King v. Bertram

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Matter of:

CHRISTOPHER M. KING, Petitioner/Appellant,

v.

TALANI J. BERTRAM, Respondent/Appellee.

No. 1 CA-CV 24-0399 FC
FILED 03-18-2025

Appeal from the Superior Court in Maricopa County
No. FC2022-005231
The Honorable James N. Drake Jr., Judge

AFFIRMED

COUNSEL

Law Office of Joseph T. Stewart PLLC, Phoenix, AZ
By Joseph T. Stewart
Counsel for Petitioner /Appellant

Talani Bertram, Valley Stream, NY
Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Anni Hill Foster delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Paul J. McMurdie joined.

F O S T E R, Judge:

¶1 Petitioner Christopher King (“Father”) appeals a legal
decision-making and parenting time order granting Telani Bertram
(“Mother”) sole legal decision-making and primary custody of the parties’
child (“Child”). 1 Father argues the superior court failed to apply the
standard for determining home state jurisdiction and that delays in
establishing jurisdiction prejudiced him. Finding no legal error or abuse of
discretion, this Court affirms for the reasons stated below.

FACTS AND PROCEDURAL HISTORY

¶2 The parties are unmarried and have one Child together. 2 In
July 2021, Mother was pregnant; she came to Arizona from New York to
start a Ph.D. program and live with Father. The parties jointly owned a
home in Tucson, where Child was born in March 2022.

¶3 Mother left Arizona with Child and returned to New York in
May 2022. Mother and Child temporarily returned to Arizona in July 2022
to pack their things. They stayed in the parties’ home with Father. Due to
events that occurred during this visit, Mother obtained a protective order
giving her exclusive use of the home. The order was later amended to
include Child. Mother packed her things, put them in storage and returned
to New York with Child shortly thereafter.

1 Father briefly alleges that New York lacked jurisdiction to issue the child

support order. Because he does not fully develop this argument with
citations to the record or legal authority, this decision does not address it.
See Boswell v. Fintelmann, 242 Ariz. 52, 54, ¶ 7 n.3 (App. 2017) (“Because
[appellant] fails to develop and support his conclusory arguments . . . he
waives them.”).
2 Father signed the birth certificate when Child was born, and by stipulation

and genetic testing during this litigation paternity was confirmed.

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¶4 On August 18, 2022, Father petitioned in Arizona to establish
paternity, legal decision-making authority, parenting time and child
support. He also filed two incomplete petitions for temporary orders, which
the superior court rejected. Mother petitioned for custody in New York on
October 6, 2022, before being served with Father’s petition on January 4,
2023. She also petitioned for child support in New York on February 7, 2023.

¶5 Once Father learned of the New York custody petition, he
asked the Arizona court to confer with the New York court to determine
jurisdiction under the Uniform Child Custody Jurisdiction Enforcement
Act (“UCCJEA”). Father asserted that Arizona was Child’s home state
because she was born and lived in the state within six months of the date
Father filed his petition. See A.R.S. §§ 25-1031(A)(1), -1002(7)(b).

¶6 Mother moved to dismiss the Arizona proceeding, arguing
Child had no home state and New York had jurisdiction because Child had
more substantial connections there. The Arizona court set a UCCJEA
conference with the New York court for March 24, 2023. For reasons not
apparent in the record, the Arizona court rescheduled this conference to
June 5, 2023.

¶7 At the UCCJEA conference, the Arizona court determined
that a question of home state jurisdiction existed and encouraged the parties
to find a convenient date for an evidentiary hearing. With no agreement on
a hearing date, Father again asked the court to set a UCCJEA conference or
rule on Mother’s pending motion to dismiss.

¶8 The Arizona court noted the difficulty scheduling a UCCJEA
conference with the New York court, noted its belief that Arizona was
Child’s home state and scheduled a trial on Father’s petition to establish
paternity, legal decision-making, parenting time and child support for
October 2, 2023. The court reserved the first half of the day for an
evidentiary hearing on the home state issue to make a final determination
about jurisdiction. If the court determined Arizona had jurisdiction, the
second half of the trial would address legal decision-making, parenting
time and child support. A week after this order, Father moved for summary
judgment on UCCJEA jurisdiction. The court denied the motion, stating it
wanted to hear the evidence before deciding.

¶9 At the scheduled evidentiary hearing on jurisdiction and trial
on the merits, the parties stipulated that Arizona was Child’s home state
and had jurisdiction. Furthermore, they agreed to temporary orders
allowing Child to stay in New York with Mother and granting Father

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supervised parenting time until January. After the parties failed to agree on
permanent orders, the trial was set for April 1, 2024.

