IN RE THE MARRIAGE OF MAURICIO FERNANDEZ MARGAIN, Petitioner/Appellant, and ELSA LOURDES RUIZ-BOURS, Respondent/Appellee
from the Superior Court in Pima County. No. D20143642. The
Honorable Ken Sanders, Judge Pro Tempore.
D. Sherrill, Scottsdale, Counsel for Petitioner/Appellant.
Nicholson Haralambie, Attorneys, P.C., Tucson, By Ann M.
Haralambie, Counsel for Respondent/Appellee.
Staring authored the opinion of the Court, in which Presiding
Judge Howard and Judge Espinosa concurred.
Mauricio Fernandez Margain appeals the denial of his petition
for expedited enforcement of a child custody determination
made in Mexico. Margain contends the trial court erred
because Mexico has exclusive jurisdiction over the child at
issue. We have jurisdiction over this matter pursuant to
A.R.S. § § 12-120.21(A)(1) and 25-1064. For the
reasons discussed below, we reverse.
and Procedural Background
" We view the record in the light most favorable to
upholding the trial court's decision." Duwyenie
v. Moran, 220 Ariz. 501, ¶ 2, 207 P.3d 754, 755
(App. 2009). In September 2007, Margain and Elsa Lourdes
Ruiz-Bours were married in Hermosillo, Sonora, Mexico. The
couple subsequently moved to Coronado, California, where
their only child, Sophia, was born in July 2008. The family
continued to live in California until October 2010, when
Ruiz-Bours and Sophia traveled to Hermosillo. The parties
dispute the purpose of the trip, but, as they stipulated
below, Ruiz-Bours and the child were " in Hermosillo . .
. from October 11, 2010 through at least July 5, 2012."
In August 2011, Margain filed for dissolution of the marriage
in the Second Family Court of Tijuana, Baja California,
Mexico, asserting the ground of abandonment. As of that time,
Sophia had been living in Mexico for at least six consecutive
months. Ruiz-Bours was properly served with notice of the
dissolution proceeding in October 2011. At the time of
service, Ruiz-Bours was aware that the Second Family Court
had ordered that she not remove Sophia from Hermosillo
without that court's approval.
Ruiz-Bours challenged the jurisdiction of the Second Family
Court, arguing jurisdiction properly lay in Sonora, not in
Baja California, as both she and Sophia were living in
Hermosillo. The Second Family Court stayed the proceedings
and the matter was referred to the State Appellate Court of
Baja California to address Ruiz-Bours's jurisdiction
challenge. In May 2012, the State Appellate Court affirmed
the Second Family Court's jurisdiction.
Ruiz-Bours then pursued her jurisdiction challenge in
Mexico's federal court system. She was denied relief by
the Second District Court in July 2012, and the Fifteenth
Circuit Court in January 2013. The Supreme Court of Mexico
denied Ruiz-Bours relief in June 2014, affirming jurisdiction
in the Second Family Court. Ruiz-Bours was represented by
counsel throughout these proceedings and " had proper
notice of the Mexican proceedings and was provided due
In July 2012, in the midst of her appeals, Ruiz-Bours
violated the Second Family Court's order, and absconded
with Sophia to Tucson. In September 2014, that court issued
its final judgment, in which Margain was awarded "
definitive legal custody" of Sophia. In reaching its
judgment, the court considered the best interests of the
child, specifically stating:
[T]he minor is wrongfully held while continuing to be under
the care of the mother . . . who is neglecting the
father-child relationship of her minor daughter with her
father, which without any doubt, is causing an imminent harm
for the little girl; and in spite of having been warned with
fines, aid from law enforcement, search warrant and arrest
for up to thirty six hours, . . . she insisted on her
disobedient behavior of not allowing the safeguarding of the
wellbeing of her minor daughter, by obstructing the
visitation/interaction between father and daughter, causing
harm in her little girl by depriving her of the
aforementioned right of enjoying of times in common with her
father . . . with said harm prevailing for over one year . .
. . . .
. . . Therefore, it should be decreed that the definitive
legal custody of the aforementioned minor shall be exercised
by her father . . ., who shall watch over for the health,
safety as well as guide and take care of the most elemental
needs of his minor daughter such as adequately providing her
with care and [advice].
did not file an appeal or any other post-judgment motions to
have the judgment set aside.
