Garlitz v. Rozar

• Decision Date: 24 August 1972
• Docket Number: No. 1,CA-CIV,1
• Citation: 500 P.2d 354,18 Ariz.App. 94
• Parties: Jerry Edward GARLITZ, Petitioner, v. The Honorable Morris ROZAR, Judge of the Superior Court of Maricopa County; and Betty White GARLITZ, Real Party in Interest, Respondents. 2040.
• Court: Arizona Court of Appeals

Page 354

500 P.2d 354

18 Ariz.App. 94

Jerry Edward GARLITZ, Petitioner, v. The Honorable Morris ROZAR, Judge of the Superior Court of Maricopa County; and Betty White GARLITZ, Real Party in Interest, Respondents.

No. 1 CA-CIV 2040.

Court of Appeals of Arizona, Division 1, Department B.

Aug. 24, 1972.

Sol L. Hamburger, Phoenix, for petitioner.

Richmond, Ajamie, Fay & Warner, by William J. Richmond, Phoenix, for respondents.

HAIRE, Chief Judge, Division 1.

In this special action proceeding, petitioner Jerry Edward Garlitz contends that the respondent judge lacks jurisdiction to consider a petition for modification of the child support provisions of a previously domesticized foreign divorce decree.

The respondent real party in interest, Betty White Garlitz, filed the modification petition in the Maricopa County Superior Court, after having previously domesticized a California decree in accordance with the provisions of the Uniform Enforcement of Foreign Judgments Act, A.R.S. § 12--1701 et seq. For the purposes of this opinion we have assumed that the California decree, as modified in a prior California proceeding, was subject to the provisions of the above-mentioned Uniform Enforcement of Foreign Judgments Act, and that the provisions of that act were fully complied with by Mrs. Garlitz. At this point we wish to emphasize that although there had been some prior proceedings concerning this matter involving the revised Uniform Reciprocal Enforcement of Support Act, A.R.S. § 12--1651 et seq., the modification proceedings involved in this special action do not in any way purport to be an attempt to utilize the provisions of that act.

At the time of the filing of the modification petition Mrs. Garlitz and the child for whom support had been ordered resided in Maricopa County, Arizona. Mr. Garlitz resided in Virginia, and was personally served with a copy of the modification petition in Virginia. Thereafter he made a special appearance in the Arizona proceedings through his attorney and moved to quash the modification petition on the grounds that the Arizona court had not acquired In personam jurisdiction over him, and that such jurisdiction was necessary before the court could Modify the child support provisions of the California decree. This motion was denied. It is not contended that Mr. Garlitz is or has been domiciled in Arizona, that he has been physically present or served with process within the state, that he has consented to the jurisdiction of the Arizona courts, or that he has 'caused an event to occur in this state', within the meaning of Rule 4(e)(2), Rules of Civil Procedure, 16 A.R.S.

First we note that both California and Arizona follow the generally accepted rule in divorce cases that if a court has In personam jurisdiction when it enters the original decree, it retains subject matter and party jurisdiction and may exercise its continuing jurisdiction in a support modification proceeding without the necessity of obtaining In personam jurisdiction anew, provided, however, that reasonable notice and opportunity to appear is given. Trimble v. Trimble, 276 Cal.App.2d 813, 81 Cal.Rptr. 334 (1969); Lubbehusen v. Lubbehusen, 16 Ariz.App. 45, 490 P.2d 1173 (1971), review granted, No. 10755--PR, Arizona Supreme Court, February 8, 1972; Annot. 62 A.L.R.2d 544 (1958). While we have found decisions which recognize that where both the foreign state and the new forum have continuing power to modify divorce decrees, then a domesticized foreign divorce decree is also subject to modification, we have not found any decision which goes so far as to hold that such modification of the foreign decree may be accomplished in the new forum without In personam jurisdiction being independently acquired in that new forum. See Thomas v. Thomas, 248 N.C. 269, 103 S.E.2d 371 (1958); Lopez v. Avery, 66 So.2d 689 (Fla.1953); 24 Am.Jur.2d, Divorce & Separation, § 987 (1966). Respondent appears to recognize this necessity of In personam jurisdiction in the new court, but argues that the Arizona court has acquired such jurisdiction on either of two theories: (1) The Arizona court has jurisdiction because a state in which the child is domiciled has jurisdiction over the parents to determine matters of custody and support; and (2) the establishment of the California decree as an Arizona decree under the Uniform Enforcement of Foreign Judgments Act invests the Arizona court with the continuing In personam jurisdiction retained by the California court which granted the original decree.

In support of her first theory, respondent relies upon Johnson v. Johnson, 105 Ariz. 233, 462 P.2d 782 (1969). In Johnson an Arizona decree containing support and custody provisions was granted to Arizona domiciliaries. The wife and child subsequently left the state and eventually became domiciled in California. The husband then brought an action in Arizona to gain custody of the child and to terminate child support payments. Neither mother nor child was present in Arizona nor were they served with process, but copies of the documents were mailed to the mother in California. Under these circumstances the Arizona Supreme Court held that the Superior Court lacked jurisdiction to change custody or to terminate child support. The court observed:

'The courts of the state of domicile are in a much better position to inquire into a change of circumstances surrounding children, and, under the doctrine of parens patriae, they have the primary obligation to care for the general welfare of...