Michelangelo Borrello v. Chandra Long

• Court: Court of Appeals of Washington
• Decided: July 9, 2018
• Docket: 77630-4
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of ) ) No. 77630-4-I CHANDRA LONG, ) ) DIVISION ONE _

Respondent, ) ~ ) and ) PUBLISHED OPINION

MICHELANGELO BORRELLO, ) ,~,

Petitioner ) FILED July 9, 2018 1~0

LEACH, J. — Michelangelo Borrello appeals the trial court’s decisions

requiring the relocation of the parties’ nine-year-old daughter, A., from Italy to

Washington state before a permanent parenting plan has become final. His

challenge requires resolution of the relationship between an emergency order

entered by the Court of Rome under article 11 of the 1996 Hague Convention on

Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in

Respect of Parental Responsibility and Measures for the Protection of Children

(1996 Hague Convention),1 article 5 of this treaty, Washington’s Uniform Child

1 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Oct. 19, 1996, 35 I.L.M. 1391, https://assets/hcch net/docs/fi 6ebd3d-f398-489 I -bf47-1 1 0866e 171 d4. pdf. . No. 77630-4-I I 2

Custody Jurisdiction and Enforcement Act (UCCJEA)2, and a later order entered

by a Washington court asserting jurisdiction under the UCCJEA.

The trial court properly exercised jurisdiction under the UCCJEA.

Because its order temporarily relocating A. addressed “the measures required by

the situation,” it satisfied the requirements of the 1996 Hague Convention, and

the Court of Rome’s emergency order lapsed. The order did not violate the

doctrine of comity or RCW 26.09.197. We affirm.

FACTS

Borrello is an Italian citizen, and Chandra Long is a United States citizen

who grew up in Everett, Washington. They married in the United States in 2008

but later moved to Italy. A., their only child, was born in Italy in March 2009. In

March 2011, Long brought A. to Washington. Borrello petitioned a Washington

court under the 1980 Hague Convention on the Civil Aspects of International

Child Abduction (1980 Hague Convention)3 for A.’s return to Italy. In August

2011, the Washington court granted Borrello’s request and ordered that A. return

to Italy.

2 Ch. 26.27 RCW. ~ Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 49, https:I/assets. hcch netldocs/e86d9f72-dc8d-46f3-b3bf-e 102911 c8532 pdf. . .

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In December 2012, the Court of Rome approved the parties’ “non

consensual separation” agreement. The agreement stated that Borrello and

Long would have shared custody of A. but A. would be placed with Long. It also

permitted Long to transfer A.’s residence to Washington state and specified

Borrello’s visitation rights and child support obligations. Long and A. moved from

Italy to Everett, Washington, in September 2013. In April 2015, Borrello asked

the Court of Rome to modify the agreement, claiming that Long prevented him

from contacting and forming a relationship with A. The Court of Rome exercised

jurisdiction in October2015.

In November 2015, Long filed a petition for dissolution in Washington. In

December, she appealed the Court of Rome’s decision to Italy’s highest court,

the Court of Cassation, challenging its jurisdiction. In February 2016, Long

asked the Washington court to move forward with the dissolution proceedings,

and Borrello asked the court to dismiss them. The Washington court stayed both

requests pending the outcome of the Italian proceedings.

In June 2016, A. returned to Italy for her summer visitation with Borrello.

The Court of Rome then awarded Borrello temporary sole custody of A. to allow

A. to live in Italy for the 2016-2017 school year pending the outcome of the Court

of Cassation’s ruling. In February 2017, the Court of Cassation held that Italy

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lacked jurisdiction over Borrello’s request to modify the parties’ separation

agreement. Borrello later asked the Court of Rome to exercise emergency

jurisdiction under article 11 of the 1996 Hague Convention.

