In re the Marriage Of: Erroll Payne Palmer, 1 CA-CV 09-0413

Decision Date15 June 2010
Docket Number1 CA-CV 09-0413
PartiesIn re the Marriage of: ERROLL PAYNE PALMER, III, Petitioner/Appellee, v. CANDACE WEEKES PALMER, Respondent/Appellant.
CourtCourt of Appeals of Arizona

In re the Marriage of: ERROLL PAYNE PALMER, III, Petitioner/Appellee,
v.
CANDACE WEEKES PALMER, Respondent/Appellant.

1 CA-CV 09-0413

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT B

Filed: June 15, 2010


NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION
(Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County
Cause No. FN 2007-051120
The Honorable Alfred M. Fenzel, Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Law Office of Stone & Davis PC Scottsdale
By Lisa Johnson Stone
Attorneys for Petitioner/Appellee

Warner Angle Hallam Jackson & Formanek PLC Phoenix
By Jack D. Klausner
and Tracey Van Wickler
and J. Brent Welker Attorneys for Respondent/Appellant

NORRIS, Judge

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¶1 Candace Weekes Palmer ("Wife") timely appeals from a decree dissolving her marriage to Erroll Payne Palmer III ("Husband"). As we explain below, with the exception of the $7,000 award for the Fiesta Americana asset, we affirm the decree.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties were married in 1987 in Arizona. When they separated in February 2007, the parties lived in Colorado and had been there for several years.

¶3 The parties stipulated to have the case heard by a special master. After a two-day trial, the special master issued a report, which the family court adopted in total.

DISCUSSION

I. Subject Matter Jurisdiction

¶4 Wife contends the family court lacked subject matter jurisdiction because Husband did not manifest his intent to "permanently remain" in Arizona at least 90 days before petitioning for dissolution on June 20, 2007, as evidenced by his outward acts. See Ariz. Rev. Stat. ("A.R.S.") § 25-312(1) (2007). We disagree.

¶5 Although subject matter jurisdiction is a question of law we review de novo, In re Marriage of Crawford, 180 Ariz. 324, 326, 884 P.2d 210, 212 (App. 1994), we review the family

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court's determination of domicile for sufficiency of the evidence. Jizmejian v. Jizmejian, 16 Ariz. App. 270, 274, 492 P.2d 1208, 1212 (1972). Domicile requires "(1) physical presence and (2) an intent to abandon the former domicile and remain here for an indefinite period of time." Lake v. Bonham, 148 Ariz. 599, 601, 716 P.2d 56, 58 (App. 1986) (quoting DeWitt v. McFarland, 112 Ariz. 33, 34, 537 P.2d 20, 21 (1975)).1 "[D]omicile is presumed to follow residence." Id. The party asserting a change of domicile has the burden to prove by a preponderance of the evidence he or she abandoned an earlier domicile in favor of a later one. Jizmejian, 16 Ariz. App. at 274, 492 P.2d at 1212. Each case is "to be decided on the basis of its own peculiar facts, using as indicia the habits of the person, his business and domestic relations, declarations, exercise of political rights, community activities, payment of taxes, ownership of property and other pertinent objective facts ordinarily arising out of the existence of the requisite intent." Id.

¶6 The record reflects, as Wife points out, Husband did not register his vehicle until May 2007; did not obtain an

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Arizona driver's license until June 20, 2007; did not register to vote until June 22, 2007; and did not change his address with several other institutions until near the time, and in some cases after, he petitioned for dissolution.

¶7 The record, however, also reflects Husband packed all of his possessions, emptied a storage locker, returned the keys to the marital home, and left Colorado in late February 2007. After a two-week vacation/business trip, Husband came to Arizona, where he and Wife had previously lived; he stayed first with his brother and then with his son, both who lived here. In Husband's sworn affidavit, he stated he intended to permanently reside in Arizona as of March 5, 2007. Given these facts, sufficient evidence supported the family court's determination Husband abandoned Colorado with the intent to remain indefinitely in Arizona at least 90 days before he petitioned for dissolution.2

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II. Personal Jurisdiction

¶8 Wife next argues the family court lacked personal jurisdiction over her because she is a resident of Colorado and did not have sufficient contacts with Arizona. We disagree.

¶9 We review the family court's exercise of personal jurisdiction de novo. See Ariz. Tile L.L.C. v. Berger, 223 Ariz. 491, _, 1 8, 224 P.3d 988, 990 (App. 2010). Arizona may exercise personal jurisdiction over nonresidents "to the maximum extent permitted by the constitution of this state and the Constitution of the United States." Ariz. R. Fam. L.P. 42(A). When, as here, a nonresident's activities are not so pervasive as to subject that person to general jurisdiction,

the court may still find specific jurisdiction if: (1) the [nonresident] purposefully avails himself of the privilege of conducting business in the forum; (2) the claim arises out of or relates to the [nonresident's] contact with the forum; and (3) the exercise of jurisdiction is reasonable.

Williams v. Lakeview Co., 199 Ariz. 1, 3, 1 7, 13 P.3d 280, 282 (2000). A court must have personal jurisdiction over a nonresident spouse to determine the parties' monetary

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obligations.3 See Taylor v. Jarrett, 191 Ariz. 550, 552, 1 7, 959 P.2d 807, 809 (App. 1998).

¶10 Wife has been a resident of Colorado since at least 1998. In 1989, while Husband and Wife lived in Arizona, they formed the Candace Palmer Limited Partnership ("CPLP"), an Arizona limited partnership, because Wife wanted "to protect my assets that I brought into this marriage, because, [Husband] is, you know, out there with all these personal guarantees, and now I am." Although at the time Husband petitioned for dissolution CPLP held no property in Arizona, had no place of business in Arizona, and its major asset was the parties' home in Colorado, it maintained an Arizona statutory agent for service of process. See A.R.S. § 29-304(A)(2) (Supp. 2009).4 Through CPLP, Wife "purposefully avail[ed]" herself of the laws and forum of Arizona to protect significant assets and could reasonably

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expect to be sued in this state.5 Cf. Williams, 199 Ariz. at 3, 1 7, 13 P.3d at 282 (one element of specific jurisdiction is whether "the defendant purposefully avails himself of the privilege of conducting business in the forum"). Further, CPLP held an asset with substantial value, and Husband's equitable share in this asset was a contested issue in this dissolution proceeding. Wife was also listed as an "authorized user" on a golf membership in Arizona, an asset the special master determined to be community property worth approximately $140,000. The parties' competing claims regarding Husband's equitable interest in CPLP and the golf membership were such that Wife could also reasonably expect to be haled into court in Arizona, specific to this dissolution case.

III. Special Master's Report

¶11 Wife broadly argues the family court improperly adopted the special master's report in its entirety. At its heart, however, Wife's argument challenges specific rulings, made by the special master and adopted by the family court. Thus, we address each ruling contested by Wife.

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A. Application of Arizona Law

¶12 Wife argues the special master incorrectly applied Arizona law instead of Colorado law to characterize marital assets as community or separate. Thus, Wife argues the special master should have applied Colorado law to her commissions, Destination Resort Properties/Skymar, retirement accounts, and life insurance policies.

¶13 As Husband correctly notes, A.R.S. § 25-318(A) (Supp. 2009)...

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