Opinion
2 CA-CV 2022-0044-FC
03-20-2023
In re the Marriage of Kimberly Ann Kibler, Appellee, and Thomas Allen Kibler, Appellant.
The Huff Law Firm PLLC, Tucson By Laura J. Huff and Daniel R. Huff Counsel for Appellee. Law Offices of Joseph H. Watson, Tucson By Joseph H. Watson Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20191378 The Honorable Dean C. Christoffel, Judge Pro Tempore The Honorable Randi L. Burnett, Judge Pro Tempore
The Huff Law Firm PLLC, Tucson By Laura J. Huff and Daniel R. Huff Counsel for Appellee.
Law Offices of Joseph H. Watson, Tucson By Joseph H. Watson Counsel for Appellant.
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE.
¶1 Thomas Kibler appeals from various orders relating to spousal maintenance, arrearages, and other distribution of property rulings entered following the dissolution of his marriage to Kimberly Kibler. In particular, he contests the trial court's enforcement of a spousal maintenance order entered in North Carolina in 2008 and registered in Arizona in December 2020. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 The factual and procedural background in this matter is lengthy and complex. The trial court set forth a detailed account of this matter in its order filed July 29, 2021. We reiterate here only the facts necessary to contextualize our decision. See generally In re Marriage of Gibbs, 227 Ariz. 403, ¶ 18 (App. 2011) (appellate court defers to trial court's factual findings, affirming them so long as not clearly erroneous, even in "presence of contrary facts").
¶3 In May 2006, a North Carolina trial court entered a divorce judgment, followed in April 2008 by a consent judgment and order regarding equitable distribution and alimony (the "support decree"). In October 2010, that court entered an order for contempt, sanctions, and attorney fees (the "contempt order") based on Thomas's failure to comply with orders regarding his handling of real property and funds, his failure to pay court-ordered alimony, and his efforts, together with his girlfriend, to obstruct the fulfillment of those orders. The court specifically found that Thomas's "reprehensible conduct" warranted imposition of sanctions and ordered that both Thomas and his girlfriend be incarcerated until they purged the contempt.
¶4 In May 2019, Kimberly filed a request to register in Arizona the North Carolina court's May 2006 divorce judgment and October 2010 contempt order. Later that month, she filed a petition for civil contempt, seeking to enforce the terms of the contempt order. The petition requested $367,250 for past-due spousal maintenance, plus interest, as well as over $83,000 in amounts still owed on the contempt order.
¶5 Kimberly served the petition on Thomas in August 2019. The trial court held a trial in February 2020. After receiving testimony and evidence from both parties, the court ordered Thomas to pay $325,000 into the trust account held by Kimberly's attorney. The minute entry for that order does not specify which of the past-due judgments the $325,000 was intended to satisfy, and it leaves open the question of interest and arrearages on the spousal maintenance order.
¶6 In September 2020, Kimberly filed a petition to enforce the North Carolina court's April 2008 support decree. This petition requested $625,319 in unpaid fees and costs from prior judgments and spousal maintenance arrears, plus attorney fees incurred in her efforts to prosecute and enforce those judgments. Thomas moved to dismiss the petition, arguing, inter alia, that Kimberly had failed to properly register an authenticated or certified copy of the support decree in Arizona and that North Carolina's ten-year statute of limitations had expired on Kimberly's claims. He also filed a petition to modify spousal maintenance, claiming his social security disability income limited his ability to pay spousal support.
¶7 The trial court ordered Kimberly to register the April 2008 support decree in Arizona to avoid dismissal of her petition to enforce it. She did so in December 2020. In May 2021, after a hearing, the court reduced Thomas's spousal maintenance obligation but denied his motion to dismiss. Thomas subsequently moved for amended or additional findings and for an amended judgment.
