Hubert v. Carmony

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

ERIC HUBERT, Petitioner/Appellant,

v.

JENNIFER CARMONY, Respondent/Appellee.

No. 1 CA-CV 20-0362 FC
FILED 6-22-2021

Appeal from the Superior Court in Maricopa County
No. FC2019-094466
The Honorable Joan M. Sinclair, Judge

VACATED AND REMANDED

COUNSEL

Eric Hubert, Phoenix
Petitioner/Appellant

Defenders of Children, Phoenix
By Nina Joy Edidin, Jami Cornish
Co-counsel for Respondent/Appellee

Curry Pearson & Wooten PLC, Phoenix
By Daniel Seth Riley
Co-counsel for Respondent/Appellee
 HUBERT v. CARMONY
Opinion of the Court

OPINION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

H O W E, Judge:

¶1 Eric Hubert (“Father”) challenges the family court’s ruling
declining to exercise jurisdiction under Arizona’s version of the Uniform
Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Father
argues that the court erred by not holding a hearing to consider all the
factors set forth in A.R.S. § 25–1037(B). We agree and hold that before
declining to exercise jurisdiction, a trial court must (1) expressly consider
all relevant factors, including the factors listed in A.R.S. § 25–1037(B), and
make the necessary factual findings and (2) conduct an evidentiary hearing
to resolve relevant factual disputes. We therefore vacate the trial court’s
order declining jurisdiction and remand for an evidentiary hearing.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In May 2019, Father petitioned in Arizona seeking a paternity
order and joint legal decision-making authority for the parties’ minor child.
In November 2019, Father sought permission to use alternate service,
alleging that Jennifer Carmony (“Mother”) had moved to El Paso, Texas,
with the child and was avoiding service. He served Mother with the
petition in El Paso in November 2019 by said service.

¶3 Father amended his petition in January 2020, seeking sole
legal decision-making authority and limited supervised parenting time for
Mother. He also requested temporary orders, alleging that Mother had
serious mental health issues, had withheld the child from him for over
seven months, and might flee to another country. The court entered
temporary orders (1) requiring that Mother return the child to Arizona;
(2) granting Father sole legal decision-making authority; and (3) granting
Mother eight hours of weekly supervised parenting time. The court also set
an evidentiary hearing for February 2020.

¶4 Before the hearing, Mother filed in Texas a “Petition in suit
affecting the parent-child relationship and request for temporary
restraining order” and then moved in Arizona to dismiss Father’s petition,

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Opinion of the Court

alleging that he had a significant history of domestic violence and had
violated an order of protection entered in El Paso. At the February
evidentiary hearing, Mother’s Texas counsel explained that related matters
were pending in a Texas court that raised “possible jurisdiction issues.” The
family court determined that it had jurisdiction, appointed a best interests
attorney for the child, and set a May 2020 trial date. It later entered new
temporary orders implementing joint legal decision-making authority and
a week-on/week-off parenting time schedule with exchanges to take place
in Tucson.

¶5 In April 2020, Father moved to hold Mother in contempt,
contending he had not seen the child since August 2019. Before trial, Mother
moved on an expedited basis to continue the trial and to change jurisdiction
under the UCCJEA. She contended that the matter should be adjudicated
in Texas because “Father has engaged in unjustified conduct, has lied on
verified pleadings filed with this Court, and Texas is the more convenient
forum.” Noting that the Texas court had reset a temporary orders hearing
for May 2020, Mother also requested that the family court “participate in a
Judicial Conference” with the Texas court and “decline and relinquish
jurisdiction.” While Father opposed Mother’s motion, he did not oppose
her request that the two courts confer.

¶6 Thereafter, the court ruled that it had “held a UCCJEA
conference with a judge in El Paso, Texas relative to jurisdiction over this
case.” The court stated that

[t]he Petitioner lives in Arizona and the Respondent and child
are now in Texas. Cases have been filed in both states. Despite
the fact that the Respondent fled Arizona with the child, there
are allegations of domestic violence between the parties and
the Petitioner agreed to an order of protection in Texas which
included the child. The Petitioner also has criminal charges in
Texas. After consultation, both courts agreed that Texas was
the most convenient forum to resolve the issues between the
parties. Arizona declines jurisdiction over this case.

On these bases, the court vacated trial and its temporary orders and
dismissed Father’s petition. Father moved for reconsideration and moved
for a new trial, but the court denied his motions. Father timely appealed.

DISCUSSION

¶7 Father argues that the court erred in declining jurisdiction
over the custody matter. A family court may decline to exercise UCCJEA

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Opinion of the Court

jurisdiction “if it determines that [Arizona] is an inconvenient forum under
the circumstances and that a court of another state is a more appropriate
forum.” A.R.S. § 25–1037(A). We review the court’s ruling on this issue for
an abuse of discretion. Tiscornia v. Tiscornia, 154 Ariz. 376, 377 (App. 1987)
(applying the former Uniform Child Custody Jurisdiction Act). An error of
law constitutes an abuse of discretion. State v. Bernstein, 237 Ariz. 226, 228,
349 P.3d 200, 202 (2015).

