In re the Marriage of Deborah J. Mangan

• Decision Date: 26 May 2011
• Docket Number: No. 1 CA–CV 10–0726 A.,1 CA–CV 10–0726 A.
• Citation: 227 Ariz. 346,609 Ariz. Adv. Rep. 49,258 P.3d 164
• Parties: In re the Marriage of Deborah J. MANGAN, Petitioner/Appellant,v.John V. MANGAN, Respondent/Appellee.
• Court: Arizona Court of Appeals

227 Ariz. 346

258 P.3d 164

609 Ariz. Adv. Rep. 49

In re the Marriage of Deborah J. MANGAN, Petitioner/Appellant,

v.John

v. MANGAN, Respondent/Appellee.

No. 1 CA–CV 10–0726 A.

Court of Appeals of Arizona, Division 1, Department E.

May 26, 2011.

Ariano & Reppucci, P.L.L.C. By Ryan M. Reppucci, Phoenix, Attorney for Petitioner/Appellant.Moshier Law Firm, P.C. By Jennifer K. Moshier, Peter J. O'Connor, Phoenix, Attorney for Respondent/Appellee.

OPINION

WINTHROP, Judge.

¶ 1 This is an accelerated appeal pursuant to Rule 29 of the Arizona Rules of Civil Appellate Procedure (“ARCAP”). Petitioner/Appellant, Deborah J. Mangan (“Mother”), appeals the family court's signed minute entry order finding that Arizona has home state jurisdiction to hear and decide the petition of Respondent/Appellee, John V. Mangan (“Father”), to modify custody, parenting time, and child support. Mother argues that the petition should have been dismissed because, under Arizona Revised Statutes (“A.R.S.”) section 25–1032 (2007), the court lost jurisdiction over the matter when she and the parties' children moved to New Mexico. Mother also challenges the court's decision to award attorneys' fees to Father. Concluding that the family court had exclusive, continuing jurisdiction to modify its initial child custody order and did not abuse its discretion in deciding to award attorneys' fees to Father, we affirm.

BACKGROUND ¹

¶ 2 Mother and Father were married in 2001 and had two children. The parties separated in mid-March 2006, when Mother and the children left Arizona temporarily and moved back East.² In May 2006, Mother filed a petition for dissolution of marriage in Arizona, conceding at that time Arizona was the children's “home state.” In October 2006, the family court, after determining it had initial jurisdiction pursuant to A.R.S. § 25–1031(A)(1), entered a decree of dissolution of marriage. The court awarded Mother sole custody of the children, designated Mother as the primary residential parent, and ordered that Father have parenting time and periodic telephonic access to the children. Thereafter, each party filed any documents related to child custody, parenting time, or child support in Maricopa County Superior Court.

¶ 3 Mother and the children moved back to Arizona, and on February 1, 2008, Father filed a petition for post-decree mediation, alleging that Mother was “blocking [his] visitation and communication” with the children. The family court ordered the parties to meet for mediation in March 2008. Although the parties did not reach a formal agreement in mediation, they did reach an informal agreement, to which Mother unilaterally chose not to adhere. At about that time, Mother purportedly informed Father that she planned to move to New Mexico.³ After seeing the children in mid-July 2008, Father was unable to contact the children again for approximately 650 days.

¶ 4 On July 30, 2008, Father filed a petition to enforce parenting time, and the family court ordered the parties to appear at an evidentiary hearing regarding the petition on September 26, 2008. Mother did not appear at the hearing, however, and the court found she was evading service and granted permission for Father to serve her by publication in New Mexico.⁴

¶ 5 The court scheduled another enforcement hearing for December 12, 2008, and Mother was served by publication but again did not appear. The court found Mother in contempt of court for failure to appear and failure to abide by the terms of the parties' custody agreement.

¶ 6 On December 22, 2008, Father filed a petition to modify custody, parenting time, and child support, in which he claimed that Mother had “unlawfully blocked ALL contact between Father and [the] children.” Father, however, again encountered difficulty locating and serving Mother, who relocated at least two more times within New Mexico after arriving there. ⁵ In January 2009, the family court granted a motion to withdraw filed by Mother's counsel, who cited in part Mother's failure to communicate.

¶ 7 On February 18, 2010, Father filed a renewed petition to modify custody, parenting time, and child support, in which he sought sole legal custody of the children and moved for a warrant to take custody of the children using reasonable force. At a return hearing on April 8, 2010, at which Mother appeared telephonically and conceded she had been personally served, the family court issued temporary orders, ordering in part that the parties participate in a parenting conference and Mother provide Father with telephone access to the children and parenting time, with the exchanges of the children to occur in Flagstaff. The court also set a temporary orders/status hearing for May 14, 2010, ordered both parties to be present in person, and set a trial date for August 2, 2010.

