Opinion
1 CA-CV 12-0226
03-06-2013
In re the Matter of: MELODY LYNN MUNARI, Petitioner/Appellee, v. JOHN WINIARSKI and JUDI WINIARSKI, Intervenors/Appellants
Katz & Bloom P.L.C. By Norman M. Katz Attorneys for Petitioner/Appellee Marc C. Cavness PC By Marc C. Cavness Attorney for Intervenors/Appellants
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication
- Rule 28, Arizona
Rules of Civil
Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. DR1996-015476 and FC2003-009042 (Consolidated)
The Honorable Teresa A. Sanders, Judge
AFFIRMED
Katz & Bloom P.L.C.
By Norman M. Katz
Attorneys for Petitioner/Appellee
Phoenix Marc C. Cavness PC
By Marc C. Cavness
Attorney for Intervenors/Appellants
Phoenix NORRIS, Judge ¶1 This appeal arises from the family court's order dismissing John and Judi Winiarski's ("Grandparents") petition to modify visitation for lack of subject matter jurisdiction under Arizona's version of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") and its order denying their motion for new trial. On appeal, Grandparents argue Arizona retained continuing jurisdiction because the superior court had affirmed its jurisdiction in prior proceedings, and Arizona remained Child's "home state." For the following reasons, we disagree with these arguments and affirm the court's orders.
FACTS AND PROCEDURAL BACKGROUND
¶2 Grandparents are the parents of Melody Munari ("Mother"), and the maternal grandparents of her child ("Child"), born in February 1996. After Grandparents raised Child for "at least" seven years, Mother assumed parenting duties. On August 6, 2003, Grandparents petitioned for custody. Although the family court did not grant Grandparents custody, in May 2005, it awarded them visitation. Mother then began what became a history of repeatedly frustrating the court's visitation orders, which this court discussed in prior decisions. See Munari v. Winiarski, 1 CA-CV 10-0025, 2011 WL 94187 (Ariz. App. Jan. 6, 2011) (mem. decision); Munari v. Hotham, 217 Ariz. 599, 177 P.3d 860 (App. 2008). ¶3 In February 2006, Mother moved to relocate with Child to Missouri. The family court found Mother in contempt for violating the May 2005 visitation order, but agreed she could "purge" her contempt by allowing Grandparents' visitation, and contingent on her compliance with a modified visitation schedule, the court approved her request to relocate to Missouri. In March 2006, Mother moved to Missouri with Child and continued to deny Grandparents' visitation. ¶4 In July 2006, Grandparents petitioned to revoke the court's permission allowing Mother to relocate with Child. In an August 30, 2006 visitation order, the court held Mother in contempt for non-compliance with the February 2006 visitation order, revoked its conditional permission to relocate, and entered a monetary sanction against Mother. The court also affirmed Arizona was Child's home state within the meaning of the UCCJEA, adopted in Arizona as Arizona Revised Statutes ("A.R.S.") sections 25-1001 to -1067 (2007, Supp. 2012). Subsequently, the family court denied Mother's motion to set aside the contempt findings and revocation of the relocation permission. ¶5 In November 2007, Mother moved from Missouri to California. In February 2009, Grandparents petitioned to modify their visitation. In response, Mother moved to suspend Grandparents' visitation and transfer jurisdiction to California, asserting California had become Child's home state. The family court refused to transfer jurisdiction to California and ruled jurisdiction "shall remain in the state of Arizona." It also modified the August 2006 visitation order and granted Grandparents additional visitation. ¶6 Subsequently, Mother moved from California to Georgia. On July 6, 2011, Grandparents filed a "Petition for Order to Appear" in which they requested, among other matters, to modify visitation ("July 2011 petition"). In response, Mother moved to dismiss Grandparents' petition for lack of subject matter jurisdiction under A.R.S. § 25-1032 (2007), the statute addressing exclusive, continuing jurisdiction under the UCCJEA, arguing Georgia, not Arizona, had jurisdiction to decide Grandparents' July 2011 petition. ¶7 On December 15, 2011, the family court granted Mother's motion to dismiss. It found Arizona was no longer Child's home state, Child and his parents had not resided in Arizona for more than five years, and no other person "acting as a parent" as that term is defined by the UCCJEA resided in Arizona. Accordingly, it concluded it no longer had exclusive, continuing jurisdiction to decide Grandparents' July 2011 petition. The family court subsequently denied Grandparents' motion for new trial.
