Greene v. Sawicki

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

COURTNEY ANN GREENE, Petitioner/Appellant,

v.

CHRISTOPHER R. SAWICKI II, Respondent/Appellee.

No. 1 CA-CV 17-0007 FC
FILED 6-26-2018

Appeal from the Superior Court in Yavapai County
No. P1300DO20070380
The Honorable Joseph P. Goldstein, Judge Pro Tempore

REVERSED

COUNSEL

Courtney Ann Greene
Petitioner/Appellant

Miller Shaw PLLC, Prescott
By Bryan C. Shaw
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Jon W. Thompson and Judge James P. Beene joined.

S W A N N, Judge:

¶1 This is an appeal from an Arizona court’s order declining to
exercise its exclusive jurisdiction in a family-law case based on the
conclusion that Illinois provided a more appropriate forum. Under A.R.S.
§ 25-1037, which sets forth the test for inconvenient forum under the
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the
court was required to consider domestic violence. But though the court was
presented with disputed allegations of domestic violence, the court took no
evidence to resolve the dispute. We therefore reverse.

FACTS AND PROCEDURAL HISTORY

¶2 Courtney Ann Greene (“Mother”) and Christopher Randall
Sawicki II (“Father”) are the parents of two minor children.

¶3 In 2007, Mother filed a petition in Arizona (where both
parents then lived) to determine custody, parenting time, and child
support. In 2008, the court approved the parties’ parenting plan, which
purported to establish joint custody1 and substantially equal parenting
time. In the years that followed, Mother and Father engaged in frequent
litigation in the Arizona case. They also moved several times, sometimes
sharing a residence.

¶4 Mother first moved from Arizona with the children in late
2010, ultimately settling in Illinois. Father then moved to Illinois, and for a
period the parties lived there together. In 2011, Mother and Father
stipulated to joint custody and a parenting-time schedule. The agreement
provided that neither parent would move the children more than fifty miles
from their residence absent court order or written consent of the other

1 The parenting plan specified that Mother had final decision-making
authority after consultation with Father. In effect, therefore, the parenting
plan established sole legal decision-making. Nicaise v. Sundaram, 785 Ariz.
Adv. Rep. 12, 16, ¶ 18 (App. March 1, 2018).

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parent. But in early 2012, Mother unilaterally relocated to Arizona with the
children, and Father sought the Arizona court’s intervention. In late 2012,
the court found that both parties had perpetrated domestic violence on each
other, reaffirmed joint legal custody, ordered Mother to return the children
to Illinois, and set forth a parenting-time schedule. Several months later,
the court modified its ruling to specify that Mother’s obligation to return
the children to Illinois was contingent on Father remaining current on child-
support payments for at least four months.

¶5 In early 2014, the children were still in Arizona when Mother
filed a petition to permit relocation. The court denied the relocation petition
and reaffirmed joint legal decision-making in late 2015. In early 2016,
Mother and the children returned to Illinois and moved in with Father. A
few months later, Mother returned to Arizona without the children.

¶6 Father thereafter asked the court to stop his child-support
obligation, and Mother petitioned to enforce arrearages and medical-
insurance coverage. By late 2016, those issues were resolved. But while
they were pending, several events occurred.

¶7 First, in August 2016, the court granted Mother’s request that
her address be protected from disclosure based on threats and harassment
by Father; relatedly, in October 2016, the court granted Mother’s ex parte
petition for an order of protection against Father. The court also ordered
that Mother would have a week of parenting time in Arizona in late August,
but Father did not send the children, citing Mother’s noncompliance with
the court’s order that she provide an itinerary for the children’s return
travel.

¶8 Also in August, Father filed an action in an Illinois court to
modify parental responsibilities, both temporarily and on a permanent
basis. The Arizona court discussed the Illinois proceeding with the parties
at a September hearing. A month later, the court ordered Father to file
copies of the petition and court’s temporary orders filed in Illinois. The
court also indicated that it would contact the Illinois judge to discuss the
situation. Father promptly filed copies of the Illinois documents. In late
October, the court set a status conference for November 2.

¶9 Mother appeared in person at the November 2 status
conference, and Father and the Illinois judge appeared telephonically.
Neither Mother nor Father was sworn, and the court took no evidence.

