Morgan v. Morgan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELIDE MORGAN, Petitioner/Appellant,

v.

RAYMOND MORGAN, Respondent/Appellee.

No. 1 CA-CV 25-0191 FC
FILED 12-24-2025

Appeal from the Superior Court in Maricopa County
No. FC2016-092898
The Honorable Quintin H. Cushner, Judge

AFFIRMED

COUNSEL

Cervone Law P.C., Phoenix
By Kristina L. Cervone
Counsel for Petitioner/Appellant

Riley Law Firm, PLC, Phoenix
By Daniel S. Riley
Counsel for Respondent/Appellee
 MORGAN v. MORGAN
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Vice Chief Judge David D.
Weinzweig joined.

B A I L E Y, Judge:

¶1 Elide Morgan (“Mother”) appeals the superior court’s denial
of her motion for relief from judgment and her motion for attorneys’ fees.
For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2005, Raymond Morgan (“Father”) and Mother married in
Arizona. The parties have one minor child. In August 2016, Mother
petitioned for dissolution, and the court entered the parties’ consent decree
and parenting plan in April 2017.

¶3 Mother and Father each moved outside Arizona several times
over the next few years, although Mother continued to maintain her
Arizona home purchased in 2011. Father alleges that the parties exercised
a “three-week-on-three-week-off schedule in which the child would stay
with Mother in Arizona for three weeks and then [with] Father in California
for three weeks” between January and August 2023, at which time Father
petitioned for the child to relocate to California. Soon after, the superior
court appointed an advisor (“CAA”) to report on factors affecting the
child’s best interests. Ariz. R. Fam. Law P. 10.1; A.R.S. § 25-406.

¶4 In March 2024, the superior court approved a stipulated order
modifying the parenting plan. As part of the order, the parties agreed the
Arizona superior court had “exclusive continuing jurisdiction to modify
[the previous parenting] plan.” They also stipulated that at the time Father
was residing in California, and Mother was residing in New Jersey. The
parties agreed the child would relocate to Oregon with Father, and Father
would be the primary residential parent.

¶5 In November 2024, Mother filed an expedited motion for
relief from judgment under Arizona Rule of Family Law Procedure
(“Rule”) 85 and a motion for attorneys’ fees. The court denied Mother’s
motions in an unsigned minute entry and later issued a signed order.

2
 MORGAN v. MORGAN
Decision of the Court

¶6 Mother timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(2).

DISCUSSION

¶7 Mother argues the superior court erred in denying her motion
for relief from judgment and motion for attorneys’ fees.

¶8 We review the denial of a Rule 85 motion for an abuse of
discretion. Quijada v. Quijada, 246 Ariz. 217, 220, ¶ 7 (App. 2019). A court
abuses its discretion when it acts arbitrarily or inequitably, makes a decision
unsupported by the facts, or misapplies the law. See City of Phoenix v. Geyler, 144 Ariz. 323, 328-29 (1985). Under Rule 85(b), a superior court may relieve
a party from final judgment for several reasons, including that the
judgment is void. See Ariz. R. Fam. Law P. 85(b)(4).

I. The superior court’s judgment is not void.

¶9 Mother argues the superior court’s judgment was void under
Rule 85(b)(4) because the court lacked subject matter jurisdiction. She
contends the family court abused its discretion by modifying the parenting
plan in violation of the Uniform Child Custody and Jurisdiction and
Enforcement Act (“UCCJEA”).

¶10 We review de novo whether a judgment is void. Duckstein v.
Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012). If a judgment is void, the superior
court “has no discretion but to vacate it.” In re Marriage of Dougall, 234 Ariz.
2, 6, ¶ 12 (App. 2013) (citation omitted). “A judgment or order is ‘void’ if
the court entering it lacked [subject matter] jurisdiction.” Id. (citation
omitted). “Subject matter jurisdiction is the power of a court to hear and
determine a controversy,” Medina v. Est. of Cody, 256 Ariz. 335, 337, ¶ 7
(App. 2023) (citation omitted), and it cannot be waived, Glover v. Glover, 231
Ariz. 1, 3, ¶ 8 (App. 2012).

A. The superior court did confirm its authority to modify the
parenting plan.

¶11 Mother first asserts the superior court failed to “confirm its
authority to enter the [stipulated order modifying the parenting plan].”
Section 25-402(A) provides that before a superior court “conducts a
proceeding concerning legal decision-making or parenting time,” it must
first “confirm its authority to do so.” A.R.S. § 25-402(A).

3
 MORGAN v. MORGAN
Decision of the Court

¶12 Here, the superior court found it had jurisdiction to enter the
original divorce decree and to “resolve issues regarding legal decision-
making and parenting time” pursuant to A.R.S. § 25-1031. And in adopting
the parties’ 2024 stipulated parenting plan, the court concluded that
because “Arizona is the state that entered the previous parenting plan . . .
Arizona has exclusive continuing jurisdiction to modify that plan.” The
court was not required to conduct any further jurisdictional analysis. See
Melgar v. Campo, 215 Ariz. 605, 607, ¶ 10 (App. 2007) (stating that the
UCCJEA’s goal is to “allow[] the court that makes the original custody
determination to retain exclusive, continuing jurisdiction over that order”)
(citations omitted). The court appropriately determined it retained
exclusive, continuing jurisdiction. We discern no error.

