Hope v. Hope ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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
In re the Matter of:
MELANIE BLYTHE HOPE, Petitioner/Appellant,
v.
JASON DOUGLAS HOPE, Respondent/Appellee.
No. 1 CA-CV 13-0112
FILED 3-4-2014
Appeal from the Superior Court in Maricopa County
No. FC2011-093940
The Honorable Timothy J. Ryan, Judge
DISMISSED IN PART; VACATED IN PART; AFFIRMED IN PART
COUNSEL
Melanie Blythe Hope, Mexico
Petitioner/Appellant
The Murray Law Offices PC, Scottsdale
By Stanley D. Murray
Counsel for Respondent/Appellee
HOPE v. HOPE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 Melanie Blythe Hope (“Mother”) appeals several post-decree
orders issued in Arizona after a consent decree was entered in South
Carolina. Mother argues the family court did not have subject matter
jurisdiction to modify the custody or child support orders entered in
South Carolina. We agree that the family court did not have subject
matter jurisdiction to modify the child support order, and conclude the
family court’s order modifying child support is void. On this record we
cannot determine whether the court had subject matter jurisdiction to
modify the child custody order. Therefore, we remand to the family court
for a determination of jurisdiction to modify custody under the UCCJEA.
However, we conclude the family court did have jurisdiction to enforce
the custody/parenting time orders contained in the South Carolina
decree, and therefore affirm the family court’s orders enforcing the South
Carolina decree.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Jason Douglas Hope (“Father”) married in 1990,
and over the course of their marriage had three children. In 2009, while
residing in South Carolina, Mother and Father separated. After Mother
filed for divorce, the parties entered into a settlement agreement. The
South Carolina court subsequently entered a divorce decree incorporating
the terms of the parties’ settlement agreement. When the decree was
entered in June 2011, Mother was a citizen and resident of Arizona, and
Father was a citizen and resident of New York.
¶3 The consent decree awarded the parties joint custody of the
children, while designating Mother as the primary residential parent.
Mother was also awarded $1,750.00 per month in child support. The
settlement agreement also contained language stating that future actions
regarding custody and visitation “will be adjudicated in the home state of
the minor children, and for purposes of the foreseeable future, the home
state of the children is the State of Arizona.”
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¶4 While Mother and the children were residing in Arizona,
Father filed the South Carolina divorce decree in Maricopa County
Superior Court pursuant to the Uniform Enforcement of Foreign
Judgments Act (“UEFJA”), Arizona Revised Statutes (“A.R.S.”), sections
12-1701 to -1708. Father then sent Mother notice that he had filed the
South Carolina decree in Arizona pursuant to A.R.S. § 12-1703(B).
¶5 Next, Father filed a petition in Maricopa County seeking to
(1) prevent Mother from relocating to Mexico with the children and (2)
modify custody. Father alleged Mother was planning to relocate to
Mexico with the children. In the petition, Father requested the court to
issue an order finding that Arizona had jurisdiction over the parties’
divorce case, and that South Carolina had relinquished jurisdiction. The
record reflects, however, that the court never issued an order specifically
addressing jurisdiction.
¶6 On September 12, 2011, Father filed a motion for temporary
orders seeking temporary physical custody of the children. Because
Father was unable to serve Mother, the court subsequently granted his
request to serve Mother by alternative service, which included service by
email and facebook. Mother filed an answer and counterclaim, seeking
affirmative relief on a number of issues. At an evidentiary hearing on
November 7, 2011 the court found Mother had not complied with the
parenting time orders contained in the South Carolina decree. The court
held Mother in contempt and required her to surrender her passport to
the court and make arrangements for the return of the children to
Arizona.
¶7 On November 30, 2011, the court held an emergency status
conference after Mother had driven to Arizona and sent the police to
Father’s residence to seize the children from him. After the conference the
court suspended Father’s child support obligations to Mother. The court
also took under advisement the parties’ proposed parenting time
schedules and Father’s request for reimbursement of his travel expenses
incurred in retrieving the children from Mexico.
