Busby v. Hon goldstein/busby ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STEVEN R. BUSBY, Petitioner,
v.
THE HONORABLE JOSEPH P. GOLDSTEIN, Commissioner of the
SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County
of YAVAPAI, Respondent Commissioner,
RISÉ A. BUSBY, Real Party in Interest.
No. 1 CA-SA 18-0279
FILED 3-5-2019
Appeal from the Superior Court in Yavapai County
No. P1300DO201800574
The Honorable Joseph P. Goldstein, Judge Pro Tempore
JURISDICTION ACCEPTED, RELIEF DENIED
COUNSEL
Musgrove Drutz Kack & Flack, PC, Prescott
By Jeffrey D. Gautreaux, Andrew J. Diener
Counsel for Petitioner
Law Office of Robert L. Fruge, PC, Prescott
By Robert L. Fruge
Counsel for Real Party in Interest
Arizona Attorney General’s Office, Tuscon
By Marjorie S. Becklund
Counsel for Respondent Commissioner
BUSBY v. HON. GOLDSTEIN/BUSBY
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.
B E E N E, Judge:
¶1 Steven R. Busby (“Husband”) appeals the superior court’s
denial of his motion to dismiss Risé Busby’s (“Wife”) petition for
dissolution of marriage for lack of personal jurisdiction. For the reasons
stated below, we accept special action jurisdiction, but deny relief.
FACTS AND PROCEDURAL HISTORY
¶2 Husband and Wife married in 1986 in California. They lived
in Arizona for approximately two years beginning in June 2005, until they
moved back to California. In 2013, they moved from California to Texas.
Wife moved from Texas back to Arizona in September 2017, while Husband
continued residing in Texas.
¶3 In 2005, through their marital trust created in California,
Husband and Wife purchased land in Prescott and have since paid property
taxes and homeowners association fees associated with the land. This
unimproved property worth approximately $225,000 make up about 10%
of the marital assets. Husband owns no other property in Arizona.
¶4 In June 2018, Wife filed a petition for dissolution of marriage
in Arizona. Husband filed a motion to dismiss Wife’s petition for lack of
personal jurisdiction in August 2018. The superior court found it had
personal jurisdiction over Husband and denied his motion in October 2018.
Husband appealed the court’s decision pursuant to Arizona Rule of
Procedure for Special Action 1.
JURISDICTION
¶5 Special action jurisdiction is proper to challenge the denial of
a motion to dismiss for lack of jurisdiction. Sigmund v. Rea, 226 Ariz. 373,
375, ¶ 5 (App. 2011) (quotation omitted). We granted review also “because
the jurisdiction of Arizona courts over non-resident defendants is a
recurring issue of statewide importance.” Planning Grp. of Scottsdale, L.L.C.
v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262, 265, ¶ 11 (2011).
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BUSBY v. HON. GOLDSTEIN/BUSBY
Decision of the Court
DISCUSSION
¶6 Husband argues that Arizona courts lack personal
jurisdiction over him, notwithstanding his historical and present contacts
with the forum state. We disagree.
¶7 “We review the superior court’s exercise of personal
jurisdiction de novo.” Arizona Tile, L.L.C. v. Berger, 223 Ariz. 491, 493, ¶ 8
(App. 2010). Because the superior court conducted no evidentiary hearing
on Husband’s motion to dismiss for lack of personal jurisdiction and it
considered the parties’ affidavits and other documents, we view the facts
“in the light most favorable to [Wife] but accept[] as true the uncontradicted
facts put forward by [Husband].” Planning Grp. of Scottsdale, 226 Ariz. at
264, ¶ 2, n.1; see also Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 506-
07 (App. 1987) (ruling that court may consider documentary and
testimonial evidence to resolve jurisdictional challenges).
¶8 We first recognize that Arizona courts need not have personal
jurisdiction over Husband to dissolve the marriage. Schilz v. Superior Court
(Pickrell), 144 Ariz. 65, 68 (1985); see also A.R.S. § 25-312. We further
recognize that Arizona courts have, at a minimum, jurisdiction to distribute
the couple’s Arizona land assets. Porter v. Porter, 101 Ariz. 131, 134 (1966)
(“The court has jurisdiction to determine the rights of the nonresident
spouse in the attached property.”); Restatement (Second) of Conflict of
Laws § 59 (1971) (“A state has power to exercise judicial jurisdiction to affect
interests in land in the state although a person owning or claiming these
interests in the land is not personally subject to the judicial jurisdiction of
the state.”). We can affirm the superior court’s decision on these grounds
alone.
¶9 A court must otherwise have personal jurisdiction over non-
resident spouses to determine their monetary obligations. See Taylor v.
Jarrett, 191 Ariz. 550, 552, ¶ 7 (App. 1998). Arizona may exercise personal
jurisdiction over non-residents “to the maximum extent permitted by the
constitution of this state and the Constitution of the United States.” Ariz.
