In re Margain

• Decision Date: 22 April 2016
• Docket Number: No. 2 CA–CV 2015–0067.,2 CA–CV 2015–0067.
• Citation: 372 P.3d 313,239 Ariz. 369
• Parties: In re the MARRIAGE OF Mauricio Fernandez MARGAIN, Petitioner/Appellant, and Elsa Lourdes RUIZ–BOURS, Respondent/Appellee.
• Court: Arizona Court of Appeals

239 Ariz. 369

372 P.3d 313

In re the MARRIAGE OF Mauricio Fernandez MARGAIN, Petitioner/Appellant and Elsa Lourdes RUIZ–BOURS, Respondent/Appellee.

No. 2 CA–CV 2015–0067.

Court of Appeals of Arizona, Division 2.

April 22, 2016.

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

Ann Nicholson Haralambie, Attorneys, P.C., By Ann M. Haralambie, Tucson, Counsel for Respondent/Appellee.

Judge STARING authored the opinion of the Court, in which Presiding Judge HOWARD and Judge ESPINOSA concurred.

OPINION

STARING, Judge:

¶ 1 Mauricio Fernandez Margain appeals the denial of his petition for expedited enforcement of a child custody determination made in Mexico. Margain contends the trial court erred because Mexico has exclusive jurisdiction over the child at issue. We have jurisdiction over this matter pursuant to A.R.S. §§ 12–120.21(A)(1) and 25–1064. For the reasons discussed below, we reverse.

Factual and Procedural Background

¶ 2 “We view the record in the light most favorable to upholding the trial court's decision.” Duwyenie v. Moran, 220 Ariz. 501, ¶ 2, 207 P.3d 754, 755 (App.2009). In September 2007, Margain and Elsa Lourdes Ruiz–Bours were married in Hermosillo, Sonora, Mexico. The couple subsequently moved to Coronado, California, where their only child, Sophia, was born in July 2008. The family continued to live in California until October 2010, when Ruiz–Bours and Sophia traveled to Hermosillo. The parties dispute the purpose of the trip, but, as they stipulated below, Ruiz–Bours and the child were “in Hermosillo ... from October 11, 2010 through at least July 5, 2012.”

¶ 3 In August 2011, Margain filed for dissolution of the marriage in the Second Family Court of Tijuana, Baja California, Mexico, asserting the ground of abandonment. As of that time, Sophia had been living in Mexico for at least six consecutive months. Ruiz–Bours was properly served with notice of the dissolution proceeding in October 2011. At the time of service, Ruiz–Bours was aware that the Second Family Court had ordered that she not remove Sophia from Hermosillo without that court's approval.

¶ 4 Ruiz–Bours challenged the jurisdiction of the Second Family Court, arguing jurisdiction properly lay in Sonora, not in Baja California, as both she and Sophia were living in Hermosillo. The Second Family Court stayed the proceedings and the matter was referred to the State Appellate Court of Baja California to address Ruiz–Bours's jurisdiction challenge. In May 2012, the State Appellate Court affirmed the Second Family Court's jurisdiction.

¶ 5 Ruiz–Bours then pursued her jurisdiction challenge in Mexico's federal court system. She was denied relief by the Second District Court in July 2012, and the Fifteenth Circuit Court in January 2013. The Supreme Court of Mexico denied Ruiz–Bours relief in June 2014, affirming jurisdiction in the Second Family Court. Ruiz–Bours was represented by counsel throughout these proceedings and “had proper notice of the Mexican proceedings and was provided due process throughout.”

¶ 6 In July 2012, in the midst of her appeals, Ruiz–Bours violated the Second Family Court's order, and absconded with Sophia to Tucson. In September 2014, that court issued its final judgment, in which Margain was awarded “definitive legal custody” of Sophia. In reaching its judgment, the court considered the best interests of the child, specifically stating:

[T]he minor is wrongfully held while continuing to be under the care of the mother ... who is neglecting the father-child relationship of her minor daughter with her father, which without any doubt, is causing an imminent harm for the little girl; and in spite of having been warned with fines, aid from law enforcement, search warrant and arrest for up to thirty six hours, ... she insisted on her disobedient behavior of not allowing the safeguarding of the wellbeing of her minor daughter, by obstructing the visitation/interaction between father and daughter, causing harm in her little girl by depriving her of the aforementioned right of enjoying of times in common with her father ... with said harm prevailing for over one year....

....

... Therefore, it should be decreed that the definitive legal custody of the aforementioned minor shall be exercised by her father ..., who shall watch over for the health, safety as well as guide and take care of the most elemental needs of his minor daughter such as adequately providing her with care and [advice].

Ruiz–Bours did not file an appeal or any other post-judgment motions to have the judgment set aside.

