Murphy v. Hon. blomo/jensen ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CORNELIUS CHRISTOPHER MURPHY, Petitioner,
v.
THE HONORABLE JAMES T. BLOMO, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,
LISELOTTE LYNDELL JENSEN, Real Party in Interest.
No. 1 CA-SA 14-0129
FILED 08-14-2014
Petition for Special Action from the Superior Court in Maricopa County
No. FC2013-001338
The Honorable James T. Blomo, Judge
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Fromm Smith & Gadow PC, Phoenix
By Jennifer G. Gadow, James L. Cork, II
Counsel for Petitioner
Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire, Max Mahoney
Counsel for Real Party in Interest
MURPHY v. HON. BLOMO/JENSEN
Decision of the Court
DECISION ORDER
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Diane M. Johnsen joined.
C A T T A N I, Judge:
¶1 Cornelius Christopher Murphy (“Father”) seeks special
action relief from an order of the superior court finding Arizona to be an
inconvenient forum under Arizona’s version of the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”) and staying the child
custody proceedings in Arizona in favor of ongoing proceedings in
Virginia. See Ariz. Rev. Stat. (“A.R.S.”) § 25-1037.1 Because of the nature of
the ruling, Father lacks an adequate remedy by appeal, and we therefore
accept special action jurisdiction. See Ariz. R.P. Spec. Act. 1(a). For reasons
that follow, we deny relief and award Liselotte Lyndell Jensen (“Mother”)
a portion of her attorney’s fees incurred in responding to Father’s petition.
¶2 Father contends the superior court erred by entering the
inconvenient forum order because he lacked notice that this issue was
before the Arizona court and because he was given no opportunity to
present argument and evidence on this issue to the Arizona court. But the
record affirmatively disproves Father’s arguments.
¶3 Father received notice in both the Arizona and the related
Virginia proceedings regarding Mother’s request that Arizona cede
jurisdiction to Virginia under the UCCJEA’s inconvenient forum provision.
Father joined the issue in Virginia, filed a comprehensive memorandum on
the issue in Virginia, and was served with Mother’s filing in Arizona of the
parties’ Virginia inconvenient forum memoranda. Mother moved in
Arizona (as well as in Virginia) for a UCCJEA conference between the two
courts and expressly raised Arizona’s inconvenient forum provision in her
reply, which was filed over two months before the hearing.
¶4 At the hearing itself, the superior court repeatedly offered the
parties opportunities to present additional argument as well as additional
information bearing on the UCCJEA inconvenient forum issue. Father’s
1 Absent material revisions after the relevant date, we cite a statute’s
current version.
2
MURPHY v. HON. BLOMO/JENSEN
Decision of the Court
Arizona counsel in fact pointed out additional information for the court to
consider, requesting that the court take into account a custody evaluator’s
report as it pertained to “a UCCJEA analysis . . . when determining a
conveniens or inconveniens forum. . . . I’m exclusively discussing it as it
relates to UCCJEA analysis.” And when the court asked Father’s counsel if
she was “comfortable proceeding just on what’s been filed so far,” counsel
responded, “Yes, as the UCCJEA issue, we are.” In sum, Father was well
aware of the UCCJEA inconvenient forum issue and was provided ample
opportunity to present information and argument, and his arguments to the
contrary are frivolous.
¶5 Father also argues that the superior court abused its
discretion by entering the inconvenient forum order without considering
all factors mandated by A.R.S. § 25-1037(B). The court’s written ruling
specifically addressed five of the eight factors listed in the statute, and the
statute requires only that the court “consider” each factor, not that the court
enter written findings on each one. Father did not request written findings,
see Ariz. R. Fam. Law P. 82(A), and he has not established that the court
abused its discretion or otherwise erred in addressing the § 25-1037(B)
factors.
¶6 Finally, we conclude that Father’s due process arguments
regarding notice and an opportunity to be heard on the inconvenient forum
issue were “not grounded in fact or based on law.” See A.R.S. § 25-324(B)(2).
Accordingly, we award Mother her reasonable costs and attorney’s fees
incurred in responding to these two arguments (arguments I and II in
Father’s petition for special action) upon her compliance with ARCAP 21.
¶7 For these reasons, we accept jurisdiction, deny relief, and
award Mother the costs incurred in the special action proceeding and a
portion of her attorney’s fees as set forth above.
:gsh
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