¶10 After the trial, the superior court found Father did not attempt
to exercise any parenting time despite the temporary orders. The court
addressed the best interests and relocation factors. See A.R.S. §§ 25-403(A),
-408(I). The court found that under §§ 25-403(A)(8) and -403.03(A), Father
had committed “significant domestic violence” and therefore awarded
Mother sole legal decision-making authority. The court also allowed Child
to live in New York with Mother and awarded Father gradually increasing
parenting time after he completed three supervised visits in New York. The
Arizona court did not enter a child support order because of an existing
child support order in New York.

¶11 Father timely appealed, and this Court has jurisdiction under
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶12 Father argues that the superior court had jurisdiction under
A.R.S. § 25-1031(A)(1) when he filed his petition, erred by delaying its
ruling on jurisdiction and failed to order Mother to return Child to Arizona.
This Court reviews de novo the superior court’s subject matter jurisdiction
under the UCCJEA and other questions of law. Gutierrez v. Fox, 242 Ariz.
259, 264, ¶ 17 (App. 2017). “But to the extent a court’s jurisdictional decision
depends on its resolution of disputed facts, [this Court] will accept the
court’s findings if they are supported by reasonable evidence.” Tracy D. v.
Dep’t of Child Safety, 252 Ariz. 425, 429, ¶ 10 (App. 2021) (citation omitted).
This Court reviews child custody and parenting time orders for an abuse of
discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).

I. UCCJEA Jurisdiction.

¶13 Arizona and New York have enacted the UCCJEA. See A.R.S.
§§ 25-1001 to -1067; N.Y. Dom. Rel. Law §§ 75 to 78-a. The UCCJEA provides
that a state court has jurisdiction to make an initial custody determination
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.

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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 § 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); accord N.Y. Dom. Rel. Law § 76(1).

¶14 When the child is under six months old, the UCCJEA defines
the “home state” as “the state in which the child lived from birth with a
parent or person acting as a parent, including any period during which that
person is temporarily absent from that state.” A.R.S. § 25-1002(7)(b); accord
N.Y. Dom. Rel. Law § 75-a(7). The statute defines “commencement” as “the
filing of the first pleading in a proceeding.” A.R.S. § 25-1002(5); accord N.Y.
Dom. Rel. Law § 75-a(5). Here, Child was less than six months old when
Father filed his petition in August 2022. Father lived in Arizona when Child
was born and continues to live here. Child lived with Father and Mother in
Arizona until May 2022. Thus, under A.R.S. § 25-1002(7)(b), Arizona is the
home state. Mother’s move to New York in May 2022 did not defeat
Arizona’s jurisdiction because Arizona was the home state within six
months of Father’s August 2022 petition. See A.R.S. § 25-1031(A)(1);
Gutierrez, 242 Ariz. at 266, ¶ 23.

II. The Delay in Proceedings was Error.

¶15 Father contends that because the facts that supported the
home state jurisdiction were undisputed the court erred in delaying the

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ruling on jurisdiction. He also argues that the delay harmed his relationship
with Child and, ultimately, negatively impacted the relocation decision.

¶16 But the superior court’s inexcusable delay in resolving the
UCCJEA jurisdictional questions does not warrant reversal. This Court
acknowledges that the four-month delay at the outset of this case resulted
from Father’s deficient petitions for temporary orders and failure to serve
Mother. However, Father made multiple requests for the UCCJEA
conference between the courts, asserting an urgent need for the courts to
consider the fundamental parenting rights at stake along with Child’s best
interests. See A.R.S. § 25-1036(B) (when a proceeding has been commenced
in another state, the court must stay the proceeding and “communicate with
the court of the other state”); see also A.R.S. § 25-1057 (if an enforcement
proceeding is started in this state and a modification proceeding is pending
in another state with jurisdiction, the enforcing court must promptly
contact the modifying court). By failing to hold a timely UCCJEA
conference, the superior court abused its discretion by delaying the
conference without reasonable justification.

¶17 But Father’s remedy for compelling a timely UCCJEA
conference was to seek special action relief. See Goff v. Superior Courts
(Robinson), 2 Ariz. App. 344, 347 (1965) (a ruling on venue may be corrected
by a special action “if an abuse of discretion is shown”); see also Dunn v.
Carruth, 162 Ariz. 478, 479 (1989) (“[S]pecial action is an appropriate
procedure for raising challenges to venue rulings.”). He did not pursue
such relief and it is simply too late to claim unnecessary delay (as opposed
to lack of jurisdiction) at this point in the dispute. See Backstrand v.
Backstrand, 250 Ariz. 339, 346, ¶ 29 (App. 2020) (courts balance due process
with managing their dockets).

