), (3 AA 615, 616), (6 AA 1307-1310), (6 AA 1352), (6 AA 1326-1341).

His pressure to abort the child was the ultimate example of “child abuse” domestic violence that he was attempting to inflict on the child but he added to that abuse by filing false police reports, engaging harassing private investigators, freeway chases, and posting harassing messages on the internet. He impersonated me and even posted on the Internet under his name: “I'm going to kill this baby, so I don't have to pay child support” and tried to blame me for it (3 AA 635 (par.11), 673, 649 (pars. 93-94)).

B. Request for Domestic Violence Restraining Order. Although

Christoffer repeatedly told me he wanted me to abort the child, blocked me from further communication with him, did not attend the birth and showed no interest in the child, apparently, after (1) his parents were informed of the birth of the child (December 5, 2018; 3 AA 601), (2) they consulted with Darrick Chase of the Kaye, Moser law firm, (3) Los Angeles Child Support Services served a Summons and Complaint on Petitioner calculating he would owe $1,534 per month child support (December 20, 2018, 5 AA 986 ), and (4) genetic testing confirmed he was the father of the child February 11, 2019 (5 AA 1025, 6 AA 1315)7, there was a

7 Los Angeles Child Support Services filed a child support administrative action on

December 11, 2018, Los Angeles County v. Thygesen (Case No.18CWCS16140). The Petition did not address any issues of child Custody and visitation. A support judgment of $0.00 was entered on May 30, 2019; the status of that case is dismissed without prejudice.

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significant change in strategy. After that point, a very concerted effort to obtain

sole custody of the child and to deny me visitation of the child was initiated by Christoffer Thygesen, his parents, and their attorneys. It appears that they changed their strategy because Christoffer wanted to avoid payment of child support, terminate my parental rights, and place the baby for adoption.

Their first legal move was to initiate a case in San Francisco, California on February 15, 2019, but they did not begin by filing a standard paternity, child custody, child support case. Instead, they initiated it as a request for a domestic violence restraining order (DVRO) (DV-100) (1 AA 14), attaching a request for sole custody and denial of visitation to me to the request (DV-105) (1 AA 21) supported by a Memorandum of Points and Authorities (1 AA 306). One California court has noted that obtaining child custody through the back-door of domestic violence orders often results in an abuse of the law and, as I will explain, that is what occurred here:

“Domestic violence orders often must issue quickly and in highly charged situations. Treating

domestic violence orders as de facto final custody determinations would unnecessarily escalate the issues at stake, ignore essential factors (such as the

children's best interest) and impose added costs

and delays”. “It also may heighten the

temptation to misuse domestic violence orders for tactical reasons” (Keith v. Superior Court

(2009) 174, Cal. App. 4th 1047, 1056).

On February 11, 2019, Christoffer received the DNA Genetic test confirming he was the father (5 AA 1025). On February 15, 2019, with no notice or warning Mr. Thygesen filed for Sole Legal and Physical Custody with “no visitation at all” to mother through an Ex-Parte Protective Order in San Francisco Superior Court (5

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AA 1025). The request for custody was denied in full, and a hearing was set for March 6, 2019. Mr. Thygesen, to bolster his chances of having his requests for exclusive custody granted, impersonated me online. The morning of March 6, 2019, a murder/suicide post threatening to “Kill Baby K”, appeared on Holysmoke.org8.

The post was made in my true name and stated I would kill myself and my child if I did not receive child support 9 (1 RA 16-29). At the hearing on March 6, 2019, I received no notice, I was not served, I had no opportunity to be heard before the California court erroneously believed it had jurisdiction and granted sole legal and physical custody of the child with a no visitation order to Christoffer Thygesen a father who had never met the child.

W.M. v. V.A., 30 Cal. App. 5th 64, 68 (Cal. Ct. App. 2018) (“We conclude

the trial court erred. The UCCJEA mandates that "[b]before a child custody determination is made," notice and an opportunity to be heard must be given to all persons entitled to notice. (§ 3425, subd. (a).)

