Landers v. Ackles
Annotate this Case
Download PDF
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE THE MATTER OF: ) ) EDWARD LANDER, JR., ) ) Petitioner/Appellant, ) ) v. ) ) SHELLI ACKLES, ) ) Respondent/Appellee. ) ______________________________) No. 1 CA-CV 09-0643 DIVISION ONE FILED: 11-09-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT B MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2008-070813 The Honorable William L. Brotherton, Judge AFFIRMED The Law Offices of Wendy Raquel Hernandez, P.C. By Wendy Raquel Hernandez Attorneys for Plaintiff/Appellant Gillespie, Shields & Associates P.A. By Mark A. Shields Attorneys for Defendant/Appellee Phoenix Mesa G E M M I L L, Judge ¶1 Edward Lander, Jr. ( Father ) appeals from the family court s order dismissing his petition to modify child custody. The court concluded that it did not have exclusive, continuing jurisdiction to make a child custody determination and that, even if it had jurisdiction, Arizona was an inconvenient forum. Because we agree that the family court in Arizona no longer had jurisdiction, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 On November 21, 2008, the marriage of Father Shelli Ackles ( Mother ) was dissolved by consent decree. and The decree was signed by Judge Brotherton and entered in Maricopa County Superior Court. As part of the decree, Father and Mother were given joint custody of their five minor children. The decree also referenced and approved of the parties parenting plan, which designated residential parent. Father, which Mother as the children s primary The plan also provided parenting time for included six weeks during the summer and one weekend per month in Iowa. ¶3 In February 2009, Mother and the children moved from Arizona to Iowa. Also during the first half of 2009, Father moved from Arizona to Oklahoma. On June 8, 2009, Father picked up the children in Iowa for his summer parenting time and drove the children back to his home in Oklahoma. up the children from Mother, he noticed When Father picked the children were covered in filth and his daughter had burn marks on her arms. Father also noticed that the children were sunburned and were 2 wearing clothes that did not fit. The children also had ringworm consistently all over their bod[ies]. ¶4 After Father and the children returned to Oklahoma, Father took the children to Child Protective Services ( CPS ) to document the children s children to see a doctor. condition. Father also took the According to Father, CPS in Oklahoma advised Father to contact the court in Arizona if he wished to file a petition to modify custody of the children. As a result, Father and the children drove to Arizona and, on July 6, 2009, Father filed a petition to modify custody, parenting time, and child support in Maricopa County Superior Court. Father also filed an emergency petition for a post-decree temporary order to modify child custody. ¶5 That same day, Father appeared ex parte before Judge Padilla in Maricopa County Superior Court for a Hearing Setting Pre-Issuance Hearing. Brotherton, hearing, who Judge was Judge Padilla was substituting for Judge on Padilla vacation. questioned At the whether beginning the of court the had jurisdiction to hear Father s petition because neither Father nor Mother lived in Arizona and the children lived in Iowa with Mother. Father explained to the court that the children had only been in Iowa for three months and that Arizona was the last place they were the longest. he would move back to Arizona. Father also told the court Judge Padilla stated that the 3 court will continue to exercise exclusive ongoing jurisdiction over the minor children since Arizona was previously the home state. And there s yet to be a wealth of information in this. He scheduled a hearing for temporary orders for July 16, 2009, and ordered the three oldest children be interviewed by Conciliation Services on July 13, 2009. ¶6 On July appeared before 16, 2009, Judge Father Padilla and for a counsel hearing emergency petition for temporary orders. for on Mother Father s At the hearing, the court determined that no emergency existed placing the children in immediate danger emergency petition. and the court therefore denied Father s The court also informed the parties that it would set a hearing date on Father s petition to modify custody and that the hearing would be before Judge Brotherton. After the court made its ruling, Mother s attorney raised the issue of jurisdiction. The court stated that Arizona still retains jurisdiction because Father had indicated he was moving back to Arizona. Father stated he was here now and that he had two residences, apparently meaning one in Arizona and one in Oklahoma. ¶7 That same day, Mother filed a Father s petition to modify child custody. motion to dismiss Mother argued that the petition should be dismissed