Canty v. Canty, 1

• Decision Date: 10 May 1994
• Docket Number: CA-CV,No. 1,1
• Citation: 178 Ariz. 443,874 P.2d 1000
• Parties: Anthony CANTY, Petitioner-Appellee, v. Manuelita CANTY, Respondent-Appellant. 91-0594.
• Court: Arizona Court of Appeals

Page 1000

874 P.2d 1000

178 Ariz. 443

Anthony CANTY, Petitioner-Appellee, v. Manuelita CANTY, Respondent-Appellant.

No. 1 CA-CV 91-0594.

Court of Appeals of Arizona,

Division 1, Department B.

May 10, 1994.

[178 Ariz. 444] Dale K. Patton, Jr., Winslow, for appellee.

Lewis and Roca by Susan M. Freeman, David M. Bixby, Phoenix, for appellant.

OPINION

WEISBERG, Presiding Judge.

Manuelita Canty ("Manuelita") appeals from the superior court's order granting Anthony Scott Canty's ("Scott") petition to modify a custody order. We find no error or abuse of discretion, and therefore affirm.

FACTS AND PROCEDURAL HISTORY

Manuelita and Scott were married in 1978. They have three children: Cheyenne, Jessica, and Jared. In 1988, Scott filed a petition for dissolution of marriage. Filed with the petition was a proposed joint custody agreement in which Manuelita and Scott agreed to joint legal custody of all three children, with Manuelita having physical custody of Cheyenne and Jessica, and Scott having physical custody of Jared. In September 1988, the trial court approved the joint custody agreement and entered a decree of dissolution. Two days after the decree was entered, Manuelita and her daughters left for the Fort Peck Reservation in Montana.

In December 1988, Manuelita, Cheyenne, and Jessica returned to Arizona to travel with Scott and Jared to visit Scott's family in South Carolina. Manuelita alleged that, during this visit, Scott committed an act of domestic violence against her in the presence of their children. Scott admitted committing an act of domestic violence, but not to the extremes alleged by Manuelita.

In January 1989, Scott petitioned for sole custody of all three children and filed a motion for a temporary restraining order to prevent Manuelita from returning to Montana with their daughters. In connection with this petition, while meeting with a court-appointed psychologist, Manuelita and Scott reached an agreement to modify the custody arrangement and signed it in the psychologist's presence. The modification agreement provided that Scott would have physical custody of Cheyenne and Jared, while Manuelita would retain physical custody of Jessica. Although the psychologist presented the modification agreement to the court with her report, and the court noted in a minute entry that the parties had settled the matter, neither party sought a formal modification order and none was entered. Manuelita returned to Montana with Jessica shortly after executing the modification agreement.

In August 1989, Manuelita and Jessica returned to stay with Manuelita's relatives in Arizona. Although she remained in Arizona for over five months and obtained an Arizona post office box, Manuelita testified that she did not intend to abandon her Montana residence. She left most of her belongings in Montana and continued to maintain her Montana post office box. Manuelita alleged that during this time Scott committed another act of domestic violence against her in the presence of their children. Scott denied this allegation.

Manuelita returned to Montana on January 25, 1990, leaving Jessica behind to spend February with Scott and the other children in accordance with the modification agreement. At the end of February, Manuelita agreed to Scott's request that Jessica remain in Arizona through March 15, so that she could spend her birthday with her siblings. Scott did not, however, return Jessica to Montana as promised. Instead, he filed his second petition for custody modification seeking sole legal custody of all their children. He also sought an order for temporary custody, a temporary restraining order, and an order to show cause.

On March 29, 1990, Manuelita filed a petition in the Fort Peck tribal court to modify custody. The Fort Peck court held the petition in abeyance while the Arizona court determined whether to take jurisdiction.

On March 30, 1990, Manuelita filed a motion to dismiss the Arizona petition, asserting that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction Act ("UCCJA") because (1) Jessica's domicile was Montana and (2) it was in Jessica's best interest for the Montana tribal court to take jurisdiction. After a hearing, the Arizona court held that it had jurisdiction and ordered further psychological examinations of all family members.

In September 1990, Manuelita filed a second motion to dismiss, arguing that Scott's second petition (1) had been filed prematurely, (2) failed to set forth necessary changed circumstances, and (3) constituted harassment. The court denied her second motion "as being untimely, dealing with a matter previously ruled upon." The court held a custody hearing on February 21, 1991. After hearing the testimony and taking the matter under advisement, the court ruled that Jessica's best interests would be served by being in Scott's custody, with all the children spending the summer with Manuelita. Judgment was entered accordingly and Manuelita timely appealed. We have jurisdiction pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") section 12-2101(B).

