Opinion
No. 1 CA-CV 17-0254 FC
04-03-2018
In re the Matter of: SENGCHANH VILAYSANE, Petitioner/Appellee, v. NALIDA O VILAYSANE, Respondent/Appellant.
COUNSEL Wilson-Goodman Law Group, PLLC, Gilbert By Angela M. Wilson-Goodman Counsel for Petitioner/Appellee Adam C. Rieth, PLLC, Mesa By Adam C. Rieth Counsel for Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. FN2016-004263
The Honorable Michael C. Blair, Judge
VACATED AND REMANDED
COUNSEL Wilson-Goodman Law Group, PLLC, Gilbert
By Angela M. Wilson-Goodman
Counsel for Petitioner/Appellee Adam C. Rieth, PLLC, Mesa
By Adam C. Rieth
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Kenton D. Jones joined. MORSE, Judge:
¶1 This appeal addresses whether a court has subject matter jurisdiction over a petition for dissolution of marriage, pursuant to Arizona Revised Statutes ("A.R.S.") § 25-312(1). Respondent Nalida O. Vilaysane ("Wife") appeals from the superior court's dismissal for lack of subject matter jurisdiction. For the following reasons, we vacate the superior court's dismissal of the petition and remand for further proceedings consistent with this decision.
FACTS AND PROCEDURAL HISTORY
¶2 After Sengchanh Vilaysane ("Husband") retired from the military in 2008, Wife and Husband moved from Hawaii to Arizona in late 2008 because of uncertainty about Husband's future career. By 2009, Husband started working as a civilian for the Department of Defense in Hawaii. Wife, however, resided in Arizona from Husband's 2008 military retirement until Husband was assigned to the U.S. Embassy in Laos in 2014. Wife then joined him in Laos, and they lived at the embassy. Wife returned to Arizona in July 2016, but Husband continued to reside, and still resides, in Laos.
¶3 In August 2016, Husband petitioned the Arizona courts for dissolution of marriage, asserting that both parties had "lived" in the State of Arizona for at least 90 days before the petition's filing. At a January 24, 2017 hearing, the parties testified that neither was present in Arizona for the entire 90 days immediately before Husband filed his petition. Based upon this information, the superior court expressed concern that it may not have jurisdiction to hear the case. After receiving briefing and argument from the parties, the superior court dismissed the petition for lack of subject matter jurisdiction because "neither party was present in Arizona for 90 days prior to the filing of the Petition for Dissolution as required by A.R.S. § 25-312(1)."
¶4 Wife timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(3).
DISCUSSION
¶5 We review de novo whether a superior court had subject matter jurisdiction. In re Marriage of Crawford, 180 Ariz. 324, 326 (1994). "'[S]ubject mater jurisdiction' refers to a court's statutory or constitutional power to hear and determine a particular type of case." State v. Maldonado, 223 Ariz. 309, 311, ¶ 14 (2010).
¶6 For the superior court to have subject matter jurisdiction over a petition for dissolution of marriage, it must find:
That one of the parties, at the time the action was commenced, was domiciled in this state, or was stationed in this state while a member of the armed services, and that in either case the domicile or military presence has been maintained for ninety days prior to filing the petition for dissolution of marriage.A.R.S. § 25-312(1). Domicile requires "(1) physical presence, and (2) an intent to abandon the former domicile and remain here for an indefinite period of time." Dewitt v. Mcfarland, 112 Ariz. 33, 34 (1975) (citation omitted).
¶7 However, continuous physical presence is not necessary to maintain domicile. In Clark v. Clark, 124 Ariz. 235, 236-37 (1979), a husband established his domicile in Arizona and, 93 days later, filed for dissolution of marriage. Id. During the 93 days, he left Arizona for several weeks to take care of an out-of-state felony charge. Id. Even though he had not been physically present in Arizona for 90 days at the time of filing, the court found subject matter jurisdiction existed because his trip out of state "was temporary in nature and did not indicate an intention on his part to change his domicile." Id.
¶8 Here, the superior court erred when it found no subject matter jurisdiction based solely upon the parties' lack of physical presence in Arizona for 90 days. Establishing domicile and maintaining domicile are two distinct requirements within A.R.S. § 25-312(1). Physical presence is required to establish domicile, but physical presence is not required to maintain domicile. Clark, 124 Ariz. at 237. Once established, a domicile is maintained until abandoned for a new domicile. Lake v. Bonham, 148 Ariz. 599, 601 (App. 1986). Thus, a court must first determine if a party is domiciled in Arizona, and then determine if that domicile had been maintained for at least 90 days by the time of filing. A.R.S. § 25-312(1).
¶9 The parties do not dispute that Wife resided in Laos from 2014 until July 2016. "Domicile is presumed to follow residence, ... but is rebuttable and the burden of proof to rebut this presumption is on the person contending to the contrary." Jizmejian v. Jizmejian, 16 Ariz. App. 270, 273 (1972). Wife argues that she was domiciled in Arizona since 2009 because she did not have the intent to remain in Laos permanently once Husband's employment ended. She also argues that she was domiciled in Arizona before moving to Laos, and maintained that Arizona domicile because her stay in Laos was temporary and based upon Husband's government employment. Neither of these factors is determinative, and the superior court may consider them in determining, first, whether Wife established domicile in Arizona before 2014 and, second, whether she intended to abandon or maintain that domicile between 2014 and July 2016. Dewitt, 112 Ariz. at 34.
Wife also argues that Husband is precluded from raising a lack of subject matter jurisdiction claim because it would contradict his initial petition for dissolution in which he asserted that the court had subject matter jurisdiction. This argument is lacking for two reasons. First, the superior court, not Husband, raised the issue of subject matter jurisdiction. Second, subject matter jurisdiction "may not be waived and can be raised at any stage of the proceedings." Rojas v. Kimble, 89 Ariz. 276, 279 (1961); see Lamb v. Superior Court, 127 Ariz. 400, 403 (1980) ("[T]he rule is well established that parties cannot confer subject matter jurisdiction on a court by consent."). The court, however, can use Husband's assertions in the petition as evidence of his state of mind as to the parties' domicile at the time of filing. --------
¶10 The superior court heard evidence about where the parties resided but did not determine whether either party was domiciled in Arizona, and if so, when that domicile was established. Because the superior court has not determined the parties' domicile, we remand for further proceedings consistent with this decision.
CONCLUSION
¶11 We vacate the superior court's order dismissing the petition for dissolution of marriage because jurisdiction pursuant to A.R.S. § 25-312(1) does not require 90 days of physical presence before the petition is filed. We remand to the superior court to determine if either party was domiciled in Arizona and, if so, whether that domicile was maintained for 90 days before the petition was filed. In our discretion, we deny the parties' requests for an award of attorneys' fees on appeal.