¶18 Although the Arizona court should have conducted the
UCCJEA much sooner, this Court will not reverse for technical error where
no prejudice is shown. Ariz. Const. art. 6, § 27 (“No cause shall be reversed
for technical error in pleadings or proceedings when upon the whole case
it shall appear that substantial justice has been done.”); see also In re the
marriage of Dorman, 198 Ariz. 298, 303, ¶ 12 (App. 2000). On appeal, this
Court does not reweigh the evidence. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶
16 (App. 2009). Instead, this Court affirms the superior court’s orders if
substantial evidence supports them. Id.

III. Father Was Not Prejudiced By Any Delay.

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¶19 Father argues that the delay was prejudicial to his
relationship with Child and resulted in the order allowing relocation. But a
valid order of protection based on Father’s conduct prevented Father’s
contact with Child until July 2023, a month after the superior court pushed
for resolution of the home state issue. After the protective order expired,
Father stipulated that Child could remain in New York under the
temporary orders. This agreement significantly weakens Father’s claim that
the court’s delay and the long distance prejudiced his ability to form a
relationship. Cf. Duwyenie v. Moran, 220 Ariz. 501, 506, ¶¶ 16–17 (App. 2009)
(the party stipulating to an order cannot object to the terms in that order on
appeal).

¶20 Father’s claim of prejudice is also harmed by his failure to
seek or arrange a visit, ask to speak with Child or request updates from
Mother. Before this action commenced, Father declined a visit in Arizona
for Father’s Day in 2022. And after the commencement of the action, the
superior court found that “Father took few, if any, steps” to see Child after
the entry of temporary orders. The court also found Father not credible
when he claimed he could not visit Child in New York because of financial
constraints. Indeed, Father’s lack of effort to develop a relationship with
Child carried significant weight with the court.

¶21 Father cites Ramirez v. Barnet, 241 Ariz. 145 (App. 2016), to
support his position that he was prejudiced by delay justifying reversal. But
Ramirez involved a very different fact pattern. There, the adoptive parents
left Arizona and began adoption proceedings in New York. Ramirez, 241
Ariz. at 148, ¶¶ 4–5 & n.2. Simultaneously, the father filed a paternity action
in Arizona. Id. at 147–48, ¶¶ 2, 5. The Arizona trial court dismissed the
father’s paternity action because after a delay in determining jurisdiction,
the New York adoption had been completed even though the question of
jurisdiction had not been resolved. Id. at 149, ¶ 10. This Court, in Ramirez,
determined the superior court improperly dismissed the case. Id. at 147,
156, ¶¶ 2, 34. Here, Arizona maintained jurisdiction and Father was heard
on his petition providing him due process.

¶22 Also, the Arizona court took the time to confer with the New
York court, especially once it knew that an action was already underway.
See A.R.S. § 25-1010(A) (“A court of this state may communicate with a
court in another state concerning a proceeding arising under this chapter.”);
A.R.S. § 25-1036(B) (directing the court to “stay its proceeding and
communicate with the court of the other state” when “the court determines
that a child custody proceeding has been commenced in” another state

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having “jurisdiction substantially in accordance with this chapter”).
Ramirez is not applicable and Father has not shown prejudice.

IV. Child Was Not Required to be Returned to Arizona.

¶23 Father next argues that once the superior court determined it
had jurisdiction, the court erred by not ordering Mother to return Child to
Arizona under Gutierrez.

¶24 While Gutierrez did state that removing a child from Arizona
without the other parent’s permission or court order constitutes custodial
interference, 242 Ariz. at 269–70, ¶ 43 (citing A.R.S. § 13-1302(A)(2)),
Gutierrez did not hold that the superior court must order the child be
returned to Arizona, see id. at 271–72, ¶¶ 48–49. Rather, Gutierrez upheld the
lower court’s discretionary decision to order the leaving parent to return
the child for parenting time in Arizona after considering the best interests
and relocation factors. Id. at 270–72, ¶¶ 44–49. This does not, as Father
suggests, equate to a holding that the leaving parent must return Child to
the home state of Arizona. Instead, the court, in Gutierrez, considered the
advantages and disadvantages to both locations before finding that
returning to Arizona for parenting time was in the child’s best interests. Id.
at ¶¶ 47–49.

¶25 Here, Father stipulated to the temporary orders and then
failed to act on his rights under them. Further, the superior court explained
that it found at the time of the temporary orders, it was in Child’s best
interests “to preserve the status quo” and therefore did not order Mother to
return Child to Arizona. This Court finds no abuse of discretion in declining
to order Child be returned to Arizona.

CONCLUSION

¶26 This Court affirms the legal decision-making and parenting
time orders. Mother is entitled to costs on appeal upon compliance with
Arizona Rule of Civil Appellate Procedure 21. See A.R.S. §§ 12-341, -342(A).

MATTHEW J. MARTIN • Clerk of the Court
FILED: TM

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