Michelle M. v. Loren C., R.H.

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MICHELLE M., Appellant,

v.

LOREN C., R.H., Appellees.

No. 1 CA-JV 14-0097
FILED 9-16-2014

Appeal from the Superior Court in Maricopa County
No. JS506562
The Honorable David J. Palmer, Judge

AFFIRMED

COUNSEL

Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer, Tanya R. Imming-Hill
Counsel for Appellant

Gillespie, Shields & Durrant, Phoenix
By DeeAn Gillespie, Elijah K. Nielson
Counsel for Appellees
 MICHELLE M. v. LOREN C., R.H.
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge
Andrew W. Gould and Judge Jon W. Thompson joined.

S W A N N, Judge:

¶1 Michelle M. (“Mother”) appeals the superior court’s order setting
aside the severance of the parent-child relationship between Loren C. (“Father”)
and their child, R.H. (“Child”). Mother contends that the court erred by setting
aside the severance order for lack of subject-matter jurisdiction. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Child was born in February 2005 while Mother and Father were
married and resided in California. The parties filed for dissolution shortly after
Child’s birth, and Mother relocated with Child to Arizona before the dissolution
became final. Father at all times continued to reside in California.

¶3 In August 2005, a California court entered a decree of dissolution
that incorporated the parties’ Marital Settlement Agreement (“MSA”) and thereby
resolved all outstanding issues related to child custody and parenting time. The
MSA mentioned Mother and Child’s move to Arizona, but did not make any
reference to the California court’s relinquishment of jurisdiction over future child-
custody issues. Mother never domesticated the California decree in this state.

¶4 After an enduring dispute over parenting time, Father agreed to
waive his right to receive notice of the place, date and time of Mother’s planned
action to sever his parental rights. Father’s waiver acknowledged that a court
could sever his parental rights in his absence. Mother proceeded to file a severance
petition in Arizona in September 2009, which the superior court granted in
December 2009.

¶5 In June 2012, Father petitioned the court below to set aside the
severance order. Father contended for the first time that the court lacked personal
jurisdiction to sever his parental rights because Mother had failed to serve him
with the severance petition. Following an evidentiary hearing, the court agreed
that Mother had failed to serve Father properly, but found the failure immaterial
because of Father’s earlier waiver. The court likewise declined to grant relief based
on Father’s further contention that Mother had testified falsely during the
severance hearing.

2
 MICHELLE M. v. LOREN C., R.H.
Decision of the Court

¶6 Nevertheless, the court ordered the parties to submit additional
briefing on the potential impact of Angel B. v. Vanessa J., 234 Ariz. 69, 316 P.3d 1257
(App. 2014), which we published while Father’s petition was under advisement
and discuss in detail below. Relying on Angel B., the court ordered the December
2009 severance order set aside for lack of subject-matter jurisdiction in April 2014.
The court rejected Mother’s argument that a California order from June 2013,
stating that the California court had “no jurisdiction to modify Arizona orders
[because c]ustody proceedings here in California are terminated,” proved that
Arizona could exercise subject-matter jurisdiction in December 2009. Mother
timely appeals.

DISCUSSION

¶7 Mother contends that the court erred by setting aside the severance
order for lack of subject-matter jurisdiction. “We review a trial court’s legal
conclusions, including questions of jurisdiction, de novo.” Thomas v. Thomas, 220
Ariz. 290, 292, ¶ 8, 205 P.3d 1137, 1139 (App. 2009).

¶8 The circumstances in Angel B. and this case are substantially similar.
In Angel B., a married couple had a child while residing in California. 234 Ariz. at
71, ¶ 2, 316 P.3d at 1259. The mother filed for dissolution in California shortly after
the child’s birth, and the following year a California court issued a dissolution
decree that incorporated the parties’ parenting plan. Id. The mother thereafter
moved to Arizona with the child and apparently failed to domesticate the
California decree in this state. Id. at ¶ 3. The father meanwhile remained a resident
of California. Id. The mother eventually petitioned an Arizona court to sever
Father’s parental rights, which the court granted. Id. at 71, 74, ¶¶ 3, 16, 316 P.3d
at 1259, 1262.

