IN THE COURTOFAPPEALS OFTHE STATE OFWASHINGTON

In the Matterofthe Marriage of 

### ) ) No. 77630-4-I CHANDRA LONG, 

### ) ) DIVISION ONE

_ Respondent, 

### ) ~

) and 

### ) PUBLISHED OPINION MICHELANGELO BORRELLO, 

### ) ,~,

Petitioner 

### ) FILED July9, 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 bythe Courtof Rome underarticle 11 ofthe 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures forthe 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/fi6ebd3d-f398-489I-bf47-1 10866e171d4.pdf.No. 77630-4-I I 2

CustodyJurisdiction and EnforcementAct (UCCJEA)2, and a laterorderentered byaWashington courtassertingjurisdiction underthe UCCJEA. The trial court properly exercised jurisdiction under the UCCJEA. Because its ordertemporarily 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 ofcomityor RCW26.09.197. 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., theironly 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, theWashington courtgranted Borrello’s requestand ordered thatA. 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-e102911 c8532

.pdf. -2-No. 77630-4~I I 3

In December 2012, the Court of Rome approved the parties’ “non consensual separation” agreement. The agreement stated that Borrello and Long would have shared custodyofA. butA. 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 supportobligations. Long and A. movedfrom 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 relationshipwith 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 courtto dismissthem. TheWashington courtstayed both requests pending the outcomeofthe Italian proceedings. In June 2016, A. returned to Italy for her summervisitation with Borrello. The Court of Rome then awarded Borrello temporary sole custody ofA. to allow A. to live in Italyforthe 2016-2017 school year pending the outcome ofthe 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 underarticle 11 ofthe 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 numberoffactors, including Long’s behaviorsuggesting thatshewas trying to make it difficultfor 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 evaluatethe arrayofelements indicated sofar[and] may make anyfinal decision attributableto italone.” In July2017, Long asked theWashington trial courtto orderA.’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 underthe UCCJEA. Borrello disagreed. He also petitioned the Civil Courtof Milan to confirm A.’s sole custodywith him and hercontinued 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 orderA.’s return to Washington. In October, the superior court granted Long’s requestto revise the commissioner’s decision and ordered A.’s return to Washington state within two weeks. In November, the courtdenied Borrello’s motion for reconsideration. Borrello asked this courtfor interlocutory reviewofthetrial 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 reviewand extendedthe 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 orbased on untenablegrounds.”6

~ In re Marriage of Tostado, 137 Wn. App. 136, 144, 151 P.3d 1060 (2007).

~ In re Parentage ofJannot, 149Wn.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 TheTrial Court’s OrderWas Not in Conflictwith the 1996 Hague

Convention Borrello asserts that the trial court lacked jurisdiction to orderA.’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 ofthe 1996 Hague Convention requirethis result. Wedisagree. 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 ofthe habitual residence ofthe child havejurisdiction to take
measures directed tothe protection ofthe child’s person orproperty.”

~ Hague Conference Members, HAGUE CONF. ON PRIv. INT’L L., https://www.hcch.net/en/states/hcch-members (lastvisited June 29, 2018). 8 

### “Contracting State’ refers to a state which has consented to be bound 

### by a convention, whetheror 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 (lastvisited June 29, 2018). -6-No. 77630-4-I I 7

Butarticle 11 providesthatanycontracting statewherethe child is located hasjurisdiction to take protective measures “[i]n all cases of urgency”: “(1) In all
cases of urgency, the authorities ofany Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measuresofprotection.” Article 11 also limits the duration of urgent protective measures taken under it: “(2) The measures taken underthe 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 bythe situation.” In February 2017, the Court of Cassation held that the Italian courts did not havejurisdiction 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 ofjurisdiction 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 ofelements indicated sofar” and “may make anyfinal 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 bythe situation” as article 11 requires. Borrello misinterprets the Courtof Rome’s authority underarticle II. Underarticle 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 bythe 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’sorderlapsed. Borrello misinterprets the scope ofarticle 11 authoritywhen he claimsthat “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 maytake “any necessary measures of protection,” which lapse when
an article 5 court has “taken the measures required bythe 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 courtexercising emergency jurisdiction under article 11 to so limit the authority of a court exercising jurisdiction underarticle 5. He offers no persuasive reason whythis courtshould interpretthe 1996 Hague Convention thisway. Article 5 gave Washington state, as the habitual residence of A., the authorityto 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 HasJurisdiction overA. underthe 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. underthe UCCJEA. Borrello assertsthatthetrial courtshould not have looked to the UCCJEAto determine whether it had jurisdiction to entertemporary orders.
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He claims that because Italyand the United States are both contracting statesto the 1996 Hague Convention, article 5 ofthe 1996 Hague Convention determines jurisdiction, not the UCCJEA. Relatedly, he asserts that the trial court should have determined A. habitually resides in Italywithin the meaning of article 5, SO Washington does not have article 5 jurisdiction. We address each of his arguments in turn. Article 5 ofthe 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 ofthe 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 ofto the UCCJEA makes little
sense. The same istrue for his claim thatA. habitually resided in Italy. Butthis does not resolve the authority ofthe courts ofWashington state to resolve the custody issue. Borrello provides no authorityto supportthe proposition thatthe 1996 Hague Convention, rather than the UCCJEA, determines Washington State’sjurisdiction. NeitherWashington case law northe 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.~ Apartfrom his failed argument about the relationship of articles 5 and 11, Borrello does not identifyany legal authorityquestioning the UCCJEAas the legal authorityfordetermining thetrial court’s authorityto act inthis case. Borrello also contends that Long did not establish jurisdiction under the UCCJEA. But Long met herburdento establishjurisdiction inWashington. 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 orforeign country13 if (1) it hasjurisdiction to

