Opinion
1 CA-CV 24-0078 FC 1 CA-CV 24-0129 FC
10-31-2024
BRITTNEY SCHUBERT, Petitioner/Appellee, v. ANDREW RYMAN, Respondent/Appellant.
Colburn Hintze Maletta, PLLC, Phoenix By Henry Alzate Counsel for Respondent/Appellant Brittney Schubert, Phoenix Petitioner/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2022-004514 The Honorable Patricia A. Starr, Judge
Colburn Hintze Maletta, PLLC, Phoenix By Henry Alzate Counsel for Respondent/Appellant
Brittney Schubert, Phoenix Petitioner/Appellee
Judge Andrew M. Jacobs delivered the decision of the Court, in which Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.
MEMORANDUM DECISION
JACOBS, JUDGE
¶1 Andrew Ryman ("Father") appeals the superior court's denial of his motion to set aside an order determining paternity, legal decisionmaking, parenting time, and child support as to his minor child M.S. Father also appeals the court's award of attorney's fees and costs to Brittney Schubert ("Mother"). Because the superior court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), a defect that cannot be waived, we vacate the court's order and its award of fees and costs to Mother.
FACTS AND PROCEDURAL HISTORY
A. M.S. Is Born in South Dakota Six Weeks Before Mother and Father Separate, and Mother Takes M.S. to Arizona.
¶2 On April 15, 2022, M.S. was born in South Dakota to Father and Mother. Father and Mother were then in a "committed and long-term relationship" and lived in South Dakota. One month later, Father and Mother ended their relationship. Seeking family support in Arizona, Mother left South Dakota on May 29, 2022 with M.S. and her other two children, arriving in Arizona two days later. Father stayed in South Dakota. It is disputed whether Mother intended this trip to be a temporary visit or a permanent move.
B. Father and Mother File Competing Custody Petitions.
¶3 Sometime after Mother came to Arizona, Father filed a Complaint for Custody, Visitation, Paternity and Support in South Dakota ("the South Dakota Petition"). Father served the South Dakota Petition on Mother on July 14, 2022. Mother filed a Petition for Court Order for Paternity, Legal Decision-Making, Parenting Time, and Child Support ("the Arizona Petition") in Maricopa County Superior Court on July 19, 2022.
¶4 In September 2022, Mother filed an Expedited Motion for UCCJEA Conference, arguing that South Dakota could claim jurisdiction over the matter given that M.S. was born there and lived there for a time. After some status conferences, on January 27, 2023, the Arizona and South Dakota courts held a joint conference under the UCCJEA. Father argued South Dakota should have jurisdiction, while Mother argued that Arizona should have jurisdiction. Both judges, with the consent of the parties, set an evidentiary hearing on jurisdiction, ultimately set for May 2023.
C. The Arizona Court Finds Father Waived Jurisdiction.
¶5 The morning of that evidentiary hearing, Father's South Dakota counsel emailed the Arizona court indicating Father would "not be proceeding with the UCCJEA Conference and understands that jurisdiction will go to Arizona." Neither Father nor his South Dakota counsel appeared at the evidentiary hearing. The Arizona court acknowledged Father was likely "confused," noting that when the Arizona judge's assistant spoke with Father shortly before the hearing, he indicated his counsel would appear for him. The Arizona court treated jurisdiction as "settled" and took Father's e-mail as a "waiver of the hearing." The South Dakota court did not participate in that hearing.
D. The Arizona Court Enters a Child Custody Order After a Hearing.
¶6 Following an August 23, 2023 hearing, at which both Mother and Father testified, the Arizona court issued a partial final judgment on October 17, 2023 under Rule of Family Law Procedure ("Family Rule") 78(c) awarding Mother and Father joint legal decision-making authority. The judgment designated Mother as the primary residential parent, granted Father visitation rights, and ordered Father to pay monthly child support and Mother's reasonable attorney's fees. The court found "Arizona was the child's home state on the date the petition was filed or was the child's home state within six months before the filing and the child is absent from this state but a parent or person acting as a parent continues to live in this state." The court later issued a final judgment under Family Rule 78(c) awarding Mother $5,344 in fees and costs.