¶9 On appeal in Angel B., we held that the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”), codified at A.R.S. §§ 25-1001 to -
1067, applies to private severance proceedings under Arizona law. Id. at 73, ¶ 14,
316 P.3d at 1261. The UCCJEA provides that once a court with original jurisdiction
issues an initial child-custody determination, that court retains exclusive,
continuing jurisdiction over all future custody determinations. Id. at 72, ¶ 11, 316
P.3d at 1260 (citing A.R.S. § 25-1032(A)). “[O]riginal jurisdiction for the initial child
custody determination is based on the child’s home state,” and “home state” is
“the state in which the child lived with a parent for at least six consecutive months
before the filing of a custody petition, or since birth.” Id. at ¶ 9 (citing §§ 25-1002(7),
-1031(A)(1)). The initial child-custody determination is “the first child custody
determination concerning a particular child.” A.R.S. § 25-1002(8). Generally, the
UCCJEA prohibits a court of this state from modifying an initial custody order

3
 MICHELLE M. v. LOREN C., R.H.
Decision of the Court

entered by a court of another state with exclusive, continuing jurisdiction. Angel
B., 234 Ariz. at 72, ¶ 11, 316 P.3d at 1260 (citing § 25-1033).

¶10 Under A.R.S. § 25-1033, however, there are circumstances in which
an Arizona court may modify an initial custody determination issued by a court
of another state:

[A] court of this state shall not modify a child custody determination
made by a court of another state unless a court of this state has
jurisdiction to make an initial determination under § 25-1031[(A)(1)
or (2)] . . . and either of the following is true:

1. The court of the other state determines that 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[; or]

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.

(Emphasis added.) Because neither party in Angel B. raised the applicability of
these exceptions in the superior court, we remanded for a determination of
whether Arizona was the appropriate jurisdiction in which to address severance.
See Angel B., 234 Ariz. at 72, 74, ¶¶ 5, 19-21, 316 P.3d at 1260, 1262-63.

¶11 Unlike Angel B., we need not remand this case for further
proceedings because the court below addressed the issue of subject-matter
jurisdiction under the UCCJEA and concluded that none of the exceptions in § 25-
1033 applied. Neither party disputes that California had original jurisdiction to
issue the initial child-custody determination in August 2005. See Cal. Fam. Code
§§ 3402(c), (g), (h), 3421(a)(1). It is also undisputed that Arizona had become
Child’s home state by September 2009 when Mother petitioned for severance,
thereby satisfying the preliminary requirement of § 25-1033. See A.R.S. § 25-
1031(A)(1) (“[A] court of this state has jurisdiction to make an initial child-custody
determination only if any of the following is true: . . . This state is the home state
of the child on the date of the commencement of the proceeding.”). But the record
is devoid of any indication that California had relinquished its exclusive,
continuing jurisdiction, or determined that Arizona would be a more convenient
forum, before the Arizona court severed Father’s parental rights. Such
determinations must be part of the record to satisfy § 25-1033(1). See Angel B., 234
Ariz. at 74, ¶ 17, 316 P.3d at 1262; Melgar v. Campo, 215 Ariz. 605, 608, ¶ 15, 161
P.3d 1269, 1272 (App. 2007). And because Father remained a California resident
throughout this case, § 25-1033(2) does not apply. We therefore conclude that the

4
 MICHELLE M. v. LOREN C., R.H.
Decision of the Court

court properly set aside the December 2009 severance order for lack of subject-
matter jurisdiction.

¶12 Mother nonetheless advances several arguments in favor of reversal.
First, she argues that the UCCJEA becomes applicable only when there is an
“actual dispute” between two states over which should resolve a child-custody
issue, and that there was no such dispute in December 2009 when the Arizona
court severed Father’s parental rights. On that basis Mother contends that
jurisdiction is instead governed by A.R.S. § 8-532(A), which provides that “[t]he
juvenile court shall have exclusive original jurisdiction over petitions to terminate
the parent-child relationship when the child involved is present in this state.” As
we concluded in Angel B., however, § 8-532(A) must yield to the UCCJEA to
“avoid[ ] what would be a significant constitutional Full Faith and Credit Clause
issue.” 234 Ariz. at 73, ¶ 14, 316 P.3d at 1261. Nothing in the UCCJEA requires an
“actual dispute” between two states to trigger its applicability. See A.R.S. §§ 25-
1001 to -1067.

