Gonzales-Alpizar v. Griffith

• Decision Date: 30 January 2014
• Docket Number: No. 59387.,59387.
• Citation: 317 P.3d 820,130 Nev. Adv. Op. 2
• Parties: Gabriela GONZALES–ALPIZAR, Appellant/Cross–Respondent, v. Edwin GRIFFITH, Respondent/Cross–Appellant.
• Court: Nevada Supreme Court

317 P.3d 820

130 Nev. Adv. Op. 2

Gabriela GONZALES–ALPIZAR, Appellant/Cross–Respondent,

v.Edwin GRIFFITH, Respondent/Cross–Appellant.

No. 59387.

Supreme Court of Nevada.

Jan. 30, 2014.

Richard F. Cornell, Reno, for Appellant/Cross–Respondent.

Kristi Beth Luna, Reno, for Respondent/Cross–Appellant.

BEFORE THE COURT EN BANC.

OPINION

By the Court, HARDESTY, J.:

In this appeal, we address whether a spousal and child support order entered by a family court in Costa Rica is enforceable in Nevada. The Uniform Interstate Family Support Act (UIFSA), as enacted in Nevada, allows for the enforcement of a foreign support order when the order is entered in a country that is a recognized “state” under NRS Chapter 130. UIFSA sets forth three different methods by which a foreign country may be considered a “state” for purposes of enforcing that country's support orders. The first method clearly does not apply here, and we determine that neither of the other two methods authorizes the court to consider Costa Rica a state for UIFSA purposes. Pursuant to the second method, the Nevada Attorney General, under NRS 130.035(1), has not declared Costa Rica a foreign country in which reciprocal provisions will be made ensuring the enforceability of foreign support orders. Further, under the third method, the record fails to demonstrate, pursuant to NRS 130.10179(2)(a), that Costa Rica follows enforcement procedures that are “substantially similar” to those established under UIFSA. Accordingly, UIFSA does not require the district court to enforce the order.

In addition to UIFSA, however, a foreign support order may be enforced under the doctrine of comity. We determine that, because the existence of the parties' premarital agreement was not disclosed to the Costa Rican court issuing the support order, the award for spousal support should not be recognized in Nevada as a matter of comity. The child support award may be recognized, however, and we remand for the district court to make factual findings on Griffith's claim that the child support was obtained through fraud because Gonzales–Alpizar misrepresented Griffith's income and assets to the Costa Rican court.

FACTS AND PROCEDURAL HISTORY

Respondent/cross-appellant Edwin Griffith, a resident of Reno, met appellant/cross-respondent Gabriela Gonzales–Alpizar, a citizen and native of Costa Rica, when he went to Costa Rica to visit friends. In 1999, the two were married in Costa Rica. Prior to the marriage, the parties entered into a premarital agreement prepared by Griffith's counsel and signed by both Gonzales–Alpizar and her counsel Maria Fait–Shaw in Costa Rica. Among other provisions, the premarital agreement waived any claim for alimony or spousal support, unless the divorce resulted in one party becoming eligible for public assistance support. It also provided that the laws of the State of Nevada would govern the premarital agreement's execution and performance, without regard to where the parties resided.

After the parties were married, they returned to Reno with Gonzales–Alpizar's daughter Nicolle. Shortly thereafter, Gonzales–Alpizar gave birth to a son, Anthony Griffith–Gonzalez. Griffith and Gonzales–Alpizar resided in Reno for over three years. In 2002, their relationship began to deteriorate.

The family traveled to Costa Rica in February 2003, but Gonzales–Alpizar refused to return to Reno. Griffith returned alone, leaving Gonzales–Alpizar and the two children in Costa Rica. Griffith subsequently visited Costa Rica twice in 2003 and once in 2004. Griffith returned to Costa Rica one last time in February 2005, and the parties met to discuss a divorce settlement.

Procedural history in Costa Rica2005 Costa Rican spousal and child support order

At the commencement of the parties' divorce settlement discussions in Costa Rica, Griffith was allegedly served with notice and process of a Demand for Alimony, which as explained by Gonzales–Alpizar includes spousal and child support under Costa Rican law. The parties dispute what occurred and whether Griffith was actually served with process. According to Gonzales–Alpizar, after both she and her attorney explained to Griffith that he was being served with legal documents regarding alimony and child support, Griffith became very angry, threw the papers to the floor, and immediately left. According to Griffith, however, a stranger approached him in the waiting room of the attorney's office and read aloud from paperwork in Spanish. Griffith did not understand what the person was saying, and Gonzales–Alpizar refused to respond to his multiple requests to explain what was happening. He left the office with no paperwork and no explanation in English as to what was said. Gonzales–Alpizar's version is supported by a Costa Rican court officer's affidavit asserting that she served the Demand for Alimony upon Griffith in an attorney's office, Griffith understood what the documents were, he refused to receive them, and he left immediately.

