Opinion
No. 1 CA-CV 18-0209 FC
02-05-2019
COUNSEL Samuels Law Group PLC, Phoenix By Michael S. Samuels Counsel for Petitioner/Appellee Law Office of Florence M. Bruemmer PC, Anthem By Florence M. Bruemmer Counsel for Respondent/Appellant Arizona Attorney General's Office, Phoenix By Carol A. Salvati Counsel for Intervenor/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2010-007178
The Honorable Suzanne E. Cohen, Judge
REVERSED AND REMANDED
COUNSEL Samuels Law Group PLC, Phoenix
By Michael S. Samuels
Counsel for Petitioner/Appellee Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Respondent/Appellant Arizona Attorney General's Office, Phoenix
By Carol A. Salvati
Counsel for Intervenor/Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge James B. Morse Jr. and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 David Bean ("Father") appeals from the superior court's order that he pay Karen Geisel ("Mother") $3,000 per month towards spousal maintenance and child support arrearages as calculated in a 2011 order. For the reasons stated below, we reverse and remand for reconsideration of the arrearages calculation.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The parties' 2007 New York divorce decree ordered Father to pay Mother $25,000 in spousal maintenance and $9,811 in child support each month. The Supreme Court of the State of New York, Appellate Division ("New York appellate court") reduced Father's monthly support obligations to $20,000 for spousal maintenance and $7,083.33 for child support after Father appealed from the decree.
This amount was to decrease to $15,000 per month once Mother received a property distribution, which apparently did not occur.
¶3 In 2008, Mother filed a petition for violation of support orders in New York. The New York Support Magistrate ("Magistrate") denied Father's motion to dismiss this petition and subsequently issued orders determining the child support and spousal maintenance arrearage amounts. Father objected to the Magistrate's denial of his petition to dismiss, and the New York Family Court ("NY Family Court") dismissed Mother's petition because the parties no longer lived in New York. The NY Family Court dismissed Mother's petition on May 28, 2009, just days before the Magistrate issued the orders determining the amount of child support and spousal maintenance arrearages. According to the record on appeal, there were no subsequent rulings from the New York courts.
¶4 The litigation then moved to Arizona where Father was residing. In 2011, Mother filed a petition to enforce current child support orders, spousal maintenance orders, and support arrearages in Arizona. Mother alleged the orders from the Magistrate set forth an arrearage judgment of $970,000 for spousal maintenance and $346,746.63 for child support. After an evidentiary hearing at which both parties appeared with counsel, the Arizona superior court found Father in contempt for failing to pay his support obligations. The court determined the arrearages that had accrued since the Magistrate orders and found the total spousal maintenance arrearage was now $1,010,000 and the total child support arrearage was now $530,913.21. The court did not issue an arrearage judgment because the parties failed to provide a specific accounting, but ordered Father to pay a $175,000 purge or surrender to the Maricopa County Jail ("2011 order"). Father failed to pay the purge or self-surrender as ordered, and the court issued a child support arrest warrant.
The court found the spousal maintenance arrearages were $970,000 as of April 30, 2009, and then added $20,000 per month for the two remaining months before Mother remarried, for a total spousal maintenance arrearage of $1,010,000. The child support arrearage was $346,746.63 as of April 30, 2009, plus $184,166.58 ($7,083.33 x 26 months) that accrued before the child was emancipated on June 30, 2011.
¶5 Father filed a motion for relief from the 2011 order which the superior court dismissed after Father failed to appear at the hearing. The superior court also affirmed the child support arrest warrant issued on October 5, 2011. Shortly after, Father was taken into custody and placed on work release. Following the 2011 order, Arizona Department of Economic Security ("ADES") intervened pursuant to Ariz. Rev. Stat. § 25-509 (2019) and filed an arrears calculation and request for arrears judgment in 2018. Father requested a hearing and objected to ADES's arrearage calculation and the arrearage findings in the 2011 order.
Father appealed from the order dismissing his motion for relief, but this court found it lacked jurisdiction over an appeal from an order regarding a contempt ruling.
We cite to the current version of any statute unless the statute was amended after the pertinent events and such amendment would affect the result of this appeal.
¶6 The superior court concluded that Father could not challenge the arrearage findings in the 2011 order. Accordingly, the court affirmed the 2011 order finding Father's total arrearages were $1,010,000 for spousal maintenance and $530,913.21 for child support and ordered Father to pay $3,000 per month toward the arrears judgment. Father was released on an appearance bond and filed a timely notice of appeal from this order. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (2019).
