Opinion
1 CA-CV 24-0135 FC
11-26-2024
In re the Matter of: ERIN MILEY, Petitioner/Appellant, v. CURTIS PHELPS, Respondent/Appellee.
Colburn Hintze Maletta, PLLC, Phoenix By Darin R. Colburn Counsel for Petitioner/Appellant Antol & Sherman, P.C., Flagstaff By Neil Sherman Counsel for Respondent/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County No. V1300DO202180237 The Honorable Linda Wallace, Judge Pro Tempore VACATED AND REMANDED
Colburn Hintze Maletta, PLLC, Phoenix
By Darin R. Colburn
Counsel for Petitioner/Appellant
Antol & Sherman, P.C., Flagstaff
By Neil Sherman
Counsel for Respondent/Appellee
Judge D. Steven Williams delivered the Court's decision, in which Presiding Judge Michael J. Brown and Judge Daniel J. Kiley joined.
MEMORANDUM DECISION
WILLIAMS, JUDGE:
¶1 Erin Miley ("Mother") appeals the superior court's dismissal of her petition for legal decision-making authority, parenting time, and child support, as well as the court's determination that Arizona is an inconvenient forum. For the following reasons, we vacate and remand.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 As relayed in Miley v. Phelps (Miley I), 1 CA-CV 22-0118 FC, 2022 WL 4102878 (Ariz. App. Sep. 8, 2022) (mem. decision), Mother and Curtis Phelps ("Father") never married but share two minor children-one born in New Hampshire in 2017, the other in Arizona in 2018. The parties and the children historically split their time between the two states. In August 2021, while the family was in New Hampshire, Father petitioned for legal decision-making authority. The next day, Mother took the children back to Arizona, where she petitioned for legal decision-making authority, parenting time, and child support. After her return to Arizona, Father served Mother with his petition, as well as a New Hampshire court order that the children remain in that state.
¶3 The Arizona and New Hampshire courts conducted a Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") conference to determine which state had jurisdiction over the matter. Neither the parties nor their attorneys were invited to participate. The two courts determined that New Hampshire "ha[d] the greater claim to jurisdiction." Consequently, the Arizona superior court dismissed Mother's petition and case. Mother appealed to this court.
¶4 Because, inter alia, the superior court "did not provide the parties an opportunity to present facts and legal argument" before determining which state was the children's home state, on appeal we vacated the court's dismissal order and remanded "to allow the [superior] court to hold a hearing pursuant to the UCCJEA and make additional findings and conclusions" in determining which state was the children's home state. Miley I, 1 CA-CV 22-0118 FC, at *2-3, ¶¶ 7, 11. This court issued that decision in September 2022.
¶5 Meanwhile, the proceedings continued in New Hampshire while the appeal was pending in Arizona. In December 2021, the New Hampshire court ordered Mother to return to that state with the children. Mother complied, though she disagreed with the jurisdictional rulings made to that point and communicated that she did not intend to be a permanent New Hampshire resident. The New Hampshire court continued issuing additional temporary orders including forbidding Mother from returning to Arizona with the children.
¶6 It wasn't until May 2023 that the superior court held a UCCJEA evidentiary hearing with the parties and their attorneys participating, as well as the New Hampshire court. At the hearing, both courts agreed that Arizona was the children's home state. Mother's attorney argued that since New Hampshire lacked jurisdiction, the New Hampshire court should vacate its temporary orders, which would permit Mother and the children to return to Arizona. The New Hampshire court refused until it could "make sure that there's orders in place in Arizona." Consequently, Mother and the children remained in New Hampshire.
¶7 Mother then moved the superior court to issue temporary orders. Father objected, arguing that under A.R.S. § 25-1037 Arizona was an inconvenient forum "and jurisdiction should be declined and reinvested" with New Hampshire because the parties had continuously resided there since December 2021 -the month the New Hampshire court ordered Mother's return to that state with the children.
¶8 In August 2023, the superior court held an evidentiary hearing on (1) Mother's motion for temporary orders and (2) Father's motion for inconvenient forum. The court concluded that Arizona was an inconvenient forum and that New Hampshire was a more appropriate forum."[R]elying heavily" on A.R.S. § 25-1037(B)(6)-"[t]he nature and location of the evidence required to resolve the pending litigation" -the court concluded that New Hampshire was the more appropriate forum because "[t]he majority of non-relative witnesses are in New Hampshire," including the "children's teachers, daycare providers, counselors and medical and dental professionals . . . [that] may be witnesses." Months later, following a status update about the proceedings in New Hampshire, the superior court dismissed the case. This appeal followed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(2).
DISCUSSION
¶9 Both Arizona and New Hampshire, along with 47 other states, have adopted the UCCJEA as the law governing multi-state custody disputes. Sha'quia G. v. Dept. of Child Safety, 251 Ariz. 212, 214, ¶ 9 (App. 2021) (citation omitted). The UCCJEA, codified at A.R.S. §§ 25-1001 to -1067, is "'designed to prevent competing and conflicting custody orders by courts in different jurisdictions' that could result in 'unilateral removals of children from or to various jurisdictions.'" Phillip G. v. Korbin-Steiner, 256 Ariz. 519, 523, ¶ 20 (App. 2023) (quoting Angel B. v. Vanessa J., 234 Ariz. 69, 72, ¶ 8 (App. 2014)). The UCCJEA gives exclusive jurisdiction to a child's "home state," defined as the state a child resided in for six consecutive months "within six months before the commencement of the [child custody] proceeding." Welch-Doden v. Roberts, 202 Ariz. 201, 208-09, ¶ 33 (App. 2002); see A.R.S. § 25-1031(A)(1).