In June 2017, the Court of Rome closed the pending proceedings based

on the Court of Cassation’s decision that it lacked jurisdiction but granted

Borrello’s request that it take urgent measures. It held that it was “absolutely

necessary for [A.’s] interest” that she remain in Italy and continue her schooling

based on a number of factors, including Long’s behavior suggesting that she was

trying to make it difficult for Borrello to develop a relationship with A. It ordered

that A. remain in Italy until “such time when the American court will be able to

evaluate the array of elements indicated so far [and] may make any final decision

attributable to it alone.”

In July 2017, Long asked the Washington trial court to order A.’s return to

Washington, to lift the stay on the dissolution proceedings, and to convert the

parties’ 2012 separation agreement to a decree of dissolution, permanent

parenting plan, and order of child support. Long alleged that the court had

jurisdiction under the UCCJEA. Borrello disagreed. He also petitioned the Civil

Court of Milan to confirm A.’s sole custody with him and her continued residence

in Italy.

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In September 2017, a Washington state superior court commissioner

found that Washington had jurisdiction to decide parenting issues involving A.

under the UCCJEA, lifted the stay on the dissolution proceedings, denied

Borrello’s motion to dismiss, and refused to order A.’s return to Washington. In

October, the superior court granted Long’s request to revise the commissioner’s

decision and ordered A.’s return to Washington state within two weeks. In

November, the court denied Borrello’s motion for reconsideration.

Borrello asked this court for interlocutory review of the trial court decisions

finding jurisdiction under the UCCJEA and ordering the return of A. The trial

court denied his motion to stay the trial court proceedings pending appellate

review. In December, this court stayed all trial court proceedings. In January

2018, we granted discretionary review and extended the stay. Borrello appeals.

STANDARD OF REVIEW

An appellate court reviews de novo questions of law, including

jurisdictional issues.4 It reviews temporary parenting plans for an abuse of

discretion.5 “A trial court abuses its discretion when its order is manifestly

unreasonable or based on untenable grounds.”6

~ In re Marriage of Tostado, 137 Wn. App. 136, 144, 151 P.3d 1060 (2007). ~ In re Parentage of Jannot, 149 Wn.2d 123, 128, 65 P.3d 664 (2003). 6 Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993). -5- No. 77630-4-I /6

ANALYSIS The Trial Court’s Order Was Not in Conflict with the 1996 Hague Convention Borrello asserts that the trial court lacked jurisdiction to order A.’s return

from Italy until it entered a final parenting plan and the parties had exhausted

their right to appellate review of it. He claims that article 11 and article 5 of the

1996 Hague Convention require this result. We disagree.

Both Italy and the United States are contracting states to the Hague

Conference.7 Article 5 of the 1996 Hague Convention generally describes the

authority of contracting states to make child custody decisions. It gives the

“Contracting State”8 of the child’s “habitual residence” jurisdiction to take

protective measures: “(1) The judicial or administrative authorities of the

Contracting State of the habitual residence of the child have jurisdiction to take

measures directed to the protection of the child’s person or property.”

~ Hague Conference Members, HAGUE CONF. ON PRIv. INT’L L., https://www. hcch.net/en/states/hcch-members (last visited June 29, 2018). 8 “Contracting State’ refers to a state which has consented to be bound by a convention, whether or not that Convention has entered into force for that State.” FAQ: What Is the Difference between Member, State Party and Contracting State?, HAGUE CONF. ON PRIv. INT’L L., https://www. hcch net/en/instruments/conventions/specialized .

sections/apostille/faqi (last visited June 29, 2018).

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But article 11 provides that any contracting state where the child is located

has jurisdiction to take protective measures “[i]n all cases of urgency”: “(1) In all

cases of urgency, the authorities of any Contracting State in whose territory the

child or property belonging to the child is present have jurisdiction to take any

necessary measures of protection.”

Article 11 also limits the duration of urgent protective measures taken

under it: “(2) The measures taken under the preceding paragraph with regard to

a child habitually resident in a Contracting State shall lapse as soon as the

authorities which have jurisdiction under Articles 5 to 10 have taken the

measures required by the situation.”

