In re Peck

• Decision Date: 20 April 2017
• Docket Number: No. 2 CA–CV 2016–0131–FC,2 CA–CV 2016–0131–FC
• Parties: IN RE the MARRIAGE OF John William PECK, Petitioner/Appellant, and Sabine Sybille Hansen Peck, Respondent/Appellee.
• Court: Arizona Court of Appeals

395 P.3d 734

IN RE the MARRIAGE OF John William PECK, Petitioner/Appellant,

and

Sabine Sybille Hansen Peck, Respondent/Appellee.

No. 2 CA–CV 2016–0131–FC

Court of Appeals of Arizona, Division 2.

Filed April 20, 2017

Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson, By Peter Economidis and Corey B. Larson, Counsel for Petitioner/Appellant

Garnice Law, PLLC, Scottsdale, By Victor A. Garnice, Counsel for Respondent/Appellee

Judge Espinosa authored the opinion of the Court, in which Presiding Judge Staring and Judge Miller concurred.

OPINION

ESPINOSA, Judge:

¶ 1 John Peck appeals the trial court's judgment dismissing his petition for dissolution on grounds of lack of personal jurisdiction over his wife, Sabine Peck. He also contends that, even if jurisdiction was lacking, he was nonetheless "entitled to have an Arizona court terminate his marriage." For the following reasons, we affirm the conclusion that the court did not have jurisdiction over Sabine,¹ but we remand for further proceedings regarding the dissolution of the marriage.

Factual and Procedural Background

¶ 2 In reviewing the trial court's dismissal for lack of personal jurisdiction, we view the facts in the light most favorable to John. See In re Consol. Zicam Prod. Liab. Cases , 212 Ariz. 85, ¶ 7, 127 P.3d 903, 907 (App. 2006).² The salient facts in this case are essentially undisputed. John and Sabine were married in Switzerland in 2001. Sabine is a German citizen who resides and is employed in Spain, and John resides in Tucson. Throughout their marriage, the couple have lived separately and apart in Switzerland, England, and Spain. In June 2014, John moved to Tucson while Sabine remained in Spain. Sabine has never resided in Arizona, but she visited John in Tucson on several occasions throughout 2014 and 2015 "in an effort to reconcile their marriage" and co-signed the lease on his Tucson apartment.

¶ 3 In January 2016, John filed a petition for dissolution of marriage without minor children in the Pima County Superior Court, alleging the trial court had personal jurisdiction over the parties because he was "a resident of and domiciled in Pima County," "Arizona [wa]s the last matrimonial domicile of the parties[,] and [Sabine] has caused numerous events to occur in Arizona including execution of a Contract for Home Rental." Sabine was served with the petition in Spain pursuant to Ariz. R. Fam. Law P. 42(A) and in compliance with the Hague Convention.

¶ 4 Sabine filed a motion to dismiss for lack of personal jurisdiction, arguing she had "not established domicile in Arizona" and lacked sufficient minimum contacts with Arizona to permit the exercise of in personam jurisdiction over her. John responded that personal jurisdiction over Sabine was appropriate because her "conduct ... caus[ed] [his] move to Arizona and her other conduct in Arizona," including making statements that she intended to move to Arizona and co-signing the lease on John's apartment, satisfied jurisdictional requirements.

¶ 5 In a signed written ruling, the trial court determined that Sabine did not have sufficient minimum contacts with Arizona to subject her to divorce proceedings in the state and dismissed the petition for lack of personal jurisdiction. John filed a motion for reconsideration, arguing he had established a prima facie case of jurisdiction over Sabine, and she had "not denied" the allegations in his opposition. From this conclusion, he asserted the court was required to accept his claims as true and exercise jurisdiction over Sabine. The court denied John's motion, he timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(3). See Garza v. Swift Transp. Co. , 222 Ariz. 281, ¶¶ 15–16, 213 P.3d 1008, 1011 (2009) (section 12–2101(A)(3) provides jurisdiction when non-final order precludes party from obtaining ultimate judgment).³

Personal Jurisdiction

¶ 6 In the context of proceedings for the dissolution of marriage, A.R.S. § 25–312 authorizes the superior court to make provision for child custody, child support, the maintenance of either spouse, and the disposition of property, "[t]o the extent it has jurisdiction to do so." It is against this backdrop that we consider whether the trial court had personal jurisdiction over Sabine. John argues the court erred in determining it lacked jurisdiction over Sabine because her purposeful acts "directed at Arizona" and her "breach of [their] contract" to relocate to Tucson provided sufficient contacts for the forum to assert its jurisdiction over her. "When a defendant challenges the existence of personal jurisdiction, the plaintiff must come forward with facts establishing a prima facie showing of jurisdiction, at which time the burden shifts to the defendant to rebut the showing." Ariz. Tile, L.L.C. v. Berger , 223 Ariz. 491, ¶ 8, 224 P.3d 988, 990 (App. 2010).