R. Fam. Law P. 42(A) (2018).
¶10 Arizona may gain personal jurisdiction only from a non-
resident’s “purposeful” conduct. Planning Grp. of Scottsdale, 226 Ariz. at
266, ¶ 16 (reiterating that “casual or accidental contacts by a defendant with
the forum state” or contacts “established through the unilateral activities of
the plaintiff” cannot support the exercise of personal jurisdiction) (citations
omitted); see also Hanson v. Denckla, 357 U.S. 235, 253 (1958) (requiring
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BUSBY v. HON. GOLDSTEIN/BUSBY
Decision of the Court
“some act by which the defendant purposefully avails itself of the privilege
of conducting activities within the forum State, thus invoking the benefits
and protections of its laws”). A rebuttable presumption of personal
jurisdiction arises if Wife shows that Husband purposefully established
“sufficient minimum contacts with [Arizona] 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, 3, ¶¶ 6-7 (2000) (citing Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). If such minimum contacts
are “substantial or continuous and systematic,” Williams, 199 Ariz. at 3, ¶ 6
(emphasis added), “the defendant can fairly be expected to respond to all
claims arising out of those contacts, whatever the plaintiff’s theory of
recovery,” Planning Grp. of Scottsdale, 226 Ariz. at 268, ¶ 25 (emphasis
added).
¶11 In 2007, during their marriage and while having established
their matrimonial domicile in Arizona, Husband and Wife purchased land
in Prescott on which to construct their marital residence.1 Since 2007,
Husband has co-owned that real property and performed the associated
duties and responsibilities, including regular and continuous payments of
real property taxes, homeowners association fees, and compliance with the
association’s covenants and restrictions. See Planning Grp. of Scottsdale, 226
Ariz. at 264, ¶ 2, n.1. Husband’s ownership has been “continuous and
systematic” and “the exercise of general jurisdiction over [Husband] by an
[Arizona] court was ‘reasonable and just.’” See Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984) (quoting Perkins v. Benguet
Consol. Mining Co., 342 U.S. 437, 445 (1952)); Planning Grp. of Scottsdale, 226
Ariz. at 268, ¶ 25.
¶12 Husband argues that Arizona lacks personal jurisdiction
because the marital assets in Arizona are minimal—about 10% of the total
marital assets—and owned by a family trust. The personal jurisdiction
analysis, however, examines defendant’s reasonable expectation to be
haled into the forum state’s court based on his purposeful contacts with the
forum state. It requires a holistic analysis. Planning Grp. of Scottsdale, 226
Ariz. at 268, ¶ 25. “[P]ersonal jurisdiction is not a zero-sum game; a
1 Wife’s unilateral move back to Arizona in September 2017, by itself,
is not sufficient to confer jurisdiction over Husband in Arizona. See Pickrell,
144 Ariz. 65, 70 (1985) (“[W]here the parties left Arizona and established
their matrimonial domicile elsewhere, the return of the wife to Arizona did
not provide a sufficient connection between Arizona and the absent
husband to authorize personal jurisdiction over him.”).
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BUSBY v. HON. GOLDSTEIN/BUSBY
Decision of the Court
defendant may have the requisite minimum contacts allowing the exercise
of personal jurisdiction by the courts of more than one state with respect to
a particular claim.” Id. at ¶ 27. We believe Husband maintained sufficient
minimum contacts with Arizona, in totality, to reasonably expect that Wife
may file a petition for dissolution here, requesting all of the marital assets
be divided by Arizona courts.2 Husband’s reliance on In re the Marriage of
Peck is unavailing. See 242 Ariz. 345, 348, ¶ 9 (App. 2017), review denied (Oct.
17, 2017). The husband and wife in Peck “never resided together in the
United States, let alone Arizona, and they spent the entire duration of their
thirteen-year marriage in Europe until [husband] relocated to Tucson in
2014. [Wife] has never lived in the United States, and there is no evidence
that the parties jointly own any property in Arizona.” Id. at 350, ¶ 16.
¶13 Husband, a Texas resident, further argues it would be
burdensome for him to litigate division of all of the marital assets in
Arizona as most are located in Texas. But “considerations such as minimal
defendant inconvenience, strong forum state interest in applying its law,
and convenience of location of the forum state are secondary” because the
“threshold due process requirement for assertion of jurisdiction is contacts,
ties or relation with the forum state.” Pickrell, 144 Ariz. at 69 (citations
omitted). Because both states may have jurisdiction over the parties, either
party would be inconvenienced by litigating in a forum different than their
domicile. Planning Grp. of Scottsdale, 226 Ariz. at 268, ¶ 27.
¶14 We also note that Arizona represents the only option at
present to dissolve the marriage. Husband has not filed an independent
action in Texas courts or requested the case be transferred there.
2 Arizona courts likewise have specific jurisdiction because Husband
has purposefully availed himself of land ownership privileges in the forum
in connection with the marriage to be dissolved here. See Williams, 199 Ariz.
at 3, ¶ 7.
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BUSBY v. HON. GOLDSTEIN/BUSBY
Decision of the Court
CONCLUSION
¶15 For the foregoing reasons, we accept special action
jurisdiction, but deny Husband relief. Upon compliance with Arizona Rule
of Civil Appellate Procedure 21, Wife may recover her taxable costs.
AMY M. WOOD • Clerk of the Court
FILED: AA
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