Antonetti v. Hon. Westerhausen Klinger ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ROBERTO ANTONETTI, Petitioner,
v.
THE HONORABLE TRACEY WESTERHAUSEN, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
Maricopa, Respondent Judge,
ALISON MERCEDES KLINGER, Real Party in Interest.
No. 1 CA-SA 22-0205
FILED 1-12-2023
Petition for Special Action from the Superior Court in Maricopa County
No. FC2020-006551
The Honorable Tracey Westerhausen, Judge
JURISDICTION ACCEPTED, RELIEF DENIED
COUNSEL
Ellsworth Family Law PC, Mesa
By Glenn D. Halterman
Counsel for Petitioner
Cantor Law Group PLLC, Phoenix
By Travis Owen
Counsel for Real Party in Interest
ANTONETTI v. HON. WESTERHAUSEN/KLINGER
Opinion of the Court
OPINION
Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.
C A M P B E L L, Judge:
¶1 Petitioner Roberto Antonetti (Father) seeks special action
relief, challenging a superior court order exercising subject matter
jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), A.R.S. §§ 25-1001 through -1067, over Alison
Klinger’s (Mother) petition to establish paternity, legal decision-making,
parenting time, and child support for the parties’ child. Because the totality
of the circumstances reflects that the child permanently relocated to
Arizona from his former home state, the superior court properly exercised
subject matter jurisdiction over the child custody case. Accordingly, we
accept special action jurisdiction but deny relief.
BACKGROUND
¶2 Father, an Italian citizen, moved to Tunisia in 2007. Mother,
an American citizen, moved to Tunisia in 2013. In December 2013, Father
and Mother began a romantic relationship. In March 2018, their son was
born in Tunisia, acquiring dual Italian and American citizenship through
his parents.
¶3 In February 2020, the parties traveled with the child to Italy
for a vacation. While there, the Covid-19 pandemic struck the country, and
by the end of the parties’ planned vacation, the Italian government had
imposed travel restrictions. Nonetheless, Father and Mother could have
returned to Tunisia with the child at that time, but they decided to remain
in Italy. Shortly thereafter, Tunisia closed its borders to international travel.
¶4 On April 13, 2020, Mother flew with the child to the United
States on a repatriation flight reserved only for United States citizens.
Although he could not join them, Father drove Mother and the child to the
Italian airport for their flight.
¶5 Father returned to Tunisia on June 27, 2020, the first day it
reopened its borders. Mother and the child remained in Arizona, where
they have lived since April 13, 2020.
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ANTONETTI v. HON. WESTERHAUSEN/KLINGER
Opinion of the Court
¶6 On November 3, 2020, Mother petitioned the superior court
to establish paternity, legal decision-making, parenting time, and child
support. Although Mother asked the superior court to establish paternity,
neither party contests that Father is the child’s biological father, and his
parental status is reflected on the child’s birth certificate.1 As outlined in the
petition, Mother alleged that she relocated to Arizona with the child to
protect them from domestic violence perpetrated by Father. Mother
requested sole legal decision-making authority for the child, sole physical
custody with Father granted only supervised parenting time, and an order
for child support under the Arizona Child Support Guidelines.
¶7 On January 12, 2021, a process server affixed copies of
Mother’s petition and a summons to appear on the front door of Father’s
home in Tunisia. Two months later, Father moved the superior court to
dismiss the petition for lack of both subject matter and personal jurisdiction.
According to Father, the child was only “temporarily absent” from Tunisia,
so Tunisia remained the child’s “home state” with jurisdictional priority.
¶8 In response, Mother noted that before relocating to Arizona,
“[t]he child had never lived anywhere consecutively longer than three (3)
months.”2 Mother also argued that Arizona is the child’s home state
because he “lived with her in Arizona for more than six consecutive months
immediately prior to the commencement of the instant child custody
proceeding.”
¶9 After full briefing and an evidentiary hearing, the superior
court denied Father’s motion to dismiss. As outlined in its ruling, the
superior court reasoned that Mother’s: (1) decision to travel to the United
States with the child on a repatriation flight, (2) failure to return to Tunisia
when it reopened its borders to international travel, and (3)
communications with Father expressing her “deep unhappiness” with their
relationship and “obvious reluctance” to return to Tunisia “negate[d]” any
claim of a temporary absence. The superior court also concluded that the
child “had no home state” before relocating to Arizona and determined
that, at this point, Arizona is the child’s home state. Accordingly, the
1 To the extent Mother initially challenged Father’s paternity, she
waived the claim by failing to pursue it.
2 Before traveling to Arizona in April 2020, Mother and the child
visited the United States on three occasions: July 20, 2018 to September 15,
2018 (58 days), April 22, 2019 to June 6, 2019 (46 days), and October 20, 2019
to December 5, 2019 (47 days).