because, under Arizona Revised Statutes ( A.R.S. ) section 25-1032 4 (2007), the court lost jurisdiction over the matter when Father moved to Father did not file a response to the motion. Oklahoma. On August 7, 2009, Father hired counsel. ¶8 On telephonic August 12, conference attorney.1 2009, with Judge the Brotherton parties conducted and each a party s After applying A.R.S. § 25-1032(A)(2), the court determined that it Father s petition. did not have jurisdiction and dismissed According to the court, it had exclusive, continuing jurisdiction until all the parties left Arizona, and once the parties left Arizona, the jurisdictional chain [was] broken and could not be put back together by moving back to Arizona. The jurisdiction, it court also stated would decline to that exercise because Arizona was an inconvenient forum. even if its it had jurisdiction Additionally, the court found that Arizona was no longer the children s home state. ¶9 entry custody On August 21, 2009, the court filed a signed minute order, for conference. dismissing the reasons Father s given petition during the to modify August 12, child 2009 Father filed a timely notice of appeal, and we have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003). 1 The court converted the scheduled August 12, 2009 hearing to a telephonic conference. 5 ANALYSIS ¶10 Father raises three issues on appeal. asserts that the court erred in concluding First, Father that Arizona no longer retained exclusive, continuing jurisdiction pursuant to A.R.S. § 25-1032. abused its Second, Father argues that the trial court discretion in determining that Arizona was inconvenient forum pursuant to A.R.S. § 25-1037 (2007). an Third, Father contends that the doctrine of res judicata prevented the court from overturning the jurisdictional ruling by Judge Padilla. Exclusive, Continuing Jurisdiction ¶11 Father contends the court erred in concluding that Arizona no longer retained exclusive, continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ( UCCJEA ).2 1001 to Arizona adopted the UCCJEA in 2001. -1067 (2007). Whether a court has A.R.S. §§ 25subject matter jurisdiction under UCCJEA is a question of law that we review de novo. See In re Marriage of Tonnessen, 189 Ariz. 225, 226, 941 2 The UCCJEA is a uniform statute that has been adopted by forty-five states . . . to create consistency in interstate child custody jurisdiction and enforcement proceedings. Melgar v. Campo, 215 Ariz. 605, 606, ¶ 7, 161 P.3d 1269, 1270 (App. 2007) (footnotes omitted). 6 P.2d 237, 238 (App. 1997) (addressing predecessor statute, the Uniform Child Custody Jurisdiction Act).3 ¶12 Father argues that the court incorrectly interpreted A.R.S. § 25-1032(A)(2). An Arizona court has jurisdiction to make an initial custody determination if Arizona is the home state of the child. A.R.S. § 25-1031(A) (2007). Under § 25- 1032(A), entitled Exclusive continuing jurisdiction, after a court makes an initial determination, its jurisdiction continues until one of two events occurs: 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. 3 Mother asserts that under Rule 35(B) of the Arizona Rules of Family Law Procedure, Father s failure to respond to the motion to dismiss gave the superior court unfettered discretion in granting the motion and also waived any jurisdictional argument on appeal. Rule 35(B), a permissive rule, provides that failure to respond to a motion may be deemed consent to the granting of the motion and the court may dispose of the motion summarily. Here, the court never referred to Rule 35(B) in its ruling and did not summarily dispose of the motion. As a result, it appears the court chose not to invoke Rule 35(B). Moreover, Rule 35(B) does not mention waiver. On this record, we reject these arguments of Mother. 7 (Emphasis added.) Jurisdiction is determined based on the facts at the time of commencement of the action. (2010). UCCJEA § 202 cmt. See In re Marriage of Nurie, 98 Cal. Rptr. 3d 200, 212 (App. 2009) (stating that under UCCJEA, which was adopted by California, [s]ubject matter jurisdiction either exists or does not exist at the time an action is commenced ); In re A.C.S., 157 S.W.3d 9, 16 (Tex. App. 2004) (explaining that jurisdiction must be examined according to the facts in existence when the motion to modify the prior custody order is filed). ¶13 Here, the court concluded that Arizona no longer had exclusive, continuing jurisdiction pursuant to § 25-1032(A)(2) because the children and parents had left Arizona. the court, once the parents and children left According to Arizona the jurisdictional chain [was] broken and could not be put back together simply by moving back to Arizona. Based on the record before us and the plain language of § 25-1032(A)(2), Arizona no longer had exclusive, continuing jurisdiction to make a child custody determination. ¶14 In accordance