Opinion
No. 2 CA-CV 2018-0005
08-01-2018
CONNIE SUE HEATH, Plaintiff/Appellee, v. JOHN ELLIOTT MAYER, Defendant/Appellant.
COUNSEL Rusing Lopez & Lizardi, P.L.L.C., Tucson By Jonathan Saffer Counsel for Plaintiff/Appellee John Elliott Mayer Jr., Tucson In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. D20163246
The Honorable Lee Ann Roads, Judge Pro Tempore
AFFIRMED
COUNSEL Rusing Lopez & Lizardi, P.L.L.C., Tucson
By Jonathan Saffer
Counsel for Plaintiff/Appellee John Elliott Mayer Jr., Tucson
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 John Mayer appeals from the trial court's order affirming a writ of execution obtained by his former wife, Connie Heath, to enforce a domesticated divorce decree originally issued in Michigan. He argues the court erred because the Michigan divorce decree is "void." He also contends the court lacked jurisdiction to enter the order. Because we find no error, we affirm.
Factual and Procedural Background
¶2 The following facts are not in dispute. In September 2016, a Michigan trial court entered a "Judgment of Divorce" dissolving the parties' marriage, dividing property and debts, and awarding Heath monetary damages against Mayer. That October, Heath filed a notice to domesticate the judgment in Arizona to enforce it against Mayer's assets and property in this state. Mayer did not respond or object during the twenty-day grace period, see A.R.S. § 12-1704(C), and Heath subsequently filed an application for a writ of general execution. The clerk of the court issued the writ, but it was returned unsatisfied after Mayer refused to accept service. Several months later, Heath obtained another writ of general execution. Although that writ was served, it was returned unsatisfied because Mayer refused to allow officers onto his property to levy the execution.
¶3 Heath then sought a third writ of general execution as well as a writ of attachment. Mayer filed an objection. After a hearing on the matter, the trial court affirmed the writ of execution. Mayer filed a notice of appeal from that order. Because the court's order was effectively the denial of a motion to quash the writ, we have jurisdiction pursuant to A.R.S. § 12-2101(A)(2). See McKinney v. Aldrich, 123 Ariz. 488, 490 (App. 1979) (denial of motion to quash writ of execution appealable as special order after final judgment).
Heath also filed a petition to enforce "the payment terms and spousal maintenance provisions of the Judgment of Divorce" just before the second writ of execution had been issued. Proceedings related to that petition appear to be ongoing. Appeals pursuant to § 12-2101(A)(2) need not be certified pursuant Rule 78(B), Ariz. R. Fam. Law P., and thus those ongoing proceedings do not affect our jurisdiction. See Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, ¶ 15 & n.4 (App. 2016).
Heath contends this court could have jurisdiction under § 12-2101(A)(4) as either an order "affecting a substantial right made in a special proceeding" or one made on "a summary application in an action after judgment." See MCA Fin. Grp., Ltd. v. Enter. Bank & Trust, 236 Ariz. 490, ¶ 11 (App. 2014) (§ 12-2101(A)(4) "pertains to two separate types of final orders"). She argues, however, that the order is not final because the execution proceedings have yet to occur, and therefore this court lacks jurisdiction. First, this is not a "special proceeding" because it is not independent of the underlying action. See MCA Fin. Grp., 236 Ariz. 490, ¶ 10; see also Proceeding, Black's Law Dictionary (10th ed. 2014) ("special proceeding" one "that can be commenced independently of a pending action and from which a final order may be appealed immediately"). Additionally, an order on a motion to quash a writ of execution relates to the enforcement of a final judgment and raises issues that are "different from those that would arise from an appeal from the underlying judgment." Arvizu v. Fernandez, 183 Ariz. 224, 226-27 (App. 1995). It therefore properly falls under § 12-2101(A)(2) and does not need to be a "final" order. See id.; see also Brumett, 240 Ariz. 420, ¶ 15.
Discussion
¶4 In challenging the trial court's order affirming the writ of execution, Mayer contends the court "erred in assuming a valid Michigan Circuit Court judgment[,] which in fact is void." This is essentially a challenge to the underlying Michigan judgment. However, Mayer was obligated to raise any objection to the validity of the Michigan judgment and the applicability of the Full Faith and Credit Clause of the United States Constitution during the domestication proceedings. Mayer's objection was not raised until ten months later when he challenged Heath's third application for a writ of execution. See § 12-1704(C) (execution on foreign judgment stayed for twenty days after judgment creditor "mails the notice of filing of the foreign judgment and files proof of mailing with the clerk"). Accordingly, challenging the domestication of the judgment in his objection to the writ was improper. See Davis v. Davis, 558 So. 2d 814, 816-19 (Miss. 1990) (judgment debtor precluded from challenging domestication of foreign judgment where response filed outside of twenty-day limit set forth in Mississippi's Uniform Enforcement of Foreign Judgments provision, which is substantially similar to § 12-1704(C)); Schwartz v. Hynum, 933 So. 2d 1039, ¶ 10 (Miss. Ct. App. 2006) (same); cf. Cristall v. Cristall, 225 Ariz. 591, n.4 (App. 2010) (noting, in dicta, § 12-1704(C) appears to require judgment debtor to take affirmative steps "within twenty days in order to not only prevent enforcement of the judgment, but also challenge domestication of the foreign judgment" based on Davis).
