In Re the Marriage of Margain and Ruiz-Bours ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
IN RE THE MARRIAGE OF
MAURICIO FERNANDEZ MARGAIN,
Petitioner/Appellant,
and
ELSA LOURDES RUIZ-BOURS,
Respondent/Appellee.
No. 2 CA-CV 2015-0067
Filed April 22, 2016
Appeal from the Superior Court in Pima County
No. D20143642
The Honorable Ken Sanders, Judge Pro Tempore
REVERSED AND REMANDED
COUNSEL
Gerald D. Sherrill, Scottsdale
Counsel for Petitioner/Appellant
Ann Nicholson Haralambie, Attorneys, P.C., Tucson
By Ann M. Haralambie
Counsel for Respondent/Appellee
IN RE THE MARRIAGE OF MARGAIN AND RUIZ-BOURS
Opinion of the Court
OPINION
Judge Staring authored the opinion of the Court, in which Presiding
Judge Howard and Judge Espinosa concurred.
S T A R I N G, 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.
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Opinion of the Court
¶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
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Opinion of the Court
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
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Opinion of the Court
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
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Opinion of the Court
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 served with an order to show
cause, he again failed to appear. Id. The husband then sought “aid
from the appellate branch of the same judicial process he [had]
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Opinion of the Court
repeatedly scorned at other levels.” Id. at 358, 372 P.2d at 699.
While noting the decision whether to dismiss was discretionary and
would “depend on the facts of each case,” the Stewart court
concluded dismissal was “clearly warranted” by the facts before it.
Id. at 360, 372 P.2d at 700.
¶17 An appellate court exercises its contempt powers when
it dismisses the appeal of a party who is in “flagrant and
contumacious disregard” of trial court orders. See id. at 357, 360,
91 P.2d at 698, 700; see also Sheehan v. Flower, 217 Ariz. 39, ¶ 17,
170 P.3d 288, 292 (App. 2007) (“[A] court may exercise its inherent
contempt power to remedy a violation of a court order.”);
17 Am. Jur. 2d Contempt § 1 (2016) (“One of the most important and
essential powers of a court is the authority to protect itself against
those who disregard its dignity and authority, and this authority is
appropriately administered through the court’s power to punish by
contempt.”); Dan. B. Dobbs, Handbook on the Law of Remedies § 2.9, at
100 (1973) (“One kind of [contempt] penalty sometimes levied upon
a contumacious party is a denial of his right to litigate.”). An
appellate court may punish contempt pursuant to its “inherent
powers . . . as [is] necessary to the ordinary and efficient exercise of
jurisdiction.” State ex rel. Andrews v. Superior Court, 39 Ariz. 242,
247-48, 5 P.2d 192, 194 (1931), overruled on other grounds by Genda v.
Superior Court, 103 Ariz. 240, 242, 439 P.2d 811, 813 (1968); see also
Stewart, 91 Ariz. at 358, 372 P.2d at 699, quoting Nat’l Union of Marine
Cooks & Stewards v. Arnold, 348 U.S. 37, 45 (1954) (“The United States
Supreme Court has ruled that dismissal of a contumacious
appellant’s appeal . . . is a ‘reasonable’ method of . . . ‘sustaining the
effectiveness of a state’s judicial process . . . .’”).
¶18 As noted above, however, whether to impose the
sanction of dismissal is discretionary and “depend[s] on the facts of
[the] case.” Stewart, 91 Ariz. at 360, 372 P.2d at 700. In the case of a
contumacious party, whether to dismiss is similar in nature to a
decision in equity, making it helpful to consider equitable principles.
See Grand Int’l Bhd. of Locomotive Eng’rs v. Mills, 43 Ariz. 379, 398,
31 P.2d 971, 978 (1934) (“When a new condition arises and the legal
remedies afforded are inadequate, the never-failing capacity of
equity to adapt itself to the situation will be found equal to the
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Opinion of the Court
emergency.”); Dobbs, supra, § 2.1, at 28 (“[A] case is sometimes
referred to as equitable in the rather loose sense that it involves
questions of discretion, or judgment, or calls for principles of justice
and conscience rather than rigid ‘legal’ rules.”).