¶ 7 A petitioner cannot establish a prima facie showing with bare allegations and must come forward with facts, established by affidavit or otherwise, supporting jurisdiction. Van Heeswyk v. Jabiru Aircraft Pty., Ltd. , 229 Ariz. 412, ¶ 6, 276 P.3d 46, 50 (App. 2012). Nonetheless, the court should resolve any conflicts "in the affidavits and pleadings" in the petitioner's favor. Ariz. Tile , 223 Ariz. 491, ¶ 8, 224 P.3d at 990, quoting Macpherson v. Taglione , 158 Ariz. 309, 312, 762 P.2d 596, 599 (App. 1988). We will not set aside any findings of fact made by the trial court in reaching its jurisdiction determination unless clearly erroneous, see Bonner v. Minico , Inc. , 159 Ariz. 246, 253–56, 766 P.2d 598, 605–06 (1988) ; see also Bushelman v. Bushelman , 246 Wis.2d 317, 629 N.W.2d 795, 803 (Wis. Ct. App. 2001), but we review de novo the court's dismissal of claims for lack of personal jurisdiction, Van Heeswyk , 229 Ariz. 412, ¶ 6, 276 P.3d at 50. "Arizona courts may exercise personal jurisdiction to the maximum extent allowed by the United States Constitution." Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Props., Ltd. , 226 Ariz. 262, ¶ 12, 246 P.3d 343, 346 (2011). For personal jurisdiction over a non-resident to exist, the defendant must have sufficient minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Williams v. Lakeview Co. , 199 Ariz. 1, ¶ 6, 13 P.3d 280, 282 (2000) ; see also Int'l Shoe Co. v. Washington , 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

¶ 8 Personal jurisdiction may be either general or specific and, under both forms, "the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts' in the forum [s]tate." Williams , 199 Ariz. 1, ¶ 6, 13 P.3d at 282, quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). A non-resident defendant is subject to general jurisdiction when her contacts with the state are so substantial or continuous that she may be haled into court in the forum, even for claims unrelated to her contacts with the forum. Id. We consider only specific jurisdiction here because John concedes none of the traditional indicia of general jurisdiction are present.

¶ 9 Specific jurisdiction may be exercised over non-resident defendants to the extent permitted by the Due Process Clause of the United States Constitution. In re Consol. Zicam Prod. , 212 Ariz. 85, ¶ 10, 127 P.3d at 908. Due process is satisfied if (1) the defendant purposefully availed herself of the privilege of conducting activities in Arizona; (2) the claim arises out of or results from the defendant's activities related to Arizona; and (3) the exercise of jurisdiction would be reasonable. Id. Although the personal jurisdiction inquiry is "holistic," it is also "case-by-case," and the existence of specific jurisdiction depends upon only those minimum contacts that are related to the cause of action.

Planning Grp. , 226 Ariz. 262, ¶¶ 15–16, 25, 246 P.3d at 347, 349 ("[C]ontacts by a defendant with the forum state ... not directly related to the asserted cause of action ... cannot sustain the exercise of specific jurisdiction.").

¶ 10 "The requirement that a nexus exist between a defendant's activities in the forum state and a plaintiff's cause of action provides the key to exercising specific jurisdiction." Williams , 199 Ariz. 1, ¶ 11, 13 P.3d at 283. In other words, a petitioner's claim must result from " ‘alleged injuries that arise out of or relate to [the defendant's] ... activities' in the forum state." Id.quoting Burger King , 471 U.S. at 472, 105 S.Ct. 2174 ; see also Rollin v. William V. Frankel & Co, Inc. , 196 Ariz. 350, ¶ 14, 996 P.2d 1254, 1258 (App. 2000) (same). If the petitioner's claim and the non-resident defendant's forum-related activities are not sufficiently connected, dismissal is warranted. In re Consol. Zicam Prod. , 212 Ariz. 85, ¶ 11, 127 P.3d at 908. The focus of the analysis is "the relationship between the defendant, the forum, and the litigation." Williams , 199 Ariz. 1, ¶ 11, 13 P.3d at 283.

¶ 11 In her motion to dismiss, Sabine asserted she was a citizen of Germany who had never resided or been domiciled in the United States. She further stated John left their marital residence in Spain in June 2014 and moved to Tucson, that she did not move with him, and that the parties had lived separately after that time. Sabine visited John in Tucson for brief periods in 2014 and 2015 in an effort to reconcile their marriage, and during one of those visits, she co-signed the lease on John's apartment because he told her "she was required to sign [it]." She maintained she did not "have a copy of the lease, did not intend to submit herself to jurisdiction in Arizona, and did not consult with an attorney [as to] the effect of signing the lease." She also asserted she did not have "significant minimum contacts with the state."

¶ 12 In response, John admitted several of Sabine's assertions, including that she had...