Srery v. Hon hinz/srery ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
NICOLE ELAINE SRERY, Petitioner,
v.
THE HONORABLE RICHARD J. HINZ, Judge Pro Tem of the
SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County
of MARICOPA, Respondent Judge Pro Tem,
RICHARD PAUL SRERY, Real Party in Interest.
No. 1 CA-SA 17-0251
FILED 11-21-2017
Petition for Special Action from the Superior Court in Maricopa County
No. FC2010-093882
The Honorable Richard J. Hinz, Judge Pro Tempore
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Alexander R. Arpad, Attorney at Law, Phoenix
By Alexander R. Arpad
Co-Counsel for Petitioner
Zanon Law Offices, Phoenix
By Daniel A. Zanon, Bradley Miller
Co-Counsel for Petitioner
SRERY v. HON. HINZ/SRERY
Decision of the Court
Stanley David Murray, Attorney at Law, Scottsdale
By Stanley David Murray
Co-Counsel for Real Party in Interest
Cantor Law Group, PLLC, Phoenix
By Bryan Blehm
Co-Counsel for Real Party in Interest
MEMORANDUM DECISION
Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Kent E. Cattani joined.
B E E N E, Judge:
¶1 Nicole Elaine Srery (“Mother”) seeks special action relief from
the superior court’s order finding that Arizona lacks jurisdiction to enforce
her child custody agreement with Richard Paul Srery (“Father”). For the
following reasons, we accept jurisdiction, but deny relief.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father share joint custody of their two children,
C.S. (born in 2006) and J.S. (born in 2008) (collectively the “Children”).
When Mother and Father divorced in 2010 and entered into the Joint
Custody Parenting Plan (“Parenting Plan”), all parties resided in Arizona.
In pertinent part, the Parenting Plan provided that
The parties agree to review this plan every twelve (12)
months, and to make any necessary changes herein. If a major
change arises (such as moving or remarriage) and the
arrangements set forth herein are no longer feasible, then the
parents, upon either party’s request, shall set a time within
fourteen (14) days of the request to review this plan, and to
make changes as needed.
****
The parties agree the parenting time plan (schedule) set forth
herein shall remain in effect unless the parties stipulate to
other arrangements prior to the scheduled parenting time.
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****
Both parents agree that while a dispute is being resolved,
neither parent shall deviate from the parenting plan, or act in
such a way that is inconsistent with the terms of this
agreement.
****
. . . if either parent intends to relocate with a child outside of
the State of Arizona, that parent shall comply with all of the
provisions of ARS § 25-408 which includes a requirement to
provide at least 60 days written notice of his or her intent to
relocate.
¶3 In 2014, Father moved to Nebraska. Although the Children
remained in Arizona with Mother, Father continued to exercise his shared
parenting time over the next two years. In early 2016, the parties verbally
agreed that the Children would live with Father in Nebraska for the 2016-
2017 school year. As the end of the school year approached, Father
requested that the Children stay in Nebraska longer. Mother refused.
Nevertheless, Father kept them in Nebraska.
¶4 Mother filed a petition in Arizona to enforce the Parenting
Plan and an evidentiary hearing was held in August 2017. The court sua
sponte questioned whether jurisdiction was proper in Arizona or Nebraska.
After hearing testimony, the court found that “Arizona no longer remains
the home state of the children for a variety of reasons” and that jurisdiction
was proper in Nebraska. Mother then sought special action review.
JURISDICTION
¶5 Accepting special action jurisdiction is appropriate here
because during the pendency of an appeal, Mother’s parental rights would
be impaired and the Children “would face a prolonged period of
uncertainty concerning [their] living arrangement.” Sheets v. Mead, 238
Ariz. 55, 56, ¶ 6 (App. 2015). Thus, Mother has no equally plain, speedy,
and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a). “Additionally,
cases involving potential custody of young children are also often
appropriate for special action relief to achieve a speedy resolution.”
Antonsen v. Superior Court, 186 Ariz. 1, 4 (App. 1996).
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DISCUSSION
¶6 Mother argues the superior court abused its discretion by
finding that Arizona did not have exclusive, continuing jurisdiction over
this matter. Specifically, Mother contends that the court erred when it
“insisted on applying the ‘home state’ standard” of jurisdiction instead of
the “significant connection” standard. Mother also asserts that because she
still resides in Arizona, the court could not find that it lacked exclusive,
continuing jurisdiction on the basis that there was no significant connection
to Arizona. We disagree.