¶19 “It is a cardinal rule of equity that he who comes into a
court of equity seeking equitable relief must come with clean
hands.” MacRae v. MacRae, 57 Ariz. 157, 161, 112 P.2d 213, 215
(1941). The maxim can be summarized as follows:
[W]henever a party, who, as actor, seeks to
set the judicial machinery in motion and
obtain some remedy, has violated
conscience, or good faith, or other equitable
principle, in his prior conduct, then the
doors of the court will be shut against him
in limine; the court will refuse to interfere
on his behalf, to acknowledge his right, or
to award him any remedy.
Sines v. Holden, 89 Ariz. 207, 209-10, 360 P.2d 218, 220 (1961), quoting
2 Pomeroy 91, Equity Jurisprudence, § 397 (5th ed.); see also 27A
Am. Jur. 2d Equity § 98 (2016) (“The equitable doctrine of clean
hands expresses the principle that where a party comes into equity
for relief he or she must show that his or her conduct has been fair,
equitable, and honest as to the particular controversy at issue.”).
¶20 In this case, both Ruiz-Bours and Margain have unclean
hands, and have acted outrageously. Margain sought a divorce and
custody of Sophia in Mexico, the country in which Ruiz-Bours and
Sophia had been located for approximately ten months before
Margain initiated the proceedings. He followed the required
procedures in that country, was challenged, and won on appeal.
Ruiz-Bours, however, in violation of the Second Family Court’s
order, absconded with Sophia to Arizona. Thus, while we in no way
condone Margain’s recent contempt, absconding with Sophia, we
cannot ignore the fact Ruiz-Bours seeks to have Margain’s appeal
dismissed as a sanction for the very same misconduct she committed
when she brought Sophia to Arizona. This case would not have
arisen before us but for Ruiz-Bours’s violation of the Second Family
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Opinion of the Court
Court’s order not to remove Sophia. We will not impose the
sanction of dismissal under these circumstances.
Enforcement under the UCCJEA
¶21 Because this matter “involves a matter of statutory
interpretation,” we conduct de novo review. Melgar v. Campo,
215 Ariz. 605, ¶ 6, 161 P.3d 1269, 1270 (App. 2007). The “primary
goal of statutory interpretation is to find and give effect to legislative
intent.” Mathews ex rel. Mathews v. Life Care Ctrs. of America, Inc.,
217 Ariz. 606, ¶ 6, 17 P.3d 867, 869 (App. 2008). The plain language
of a statute is the best indication of that intent. Id. When “a statute’s
language is clear and unambiguous, we apply it without resorting to
other methods of statutory interpretation.” Hayes v. Cont’l Ins. Co.,
178 Ariz. 264, 268, 872 P.2d 668, 672 (1994). Also, in construing a
statute, we do so “in a way that promotes consistency, harmony, and
function. If possible, each word or phrase must be given meaning so
that no part is rendered void, superfluous, contradictory or
insignificant.” Welch-Doden v. Roberts, 202 Ariz. 201, ¶ 22, 42 P.3d
1166, 1171 (App. 2002) (citations omitted).
¶22 The UCCJEA, as enacted in Arizona, contains several
provisions relating to the enforcement of child custody
determinations. At issue in this matter is how courts are to treat
child custody determinations made in foreign countries.
