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In re Marriage of Henderson

Court of Appeals of Arizona, Second Division

February 28, 2017

In re the Marriage of Scott Henderson, Petitioner/Appellant,
v.
Suzanne Ruth Henderson, Respondent/Appellee, and The State of Arizona ex rel. The Department of Economic Security, Respondent/Intervenor.

         Appeal from the Superior Court in Pima County No. D20123993 The Honorable Sharon Douglas, Judge Pro Tempore The Honorable Deborah Pratte, Judge Pro Tempore

         SPECIAL ACTION JURISDICTION ACCEPTED IN PART AND DECLINED IN PART; RELIEF DENIED; JUDGMENT AFFIRMED

          Solyn & Lieberman, PLLC, Tucson By Melissa Solyn and Scott Lieberman Counsel for Petitioner/Appellant

          Wyland Law, P.C., Tucson By Dawn Wyland Counsel for Respondent/Appellee

          Mark Brnovich, Arizona Attorney General By Carol A. Salvati, Assistant Attorney General, Phoenix Counsel for Respondent/Intervenor

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Staring and Judge Miller concurred.

          OPINION

          ESPINOSA, Judge:

         ¶1 Scott Henderson challenges the trial court's judgment and various rulings related to the registration and enforcement of a foreign support order. For the reasons that follow, we accept special action jurisdiction in part but deny relief, and affirm the trial court's determinations in full.

         Factual and Procedural Background

         ¶2 We view the facts in the light most favorable to sustaining the trial court's rulings. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, n.1, 169 P.3d 111, 112 n.1 (App. 2007). In 1999, Scott and Suzanne Henderson initiated marriage dissolution proceedings in Ontario, Canada and were divorced there in 2003. After entering a number of intermediate orders, the Superior Court of Justice, Family Court Branch in Brampton, Ontario, issued a "final" order in January 2009 finding Scott was more than $360, 000 CAD[1] in arrears on his child support obligations and imposing monthly support payments of $9, 774 CAD.[2] Expressing some concern that the court had incomplete information on Scott's income, it noted that its order was "subject to . . . variation" pending Scott's purge of "all existing contempts" and satisfaction of disclosure requirements.

         ¶3 The Canadian Family Responsibility Office [3] (FRO) attempted to register the order in Hong Kong, where Scott's employer was headquartered, [4] but was ultimately unsuccessful. The 2009 order was registered in California in 2011, but Scott left the jurisdiction before the judgment could be enforced. Scott remarried in December 2011, and in March 2012 purchased a home in Tucson, Arizona with his new wife. Pursuant to the Arizona Uniform Interstate Family Support Act (UIFSA), A.R.S. §§ 25-1201 to 25-1362, Suzanne sought registration and enforcement of the 2009 Canadian order in Pima County. The Pima County Superior Court (trial court) confirmed the registration of the Canadian order in May 2013, over Scott's objections, but stayed enforcement pending hearings to resolve Scott's claims of fraud, modification, and partial payment.

         ¶4 While Suzanne was seeking to register the Canadian order, Scott applied for its modification in the Canadian court. The Canadian court, however, concluded Scott's modification attempt was "a complete abuse of the process of th[e] Court" and "a transparent effort . . . to delay the enforcement of th[e Canadian] Court's Orders in Arizona, " and struck his "Motion to Change." In July 2013, during the pendency of the enforcement proceedings in Arizona, Suzanne obtained a "Mareva Injunction"[5] from The High Court of the Hong Kong Special Administrative Region, Court of First Instance, resulting in a "worldwide" freeze of his assets. [6] Although the Mareva injunction prohibited Suzanne from initiating legal proceedings without leave of the Hong Kong court, it specifically excepted "all necessary steps (including court proceedings) to seek registration and enforcement of the [Canadian Support] Order in Arizona, USA."

         ¶5 Scott challenged enforcement of the Canadian support order in Arizona at numerous hearings throughout 2014, but the trial court ultimately determined that the order was enforceable in Arizona. After registration was confirmed, Suzanne filed a petition seeking a contempt finding and requesting an arrears calculation. The court held contempt and arrearages hearings in April and June 2015, found Scott in contempt, and entered a $755, 313.73 USD judgment against him. The court additionally set forth a number of conditions to purge his contempt and awarded Suzanne attorney fees. Scott appealed from that judgment and related orders.[7]