¶7 “Before it conducts a proceeding concerning legal decision-
making or parenting time . . . a court in this state first must confirm its
authority to do so to the exclusion of any other state . . . by complying with
the uniform child custody jurisdiction and enforcement act[.]” Ariz. Rev.
Stat. (“A.R.S.”) § 25-402(A). Under the Uniform Child Custody Jurisdiction
and Enforcement Act (“UCCJEA”), an Arizona court “has jurisdiction to
make an initial child custody determination” if Arizona is a child’s “home
state.” A.R.S. § 25-1031(A)(1). Home state means “[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[.]” A.R.S. § 25-
1002(7)(a). Here, there is no dispute that the Arizona court made the initial
custody determination as the Children’s home state when Mother and
Father divorced in 2010.
¶8 Once the initial custody determination is made, Arizona
retains “exclusive, continuing jurisdiction” until “neither the child, nor the
child and one parent . . . have a significant connection with this state and that
substantial evidence is no longer available in this state concerning the
child’s care, protection, training and personal relationships.” A.R.S. § 25-
1032(A)(1) (emphasis added). “With certain exceptions [not present here]
. . . the decision to discontinue exclusive, continuing jurisdiction belongs to
the court exercising it, and no other.” Melgar v. Campo, 215 Ariz. 605, 607, ¶
11 (App. 2007). “We review de novo whether a court has subject matter
jurisdiction under the UCCJEA,” Mangan v. Mangan, 227 Ariz. 346, 350, ¶
16 (App. 2011), but “will sustain the trial court’s ruling on any theory
supported by the evidence, even though the trial court’s reasoning may
differ from our own,” Lake Havasu Resort, Inc. v. Commercial Loan Ins. Corp.,
139 Ariz. 369, 373 (App. 1983).
¶9 At the beginning of the evidentiary hearing, the superior
court properly raised the threshold issue whether it had jurisdiction to
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proceed and adjudicate a decision on Mother’s petition to enforce the
Parenting Plan. See A.R.S. § 25-402(A). The court stated,
It’s my understanding the children reside in Nebraska with
father in conflict with the current parenting time order issued
out of the State of Arizona. The children had been enrolled in
school in Nebraska last year, and presumably are enrolled. I
don’t know if they’ve begun but it’s school time, so
presumably they are close to getting ready to start school or
have started a week or two of school already. Folks, if that’s
the situation, as I understand it, Nebraska is the court with
jurisdiction, the state with jurisdiction, and not Arizona.
The court and counsel held a lengthy discussion about the jurisdictional
standards and the court read §§ 25-1031 and -1032 into the record. Mother’s
counsel argued that Arizona was the Children’s home state because (1) the
Children maintain personal relationships there, as evidenced by witnesses
who were present in the courtroom and were prepared to so testify; and (2)
Mother still lives there and had acted as a parent for the past year. At that
point, the court instructed that the evidence presented would be narrowed
to the preliminary question of jurisdiction. The court stated,
We need to answer the jurisdictional question first. Folks,
what I am willing to do today and this is with some
reluctance, is to hear some very brief evidence about what is
the home state of the children. I’m not going to hear about
whether a parent or family was deprived. I will hear about
what the parties’ intentions were in regard to the children
residing in Nebraska, and the intentions regarding the return
of the children to Arizona.
¶10 Mother’s counsel then asked Mother to speak “about
significant connections with Arizona regarding your children.” Mother
testified that the Children have family and friends in Arizona with whom
they keep in touch, she and Father had discussed extracurricular activities
the Children would be involved in upon their return to Arizona, and she
had already registered them for the upcoming school year. Mother said
that she had not removed “all of their stuff” from the Children’s rooms and
still had their “beds and some clothes” in her home. Mother testified that
during the year that the Children lived in Nebraska, she visited with them
approximately nine times in Arizona and for one week in Nebraska. As for
the Children’s lives in Nebraska, Mother acknowledged that they have
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“quite a few friends,” are engaged in activities, go to school, and receive
their medical treatment there, including J.S.’s counseling sessions.