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ANTONETTI v. HON. WESTERHAUSEN/KLINGER
Opinion of the Court
superior court exercised jurisdiction over Mother’s petition under the
UCCJEA.
¶10 Father moved to amend the judgment, arguing Tunisia was
the child’s home state before April 2020, and even if he had reason to
recognize that the child’s relocation to Arizona was permanent based on his
communications with Mother, six months had not transpired between
those communications and the date she filed the petition, so Tunisia
remained the child’s home state for purposes of determining jurisdiction.
The superior court denied Father’s motion to amend the judgment but
stated it “was wrong when it concluded that the child had no home state”
before relocating to Arizona, agreeing with Father that “Tunisia was the
home state for the child” before April 2020.3 Father petitions this court for
relief.
SPECIAL ACTION JURISDICTION
¶11 “Special action jurisdiction is discretionary, but appropriate
when no ‘equally plain, speedy, and adequate remedy by appeal’ exists.”
Gutierrez v. Fox, 242 Ariz. 259, 264, ¶ 12 (App. 2017) (quoting Ariz. R.P. Spec.
Act. 1(a)). “We also have discretion to accept special action jurisdiction
when statutes or procedural rules require immediate interpretation, and a
petition presents a purely legal issue of first impression that is of statewide
importance.” Id. at ¶ 13 (internal quotation and citation omitted).
¶12 Here, the petition for special action raises an issue of first
impression regarding the proper legal standard for evaluating whether a
child is “temporarily absent” from a putative “home state” to determine
initial jurisdiction under the UCCJEA. Therefore, in the exercise of our
discretion, we accept special action jurisdiction.
DISCUSSION
¶13 Father contends the superior court improperly exercised
jurisdiction over this child custody matter in violation of the UCCJEA. “We
review issues of law, including statutory interpretation and a court’s
jurisdictional authority, de novo.” Holly C. v. Tohono O’odham Nation, 247
Ariz. 495, 505, ¶ 26 (App. 2019). “To the extent a court’s jurisdictional
3 As documented in exhibits attached to Mother’s response to the
petition for special action, a Tunisian court subsequently dismissed Father’s
parallel petition for custody filed in that country. Father does not contest
the accuracy of these documents.
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ANTONETTI v. HON. WESTERHAUSEN/KLINGER
Opinion of the Court
determination rests on disputed facts, however, we accept the court’s
findings if reasonable evidence and inferences support them.” Id.¶14 “[T]o prevent competing and conflicting custody orders by
courts in different jurisdictions[,]” the UCCJEA vests “exclusive, continuing
jurisdiction with the state that issues the initial child custody determination,
subject to statutory exceptions.” Angel B. v. Vanessa J., 234 Ariz. 69, 72, ¶ 8
(App. 2014); see also A.R.S. § 25-1005(A) (“A court of this state shall treat a
foreign country as if it were a state of the United States for the purpose of
applying [the UCCJEA].”).4 Under the UCCJEA, an Arizona court has
jurisdictional priority for an initial child custody determination if Arizona
“is the home state of the child on the date of the commencement of the
proceeding[.]” A.R.S. § 25-1031(A)(1). A “home state” under the UCCJEA is
“[t]he state in which a child lived with 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.” A.R.S. § 25-1002(7)(a) (emphasis added).
¶15 By the time Mother filed the petition on November 3, 2020,
the child had continuously lived in Arizona for a period slightly longer than
six months (since April 13, 2020). But Father argues that the child was only
temporarily absent from Tunisia during this time and, therefore, Arizona
lacks jurisdiction to enter an initial custody determination. See Bata v. Konan,
217 A.3d 774, 781 (N.J. Super. Ct. Ch. Div. 2019) (“[J]urisdiction cannot be
established in a state where the time spent in that state is found to be a
period of temporary absence from another state.”).
¶16 The UCCJEA does not define “temporarily absent,” see A.R.S.
§ 25-1002, and no Arizona case has adopted a standard for assessing
whether an absence qualifies as temporary for determining a child’s “home
state.” See In re Marriage of Margain & Ruiz-Bours, 239 Ariz. 369, 378, ¶¶ 36–
38 (App. 2016) (rejecting a parent’s contention that a child’s 10-month
absence from a state was temporary, noting the period in that case was
“much longer” than the absences at issue in cases cited to the court); see also
Duwyenie v. Moran, 220 Ariz. 501, 503, ¶ 9 (App. 2009) (concluding that
Arizona was the child’s home state notwithstanding that the child “had not
lived in Arizona for six months prior to [the commencement of the custody]
4 Although Mother asserted that she refused to return to Tunisia, at
least in part, because it offers few, if any, resources for victims of domestic
violence, she never argued that the UCCJEA does not apply to this matter
because the “child custody law of [Tunisia] violates fundamental principles
of human rights.” See A.R.S. § 25-1005(C).