¶23 The UCCJEA addresses the effect to be given to child
custody determinations made in foreign countries in § 25-1005(B),
which provides that “a child custody determination made in a
foreign country under factual circumstances in substantial
conformity with the jurisdictional standards of [the UCCJEA] must
be recognized and enforced.” The UCCJEA further provides, “A
court . . . shall recognize and enforce a child custody determination
of a court of another state if the latter court exercised jurisdiction in
substantial conformity with this chapter or the determination was
made under factual circumstances meeting the jurisdictional
standards of [the UCCJEA].” § 25-1053(A). Foreign countries are to
be treated as if they are “state[s] of the United States” for resolving
questions of jurisdiction. § 25-1005(A). The plain language of these
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Opinion of the Court
provisions leads us to conclude that jurisdiction to determine
custody of Sophia lies exclusively in the courts of Mexico.1
¶24 The UCCJEA focuses on a “home state” analysis in
determining whether Arizona courts have jurisdiction to make an
initial child custody determination. See § 25-1031(A). This is
because the UCCJEA provides Arizona has jurisdiction to make an
initial custody determination only if any of the following apply:
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 person
acting as a parent, have a significant
1On the day before oral argument in this court, Ruiz-Bours
filed a motion to supplement the record, attaching “a Mexican
amparo order and translation.” She asserts the amparo amounts to a
“finding that the trial judge in Tijuana had not complied with proper
procedures regarding granting [Margain] custody” and that “the
validity and finality of the Mexican custody order is at issue.” We
have considered the amparo, and do not find its effect to be as
evident as Ruiz-Bours asserts. Moreover, any determination of its
impact is best left to the courts of Mexico.
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Opinion of the Court
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). The “home state” under the UCCJEA is “the 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.” § 25-1002(7)(a).
¶25 Here, the trial court analyzed the various subsections of
the UCCJEA to mean, “if the child custody determination of the
[foreign country] was entered ‘in substantial conformity with the
jurisdictional standards’ of the UCCJEA, it is enforceable. If it was
not, it is not enforceable.” The court noted “[t]he Second Family
Court’s exercise of jurisdiction may have been entirely proper under
the laws of Mexico. . . . That does not mean, however, that it
properly exercised jurisdiction under the UCCJEA.” Dispositive to
the court was the jurisdictional analysis conducted by the Mexican
courts, which based jurisdiction “on the location of the marital
residence,” or, when applicable, “the residence of the abandoned spouse,”
and did not take the residence of the child into consideration. Thus,
because where Sophia “lived was clearly irrelevant to the
jurisdictional analysis under Mexican law,” the trial court concluded
“the custody determination made by the Second Family Court was
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Opinion of the Court
[not] made ‘in substantial conformity with the jurisdictional
standards’ of the UCCJEA.”
¶26 Under the UCCJEA, however, child custody
determinations made in foreign countries “must be recognized and
enforced” if they were made “under factual circumstances in
substantial conformity with the jurisdictional standards” of the
UCCJEA. § 25-1005(B) (emphasis added). Notably, an analysis of
factual circumstances is also required by § 25-1053(A), which
requires enforcement of a child custody determination of a court of
another state (foreign countries being treated as states under § 25-
1005(A)) “if the latter court exercised jurisdiction in substantial
conformity” with the jurisdictional standards of the UCCJEA “or the
determination was made under factual circumstances meeting the
jurisdictional standards of [the UCCJEA].” § 25-1053(A) (emphasis
added). Thus, whether examining a child custody determination
made by a court in another state or another country, the plain
language of the UCCJEA instructs Arizona courts to examine the
factual circumstances under which the non-Arizona court exercised
jurisdiction.
¶27 The trial court, in contrast, analyzing whether the
Second Family Court exercised jurisdiction “in substantial
conformity” with the UCCJEA, only considered the legal
circumstances under which the court exercised jurisdiction and did
not consider the factual circumstances. This had the effect of
disregarding § 25-1005(B) and rendering the “factual circumstances”
