Huggins v. Deinhard, 1

• Decision Date: 19 October 1982
• Docket Number: No. 1,CA-CIV,1
• Parties: Marjorie Ann HUGGINS, Plaintiff-Appellee, v. William F. DEINHARD, Defendant-Appellant. 5286.
• Court: Arizona Court of Appeals

Page 32

654 P.2d 32

134 Ariz. 98

Marjorie Ann HUGGINS, Plaintiff-Appellee, v. William F. DEINHARD, Defendant-Appellant.

No. 1 CA-CIV 5286.

Court of Appeals of Arizona,

Division 1, Department B.

Oct. 19, 1982.

Fred J. Pain, Jr., Scottsdale, and Peter A. Guerrero, Phoenix, for plaintiff-appellee.

Thur & Preston by George Preston, Calvin C. Thur, Scottsdale, for defendant-appellant.

OPINION

BROOKS, Judge.

This is an appeal from a judgment in which the trial court utilized the Arizona garnishment procedures to provide a remedy for a mother (appellee) residing in California, who was attempting to collect unpaid child support from her ex-husband (appellant) under a California divorce decree. A writ of garnishment was issued against appellant's bank account in Arizona.

The following issues have been presented for review:

1. Is an order for the payment of child support rendered by a California court entitled to full faith and credit in the Arizona courts as to child support payments which are past-due and not subject to modification?

2. Does Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), prevent an Arizona court from obtaining jurisdiction through garnishment procedures against the bank account of a nonresident defendant in an action based on a California judgment for child support?

3. Was the writ of garnishment which was used to obtain quasi in rem jurisdiction issued pursuant to an unconstitutional garnishment statute?

4. Did the trial court err in refusing to quash the writ of garnishment on the grounds that the affidavit supporting the writ contained false and inconsistent statements?

5. Did the trial court err in finding that there were no material facts precluding summary judgment?

The facts necessary for our determination are as follows: On June 16, 1961, a final judgment of divorce was filed in the State of California which dissolved the marriage of William F. Deinhard, Jr. (appellant) and Marjorie Ann Deinhard (appellee). The judgment incorporated the terms of an interlocutory decree which had ordered that appellant pay to appellee the sum of $40.00 per month for the support and maintenance of each of their five children.

In June, 1965, appellant moved to London, England. Appellant alleged that his parents fulfilled his support obligations while he was in England. Appellee admitted receiving money from appellant's parents but contended that these payments constituted gifts and did not fulfill appellant's support obligations.

In June, 1975, appellant opened an account at the Valley National Bank in Mesa, Arizona by sending the sum of $21,631.50 from his home in London. This bank account was to be appellant's only contact with the State of Arizona. Upon receipt of the funds, the bank erroneously credited the deposit to the account of appellant's father, William F. Deinhard, Sr., who was deceased. The bank notified appellee of the deposit because she was the executrix of the estate of appellant's father. Appellee thereafter filed an action in Maricopa County, Cause No. C-319916, to obtain the money on behalf of the estate. ¹ Appellant later moved from London to the State of New Jersey.

On March 25, 1976, appellee caused an order to be filed in the superior court of the State of California which found that appellant was in arrears in his support payments and ordered that a writ of execution issue in the sum of $13,387.50 principal and $8,094.45 interest in favor of appellee and against appellant. ² On May 17, 1976, a complaint was filed in the Maricopa County Superior Court (Cause No. C-332987) requesting that the California divorce decree of June 16, 1961 be established as an Arizona judgment and that garnishment issue against appellant's account at the Valley National Bank. On this same date, appellee filed an application for an order authorizing the issuance of a writ of garnishment against the Valley National Bank. ³

The writ was issued by the court and on June 9, 1976, appellant was personally served in Closter, New Jersey with a copy of the Complaint and Summons, together with the writ of garnishment.

Appellant specially appeared on July 9, 1976 and filed a motion to dismiss appellee's complaint and requested an order quashing the writ of garnishment. Appellant alleged, among other things, that the trial court lacked jurisdiction over appellant and that it also lacked jurisdiction over the subject matter. The trial court denied appellant's motion on September 15, 1976.