¶ 7 In October 2014, Margain filed a “Petition for Expedited Enforcement of Child Custody Determination” in Pima County Superior Court seeking the “immediate physical custody of” Sophia. The trial court ordered Ruiz–Bours to appear with the child.

¶ 8 At a November 2014 hearing, the court found that to date Margain had complied with the requirements of due process. The court also allocated parenting time for Margain. Both Ruiz–Bours and Margain were ordered not to remove the child from Pima County absent a written agreement, or from the state of Arizona absent a written agreement and leave of court.

¶ 9 In December 2014, another hearing was held at which the court made rulings on pending motions and factual findings. By stipulation of the parties, the court found Ruiz–Bours and the child “were in Hermosillo, Sonora, Mexico, from October 11, 2010 through at least July 5, 2012.” The court further found the filing date for the Mexican petition for dissolution of marriage had been August 23, 2011, and the child had been in Mexico “for at least six consecutive months preceding the August 2011 date of [Margain's] filing for dissolution in Mexico.” The court also noted it would limit the scope of the trial to determining “whether Mexico exercised jurisdiction in substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act” (UCCJEA), A.R.S. §§ 25–1001 through 25–1067.

¶ 10 A three-day trial occurred in February 2015, during which both parties elicited expert testimony concerning the proper exercise of jurisdiction pursuant to Mexican law. Despite the ruling of the Mexico Supreme Court, Ruiz–Bours contended the Second Family Court did not have jurisdiction to entertain the dissolution proceedings initiated by Margain because the action had not been filed in the state of her domicile. Margain, on the other hand, presented the testimony of his expert witness who agreed that while the general rule in Mexican dissolution actions is that the competent forum is that of the marital or conjugal residence, when the claim is abandonment the competent forum is the domicile of the abandoned spouse. After the presentation of evidence and argument, the court took the matter under advisement.

¶ 11 The trial court denied Margain's petition on March 2, 2015. In its ruling, the court indicated the Second Family Court's exercise of jurisdiction was proper under the laws of Mexico, stating: “[I]t is hard to conceive of how the legitimacy of that court's jurisdiction could have been more unequivocally established, under the laws of Mexico.” The court also recognized “Mexico would have been [the child's] home state at the time” Margain filed his petition for dissolution. But because under Mexican law “jurisdiction is based on the location of the marital residence or, in cases of abandonment, the residence of the abandoned spouse, ” and because “[a]t no time did the Second Family Court consider where Sophia was living,” the court concluded the Second Family Court did not make its custody determination in substantial conformity with the jurisdictional standards of the UCCJEA. As part of its ruling, the court ordered that both sides would bear their own costs and attorney fees.

¶ 12 Ruiz–Bours filed a timely motion for new trial on the issue of costs and attorney fees. On the same day, Margain filed his notice of appeal from the court's March 2 ruling. The trial court then issued a ruling stating it lacked jurisdiction to consider Ruiz–Bours's motion for new trial because Margain had filed his notice of appeal before the motion was filed. Ruiz–Bours filed a motion for reconsideration of the court's ruling and Margain filed a response agreeing that filing the notice of appeal did not divest the trial court of jurisdiction to address Ruiz–Bours's motion for new trial.

¶ 13 The trial court granted Ruiz–Bours's motion for new trial on the limited issue of costs and attorney fees. In July 2015, we stayed appellate proceedings pending a final judgment on the issue of costs and attorney fees, which the trial court subsequently awarded to Ruiz–Bours in a total amount of $73,462.28. Margain filed an amended notice of appeal to encompass the award. We then vacated the stay and reinstated the appeal.

¶ 14 In August 2015, Ruiz–Bours filed a motion to dismiss Margain's appeal, asserting he had “kidnapped” Sophia and taken her to Mexico in violation of the trial court's November 2015 order. We denied the motion and Ruiz–Bours subsequently filed a motion to supplement the record, which we granted. In her supplement, Ruiz–Bours provided a minute entry from the trial court finding Margain had failed to return the child after a scheduled visit and holding him in contempt of court.

Analysis

Dismissal

¶ 15 We first address whether we should render a decision on Margain's appeal at all. Ruiz–Bours argues Margain, who was found to be in contempt of court for absconding with Sophia, has forfeited his right to appeal. See Stewart v. Stewart, 91 Ariz. 356, 360, 372 P.2d 697, 700 (1962) (appellate court enjoys discretion to dismiss appeal when appellant has disregarded trial court orders).

¶ 16 In Stewart, the husband repeatedly failed to make court-ordered payments of spousal support and attorney fees and repeatedly failed to appear at hearings. Id. at 357, 372 P.2d at 698. The trial court found him in contempt and issued a warrant for his arrest. Id. After the husband was...