Antonetti v. Westerhausen

• Decision Date: 12 January 2023
• Docket Number: 1 CA-SA 22-0205
• Parties: ROBERTO ANTONETTI, Petitioner, v. THE HONORABLE TRACEY WESTERHAUSEN, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of Maricopa, Respondent Judge, ALISON MERCEDES KLINGER, Real Party in Interest.
• Court: Arizona Court of Appeals

ROBERTO ANTONETTI, Petitioner, v. THE HONORABLE TRACEY WESTERHAUSEN, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of Maricopa, Respondent Judge, ALISON MERCEDES KLINGER, Real Party in Interest.

No. 1 CA-SA 22-0205

Court of Appeals of Arizona, First Division

January 12, 2023

Petition for Special Action from the Superior Court in Maricopa County No. FC2020-006551 The Honorable Tracey Westerhausen, Judge

Ellsworth Family Law PC, Mesa

By Glenn D. Halterman

Counsel for Petitioner

Cantor Law Group PLLC, Phoenix

By Travis Owen

Counsel for Real Party in Interest Judge Jennifer B. Campbell delivered the opinion of the Court, in which Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

OPINION

CAMPBELL, JUDGE

¶1 Petitioner Roberto Antonetti (Father) seeks special action relief, challenging a superior court order exercising subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), A.R.S. §§ 25-1001 through -1067, over Alison Klinger's (Mother) petition to establish paternity, legal decision-making, parenting time, and child support for the parties' child. Because the totality of the circumstances reflects that the child permanently relocated to Arizona from his former home state, the superior court properly exercised subject matter jurisdiction over the child custody case. Accordingly, we accept special action jurisdiction but deny relief.

BACKGROUND

¶2 Father, an Italian citizen, moved to Tunisia in 2007. Mother, an American citizen, moved to Tunisia in 2013. In December 2013, Father and Mother began a romantic relationship. In March 2018, their son was born in Tunisia, acquiring dual Italian and American citizenship through his parents.

¶3 In February 2020, the parties traveled with the child to Italy for a vacation. While there, the Covid-19 pandemic struck the country, and by the end of the parties' planned vacation, the Italian government had imposed travel restrictions. Nonetheless, Father and Mother could have returned to Tunisia with the child at that time, but they decided to remain in Italy. Shortly thereafter, Tunisia closed its borders to international travel.

¶4 On April 13, 2020, Mother flew with the child to the United States on a repatriation flight reserved only for United States citizens. Although he could not join them, Father drove Mother and the child to the Italian airport for their flight.

¶5 Father returned to Tunisia on June 27, 2020, the first day it reopened its borders. Mother and the child remained in Arizona, where they have lived since April 13, 2020.

¶6 On November 3, 2020, Mother petitioned the superior court to establish paternity, legal decision-making, parenting time, and child support. Although Mother asked the superior court to establish paternity, neither party contests that Father is the child's biological father, and his parental status is reflected on the child's birth certificate.^[1] As outlined in the petition, Mother alleged that she relocated to Arizona with the child to protect them from domestic violence perpetrated by Father. Mother requested sole legal decision-making authority for the child, sole physical custody with Father granted only supervised parenting time, and an order for child support under the Arizona Child Support Guidelines.

¶7 On January 12, 2021, a process server affixed copies of Mother's petition and a summons to appear on the front door of Father's home in Tunisia. Two months later, Father moved the superior court to dismiss the petition for lack of both subject matter and personal jurisdiction. According to Father, the child was only "temporarily absent" from Tunisia, so Tunisia remained the child's "home state" with jurisdictional priority.

¶8 In response, Mother noted that before relocating to Arizona, "[t]he child had never lived anywhere consecutively longer than three (3) months."^[2] Mother also argued that Arizona is the child's home state because he "lived with her in Arizona for more than six consecutive months immediately prior to the commencement of the instant child custody proceeding."

¶9 After full briefing and an evidentiary hearing, the superior court denied Father's motion to dismiss. As outlined in its ruling, the superior court reasoned that Mother's: (1) decision to travel to the United States with the child on a repatriation flight, (2) failure to return to Tunisia when it reopened its borders to international travel, and (3) communications with Father expressing her "deep unhappiness" with their relationship and "obvious reluctance" to return to Tunisia "negate[d]" any claim of a temporary absence. The superior court also concluded that the child "had no home state" before relocating to Arizona and determined that, at this point, Arizona is the child's home state. Accordingly, the superior court exercised jurisdiction over Mother's petition under the UCCJEA.