¶8 In July 2021, after the case was reassigned to a new judge due to the prior judge's retirement, a new division of the trial court modified the May 2021 order and resolved a variety of requests for reconsideration, amendment, and new findings. As relevant here, it noted that the February 2020 order requiring Thomas to pay $325,000 to Kimberly had failed to specify which judgments had been satisfied by that payment. It therefore allocated that payment to various purge conditions listed in the contempt order, totaling $235,319.90. The court further concluded Thomas was entitled to an $89,680.10 credit to be "applied first to any interest that may have been owed on the obligations" satisfied by the $325,000 payment, and then to the spousal maintenance arrearage.
¶9 In its July 2021 order, the trial court also found that Arizona law-specifically, A.R.S. § 25-553-applies in determining the relevant statute of limitations with regard to the April 2008 consent judgment. The trial court determined that because "none of the termination events listed in the [April 2008 support d]ecree have occurred," Arizona's statute of limitations period had not yet begun to run on Kimberly's request for support arrearages. Thus, it concluded Kimberly was entitled to seek judgment on the full unpaid spousal support balance, and it denied Thomas's motion to dismiss. It scheduled an evidentiary hearing to allow it to make the necessary findings for the calculation of those arrearages and any interest on past-due spousal maintenance payments at that time.
¶10 Finally, the trial court vacated the portion of the May 2021 order reducing Thomas's monthly spousal maintenance obligation. It concluded that Thomas's motion to alter or amend allowed it to continue to rule on that matter. And, it found that the previous trial court had failed to properly consider the factors set forth in A.R.S. § 25-319(B) to determine the appropriate spousal maintenance award. The court thus ordered the parties to present further testimony and evidence at the forthcoming evidentiary hearing to finalize that matter.
¶11 Before the two-part evidentiary hearing concluded, the trial court granted Thomas's new motion for reconsideration, which challenged the determination that the $325,000 payment could apply to purging the North Carolina contempt order. It also ruled that because Kimberly did not register the April 2008 support decree in Arizona until December 2020, no Arizona court had jurisdiction to enter any judgment to enforce or modify Thomas's spousal obligation before that date. Furthermore, the court determined that Kimberly was statutorily barred by A.R.S. § 12-544(3) from collecting the non-support judgments of the contempt order because she had failed to bring an action to collect those judgments within the statutorily prescribed four years from the entry of the contempt order in October 2010. However, it reiterated its July 2021 determination that § 12544 did not bar Kimberly's claim for spousal maintenance, which qualifies as "support" under A.R.S. § 25-500(9) and was timely under § 25-553(A).
¶12 In January 2022, after the evidentiary hearing, the trial court entered judgment concluding Kimberly could still collect support-related judgments, as no statute of limitations had begun to run on those judgments. The court then made various determinations regarding which past-due payments were satisfied by the $325,000 payment of February 2020. And, it determined that Thomas owed an additional $266,748.90, plus interest, for past-due spousal maintenance.
¶13 The trial court also concluded that it lacked jurisdiction to consider Thomas's petition to modify spousal maintenance, reasoning that Arizona's Uniform Interstate Family Support Act (UIFSA) allowed it to enforce, but not modify, a foreign support decree. It specifically noted that Thomas had "taken an unreasonable position" in the matter; had unreasonably failed to pay spousal maintenance for over eleven years; had failed to act in any way to satisfy the 2008 support decree's requirement that he pay maintenance despite being aware of it; had "never had any intention of paying spousal maintenance" after the contempt proceedings in North Carolina; and had "taken every action possible to try and hide his assets or place them in a name other than his own to limit [Kimberly]'s ability to collect on the spousal maintenance obligation."
A.R.S. §§ 25-1201 to 25-1362.
¶14 After the trial court summarily denied Thomas's request to alter or amend the January 2022 judgment, Thomas filed a notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
Discussion
¶15 Thomas's opening brief challenges the trial court's rulings on a number of grounds. We agree with Kimberly that Thomas's argument regarding the support decree-and indeed regarding any order entered in the trial court-"is unclear in terms of the relief he is seeking from this Court on appeal." But, it appears that he challenges (1) the trial court's determination that no statute of limitations prevented Kimberly from seeking enforcement of the support-related aspects of either the April 2008 support decree or the October 2010 contempt order and (2) the court's authority in January 2022 to modify the May 2021 order reducing his monthly spousal support obligation.
