Gutierrez v. Hon. fox/kivlighnGutierrez v. Hon. fox/kivlighn
instead, their interest is an undivided fractional fee-simple interest in the entire subject property. Moreover, just as the owner/lessor‘s interests were subject in the first instance to the Declaration, the interests to which the lender took title (and which now are owned by Earle) remain subject to the Declaration. Accordingly, Earle is subject to the obligations spelled out in the Declaration (other than the obligation to pay rent under the lease).
D. Ratification.
¶ 34 We have held that upon foreclosure, the lender obtained a fee-simple interest in the property, unencumbered by the lease. Partners argues, however, that Earle ratified the lease by making rent payments. But the cases on which Partners relies do not support the proposition that a lease obligation may be created in the first instance by payments denominated as rent. See All-Way Leasing, Inc. v. Kelly, 182 Ariz. 213, 217, 895 P.2d 125 (App. 1994) (rejecting contention that wife had ratified contract executed by husband, so as to bind the community); Young Mines Co. v. Citizens’ State Bank, 37 Ariz. 521, 528-29, 296 P. 247 (1931) (ratification is “subsequent approval by a principal of a previous unauthorized act by one claiming to act as an agent“). Partners also cites Restatement of Contracts (Second) § 380 (1981), but that provision concerns acts by which one may ratify a contract that is voidable. See id. (“Loss of Power of Avoidance by Affirmance“). As we have said, upon the lender‘s foreclosure, the lease was not voidable as to the lender and its assigns, but void.4
CONCLUSION
¶ 35 For the reasons stated, we affirm the judgment to the extent it provides that Earle owns the Units and an undivided fractional fee-simple interest in the property identified in the Lease and is not subject to the obligations of the Lease. We otherwise reverse and remand the judgment to the superior court so that it may enter a revised judgment consistent with this opinion. Because neither side has substantially prevailed in this appeal, we deny both sides’ requests for fees and costs. See
Horne Slaton, PLLC, Scottsdale, By Sandra Slaton, Kristin M. Roebuck, Counsel for Petitioner
Cantor Law Group, PLLC, Phoenix, By Bryan Blehm, The Murray Law Offices, Scottsdale, By Stanley D. Murray, Co-Counsel for Real Party in Interest
Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.
MCMURDIE, Judge:
¶ 1 Michele Gutierrez (“Mother“) seeks special action relief, challenging the superior court‘s temporary orders awarding joint legal decision-making authority to both parents, and parenting time with Robert Kivlighn II (“Father“) to occur in Arizona. Mother argues the temporary orders are invalid because (1) Arizona is not the minor child‘s home state, (2) the superior court did not make statutory findings pursuant to
¶ 2 We previously issued an order accepting jurisdiction, denying relief, and stating a written decision would follow. This is that decision. We hold that (1) under
FACTS AND PROCEDURAL BACKGROUND
¶ 3 M.K. was born outside of marriage in Arizona on July 21, 2016. M.K.‘s birth was registered with the Arizona Department of Health Services (“Department“) on July 31, 2016, and the Department issued a “certificate of live birth” on December 5, 2016. The certificate lists Kivlighn as the father. Although Mother and Father have never married, they and M.K. lived in Arizona together until September 29, 2016, when Mother left Arizona with M.K. after a disagreement with Father. Mother arrived in Wisconsin on October 2, 2016.
¶ 4 Father initially believed Mother and M.K. had left Arizona to visit Mother‘s family in Wisconsin and would return to Arizona. However, Father received a text message from Mother on November 23, 2016, informing him that she had decided to permanently
¶ 5 Immediately after he returned from Wisconsin, on November 28, 2016, Father petitioned to establish his paternity, legal decision-making, parenting time and child support (“the petition“), and moved for temporary orders. M.K. was four months and nine days old when Father filed the petition.