¶8 The court granted Father’s request for sole custody in
January 2012. The court also ordered that the children “shall not leave
Maricopa County, Arizona, without the express written permission of this
Court. No exceptions.” Finding “that Mother has acted unreasonable
throughout these proceedings, and at times, has been less than candid
with the Court,” the court awarded Father $9,150.00 in attorneys’ fees and
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costs, and directed Mother to reimburse Father $3,600.00 for his travel
expenses to retrieve the children.
¶9 In April 2012, the court terminated its temporary suspension
of child support payments and reinstated the original South Carolina
child support order. Thereafter, on April 16, 2012, Father filed a certified
copy of the South Carolina child support order in Maricopa County
Superior Court, Arizona, pursuant to the Uniform Interstate Family
Support Act, (“UIFSA”), A.R.S. §§ 12-1201 to -1342. Then, on April 19,
2012, Father filed a petition to modify child support in the pending
Maricopa County proceeding.1
¶10 In August 2012, the court directed the parties to submit
written memoranda outlining their positions regarding child support.
The court stated it would modify child support without a further hearing
and would base its decision on the evidence that had already been
presented and the parties’ memoranda. The court also directed Father to
submit an application for attorneys’ fees “for having to read, consider, and
respond to Mother’s many, many motions, pleadings and petitions.”
¶11 Mother filed a motion for change of judge for cause in
September 2012, claiming the judge was exercising “extreme bias,
prejudice, and lack of impartiality.” The court referred the matter to the
presiding judge. The presiding judge denied Mother’s motion, noting that
Mother’s allegations were “insufficient as a matter of law to proceed with
an evidentiary hearing on this matter.”
¶12 Father filed a memorandum regarding modification of child
support, but Mother did not file a memorandum as ordered by the court.
On November 5, 2012, the court modified child support, ordering Mother
to pay support to Father. The court also awarded Father additional
attorneys’ fees in the amount of $3,089.50 and set an evidentiary hearing
regarding contempt for January 7, 2013.
¶13 Mother failed to appear at the contempt hearing, and the
court affirmed its judgment for Father’s travel expenses and attorneys’
fees in a total amount of $16,467.00. Further, the court found Mother to be
in contempt for (1) not having made any payments on the previously
1 Father again requested, and was granted, permission to use
alternative service to serve Mother with his petition.
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imposed fees and travel expenses and (2) failing to appear at the hearing.
The court then issued a child support arrest warrant for Mother, setting
the purge bond in the amount of $10,000.00.
¶14 Mother filed a Rule 60(c)2 motion for relief on May 2, 2013,
arguing, among other issues, that the court lacked subject matter
jurisdiction to modify child custody and child support. The court denied
Mother’s motion as untimely.
¶15 On May 24, 2013, Mother was incarcerated on the civil arrest
warrant issued by the court. On June 3, 2013, Mother’s family posted the
$10,000.00 purge bond. However, Mother again failed to appear before
the court on June 25, 2013. As a result, the court found Mother to be in
direct contempt of court and referred the matter to the presiding judge for
a determination of whether she should be classified a vexatious litigator.
¶16 On September 6, 2013, the court held an evidentiary hearing
to determine whether Mother was a vexatious litigator. Mother failed to
appear at this hearing, and the court affirmed its earlier findings and
directed Father to again submit an affidavit for attorneys’ fees; the court
subsequently awarded Father $1,080.00 in attorneys’ fees.
¶17 Mother has filed numerous amendments to her notice of
appeal throughout this litigation. Some of these amendments have been
dismissed as untimely.3 However, we conclude Mother has timely
appealed the family court’s orders concerning custody, child support,
enforcement of the parenting time provisions in the South Carolina decree
and the related sanctions and attorneys’ fee awards.