DISCUSSION
¶7 Father argues the superior court erred in calculating the arrearage amount because it did not recalculate the arrearages using the reduced $20,000 spousal maintenance and $7,083.33 child support amounts but instead affirmed the arrearage calculation in the 2011 order. Father contends the 2011 order was based on incorrect calculations contained in the invalid Magistrate orders.
¶8 ADES and Mother argue issue and claim preclusion bar Father from relitigating the 2011 arrearage calculation. We review the superior court's determination of support arrearages for an abuse of discretion. See Ferrer v. Ferrer, 138 Ariz. 138, 140 (App. 1983). The application of issue and claim preclusion are questions of law we review de novo. See Pettit v. Pettit, 218 Ariz. 529, 531, ¶ 4 (App. 2008); Pima Cty. v. Clear Channel Outdoor, Inc. 212 Ariz. 48, 53, ¶ 26 (App. 2006) (citation omitted).
¶9 The superior court did not expressly rely on issue or claim preclusion, but the court clearly noted that the arrearages calculation was finally decided in the 2011 order. Issue and claim preclusion, however, require a final judgment. Issue preclusion bars relitigation of an issue or fact that "was actually litigated in a previous suit, a final judgment was entered, and the party against whom the doctrine is to be invoked had a full opportunity to litigate the matter and actually did litigate it, provided such issue or fact was essential to the prior judgment." Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573 (1986). The doctrine of claim preclusion applies "when a former judgment on the merits was rendered by a court of competent jurisdiction and the matter now in issue between the same parties or their privities was, or might have been, determined in the former action." Hall v. Lalli, 194 Ariz. 54, 57, ¶ 7 (1999) (citations omitted).
¶10 The superior court expressly declined to enter an arrearage judgment in the 2011 order; therefore, that order is not a final judgment for purposes of issue or claim preclusion. ADES acknowledged this when it specifically asked the court to enter an arrearage judgment. On appeal, ADES admits the court was unable to enter a judgment in 2011 but contends the court made a final determination regarding the total amount Father owed. This is not sufficient for purposes of issue or claim preclusion. "[T]o be given preclusive effect, a judgment must be 'a firm and stable one, the "last word" of the rendering court-a "final" judgment' as opposed to one that is considered 'merely tentative in the very action in which it was rendered.'" Elia v. Pifer, 194 Ariz. 74, 81, ¶ 33 (App. 1998) (quoting Restatement (Second) of Judgments § 13, cmt. a (1982)).
The arrears calculation requested in 2018 was, by ADES's own admission, inaccurate; ADES admitted that it included the higher, incorrect support amount and interest in its arrearage calculation. ADES did not have information as to how the Magistrate calculated the arrearages.
¶11 Mother contends that, pursuant to A.R.S. § 12-1702 (2019), the Magistrate orders constitute a final arrearage judgment and have the same effect as a judgment from an Arizona court. The NY Family Court entered final child support and spousal maintenance support orders in the decree (as modified by the New York appellate court). These orders were properly filed in Arizona. However, the Magistrate orders did not become final because the petition on which they were based was dismissed just days before. See generally Campbell v. SZL Props., Ltd., 204 Ariz. 221, 224, 225, ¶¶ 14, 20 (App. 2003) (citing Restatement (Second) of Judgments § 13 cmt. f (Am. Law Inst. 1982)) (holding a vacated judgment cannot have any preclusive effect).
¶12 Citing Application of Stone, 14 Ariz. App. 109, 111-12 (1971), ADES argues Father could have raised the invalidity of the Magistrate orders in 2011 and his failure to do so precludes him from raising it now. Stone precluded a subsequent collateral attack on the California court's jurisdiction because the California court previously entered a final custody judgment. Id. Here, there was no final arrearage judgment to be given preclusive effect. The Magistrate orders were invalid because they were entered after the NY Family Court dismissed the petition on which they were based, and the 2011 order expressly declined to enter a final arrearage judgment. Therefore, unlike Stone, claim preclusion does not apply.
¶13 We conclude the superior court abused its discretion by failing to consider Father's objections to the arrearage calculations in the 2011 order.
Considering our resolution of this issue, we need not address Father's arguments that (1) the ADES arrearage calculation should not be presumed correct pursuant to A.R.S. § 25-510(I) (2019), and (2) the court retroactively modified the New York support order. --------
¶14 Finally, in the exercise of our discretion, we deny Father's request for attorneys' fees on appeal pursuant to A.R.S. § 25-324 (2019). Although unsuccessful, Mother did not take an unreasonable position on appeal, and we lack current financial information from the parties.
CONCLUSION
¶15 We reverse the superior court's order and remand for reconsideration of the arrearage amounts and entry of an arrearage judgment. As the successful party, Father is entitled to an award of costs on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21. See A.R.S. § 12-342 (2019).