¶16 We review these questions of law de novo, as they involve the interpretation of procedural rules, McEvoy v. Aerotek, Inc., 201 Ariz. 300, ¶ 17 (App. 2001), and of statutes, Gersten v. Gersten, 223 Ariz. 99, ¶ 23 (App. 2009). Upon review of the January 2022 judgment and March 2022 order, as well as the orders leading up to those final rulings, we find no reversible error.
Foreign Judgment Registration and Applicable Statutes of Limitations
¶17 Thomas maintains that the April 2008 North Carolina support decree is subject to enforcement in Arizona only under A.R.S. §§ 12-1701 to 12-1708, the Revised Uniform Enforcement of Foreign Judgments Act (RUEFJA). In particular, Thomas claims that Kimberly registered the foreign judgment "pursuant to" § 12-1702. Under that act, Thomas argues, the foreign judgment is subject to a four-year statute of limitations period under A.R.S. § 12-544(3) and is therefore time-barred.
Thomas also argues, in passing, that the limitation period set forth in A.R.S. § 12-1551 would bar collection on some of the earlier payments he owed under the North Carolina judgments. But Thomas never raised this statute as a ground for barring Kimberly's claims in the trial court. Therefore, the issue is forfeited on appeal and we will not address it further. See Jeff D. v. Dep't of Child Safety, 239 Ariz. 205, ¶ 10 (App. 2016) (failure to raise purported procedural error in trial court generally forfeits appellate review of same).
¶18 It is unclear from the record precisely how Kimberly registered the April 2008 support decree in Arizona. At the outset of this proceeding in May 2019, Kimberly filed an affidavit to register two foreign judgments from North Carolina-the 2006 divorce judgment and the 2010 contempt order-both ostensibly pursuant to A.R.S. § 25-1055. This statute falls under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") and plainly does not apply in this case, which involves no child custody issues. In her related request to register those foreign judgments, Kimberly cited A.R.S. § 25-1039, another subsection of the UCCJEA. In a related document filed that day, Kimberly cited A.R.S. §§ 12-1703(B) and 25-1055 as governing the notice of filing of foreign judgment. She did not file the April 2008 support decree until December 2020. That notice of filing cited no statute.
Section 12-1703 falls under the RUEFJA, which also contains § 12-1702, the statute Thomas claims governs the registration in this matter.
¶19 The first direct reference we have identified to § 12-1702 occurred in Kimberly's request for a judgment of arrearages, filed in May 2021. Earlier that month, in considering whether spousal maintenance was excepted from the limitation period set forth in § 12-544(3), the trial court seemed to accept Thomas's argument that the judgment was filed pursuant to § 12-1702, finding merely that it was "inequitable" to apply any statute of limitations to spousal maintenance judgments in this matter. These aspects of the record support an inference that the North Carolina judgment may have been registered in Arizona under § 12-1702 and might therefore be subject to the various statutes of limitations Thomas urges apply here.
¶20 However, the record also contains some support for a conclusion that the judgment was entered in accordance with Arizona's UIFSA, in particular as set forth by §§ 25-1301 to 25-1303. In fact, in its January 2022 judgment, the trial court expressly found that the April 2008 support decree had been registered "[i]n compliance with the Uniform Interstate Family Support Act," providing it with "jurisdiction to enforce the current spousal maintenance orders," specifically under § 25-1303. It further reasoned that, under §§ 25-1301 to 25-1307, foreign spousal maintenance orders may not be registered for modification purposes. Thus, it concluded the court had lacked the authority in May 2021 to decrease Thomas's monthly support obligation, and it denied any other request to modify the 2008 North Carolina support decree.