portion of § 25-1053(A) void, superfluous, and insignificant. As
noted above, “[i]f possible, each word or phrase [of a statute] must
be given meaning so that no part is rendered void, superfluous,
contradictory or insignificant.” Welch-Doden, 202 Ariz. 201, ¶ 22,
42 P.3d at 1171.
¶28 Here, the UCCJEA required determining whether the
factual requirements for exercising jurisdiction existed in the case
before the Second Family Court. In other words, did the facts show
Mexico was Sophia’s home state in substantial conformity with the
UCCJEA? See Welch-Doden, 202 Ariz. 201, ¶ 30, 42 P.3d at 1173 (“The
drafters made it clear that the [UCCJEA] was to give priority to a
finding of home state jurisdiction over any other jurisdictional
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provisions.”); UCCJEA, prefatory note, 9 U.L.A. 651 (“The UCCJEA
prioritizes home state jurisdiction . . . .”). Whether the Second
Family Court determined its own jurisdiction by employing
procedures in substantial conformity with the UCCJEA was not
dispositive; what mattered was the home state of the child.2
¶29 The trial court’s interpretation of the UCCJEA could
lead to troubling outcomes. Under the court’s analysis, any country
without jurisdictional criteria similar to the UCCJEA potentially
would lack jurisdiction to make child custody determinations
Arizona courts would enforce. A parent in such a country that
disagreed with their court’s ruling on jurisdiction could abscond
with their child to Arizona hoping to thwart enforcement. We do
not believe the UCCJEA was meant to be such an affront to comity
or to increase the likelihood of abductions. 3 Nor does the plain
language of the UCCJEA support that analysis. See § 25-1005(B)
and (C). When a foreign country makes a child custody
determination, and it has jurisdiction by virtue of being the home
state of the child (under factual circumstances in substantial
conformity with the UCCJEA), that custody determination must be
enforced by the courts of this state.4
2 We decline to decide what amount of time a child would
have to reside in a foreign country for that country to be the home
state of the child in substantial conformity with the UCCJEA. But
here, as the parties stipulated and the trial court acknowledged,
Sophia had resided in Mexico for a period of time that would make
Mexico the home state under the UCCJEA.
3“Under the principle of ‘comity,’ courts of one jurisdiction
will give effect to the laws and judicial decisions of another
jurisdiction, not as a matter of obligation, but out of deference and
mutual respect.” Leon v. Numkena, 142 Ariz. 307, 311, 689 P.2d 566,
570 (App. 1984).
4 With the exception of child custody determinations that
“violate[] fundamental principles of human rights.” § 25-1005(C).
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¶30 Our holding is further buttressed by comments of the
original drafters of the UCCJEA. Under UCCJEA § 105 cmt.,
9 U.L.A. 662, the drafters commented, “Custody determinations of
other countries will be enforced if the facts of the case indicate that
jurisdiction was in substantial compliance with the requirements of
this Act.” Furthermore, the purported purposes of the UCCJEA
were to:
1) Avoid jurisdictional competition and
conflict with courts of other States in
matters of child custody which have
in the past resulted in the shifting of
children from State to State with
harmful effects on their well-being;
2) Promote cooperation with the courts
of other States to the end that a
custody decree is rendered in that
State which can best decide the case
in the interest of the child;
3) Discourage the use of the interstate
system for continuing controversies
over child custody;
4) Deter abductions of children;
5) Avoid relitigation of custody
decisions of other States in this State;
6) Facilitate the enforcement of custody
decrees of other States.
UCCJEA § 101 cmt., 9 U.L.A. 657. Allowing the trial court’s decision
to stand would not deter the abduction of children, avoid
relitigation of custody decisions, or facilitate the enforcement of
custody decrees.5 If anything, adopting the trial court’s interpretation
would likely increase the risk of parents from countries without
5This case does not require us to determine whether it may be
resolved solely by applying § 25-1005(B) or whether § 25-1053(A)
and § 25-1005(A) must be considered. In light of Sophia’s home
state status in Mexico, each analysis leads to the same result.
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jurisdictional criteria similar to the UCCJEA choosing to abscond
with their children to Arizona in order to relitigate custody.
¶31 Both Ruiz-Bours and the trial court sought guidance in
Karam v. Karam, 6 So. 3d 87 (Fla. Dist. Ct. App. 2009). Karam,
however, did not concern the enforcement of a child custody
determination from another country. Rather, it focused on whether
Florida could exercise jurisdiction when “a proceeding concerning
the custody of a child ha[d] already commenced in another state
having jurisdiction in substantial conformity with” the UCCJEA.
Id. at 90.
¶32 In Karam, a husband and wife each filed a petition for
dissolution; the husband in a French court in Guadeloupe and the
wife in Florida. Id. at 88. The parties disputed whether the children’s
primary residence was in Guadeloupe or Florida, and the French
court determined it had jurisdiction “based upon its finding that the
‘usual and permanent centre of [the children’s] interest’ was and had
always been in France . . . and that the petition was filed in the
French court before one was filed by the Wife in the ‘American’
court.” Id. at 89 (alteration in Karam). The Florida court then
dismissed the child custody portion of the wife’s petition, and the
wife appealed. Id.
