Natarajan v. Natarajan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
In re the Marriage of:
RAKESH NATARAJAN, Petitioner/Appellant,
v.
MEGALA NATARAJAN, Respondent/Appellee.
Nos. 1 CA-CV 20-0440 FC, 1 CA-CV 20-0541 FC
(Consolidated)
FILED 3-22-2022
Appeal from the Superior Court in Maricopa County
Nos. FC2020-050970, FC2019-055788
The Honorable Alison Bachus, Judge
AFFIRMED
COUNSEL
Rakesh Natarajan, London, England
Petitioner/Appellant
Megala Natarajan, Tamil Nadu, India
Respondent/Appellee
NATARAJAN v. NATARAJAN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge David D. Weinzweig and Judge Paul J. McMurdie joined.
S W A N N, Judge:
¶1 Rakesh Natarajan (“Father”) appeals from the superior
court’s dismissal of his Petition for Dissolution of Marriage. Because the
court correctly determined Father is not domiciled in Arizona, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Megala Natarajan (“Mother”) and Father are both Indian
citizens who married in India on February 15, 2013. On April 19, 2013,
Father moved to Arizona to join Mother, who had been working in Phoenix
since 2008. Mother had been in Phoenix on a temporary L1-B work visa.
Father held a dependent visa that allowed spouses of L1-B visa holders to
live and work in the United States. The parties had a child in 2014.
¶3 Mother’s L1-B non-immigrant visa expired on August 27,
2017. Two days earlier, the family traveled to India to attend a wedding.
Before leaving Arizona, Mother and Father applied for H1-B visas and
awaited their lottery results. About two weeks after leaving Arizona,
Father traveled to the United Kingdom for work. He returned to India in
late October 2017 to reunite with Mother and the child.
¶4 Mother’s petition for an H1-B visa was approved on October
18, 2017. Father’s H1-B dependent visa was approved on November 16,
2017. On November 18, 2017, the parties contacted their Arizona apartment
lease agent to renew the lease on their Arizona apartment for an additional
year. The parties also purchased tickets for a return flight to Arizona
scheduled for December 11, 2017.
¶5 Instead of returning to Arizona, the parties separated. The
child remained in India with Mother and maternal grandparents. Father
left India to work remotely from his company’s main office in the United
Kingdom. He returned to India in May 2018, where he remained until
flying to Arizona on October 1, 2018, to empty the couple’s storage unit.
Father then returned to the United Kingdom, where he resided through the
filing of this appeal.
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¶6 On April 24, 2019, Mother allowed the child to travel to the
United Kingdom to visit her father. Father then filed for a Child
Arrangement Order in the United Kingdom’s High Courts of Justice. In
November 2019, that court ruled that India was the child’s habitual
residence, not the United Kingdom or the United States. The child was
returned to her mother in India, where they currently reside. Father
remains in the United Kingdom, though he maintains that he intends to
return to Phoenix in the future.
¶7 Father petitioned for determination of custody in the
Maricopa County Superior Court. The court determined that it lacked
jurisdiction to enter parenting orders while the parties were still married.
Father then filed a Petition for Dissolution of Marriage in the Maricopa
County Superior Court on February 14, 2020. The superior court granted
Mother’s motion to dismiss, finding that Father had not maintained
domicile in Arizona. Father appeals.
DISCUSSION
I. THE SUPERIOR COURT DID NOT HAVE JURISDICTION OVER
FATHER’S DISSOLUTION PETITION.
¶8 Arizona courts have jurisdiction to enter dissolution decrees
when “one of the parties, at the time the action was commenced, was
domiciled in this state . . . for ninety days prior to filing the petition for
dissolution of marriage.” A.R.S. § 25-312. Domicile requires both (1)
physical presence and (2) an intent to remain for an indefinite period of
time. Lake v. Bonham, 148 Ariz. 599, 601 (1986). Once a domicile is
established, it is retained until replaced with another. Jizmejian v. Jizmejian,
16 Ariz. App. 270, 273–74 (1972). The superior court held that Father
abandoned his Arizona domicile in favor of the United Kingdom. Father’s
intent to establish future domicile is a question of fact. Bialac v. Bialac, 95
Ariz. 86, 87 (1963). But his residence for the 90 days preceding the filing of
the petition is not subject to dispute. We will uphold the superior court’s
decision so long as sufficient evidence supports its conclusion. Id. at 88. We
review the evidence in the light most favorable to supporting the court’s
decision. See Sommerfield v. Sommerfield, 121 Ariz. 575, 577 (1979).
¶9 “No general principle in the law of domicil is more firmly
established than the basic rule that every person has at all times one
domicil, and that no person has more than one domicil at a time.” Clark v.
Clark, 71 Ariz. 194, 197 (1950) (citation omitted). Consequentially, Father
cannot be domiciled in both the United Kingdom and Arizona. Father has
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lived in the United Kingdom since 2018, working at his employer’s main
office. “Domicile is presumed to follow residence . . . .” Jizmejian, 16 Ariz.
