Polacke v. Superior Court In and For County of Maricopa

• Decision Date: 28 May 1991
• Docket Number: CA-SA,No. 1,1
• Citation: 170 Ariz. 217,823 P.2d 84
• Parties: Henry Carl POLACKE, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA; the Honorable Gloria G. Ybarra, a judge thereof, Respondent Judge, Christine HAYWARD f/k/a Christine M. Polacke, Real Party in Interest. 91-021.
• Court: Arizona Court of Appeals

Page 84

823 P.2d 84

170 Ariz. 217

Henry Carl POLACKE, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA; the Honorable Gloria G. Ybarra, a judge thereof, Respondent Judge Christine HAYWARD f/k/a Christine M. Polacke, Real Party in Interest.

No. 1 CA-SA 91-021.

Court of Appeals of Arizona Division 1, Department A.

May 28, 1991.

Reconsideration Denied Aug. 2, 1991.

Review Denied Feb. 4, 1992.

[170 Ariz. 218] Kenneth A. Winsberg, P.C., Phoenix, for petitioner.

Wilson, McConnell & Associates by Beverly J. McConnell, Phoenix, for real party in interest.

OPINION

JACOBSON, Judge.

Petitioner (husband) brings this special action attacking the trial court's denial of his motion to dismiss for lack of personal jurisdiction in his former wife's action to determine child support arrearages.

The issue presented is whether an Arizona court has jurisdiction to entertain an action to determine child support arrearages under a domesticated foreign judgment, for the purpose of garnishing the support obligor's federal military retirement benefits pursuant to 42 U.S.C. § 659(a), when the obligor neither has minimum contacts with this state nor, he contends, any property located here. To determine this issue we must address whether the obligor's federal military retirement benefits can be considered constructively present in this state for purposes of establishing quasi in rem jurisdiction. We conclude that the trial court abused its discretion in denying the motion to dismiss this action.

Special Action Jurisdiction

The general policy of our appellate courts is to decline jurisdiction when special action relief is sought from a denial of a motion to dismiss or a motion for summary judgment, because relief by appeal after judgment is usually an adequate remedy. United States v. Superior Court, 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985); see also Alhambra School Dist. v. Superior Court, 165 Ariz. 38, 40 n. 3, 796 P.2d 470, 472 n. 3 (1990). However, special action jurisdiction is appropriate when the trial court's ruling cannot be justified under any rule of law, King v. Superior Court, 138 Ariz. 147, 149-50, 673 P.2d 787, 789-90 (1983), and when granting of special action relief will effectively terminate the litigation. Lim v. Superior Court, 126 Ariz. 481, 616 P.2d 941 (App.1980). Although any party who does not prevail on a motion to dismiss or for summary judgment may argue that special action relief would terminate the litigation, we believe this argument is persuasive when the motion to dismiss is based on an absence of jurisdiction, as an appeal inadequately remedies a trial court's improperly requiring a defense in a matter where it has no jurisdiction.

In this case, we conclude that the trial court had no in personam or quasi in rem jurisdiction to entertain this action against a nonresident support obligor with no assets located in Arizona. This case involves clear legal principles and no disputed material facts regarding the jurisdictional issue. Under these circumstances, we accept special action jurisdiction.

Factual and Procedural Background

Husband and wife were divorced in Florida in 1978. Pursuant to the Florida decree, husband was ordered to make monthly child support payments of $200 per month for each of the parties' two minor children. The judgment also ordered the parties to split equally the children's medical and dental expenses not covered by insurance.

At the time of the divorce, both parties were residents of Florida. Wife and the children subsequently moved to Arizona, and husband currently resides in California. Husband has never lived or worked in Arizona, and claims to have no contacts with this state except that his minor children reside here. Wife does not dispute that husband has had no personal contacts with Arizona.