¶8 The parties agree that Arizona is the child’s “home state”
because paternity was determined in Arizona and that Arizona may
therefore exercise jurisdiction under the UCCJEA. A.R.S.§ 25–1031(A);
Welch-Doden v. Roberts, 202 Ariz. 201, 205 ¶ 15 (App. 2002). Before Arizona
can decline jurisdiction, it must determine whether another state’s exercise
of jurisdiction is appropriate. A.R.S. § 25–1037(B). In doing so, the court
shall allow the parties to submit information and shall consider all relevant
factors, including:

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 this 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.

Id. The above list is not exclusive. See Comment to UCCJEA § 207.

¶9 The court also “may communicate with a court in another
state concerning a proceeding.” A.R.S. § 25–1010(A). The court may, but is

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not required to, allow the parties to participate in that communication.
A.R.S. § 25–1010(B). If the parties do not participate, however, the court
must give them an opportunity “to present facts and legal arguments before
a decision on jurisdiction is made.” Id. “Communication between courts on
schedules, calendars, court records and similar matters may occur without
informing the parties” and “[a] record need not be made of the
communication.” A.R.S. § 25–1010(C). Otherwise, the court must make a
record of the communication, promptly inform the parties of the
communication, and grant access to the record. A.R.S. § 25–1010(C), (D).

¶10 Father argues that consideration of all eight listed factors in
A.R.S. § 25–1037(B) is mandatory, citing Matter of McAndrews, 193 A.3d 834
(N.H. 2018), and that the court abused its discretion by not considering
them before declining to exercise jurisdiction. Mother argues that Father
waived this issue by not raising it with the family court. However, Father
raised this issue in his motion for reconsideration and his motion for new
trial. Furthermore, waiver does not apply in this instance because the
child’s best interests are at issue. See, e.g., Nold v. Nold, 232 Ariz. 270, 273
¶ 10 (App. 2013) (Waiver does not apply when it conflicts with a child’s best
interests.).

¶11 On the merits, Father is correct. Generally, when reviewing a
trial court’s forum non conveniens determination, we require findings
sufficient to show that the court balanced the factors of convenience,
regardless whether a statute or court rule obligated the court to make
factual findings. Compare Parra v. Cont'l Tire N. Am., Inc., 222 Ariz. 212,
214–15 ¶ 8 (App. 2009) (reviewing the record to determine whether
substantial evidence supported the court's dismissal under forum non
conveniens where superior court had recited the relevant factors and held
oral argument on the motion to dismiss) with First Nat. Bank & Tr. Co. v.
Pomona Mach. Co., 107 Ariz. 286, 290 (1971) (noting the “determination
cannot be made on a factually incomplete record,” where forum non
conveniens had not been developed at the trial level).

¶12 Section 25–1037 is the UCCJEA’s forum non conveniens
statute. In keeping with the general interpretation of such statutes and
common law, A.R.S. § 25–1037 should be interpreted to require that a court
make express findings about all relevant factors on the record. The statute
uses the phrase “shall consider,” which indicate a mandatory intent that all
the factors be considered. See Ins. Co. of N. Am. v. Superior Court In & For
County of Santa Cruz, 166 Ariz. 82, 85 (1990) (“‘shall’ indicates a mandatory
intent by the legislature”). The best evidence that the court has done so is
express findings on the record. Express findings facilitate effective

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appellate review of the decision to decline jurisdiction. See Murillo v.
Murillo, 684 S.E.2d 126, 128 (Ga. Ct. App. 2009) (stating that “to ensure that
the court's decision-making process was guided by the statutory
requirements” the trial court must “make specific findings either in writing
or orally on the record demonstrating that the court has considered all [] of
the factors”).