¶10 Father moved to amend the judgment, arguing Tunisia was the child's home state before April 2020, and even if he had reason to recognize that the child's relocation to Arizona was permanent based on his communications with Mother, six months had not transpired between those communications and the date she filed the petition, so Tunisia remained the child's home state for purposes of determining jurisdiction. The superior court denied Father's motion to amend the judgment but stated it "was wrong when it concluded that the child had no home state" before relocating to Arizona, agreeing with Father that "Tunisia was the home state for the child" before April 2020.^[3] Father petitions this court for relief.

SPECIAL ACTION JURISDICTION

¶11"Special action jurisdiction is discretionary, but appropriate when no 'equally plain, speedy, and adequate remedy by appeal' exists." Gutierrez v. Fox, 242 Ariz. 259, 264, ¶ 12 (App. 2017) (quoting Ariz. R.P. Spec. Act. 1(a)). "We also have discretion to accept special action jurisdiction when statutes or procedural rules require immediate interpretation, and a petition presents a purely legal issue of first impression that is of statewide importance." Id. at ¶ 13 (internal quotation and citation omitted).

¶12 Here, the petition for special action raises an issue of first impression regarding the proper legal standard for evaluating whether a child is "temporarily absent" from a putative "home state" to determine initial jurisdiction under the UCCJEA. Therefore, in the exercise of our discretion, we accept special action jurisdiction.

DISCUSSION

¶13 Father contends the superior court improperly exercised jurisdiction over this child custody matter in violation of the UCCJEA. "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). "To the extent a court's jurisdictional determination rests on disputed facts, however, we accept the court's findings if reasonable evidence and inferences support them." Id.

¶14 "[T]o prevent competing and conflicting custody orders by courts in different jurisdictions [,]" the UCCJEA vests "exclusive, continuing jurisdiction with the state that issues the initial child custody determination, subject to statutory exceptions." Angel B. v. Vanessa J., 234 Ariz. 69, 72, ¶ 8 (App. 2014); see also A.R.S. § 25-1005(A) ("A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying [the UCCJEA].").^[4] Under the UCCJEA, an Arizona court has jurisdictional priority for an initial child custody determination if Arizona "is the home state of the child on the date of the commencement of the proceeding[.]" A.R.S. § 25-1031(A)(1). A "home state" under the UCCJEA is "[t]he state in which a child lived with 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." A.R.S. § 25-1002(7)(a) (emphasis added).

¶15 By the time Mother filed the petition on November 3, 2020, the child had continuously lived in Arizona for a period slightly longer than six months (since April 13, 2020). But Father argues that the child was only temporarily absent from Tunisia during this time and, therefore, Arizona lacks jurisdiction to enter an initial custody determination. See Bata v. Konan, 217 A.3d 774, 781 (N.J.Super. Ct. Ch. Div. 2019) ("[Jurisdiction cannot be established in a state where the time spent in that state is found to be a period of temporary absence from another state.").

¶16 The UCCJEA does not define "temporarily absent," see A.R.S. § 25-1002, and no Arizona case has adopted a standard for assessing whether an absence qualifies as temporary for determining a child's "home state." See In re Marriage of Margain & Ruiz-Bours, 239 Ariz. 369, 378, ¶¶ 36-38 (App. 2016) (rejecting a parent's contention that a child's 10-month absence from a state was temporary, noting the period in that case was "much longer" than the absences at issue in cases cited to the court); see also Duwyenie v. Moran, 220 Ariz. 501, 503, ¶ 9 (App. 2009) (concluding that Arizona was the child's home state notwithstanding that the child "had not lived in Arizona for six months prior to [the commencement of the custody] proceedings" because the child's removal from the state was "unauthorized―and arguably criminal"). Absent any controlling authority, we consider the legal standards applied in other jurisdictions construing the UCCJEA.

¶17 Although the UCCJEA "[wa]s meant to be interpreted uniformly across jurisdictions," states have adopted three different tests to evaluate whether an absence is temporary for...