On November 21, 1988, wife domesticated the Florida divorce judgment by registering it in Maricopa County Superior Court pursuant to A.R.S. § 12-1702, ¹ and sent notice to husband that she had filed the foreign judgment with the Arizona court, pursuant to A.R.S. § 12-1703. ²

On September 27, 1990, wife filed in Maricopa County Superior Court a "Motion to Determine Arrearage and for Entry of Judgment," claiming that husband was in arrears in child support payments under the Florida judgment in the amount of $14,652.52, including interest, and was indebted to wife for one-half the children's unreimbursed medical and dental expenses in the amount of $1,184.19. The motion was made pursuant to the Family Responsibility Act, A.R.S. § 12-2451 to 12-2461. ³

On November 14, 1990, husband filed a "Motion to Dismiss Motion to Determine Arrearage and for Entry of Judgment," arguing that, because he had no minimum contacts with the state of Arizona, the court had no personal jurisdiction over him, and that subjecting him to an Arizona arrearages judgment would violate the due process clause of the fourteenth amendment of the United States Constitution under the principles announced by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). After the trial court denied his motion, ⁴ husband petitioned this court for special action review.

Merits

Husband's contention that the Arizona courts have no personal jurisdiction over him because he has no minimum contacts with the state of Arizona is based primarily on the United States Supreme Court decision of Kulko. In Kulko, the Court held that a California court did not have the necessary in personam jurisdiction over a New York resident who had no contacts with California, other than that his children had moved there with his former spouse, to modify the custody or increase the child support awarded by a Haitian court that had jurisdiction over the parties at the time it entered the judgment, even though the wife and children were California residents and the wife had domesticated the Haitian decree as a California judgment. Finding no "minimum contacts" to establish in personam jurisdiction as required by International Shoe, supra, the Kulko Court held that "the exercise of such jurisdiction would violate the Due Process Clause of the Fourteenth Amendment." 436 U.S. at 86, 98 S.Ct. at 1693. The Court noted, "It has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant." Id. at 91, 98 S.Ct. at 1696, citing Pennoyer v. Neff, 95 U.S. 714, 732-33, 24 L.Ed. 565 (1878), and International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. The Kulko Court also noted that California's asserted interest in insuring child support for its minor residents was served by California's participation in the Revised Uniform Reciprocal Enforcement of Support Act, ⁵ which would allow a California resident claiming support from a New York resident to file a petition in California and have its merits adjudicated in New York, the state of the obligor's residence and the forum that would have personal jurisdiction over him. ⁶ 436 U.S. at 98-99, 98 S.Ct. at 1700.

In her response to the petition for special action, wife first argues that personal jurisdiction over a support obligor is not necessary to enforce the Florida judgment in Arizona. Wife argues that the judgment, entered when the Florida court had personal jurisdiction over the parties, being final and not subject to modification as to accrued child support installments, and having been properly domesticated in the Arizona court, is entitled to full faith and credit in Arizona and is enforceable here regardless of whether husband has minimum contacts in Arizona.

We agree with wife that the relief sought here is different from what was sought in Kulko. In Kulko, the California court attempted to entertain an action that would impose a new duty or obligation on the nonresident obligor: modifying custody or increasing an existing support award. Such a proceeding requires in personam jurisdiction over the nonresident obligor to comport with due process. See Kulko, supra; International Shoe, supra. Thus, the domestication of a foreign decree in this state for the purpose of according it full faith and credit does not transfer the in personam jurisdiction of the foreign court to this state; therefore, Arizona courts may not modify a domesticated child support award in the absence of its own personal jurisdiction over the nonresident obligor. Such personal jurisdiction could only be acquired by the obligor's minimum contacts with Arizona. Garlitz v. Rozar, 18 Ariz.App. 94, 500 P.2d 354 (1972); see also Danis v. Ziff-Davis Publishing Co., 138 Ariz. 346, 674 P.2d 900 (App.1983) (the filing of a foreign judgment is nothing more than a procedure to give full faith and credit to the judgment of a sister state, but because it does not give substantive rights, personal jurisdiction is not transferred to Arizona by perfecting the judgment here).

In this case, however, unlike in Kulko, wife has not requested that an Arizona court do anything more than determine the amount of and enforce an existing valid foreign judgment entered by a state that had in personam jurisdiction when it entered the support award. Wife points out that such a proceeding is not one in personam, but is a quasi in rem action that does not require the obligor to have minimum contacts in the state. ⁷ To support her position, wife primarily relies on this court's decision in Huggins v. Deinhard, 134 Ariz. 98, 654 P.2d 32 (App.1982). In Huggins, this court held that a California judgment for payment of child support was entitled to full faith and credit as to past due, nonmodifiable payments against a nonresident obligor who had a bank account in Arizona. Id. at 101-02, 654 P.2d at 35-36.

Husband contends, however, that because...