In the afternoon of March 6, 2019, Thygesen flew into Utah with his father’s Google Security team, his California legal team, and contacted the following Utah Government Agencies: Utah Department of Child Protective Services (DCFS), Gary Bell (Utah Assistant Attorney General), Daniel Gubler (Utah Guardian et. Litem), Jason Sant (Assistant City Attorney of Spanish Fork, UT), and Sgt. Zack Adams of the Spanish Fork Police. (1 RA 15-29)

On March 7, 2019, Utah DCFS obtained a warrant for removal of the child through Judge Richard Smith III of the Fourth District Juvenile Court. At 4:00 p.m.

8 Holysmoke.org is a site where users can anonymously post reviews, opinions, on just about anything.

9 On March 6,2019, between 8:00 a.m. and 12:00 p.m a murder/suicide post appeared on Holysmoke.org under the alias “Kailin Wang”. It was later discovered after multiple civil and criminal subpoenas, search warrants, that the perpetrator was using identity-concealing technologies (VPN) to avoid revealing his true identity by making death threats under alias “Kailin Wang”. This resulted in the removal of 3.5 months old infant. (1 RA 16-29)

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MST, Spanish Fork Police and DCFS 10, stormed through the Wang’s residence and ripped the child away from his family, --- baby [K.W.] was screaming out in pain, torn away from the arms of his terrified grandmother in their Utah home (1 RA 15-29). The Thygesen families, through that suspect, conveniently timed post, believed they would be able to permanently remove him from my life.

Per DCFS Report: On March 8, 2019, Terry Thygesen (Christoffer’s Mother) stated the following in an email to DCFS (1 RA 17):

"I don't fear the longer-term custody process either given the facts in the case and also given that San Francisco PD expects the DA will be pressing felony charges against Ms. Wang very soon. I expect that Christoffer will retain sole physical and legal custody of his son forever (1 RA 17).”

On March 15 I filed a Petition for Paternity, Child Custody and Child Support in the State of Utah because the attorneys with whom I had consulted had advised me that Utah was the home state of the child (3 AA 798-830; 5 AA 1215).

C. Bifurcation of the Issues. After I was served with the March 6, Domestic

Violence Restraining Order on March 18 (3 AA 631-632) I followed the instructions with the Order and prepared and filed Form DV-120, which asks if I agree with the Temporary Order. I objected to the Order, and in the “Reasons Why I Do Not Agree” section, I objected to the jurisdiction as the first point:

“Jurisdiction is Improper” [K.W.] was born in Utah; [K.W.] is 4 months old and has been in Utah for over 3.5 months; [K.W.]’s Birth Certificate, medical care from birth to 3.5 months, has been in Utah. Utah is [K.W.]’s home state.” (3 AA 570, 575)

10 (DCFS) Department of Child Protective Services later reversed their findings of child abuse on November 8, 2019 and found Christoffer Thygesen’s allegations regarding the social media post threatening the child to be unsubstantiated, unsupported, and without merit. (See: Respondent’s Request for Judicial Notice filed with this Court on June

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This was filed on April 5 (3 AA 570). At the April 10 hearing before Judge Darwin, which I participated in by telephone, he set the next date for a hearing as May 8 (DV-116, Order on Request to Continue Hearing, 3 AA 774).

The domestic violence issue is still pending before Judge Wiley in the San Francisco Superior Court. An evidentiary hearing was scheduled on October

22-23, 2019.

However, on October 17, 2019, Mr. Thygesen had me arrested at my two-hours, twice a month Supervised Visitations in which I travel from Utah to San Francisco to attend at my expense. This was strategically planned by the Thygesen family, thus making it impossible for me to be present for my October 18, 2019 Custody Hearing in Utah. The criminal charges stem from indirect online posts complaining about Mr. Thygesen being a deadbeat dad. As a consequence of the criminal charges being identical to issues alleged in the DVRO, the parties entered into a stipulation to have the case stayed in Dept: 405 with Judge Wiley presiding on December 19, 2019 (See: FOAH filed January 30, 2020)11.