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ANTONETTI v. HON. WESTERHAUSEN/KLINGER
Opinion of the Court
proceedings” because the child’s removal from the state was
“unauthorized―and arguably criminal”). Absent any controlling authority,
we consider the legal standards applied in other jurisdictions construing
the UCCJEA.
¶17 Although the UCCJEA “[wa]s meant to be interpreted
uniformly across jurisdictions,” states have adopted three different tests to
evaluate whether an absence is temporary for purposes of determining a
child’s home state: (1) the duration test, (2) the intent test, and (3) the totality
of the circumstances test. Matter of Marriage of Schwartz & Battini, 410 P.3d
319, 321, 325 (Or. Ct. App. 2017); see also Andrea Charlow, There’s No Place
Like Home: Temporary Absences in the UCCJEA Home State, 28 J. Am. Acad.
Matrim. L. 25, 30–36 (2015) (identifying the different legal tests that
appellate courts have adopted to determine whether an absence is
temporary under the UCCJEA).
¶18 The duration test focuses strictly on the length of the child’s
absence. In other words, “short absences are treated as temporary, and
longer ones are not.” Marriage of Schwartz & Battini, 410 P.3d at 325. While
this approach offers the simplicity of a relatively bright-line standard, it
fails to recognize that some short absences “may simply be the start of a
permanent relocation.” Id. The intent test, by contrast, requires courts to
consider the parents’ purpose for an absence to determine whether it
should be deemed temporary. Id. Apart from the general difficulty of
divining parties’ intent, this test is also “problematic” because the parties’
intentions may have differed from the outset or changed over time. Id.¶19 Given the shortcomings of both the duration and the intent
tests, we adopt the totality of the circumstances approach, which is the
standard “most commonly used by other UCCJEA states.” Id. at 325. Under
the totality of the circumstances test, we consider “all the surrounding
circumstances of a purported temporary absence, including [the] intent of
the parties and [the] duration of [the] absence, to assess whether the absence
should be treated as a temporary departure from a putative home state.” Id.
at 325. This test provides “greater flexibility” for a court to examine all the
relevant facts, including how, when, and why “the child came to and
remained in the state.” Bata, 217 A.3d at 781, 784.
¶20 With that standard in mind, we consider the evidence
presented by the parties. At the evidentiary hearing, Father testified that:
(1) he did not approve of Mother leaving Italy with the child on the
repatriation flight; (2) the parties agreed before Mother and the child left
Italy that she and the child would return to Tunisia as soon as international
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ANTONETTI v. HON. WESTERHAUSEN/KLINGER
Opinion of the Court
travel was reestablished; (3) Mother’s communications with him after
arriving in Arizona “were consistent with her returning to Tunisia”; and (4)
he did not realize Mother intended to permanently remain in Arizona with
the child until he was served with a copy of her petition. To support his
contention that the parties intended for the child’s presence in Arizona to
be only temporary, Father pointed to several of Mother’s communications:
WhatsApp Message from Mother to Father on March 30, 2020,
concerning a return to Tunisia:
If and when they . . . lift the restrictions about
quarantine in Tunisia, we’ll gladly come back and
hopefully in the meantime we can find some way to
communicate about our relationship and try to
repair.
Email from Mother to Father on April 23, 2020, concerning a
banking matter:
It’s pointless for me to make the transfer to my
personal account if I can’t wire it to my account in
America so I’ll just wait until I get back to Tunisia[.]
WhatsApp Message from Mother to Father on July 11, 2020,
explaining that she was unable to travel due to a back injury:
I know you’re in a hurry for us to return but I can
barely walk.
¶21 But in response to questioning, Father admitted that Mother
had “expressed a desire to stay in Arizona” and conveyed considerable
reluctance about returning to Tunisia. He also acknowledged that he had
been copied on the following letter that Mother emailed to her Arizona
therapist on August 5, 2020:
[The child] and I did leave Italy for Phoenix on April 13th
however both [Father] and I were agreed and understood that
we would be in America until the Coronavirus pandemic
passed and it became safe and possible to travel again.
....
[Father] expressed sadness at our departure but agreed and
understood that we needed to return to the US to have some
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ANTONETTI v. HON. WESTERHAUSEN/KLINGER
Opinion of the Court
distance from him due to the abuse [the child] and I were
suffering within our relationship.
....
During our time in Phoenix, I have requested repeatedly that
[Father] work constructively with me to attempt to repair our
relationship or determine a go-forward plan. I have proposed
various living situations, asked him to discuss my fears and
issues related to our relationship and the poor living
conditions in Tunisia. He has refused each time.
....