         ¶6 During the pendency of the appeal, Suzanne filed a motion for an expedited hearing, requested an order finding Scott in contempt of court for failing to comply with the court's July 31, 2015 order, and sought enforcement of that order. The trial court granted the expedited hearing and denied Scott's request for a continuance. After the hearing, which was held in advance of a hearing before the Hong Kong court regarding the Mareva Injunction, and which Scott failed to attend, the trial court issued an income-withholding order and enjoined him from accessing his income and his retirement account. Scott filed a motion for a new trial, which the court denied, and a motion for release of the injunction, clarification, and stay of the Arizona proceedings, which the court also denied. Scott appealed from the trial court's order denying his requests, which we have consolidated with his initial appeal. [8]

         ¶7 After Scott filed his opening brief in the consolidated appeals, Suzanne filed a motion to dismiss for lack of subject matter jurisdiction. We granted that motion in part, dismissing Scott's claims with respect to the contempt finding, imposition of purge conditions and attorney fees, and issues related to the trial court's denial of a request for a stay of the proceedings. We took under advisement whether to accept special-action jurisdiction to address those claims. Because Scott has no adequate remedy by appeal, in our discretion we exercise that jurisdiction. See Ariz. R. P. Spec. Act. 1(a); McLaughlin v. Jones, 240 Ariz. 560, ¶ 5, 382 P.3d 118, 120 (App. 2016); Berry v. Superior Court, 163 Ariz. 507, 508, 788 P.2d 1258, 1259 (App. 1989) (contempt finding only reviewable by special action). We have direct appellate jurisdiction over Scott's objections to registration of the 2009 Canadian support order and subsequent arrearages judgment pursuant to A.R.S. § 12-2101(A)(1). Our jurisdiction over the denial of a motion for new trial is pursuant to § 12-2101(A)(5)(a), and jurisdiction to consider the trial court's refusal to dissolve the injunction is pursuant to § 12-2101(A)(5)(b). See also A.R.S. § 12-120.21(A)(1).

         Registration of Canadian Order and Arrears Judgment

         ¶8 Scott first argues the trial court erred in registering the 2009 Canadian support order and entering the $755, 313.73 USD arrearages judgment because the underlying orders were "not final and are subject to variance." He maintains that the arrears amount "can and should be varied at a later date, " relying on a provision of the Canadian Divorce Act that allows for retroactive variance of support orders. See Divorce Act, R.S.C. 1985, c. 3, s. 17(1)(a) (2nd Supp.) (Can.). Suzanne counters that the possibility of a future modification "does not render the Arizona [j]udgment non-final, " and argues that Scott's challenge to the Arizona judgment "is not ripe for review" until such time as the registered order is modified. Scott acknowledges he has thus far been unsuccessful in his attempts to modify the 2009 Canadian support order.

         ¶9 In 1996, Arizona enacted the Uniform Interstate Family Support Act (UIFSA), authorizing Arizona trial courts to register and enforce support orders issued in foreign jurisdictions. [9] See A.R.S. §§ 25-1201 to 25-1303; see also H. Summary of S.B. 1332, 46th Leg., 2d Reg. Sess. (Ariz. Apr. 28, 2004). Section 25-1304 of the Act, a choice-of-law provision, dictates that the law of the issuing foreign jurisdiction governs the nature, extent, and amount of payments, as well as the computation and payment of arrearages.

         ¶10 Section 17(a) of the Canadian Divorce Act allows a "court of competent jurisdiction" to "make an order varying, rescinding or suspending, prospectively or retroactively" either a support or custody order. R.S.C. 1985, c. 3, s. 17(1)(a). Thus, Scott is correct that his support order and arrearages determination may be retroactively modified or rescinded. As previously noted, the Canadian order registered in Arizona contains a handwritten provision that states the order is "subject to . . . variation upon [Scott] purging all existing contempts, providing all answers to his undertakings, providing complete income disclosure, and re-opening [the] pleadings."

         ¶11 That a support order is retroactively modifiable, however, is not a valid defense to the enforcement of the order. See § 25-1307 (enumerating defenses); see also Restatement (Third) of Foreign Relations Law of the United States § 486 cmt. b (1987) (rejecting the view that support orders are not final, and therefore unenforceable, because they are commonly modified for changes in circumstances). Arizona's UIFSA allows a "foreign support order" to be "registered in this state for enforcement, " § 25-1301, and defines "[s]upport order" as a "judgment, decree, order, decision, or directive, whether temporary, final or subject to modification, issued in a . . . foreign country for the benefit of a child, " § 25-1202(29). Finding no statutory requirement that a support order must be "final" or unmodifiable as Scott interprets the term in order to be enforceable, we ...


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