Mayer's opening brief is difficult to comprehend, but, to the extent we understand his arguments, we address them. --------
¶5 And even if Mayer's objections were not untimely, and he could wait to challenge the Michigan judgment in his objection to the writ of execution, the Full Faith and Credit Clause requires that a final judgment entered in a sister state must be respected by the courts of this state absent a showing of fraud, lack of due process, or lack of jurisdiction in the rendering state. See U.S. Const. art. IV, § 1; see also A.R.S. § 12-1702; Phares v. Nutter, 125 Ariz. 291, 293 (1980). Consequently, Mayer's attack on the merits or propriety of a foreign judgment is precluded under the doctrine of res judicata. See Fremont Indem. Co. v. Indus. Comm'n, 144 Ariz. 339, 342 (1985) (Full Faith and Credit Clause "nationalize[d] the doctrine of res judicata" by requiring states to "recognize a sister state's final judgments as binding and conclusive"); Lofts v. Superior Court, 140 Ariz. 407, 410 (1984) (Full Faith and Credit Clause requires "judgment validly rendered in one state's court be accorded the same validity and effect in every other court in the country as it had in the state rendering it").
¶6 Mayer contends that he "did not consent to a divorce in Michigan," and therefore the trial court "had no lawful authority to impair [his] marriage contract in the first place." This is essentially an argument of legal error, not one of jurisdiction, and it is therefore precluded. See Estes v. Superior Court, 137 Ariz. 515, 517 (1983) (explaining jurisdiction is power to act, while legal error is claim the court acted improperly); see also Collins v. Superior Court, 48 Ariz. 381, 393 (1936) (distinguishing "voidable" judgment that cannot be challenged by collateral attack from judgment that is "void" for lack of jurisdiction).
¶7 To the extent Mayer is contending, as he appears to have done below, that the Michigan court lacked jurisdiction and that the judgment was obtained through extrinsic fraud, he has waived these issues for review by failing to develop his argument in a way that would enable appellate review. See Ariz. R. Civ. App. P. 13(a)(6), (7)(A) (opening brief must contain "issues presented for review" and citations to record and pertinent legal authority); see also Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007) (failure to develop and support argument waives issue on appeal). Furthermore, he has not provided this court with a transcript of the hearing in which the trial court ruled on his objections to the writ of execution. See Ariz. R. Civ. App. P. 11(c); see also Baker v. Baker, 183 Ariz. 70, 73 (App. 1995) (party responsible for ensuring complete trial court record on appeal, including relevant transcripts). Absent a transcript, we must assume that the court did not err in rejecting these arguments. See Baker, 183 Ariz. at 73.
¶8 Mayer additionally challenges the trial court's jurisdiction over these proceedings. He maintains the court "wrongly assumed [it] had jurisdiction over [him] but failed to prove lawful jurisdiction." Mayer claims "the Pima County court system and office of Pima County Sheriff are deeply involved in corruption and an extortion racket of the people of Pima County and the manufacture of private law by them . . . in a conspiracy to deprive Americans of their inalienable rights." Throughout his opening brief, Mayer also makes several claims that, it appears, relate to his jurisdictional argument, including that Pima County "did not create the land" which is the subject of the writ; that he did not "consent" to the proceedings; that, upon filing a revocation of election with the Internal Revenue Service, he became a "legal 'non-taxpayer', hence, being outside of the jurisdiction" of the court system; and that he is not a United States citizen but instead a sovereign "American National."
¶9 We wholly reject Mayer's claims that the trial court lacked jurisdiction. Outside of his conclusory statements, he has not provided any relevant legal support for his position, has not cited to the record, and has not drafted an argument that would permit appellate review. See Ariz. R. Civ. App. P. 13(a)(6), (7)(A); see also Polanco, 214 Ariz. 489, n.2. Moreover, although a minute entry from another hearing states that Mayer made an "oral motion to dismiss for lack of jurisdiction," he has not provided a transcript of that hearing. See Ariz. R. Civ. App. P. 11(c); see also Baker, 183 Ariz. at 73. We therefore cannot determine the scope of Mayer's argument below—and thus whether it was preserved for review—and we presume the transcript would support the court's ruling. See In re Marriage of Johnson & Gravino, 231 Ariz. 228, ¶ 25 (App. 2012) (issues not raised below waived on appeal); see also Baker, 183 Ariz. at 73.
Disposition
¶10 For the foregoing reasons, we affirm the trial court's order.