In February 2017, the Court of Cassation held that the Italian courts did

not have jurisdiction under article 5 to modify the parties’ parenting agreement:

“[T]he fact that [A.] has been habitually residing in the US since 2013 is clearly

reflected in the court records, therefore the Italian courts lack of jurisdiction is

confirmed.”

Borrello then asked the Court of Rome to exercise its authority under

article 11 to impose urgent protective measures and prevent Long from returning

A. to the United States. The Court of Rome granted Borrello’s request. It

ordered that A. remain in Italy until “such time when the American court will be

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able to evaluate the array of elements indicated so far” and “may make any final

decision attributable to it alone.” Borrello claims that this provision limited the

trial court’s authority under article 5 to decide for itself when it had “taken the

measures required by the situation” as article 11 requires. Borrello misinterprets

the Court of Rome’s authority under article II.

Under article 11(2), a contracting state’s emergency measures “shall lapse

as soon as the authorities which have jurisdiction under articles 5 to 10 have

taken the measures required by the situation.” Both the Court of Cassation and

the Court of Rome acknowledged that the United States is A.’s habitual

residence and that the United States has jurisdiction under article 5. As

discussed below, the Washington superior court determined that it had

jurisdiction under the UCCJEA. Thus, under article 11(2), when the trial court

exercised its article 5 authority and issued its temporary order, the Court of

Rome’s order lapsed.

Borrello misinterprets the scope of article 11 authority when he claims that

“the Court of Rome identified the ‘measures required by the situation’ that the

Article 5 court must take.” Article 11 states that a court exercising emergency

jurisdiction may take “any necessary measures of protection,” which lapse when

an article 5 court has “taken the measures required by the situation.”9 Article 11

~ 1996 Hague Convention art. 11(1)-(2). -8- No. 77630-4-I / 9

does not grant to that court the authority to define what measures taken by an

article 5 court are those “required by the situation.” Borello cites no authority

interpreting the 1996 Hague Convention to provide a court exercising emergency

jurisdiction under article 11 to so limit the authority of a court exercising

jurisdiction under article 5. He offers no persuasive reason why this court should

interpret the 1996 Hague Convention this way.

Article 5 gave Washington state, as the habitual residence of A., the

authority to decide and take “the measures required by the situation,” including

the authority to enter a temporary parenting plan. Article 11 did not limit this

authority nor could the Court of Rome’s order. The trial court’s temporary

parenting plan and associated orders did not contravene the 1996 Hague

Convention.

Washinciton State Has Jurisdiction over A. under the UCCJEA

Borrello claims that the UCCJEA did not provide the trial court with

authority to enter a temporary parenting plan. In July 2017, when Long asked

the Snohomish County Superior Court to order a temporary parenting plan and

require A.’s return to Washington, the trial court exercised jurisdiction over A.

under the UCCJEA. Borrello asserts that the trial court should not have looked to

the UCCJEA to determine whether it had jurisdiction to enter temporary orders.

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He claims that because Italy and the United States are both contracting states to

the 1996 Hague Convention, article 5 of the 1996 Hague Convention determines

jurisdiction, not the UCCJEA. Relatedly, he asserts that the trial court should

have determined A. habitually resides in Italy within the meaning of article 5, SO

Washington does not have article 5 jurisdiction. We address each of his

arguments in turn.

Article 5 of the 1996 Hague Convention resolves the general authority of

two contracting states, the United States and Italy, to decide the parenting

dispute between Long and Borrello. The Court of Cassation decided that the

courts of the United States, and not Italy, had jurisdiction to decide this dispute

because A. habitually resided in the United States. So Borrello’s claim that the

trial court should have looked to article 5 instead of to the UCCJEA makes little

sense. The same is true for his claim that A. habitually resided in Italy. But this

does not resolve the authority of the courts of Washington state to resolve the

custody issue. Borrello provides no authority to support the proposition that the

1996 Hague Convention, rather than the UCCJEA, determines Washington

State’s jurisdiction. Neither Washington case law nor the UCCJEA supports his

position.