¶13 Mother next argues that the June 2013 California order declaring that
California no longer had jurisdiction over custody proceedings proves that
Arizona properly exercised jurisdiction in December 2009. But that order does not
retroactively establish subject-matter jurisdiction in Arizona, and does not affect
our decision because, as Mother repeatedly concedes, “California was not
consulted on jurisdiction prior to the Arizona court entering its December 1, 2009
order terminating Father’s parental rights.” See Angel B., 234 Ariz. at 74, ¶ 19, 316
P.3d at 1262 (order relinquishing exclusive, continuing jurisdiction issued “prior to
the issuance of the severance order . . . would allow Arizona to exercise
jurisdiction” (emphasis added)); Melgar, 215 Ariz. at 605, ¶ 1, 161 P.3d at 1269
(“[UCCJEA] requires that the family court must confer with the judge who issued
the out-of-state custody order and/or get the out-of-state court to release its
continuing jurisdiction over its custody order before modifying an out-of-state
order.” (emphasis added)).

¶14 Mother further argues that the issue with Arizona’s exercise of
subject-matter jurisdiction is “purely technical” and that Father has in effect
consented to jurisdiction in Arizona. We disagree. “[S]ubject matter jurisdiction
cannot be conferred by consent, waiver, or estoppel.” Guminski v. Ariz. State
Veterinary Med. Examining Bd., 201 Ariz. 180, 184, ¶ 18, 33 P.3d 514, 518 (App. 2001).
The onus was on Mother to ask the California court to relinquish its exclusive,
continuing jurisdiction before she petitioned for severance in Arizona. See Melgar,
215 Ariz. at 607, ¶ 11, 161 P.3d at 1271 (“[Because] the decision to discontinue
exclusive, continuing jurisdiction belongs to the court exercising it, . . . a party who
wishes to modify the original decree must either return to the court with exclusive,

5
 MICHELLE M. v. LOREN C., R.H.
Decision of the Court

continuing jurisdiction to modify the order or get that court to relinquish
jurisdiction.”).

¶15 Mother also argues that the facts of Angel B. and this case differ in
material ways that compel reversal. She cites the fact that the California court in
Angel B. modified its initial custody order several times before the mother
petitioned for severance in Arizona, 234 Ariz. at 71, ¶ 2, 316 P.3d at 1259, while the
California court in this case did not issue any orders between its initial custody
determination in August 2005 and its June 2013 order regarding jurisdiction. This
distinction makes no difference to our decision because the lynchpin of § 25-1033
is the initial child-custody determination –- there is no requirement that additional
determinations be made to retain exclusive, continuing jurisdiction. It is also of
no significance that here, unlike in Angel B., the California court and Father were
aware of Mother’s relocation with Child to Arizona. See id. at ¶ 3. Though giving
notice of relocations may serve to fulfill a policy of “[d]eter[ring] abductions and
unilateral removals of children undertaken to obtain custody awards,” Melgar, 215
Ariz. at 606, ¶ 8, 161 P.3d at 1270, it does not satisfy the jurisdictional requirements
of § 25-1033. It is likewise immaterial to our decision that Father waited more than
three-and-a-half years to challenge the severance of his parental rights while the
father in Angel B. immediately appealed the same. See Angel B., 234 Ariz. at 71, ¶
4, 316 P.3d at 1259. Finality in severance cases is undoubtedly very important, but
“[s]ubject matter jurisdiction cannot be waived, and can be raised at any stage of
the proceedings.” Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218, 1223 (App.
1991).

¶16 Finally, Mother argues that our holding in Angel B. should have only
prospective application. “Unless otherwise specified, Arizona appellate opinions
in civil cases operate both retroactively and prospectively.” Law v. Superior Court, 157 Ariz. 147, 160, 755 P.2d 1135, 1148 (1988). We decline to address this argument
further because Mother failed to raise it below and has therefore waived it for
appellate review. See Dillig v. Fisher, 142 Ariz. 47, 51, 688 P.2d 693, 697 (App. 1984)
(“[A]ppellants did not raise [an] argument before the trial court and therefore
cannot raise it for the first time on appeal.”).

6
 MICHELLE M. v. LOREN C., R.H.
Decision of the Court

CONCLUSION

¶17 For the foregoing reasons, we affirm.

:MJT

7