Mangan v. Mangan – 5/26/2011
Arizona Court of Appeals Division One Holds That Mother Cannot Use Her Unauthorized Conduct in Removing Children from Home State and Defying Court Orders Regarding Children’s Custody and Parenting Time to Defeat Home State Jurisdiction.
Mother filed a petition for dissolution of marriage in Arizona. The family court entered a decree of dissolution, awarding Mother sole custody. Father subsequently filed a petition for post-divorce mediation, alleging that Mother was blocking his rights of visitation and communication with the children. The mediation failed.
Father sought to modify and enforce his custody rights. Mother evaded service of process, failed to appear at a hearing, and was found in contempt of court. The court issued new temporary orders regarding Father’s parenting time and telephonic access to the children and set an evidentiary hearing for the custody dispute.
Mother then filed an accelerated motion to transfer jurisdiction to New Mexico, arguing that the children had lived in New Mexico since April 2008. The family court denied the motion.
The court held an evidentiary hearing on Father’s petition to modify custody, parenting time, and child support. The court granted Father primary residential custody. Mother appealed, challenging the Arizona court’s exercise of jurisdiction.
The Court of Appeals affirmed.
Arizona has adopted the Uniform Child Custody Jurisdiction and Enforcement Act. See A.R.S. §§ 25-1001 to -1067. Section 25-1032(A) of the Arizona statute provides that an Arizona court that has exercised initial jurisdiction over a child custody case retains continuing and exclusive jurisdiction unless (1) a court of this state determines that neither the child nor a parent or person acting as a parent has a significant connection with this state and that substantial evidence is no longer available in this state; or (2) a court of any state determines that the child, parents, and any person acting as a parent do not presently reside in this state.
Mother affirmatively invoked the jurisdiction of the Arizona court when she filed for divorce. Mother did not follow the statutory procedure to relocate the children. She did not invoke the jurisdiction of the New Mexico courts. Instead, she unilaterally relocated multiple times and was found in contempt of the Arizona family court’s orders. Both Mother and the children continue to have a significant connection with this state, where Father still resides.
The family court, therefore, did not err in determining that it had exclusive, continuing jurisdiction to modify its initial child custody order. The family court also acted within its discretion in awarding attorneys’ fees to Father because Mother had taken unreasonable positions during the course of the proceedings. See A.R.S. § 25-324(A) (authorizing award of attorneys’ fees in marital dissolution actions after considering the parties’ financial resources and the reasonableness of each party’s positions throughout the proceedings).
Judge Winthrop authored the opinion; Judges Portley and Weisberg concurred.
Practice tip: Misrepresenting the record on appeal and relying on an unpublished decision can be costly mistakes. The Court of Appeals “express[ed] extreme concern” that Mother’s appellate brief contained (1) a misleading suggestion that Mother had filed a formal notice of her relocation to New Mexico, and (2) reliance on an unpublished memorandum decision for an unauthorized purpose, see Rule 28(c), Ariz. R. Civ. App. P., and without disclosing that the decision was unpublished. The appellate court awarded attorneys’ fees to Father in part as a sanction under Rule 25, Ariz. R. Civ. App. P., for Mother’s counsel’s “misrepresentation of the record and reliance on a memorandum decision as legal authority.” The court imposed equal, joint, and several liability on Mother and her counsel for the fee award to Father.
Rule 28(c) states that “[m]emorandum decisions shall not be regarded as precedent nor cited in any court except for (1) the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case or (2) informing the appellate court of other memorandum decisions so that the court can decide whether to publish an opinion, grant a motion for reconsideration, or grant a petition for review. Any party citing a memorandum decision pursuant to this rule must attach a copy of it to the motion or petition in which such decision is cited.”