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Washington courts look to the UCCJEA to determine their authority to

decide a child custody dispute.1° This includes making an initial custody

determination, modifying a custody determination, or issuing a temporary

emergency custody order. The petitioner has the burden to establish

jurisdiction.~ Apart from his failed argument about the relationship of articles 5

and 11, Borrello does not identify any legal authority questioning the UCCJEA as

the legal authority for determining the trial court’s authority to act in this case.

Borrello also contends that Long did not establish jurisdiction under the

UCCJEA. But Long met her burden to establish jurisdiction in Washington.

The UCCJEA defines an “initial determination” as “the first child custody

determination concerning a particular child.”12 Here, the Court of Rome made

the initial determination in 2012 when it approved the parties’ “non-consensual

separation” agreement. The trial court’s order requiring A.’s temporary return to

Washington state is therefore a modification of the original determination. A

Washington state court has jurisdiction to modify a child custody determination

made by a court of another state or foreign country13 if (1) it has jurisdiction to

10 In re Marriage of leronimakis, 66 Wn. App. 83, 90, 831 P.2d 172 (1992) (referring to the Uniform Child Custody Jurisdiction Act, the previous iteration of the UCCJEA); see ch. 26.27 RCW. 1~ leronimakis, 66 Wn. App. at 90. 12 RCW 26.27.021(8). 13 “A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying Articles 1 and 2.” RCW 26.27.051. —11— No. 77630-4-I /12

make an “initial custody determination” and (2) the court of the other state

“determines it no longer has exclusive continuing jurisdiction . . . or a court of this

state would be a more convenient forum.”14

(1) [A Washington state court] has jurisdiction to make an initial child custody determination only if: (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; (b) A court of another state does not have jurisdiction under (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under RCW 26.27.261 or 26.27.271, and: (i) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (ii) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships; (c) All courts having jurisdiction under (a) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under RCW 26.27.261 or 26.27.271; or (d) No court of any other state would have jurisdiction under the criteria specified in (a), (b), or (c) of this subsection.[15]

“Home state’ means the state in which a child lived with a parent or a

person acting as a parent for at least six consecutive months immediately before

the commencement of a child custody proceeding.”16 Here, Long started

modification proceedings when she filed a petition for dissolution in Washington

14 RCW 26.27.221. 15 RCW 26.27.201. 16 RCW 26.27.021(7). -12- No. 77630-4-I /13

state in November 2015. A. lived continuously with Long in Washington from

September 2013 until June 2016. Then A. went to Italy for her scheduled

summer visitation with Borrello. The Court of Rome then ordered A. to remain in

Italy with Borrello until the Court of Cassation issued its decision on whether the

Italian courts had jurisdiction to modify the parties’ parenting plan. So A.

remained in Italy until the trial court ordered that she return to Long’s care in

Washington by October 24, 2017. Because A. continuously lived with Long in

Washington for more than two years before Long started the dissolution

proceedings in 2015, Washington is A.’s “home state” under the UCCJEA.

Further, no other state is A.’s home state. The Court of Cassation held

that Italy lacked jurisdiction based on its finding that A. had habitually resided in

the United States since 2013. In addition, both A. and Long have a significant

connection with Washington. A. lived in Everett, Washington, from September

2013 until June 2016. Long was raised in Everett and has lived there since

2013. In her motion to establish jurisdiction under the UCCJEA, Long identified

substantial evidence of the care and protection A. receives in Washington:

before October 2016 when the Court of Rome ordered that A. stay in Italy for the

school year, A. had a number of friends at her elementary school where she

attended kindergarten and first grade, she participated in weekly activities such

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as art class, her maternal grandparents lived four blocks away, and her

pediatrician and dentist were located in Everett. Finally, no court of any other

state could satisfy the UCCJEA requirements and exercise jurisdiction to make

an initial child custody determination. The trial court thus properly exercised

jurisdiction under the UCCJEA.

