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In re Marriage of Long

Court of Appeals of Washington, Division 1

July 9, 2018

In the Matter of the Marriage of CHANDRA LONG, Respondent, and MICHELANGELO BORRELLO, Petitioner.

          LEACH, J.

         Michelangelo Borrello appeals the trial courts 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 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.

         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 October 2015.

         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 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.

         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]

         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."

         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 U.S. 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 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 ...


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