¶ 6 On December 2, 2016, Mother filed a petition to establish paternity, legal decision-making (custody) and parenting time in Wisconsin, and verified under oath that Father was M.K.‘s biological father. The Arizona and Wisconsin courts conferred and agreed the Arizona court would decide which state had jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA“). After the parties briefed the jurisdictional issue in December 2016, the superior court issued an order in which it determined Arizona had “exclusive home state jurisdiction to make the initial child custody order,” and that Arizona was “not an inconvenient forum” pursuant to
¶ 7 On February 10, 2017, the superior court conducted an evidentiary hearing on Father‘s motion for temporary orders regarding legal decision-making, parenting time, and child support. Father testified he cared for M.K., held and nurtured him as much as he could, utilizing the parenting skills he had learned as the oldest of seven siblings. Father sought to establish an equal parenting plan, as he wanted to actively participate in M.K.‘s up-bringing, feed him from a bottle, change his diapers, and teach him as he had with his six younger siblings.
¶ 8 During the hearing, Father denied Mother‘s allegation that he had a substance abuse problem, although he admitted that he previously legally used alcohol and marijuana with Mother in Colorado. Father provided the court with drug test results, showing negative results for alcohol and a variety of drugs and other substances. Father further denied he had any criminal history, and stated that he had never been cited for driving under the influence. Father testified he had not experienced any employment problems or been terminated from a job because of drug use. Father denied suffering from suicidal tendencies or mental health problems. Father also denied all of Mother‘s allegations of physical abuse, although he admitted to having “called her names” and being aggressive and angry at times. Father‘s sister testified and opined Mother restricted Father‘s access to M.K. before she left for Wisconsin.
¶ 9 Mother testified Father had a substance abuse problem because he drank daily and smoked marijuana. Mother asserted Father was rarely involved in caring for M.K. Mother further testified she has extensive family support in Wisconsin, where she grew up, and asserted that neither Father nor his family had helped with M.K. in any significant way. She denied having restricted Father‘s access to M.K., noting she had provided Father with photos, told Father he could “FaceTime” with M.K., and “never told him he could not see his child.” Mother admitted, however, she would not allow Father to be with M.K. for an extended amount of time, and confirmed she did not consider Father a primary caregiver.
¶ 10 At the conclusion of the temporary orders hearing on February 10, 2017, the superior court entered an interim order requiring Father to submit to a hair follicle test.3 The court declined to require supervised parenting time. The court granted Father daily parenting time of two three-hour increments until February 15, at which point Mother could return to Wisconsin with M.K.
SPECIAL ACTION JURISDICTION
¶ 12 Special action jurisdiction is discretionary, but appropriate when no “equally plain, speedy, and adequate remedy by appeal” exists. Ariz. R.P. Spec. Act. 1(a). Because temporary orders under
¶ 13 We also have discretion to accept special action jurisdiction “when statutes or procedural rules require immediate interpretation,” and a petition “presents a purely legal issue of first impression that is of statewide importance.” Escalanti v. Super. Ct. In and For County of Maricopa, 165 Ariz. 385, 386, 799 P.2d 5 (App. 1990); State ex rel. Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 5, 165 P.3d 238 (App. 2007); see Ariz. R.P. Spec. Act. 8(a).
¶ 14 The petition for special action in this case raises an issue of first impression regarding the application of jurisdiction of
¶ 15 Thus, in the exercise of our discretion, we accept special action jurisdiction pursuant to
DISCUSSION
A. Arizona has “Home State” Jurisdiction of the Child.
¶ 16 Mother contends the superior court‘s temporary orders are invalid because Arizona is not M.K.‘s “home state” pursuant to the UCCJEA, and therefore the superior court did not have jurisdiction to enter them. Mother argues a minor child less than six months old, who has not lived exclusively in one state, has no “home state” pursuant to UCCJEA. Consequently, Mother argues the superior court erred by finding M.K. had a more substantial connection to Arizona than to Wisconsin.
¶ 17 Arizona and Wisconsin have adopted nearly identical versions of the UCCJEA. See
¶ 18 Under the UCCJEA, a state with home state jurisdiction has a jurisdictional priority. See
¶ 19 In Arizona, the superior court has jurisdiction to make an initial child custody determination if “[Arizona] was the home state of the child within six months before the commencement of the proceeding and the child is absent from [Arizona] but a parent or person acting as a parent continues to live in [Arizona].”