Discussion
I. Subject Matter Jurisdiction
¶18 Mother argues the family court failed to determine whether
there was proper subject matter jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”), A.R.S. §§ 25-1001
to -1067, and the UIFSA to modify custody and child support. “[S]ubject
2 Mother cites to rule 60(c), Ariz. R. Civ. P. in her motion; however,
she uses this rule interchangeably with Rule 85(c), Ariz. R. Fam. L. P.
3 See Order dated November 6, 2012, Hope v. Hope, 1CA-CV 12-0712;
Order dated July 16, 2013, Hope v. Hope, 1CA-CV 13-0112.
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matter jurisdiction cannot be waived and may be raised at any stage of a
proceeding.” Green v. Lisa Frank, Inc., 221 Ariz. 138, 157, ¶ 57, 211 P.3d 16,
35 (App. 2009). The UCCJEA determines a court’s subject matter
jurisdiction with regard to modifying foreign custody orders, and the
UIFSA determines a court’s subject matter jurisdiction to modify foreign
child support orders. A.R.S. §§ 25-1001 to -1067 (UCCJEA); A.R.S. §§ 25-
1201 to -1302 (UIFSA). We review questions of jurisdiction under these
statutes de novo. See Duwyenie v. Moran, 220 Ariz. 501, 503, ¶ 7, 207 P.3d
754, 756 (App. 2009) (UCCJEA); McHale v. McHale, 210 Ariz. 194, 196, ¶ 7,
109 P.3d 89, 91 (App. 2005) (UIFSA).
a. Jurisdiction Under The UCCJEA
¶19 Mother asserts the family court lacked jurisdiction under the
UCCJEA to modify custody and parenting time. The purpose of the
UCCJEA is to avoid duplication and conflict between two states
concerning custody orders. Melgar v. Campo, 215 Ariz. 605, 607, ¶ 10, 161
P.3d 1269, 1271 (App. 2007). In order to effectuate this purpose, the
UCCJEA favors “allowing the court that makes the original custody
determination to retain exclusive, continuing jurisdiction over that order.”
Id. at ¶¶ 10, 11 (“The rule of exclusive, continuing jurisdiction remains the
jurisdictional lodestar.”); A.R.S. § 25-1032.
¶20 Jurisdiction to modify a prior child custody determination
made by another state is governed under the UCCJEA as follows:
Except as otherwise provided in section 25-1034, a court of
this state shall not modify a child custody determination
made by a court of another state unless a court of this state
has jurisdiction to make an initial determination under
section 25-1031, subsection A, paragraph 1 or 2 and either of
the following is true: 4
4 Section 25-1031 states that a court has jurisdiction to make an
initial child custody determination if:
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.
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1. The court of the other state determines that it no longer
has exclusive, continuing jurisdiction under section 25-1032
or that a court of this state would be a more convenient
forum under section 25-1037.
2. A court of this state or a court of the other state
determines that the child, the child’s parents and any person
acting as a parent do not presently reside in the other state.
¶21 In essence, A.R.S. § 25-1033 provides that an Arizona family
court does not have jurisdiction to modify a foreign court’s custody order
unless the foreign court makes a determination that (1) it no longer has
exclusive, continuing jurisdiction over the case, or (2) the child and the
child’s parents no longer live in the foreign jurisdiction. In the alternative,
if there is no determination by the foreign court, A.R.S. § 25-1033 permits
the Arizona family court to make a determination that the child and the
child’s parents do not presently reside in the foreign jurisdiction.
¶22 Here, it is clear that South Carolina was the home state when
the South Carolina court entered the divorce decree addressing custody
and visitation of the children. However, the consent decree states that all
future actions regarding child custody and visitation “will be adjudicated
in the home state of the minor children, and for purposes of the
foreseeable future, the home state of the children is the State of Arizona.”
It would appear that this provision of the divorce decree, adopted and
filed by the court in South Carolina, constitutes relinquishment of South
Carolina’s exclusive, continuing jurisdiction over the custody order. The
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 section 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 a person acting as a parent, have a significant
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.