In October 2014, Margain filed a " Petition for
Expedited Enforcement of Child Custody Determination" in
Pima County Superior Court seeking the " immediate
physical custody of" Sophia. The trial court ordered
Ruiz-Bours to appear with the child.
At a November 2014 hearing, the court found that to date
Margain had complied with the requirements of due process.
The court also allocated parenting time for Margain. Both
Ruiz-Bours and Margain were ordered not to remove the child
from Pima County absent a written agreement, or from the
state of Arizona absent a written agreement and leave of
In December 2014, another hearing was held at which the court
made rulings on pending motions and factual findings. By
stipulation of the parties, the court found Ruiz-Bours and
the child " were in Hermosillo, Sonora, Mexico, from
October 11, 2010 through at least July 5, 2012." The
court further found the filing date for the Mexican petition
for dissolution of marriage had been August 23, 2011, and the
child had been in Mexico " for at least six consecutive
months preceding the August 2011 date of [Margain's]
filing for dissolution in Mexico." The court also noted
it would limit the scope of the trial to determining "
whether Mexico exercised jurisdiction in substantial
conformity with the Uniform Child Custody Jurisdiction and
Enforcement Act" (UCCJEA), A.R.S. § § 25-1001
A three-day trial occurred in February 2015, during which
both parties elicited expert testimony concerning the proper
exercise of jurisdiction pursuant to Mexican law. Despite the
ruling of the Mexico Supreme Court, Ruiz-Bours contended the
Second Family Court did not have jurisdiction to entertain
the dissolution proceedings initiated by Margain because the
action had not been filed in the state of her domicile.
Margain, on the other hand, presented the testimony of his
expert witness who agreed that while the general rule in
Mexican dissolution actions is that the competent forum is
that of the marital or conjugal residence, when the claim is
abandonment the competent forum is the domicile of the
abandoned spouse. After the presentation of evidence and
argument, the court took the matter under advisement.
The trial court denied Margain's petition on March 2,
2015. In its ruling, the court indicated the Second Family
Court's exercise of jurisdiction was proper under the
laws of Mexico, stating: " [I]t is hard to conceive of
how the legitimacy of that court's jurisdiction could
have been more unequivocally established, under the laws of
Mexico." The court also recognized " Mexico would
have been [the child's] home state at the time"
Margain filed his petition for dissolution. But because under
Mexican law " jurisdiction is based on the location of
the marital residence or, in cases of abandonment,
the residence of the abandoned spouse," and
because " [a]t no time did the Second Family Court
consider where Sophia was living," the court
concluded the Second Family Court did not make its custody
determination in substantial conformity with the
jurisdictional standards of the UCCJEA. As part of its
ruling, the court ordered that both sides would bear their
own costs and attorney fees.
Ruiz-Bours filed a timely motion for new trial on the issue
of costs and attorney fees. On the same day, Margain filed
his notice of appeal from the court's March 2 ruling. The
trial court then issued a ruling stating it lacked
jurisdiction to consider Ruiz-Bours's motion for new
trial because Margain had filed his notice of appeal before
the motion was filed. Ruiz-Bours filed a motion for
reconsideration of the court's ruling and Margain filed a
response agreeing that filing the notice of appeal did not
divest the trial court of jurisdiction to address
Ruiz-Bours's motion for new trial.
The trial court granted Ruiz-Bours's motion for new trial
on the limited issue of costs and attorney fees. In July
2015, we stayed appellate proceedings pending a final
judgment on the issue of costs and attorney fees, which the
trial court subsequently awarded to Ruiz-Bours in a total
amount of $73,462.28. Margain filed an amended notice of
appeal to encompass the award. We then vacated the stay and
reinstated the appeal.
In August 2015, Ruiz-Bours filed a motion to dismiss
Margain's appeal, asserting he had " kidnapped"
Sophia and taken her to Mexico in violation of the trial
court's November 2015 order. We denied the motion and
Ruiz-Bours subsequently filed a motion to supplement the
record, which we granted. In her supplement, Ruiz-Bours
provided a minute entry from the trial court finding ...