with § 25-1032(A)(2), the court s jurisdiction did not automatically end in this case once Mother, Father and the children moved out of state. The parties departure from the original decree state does not, by itself, terminate exclusive, exclusive, continuing continuing jurisdiction 8 jurisdiction. ends when Rather, the court determines the parties no longer presently reside in the state that made the original custody determination. A.R.S. § 25- 1032(A)(2). See Nurie, 98 Cal. Rptr. 3d at 220 (stating that a judicial determination that all parties no longer reside in the decree state is required to divest that state of continuing, exclusive jurisdiction ); State of N.M., ex rel. Children, Youth, & Families Dep t v. Donna J., 129 P.3d 167, 171 (N.M. Ct. App. 2006) requires (holding action by that the either the UCCJEA home language or another specifically state before exclusive, continuing jurisdiction in the home state ceases ); In re Lewin, 149 S.W.3d 727, 736 (Tex. App. 2004) ( A court's exclusive continuing jurisdiction does not vanish immediately once all the parties leave the state. ). As noted above, this jurisdictional determination focuses on the facts in existence when the petition to modify the prior custody order is filed. See UCCJEA § 202 cmt. ¶15 The family court did determine, and Father admitted, that at the time Father filed the petition on July 6, 2009, neither the parents nor the children resided in Arizona. on this determination, Arizona no longer had Based exclusive, continuing jurisdiction under § 25-1032(A)(2) and we affirm the court s order.4 4 Father does not contend that jurisdiction was proper under A.R.S. § 25-1032(B). 9 ¶16 Because the family court did not have jurisdiction, we need not address the court s additional ruling that Arizona was an inconvenient forum. The court did not have jurisdiction to make that determination. ¶17 We also See A.R.S. § 25-1037. note that Father makes two additional arguments regarding the court s ruling that Arizona no longer had exclusive, continuing jurisdiction. First, Father argues Iowa was not the appropriate jurisdiction in which to file his petition to modify inappropriately custody. considered jurisdictional ruling. Second, subjective he argues issues in the court making its Based on the objective facts in the record, Arizona no longer has jurisdiction and these arguments are unpersuasive. Res Judicata ¶18 Finally, Father asserts that Judge Padilla, during both the July 6 and July 16, 2009 hearings, ruled that Arizona had exclusive, continuing jurisdiction and therefore the doctrine of res judicata precluded the court from later altering Judge Padilla s rulings. We first note that Father s petition to modify custody was not before Judge Padilla. Rather, Judge Padilla was presiding over Father s emergency petition and Judge Brotherton presided over the petition to modify. We do not interpret Judge Padilla s comments regarding jurisdiction during 10 the July hearings to be a final ruling that the court had jurisdiction over the petition to modify. ¶19 Even if Judge Padilla is considered to have made an initial jurisdictional ruling in the modification proceedings, our conclusion remains the same. Father is essentially arguing that Judge Brotherton s ruling was precluded by the horizontal appeal rule. Under this principle, judges assigned to a case are discouraged from revisiting rulings by previously assigned judges unless circumstances have changed significantly or the prior ruling was manifestly erroneous. See Donlann v. Macgurn, 203 Ariz. 380, 385-86, ¶ 29, 55 P.3d 74, 79-80 (App. 2002). Here, a ruling by Judge Padilla that the court retained jurisdiction because Father said he was moving back to Arizona would be erroneous, and Judge Brotherton therefore would not be precluded from later determining that the family court in Arizona no longer had jurisdiction. CONCLUSION ¶20 Because determination the that evidence neither supported parent nor the any family of court s the children resided in Arizona when Father filed his petition to modify child custody, continuing court s the family jurisdiction. order dismissing court no Accordingly, Father s custody. 11 longer we petition had affirm to exclusive, the modify family child ¶21 Mother requests this court award her attorneys fees pursuant to A.R.S. § 25-411(G) (Supp. 2009) and Rule 21 of the Arizona Rules of Civil Appellate Procedure. Section 25-411(G) authorizes an award of fees against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment. We make no such findings here, and we therefore deny Mother s request for an award of fees. __/s/_____________________________ JOHN C. GEMMILL, Judge CONCURRING: __/s/____________________________ DIANE M. JOHNSEN, Presiding Judge __/s/____________________________ MICHAEL J. BROWN, Judge 12
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
