Opinion
2 CA-CV 2023-0149-FC
07-03-2024
In re the Marriage of Anthony S. Puskaric, Appellant, and Sally L. George, Appellee.
Anthony Puskaric, Payson In Propria Persona Bishop, Del Vecchio & Beeks Law Office P.C., Phoenix By Daniel P. Beeks Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Gila County No. DO202300073 The Honorable Timothy M. Wright, Judge
Anthony Puskaric, Payson In Propria Persona
Bishop, Del Vecchio & Beeks Law Office P.C., Phoenix By Daniel P. Beeks Counsel for Appellee
Judge Sklar authored the decision of the Court, in which Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 Anthony Puskaric appeals the superior court's dismissal of his petition to establish paternity, legal decision-making authority, and parenting time for a child, H.P. The court determined that it lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Puskaric and appellee Sally George agree that the court erred in doing so. We do as well, so we vacate the dismissal and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 This case arises from a dispute following the dissolution of the marriage of George and Puskaric, neither of whom is H.P.'s biological parent. H.P. was born in Florida in September 2016. Puskaric asserts that under Florida law, he is H.P.'s legal father.
¶3 H.P. lived in Arizona until May 2021, when George moved H.P. to Mississippi. The divorce decree was entered in November 2021. It contained some orders concerning legal decision-making and parenting time for H.P., but the superior court later vacated those orders.
¶4 In a separate action, the superior court severed the parental rights of H.P.'s biological father. We take judicial notice of this action, though it is not part of the record before us. See City of Phoenix v. Superior Court, 110 Ariz. 155, 157 (1973).
¶5 Later, in January 2023, Puskaric filed a petition to establish paternity, legal decision-making authority, and parenting time. George moved to dismiss for lack of subject matter jurisdiction. The superior court granted the motion, concluding that it lacked jurisdiction because Arizona is not H.P.'s home state. This appeal followed.
JURISDICTION UNDER UCCJEA
¶6 On appeal, Puskaric argues that the superior court applied the UCCJEA incorrectly. We review de novo whether a court has subject matter jurisdiction under the UCCJEA. In re Marriage of Margain &Ruiz-Bours, 251 Ariz. 122, ¶ 10 (App. 2021). Because the UCCJEA confers subject matter jurisdiction, Puskaric has preserved his argument despite raising it for the first time on appeal. See id. ¶ 11; Health for Life Brands, Inc. v. Powley, 203 Ariz. 536, ¶ 12 (App. 2002).
¶7 As relevant here, the superior court has jurisdiction under the UCCJEA to "make an initial child custody determination" where it is the child's home state. A.R.S. § 25-1031(A)(1). A "[c]hild custody determination" includes a "judgment, decree or other order of a court, including a permanent, temporary, initial and modification order, for legal custody . . . with respect to a child." A.R.S. § 25-1002(3)(a). After making an initial determination, the court retains "exclusive, continuing jurisdiction" to modify that determination under A.R.S. § 25-1032 until it loses jurisdiction on a basis set forth in that section.
¶8 In analyzing its jurisdiction here, the superior court reasoned that because H.P. had lived in Mississippi for "approximately 20 months" since May 2021, Mississippi was the proper home state-not Arizona. A.R.S. §§ 25-1031, 25-1202(8). But as the parties agree, this analysis mistakenly focused on whether the court had jurisdiction to make an initial determination under Section 25-1031. That section was not at issue because the court had already made an initial child custody determination in the severance action. See § 25-1002(3)(a), (4)(a) ("[c]hild custody proceeding" includes proceeding for "termination of parental rights"). It also made a child custody determination in the divorce decree's limited orders concerning H.P., though those were vacated.
¶9 The superior court should have instead addressed whether it had jurisdiction to modify its prior determination under Section 25-1032. We now remand so it may do so. On remand, the court must determine whether it has lost "exclusive, continuing jurisdiction" for one of the reasons set forth in that statute, namely that: (1) "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) "the child, the child's parents and any person acting as a parent do not presently reside in this state." § 25-1032(A)(1), (2). In addition, as George argues in her briefing, she may ask the court to decline jurisdiction under A.R.S. §§ 25-1037, 25-1038. We take no position on how the court should analyze those issues.
¶10 Given our conclusion, we do not address Puskaric's arguments why the superior court had jurisdiction under Section 25-1031. Likewise, we do not address Puskaric's arguments on the merits of his petition because they are premature. To the extent he challenges the court's rulings in the dissolution proceeding, we do not address those arguments.
DISPOSITION
¶11 We vacate the superior court's order of dismissal and remand for further proceedings consistent with this decision.