Duwyenie v. Moran

• Decision Date: 11 February 2009
• Docket Number: No. 2 CA-CV 2008-0101.,2 CA-CV 2008-0101.
• Parties: Antanelle DUWYENIE, Petitioner/Appellee, v. William C. MORAN, Respondent/Appellant.
• Court: Arizona Court of Appeals

207 P.3d 754

220 Ariz. 501

Antanelle DUWYENIE, Petitioner/Appellee, v. William C. MORAN, Respondent/Appellant.

No. 2 CA-CV 2008-0101.

Court of Appeals of Arizona, Division 2, Department B.

February 11, 2009.

The Cavanagh Law Firm, P.A. By Scott A. Salmon and Christopher Robbins, Phoenix, Attorneys for Petitioner/Appellee.

Ernest E. Shaver and Alan L. Liebowitz, Phoenix, Attorneys for Respondent/Appellant.

OPINION

VÁSQUEZ, Judge.

¶ 1 In this child custody action, William Moran appeals from the trial court's order granting sole legal and physical custody of his minor child to the child's mother, Antanelle Duwyenie. Moran argues the court lacked jurisdiction to make a custody determination and abused its discretion by requiring him to post a $20,000 bond as a condition of his visitation with the child. For the following reasons, we affirm.

Facts and Procedural Background

¶ 2 We view the record in the light most favorable to upholding the trial court's decision. See Little v. Little, 193 Ariz. 518, ¶ 5, 975 P.2d 108, 110 (1999). Duwyenie and Moran are the parents of CJ, who was born out of wedlock in August 2004. Duwyenie is an enrolled member of the San Carlos Apache Tribe in Arizona, and Moran is an enrolled member of the Rosebud Sioux Tribe, located in South Dakota. They lived together in Globe, Arizona, until their separation in September 2006. Following their separation, they agreed to share custody of CJ, with each having him for a week at a time.

¶ 3 Moran asked to have CJ for the first week, and Duwyenie agreed. That week, Moran telephoned Duwyenie several times. He first told her he was taking CJ to Phoenix and would be back the next day. The following day, however, he told her they were going to stay for "a couple of days." Moran did not answer the telephone when Duwyenie attempted to call him over the next two days, but he eventually returned her call, claiming he had been leaving his cell phone in his hotel room. In fact, he had taken CJ to South Dakota, where he had filed a custody petition with the Rosebud Sioux Tribal Court ("RSTC"). Duwyenie learned of the petition several days later. Moran telephoned her to confirm that she was home and informed her that his sister's boyfriend, an officer with the Globe Police Department, would stop by to pick up diapers for CJ. When the boyfriend arrived, he served her with an interim custody order issued by the RSTC granting Moran sole custody of CJ.

¶ 4 In October 2006, the San Carlos Apache Tribe, apparently at Duwyenie's behest, filed a petition for an intertribal judicial conference with the San Carlos Tribal Court, proposing that "the respective Tribal Courts mutually agree not to assert their powers of jurisdiction over this matter" so that the parties might "proceed to Gila County Superior Court to resolve their child custody dispute in a neutral setting." After the tribal courts conferred later the same month, the RSTC dismissed the proceeding before it, citing Moran's initial failure to disclose that "the parties and the child resided in Gila County, Arizona where the child was born." The court found: "The forum that is best suited to hear a custody dispute is the court where the parties resided with the child."¹ In December, however, the Rosebud Sioux Tribal Council, at the request of Moran's uncle, a member of the Council, adopted a resolution asserting the RSTC's exclusive jurisdiction over cases involving its tribal members. Moran moved the RSTC to reconsider its order of dismissal and, relying on the tribal council's resolution, a new RSTC judge accepted jurisdiction and reinstated the case in January 2007.

¶ 5 Between September 2006 and February 2007, Duwyenie had been granted approximately ten days of visitation with CJ, confined to the Rosebud Reservation. In February 2007, the RSTC authorized more extensive visitation, provided Duwyenie and the San Carlos Tribe did not continue to challenge the RSTC's jurisdiction. In April, Duwyenie dismissed the proceedings in the San Carlos Tribal Court. During a subsequent visitation in September 2007, she returned to Arizona with CJ in violation of the RSTC's temporary custody order.²

¶ 6 Upon returning to Arizona, Duwyenie initiated this custody proceeding in the Gila County Superior Court. After conferring with the RSTC, which declined to relinquish its claim to jurisdiction, and following a hearing, the trial court found that Arizona was CJ's home state and accepted jurisdiction. In June 2008, the parties stipulated to an order determining paternity, child custody, access and child support, which included a provision conditioning Moran's visitation on his posting a $20,000 bond. This appeal followed.

