Prouty v. Hughes

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
DANA NICOLE PROUTY, Petitioner/Appellant,
v.
BRADLEY HUGHES, Respondent/Appellee.
________________________________
In re the Matter of:
DANA NICOLE PROUTY, Petitioner/Appellant,
v.
ADAM TIMOTHY KAFKA, Respondent/Appellee.
Nos. 1 CA-CV 16-0397 FC
1 CA-CV 16-0402 FC
(Consolidated)
FILED 12-11-2018
Appeal from the Superior Court in Maricopa County
Nos. FC2012-053300
FC2012-094898
The Honorable Jay M. Polk, Judge
AFFIRMED
COUNSEL
The Nathanson Law Firm, Scottsdale
By Philip J. Nathanson
Counsel for Petitioner/Appellant
Bishop Law Office, P.C., Phoenix
By Daniel P. Beeks
Counsel for Respondents/Appellees
OPINION
Judge Maria Elena Cruz delivered the opinion of the Court, in which
Presiding Judge Michael J. Brown and Judge Maurice Portley1 joined.
C R U Z, Judge:
¶1 Dana Nicole Prouty (“Mother”) appeals final orders relating
to child custody, legal decision-making authority, child support, and
attorney fees. We address in this opinion whether the superior court had
jurisdiction to modify a foreign child custody order concerning her
daughter. Because our resolution of only this issue merits publication, we
have addressed Mother’s other arguments in a memorandum decision filed
concurrently with this opinion. See Ariz. R. Sup. Ct. 111(h). For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Adam Timothy Kafka (“Kafka”) are the parents
of M.P. (“Daughter”), born in Illinois in 2008. When Daughter was two
years old, Mother and Kafka entered into a custody agreement in Illinois
which awarded Mother sole legal decision-making authority and primary
physical custody, and provided Kafka with unspecified parenting time.
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
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PROUTY v. HUGHES
Opinion of the Court
Soon thereafter, Mother and Daughter moved to Arizona after Mother
became romantically involved with Bradley Hughes (“Hughes”).
¶3 In December 2012, Kafka, a Nebraska resident, filed the
Illinois custody order in Arizona with a petition to modify that order, along
with a motion for temporary orders without notice seeking custody of
Daughter. Pursuant to the agreement of Prouty, Hughes and Kafka, under
Arizona Rule of Family Law Procedure 69, the superior court granted
temporary physical custody of Daughter to Hughes, with Mother having
supervised parenting time and Kafka having parenting time with Daughter
in Arizona once a month.
¶4 In May 2013, Kafka filed a petition to modify the temporary
orders. At the modification hearing, the superior court raised possible
jurisdictional concerns regarding the Illinois order and requested Kafka to
register the foreign order in Arizona pursuant to Arizona Revised Statutes
(“A.R.S.”) section 25-1055. Kafka filed his affidavit registering the order in
August 2013 and the court subsequently issued notice of the registration to
the parties. Mother took the children to Illinois without notice the same
month.
¶5 The superior court entered several additional temporary
orders regarding custody of Daughter and legal decision-making authority.
Specifically, in November 2013 the court entered orders for joint legal
decision-making authority, but only temporarily, for Daughter to reside
exclusively with Kafka. The court also issued a warrant to take physical
custody of Daughter.
¶6 When Kafka first attempted to enforce the warrant in Illinois,
Mother obtained an emergency restraining order from the Illinois court
against Kafka. In support of her petition for a restraining order, Mother
alleged that Arizona did not have proper jurisdiction to make orders
regarding Daughter because Mother and Daughter only “sporadically and
temporarily” resided in Arizona, as their primary residence was Illinois,
and the Illinois order was not properly registered in Arizona because
Mother had not been personally served.
¶7 Kafka filed an emergency motion for enforcement of the child
custody warrant in Arizona and in December 2013 the superior court made
findings of fact and conclusions of law affirming the warrant and all prior
orders. Of relevance, the court found Mother and Daughter resided in
Arizona beginning October 2012 and Mother had made admissions
conceding Arizona was Mother’s and Daughter’s home state. Shortly after,
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PROUTY v. HUGHES
Opinion of the Court
the parties appeared in Illinois. The Illinois court also found that Arizona
was the proper forum and ordered that the Arizona custody warrant was
immediately enforceable.
¶8 Mother urged the superior court to reconsider its December
2013 orders arguing she did not receive notice of the registration because it
was not sent to her Illinois address, and, therefore, the Illinois custody order
was not properly registered. The superior court found the Illinois order
was properly registered pursuant to A.R.S. § 25-1055 and Mother’s failure
to update her address with the court did not invalidate its registration or
enforceability.
¶9 Four months later, Mother filed a motion to dismiss the
Arizona proceedings for lack of jurisdiction. The superior court denied the
motion and affirmed its December 2013 findings and orders. In May 2014,
Kafka petitioned the superior court to find Mother in contempt for her
failure to comply with the court’s November 2013 custody warrant, and
later filed a supplement documenting attempts by Mother, in Illinois, to
serve Kafka with an order of protection, listing Daughter as a protected
person. On its own motion, the superior court set a Uniform Child Custody
Jurisdiction Enforcement Act (“UCCJEA”) conference with the Illinois court
to further address jurisdictional issues. The Illinois court found, for the
purposes of the UCCJEA, that Arizona was the proper forum and that
Mother was utilizing Illinois courts merely because she “[did] not agree
with the orders of the court in Arizona.” The Illinois court vacated its order
of protection proceedings.