Pursuant to A.R.S. § 25-1002(7)(a) (Supp. 2012), a child's "[h]ome state" is defined as:
The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding, including any period during which that person is temporarily absent from that state.
This court affirmed the family court's findings of contempt and sanctions against Mother in Munari v. Hotham, 217 Ariz. 599, 606, ¶ 29, 177 P.3d 860, 867 (App. 2008).
This court affirmed the superior court's order modifying Grandparents' visitation in Munari, 1 CA-CV 10-0025, at 4, ¶ 21.
"Person acting as a parent" as defined under A.R.S. § 25-1002(13) means a person, other than a parent, who both
(a) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding.
(b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
DISCUSSION
¶8 On appeal, Grandparents argue Arizona remained Child's home state, thereby preserving the family court's jurisdiction over their July 2011 petition under the UCCJEA. Whether a court has subject matter jurisdiction under the UCCJEA is a question of law we review de novo. See In re Marriage of Tonnessen, 189 Ariz. 225, 226, 941 P.2d 237, 238 (App. 1997). ¶9 As an initial matter, we note this appeal involves a modification proceeding because Grandparents sought to modify the visitation orders the family court previously entered, supra ¶¶ 2-5 (collectively "visitation orders"). See A.R.S. § 25-1002(11) ("Modification means a child custody determination that changes, replaces, supersedes or is otherwise made after a previous determination concerning the same child"). An order granting or modifying Grandparents' visitation falls within the scope of the UCCJEA. See A.R.S. § 25-1002(3)(a) ("Child custody determination" includes "visitation with respect to a child"). Under A.R.S. § 25-1032(A), a court has exclusive, continuing jurisdiction to modify a child custody decree it previously entered -- as here, the visitation orders -- until one of the following two events occurs:
1. A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection¶10 Here, the family court found, and Grandparents did not present any evidence to the contrary, that at the time they filed the July 2011 petition, neither Mother nor Child had resided in Arizona for over five years, and Grandparents did not qualify as persons acting as parents to Child. Therefore, we agree with the family court that Arizona does not have exclusive, continuing jurisdiction to decide Grandparents' July 2011 petition because "the child, the child's parents and any person acting as a parent" did not reside in Arizona. See A.R.S. § 25-1032(A)(2); In re Marriage of Nurie, 98 Cal. Rptr. 3d 200, 220 (Cal. Dist. Ct. App. 2009) ("a judicial determination that all parties no longer reside in the decree state is required to divest that state of continuing, exclusive jurisdiction"). ¶11 Our inquiry, however, does not end here. Under A.R.S. § 25-1032(B), a court may modify a custody order for which it lacks exclusive, continuing jurisdiction "if it has jurisdiction to make an initial determination" under A.R.S. § 25-1031. See Unif. Child Custody Jurisdiction & Enforcement Act ("Uniform Act") § 202 cmt. (1997) ("once a State has lost exclusive, continuing jurisdiction, it can modify its own determination only if it has jurisdiction under the standards" pertaining to initial child custody determination). Specifically, A.R.S. § 25-1031(A) provides four bases -- home state, significant connection, more appropriate forum, and what has been called "vacuum jurisdiction" -- to establish initial jurisdiction:
with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships.