As an outrageous example of the Appellant’s efforts to prejudice this Court against me, on June 24, 2020, he filed a Request for Judicial Notice with this Court attaching the Criminal Complaint against me. As explained here, the criminal charges against me were not a part of Judge Darwin’s Order that is on appeal here and are totally irrelevant to the determination of jurisdiction, so his Request should be denied and he should be sanctioned. Furthermore, the fact that criminal proceedings are pending is inadmissible in a civil action (Ungefug v. D’Ambrosia (1967) 250 CA2d61, 69) (“The fact that an arrest had been made or that criminal proceedings are pending is inadmissible in a civil action”, citing, Burbank v.

McIntyre, 135 Cal.App. 482, 486, 27 P.2d 400; Mooren v. King, 182 Cal.App.2d

546, 551, 6 Cal.Rptr. 362; Laursen v. Tidewater Assoc. Oil Co., 123 Cal.App.2d

11 FOAH (FL-340) (par. 2) “With the agreement of Petitioner, Respondent ' s request for a stay of the DVPA proceedings based on her wish to assert her Fifth Amendment privileges given the pending criminal proceedings is GRANTED.” (filed January 30, 2020)

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813, 816, 268 P.2d 104; Thornsbury v. Thornsbury, 147 W.Va. 850, 131 S.E.2d 713, 722; Allen v. Ellis, 191 Kan. 311, 380 P.2d 408, 412; Anderson v. Saunders, 16 Wis.2d 55, 113 N.W.2d 831.)”

Admittedly, this is a long way of saying that what is NOT at issue in this appeal is the allegations of domestic violence and Christoffer Thygesen and his attorneys’ effort to prejudice and bias this court against me in their “Factual Background” are not factual. The domestic violence allegations were not a part of

Judge Darwin’s June 25 home state jurisdiction hearing (and his July 18 Order), have NOT been adjudicated as a “final order,” and are not appealable at this time. This Court should disregard ALL the false and libelous allegations regarding domestic violence in Appellant’s Opening Brief. They are irrelevant to the UCCJEA subject matter jurisdiction issue on appeal in this Court.

VI. THE ISSUES ON THIS APPEAL (ACCORDING TO THE

APPELLANT) AND WHY THE TRIAL COURT’S DECISION

SHOULD BE AFFIRMED.

In his appeal of Judge Darwin’s July 18 Order finding that under the UCCJEA Utah was the home state of my child, Christoffer Thygesen asserts three reasons why Judge Darwin’s Order should be reversed: (1) Judge Darwin had no authority to reverse his position on June 25 that California was the home state of the child made in the March 6 hearing; (2) Judge Darwin wrongly decided Utah was the home state of the child; and (3) Christoffer Thygesen was unfairly prejudiced by not having enough time to present his case in the June 25 hearing. I respond to each of these three arguments as follows:

ISSUE 1

JUDGE DARWIN HAD EVERY RIGHT AND A RESPONSIBILITY TO CHANGE HIS MARCH 6 EX-PARTE HEARING OPINION ON HOME STATE AND COURAGEOUSLY DID SO AS A RESULT OF HIS JUNE 25 EVIDENTIARY HEARING.

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The reasons that Judge Darwin was entitled to change his opinion about the home state of my child between the March 6, 2019 hearing and the June 25, 2019 hearing were as follows:

1. The March 6, 2019, Hearing Was an Ex-Parte Hearing.. I did not

appear at the March 6 hearing either in person or by an attorney (the only “appearances” as shown on the Transcript for the hearing were attorneys Darrick Chase and Erica Johnstone for the Petitioner [Appellant]). Judge Darwin fully understood that at the March 6 hearing he was acting ex-parte based only on the Declarations and Memorandum of Christoffer Thygesen and that he did not have any evidence presented by me, either in the form of briefs, an attorney representing me, or my testimony. The attorney for the Appellant [Petitioner], Darrick Chase, had requested that Judge Darwin grant an “ex-parte” temporary custody order (March 6 Transcript, p. 9, lines 10-18, 1 RT 10:10-18) and both the Appellant’s attorney and Judge Darwin continued to refer to the “ex-parte” nature of the request and the hearing multiple times during the hearing (March 6 Transcript, pp. 11, lines 5-6, 1 RT 12:5-6; p. 12, lines 2, 7; p. 12, lines 12-22, 1 RT 13:2, 7, 12-22); see also June 25 Transcript, 4 RT 106:7-21). At the March 6 hearing, Judge Darwin modified the February 15 temporary restraining order to include “temporary” custody and visitation orders, but, due to the ex-parte situation, Judge Darwin went

to great lengths to state that he was NOT making any “findings” regarding the home state of the child as follows:

March 6, 2019 Transcript of the Proceedings (pg. 22,23): “Now I am going to take off the extra section on these findings [the proposed findings on jurisdiction that Christoffer Thygesen’s attorney had drafted] because this is being done on an ex parte basis. So I am not

making any findings at this point other than he’s established and the Court already did that, found that

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temporary restraining order. I don’t want to make it

that we’ve done anything beyond that. I haven’t made any findings [on the issues of custody] There’s been no evidence, there has not been an evidentiary proceeding, so I don’t want to imply that there has. So it doesn’t change what the relief I’m giving you, I just want to make sure it’s clear that I am not making those findings” (1 RT 22: 1-28, 23: 1-28).

2. I Was Not Served for the Hearing. Christoffer Thygesen’s attorneys

admitted at the March 6 hearing that their Request for a Temporary Restraining Order had not been served on me and requested that they be allowed to serve me by e-mail. Judge Darwin ordered them to serve me by personal service (Item 9.b, 3 AA 557). Appellant admits that I was not served until March 18 (AOB, p. 20; 3 AA 631-32). Personal service on me for an ex-parte order is a requirement of the statute (Family Code § 243). Also, California Rules of Court, Rule 3.1206 (“Parties appearing at the ex-parte hearing must serve the ex-parte application on all other parties. Absent exceptional circumstances no hearing may be conducted unless such service has been made”).

3. Judge Darwin’s March 6 Order was Not a Final Order. Contrary to

Appellant’s argument (AOB p. 8), Judge Darwin’s March 6 Order was not a final order and not appealable. It was by its own terms a “temporary” order and when it was served on me on March 18, I received a package of specific instructions (DV-120 information packet) about how to challenge the order (3 AA 631, Item 4a). None of those instructions instructed me to file a motion for reconsideration or an appeal. SeeLester v. Lennane (2000) 84 CA4th 536, 561 (Temporary custody orders

are interlocutory by definition and therefore not appealable since they are made pendente lite with the intention of being superseded by a custody award after trial);

Smith v. Smith (2012) 208 CA4th 1074, 1089-1090, 146 CR3d 135, 146-147

(temporary custody and temporary DVPA restraining orders are non-appealable).

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Right to Have an Evidentiary Hearing on any Determination of Jurisdiction.

Family Code Section 3410 (b) says:

If the parties are not able to participate in the communication [between two courts both considering the UCCEA jurisdiction, in this case California and Utah] they must be given the

opportunity to present facts and legal arguments before a decision on jurisdiction is made.

On May 13, when Judge Darwin communicated with the Utah judge about UCCJEA jurisdiction, he issued a minute order which states that the “parties and counsel were not present.” (3 RT 66-77) (4 AA 916). Therefore, Section 3410(b) guaranteed me an evidentiary hearing, which Judge Darwin conducted on June 25.

Before a court decides a UCCJEA jurisdictional contest, it must afford the parties a full and fair evidentiary hearing, with adequate notice to prepare to present his or her claims for the exercise (or against the exercise) of jurisdiction. Brewer v.

Carter (2013) 218 CA4th 1312, 1318; Cole v. Super.Ct. (Cole) (1985) 173 CA3d

265, 271-272, 218 CR 905, 907-908 (failing to provide a full and fair hearing in a temporary UCCJEA jurisdiction decision was an abuse of the court’s discretion);

Haywood v. Super.Ct. (2000) 77 CA4th 949, 957, 92 CR2d 182, 188 (dismissal of

claim of home state jurisdiction without an evidentiary hearing is an abuse of discretion).