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record also indicates that Mother and the children were living in Arizona
when the South Carolina court entered the divorce decree. Nonetheless,
on October 5, 2011 – after Father filed his petition to modify custody in
Arizona - the court in South Carolina entered an order regarding Mother’s
compliance with the divorce decree.
¶23 It is not clear from this record whether South Carolina
relinquished its continuing, exclusive jurisdiction. See Melgar, 215 Ariz. at
609, ¶ 18, 161 P.3d at 1273. Father relies on the language in the divorce
decree stating that Arizona would be the home state as an indication that
South Carolina has relinquished its jurisdiction; although that may be the
case, the South Carolina court’s October 5 order belies that conclusion.
The record does not show that South Carolina relinquished its exclusive,
continuing jurisdiction or that there was ever any communication between
the South Carolina court and the family court in Arizona regarding which
state would exercise jurisdiction over custody modifications. See Id. at
607, ¶ 10, 161 P.3d at 1271 (“The UCCJEA was created, in part, to address
the issue of competing orders and duplicative jurisdiction.”). The record
is also devoid of any determination by either the South Carolina court or
the family court that the children and their parents do not presently reside
in South Carolina. Mother’s and Father’s many relocations have been an
issue throughout these proceedings. Given this record, we cannot confirm
whether the family court in Arizona had jurisdiction to modify the South
Carolina custody order. We therefore remand for a determination
pursuant to A.R.S. § 25-1033.
c. Jurisdiction Under The UIFSA
¶24 Mother contends the family court lacked subject matter
jurisdiction to modify the child support order because it was not
registered in compliance with the UIFSA.5 See Glover v. Glover, 231 Ariz. 1,
2, ¶ 1, 289 P.3d 12, 13 (App. 2012) (holding compliance with the
registration requirements is necessary to confer subject matter jurisdiction
on the court). Because registration involves both statutory compliance
and subject matter jurisdiction, we review whether the family court
5 Mother also challenges the family court’s jurisdiction to act under
UEFJA; however, for a court to have jurisdiction to modify a child support
order the UIFSA, not the UEFJA, governs. Glover, 231 Ariz. at 5, ¶ 16, 289
P.3d at 16 (stating that compliance with UEFJA does not satisfy the notice
requirement contained in UIFSA and does not confer jurisdiction to
modify support order).
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followed the applicable registration statutes de novo. Melgar, 215 Ariz. at
606, ¶ 6, 161 P.3d at 1270.
¶25 For an Arizona court to have jurisdiction to modify a child
support order entered in another state, the order must be registered in
compliance with the UIFSA. A.R.S. §§ 25-1311, –1302; Glover, 231 Ariz. at
2, ¶ 1, 289 P.3d at 13. To register a child support order under the UIFSA
the party must send a letter requesting registration and enforcement, two
copies (one certified) of the original order, a sworn statement by the
person requesting registration or a certified statement by the custodian of
the records showing the amount of any arrearage, and the names and
relevant information regarding the obligor and obligee. A.R.S. § 25-
1302(A). Upon receiving the request the court must file the support order
as a foreign judgment and then provide notice of the registration to the
non-registering party. A.R.S. § 25-1305; Glover, 231 Ariz. at 4, ¶ 10, 289
P.3d at 15. “[R]egistration in Arizona of a child support order issued in
another state is necessary to confer subject matter jurisdiction on the
superior court to modify the order.” Glover, 231 Ariz. at 7, ¶ 22, 289 P.3d
at 18.
¶26 Father did not register the South Carolina divorce decree in
compliance with the UIFSA until July 2013. The court entered its order
modifying child support, from which Mother appealed, on November 5,
2012. Therefore, we conclude the court acted without jurisdiction and we
must vacate its order modifying child support.
II. Mother’s Remaining Arguments
¶27 Because we find the court lacked subject matter jurisdiction
to modify the child support order, we conclude it lacked jurisdiction in its
accompanying grant of attorneys’ fees and costs in the amount of
$3,089.50 and vacate that award. However, because we remand for the
court to determine whether it had jurisdiction to modify custody, we also
remand the court’s related decision to grant Father attorneys’ fees in the
amount of $9,150.00 .