¶10 Mother acknowledged that she had taken the children to
Illinois in late January, that she returned to Arizona without them in April,

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and that there was no claim for relief currently pending in the Arizona
court. She stated, however, that Father had lied to the court and subjected
her to domestic violence. She stated that in addition to the order of
protection, Father was being investigated on criminal charges in Arizona
and had outstanding warrants for “poisoning me before our trial last year
and things of that nature.” She stated that she had intended to stay in
Arizona only a few days when she traveled in April, but Father “kept me
here” by threatening “to kill me and get me arrested and do horrible
things.” She stated that she was preparing a custody-modification petition,
which she had “been too afraid because of the domestic violence to present”
previously, and that it was almost ready to be filed. She stated that it would
be financially impossible for her to meet the Illinois court’s requirement for
in-person appearances.

¶11 Father stated that Mother had reported him to law
enforcement and child protective services, and had filed for restraining
orders against him on multiple occasions; he did not admit domestic
violence but instead characterized Mother’s conduct as indicative of her
“level of desperation.” Father also stated that Mother talked to the children
about the litigation, told the children that she was dying, and had
absconded with the children multiple times. The court indicated during the
hearing that it was checking Mother’s allegation of outstanding warrants in
Arizona, but the record does not reveal the outcome of the court’s research.

¶12 The Illinois judge stated that the children were now Illinois
residents, that any evaluations or counseling of the children would
necessarily take place in Illinois, and that she was well-equipped to take
over the case. The judge confirmed that “[w]e don’t do telephonic
hearings,” but stated that she would “look into it and see if we can
accommodate [Mother].”

¶13 The Arizona court concluded that under A.R.S. § 25-1037,
more factors weighed in favor of permitting Illinois to exercise jurisdiction.
The court denied Mother’s request to summarize the factors weighing “on
the side of Arizona.” The court then issued a signed minute entry holding,
without written findings, that “[t]he courts agree that jurisdiction in this
matter is proper in Illinois.”

¶14 Mother appeals.

APPELLATE JURISDICTION

¶15 We have jurisdiction under A.R.S. § 12-2101(A)(3), which
authorizes an appeal from “any order affecting a substantial right made in

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any action when the order in effect determines the action and prevents
judgment from which an appeal might be taken.”2 The Arizona court’s
decision to decline jurisdiction effectively closed the Arizona case,
depriving Mother of the right to continue to have controversies resolved in
Arizona and eliminating the possibility of the Arizona court issuing
appealable judgments. See A.R.S. § 25-1037(C) (providing that when an
Arizona court determines that another state’s court is a more appropriate
forum, the Arizona proceedings must be stayed, so long as a custody
proceeding is promptly commenced in the other state). We note, however,
that litigants in Mother’s position may obtain more meaningful relief by
way of special action, because such may permit reversal of an improper
jurisdictional decision before out-of-state proceedings go forward. See Ariz.
R.P. Spec. Act. 1(a) (providing that special-action jurisdiction is appropriate
where there is no equally plain, speedy, and adequate remedy by appeal).

DISCUSSION

¶16 When an Arizona court makes an initial custody
determination, the court retains “exclusive, continuing jurisdiction over the
determination” until either (1) an Arizona court “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,” or (2) an Arizona court or
the 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). Applying that standard here, Arizona retained exclusive
jurisdiction over all custody disputes: an Arizona court made the initial
custody determination, and Mother’s Arizona residency prevented
application of either exception to Arizona’s continuing jurisdiction.
Therefore, the only avenue for a transfer of jurisdiction was an
inconvenient-forum determination under A.R.S. § 25-1037. We review the
court’s decision under § 25-1037 for an abuse of discretion. Tiscornia v.
Tiscornia, 154 Ariz. 376, 377 (App. 1987).

2 Even if § 12-2101(A)(3) did not apply, we would exercise our
discretion to treat this appeal—which presents a narrow, fully briefed issue
related to children’s best interests—as a special action. See State ex rel. Dep’t
of Econ. Sec. v. Powers, 184 Ariz. 235, 236 (App. 1995) (treating appeal as
special action where case involved fully briefed, discrete issue of first
impression regarding child support).

