Olsen v. Allington ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CASSANDRA OLSEN, Petitioner/Appellant,
v.
ELY ALLINGTON, Respondent/Appellee.
No. 1 CA-CV 20-0294 FC
FILED 12-22-2020
Appeal from the Superior Court in Navajo County
No. S0900DO202000016
The Honorable Robert J. Higgins, Judge
AFFIRMED
COUNSEL
Riggs, Ellsworth & Porter, Show Low
By Michael R. Ellsworth
Counsel for Petitioner/Appellant
OLSEN v. ALLINGTON
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Acting
Presiding Judge David B. Gass and Judge Lawrence F. Winthrop joined.
B R O W N, Judge:
¶1 Cassandra Olsen (“Mother”) appeals the superior court’s
order dismissing her petition to establish paternity, legal decision-making,
and determination of support (“Petition”). For the following reasons, we
affirm.
BACKGROUND
¶2 Olsen and Ely Allington (“Father”) are the natural parents of
an eight-year-old daughter (“child”). When the child was born, Mother was
living in Utah; they both remained there until September 2015, and later
moved to Arizona. Mother filed for child support in Utah, but because
Father was living in Texas, the State of Utah requested that Texas assist in
establishing and collecting the child support. In May 2013, a Texas court
issued a paternity finding and child support order under the Uniform
Interstate Family Support Act. Mother moved to Mesa, Arizona in 2015,
and later relocated to Navajo County in 2016, where she currently resides.
¶3 Mother filed her pro per unverified Petition on January 15,
2020. She alleged the minor child had been residing with Mother in Arizona
“for virtually her entire life.” According to Mother, in 2019 “Father
convinced Mother to relinquish the child to go spend time with him in
Texas.” Per the parties’ “mutual agreement,” the trip would be temporary
only and Mother would remain the primary custodial parent. Mother
further alleged they entered “mutual verbal agreements” that Father would
return the child to Arizona in January 2020, but he refused to do so despite
Mother’s repeated requests. Mother asserted the superior court had
“jurisdiction over the minor child under one of the provisions of The
Uniform Child Custody Jurisdiction [and Enforcement] Act (‘UCCJEA’).”
See A.R.S. §§ 25–1001 to –1067.
¶4 Father moved to dismiss the Petition for lack of subject matter
jurisdiction. As pertinent here, Father argued Mother failed to inform the
superior court that Texas is the child’s home state, and a petition to modify
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Decision of the Court
the parent-child relationship was now pending in Texas, which Father had
told Mother about several days before she filed her Petition. Father also
asserted that Arizona was not the child’s “home state” under the UCCJEA
because, except for six days in November 2019, the child resided exclusively
in Texas with Father from June 2019 until January 18, 2020. He asked the
court to determine jurisdiction and to “dismiss Mother’s pleadings at a
jurisdiction hearing, possibly after brief under-oath questioning of the
parties about the Texas cases and the dates the child was in Texas.”
¶5 Mother, who was then represented by counsel, acknowledged
that in June 2019 she allowed the child to have “an extended visit” with
Father because she wanted the child to have a better relationship with him.
Mother did not dispute that, except for the child’s six-day visit to Arizona
for Thanksgiving, she resided with Father in Texas from June 2019 through
January 18, 2020. Instead, Mother argued Arizona has been the child’s
home state since 2016, and because the child did not reside in Texas for six
continuous months, her absence from Arizona did not change the home
state status. Mother also asserted the 2013 Texas order did not arise from a
“child custody proceeding” under the UCCJEA and thus the Texas court
could not have entered a child custody order in 2013 because it was
undisputed Texas was not the child’s home state.
¶6 Following oral argument, the superior court entered an order
dismissing the case, explaining that because paternity and child support
were established in Texas, and jurisdiction was never transferred to
Arizona, jurisdiction remained with Texas. Mother timely appealed, and
we have jurisdiction under A.R.S. § 12–2101(A)(3), which authorizes an
appeal from “any order affecting a substantial right made in any action
when the order in effect determines the action and prevents judgment from
which an appeal might be taken.”1
1 On June 3, 2020, this court summarily denied Mother’s petition for
special action raising the same issue raised in this appeal, and providing
essentially the same analysis as contained in her opening brief. In urging
us to accept jurisdiction, Mother asserted that by the time an appeal could
be heard, the Texas court will have likely made rulings/orders for
parenting time and child support. The parties have not advised us of the
status of the Texas proceedings; as such, we do not know whether this
appeal is or is not moot.
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DISCUSSION
¶7 We review de novo whether a court has subject matter
jurisdiction under the UCCJEA. Gutierrez v. Fox, 242 Ariz. 259, 264, ¶ 17
(App. 2017). We will affirm the court’s disposition if it is correct for any
reason. See Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986). Though Father
did not file an answering brief, in our discretion we decline to consider his
failure to do so as a confession of error. See Cardoso v. Soldo, 230 Ariz. 614,
616, ¶ 4 n.1 (App. 2012).
¶8 Under the UCCJEA, a court with home state jurisdiction has
jurisdictional priority. See A.R.S. § 25–1031(A); Gutierrez, 242 Ariz. at 264–
65, ¶ 18. “Except as otherwise provided in § 25-1034 [emergency
jurisdiction],” and as applicable here, an Arizona court “has jurisdiction to
make an initial child custody determination” only if Arizona
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.
A.R.S. § 25-1031(A)(1). As defined in A.R.S. § 25-1002(7), “[h]ome state”
means:
The state in which a child lived with a parent or a person
acting as 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.
As previously construed by this court, the term “home state” is not limited
to the time period of “six consecutive months immediately before the
commencement of a child custody proceeding;” rather, the appropriate
time period in such circumstances is “within six months before the
commencement of the [child custody] proceeding.” Welch-Doden v. Roberts,
202 Ariz. 201, 208–09, ¶ 33 (App. 2002) (citing A.R.S. §§ 25-1002(7), 25–
1031(A)(1)).
¶9 Mother argues the superior court erred when it dismissed her
Petition because “the Texas case was never transferred to Arizona and
jurisdiction remains in Texas.” She contends the UCCJEA does not allow
jurisdiction to be established by entry of a child support order. We agree
the superior court’s reasoning was incorrect because (1) Texas was not the
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Decision of the Court
child’s home state in 2013, and (2) even if it was, the court’s 2013 order did
not involve an “initial child custody determination” under the UCCJEA.
See A.R.S. § 25-1002(3) (defining “[c]hild custody determination” as “any
judgment, decree or other order of a court, including a permanent,
temporary, initial and modification order, for legal custody, physical custody
or visitation) (emphasis added). However, because our review is de novo,
we must determine whether the court nonetheless reached the correct
result.
¶10 As noted above, in the superior court Mother did not dispute
that the child resided with Father in Texas from June 2019 through January
18, 2020, except for a six-day visit to Arizona in November. Under A.R.S.
§ 25-1002(7), the child lived in Texas almost exclusively “within six months
before” initiation of the January 2020 child custody proceeding in Texas.
See Welch-Doden, 202 Ariz. at 208–09, ¶ 33. That time period includes the
six-day window when the child was temporarily absent from Texas, which
does not affect home state status. See A.R.S. § 25-1002(7) (“including any
period during which that person is temporarily absent from that state”).
Thus, Mother did not meet her burden of showing that Arizona was the
child’s home state “within six months” of the filing of her Petition.
CONCLUSION
¶11 We affirm the superior court’s dismissal order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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