10 In re Marriage of leronimakis, 66Wn. 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, 66Wn. App. at90. 12 RCW26.27.021(8). 13 “A court ofthis state shall treat a foreign country as if itwere a state of the United Statesforthe purpose ofapplying Articles 1 and 2.” RCW26.27.051. —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 continuingjurisdiction

. . . ora courtofthis statewould bea more convenientforum.”14 (1) [A Washington state court] has jurisdiction to make an initial child custodydetermination onlyif: (a) This state is the home state ofthe child on the date ofthe 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 asa parentcontinuesto live inthisstate; (b) A court ofanotherstate does not havejurisdiction under (a) of this subsection, or a court of the home state of the child has declined to exercisejurisdiction on the ground thatthis state is the more appropriateforum under RCW26.27.261 or26.27.271, and: (i) The child and the child’s parents, orthe child and at leastone parent ora person acting as a parent, have a significantconnection with this state otherthan 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 exercisejurisdiction on the ground that a court of this state isthe more appropriateforum to determinethe custodyof the child under RCW26.27.261 or26.27.271; or (d) No court ofany otherstatewould havejurisdiction underthe criteria specified in (a), (b), or(c) ofthis subsection.[15] “Home state’ means the state in which a child lived with a parent or a person acting as a parentforat 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 RCW26.27.221. 15 RCW26.27.201. 16 RCW26.27.021(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
summervisitation with Borrello. The Court of Rome then ordered A. to remain in Italywith Borrello until the Court of Cassation issued its decision on whetherthe 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 isA.’s“homestate” underthe UCCJEA. Further, no other state is A.’s home state. The Court of Cassation held that Italy lacked jurisdiction based on its finding thatA. 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 establishjurisdiction underthe UCCJEA, Long identified substantial evidence of the care and protection A. receives in Washington: before October2016when the Court of Rome ordered thatA. stay in Italyforthe 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 exercisejurisdiction to make
an initial child custody determination. The trial court thus properly exercised jurisdiction underthe UCCJEA. TheTrial Court’s Order Does Not Contravenethe Doctrine ofComityor RCW26.09.197 A. The DoctrineofComity Borrello claimsthatthe trial court’s ordertemporarily 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 ofeach [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 ourown citizens, orviolatethe public policyofthe 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., 109Wn.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, 79Wash. 499, 506, 140 P. 681 (1914)). -14-No. 77630-4-1/15

The doctrine ofcomitydoes notapply here becausethetrial courtwas not recognizing orenforcing the Court of Rome’s order. In its original order, thetrial 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 ofthe 1996 Hague Convention and caused the Court of Rome’s orderto lapse, it had no obligation to address the Courtof Rome’s order and did not fail to respect it. The trial court did not abuse its discretion by entering temporaryorders. B. RCW26.09.197 Finally, Borrello relies on In re Marriage of Kovacs,19 in which our Supreme Court examined a previous version of RCW26.09.19720 to support his claim thatthetrial court’s orderignoresthe considerations listed in thisstatute, The first factor in the former version ofthe statute interpreted in Kovacs required atrial courtawarding temporary custodyto consider“[w]hich parent has taken greater responsibility during the last twelve months for performing parenting functions relating to the daily needs ofthe child.”21 Borrello claimsthat becauseA. 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 RCW26.09.197 (1987). 21 Former RCW26.09.197; Kovacs, 121 Wn.2d at808. -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 amendmentof RCW26.09.197 in 2007. The amended statute states asfollows: 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 ofthe child. In making this determination, the court shall give particular consideration to: (1) The relative strength, nature, and stability of the child’s relationshipwith each parent; and (2) Which parenting arrangementswill causethe leastdisruption tothe child’s emotional stabilitywhilethe 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 thatA. 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 almostthree 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 afterthe parties’ 2012 separation agreement and thus designated Long asA.’s custodian. The trial court’s decision thatA. 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 ofcomity, or RCW29.09.197. Thetrial court hasjurisdiction underthe UCCJEA. We affirm.

WE CONCUR: 

# 4~f ~1

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