Based on this alleged service and Griffith's failure to answer the complaint in a Costa Rican court, a default judgment was entered against Griffith in September 2005, which ordered him to pay $180 per month in spousal support, $235 per month in child support for Anthony, and an additional $235 per month in child support for Nicolle (2005 Costa Rican support order).¹ The support award was based on Gonzales–Alpizar's representation of Griffith's earned income. Gonzales–Alpizar failed to disclose the terms of the premarital agreement to the court.

2007 Costa Rican divorce decree

In January 2006, Gonzales–Alpizar filed a complaint for divorce against Griffith in Costa Rica. After an initial, unsuccessful attempt to serve process of the divorce complaint, Gonzales–Alpizar obtained the Costa Rican court's permission to seek service of process upon Griffith through publication in Costa Rica, despite knowing that Griffith resided in Nevada and making no effort to notify him of the divorce proceedings. Gonzales–Alpizar's divorce complaint also failed to inform the Costa Rican court of the existence of the premarital agreement entered between the parties in August 1999.

Griffith never responded to or appeared in the action, and in April 2007, the Costa Rican court entered a final divorce decree (2007 Costa Rican decree), granting Gonzales–Alpizar's request for divorce and giving her custody of the two children with parental authority jointly held. The prior award of alimony and child support under the 2005 Costa Rican support order was confirmed. The parties were finally divorced under Costa Rican law in June 2007, when the decree was published in the “Boletin Judicial.”Procedural history in Nevada

Meanwhile, Griffith filed a complaint for divorce in Nevada in April 2007.² Although a default divorce decree was initially entered, Gonzales–Alpizar successfully moved to set aside the default decree, and she filed an answer to Griffith's complaint for divorce in June 2010. At issue in the district court was whether the court had jurisdiction over the divorce proceeding, in light of the 2007 Costa Rican decree, and whether the court had authority to enforce the 2005 Costa Rican support order.

The district court first found that because the parties had been effectively divorced under the 2007 Costa Rican decree, it was unnecessary to enter any decree dissolving the bonds of matrimony in Nevada. Nevertheless, the court determined that service of process was not valid in the Costa Rican divorce proceeding, and while the court had no authority to set aside that decree, the court would not enforce the spousal support and child custody provisions contained within it.³

As for the 2005 Costa Rican support order, the district court concluded that Griffith was served with notice and process in that proceeding.⁴ The court found enforceable any support provision within that order, provided that the order is valid and enforceable under Costa Rican law. The district court also concluded that Costa Rica was the appropriate forum to determine the enforceability of the 2005 Costa Rican support order, including any defenses Griffith might have in that action, whether that order is still valid, or whether the 2007 divorce decree served to modify or vitiate it. The district court directed the parties to litigate those issues in Costa Rica, under the presumption that the district court would have authority to enforce the order once it was found to be valid and effective. The district court entered a final determination as to its jurisdiction over the matter, and both parties timely appealed. On appeal, Gonzales–Alpizar argues that the 2005 Costa Rican support order is enforceable in Nevada and that the support arrears should be reduced to judgment.⁵ Griffith asserts that the support order is unenforceable based on improper service of the Demand for Alimony and fraud in the procurement of the support order.

DISCUSSION

To resolve this appeal, we must determine whether the 2005 Costa Rican support order is enforceable in Nevada either under the terms of UIFSA or under the doctrine of comity, both of which are issues of first impression.

The 2005 Costa Rican support order is not enforceable under UIFSA

UIFSA governs multiple jurisdiction involvement in child support issues, and its purpose is to ensure that only one child support order is effective at any given time. See Vaile v. Porsboll, 128 Nev. ––––, ––––, 268 P.3d 1272, 1274 (2012). UIFSA has been codified in Nevada under NRS Chapter 130 and provides procedures for the enforcement and modification of a support order issued by another state. Under NRS 130.10179(2), the term “state” is defined to include a foreign country if one of the following three conditions is met: (1) the country has been declared to be a foreign reciprocating country under federal law, (2) the state's attorney general has declared the country a “state” because it has reciprocal provisions ensuring the...