¶33 The Florida District Court of Appeal quashed the trial
court’s dismissal of the wife’s petition based on Fla. Stat. § 61.519,
titled “Simultaneous proceedings.”6 Id. at 90-91. Section 61.519(1)
provides:
[A] court . . . may not exercise its
jurisdiction . . . if, at the time of the
commencement of the proceeding, a
proceeding concerning the custody of the
child had been commenced in a court of
another state having jurisdiction
substantially in conformity with this part,
6Arizonahas its own “Simultaneous proceedings” section to
the UCCJEA located at A.R.S. § 25-1036(A).
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unless the proceeding has been terminated
or is stayed by the court of the other
state . . . .
¶34 The Florida District Court of Appeal determined “[t]he
French court did not exercise its jurisdiction in substantial
conformity with the UCCJEA because the UCCJEA focuses on where
the children were living prior to” the commencement of
proceedings. Karam, 6 So. 3d at 91. The French court, instead,
“focused on the location of the children’s ‘usual and permanent
centre of interest,’” which the Florida trial court “equated . . . with
the UCCJEA’s ‘home state’ jurisdictional standard.” Id. But because
“the children did not reside in Guadeloupe for six continuous
months preceding the filing of the [h]usband’s petition . . . the
French trial court did not exercise its jurisdiction . . . in substantial
conformity with the UCCJEA.” Id. Thus, “the Florida trial court
could have, and should have, exercised its jurisdiction over the child
custody portion of the [w]ife’s petition.” Id.
¶35 The trial court below erroneously relied on Karam,
which concerned whether the Florida trial court should have
exercised jurisdiction in a proceeding simultaneous to the French
proceeding rather than the enforcement of a child custody
determination. The crucial factor in Karam was not whether French
law was concerned with where the children lived, but that
Guadeloupe could not be considered the home state of the children
given the facts of the case. Karam, 6 So. 3d at 91. The Florida trial
court erred in “equat[ing] the French court’s jurisdictional standard
of ‘usual and permanent centre of interest’ with the UCCJEA’s
‘home state’ jurisdictional standard,” when “the record [was] clear
that the children did not reside in Guadeloupe for six continuous
months.” Id. In contrast, the facts on the record before us are
consistent with the UCCJEA standard. Sophia lived in Hermosillo
for approximately ten months prior to Margain’s initiation of the
custody proceedings in Mexico, more than enough time to establish
Mexico as Sophia’s home state for purposes of the UCCJEA.
¶36 Ruiz-Bours now urges the proper home state in this
matter is California, and not Mexico. To the extent the argument
might even be relevant, this is not so. Under the California Code,
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IN RE THE MARRIAGE OF MARGAIN AND RUIZ-BOURS
Opinion of the Court
California considers the home state to be “the 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 period of temporary absence of [the parent] is
part of the period.” Cal. Fam. Code § 3402(g). From October 2010 to
August 2011, Sophia lived in Hermosillo, a period of ten consecutive
months. Ruiz-Bours argues this ten-month period constitutes a
temporary absence because “the stay in Hermosillo . . . was intended
to be a two or three week visit with family.” The California Code
does not define “temporary absence.” See Cal. Fam. Code § 3402.
And while California has recognized that a parent’s abduction of a
child cannot form the basis for establishing jurisdiction in the
abductor’s state of residence, see In re Marriage of Nurie,
98 Cal. Rptr. 3d 200, 228-30 (Dist. Ct. App. 2009), there was no
abduction when Ruiz-Bours took Sophia to Hermosillo. Nor has she
cited any California cases that might lead us to conclude her ten-
month absence from California was a temporary absence, especially
when she did not leave Mexico until July 2012, only to abscond to
Arizona. Indeed, at no point has Ruiz-Bours ever even attempted to
invoke the jurisdiction of California except in her answering brief.7
¶37 Furthermore, according to the applicable section of the
California Code, California has home state jurisdiction if it was “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 [California] but a parent . . . continues to live in [California].”
