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In re Marriage of Peck

Court of Appeals of Arizona, Second Division

April 20, 2017

In re the Marriage of John William Peck, Petitioner/Appellant, and Sabine Sybille Hansen Peck, Respondent/Appellee.

         Appeal from the Superior Court in Pima County No. D20160247 The Honorable James E. Marner, Judge

         AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

          Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson By Peter Economidis and Corey B. Larson Counsel for Petitioner/Appellant.

          Garnice Law, PLLC, Scottsdale By Victor A. Garnice Counsel for Respondent/Appellee.

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

          OPINION

          ESPINOSA, Judge.

         ¶1 John Peck appeals the trial court's judgment dismissing his petition for dissolution on grounds of lack of personal jurisdiction over his wife, Sabine Peck. He also contends that, even if jurisdiction was lacking, he was nonetheless "entitled to have an Arizona court terminate his marriage." For the following reasons, we affirm the conclusion that the court did not have jurisdiction over Sabine, [1] but we remand for further proceedings regarding the dissolution of the marriage.

         Factual and Procedural Background

         ¶2 In reviewing the trial court's dismissal for lack of personal jurisdiction, we view the facts in the light most favorable to John. See In re Consol. Zicam Prod. Liab. Cases, 212 Ariz. 85, ¶ 7, 127 P.3d 903, 907 (App. 2006).[2] The salient facts in this case are essentially undisputed. John and Sabine were married in Switzerland in 2001. Sabine is a German citizen who resides and is employed in Spain, and John resides in Tucson. Throughout their marriage, the couple have lived separately and apart in Switzerland, England, and Spain. In June 2014, John moved to Tucson while Sabine remained in Spain. Sabine has never resided in Arizona, but she visited John in Tucson on several occasions throughout 2014 and 2015 "in an effort to reconcile their marriage" and co-signed the lease on his Tucson apartment.

         ¶3 In January 2016, John filed a petition for dissolution of marriage without minor children in the Pima County Superior Court, alleging the trial court had personal jurisdiction over the parties because he was "a resident of and domiciled in Pima County, " "Arizona [wa]s the last matrimonial domicile of the parties[, ] and [Sabine] has caused numerous events to occur in Arizona including execution of a Contract for Home Rental." Sabine was served with the petition in Spain pursuant to Ariz. R. Fam. Law P. 42(A) and in compliance with the Hague Convention.

         ¶4 Sabine filed a motion to dismiss for lack of personal jurisdiction, arguing she had "not established domicile in Arizona" and lacked sufficient minimum contacts with Arizona to permit the exercise of in personam jurisdiction over her. John responded that personal jurisdiction over Sabine was appropriate because her "conduct . . . caus[ed] [his] move to Arizona and her other conduct in Arizona, " including making statements that she intended to move to Arizona and co-signing the lease on John's apartment, satisfied jurisdictional requirements.

         ¶5 In a signed written ruling, the trial court determined that Sabine did not have sufficient minimum contacts with Arizona to subject her to divorce proceedings in the state and dismissed the petition for lack of personal jurisdiction. John filed a motion for reconsideration, arguing he had established a prima facie case of jurisdiction over Sabine, and she had "not denied" the allegations in his opposition. From this conclusion, he asserted the court was required to accept his claims as true and exercise jurisdiction over Sabine. The court denied John's motion, he timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21 (A)(1) and 12-2101(A)(3). See Garza v. Swift Transp. Co., 222 Ariz. 281, ¶¶ 15-16, 213 P.3d 1008, 1011 (2009) (section 12-2101 (A)(3) provides jurisdiction when non-final order precludes party from obtaining ultimate judgment).[3]

         Personal Jurisdiction

         ¶6 In the context of proceedings for the dissolution of marriage, A.R.S. § 25-312 authorizes the superior court to make provision for child custody, child support, the maintenance of either spouse, and the disposition of property, "[t]o the extent it has jurisdiction to do so." It is against this backdrop that we consider whether the trial court had personal jurisdiction over Sabine. John argues the court erred in determining it lacked jurisdiction over Sabine because her purposeful acts "directed at Arizona" and her "breach of [their] contract" to relocate to Tucson provided sufficient contacts for the forum to assert its jurisdiction over her. "When a defendant challenges the existence of personal jurisdiction, the plaintiff must come forward with facts establishing a prima facie showing ...


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