B. The superior court did not automatically lose subject matter
jurisdiction.

¶13 Mother next argues the superior court did not have exclusive,
continuing jurisdiction under A.R.S. § 25-1032 because it adopted the
parties’ stipulation that they were residing outside of Arizona at the time of
the modification.

¶14 A court of this state that has made a child custody
determination consistent with § 25-1031 has exclusive, continuing
jurisdiction over a child custody determination until either:

(1) A court of this state determines that neither the child, nor
the child and one parent, nor the child and a person acting as
a parent have a significant connection with this state and that
substantial evidence is no longer available in this state
concerning the child’s care, protection, training and personal
relationships.

(2) A court of this state or a court of another state determines
that the child, the child’s parents and any person acting as a
parent do not presently reside in this state.

A.R.S. § 25-1032(A).

¶15 Here, the court adopted the parties’ stipulation that Father
and Mother were residing in California and New Jersey, respectively, at the
time of the stipulation. However, this alone did not divest the court of
jurisdiction under A.R.S. § 25-1032(A)(2) because the statute requires the
court to also determine “that the child” does not presently reside in
Arizona. The court made no such finding, and indeed, according to the

4
 MORGAN v. MORGAN
Decision of the Court

record, the CAA reported the child flew “back and forth to Arizona to see
Mother,” and Mother “insinuat[ed]” that she lived in Arizona and New
Jersey.

¶16 As further support, Father cites a recent memorandum
decision, Tillman v. Smith, 1 CA-CV 24-0360 FC, 2025 WL 2252983 (Ariz.
App. Aug. 7, 2025) (mem. decision), to argue Arizona “does not
automatically lose jurisdiction when all parties move to another state.”
Mother contends Tillman is factually distinct and therefore not persuasive.

¶17 In Tillman, we considered whether the superior court had
exclusive, continuing jurisdiction over the mother’s petition to modify the
parties’ parenting orders. Id. at *2-3, ¶¶ 17-22. Although Tillman is factually
distinct from this case, its legal analysis is still informative. In Tillman, a
panel of this court concluded that under A.R.S. § 25-402, a “court does not
automatically lose jurisdiction when all the parties move to another state.”
Id. at *3, ¶ 21 (emphasis added). Indeed, we held that under the statute’s
express language, a court “retains jurisdiction until it—or a court in another
state—makes determinations sufficient to fulfill at least one of the
conditions specified in A.R.S. § 25-1032(A).” Id. We held “affirmative court
action is necessary to divest a court of jurisdiction under the UCCJEA.” Id.

¶18 Here, Mother took no action before filing her Rule 85 motion
to divest Arizona of jurisdiction under A.R.S. § 25-1032(A). See, e.g., Melgar,
215 Ariz. at 607, ¶ 11 (“The rule of exclusive, continuing jurisdiction
remains the jurisdictional lodestar until [] the court that originated the order
. . . deci[des] to discontinue exclusive, continuing jurisdiction.”). Indeed, “a
party who wishes to modify the original decree must either return to the
court with exclusive, continuing jurisdiction to modify the order or get that
court to relinquish jurisdiction,” id., which Mother did not do at the time
the court entered the stipulated modification order.

II. The superior court did not err when it denied Mother’s motion for
attorneys’ fees.

¶19 Mother argues the superior court erred by denying her
motion for attorneys’ fees.

¶20 We review the denial of attorneys’ fees for an abuse of
discretion. Tanner v. Marwil ex rel. Maricopa Cnty., 250 Ariz. 43, 47, ¶ 16
(App. 2020). We review the record “in the light most favorable to
upholding the court’s ruling” and only find an abuse of discretion when the
record “is devoid of any evidence to support its ruling.” Id.

5
 MORGAN v. MORGAN
Decision of the Court

¶21 Mother contends she was entitled to an award of attorneys’
fees under A.R.S. § 25-324(B)(2) because Father’s petition for relocation
“was not grounded in fact or law,” and his continuing assertion that
Arizona had exclusive, continuing jurisdiction while also conceding he and
Mother lived outside Arizona was “unreasonable.” We disagree. As
discussed above, an Arizona court may retain exclusive, continuing
jurisdiction under A.R.S. § 25-1032(A), even if the parents do not reside in
Arizona. Further, to the extent Mother is asking us to reweigh the evidence
to determine whether the parties and the child lived outside Arizona, we
will not do so. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 286, ¶ 31 (App. 2019).

¶22 The superior court did not abuse its discretion in denying
Mother’s request for attorneys’ fees.

ATTORNEYS’ FEES AND COSTS ON APPEAL

¶23 Both parties request an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. § 25-324. Each party appears to have
considerable financial resources, and after considering the reasonableness
of their positions on appeal, we award Father taxable costs and attorneys’
fees in an amount to be determined, contingent upon his compliance with
Arizona Rule of Civil Appellate Procedure 21. We decline to award
sanctions against either party.

CONCLUSION

¶24 We affirm.

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

6