¶ 20 The court in Welch-Doden reconciled a conflict between
¶ 21 No Arizona precedent has applied the home state jurisdiction of
(Florida was the home state, pursuant to “the plain language of the statute,” because a child born in Florida lived in Florida with both parents “until the mother relocated to New York when the child was less than two weeks old“); Fleckles v. Diamond, 393 Ill.Dec. 784, 35 N.E.3d 176, 188, ¶ 52 (2015) (Colorado, not Illinois, was the child‘s home state upon birth, because the UCCJEA‘s “home state” is the birth state for a child less than six months old); Gray v. Gray, 139 So.3d 802, 806 (Ala. Civ. App. 2013) (Alabama had jurisdiction regarding the divorce but not custody issues as Michigan, not Alabama, was child‘s “home state” because child was born in Michigan and had never lived in Alabama.).
¶ 22 Here, the facts closely resemble the facts in the Texas case and the other cited cases. M.K. was born in Arizona. M.K. lived in Arizona after his birth for approximately two months. Then, Mother moved M.K. to Wisconsin, where she and M.K. lived for approximately two months before Father filed the petition in Arizona. Father lived in Arizona when M.K. was born and has continued to live in Arizona.
¶ 23 Section 25-1031(A)(1) provides that Arizona has jurisdiction to make an initial child custody determination if it was the home state within six months before commencement of the proceeding, and the child is absent from Arizona but a parent continues to live in Arizona. Father filed the Arizona proceeding on November 28, 2016. M.K. had lived in Arizona from birth to September 29, 2016, when Mother moved with him to Wisconsin. September 29, 2016, falls within the six months preceding the filing on November 28, 2016. Accordingly, Arizona was the home state within six months before the Arizona proceeding commenced, and Arizona has jurisdiction under
¶ 24 Mother further argues the superior court erred by finding M.K. had a more substantial connection to Arizona than to Wisconsin; she contends the court should have declined to exercise jurisdiction as an inconvenient forum pursuant to
¶ 25 Under the UCCJEA, once the superior court determines it has jurisdiction, it may nevertheless 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.”
¶ 26 The superior court did not err by finding Arizona is M.K.‘s home state and that it has exclusive jurisdiction in compliance with
B. Statutory Findings Under A.R.S. § 25-403 Are Not Mandatory When Determining Temporary Orders Under A.R.S. § 25-404 .
¶ 27 Mother argues the superior court‘s temporary orders are invalid because the court failed to make specific findings pursuant to
¶ 28 We review the superior court‘s interpretation of statutes and procedural rules de novo. Mara M. v. ADES, 201 Ariz. 503, 505, ¶ 15, 38 P.3d 41 (App. 2002). We start by giving effect to the intent of the legislature. See Pima County v. Pima Coun- ty Law Enft Merit Sys. Council, 211 Ariz. 224, 227, ¶ 13, 119 P.3d 1027 (2005). “[W]e interpret court rules according to the principles of statutory construction.” Potter v. Vanderpool, 225 Ariz. 495, 498, ¶ 8, 240 P.3d 1257 (App. 2010). If the language of a statute or rule is unambiguous, “we apply it as written.” Roberto F. v. DCS, 237 Ariz. 440, 441, ¶ 6, 352 P.3d 909 (2015). Only if the language is unclear do “we apply secondary principles of construction, such as examining the rule‘s context, its relationship to related rules, its background, and the consequences of differing interpretations.” Id. “We seek to harmonize and attain consistency among related statutory provisions in the context of the overall statutory scheme.” Andrew R. v. ADES, 223 Ariz. 453, 458, ¶ 16, 224 P.3d 950 (App. 2010).
¶ 29 The Arizona Constitution vests our supreme court with the “[p]ower to make rules relative to all procedural matters in any court.” Ariz. Const. art. 6, § 5(5); Seisinger v. Siebel, 220 Ariz. 85, 88, ¶ 7, 203 P.3d 483 (2009). The Rules of Family Law Procedure “govern the procedure in the Superior Court of Arizona in all family law cases, including paternity, and all other matters arising out of
¶ 30 Rule 82 of the Arizona Rule of Family Law Procedure reads that “[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rules 32 and 79 or any other motion, except as provided in paragraph C.” Ariz. R. Fam. Law P. 82(A) (emphasis added). The “paragraph C” exception does not apply here; therefore, the rule‘s directive that findings of fact and conclusions of law are not necessary for motions applies to motions for temporary orders under Rule 47.
