In re Margain

• Decision Date: 30 March 2021
• Docket Number: No. 2 CA-CV 2020-0005-FC,2 CA-CV 2020-0005-FC
• Citation: 251 Ariz. 122,485 P.3d 1079
• Parties: IN RE the MARRIAGE OF Mauricio Fernandez MARGAIN, Petitioner/Appellee, and Elsa Lourdes RUIZ-BOURS, Respondent/Appellant.
• Court: Arizona Court of Appeals

251 Ariz. 122

485 P.3d 1079

IN RE the MARRIAGE OF Mauricio Fernandez MARGAIN, Petitioner/Appellee, and Elsa Lourdes RUIZ-BOURS, Respondent/Appellant.

No. 2 CA-CV 2020-0005-FC

Court of Appeals of Arizona, Division 2.

Filed March 30, 2021

Gerald D. Sherrill, Scottsdale, Counsel for Petitioner/Appellee

Greenberg Traurig LLP, Phoenix, By Matthew P. Hoxsie, Counsel for Respondent/Appellant

EPPICH, Presiding Judge:

¶1 As a matter of first impression in this state, we consider whether a decision by the Mexico Supreme Court, that clearly intends to decline to exercise its jurisdiction in a child custody action in favor of the Arizona courts, is sufficient to operate as a declination as a matter of law under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).¹ For the following reasons, we reverse the Pima County Superior Court's order and remand for further proceedings.

Factual and Procedural Background

¶2 As the Pima County Superior Court astutely observed, "almost an impenetrable web of international litigation has been woven around the custody of the divorced parties’ minor child." The history underlying this dispute is well-discussed in our opinion from 2016, see generally In re Marriage of Margain & Ruiz-Bours , 239 Ariz. 369, 372 P.3d 313 (App. 2016), but we reiterate the relevant facts here and include new developments.

¶3 In September 2007, Margain and Ruiz-Bours married in Hermosillo, Sonora, Mexico, and in July 2008, S.F.R. was born in California. The family continued to live in California until Ruiz-Bours and S.F.R. traveled to Hermosillo where they remained from October 11, 2010 through at least July 5, 2012. In August 2011, Margain filed in the Second Family Court of Tijuana, Baja California, Mexico, for dissolution of the marriage. At the time of filing, S.F.R. had been living in Mexico for at least six consecutive months. Ruiz-Bours was aware that the Second Family Court had ordered S.F.R. not be removed from Hermosillo without its approval. Ruiz-Bours challenged the jurisdiction of the Second Family Court in Mexico's state and federal courts, arguing jurisdiction was proper in Sonora, as she and S.F.R. were living there. In July 2012, in the midst of her appeals, Ruiz-Bours violated the Second Family Court's order, and absconded with S.F.R. to Tucson.

¶4 In September 2013, Margain sought return of S.F.R. to Mexico, by filing a petition in the United States District Court for the District of Arizona pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention").² See generally 22 U.S.C. § 9003. In January 2014, the District Court denied Margain's petition, determining that S.F.R. "did not abandon the United States as her habitual residence even though she lived in Mexico for several months." Margain v. Ruiz-Bours , No. CV-13-01162-TUC-RCC, 2014 WL 10987427, at *5 (D. Ariz. Jan. 22, 2014) (order). The District Court also determined that "even if Mexico [was] the child's habitual residen[ce]," Margain's petition was filed "more than one year after the child was wrongfully removed and the child [was] well-settled in the United States."³ Id. at *6. S.F.R. remained in Tucson with Ruiz-Bours.

¶5 In June 2014, the Supreme Court of Mexico affirmed jurisdiction properly laid with the Second Family Court, and in September, the Second Family Court issued its final judgment awarding Margain "definitive legal custody" of S.F.R. In October, Margain filed a petition in the Pima County Superior Court seeking to enforce the Second Family Court's custody order. The Pima County Superior Court ordered both parties not to remove S.F.R. from Pima County absent written agreement, or from the state of Arizona absent a written agreement and leave of court. In March 2015, the Pima County Superior Court denied Margain's petition, finding that the Second Family Court's custody determination had not been made in substantial conformity with the jurisdictional standards of the UCCJEA.