E. The Arizona Court Denies Father's Motion to Set Aside, and Father Appeals.
¶7 On November 17, 2023, Father filed a Verified Rule 85 Motion to Set Aside the Order for Paternity, Legal Decision Making, Parenting Time and Child Support of 10/17/2023 ("the Motion to Set Aside"). He argued: (1) Arizona lacked personal jurisdiction over Father; and (2) he did not waive jurisdiction because his South Dakota attorney had no authority to "waive Father's [c]onstitutional rights in Arizona."
¶8 The court denied Father's Motion to Set Aside, stating he waived the subject matter jurisdiction argument. And absent waiver, the court noted Father "forfeited his right to contest jurisdiction" by failing to appear at the May 2023 evidentiary hearing. The court also construed the Motion to Set Aside as a response to Mother's Application for Attorney's Fees and Costs and affirmed the monetary award to Mother, again citing Father's waiver of jurisdiction.
¶9 Father timely appealed these orders. We consolidated these appeals and have jurisdiction. Ariz. Const., art. 6, § 9; A.R.S. § 25-1064.
DISCUSSION
¶10 We review de novo whether the superior court had subject matter jurisdiction under the UCCJEA. Gutierrez v. Fox, 242 Ariz. 259, 264 ¶ 17 (App. 2017); see also Willie G. v. ADES, 211 Ariz. 231, 233 ¶ 8 (App. 2005) (stating this Court reviews de novo matters of statutory interpretation and mixed questions of law and fact). To the extent jurisdiction depends on "disputed facts, we will accept the court's findings if they are supported by reasonable evidence." Tracy D. v. Dep't of Child Safety, 252 Ariz. 425, 429 ¶ 10 (App. 2021).
¶11 Father argues the superior court erred in finding Arizona, rather than South Dakota, had jurisdiction under the UCCJEA. He argues subject matter jurisdiction cannot be waived. As explained below, Father is correct.
I. Father Did Not Waive Subject Matter Jurisdiction.
¶12 While the Motion to Set Aside challenged the court's personal jurisdiction, Father now challenges the court's subject matter jurisdiction. While challenges to personal jurisdiction can be waived, challenges to subject matter jurisdiction cannot. Ali v. Ali, 253 Ariz. 102, 104 n.1 (App. 2022) ("[U]nder Arizona law, a party never waives challenges to a court's subject matter jurisdiction.") (internal citations omitted). They may thus be raised at any stage of a matter. Bruce v. State, 126 Ariz. 271, 272 (1980). As such, Father did not waive his challenge to the superior court's subject matter jurisdiction.
II. Arizona's Courts Lack Subject Matter Jurisdiction of this Matter Under the UCCJEA.
¶13 The UCCJEA, enacted in both Arizona, A.R.S. §§ 25-1001 to-1067, and South Dakota, S.D. CODIFIED LAWS §§ 26-5b-101 to -405, gives state courts jurisdiction over initial child custody determinations only if one of the following is 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 absent from this state but a parent or person acting as a parent continues to live in this state.
2. A court of another state does not have jurisdiction under paragraph 1 or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under § 25-1037 or 25-1038 and both of the following are true:
(a) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships.
3. All courts having jurisdiction under paragraph 1 or 2 have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under § 25-1037 or 25-1038.
4. A court of any other state would not have jurisdiction under the criteria specified in paragraph 1, 2 or 3.A.R.S. § 25-1031(A); accord S.D. CODIFIED LAWS § 26-5B-201. These scenarios provide "the exclusive jurisdictional basis" for child custody determinations. A.R.S. § 25-1031(B); accord S.D. CODIFIED LAWS § 26-5B-201(b).
¶14 As noted above, the superior court's jurisdictional finding turned on the finding that "Arizona was the child's home state[.]" That finding, however, is not supported by the record.
A. Arizona Was Not the Child's Home State.
¶15 The first clause of A.R.S. § 25-1031(A)(1) grants a state court jurisdiction to make an initial child custody determination if the state is the home state of the child at the commencement of the proceeding. The second clause grants jurisdiction if the state was the child's home state within six months of the petition's filing and the child no longer lives in the state but a parent or a person acting as a parent continues to live in the state. Id. The UCCJEA defines the "home state" of children less than 6 months old as "the state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state." A.R.S. § 25-1002(7)(b). The statute defines "commencement" as "the filing of the first pleading in a proceeding." A.R.S. § 25-1002(5).