¶10 Following a two and a half-day trial in January 2016, the
Arizona court granted Kafka’s petition to modify legal decision-making
authority and parenting time.
¶11 We have jurisdiction over Mother’s timely appeal from these
orders pursuant to A.R.S. § 12-2101(A)(1).
DISCUSSION
¶12 This court reviews the superior court’s jurisdiction to modify
a custody order from another state de novo. Danielson v. Evans, 201 Ariz.
401, 411, ¶ 36 (App. 2001). When Kafka filed his petition to modify the
Illinois custody order, he did not register the order in accordance with
A.R.S. § 25-1055. Mother contends the superior court, therefore, lacked
subject matter jurisdiction to modify the Illinois custody order and, as a
result, all subsequent orders by the superior court are void. In support of
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Opinion of the Court
her argument, Mother relies on this court’s opinion in Glover v. Glover, 231
Ariz. 1 (App. 2012). We find Glover distinguishable.
¶13 In Glover, a Massachusetts court ordered the father to pay
child support. The parties relocated to Arizona and subsequently entered
into an agreement to reduce the father’s child support obligation. Id. at 2-3,
¶¶ 2-5. On appeal, this court held the superior court lacked jurisdiction to
modify the foreign support order because it was never registered in
Arizona as required by the Uniform Interstate Family Support Act
(“UIFSA”), A.R.S. § 25-1201 to -1342. Id. at 7, ¶¶ 21-22.
¶14 The UIFSA applies to child support orders. The UIFSA
statutes governing modification of foreign child support orders require
such orders to be registered. See A.R.S. § 25-1309 (party seeking to modify
foreign support order shall register that order); § 25-1310 (Arizona courts
may enforce a registered foreign support order, but may modify a
registered support order only if certain requirements are met); see also
Glover, 231 Ariz. at 7, ¶ 21 (“Unless the foreign child support order is
registered, the issuing state retains exclusive jurisdiction, which means
another state lacks jurisdiction to modify the order unless it is registered
and other prerequisites are satisfied.”).
¶15 By contrast, the jurisdictional provision at issue here is the
UCCJEA, A.R.S. § 25-1033, not the UIFSA. Unlike the UIFSA, the UCCJEA
does not require that a foreign custody order be registered before it may be
modified. See also A.R.S. §§ 25-1055, -1056. While A.R.S. § 25-1055(A)
provides that “[a] child custody determination issued by a court of another
state may be registered in this state,” it does not require registration.
(Emphasis added). Under the UCCJEA, the jurisdictional requirement for
modification of a child custody determination is that this state have
jurisdiction to make an initial determination and that either of the following
be true:
1. The court of the other state determines it no longer has
exclusive, continuing jurisdiction under § 25-1032 or that a
court of this state would be a more convenient forum under
§ 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.
A.R.S. § 25-1033. See Ex parte Davis, 82 So. 3d 695, 701 (Ala. Civ. App. 2011)
(holding that under the plain language of a similar Alabama UCCJEA
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PROUTY v. HUGHES
Opinion of the Court
provision, registration is not required to modify foreign custody order, only
to enforce such order), overruled on other grounds by Ex parte Reynolds, 209
So. 3d 1122, 1126 (Ala. Civ. App. 2016); see also Lopez v. Olson, 724 S.E.2d
837, 841 (Ga. Ct. App. 2012) (holding Georgia’s identical version of UCCJEA
did not require registration of foreign custody order prior to modification);
Butler v. Butler, M2011-01341-COA-R3-CV, 2012 WL 4762105, at *4-5 (Tenn.
Ct. App. Oct. 5, 2012) (holding that to modify foreign custody order,
Tennessee’s similar UCCJEA provisions do not require registration of
order).
¶16 The reasons for a registration requirement in the UIFSA but
not in the UCCJEA are explained in the UIFSA commentary:
UIFSA and UCCJEA seek a world in which there is but one
order at a time for child support and custody and visitation.
Both have similar restrictions on the ability of a tribunal to
modify the existing order. The major difference between the
two acts is that the basic jurisdictional nexus of each is
founded on different considerations. UIFSA has its focus on
the personal jurisdiction necessary to bind the obligor to
payment of a child-support order. UCCJEA places its focus on
the factual circumstances of the child, primarily the “home
state” of the child; personal jurisdiction to bind a party to the
custody decree is not required.
§ 611 (Unif. Law Comm’n 2008). Registration of the Illinois custody order
was not required; therefore, the failure to timely register the order did not
deprive the Arizona court of jurisdiction.
¶17 Mother also argues other UCCJEA requirements were not met
because Arizona did not have jurisdiction under § 25-1033. As previously
stated, see supra ¶ 14, § 25-1033 requires jurisdiction to make an initial
determination under § 25-1031(A)(1) or (2), and that one of two additional
requirements be met. Here, all of the § 25-1033 jurisdictional requirements
were satisfied. The superior court found that in December 2012, Arizona
was Mother’s and Daughter’s home state and that neither Daughter nor
either of the parties resided in Illinois. The record supports these findings.
Therefore, the court did not err in finding it had jurisdiction under A.R.S.
§ 25-1033 and properly exercised jurisdiction over Father’s petition to
modify.
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Opinion of the Court
CONCLUSION
¶18 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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