¶ 31 Section 25-404(A) also addresses temporary orders. Under that statute, once a party has filed a motion for a temporary order supported by “pleadings as provided in
¶ 32 Mother argues statutory findings are required because temporary orders resolve contested issues, and
¶ 33 Additionally, “[w]hen the legislature has specifically included a term in some places within a statute and excluded it in other places, courts will not read that term into the sections from which it was excluded.” State v. Gonzales, 206 Ariz. 469, 471, ¶ 11, 80 P.3d 276 (App. 2003). Here, the term “shall” is not included in
¶ 34 Moreover, the requirement in
¶ 35 For these reasons, we hold that superior courts are not required to make findings addressing the
C. Paternity is Voluntarily Established by a Registered Acknowledgement of Paternity Under A.R.S. § 25-812 .
¶ 36 Mother argues paternity was not established by the time she left for Wisconsin, and therefore she was not required to obtain Father‘s “consent” to remove M.K. from Arizona pursuant to
¶ 37 Parents of a child born out of wedlock may voluntarily establish paternity by filing a notarized or witnessed statement with the Department of Economic Security or the Department that contains the Social Security numbers of both parents, and is “signed by both parents acknowledging paternity or two separate substantially similar notarized or witnessed statements acknowledging paternity.”
¶ 38 “[T]he father‘s name shall be stated on a birth certificate ... [i]f a mother and father who are not married to each other at the time of birth and were not married to each other in the ten months before the birth voluntarily acknowledge paternity pursuant to
¶ 40 Mother further argues that because the actual birth certificate was not signed by Father, his paternity was not established pursuant to
D. Mother Needed Father‘s Consent or a Court Order to Move M.K. to Wisconsin.
¶ 41 Mother argues that as a parent without a specific court order designating parental decision-making, she was not obligated to obtain Father‘s consent before moving with M.K. to Wisconsin. We disagree.
¶ 42 “A father has a right to co-equal custody of his child but not exclusive custody absent a court order to that effect.” Maricopa County Juv. Action No. JD-4974, 163 Ariz. 60, 62, 785 P.2d 1248 (App. 1990). Our legislature has declared, as Arizona public policy, that it is in the best interests of a child, absent evidence to the contrary, “[t]o have substantial, frequent, meaningful and continuing parenting time with both parents” and “[t]o have both parents participate in decision-making about the child.”
¶ 43 Likewise, a parent commits “custodial interference” if he or she knowingly “[b]efore the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.”
¶ 44 Mother further argues this was not a relocation case and the superior court erred by considering relocation factors under
¶ 45 Father was M.K.‘s “legal parent”8 from the date he signed the acknowledgement of paternity. See
E. The Superior Court Did Not Err by Issuing Temporary Orders That May Require Mother to Return to Arizona With M.K.
¶ 46 Mother argues that because Father did not file a petition to establish legal decision-making until she already resided in Wisconsin with M.K., the superior court did not have the authority to enter an order effectively forcing her and the child to move back to Arizona so that Father could exercise his parenting time in Arizona. Because we conclude Father was M.K.‘s legal parent as of the day he signed the voluntary acknowledgement of paternity, Mother‘s argument fails, as the superior court was merely following the statutory scheme described supra, and acted within its authority.
¶ 47 The superior court explained its reasoning for issuing the temporary orders as follows:
Section 25-403(A) enumerates specific factors for the Court to consider, among all factors that are relevant to the children‘s physical and emotional well-being. The best interest of a child is the primary consideration in awarding legal decision-making authority and parenting time. Hays v. Gama, [citation omitted].