Despite the four months of separation between us, I remain
afraid of returning to Tunisia and [Father’s] home. I have a
duty to protect [the child] from the certain consequences we
will suffer at [Father’s] hand for protecting [the child] and
myself[.]
Despite reading the letter, Father testified that he believed Mother “could
still come back.”
¶22 Mother, in turn, testified that she told Father she could not
continue their relationship in March 2020, while in Italy, and again in April
2020, just before traveling to the United States. Stating she was afraid of
Father, Mother explained that she did not directly tell him she was leaving
him, with no plan to return, and instead stated that their relationship was
unhealthy and harming the child. Mother also testified that after she arrived
in Arizona, she repeatedly told Father that she would not “consider”
returning to Tunisia unless he made behavioral changes and could assure
both her and the child’s safety. Although she acknowledged that she
frequently tried to placate Father to avoid confrontations, Mother denied
misleading him or hiding her intent to stay in Arizona with the child.
¶23 Relying on Cook v. Arimitsu, 907 N.W.2d 233, 239 (Minn. Ct.
App. 2018), Father asserts that the six-month period for determining a
child’s “home state” does not begin to run until the parent in the original
state “had reason to recognize the permanency of the out-of-state absence.”
(emphasis omitted) (citation omitted). Claiming he had no reason to believe
the child’s absence from Tunisia was permanent until he was served with
Mother’s petition, Father argues that the six-month period did not begin to
run in this case until January 2021, two months after Mother commenced
this custody proceeding.
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ANTONETTI v. HON. WESTERHAUSEN/KLINGER
Opinion of the Court
¶24 But this contention is belied by Father’s (1) admission that
after arriving in the State, Mother “expressed a desire” to remain in Arizona
and conveyed considerable reluctance when pressed about returning to
Tunisia, and (2) emails imploring Mother to return to Tunisia, promising
no “reproach await[ed]” her. In re Marriage of Pereault, 829 N.W.2d 192(Iowa Ct. App. 2013) (“[I]n determining whether an absence is a ‘temporary
absence,’ we do not believe the significance of intent can or should be
restricted to the intent existing at the time of leaving. If it were so restricted,
then an absence that began with [the] intent to return would remain a
‘temporary absence’ even long after a decision had been reached for the
child to permanently relocate.”). Although Father argues that “an
expression of a desire to remain in Arizona is very different from a
declaration [of intent] to remain in Arizona,” Mother testified,
unequivocally, that she told Father, both before leaving Italy and after
arriving in Arizona, that she believed it was unsafe for her and the child to
return to Tunisia. Considering Mother’s uncontroverted testimony, Father
essentially argues that the six-month period for determining the child’s
home state could not begin until he realized he could not persuade Mother
to return to Tunisia and abandoned hope of reconciliation and
reunification. But that is not the legal standard espoused under Cook; rather,
the question is when Father had reason to recognize the child’s relocation
was permanent, not when he resigned himself to that reality.
¶25 Recognizing that the superior court is in the best position to
determine the credibility of witnesses, resolve conflicts in the evidence, and
weigh the evidence accordingly, it was not error for the court to conclude
that Father had reason to believe Mother was permanently relocating to
Arizona with the child when they left Italy. See Goats v. A.J. Bayless Mkts.,
Inc., 14 Ariz. App. 166, 171 (1971) (noting the superior court “is in the best
position to judge the credibility of the witnesses, the weight of evidence,
and also the reasonable inferences to be drawn therefrom”). Moreover,
considering the totality of the circumstances, reasonable evidence supports
the superior court’s finding that the child’s absence from Tunisia was not
temporary for purposes of the UCCJEA. As such, and given the length of
the child’s continuous presence in the State before Mother filed her petition,
the superior court properly found that Arizona is the child’s home state for
purposes of subject matter jurisdiction under the UCCJEA.5
5 Given our disposition, we need not address Mother’s contention that
the superior court may now exercise jurisdiction under A.R.S. § 25-1031
based on Tunisia’s dismissal of Father’s petition for custody.
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ANTONETTI v. HON. WESTERHAUSEN/KLINGER
Opinion of the Court
CONCLUSION
¶26 For the foregoing reasons, we accept jurisdiction but deny
relief. Both parties request an award of their attorney’s fees under A.R.S. §
25-324, which authorizes an award of attorney’s fees after considering both
parties’ financial resources and the reasonableness of their positions
throughout the proceedings. We have no information concerning the
parties’ respective financial resources. We find, however, Father’s
contention that he had no reason to believe the child’s relocation to Arizona
was permanent until he was served with Mother’s custody petition patently
unreasonable. Moreover, his failure to disclose the dismissal of his custody
petition in the Tunisian court reflects a lack of candor. Accordingly, in our
discretion, we award Mother her reasonable attorney’s fees and taxable
costs upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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