¶13 Decisions from other jurisdictions support this interpretation
of A.R.S. § 25–1037(B). See Orca Communications Unlimited, LLC v. Noder, 236
Ariz. 180, 184 ¶ 17 (2014) (in construing a uniform act statute, a court should
consider decisions from other jurisdictions). The majority of courts
considering the question hold that a trial court must enter findings
reflecting its consideration of each of the factors. See In re Teagan K.O., 242
A.3d 59, 72 n.21 (Conn. 2020) (stating that “all relevant factors must be
considered in strict compliance with the inconvenient forum provision” of
the UCCJEA); In re Custody of N.G.H., 92 P.3d 1215, 1218 (Mont. 2004)
(“[T]he law is the UCCJEA, and it requires first that the District Court enter
findings regarding why exercising its jurisdiction is inappropriate under
the [] factors.”); McAndrews, 193 A.3d at 841-42 (finding that the trial court’s
failure to address each specific factor UCCJEA required by was an abuse of
its discretion); Hogan v. McAndrew, 131 A.3d 717, 724 (R.I. 2016) (stating that
the “hearing justice properly referenced each of the eight factors
enumerated” in her jurisdictional determination); Murillo v. Murillo, 684
S.E.2d 126, 128 (Ga. Ct. App. 2009) (stating that “to ensure that the court's
decision-making process was guided by the statutory requirements” the
trial court must “make specific findings either in writing or orally on the
record demonstrating that the court has considered all [] of the factors”);
Velasquez v. Ralls, 665 S.E.2d 825, 827 (N.C. Ct. App. 2008) (requiring
findings of fact for at least the eight enumerated factors when a court
declines jurisdiction); Meyeres v. Meyeres, 196 P.3d 604, 609 ¶ 8 (App. Utah
2008) (vacating a juvenile court’s order declining jurisdiction without
specific findings because it analyzed only a single factor and remanding for
additional consideration and findings). Moreover, even those courts that do
not require express findings as to each factor still require the court consider
all the factors and make “findings that are sufficient to inform the parties of
the court’s reasoning and sufficient for effective appellate review.” Shanoski
v. Miller, 780 A.2d 275, 280 (Me. 2001); accord Watson v. Watson, 724 N.W.2d
24, 34 (Neb. 2006).

¶14 Thus, to maintain uniform interpretation of the UCCJEA, we
hold that in Arizona a trial court must consider all factors listed in A.R.S.
§ 25–1037(B) and any other relevant factor and make appropriate findings
on those factors. The failure to address each listed factor and any other

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relevant factors under A.R.S. § 25–1037(B) in declining jurisdiction is an
abuse of discretion. See e.g. McAndrews, 193 A.3d at 841. Here, the court
addressed only whether domestic violence had occurred, which constitutes
merely part of A.R.S. § 25–1037(B)(1) and is insufficient for effective
appellate review.

¶15 Not only did the court err in failing to make express findings,
it also erred in failing to conduct an evidentiary hearing on the A.R.S.
§ 25–1037(B) factors. Due process requires that a court to provide a forum
for witness testimony and that it must refrain from resolving matters of
credibility on documents alone. Volk v. Brame, 235 Ariz. 462, 464 ¶ 2 (App.
2014). Because factual disputes may have existed about the parties’
credibility and the enumerated factors in A.R.S. § 25–1037(B), the court
needed to conduct an evidentiary hearing to resolve those disputes. Prizzia
v. Prizzia, 707 S.E.2d 461, 468 (Va. Ct. App. 2011) (“Because it did not allow
the parties to present evidence pertaining to the statutory factors, the trial
court could not have based its decision on a proper review of those
factors.”).

¶16 Mother nonetheless contends that the family court's failure to
make a record under A.R.S. § 25–1010(D) of its conference with the Texas
court analyzing the A.R.S. § 25–1037(B) provisions constituted harmless
error, citing Black v. Black, 114 Ariz. 282 (1977). In Black, the family court
conducted an off-the-record interview with the parties’ minor children as
part of its parenting time determinations. Id. at 284. While our supreme
court “agree[d] that [the interview] should only have been conducted
pursuant to a stipulation between the parties,” it found harmless error
because it could affirm judgment “apart from any consideration of the . . .
interview.” Id. Here, the order declining jurisdiction cites the court’s
“consultation” with the Texas court in which they agreed that “Texas was
the most convenient forum to resolve the issues between the parties.” Given
the lack of the A.R.S. § 25–1037(B) findings, however, we cannot affirm the
order without considering this consultation. As such, assuming without
deciding that the failure to create a proper record under A.R.S. § 25–1010(D)
could be deemed harmless error in some cases, it was not harmless error in
this case.

¶17 Father also contends that the court should have stayed, rather
than dismissed, the case under A.R.S. § 25–1037(C). Indeed, A.R.S.
§ 25–1037(C) requires the trial court to stay its proceedings when it finds
Arizona is an inconvenient forum and that another jurisdiction is a more
appropriate forum. See In re S.Y.T., 267 P.3d 930, 940 ¶24 (App. Utah 2011)
(stating that a court shall stay and not dismiss the case when the court

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declines jurisdiction under the UCCJEA’s inconvenient forum statute); see
also Comment to UCCJEA § 207 (“[T]he court may not simply dismiss the
action.”).

CONCLUSION

¶18 For these reasons, we vacate the order declining jurisdiction
and remand for an evidentiary hearing for the court to address the A.R.S.
§ 25–1037(B) factors and any other relevant factors and to make express
findings.

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

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