2. A court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state.
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.¶12 Pursuant to A.R.S. § 25-1031(A)(1), an Arizona court would have initial jurisdiction if Arizona was Child's home state "on the date of the commencement of the proceeding," or had been Child's home state "within six months before the commencement of the proceeding" and a parent or person acting as a parent continued to live in Arizona. In the modification context, the relevant "proceeding" for the purpose of determining the "date of the commencement of the proceeding" is Grandparents' July 2011 petition. See Friedman v. Eighth Judicial Dist. Court of State, ex rel. Cnty of Clark, 264 P.3d 1161, 1167 (Nev. 2011) (requests to modify existing custody and visitation order initiated new proceeding that required fresh jurisdictional analysis under Nevada's version of UCCJEA); Sidell v. Sidell, 18 A.3d 499, 506 (R.I. 2011) (in custody dispute between parents, "commencement of the proceeding" means "the recent, post-divorce proceeding" concerning child's custody; to hold "the proceeding" refers to the original dissolution action would confer "perpetual jurisdiction" over custody matters contrary to the underlying purpose of Rhode Island's version of UCCJEA). Therefore, we examine whether the family court had home state jurisdiction under the UCCJEA when Grandparents initiated the modification proceeding in July 2011. At the time of Grandparents' July 2011 petition, Arizona was not Child's home state, see A.R.S. § 25-1002(7)(a), quoted in supra footnote 1; and within six months prior to that petition, Arizona had not been Child's home state, and no parent or a person acting as a parent lived in Arizona. Therefore, the family court did not have home state jurisdiction to decide the July 2011 petition. ¶13 Nevertheless, Grandparents argue Arizona had home state jurisdiction because the family court had previously exercised jurisdiction despite Mother and Child's moves to Missouri and California, and these prior determinations thus precluded it from later determining Arizona was no longer Child's home state when Mother and Child relocated to Georgia. We disagree. Under the UCCJEA, jurisdiction is a fluid concept, not a static one, and a state with initial and continuing jurisdiction may nonetheless lose subject matter jurisdiction due to changing circumstances; sections 25-1031 and -1032, on their face, recognize this. Therefore, the family court's previous jurisdiction rulings did not bar it from re-determining whether Arizona was still Child's home state, and thus whether it had jurisdiction to modify Grandparents' visitation. ¶14 Grandparents also argue Arizona remained Child's home state because of their relationship with Child, their presence in Arizona, and their efforts to enforce the visitation orders against Mother. This argument, however, ignores the statutory requirements for home state jurisdiction under A.R.S. § 25-1031(A)(1). See supra ¶ 12. ¶15 Relying on Mangan v. Mangan, 227 Ariz. 346, 258 P.3d 164 (App. 2011), Grandparents further argue the mere "passage of time cannot undermine the [c]ourt's home state jurisdiction" when here, as in Mangan, Mother has interfered with visitation by moving out of state and disobeying the family court's visitation orders. Grandparents' reliance on Mangan is misplaced because in that case, the father -- whose visitation the mother had denied -- continued to reside in Arizona, and accordingly, the court found it retained exclusive, continuing jurisdiction to modify the initial child custody order. Id. at 351, ¶ 23, 258 P.3d at 169. ¶16 By contrast, here, no parent or person acting as a parent resided in Arizona at the time of Grandparents' July 2011 petition, and their efforts to enforce the visitation orders did not give the family court jurisdiction under the UCCJEA. See Uniform Act § 201 cmt. 1 (Uniform Act "bases [initial home state] jurisdiction on the parent and child or person acting as a parent and child relationship without regard to grandparents or other potential seekers of custody or visitation"); § 202 cmt. ("a remaining grandparent or other third party who claims a right to visitation, should not suffice to confer exclusive, continuing jurisdiction on the State that made the original custody determination after the departure of the child, the parents and any person acting as a parent"). ¶17 Therefore, the family court did not have subject matter jurisdiction over Grandparents' July 2011 petition because it had lost exclusive, continuing jurisdiction under A.R.S. § 25-1032(A), and Arizona was no longer Child's home state under A.R.S. § 25-1031(A)(1).
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.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.
(b) Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships.
4. A court of any other state would not have jurisdiction under the criteria specified in paragraph 1, 2 or 3.
See supra footnote 4 for the definition of "[p]erson acting as a parent" under the UCCJEA. The family court found that although Grandparents had acted as Child's parents in the past, they were not acting as parents at the time of the July 2011 petition because Child had been in Mother's physical custody for several years, and neither Mother nor Child had lived in Arizona for over five years.
"Vacuum jurisdiction" means if no court has home state, significant connection, or more appropriate jurisdiction, an alternate court may fill the vacuum and exercise jurisdiction over an initial custody proceeding. A.R.S. § 25-1031(A)(4).
Grandparents have not argued the family court retained jurisdiction under A.R.S. § 25-1031(A)(2)-(4).
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CONCLUSION
¶18 For the foregoing reasons, we affirm the family court's order dismissing Grandparents' July 2011 petition to modify visitation and its order denying their motion for new trial. As the successful party on appeal, we award Mother her costs on appeal. A.R.S. § 12-341 (2003). In the exercise of our discretion, we deny Mother's request for attorneys' fees on appeal under A.R.S. § 25-324 (Supp. 2012).
______________________
PATRICIA K. NORRIS, Presiding Judge
CONCURRING: ______________________
ANDREW W. GOULD, Judge
______________________
RANDALL M. HOWE, Judge
Although the Arizona Legislature amended certain statutes cited in this decision after the family court dismissed Grandparents' petition to modify visitation, the revisions are immaterial. Thus, we cite to the current version of these statutes.