On March 8, 1977, appellee filed a motion for summary judgment to establish the California divorce decree as an Arizona judgment. By minute entry dated April 12, 1977, the trial court granted partial summary judgment to appellee, ordering that the California decree of divorce be established as an Arizona judgment.

On June 29, 1978, appellee filed another motion for summary judgment, alleging that appellant had not made the past-due child support payments and that he had no competent evidence that his parents had made the payments on his behalf. The trial court denied this motion by memorandum opinion and order filed September 13, 1978, indicating that there might be a method by which appellant could obtain proof that his parents had made the payments on his behalf and that he should be given an opportunity to obtain such evidence. At this time, both of appellant's parents were deceased.

Appellee thereafter renewed her motion for summary judgment and on August 30, 1979, a formal judgment was filed in which the trial court granted appellee's motion. The court found as a matter of law that appellant had not met his burden of presenting competent evidence that he or his parents had paid the child support as ordered. This appeal followed.

Appellant relies on two theories in his argument that the trial court erred in issuing the writ of garnishment against his bank account. First, he contends that the trial court erred in giving full faith and credit to the California judgment of divorce. He argues that appellee must first obtain a valid judgment in the California courts that he was in arrears for a sum certain in order for the Arizona courts to take proper notice that he is a debtor of appellee. Second, relying on Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), appellant contends that he has not had sufficient minimum contacts with Arizona such that the Arizona courts may assert jurisdiction over him or his bank account.

The law is clear in circumstances such as the present case that a divorce decree ordering child support must be afforded full faith and credit as to those payments that have accrued and are not subject to modification.

Where under the law of the state where the decree for alimony is rendered, the power of the court to modify the decree does not extend to installments that have already accrued ... and the decree is not modified before the accrual of the installments, it is entitled to full faith and credit at the forum as to such accrued installments. 157 A.L.R. 170, 175. The courts uniformly support this position. See, e.g., Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910); Desjardins v. Desjardins, 193 F.Supp. 210 (E.D.Ky.1961); Morse v. Morse, 3 Misc.2d 163, 153 N.Y.S.2d 957 (1956); Cohen v. Cohen, 158 Fla. 802, 30 So.2d 307 (1947); Biewend v. Biewend, 17 Cal.2d 108, 109 P.2d 701 (1941); Taylor v. Taylor, 122 Cal.App.3d 209, 175 Cal.Rptr. 716 (1981). Nor is this rule changed simply because the rendering state has not adjudicated the amount due under its decree. Gutowski v. Gutowski, 266 Mich. 1, 253 N.W. 192 (1934).

Justice Traynor set forth the following concise statement of the law in Biewend v. Biewend, supra at 703:

An order for the payment of money as alimony rendered by a court of competent jurisdiction in one state must be recognized by all other states under the full faith and credit clause of the United States Constitution as to all accrued installments not subject to modification by the court rendering the original order.

Only if such accrued payments are still subject to modification may recovery be denied.

[Citations omitted].

The pertinent California statute regarding the finality of a judgment ordering child support, California Civil Code § 4700(a) (Supp.1982), provides in part as follows:

Any order for child support may be modified or revoked as the court may deem necessary, except as to any amount that may have accrued prior to the date of the filing of the notice of motion or order to show cause to modify or revoke....

The record does not reveal that any motion or order to show cause to modify or revoke the child support order has been filed in California. It is clear from the language of § 4700(a) of the California Civil Code that the amount of child support which is past due is not subject to modification. Accordingly, we find that as to accrued child support, the judgment of divorce which ordered support is final and entitled to full faith and credit in the Arizona courts.

With regard to appellant's argument that he has not had sufficient contacts with Arizona such that the Arizona courts may assert jurisdiction over this matter, we note that Shaffer v. Heitner is distinguishable from the present case. Shaffer dealt with a Delaware sequestration statute which was utilized to confer quasi in rem jurisdiction on the Delaware court so that the court could determine the rights between the parties as an original matter. The Supreme Court held that the presence of the property alone, absent other ties among the defendant, the state, and the litigation, would not support the state's jurisdiction.

The present case is distinguishable from Shaffer in that a California court, with in personam jurisdiction over appellant, has entered a judgment setting forth appellant's child support obligations to appellee. Appellee requests that the Arizona courts give full faith and credit to those portions of the California judgment...