¶16 Under the UCCJEA, Arizona could not have been M.S.'s home state when the competing petitions were filed on July 14 and 19, 2022 because M.S. did not live in Arizona from birth. See Tracy D., 252 Ariz. at 431 ¶ 19 (holding that Arizona was not a child's home state because the child did not live in Arizona from birth when the child was born in Indiana and lived there for seven weeks before moving to Arizona). Mother and Father both testified they were living in South Dakota when M.S. was born, and that M.S. lived in South Dakota for at least his first six weeks of life.
¶17 Mother testified she and M.S. arrived in Arizona on May 31, 2022 and remained in Arizona through July. Thus, M.S. did not live in Arizona from birth, and Arizona was not his home state under A.R.S. § 25-1002(7)(b). The Arizona court therefore lacked subject matter jurisdiction under both clauses of A.R.S. § 25-1031(A)(1).
B. The Arizona Court Did Not Have Jurisdiction Under A.R.S. § 25-1031(A)(2)-(4) Because South Dakota Had Jurisdiction Under A.R.S. § 25-1031(A)(1), and the Record Does Not Show That South Dakota Declined to Exercise Jurisdiction.
¶18 A.R.S. § 25-1031(A)(2) grants Arizona courts jurisdiction to make an initial child custody determination if "another state does not have jurisdiction under" A.R.S. § 25-1031(A)(1). It also grants jurisdiction if the child's home state "declined to exercise jurisdiction" and the child has a "significant connection" to Arizona and "substantial evidence is available" in Arizona. Id. A.R.S. § 25-1031(A)(3) grants jurisdiction if the home state declines to exercise its jurisdiction because Arizona "is the more appropriate forum."
¶19 Thus, our next step is to determine whether South Dakota had jurisdiction under A.R.S. § 25-1031(A)(1) or (2), and if it did, whether it declined to exercise that jurisdiction. Father argues South Dakota had jurisdiction and did not relinquish it. Father is correct.
1. South Dakota Had Jurisdiction Under the Second Clause of A.R.S. § 25-1031(A)(1) Because It Was M.S.'s Home State Within Six Months Before Father Filed His Petition, M.S. Was No Longer in South Dakota at That Time, and Father Remained There.
¶20 South Dakota had jurisdiction if it was M.S.'s home state within 6 months before filing and M.S. was absent from South Dakota while a parent remained there. A.R.S. § 25-1031(A)(1); accord S.D. CODIFIED LAWS § 26-5B-201(a)(1). Those were the facts here. M.S. lived in South Dakota for the first six weeks of his life - from April 15 through May 29, 2022. A.R.S. § 25-1002(7)(b) (Home state of child less than 6 months old is "[t]he state in which the child lived from birth with a parent[.]"); accord S.D. CODIFIED LAWS § 26-5B-102(7) (Home state of child less than 6 months is "the state in which the child lived from birth with [parent or a person acting as a parent]. A period of temporary absence of any of the mentioned persons is part of the period."). Father filed the South Dakota Petition less than six months later, in July 2022, and remained in South Dakota while M.S. was in Arizona. Given these facts, South Dakota had jurisdiction under the second clause of A.R.S. § 25-1031(A)(1). Gutierrez, 242 Ariz. at 266 ¶ 23 (holding Arizona had jurisdiction where child was born in Arizona and lived here for two months before mother moved child to Wisconsin, and father remained in Arizona when he filed petitions two months later); S.D. CODIFIED LAWS § 26-5B-201(a)(1).
2. The Record Does Not Show That South Dakota Declined to Exercise Jurisdiction.
¶21 Under the UCCJEA, Arizona has jurisdiction to make an initial child custody determination even though another state (here, South Dakota) has jurisdiction, if that other state "declines to exercise jurisdiction[,]" and the child and at least one parent have a "significant connection" with Arizona and "[s]ubstantial evidence is available" here. A.R.S. § 25-1031(A)(2). It also permits Arizona to exercise jurisdiction if another state (again, South Dakota) declines to exercise its jurisdiction because Arizona "is the more appropriate forum[.]" A.R.S. § 25-1031(A)(3). But the record contains no order, transcript, or minute entry from the South Dakota court showing it declined to exercise jurisdiction. As such, Arizona lacks jurisdiction under both A.R.S. § 25-1031(A)(2) and (3).
CONCLUSION
¶22 For these reasons, we vacate the superior court's January 10, 2024 order denying Father's Motion to Set Aside and its December 11, 2023 order granting fees and costs to Mother. Father requests his fees in this appeal under A.R.S. § 25-324(A). In our discretion, we deny Father's request.