¶28 We conclude, though, that the family court did have
jurisdiction to enforce the child custody order contained in the South
Carolina decree. A.R.S. § 25-1053 (“A court of this state 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. . . .”). Therefore, the family court’s November 7, 2011 order
finding Mother had not complied with parenting time orders in the
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custody decree and finding Mother in contempt of court for her
noncompliance was within its power to “use any remedy available under
any other law of this state to enforce a child custody determination made
by a court of another state.” A.R.S. § 25-1053(B). Accordingly, we affirm
all of the family court’s orders enforcing the South Carolina custody and
support orders, including its related grant of attorneys’ fees and travel
expenses to Father. See In re Marriage of Robinson and Thiel, 201 Ariz. 328,
335, ¶ 19, 35 P.3d 89, 96 (App. 2001); Cook v. Losnegard, 228 Ariz. 202, 204, ¶
9, 265 P.3d 384, 386 (App. 2011).
¶29 Mother argues the family court did not comply with A.R.S. §
25-408 when it prevented her from relocating to Mexico with the children.
That statute requires the court to consider a number of factors in
determining the children’s best interests when deciding issues of
relocation. A.R.S. § 25-408(H); see also Owen v. Blackhawk, 206 Ariz. 418,
421, ¶ 11, 79 P.3d 667, 670 (App. 2003) (requiring specific findings in
accordance with § 25-403(J) when a change in physical custody is involved
in a relocation dispute). We disagree. The family court determined that
Mother relocated the children to Mexico for the purpose of interfering
with Father’s parenting time. As a result, the family court enforced the
written parenting time agreement contained in the South Carolina decree.
¶30 Mother also claims the family court lacked personal
jurisdiction over her because (1) she was residing in Mexico and (2) the
court improperly allowed Father to serve her by alternative means in
Mexico. However, Mother has waived any challenge to personal
jurisdiction because she appeared in the matter and litigated it on the
merits. See Nat’l Homes Corp. v. Totem Mobile Home Sales, Inc., 140 Ariz.
434, 437, 682 P.2d 439, 442 (App. 1984).
¶31 We will not address the remaining issues Mother has raised
deeming them to be either moot or not properly before us.
III. Attorneys’ Fees On Appeal
¶32 Mother requests attorneys’ fees, costs, and expenses incurred
throughout the litigation. Father also requests attorneys’ fees under
A.R.S. § 25-324.
¶33 Because Mother represented herself, she is not entitled to an
award of attorneys’ fees. Connor v. Cal-Az Props., Inc., 137 Ariz. 53, 56, 668
P.2d 896, 899 (App. 1983). Mother has been successful in vacating the
court’s child support modification ruling, so we award her costs incurred
on appeal upon her compliance with Rule 21, Arizona Rules of Civil
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Appellate Procedure. In our discretion, we deny Father’s request for
attorneys’ fees.
CONCLUSION
¶34 Because the family court had no jurisdiction to modify South
Carolina’s child support orders, we dismiss the appeal as to the child
support order and instruct the family court to vacate its order modifying
child support, as well as the accompanying fee award. Glover, 231 Ariz. at
7, ¶ 22, 289 P.3d at 18 (appellate court must dismiss appeal and instruct
family court to vacate modification orders where family court’s order
modifying foreign child support order was void for lack of subject matter
jurisdiction); see McHazlett v. Otis Eng’g Corp., 133 Ariz. 530, 533, 652 P.2d
1377, 1380 (1982) (“If a lower court has no jurisdiction to issue an order an
appeal from that order gives the appellate court no jurisdiction except to
dismiss the appeal.”). We remand to the family court for a determination
of whether it has jurisdiction to modify South Carolina’s custody order
under the UCCJEA. Further, we affirm the family court’s orders enforcing
the South Carolina decree, including the related attorneys’ fee awards,
and we remand to the family court for further enforcement proceedings
consistent with this decision.
:mjt
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