¶11 Father testified that from 2014-2016 while he lived in
Nebraska and the Children lived with Mother, he visited them 196 days per
year in both Arizona and Nebraska. He acknowledged that the Children
still have family and friends in Arizona, but have only spoken with those
friends once or twice over the last six months. Father testified that the
Children are thriving in Nebraska, have many friends, and are involved in
many activities, including soccer, viola, and choir. J.S. also receives
counseling there. Father said the Children have good relationships with
their extended family of step siblings, aunts, uncles, and cousins in
Nebraska, and because Father is a stay-at-home parent, he has a lot of time
to spend with them.
¶12 After hearing testimony, the court relinquished its exclusive,
continuing jurisdiction. See Melgar, 215 Ariz. at 607, ¶ 11 (“[T]he decision
to discontinue exclusive, continuing jurisdiction belongs to the court
exercising it, and no other.”) Despite applying and labeling the incorrect
“home state” standard under A.R.S. § 25-1031(A) (because this was not the
initial custody determination), the court continued to properly analyze the
“significant connection” standard under § 25-1032(A) to determine if
Arizona retained exclusive, continuing jurisdiction. In doing so, the court
found that Father and the Children no longer have a significant connection
with Arizona and evidence of the Children’s care, protection, training, and
personal relationships is in Nebraska, not Arizona. The court found that
Arizona no longer remains the home state of the children for
a variety of reasons. They are smaller children, not physically
present in Arizona, have not physically been present in
Arizona for about a year and a half. Second, the children are
enrolled and attending school currently in the State of
Nebraska. The children may be enrolled, but they are not
physically present here attending school. Third, the children
participate in a variety of extracurricular activities in
Nebraska including sports, activities, viola, gymnastics, club
activities through the daughter’s school. The children are
fully engaged in activities in the State of Nebraska. Fourth,
[J.S.] is participating in counseling in the State of Nebraska,
has been participating in counseling in the State of Nebraska
since shortly after his arrival there. Fifth, there’s been no
petition to relocate filed. The parties arranged this agreement
between themselves without officially relocating through the
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State of Arizona. The children have now been out of the State
of Arizona for over a year. There is no order allowing the
relocation so there is no [actual] consent by the State of
Arizona. When the children relocate to another state, for a
period of time, this agreement was not approved by the State
of Arizona, it just happened between the parties. Now the
children have been in Nebraska for over a year. Six, [Mother]
has had no significant parenting time with the children in the
last year and a half. By the testimony, 11 to 13 days or so, or
11 to 14 days with the children. The children reside primarily
in the State of Nebraska. Seven, the children get all their
medical care in the State of Nebraska including as I
mentioned earlier those counseling services. These children’s
home state at this point is Nebraska, not Arizona. The Court’s
going to decline to exercise jurisdiction based on the fact that
the home state of the children is currently the State of
Nebraska. This order, that does not mean that this order is
unenforceable, this just means that this Court will not enforce
the order today. Nebraska is the home state at this point.
Father can seek, or mother can seek enforcement of this order
in the State of Nebraska.
¶13 Nevertheless, Mother argues that because the parties did not
address the jurisdictional issues in their pretrial statements and the court
made this ruling on its own, she “never had a fair chance to marshal
evidence on the jurisdictional issue” and we “cannot uphold a decision
based on factual findings that were never made on issues that were never
tried.” The record belies Mother’s argument. Mother specifically argued
the jurisdictional basis was proper under the significant connection
standard of A.R.S. § 25-1032(A), the testimony was tailored to elicit such
evidence, and despite conflating the two labels of “home state” and
“significant connection,” the court’s findings establish that neither the
Children nor Father have significant connections with Arizona and that
substantial evidence is no longer available here concerning the Children’s
care, protection, training, and personal relationships.
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¶14 Thus, the court did not err in relinquishing its exclusive,
continuing jurisdiction in favor of Nebraska.1
CONCLUSION
¶15 Based on the foregoing, we accept special action jurisdiction,
but deny relief. In the exercise of our discretion, we deny both parties’
request for attorneys’ fees under A.R.S. § 25-324.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 Because we find that the superior court did not err in relinquishing
its exclusive, continuing jurisdiction under Arizona Revised Statutes
section 25-1032(A)(1), we do not address Mother’s arguments that the court
abused its discretion by refusing to enforce the Parenting Plan or deviating
from the Parenting Plan without following the statutory process.
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