The Trial Court’s Order Does Not Contravene the Doctrine of Comity or RCW 26.09.197 A. The Doctrine of Comity

Borrello claims that the trial court’s order temporarily relocating A. violates

the doctrine of comity because it does not respect the Court of Rome’s order

requiring that A. remain in Italy until an American court makes a final decision.

This doctrine provides that “a court has discretion to ‘give effect to laws [and

resulting judicial orders] of another jurisdiction out of deference and respect,

considering the interests of each [jurisdiction].”17 “Orders ‘will be recognized and

given force if it be found that they do not conflict with the local law, inflict an

injustice on our own citizens, or violate the public policy of the state.”18

17 MacKenzie v. Barthol, 142 Wn. App. 235, 240, 173 P.3d 980 (2007) (alterations in original) (quoting Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 160-61, 744 P.2d 1032, 750 P.2d 254 (1987)). 18 MacKenzie, 142 Wn. App. at 240 (internal quotation marks omitted)

(quoting Reynolds v. Day, 79 Wash. 499, 506, 140 P. 681 (1914)). -14- No. 77630-4-1/15

The doctrine of comity does not apply here because the trial court was not

recognizing or enforcing the Court of Rome’s order. In its original order, the trial

court did “confirm[ ] registration” of the Court of Cassation and the Court of Rome’s orders. But because the trial court had jurisdiction over A. under the

UCCJEA and its orders were independent of the Court of Rome’s temporary

order under article 11 of the 1996 Hague Convention and caused the Court of

Rome’s order to lapse, it had no obligation to address the Court of Rome’s order

and did not fail to respect it. The trial court did not abuse its discretion by

entering temporary orders.

B. RCW26.09.197

Finally, Borrello relies on In re Marriage of Kovacs,19 in which our

Supreme Court examined a previous version of RCW 26.09.19720 to support his

claim that the trial court’s order ignores the considerations listed in this statute,

The first factor in the former version of the statute interpreted in Kovacs

required a trial court awarding temporary custody to consider “[w]hich parent has

taken greater responsibility during the last twelve months for performing

parenting functions relating to the daily needs of the child.”21 Borrello claims that

because A. lived with him for more than 12 months leading up to the trial court’s

19 121 Wn.2d 795, 808-09, 854 P.2d 629 (1993). 20 Former RCW 26.09.197 (1987). 21 Former RCW 26.09.197; Kovacs, 121 Wn.2d at 808. -15- No. 77630-4-1/16

order temporarily relocating A. to Washington state, the trial court did not

adequately consider the first factor and erred in issuing its orders. Borrello’s

argument does not take into consideration the legislature’s substantial

amendment of RCW 26.09.197 in 2007. The amended statute states as follows:

After considering the affidavit required by RCW 26.09.194(1) and other relevant evidence presented, the court shall make a temporary parenting plan that is in the best interest of the child. In making this determination, the court shall give particular consideration to: (1) The relative strength, nature, and stability of the child’s relationship with each parent; and (2) Which parenting arrangements will cause the least disruption to the child’s emotional stability while the action is pending. The court shall also consider the factors used to determine residential provisions in the permanent parenting plan. The trial court’s orders are consistent with the current version of the

statute. The UCCJEA and the parties’ 2012 separation agreement state that A.

has a stronger relationship with Long in Washington than with Borrello in Italy.

Before living with Borrello during the 2016-2017 school year, A. lived with Long in

Washington for almost three years. Washington is A.’s “home state” as defined

by the UCCJEA, and Borrello’s and Long’s 2012 separation agreement stated

that A. would be placed with Long. The trial court modeled the temporary

parenting plan after the parties’ 2012 separation agreement and thus designated

Long as A.’s custodian. The trial court’s decision that A. live in her “home state”

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with her custodial parent is not contrary to the statute and is not an abuse of

discretion.

CONCLUSION

The trial court’s temporary orders do not contravene the 1996 Hague

Convention, the rule of comity, or RCW 29.09.197. The trial court has jurisdiction

under the UCCJEA. We affirm.

WE CONCUR:

4~f ~1

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