Cal. Fam. Code § 3421(a)(1). Neither Margain nor Ruiz-Bours
continued to live in California when the proceedings commenced.8
7 In Ruiz-Bours’s motion contesting the jurisdiction of the
Second Family Court, she stated, “I stand by the jurisdiction of the
Courts of the City of Hermosillo, Sonora.” And, at oral argument in
this court, Ruiz-Bours conceded she has never initiated any child
custody proceedings in California.
8 Margain lived in Tijuana, Baja California, Mexico and his
mother at all times held legal title to the home in Coronado,
California.
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IN RE THE MARRIAGE OF MARGAIN AND RUIZ-BOURS
Opinion of the Court
And because California was not the home state of the child at the
commencement of the proceedings, California could not have
exercised jurisdiction to make a child custody determination under
its statute unless a court having jurisdiction declined to exercise it or
no court of any state had home state jurisdiction. See Cal. Fam. Code
§ 3421(a). 9 Sophia lived in Mexico for at least six consecutive
months, giving Mexico home state jurisdiction, and Mexico elected
to assert jurisdiction over the matter. Thus, under the California
Code, a California court could not have exercised the jurisdiction
Ruiz-Bours now wishes to invoke.
¶38 Ruiz-Bours also cites several cases from other states to
try and persuade us that her ten-month absence was only
“temporary,” but we are unconvinced. Not only was her stay in
Hermosillo much longer than those described in the cases she cites,
but also she has not lived in California since her departure.
See Sarpel v. Eflanli, 65 So. 3d 1080, 1081, 1083-84 (Fla. Dist. Ct. App.
2011) (affirming a lower court’s treatment of children’s two-month
presence in Turkey to be a temporary absence and concluding
Florida had jurisdiction because a parent continued to live in Florida
at the commencement of proceedings); Ogawa v. Ogawa, 221 P.3d
699, 704-05 (Nev. 2009) (Nevada home state where three-month
absence intended to be temporary vacation and did not affect six-
month residency requirement and parent continued to live in
Nevada when action commenced); In re S.M., 938 S.W.2d 910, 918
(Mo. Ct. App. 1997) (three months spent in Kansas temporary
absence because stay intended to be temporary, children received
public assistance from state of Missouri as Missouri residents, and
they continued to attend school in Missouri). Given these facts, we
conclude the absence was not temporary and that Mexico, not
California, had exclusive jurisdiction by virtue of its home state
status. Accordingly, we reverse the ruling of the trial court.
9California
also treats foreign countries as if they are a state of
the United States in applying the UCCJEA. Cal. Fam. Code
§ 3405(a).
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IN RE THE MARRIAGE OF MARGAIN AND RUIZ-BOURS
Opinion of the Court
Attorney Fees
¶39 Section 25-1062 provides “[t]he court shall award the
prevailing party . . . necessary and reasonable expenses incurred by
or on behalf of the party, including costs . . . [and] attorney fees . . .
unless the party from whom fees or expenses are sought establishes
that the award is clearly inappropriate.” Who is the prevailing party
“is never certain until the appeal process is concluded.” Wenk v.
Horizon Moving & Storage Co., 131 Ariz. 131, 133, 639 P.2d 321, 323
(1982). Policies that support awarding attorney fees to prevailing
parties at trial must also apply to the party that ultimately prevails
on appeal. See id. Therefore, because we reverse the ruling of the
trial court, we also reverse the trial court’s award of costs and
attorney fees to Ruiz-Bours.
¶40 Margain also requests we award him “all costs and
attorney’s fees incurred on this appeal” pursuant to A.R.S. § 25-324
and Rules 21(a) and (c), Ariz. R. Civ. App. P. Given Margain’s
contemptible failure to obey the trial court’s order that he not
remove Sophia, we decline to award him any costs or attorney fees.
Disposition
¶41 For the foregoing reasons, we reverse the ruling of the
trial court and remand for proceedings consistent with this opinion.
19