¶6 Margain appealed the Pima County Superior Court's ruling to this court. While the appeal was pending, Ruiz-Bours moved to dismiss it, asserting Margain had "kidnapped" S.F.R. and taken her to Mexico in violation of the Pima County Superior Court's order.⁴ We denied Ruiz-Bours’ motion, and in 2016, issued our opinion reversing the Pima County Superior Court. See Marriage of Margain , 239 Ariz. 369, ¶¶ 14, 41, 372 P.3d 313. We held the Pima County Superior Court erred in its interpretation of the UCCJEA because it had "only considered the legal circumstances under which the [Second Family Court] exercised jurisdiction and did not consider the factual circumstances." Id. ¶ 27. We determined that because S.F.R. had lived in Hermosillo, "for approximately ten months prior to Margain's initiation of the custody proceedings in Mexico," the facts underlying the Second Family Court's order were "consistent" with the UCCJEA and S.F.R.’s home state was properly established in Mexico. Id. ¶ 35.

¶7 In our prior opinion, we noted that Ruiz-Bours had "filed a motion to supplement the record, attaching ‘a Mexican amparo order and translation’ " and asserting that the amparo showed that "the validity and finality of the Mexican custody order [was] at issue." Id. n.1. We determined that any impact of that amparo was "best left to the courts of Mexico." Id. In August 2018, the Supreme Court of Mexico issued a decision that determined the Second Family Court had no authority to issue the initial custody order to Margain because it was contrary to the District Court's finding that S.F.R. was a habitual resident of the United States. It ultimately determined that "it is clear that the final custody of [S.F.R.] must necessarily be ventilated in the State that denied the restitution," that state being Arizona. As a result, it observed S.F.R. should be returned to Ruiz-Bours in Tucson during the pendency of the custody case and that "cross-border contact ... must exist between [S.F.R.] and [Margain] until the final custody of [S.F.R.] is decided in [her] usual place of residence," which it repeatedly noted had been determined by the District Court to be Tucson, Arizona.⁵

¶8 In November 2019, the Pima County Superior Court determined that the Mexico Supreme Court's decision did not, "alter[ ] the efficacy of [our court's 2016] decision," finding that the Mexico Supreme Court's reasons for declining jurisdiction were "not those mandated for declining on inconvenient forum grounds" under A.R.S. § 25-1037. The court concluded that Mexico "continues to have exclusive jurisdiction over the custody decisions concerning [S.F.R.]." Ruiz-Bours appealed, and we have jurisdiction over the appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1), and 25-1064.⁶

Discussion

¶9 On appeal, Ruiz-Bours argues that Arizona should exercise jurisdiction because the Mexico Supreme Court's decision was a sufficient declination by the home state under the UCCJEA.⁷ See A.R.S. §§ 25-1031, 25-1037. Margain concedes that it was the intent of the Mexico Supreme Court to decline jurisdiction, but counters that the declination was insufficient because § 25-1037 lists mandatory factors for the declining court to consider, and the Mexico Supreme Court did not properly consider these factors, rather it relied on the "habitual residence" finding under the Hague Convention.⁸

¶10 We review "whether a court has subject matter jurisdiction under the UCCJEA" and questions of statutory interpretation de novo. Gutierrez v. Fox , 242 Ariz. 259, ¶ 17, 394 P.3d 1096 (App. 2017) (subject matter jurisdiction); Marriage of Margain , 239 Ariz. 369, ¶ 21, 372 P.3d 313 (statutory interpretation). Based on our review, we agree with the Pima County Superior Court that it was the "clear intent of the Mexican [Supreme] Court to decline jurisdiction in favor of Arizona." The question on appeal is whether this "clear intent" was sufficient to decline jurisdiction under the UCCJEA and whether Arizona can properly exercise jurisdiction. For the following reasons, we reverse the Pima County Superior Court's conclusion that it was an insufficient declination under the UCCJEA and remand for further proceedings consistent with this opinion.

¶11 Subject matter jurisdiction in child custody proceedings in Arizona is governed by article two of the UCCJEA. A.R.S. § 25-1031 –1040. Arizona treats a "foreign country as if it were a state of the United States for the purpose of applying ... article 2 of [the UCCJEA]." A.R.S. § 25-1005(A). In cases not involving temporary, emergency jurisdiction, an Arizona court only has jurisdiction to make an initial child custody determination if any of the following are true:

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.

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.

(b) Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships.

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.

4. A court of any other state would not have jurisdiction under the criteria specified in paragraph 1, 2 or 3.

§ 25-1031(A).

¶12 We interpret statutes in a way that ...