Discussion

Jurisdiction

¶ 7 Moran first contends the trial court "improperly exercised jurisdiction over this matter" in violation of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), which governs the issue of jurisdiction in this case. See A.R.S. §§ 25-1001 through 25-1067.³ A trial court's jurisdiction is a matter of law that we review de novo. R.A.J. v. L.B.V., 169 Ariz. 92, 94, 817 P.2d 37, 39 (App.1991).

¶ 8 An Arizona court "has jurisdiction to make an initial child custody determination if" Arizona "is the home state of the child on the date of the commencement of the proceeding." § 25-1031(A)(1). A home state is "[t]he 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." § 25-1002(7)(a).

¶ 9 Although CJ had not lived in Arizona for six months prior to the current proceedings, Arizona was indisputably his home state at the time Moran commenced custody proceedings with the RSTC. Initial jurisdiction was therefore vested in the Arizona courts. See A.R.S. § 25-1031. We are not persuaded that, under the circumstances of this case, Arizona lost its home-state status through Moran's unauthorized—and arguably criminal—conduct in removing CJ from the state.⁴ To find otherwise would defeat one of the core purposes of the UCCJEA, the deterrence of child abductions. See Uniform Child Custody Jurisdiction and Enforcement Act § 101, cmt., 9 U.L.A. 657 (1999) (UCCJEA should be interpreted according to purposes of its precursor, the Uniform Child Custody Jurisdiction Act (UCCJA), including deterring abductions of children); Both v. Superior Court, 121 Ariz. 381, 384, 590 P.2d 920, 923 (1979) (allowing new state to which child wrongfully taken automatically to take jurisdiction defeats purpose of UCCJA to "deter the practice . . . of taking the child and fleeing to another jurisdiction"); Curtis v. Curtis, 574 So.2d 24, 30 (Miss.1990) (where child wrongfully removed from home state, "involuntary residence [in a foreign state] does not generate so much as a single tick of the UCCJA's six consecutive months clock").

¶ 10 Furthermore, Duwyenie promptly initiated custody proceedings with the San Carlos Tribal Court after CJ's abduction, with the apparent intent to pursue an action in Gila County Superior Court once the intertribal dispute had been resolved. See Agnello v. Becker, 184 Conn. 421, 429, 440 A.2d 172, 176 (Conn.1981) (Under UCCJA, "New Jersey clearly had jurisdiction" where "[t]he evidence at trial indicated that before the . . . abduction by the defendant, the child had lived her entire life in New Jersey, and that the plaintiff instituted his custody suit in New Jersey within a month after the abduction"). In any event, Moran does not challenge on appeal the trial court's express finding that Arizona is CJ's home state.

¶ 11 Moran maintains however that the trial court "was required . . . not to exercise jurisdiction" because "[t]he RSTC proceeding ha[d] been going on for more than one year before [Duwyenie] filed her action in Gila County Superior Court . . . [and] the RSTC . . . [had] held that it had jurisdiction over . . . the subject matter of this proceeding."⁵ He relies on § 25-1036(A), which provides in part:

[A] court of this State shall not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state.⁶

But Moran's reliance on this section is misplaced. First, to the extent he argues his first-in-time filing takes precedence over Arizona's home-state jurisdiction, that argument was rejected by Division One of this court in Welch-Doden v. Roberts, 202 Ariz. 201, ¶ 46, 42 P.3d 1166, 1176 (App.2002). There, the child had lived with the mother in both Arizona and Oklahoma before the mother filed for dissolution and custody in Arizona and the father filed a petition for divorce and custody in Oklahoma. Id. ¶ 4. The trial court rejected the mother's claim that "Arizona should have jurisdiction as her filing was first-in-time," because it concluded Oklahoma was the child's home state. Id. ¶¶ 7, 46. In affirming the trial court's decision, Division One noted: "The drafters made it clear that the [UCCJEA] was to give priority to a finding of home state jurisdiction over any other jurisdictional provisions." Id. ¶ 30. The other "substantive factors" for determining jurisdiction are considered "only if no state qualifies as a `home state.'" Id. ¶ 31.

¶ 12 Second, Moran ignores the requirement "that the first-in-time filing must be in a state `having jurisdiction substantially in conformity with [the UCCJEA].'" Id. ¶ 47, quoting A.R.S. § 25-1036(A); see also § 25-1004(C).⁷ As noted above, the RSTC and San Carlos Tribal Court judges conducted an intertribal court judicial conference to discuss which court was best suited to determine custody. Following the conference, the...