5. My Objection to Subject Matter Jurisdiction of the Court Was Made Promptly After I Was Served. After I was served with the March 6, Domestic

Violence Restraining Order on March 18, I followed the instructions with the Order (DV-109 “Notice of Court Hearing” (2 AA 309-310, 3 AA 631, Item 4) and filed Form DV-120, which asked if I agreed with the Temporary Order.12 I objected to the Order and in the “Reasons Why I Do Not Agree” section, as my first point, I objected to the jurisdiction of the court:

“Jurisdiction is Improper” [K.W.] was born

12 I was guaranteed by law this right to file a response that explains or denies the allegations

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in Utah; [K.W.] is 4 months old and has been in Utah for over 3.5 months; [K.W.]’s Birth Certificate, medical care from birth to 3.5 months, has been in Utah. Utah is [K.W.]’s home state.” (3 AA 570, 575)

This was filed on April 5 (3 AA 570). At the April 10 hearing before Judge Darwin, which I participated in by telephone, he set the next date for a hearing as May 8 (DV-116, Order on Request to Continue Hearing, 3 AA 774).

After I was able to get a San Francisco attorney, Ms. Audrey Courson, she made an appearance on my behalf and in her first pleading on May 7 she filed a “Memorandum of Points and Authorities Demonstrating This Court Lacks Jurisdiction to Issue Custody Orders” (3 AA 779-786). At the first hearing before Judge Darwin on May 8 she argued the inability of Judge Darwin and California courts to issue custody and visitation orders under the UCCJEA because Utah was the home state of the child (2 RT 30:19-28; 31:11-28; 32:1-2). On May 8, Judge Darwin agreed that the parties were entitled to an evidentiary hearing on this issue and set a date for June 25 (May 8 Transcript, pp. 26-28, 2 RT 38: 20-22; 39:27-28; 40:1-2; 55:1-5).

6. Appellant Fully Briefed His Procedural Objection Before the June 25 Hearing and Judge Darwin Rightfully Rejected the Objection. Petitioner’s

attorneys asked for and was granted the opportunity to brief this procedural issue as part of the briefing on home state jurisdiction (2 RT 38:20-22). In the briefing leading up to the June 25 hearing, Christoffer Thygesen’s attorney (Michelene Insalaco) raised all the objections that Appellant is now asserting to this Court, i.e., that procedurally Judge Darwin did not have the authority to change his mind on the home state issue because it had already been decided at the March 6 hearing and I had failed to file a motion to reconsider or a motion to vacate the judgment of the court or appeal the decision. At the beginning of the June 25 hearing, Judge Darwin rejected this procedural objection as follows:

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JUDGE DARWIN: “Here is my ruling on the threshold question that Ms.

Insalaco just raised of whether procedurally I can revisit the order I made in March regarding this being home state and so I can thus being able to issue those custody and visitation orders as I did back in March.” (4 RT 97: 4-8)

“Keep in mind that was an ex parte order. It was not a contested proceeding. So it was issued without evidence from one side, which is typical for DVROs. That's how it works. Like almost all orders issued on an ex parte basis and certainly those under the Domestic Violence Prevention Act, it's a temporary order pending contested evidentiary hearing.

That's what happened on March 6.” (4 RT 97: 9-15)

“At the evidentiary hearing, which was scheduled for, I believe, May 8, after it was continued once, the responding party may challenge

any or all components of that ex parte order -- stay away, move-out, if it's

ordered, custody, visitation. And they can challenge it on any basis on an

evidentiary basis -- legal basis and jurisdictional basis. That's what the evidentiary hearing is for.” (4 RT 97: 16-22)

“I don't think you waive your right to challenge any component of

an order that was issued ex parte by failing to file a motion for reconsideration or appeal. And that applies to whether the -- I mean, that

applies to any component of a temporary restraining order.” (4 RT 97: 23-28) “Remember, that a temporary order contains stay-away orders, personal conduct orders, and the visitation and custody orders. I was asked to come back here to have a hearing – evidentiary, contested hearing on all of those issues.” (4 RT 97: 27-28, 98: 1-3)

“So the very first time the respondent appeared -- actually, the day before, on the 7th, she said, "I will be challenging, among other things, the jurisdictional basis of that TRO." So I find she hasn't waived her right to challenge custody and visitation, either on the merits -- you know, what's in the best interest of the child -- or on jurisdictional basis on which that order was issued. She has the right to present evidence on that critical issue.” (4 RT 98: 4-7)

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