The trial court first reached this conclusion in its July 2021 order, which ruled that Kimberly could recover on outstanding arrears because § 25-553, the statute of limitations, had not yet run on that collection. We note that § 25-1302 contains a number of procedural requirements for registering a foreign spousal support order that do not appear to have been precisely followed here, based on the record before us. However, this issue has not been directly raised on appeal and, in any event, it would not alter our conclusion here. Although deficiencies in registration under the UIFSA prevent Arizona courts from exercising subject matter jurisdiction to modify a support order, Glover v. Glover, 231 Ariz. 1, ¶ 1 (App. 2012) (considering child support order), those same deficiencies "do not create a jurisdictional bar to consideration of a petition to enforce" a foreign order, Balazic v. Balazic, 235 Ariz. 588, ¶¶ 1-2 (App. 2014) (same). Therefore, even if the support decree was improperly registered under the UIFSA, we agree with the trial court that is still subject to enforcement in Arizona.
¶21 Although we cannot definitively identify the statutory basis for Kimberly's registration of the foreign support decree, we nonetheless conclude that the decree is not subject to the statute of limitations set forth by § 12-544(3). That statute sets a four-year limitation on actions "[u]pon a judgment or decree of a court rendered without the state" but does "not apply to a judgment for support, as defined in § 25-500." Section 25-500(9), in turn, defines "support" as the "provision of maintenance or subsistence," including "arrearages, interest on arrearages, past support," and "interest on past support." Although Thomas argues, as he repeatedly urged below, that this section applies only to child-related support, we have previously stated that it applies to spousal support as well. Costaras v. Costaras, 253 Ariz. 221, ¶¶ 2, 7-8, 10 (App. 2022) (finding § 12-544 inapplicable to spousal support arrearages portion of foreign judgment). We see no reason to depart from that conclusion here.
¶22 We also reject Thomas's ancillary argument that the second sentence of § 25-500(9) implies that spousal support falls within the definition of "support" only when contained within a child support order. The relevant sentence reads: "In a title IV-D case, support includes spousal maintenance that is included in the same order that directs child support." Id. By its plain language, see SolarCity Corp. v. Ariz. Dep't of Revenue, 243 Ariz. 477, ¶ 8 (2018), that sentence applies only to "title IV-D" cases, which does not characterize this action. See § 25-500(11) ("'Title IV-D' means title IV-D of the social security act.").
¶23 Finally, § 12-544(3) expressly incorporates the definitions set forth in Title 25, which governs Marital and Domestic Relations. The UIFSA, also contained within Title 25, separately defines as a "[s]upport order" any "judgment, decree, order, decision or directive, . . . issued in a state or foreign country for the benefit of a child, a spouse or a former spouse, that provides for monetary support, . . . [or] arrearages," including "related costs and fees, interest, . . . reasonable attorney fees and other relief." A.R.S. § 25-1202(29). It is "our duty to construe statutory provisions in a manner consistent with related provisions." Cristall v. Cristall, 225 Ariz. 591, ¶ 22 (App. 2010). Considering the related family support statutes as well as the relevant case law, we cannot accept Thomas's attempt to narrow what our legislature contemplated when it exempted spousal support orders from the statute of limitation set at § 12-544.
Vacatur of May 2021 Order Reducing Monthly Support Obligation
¶24 Thomas also challenges the trial court's decision in July 2021 to vacate the May 2021 reduction of his monthly spousal support obligation to $1,000 a month. He argues the May 2021 ruling was a special order made after final judgment and therefore (a) it was immediately appealable upon entry but was never appealed, and (b) the time to appeal could not be extended by means of a motion under Rules 82 or 83, Ariz. R. Fam. Law P. Consequently, Thomas argues, the order was final and the court "lacked the authority" to reconsider that ruling in its later orders, as occurred in July 2021 and January 2022. With this argument, Thomas also seeks a recalculation of the arrearages owed on his unpaid spousal support obligation and interest, using a monthly obligation of $1,000 per month rather than $3,250 per month.
¶25 However, we find no error in the trial court's exercise of its authority to vacate the support modification portion of the May 2021 order and its reinstatement of the terms of the April 2008 support decree. At minimum, the May 2021 order left pending Kimberly's request that a judgment be entered on Thomas's spousal maintenance arrearage. See Yee v. Yee, 251 Ariz. 71, ¶ 14 (App. 2021) ("family court must have fully resolved all issues raised in a post-decree motion or petition before an appeal can be taken under A.R.S. § 12-2101(A)(2)"). It therefore remained non-final and subject to modification or amendment until its final disposition, which occurred upon issuance of the January 2022 judgment and March 2022 order. Moreover, Thomas himself first requested such modification pursuant to Rules 82(b) and 83(a).