App. at 273. The party contesting this presumption bears the burden of
proof by a preponderance of the evidence. Id. at 273–74. Father claims he
never abandoned his domicile in Arizona and that he intends to return to
Phoenix. In support of this assertion, Father provided evidence that he and
Mother renewed the lease on their Arizona apartment and bought plane
tickets back to Phoenix while in India. At best, however, these actions only
demonstrate the parties’ intent to return to Arizona in 2017, not at the time
of filing.
¶10 Father also claims that he has items of personal property in
the state, including bank accounts and a safe deposit box. In filings with
the Royal High Courts of Justice, however, Father claimed he vacated the
storage unit holding the family’s belongings, bringing personal items with
him to London and giving the rest away to friends and charities. Father
argues he was absent from Arizona because Mother “kidnapped the
parties[’] child” and he intended to return to Arizona once the pandemic
resolved, no later than October 2020. In his 2019 filing with the Royal High
Courts of Justice, however, Father stated that he “resides in the UK on a tier
2 work visa” and “intends to remain here permanently.” After
consideration of the facts, we determine that the superior court had
sufficient evidence to find that Father abandoned his Arizona domicile.
II. THE SUPERIOR COURT DID NOT HAVE JURISDICTION TO
MAKE INITIAL CHILD CUSTODY DETERMINATIONS.
¶11 Father’s petition for dissolution of marriage also asked the
superior court to make legal decision-making, parenting time, and child
support determinations concerning the parties’ minor child. Our subject
matter jurisdiction in child custody proceedings is governed by A.R.S. § 25-
1031. Arizona courts have jurisdiction to make initial child custody
determinations only if one of the following is true:
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
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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 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.
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.
A.R.S. § 25-1031(A).
¶12 If a child is more than six months old, his or her home state is
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.” A.R.S. § 25-1002(7). Here,
although the child was born in Arizona and lived here for the first three
years of her life, neither she nor her parents have lived in Arizona since
August 25, 2017. Consequentially, Arizona is not the child’s home state.
¶13 When determining child custody jurisdiction, we treat foreign
nations as though they are different states within our country. A.R.S. § 25-
1005(A). The child lived in India from late August 2017 to March 2019. In
March 2019, Mother sent the child to visit her father in the United Kingdom.
On December 2, 2019, Mother returned to India with the child. As the child
lived in India for the two and a half years immediately preceding Father’s
filing, apart from a temporary absence, India is the child’s home state.
¶14 Father argues that the child’s absence from Arizona is due to
Mother’s “wrongful removal and retention.” In In re Marriage of Margain
and Ruiz-Bours, Margain and Ruiz–Bours married in Mexico in 2007. 239
Ariz. 369, 371, ¶ 2 (App. 2016). They moved to California where their child
was born in 2008. Id. The family traveled to Mexico in 2010. Id. The parties
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disputed the cause of the trip. Id. Ruiz–Bours and the child lived in Mexico
for nearly two years. Id. In 2011, Margain filed for divorce in Mexico; in
2012, Ruiz-Bours left Mexico for Arizona. Id. at ¶¶ 3, 6. Following
proceedings in both Mexico and Arizona, Ruiz-Bours argued for the first
time that California, not Mexico, was the child’s home state. Id. at 375–77,
¶¶ 4–14, 36. She also argued that the child’s ten-month absence from
California was a temporary absence. Id. at 377–78, ¶ 36. This court found
her argument unpersuasive as she cited no authority 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.” Id. at 378, ¶ 36. Here, Father has been absent from Arizona for
nearly four years, returning only to discard the family’s possessions in
2018.1 Like Ruiz-Bours, Father cites no legal authority that would allow us
to consider his extended absence from Arizona “temporary.”
¶15 We also decline to find that the child was abducted from
Arizona. Though the reasoning for the family’s trip to India is in dispute,
Father acknowledges that the parties agreed to remove the child from
Arizona in August 2017. There is no evidence in the record that Indian
courts have declined jurisdiction. To the contrary, Mother provided
evidence that at the time of filing that the parties were involved in a child
custody case in the Family Court of Tirupur, India. As the child’s home
state has not declined jurisdiction on the basis that Arizona is a better forum
to determine custody, the superior court correctly declined jurisdiction.
CONCLUSION
¶16 We affirm the superior court’s dismissal of Father’s petition.
AMY M. WOOD • Clerk of the Court
FILED: JT
1 On October 18, 2021, Father informed the Court of Appeals that he
is physically present in Arizona. Father re-entered the United States on
October 16, 2021. He holds an H1-B non-resident visa set to expire on
September 30, 2023. Father’s current presence in Arizona does not change
our conclusion that at the time of filing, he was domiciled in the United
Kingdom.
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