¶10 It is undisputed that Arizona is the children's home state. Even so, the home state may decline to exercise jurisdiction if another state is deemed the more appropriate forum. A.R.S. §§ 25-1031(A)(2) and -1037. Before determining whether another forum is more appropriate, the superior court must consider "all relevant factors," including, inter alia, (1) "[t]he length of time the child[ren] ha[ve] resided out of state" and, as noted supra ¶ 8, (2) "[t]he nature and location of the evidence required to resolve the pending litigation." A.R.S. § 25-1037(B)(1-8).
¶11 Mother contends that A.R.S. § 25-1037 required the superior court to consider the circumstances that existed at the time she first petitioned for legal decision-making authority and parenting time in Arizona, not the circumstances that existed at the time the court ultimately considered the inconvenient forum issue. We disagree.
¶12 We review issues of law, including statutory interpretation and a court's jurisdictional authority, de novo. Holly C. v. Tohono O'odham Nation, 247 Ariz. 495, 505, ¶ 26 (App. 2019); Gutierrez v. Fox, 242 Ariz. 259, 266, ¶ 28 (App. 2017). But we review a court's ruling on inconvenient forum under A.R.S. § 25-1037 for abuse of discretion. Hubert v. Carmony, 251 Ariz. 531, 533, ¶ 7 (App. 2021).
¶13 Section 25-1037(A) states that the court:
that has jurisdiction under [the UCCJEA] to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a
more appropriate forum. The issue of inconvenient forum may be raised on motion of a party, the court's own motion or request of another court.(Emphasis added).
¶14 Nothing in the statute's language confines the court's analysis to the circumstances that existed at the time a custody dispute was first filed. To the contrary, the statute gives the court authority to make an inconvenient forum finding "at any time." See Halili v. Ramnishta, 848 S.E.2d 542, 550-51 (N.C. App. 2020) (interpreting the North Carolina UCCJEA equivalent of Arizona's A.R.S. § 25-1037(A)-(B) to not limit a trial court's consideration of whether the home state "is an inconvenient forum only at the time of a plaintiff filing its complaint, but rather the trial court may consider whether it is an inconvenient forum 'under the circumstances' as they exist after the filing of a complaint.").
¶15 But our analysis does not end there. "No child should be forcibly moved across the country in the absence of jurisdiction, and no [] court [] should use the child's resulting presence to later justify jurisdiction." Phillip G., 256 Ariz. at 525, ¶ 30. Yet that is exactly what happened here.
¶16 Mother and the children were residing in Arizona when Mother petitioned the superior court for a legal decision-making, parenting time, and child support order. But the superior court and the New Hampshire court erroneously determined that New Hampshire had jurisdiction over the matter. And, upon order of the New Hampshire court, Mother and the children returned to New Hampshire (against Mother's wishes) in December 2021. Thereafter, the New Hampshire court refused to allow Mother or the children to return to Arizona.
¶17 Once this court remanded the home state jurisdiction issue to the superior court for a proper UCCJEA determination, it took the court more than eight additional months to conclude that Arizona, not New Hampshire, had jurisdiction. The New Hampshire court agreed. Remarkably though, the New Hampshire court refused to vacate its orders (that required Mother and the children to stay in New Hampshire) which it had no jurisdiction to issue in the first instance. When a court acts without jurisdiction, any resulting orders are void. Martin v. Martin, 182 Ariz. 11, 15 (App. 1994); Denia L. v. Dep't of Child Safety, 248 Ariz. 36, 39, ¶ 11 (App. 2019); Hemenway v. Hemenway, 992 A.2d 575, 684 (N.H. 2010).
¶18 When the New Hampshire court refused to vacate its void orders, Mother and the children remained in that state despite Mother's desire to return to Arizona with the children. By that time, more than a year and a half had passed. And by the time the superior court denied Mother's motion for temporary orders in Arizona, instead opting to find that New Hampshire was a more appropriate forum, Mother's time in New Hampshire with the children continued to accrue. Mother and the children have now lived continuously in New Hampshire for nearly three years since first ordered back to that state.
¶19 As noted supra ¶ 8, the superior court's basis for finding New Hampshire to be the more appropriate forum was "heavily" based upon the location of non-relative witnesses in New Hampshire, including the "children's teachers, daycare providers, counselors and medical and dental professionals [that] may be witnesses." But the children would have never had New Hampshire teachers, or daycare providers, or counselors, or medical or dental professionals but for New Hampshire's void orders purporting to require Mother and the children to return and remain there. Had the void orders never been issued, in all likelihood the children's teachers, and daycare providers, and counselors, and medical and dental professionals would have all been located in Arizona. Through error and delay, the New Hampshire and Arizona courts created the very factors the superior court relied upon in finding New Hampshire to be the more appropriate forum. That cannot be. Phillip G., 256 Ariz. at 525, ¶ 30 ("Using a child's involuntary presence due to void orders to self-generate jurisdiction is inconsistent, not only with the text and purpose of the UCCJEA, but with foundational principles of liberty and due process.").
¶20 Consequently, we vacate the superior court's dismissal order, as well as its order finding New Hampshire to be a more appropriate forum. We further remand the matter to the superior court to issue orders on Mother's underlying petition for legal decision-making authority, parenting time, and child support, as well as any other outstanding related matters.
¶21 Both parties request an award of attorneys' fees. We deny Father's request. In the exercise of our discretion, and after considering the parties' financial resources and reasonableness of positions taken, we award Mother her reasonable attorneys' fees and costs under A.R.S. § 25-324 upon compliance with ARCAP 21.
CONCLUSION
¶22 For the foregoing reasons, we vacate the superior court's dismissal and inconvenient forum orders, and remand for further proceedings consistent with this decision.