In August 2022, our supreme court adopted amendments to Rule 78. Ariz. Sup. Ct. Order R-22-0005 (Aug. 29, 2022). The amendments apply to "all cases pending in the superior courts and appellate courts on the filing date of this order," which includes the matter before us. Id.
¶26 Furthermore, a "court may on its own or on motion alter or amend all or some of its rulings" if any of the grounds listed in Rule 83(a)(1) are present. Ariz. R. Fam. Law P. 83(a)(1) (emphasis added). Those grounds include, inter alia, when a court "did not properly consider or weigh all of the admitted evidence," has made an error of law, or entered a decision that "is not supported by the evidence." Id. Section 25-319(B) provides that a court considering modification should weigh relevant factors including the comparative financial resources of the spouses, the ability of the spouse receiving maintenance to independently meet his or her financial needs, and any "destruction, concealment or fraudulent disposition" of community property.
¶27 The July 2021 order listed several reasons the earlier modification was subject to amendment: (1) the record did not indicate that the earlier court had considered all the necessary factors set forth in § 25-319(B) when modifying the amount and duration of spousal maintenance; (2) the earlier court had improperly considered the "size of the substantial arrears due" in deciding to reduce Thomas's obligation; and (3) it is "neither fair nor equitable" to give Thomas "a break on his support obligation due to his long-term failure to follow a court order." See Helland v. Helland, 236 Ariz. 197, ¶ 28 (App. 2014).
¶28 We have reviewed the record supporting the May 2021 modification order, including the transcript of the hearing during which the trial court took testimony from the parties regarding their finances, and we find no abuse of discretion in its determination that at least one Rule 83 ground for alteration or amendment applied. See Boyle v. Boyle, 231 Ariz. 63, ¶ 13 (App. 2012) (appellate court reviews trial court's consideration of § 25-319(B) factors for abuse of discretion). As the later court noted, both parties conceded at the May 2021 hearing that discovery and disclosure on the spousal maintenance issue was incomplete, suggesting the court's decision to modify may have been insufficiently supported by evidence. In particular, Kimberly failed to submit a financial affidavit to support her testimony, which merely estimated her monthly expenses. And, the record is replete with indications that Thomas had, for years, actively concealed income and sought to avoid payment of his support obligations. Therefore, the court was entitled to vacate or to otherwise alter the May 2021 ruling, notwithstanding the Rule 78(c) language in that order.
Costs and Fees on Appeal
¶29 Kimberly requests her costs and attorney fees on appeal, pursuant to A.R.S. §§ 12-349(A)(1), 12-2106, and 25-324. The record indicates that Kimberly has had to resort to litigation on multiple occasions over the course of more than eleven years simply to enforce the terms of the April 2008 support decree. During that time, Thomas has been held in contempt for, inter alia, failure to pay spousal maintenance. And, in the judgment before us on appeal, the trial court found that Thomas "never had any intention of paying spousal maintenance after the contempt proceedings that occurred in North Carolina in 2010" and "has taken every action possible to try and hide his assets or place them in a name other than his own to limit [Kimberly]'s ability to collect on the spousal maintenance obligation." In view of that extensive record, and in light of Thomas's frivolous positions on appeal, we agree with the trial court that Thomas "has taken an unreasonable position in this matter," causing unnecessary delay in the enforcement of the support decree and related contempt order. Therefore, we grant Kimberly's request and award her reasonable attorney fees on appeal, pursuant to § 25-324(B). See Dole v. Blair, 248 Ariz. 629, ¶ 19 (App. 2020). Because she is the prevailing party, she is also entitled to recover her costs on appeal, upon her compliance with Rule 21(b), Ariz. R. Civ. App. P.
Disposition
¶30 For the foregoing reasons, we affirm the trial court's orders.