In making the legal decision-making and parenting time determination, the Court is mindful that as a matter of public policy, absent evidence to the contrary, “it is in a child‘s best interest: (1) To have substantial, frequent, meaningful and continuing parenting time with both parents[; and] (2) To have both parents participate in deci- sion-making
about the child.” A.R.S. § 25-103(B) . Subject to the results of Father‘s hair follicle test, which was ordered at the February 10, 2017 hearing, Mother has not presented sufficient evidence to depart from the public policy to allow both parents “substantial, frequent, meaningful and continuing parenting time” with the child and to participate in decision-making about the child. Indeed, it appeared from the evidence that Mother‘s relocation with the child to Wisconsin primarily was for the benefit of Mother and her family—not for the child‘s best interests.The Court specifically rejects Mother‘s position that (i) the child should be with Mother “24/7“, and (ii) Father should not be permitted overnight parenting time until the child is two years old. Indeed, Planning for Parenting Time: Arizona‘s Guide for Parents Living Apart,9 which Mother introduced into evidence, provides that: (i) “[b]abies begin to respond to a range of different (but equally valuable) types of parenting styles that each parent provides“; and (ii) “it‘s important that [babies] have frequent contact with each of their parents and have a stable schedule and routine.” (Arizona‘s Guide for Parents Living Apart, p.21). Moreover, contrary to what Mother suggests, the fact that the child is breastfeeding is not a basis to restrict Father‘s parenting time. In this regard, the Guide provides:
Parents who are not raising their child together must balance the baby‘s need to nurse with its need to bond with the father. The parents should talk often and openly with each other about the baby. Breast-feeding shouldn‘t be used to stop the father from spending time with the child. Instead, mothers need to offer the father parenting time, and fathers need to be flexible regarding the need of the baby to nurse. A father can feed an infant with the mother‘s expressed (pumped) milk, particularly after nursing routines are well established.... (Id., p.57).
Finally, it is not possible to create a long-distance parenting plan that facilitates the child‘s need to bond with both parents while Mother and the child continue to live in Wisconsin and Father continues to live in Arizona. The Court is mindful that one of the parties will be burdened regardless of which state the Court selects as the primary location for Father‘s parenting time. In determining whether the parenting time should occur primarily in Wisconsin or Arizona, the Court considered (among other things): (i) Arizona is the child‘s “home state” and birth state; (ii) Mother, Father and the child lived together in Arizona from the child‘s birth until at least September 29, 2016, when Mother decided to relocate with the child to Wisconsin without Father‘s consent; (iii) Father (who Mother is asking pay child support) has an established job in Arizona, which he would have to give up to relocate to Wisconsin in order to have frequent contact with the child; (iv) Mother does not have a regular job in Wisconsin that she would have to quit if she decided to relocate to Arizona; (v) Mother testified that, if she continued to live in Wisconsin as she desires, she would be willing to bring the child to Arizona for Father‘s parenting time only as her financial resources permitted; and (vi) if Mother continues to live with the child in Wisconsin, Father either will have to miss work frequently or reduce the frequency of his parenting time below the ideal level for the child to bond with Father.
¶ 48 Mother does not cite to any Arizona authority that restricts a superior court from issuing a temporary order requiring parenting time to take place in a state different than where the mother and child currently live.10 The superior court considered
¶ 49 Thus, Mother has not shown that the superior court abused its discretion by ordering Father‘s parenting time to occur in Arizona. Kay S. v. Mark S., 213 Ariz. 373, 383, ¶ 51, 142 P.3d 249 (App. 2006) (in considering and weighing different facts, courts might reach different conclusions without abusing their discretion). We defer to the superior court‘s discretionary findings and exercise of judgment regarding witness credibility and the weighing of evidence, if the superior court remains within the bounds of that discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d 676 (App. 1998); In re Marriage of Inboden, 223 Ariz. 542, 544, ¶ 7, 225 P.3d 599 (App. 2010); see Ariz. R. Fam. Law P. 82(A).
CONCLUSION
¶ 50 We accept jurisdiction of the petition for special action, but deny relief because the superior court did not err by issuing its temporary orders.
394 P.3d 1109
DIGITAL SYSTEMS ENGINEERING, INC., Plaintiff/Appellee, v. John MORENO and Bernadette Bruce-Moreno, Defendants/Appellants.1
No. 1 CA-CV 16-0156
Court of Appeals of Arizona, Division 1.
FILED 4/18/2017