ISSUES

To resolve the appeal, we must determine the following issues:

(1) whether, pursuant to the UCCJA, the trial court should have exercised jurisdiction to change child custody,

(2) whether Scott's second petition was filed prematurely in light of A.R.S. section 25-332(L), and (3) whether there was sufficient evidence of a change in circumstances.

DISCUSSION

A. Jurisdiction

1. Exclusive Modification Jurisdiction

Manuelita argues that the superior court lacks jurisdiction under the UCCJA, adopted in Arizona as A.R.S. sections 8-401 to 8-424, and that the Fort Peck tribal court has jurisdiction because she and Jessica were domiciled in Montana. She primarily relies on UCCJA section 3, which vests jurisdiction in the superior court to enter a child custody order only if Arizona is the child's domicile or home state, or if the best interest of the child dictates that the superior court assume jurisdiction. See A.R.S. § 8-403(A)(1), (2).

Manuelita's argument, however, fails to take into account UCCJA section 14, which provides the following:

If a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this [chapter] or has declined to assume jurisdiction to modify the decree, and the court of this State has jurisdiction.

A.R.S. § 8-414(A). Under the prevailing view of the UCCJA, a court that has made a valid custody determination presumptively retains exclusive jurisdiction over that decree. This exclusive jurisdiction continues until the state that entered the decree loses substantial contact with the child. See Kumar v. Superior Ct., 32 Cal.3d 689, 186 Cal.Rptr. 772, 776, 652 P.2d 1003, 1007 (1982) (citing Bridgette M. Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 Fam.L.Q. 203, 214-15 (1981)). "[P]etitions for modification must be addressed to the state which rendered the original decree if that state had and retains jurisdiction under the standards of the act." Id. 186 Cal.Rptr. at 778, 652 P.2d at 1009.

Prior to the passage of A.R.S. section 8-414, Arizona courts had rejected the concept of continuing jurisdiction because Arizona's version of UCCJA section 3 varies from the model act in a slight, but significant way. While the uniform act provides for jurisdiction if "[t]his State is the home state of the child," UCCJA § 3(A), Arizona provides for jurisdiction if "[t]his state is the domicile or the home state of the child." A.R.S. § 8-403(A) (emphasis added). Arizona is the only state with this variation in the text of section 3(A). Loper v. Superior Ct., 126 Ariz. 14, 16, 612 P.2d 65, 67 (App.1980). Consequently, this court interpreted the act as favoring jurisdiction in the state of domicile. Carlson v. Brown, 118 Ariz. 387, 391, 576 P.2d 1387, 1391 (App.1978) ("We perceive it is the intent of the [UCCJA] to create a species of presumption or predilection in favor of the exclusive exercise of jurisdiction at the state of domicile."); see also McNeal v. Mahoney, 117 Ariz. 543, 545, 574 P.2d 31, 33 (1977) ("Arizona courts do not have jurisdiction to alter a custody decree if the party to whom custody has been awarded is domiciled in another jurisdiction."). Notwithstanding, we hold that Carlson's presumption in favor of the jurisdiction of the domiciliary state is no longer viable in Arizona.

When Carlson was decided, Arizona had not yet adopted UCCJA section 14. Subsequently, the legislature enacted a revised uniform act, which included it. The courts of several states have interpreted UCCJA section 14 as evincing a policy of continuing, exclusive jurisdiction in a state to modify its own decree. See, e.g., In re Leyda, 398 N.W.2d 815, 819 (Iowa 1987); Hamill v. Bower, 487 So.2d 345, 347-48 (Fla.App.1986); Funk v. Macaulay, 457 N.E.2d 223, 227 (Ind.App.1983); Clarke v. Clarke, 126 N.H. 753, 496 A.2d 361, 364 (1985); Neger v. Neger, 93 N.J. 15, 459 A.2d 628, 636 (1983); Sinclair v. Albrecht, 287 S.C. 20, 336 S.E.2d 485, 487-88 (App.1985). We agree and hold that, assuming it has not lost significant contact with the child, the Arizona court retains exclusive continuing jurisdiction under UCCJA to modify its own custody decree.

Although the superior court did not hold a hearing to determine whether Arizona had lost significant contact, under the circumstances of this case that failure is not significant. The record indicates the following significant contacts with Arizona: Scott exercised his visitation rights here, there was substantial evidence here regarding custody, and Jessica's siblings resided here. These contacts are sufficient to maintain continuing jurisdiction. See Kumar, 186 Cal.Rptr. at 778-79, 652 P.2d...