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¶17 Section 25-1037(A) provides that “[a] court of this state that
has jurisdiction under this chapter to make a child custody determination
may decline to exercise its jurisdiction at any time if it determines that it is
an inconvenient forum under the circumstances and that a court of another
state is a more appropriate forum.” See also Melgar v. Campo, 215 Ariz. 605,
607, ¶ 11 (App. 2007) (holding that decision to relinquish exclusive,
continuing jurisdiction generally belongs to court holding such). Under
§ 25-1037(B), in making the determination the court “shall allow the parties
to submit information and shall consider all relevant factors including”
eight enumerated factors:

1. Whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the
parties and the child.

2. The length of time the child has resided outside the state.

3. The distance between the court in this state and the court
in the state that would assume jurisdiction.

4. The relative financial circumstances of the parties.

5. Any agreement of the parties as to which state should
assume jurisdiction.

6. The nature and location of the evidence required to resolve
the pending litigation, including testimony of the child.

7. The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence.

8. The familiarity of the court of each state with the facts and
issues in the pending litigation.

The factor-based analysis permits the court to consider children’s best
interests. Welch-Doden v. Roberts, 202 Ariz. 201, 210–11, ¶ 43 (App. 2002). It
also permits the court to consider the interests of the parties, especially
when one has been the victim of domestic violence perpetrated by the other.
See UCCJEA § 207, cmt. (explaining substantively identical provision of
uniform act and its regard for “domestic violence and other matters
affecting the health and safety of the parties”); Stoneman v. Drollinger, 64
P.3d 997, 1002, ¶ 26 (Mont. 2003) (“While th[e domestic-violence] factor
alone is not dispositive under [Montana’s version of the UCCJEA’s

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inconvenient-forum provision], we urge district courts to give priority to
the safety of victims of domestic violence when considering jurisdictional
issues under the UCCJEA.”).

¶18 When presented with a § 25-1037 question (which may be
raised by a party or a court, § 25-1037(A)), “[c]ommunication between
courts is . . . strongly suggested.” UCCJEA § 110, cmt. (explaining
substantially identical provisions of uniform act). “The court may allow the
parties to participate in the communication. If the parties are not able to
participate in the communication, they must be given the opportunity to
present facts and legal argument before a decision on jurisdiction is made.”
A.R.S. § 25-1010(B). The parties’ participation “may amount to a hearing if
there is an opportunity to present facts and jurisdictional arguments.”
UCCJEA § 110, cmt. But “absent such an opportunity, the participation of
the parties should not [ ] be considered a substitute for a hearing and the
parties must be given an opportunity to fairly and fully present facts and
arguments on the jurisdictional issue before a determination is made. This
may be done through a hearing or, if appropriate, by affidavit or
memorandum.” Id. Such procedures ensure that the parties are afforded
due process. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The
fundamental requirement of due process is the opportunity to be heard ‘at
a meaningful time and in a meaningful manner.’”). And when the parties
dispute relevant facts, the dispute must necessarily be resolved through an
evidentiary hearing. Cf. Christopher K. v. Markaa S., 233 Ariz. 297, 302, ¶ 23
(App. 2013) (holding, in non-UCCJEA case involving domestic-violence
and child-abuse allegations, that “[i]t is not possible to make
[ ] determinations adequately without testimony from witnesses with
firsthand knowledge.”).

¶19 Here, the court was faced with disputed allegations of
domestic violence by Father against Mother, in a case with a history of such
allegations and at least one judicial finding of domestic violence. Domestic
violence is a weighty factor in the § 25-1037 analysis. See A.R.S. § 25-
1037(B)(1); Stoneman, 64 P.3d at 1002, ¶ 26. Based on the dispute
surrounding that factor alone, the court abused its discretion by failing to
hold an evidentiary hearing. An evidentiary hearing also would have
allowed the court to properly consider the parties’ financial circumstances
and the potential burden posed by either jurisdictional decision. See A.R.S.
§ 25-1037(B)(4).

¶20 Because the record was inadequate to justify the court’s
decision to decline jurisdiction, we must reverse. We do not interfere with
any orders that the Illinois court has entered. But as of the date of this

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decision, Arizona has exclusive, continuing jurisdiction consistent with the
UCCJEA. Should the § 25-1037 issue be renewed, the Arizona court must
ensure that the parties are given a full and fair opportunity to present facts
and arguments. The court must also make findings of fact sufficient to
support its decision and permit effective appellate review. See Shanoski v.
Miller, 780 A.2d 275, 280, ¶ 25 (Me. 2001) (holding that though Maine’s
version of the UCCJEA’s inconvenient-forum provision does not require
court to specifically enumerate findings on each statutory factor, findings
must be sufficient to inform parties of court’s reasoning and permit
effective appellate review); see also UCCJEA § 110, cmt. (“The court is
expected to set forth the basis for its jurisdictional decision, including any
court-to-court communication which may have been a factor in the
decision.”).

CONCLUSION

¶21 We reverse the court’s order declining to exercise jurisdiction.

AMY M. WOOD • Clerk of the Court
FILED: AA

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