¶ 8 On April 20, 2010, Mother, through new counsel, filed an accelerated motion to transfer jurisdiction,⁶ arguing that the children had lived in New Mexico since April 2008,⁷ and challenging the family court's jurisdiction.⁸ In a minute entry filed April 26, 2010, the court (the Honorable Carey Snyder Hyatt, presiding) denied the motion.

¶ 9 At the May 14, 2010 temporary orders/status hearing before Judge Hyatt, Mother again contested jurisdiction. The court ruled that Arizona had not relinquished jurisdiction over the custody issues involving the children, explaining its reasoning in part as follows:

And what happened was that even by mom's own information, she left with [the] children in July of '08. And that's when dad had said, testified earlier, that that was really the last time he's had other than telephonic contact with [the children].

He immediately filed an expedited request to enforce, which unfortunately didn't get resolved until December of '08. But at that point in time, your client was served, she had notice of the hearing, she was found in contempt, and to this day, is still in contempt of the Court's parenting time orders from back in, goodness, 2006, I guess they were.

So the mere fact that the passage of time [has occurred] cannot undermine this Court's home state jurisdiction under the [Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) ], when the whole time she's been in contempt of court for not following through with parenting time orders.

So that's why I indicated that, and will indicate here today, that Arizona has not relinquished its home state jurisdiction over the custody issues involving the child[ren]. She's been [in] contempt for a year and a half.

And if some action was ever started in New Mexico, you know, I could certainly counsel with the New Mexico judge, but I highly doubt that they would take away or undermine or overrule Arizona's home state jurisdiction. We've still got it.

The court also issued various temporary orders to ensure that Father receive parenting time.

¶ 10 In June 2010, Mother obtained an order of protection from the superior court after making allegations of abuse against Father and stating that she had contacted the FBI and the Scottsdale Police Department after allegedly discovering on May 6 that Father's website was linked to illegal pornography sites that appeared to depict violence against underage girls.⁹ Mother also informed the family court that Father's counsel had allegedly engaged in improper ex-parte communications with the parties' parenting conference provider, and she filed petitions for contempt against Father, alleging he had failed to pay child support and made misrepresentations to the court. Mother sought sanctions and increased child support.

¶ 11 Father's counsel responded by seeking sanctions pursuant to Rule 11, Ariz. R. Civ. P., against Mother and her counsel regarding the notice of purported ex-parte communication. Father also sought a hearing regarding Mother's “false” “allegations of abuse and association with offensive internet materials” and a status conference regarding her allegations with regard to the parenting conference provider, and he sought to quash the order of protection. After a hearing on June 25, 2010, the superior court quashed the order of protection based on a lack of evidence.

¶ 12 On August 2, 2010, the court (Judge Pro Tem Mina E. Mendez, presiding) held an evidentiary hearing on Father's petition to modify custody, parenting time, and child support. At the conclusion of the hearing, the court issued a preliminary ruling directing that the children be returned to Father and otherwise took the matter under advisement.

¶ 13 In a comprehensive and thoughtful signed minute entry filed August 27, 2010, the family court issued its ruling reaffirming that Arizona is the home state of the children and concluding it had not relinquished the jurisdiction it had obtained pursuant to A.R.S. § 25–1031(A)(1). The court denied Mother's motions and petitions, addressed Father's motions and petitions, and as to the petition to modify custody, ordered that the parties have joint legal custody and Father have primary residential custody, with Mother to receive parenting time as specified.¹⁰ The court also directed Father's counsel to submit a China Doll affidavit,¹¹ and subsequently awarded attorneys' fees to Father in the amount of $10,000 pursuant to A.R.S. § 25–324 (Supp.2010).

¶ 14 Mother filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12–2101(C) (2003).

ANALYSIS

I. Jurisdiction

¶ 15 Mother argues that the family court erred in concluding that Arizona retained exclusive, continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA, for purposes of modification of the initial child custody order. Finding no error, we affirm.

¶ 16 We review de novo whether a court has subject matter jurisdiction under the UCCJEA. See In re Marriage of Tonnessen, 189 Ariz. 225, 226, 941 P.2d 237, 238 (App.1997) (addressing the predecessor statute, the Uniform Child Custody Jurisdiction Act); see also Willie G....