Rewers v. Pope

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Marriage of:
EDNA MAE REWERS, Petitioner/Appellee,

v.

DUSAN PAUL POPE, Respondent/Appellant.

No. 1 CA-CV 13-0007
FILED 03/13/2014

Appeal from the Superior Court in Maricopa County
No. FC2008-053605
The Honorable John R. Doody, Commissioner

AFFIRMED

COUNSEL

Hammerman & Hultgren, P.C., Phoenix
By Jon R. Hultgren, Allan R. Draper
Counsel for Petitioner/Appellee

C. Robert Collins, Phoenix
By C. Robert Collins
Counsel for Defendant/Appellant

REWERS v. POPE
Decision of the Court

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Chief Judge Diane M. Johnsen
joined.

H O W E, Judge:

¶1 Pope appeals from the denial of his motion to dismiss a
foreign judgment against him for child support arrearages. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Pope and Rewers were married and lived with their
daughter in Illinois until 1980, when they moved to California. They
divorced in September 1984, and the Orange County, California, Superior
Court entered a dissolution decree. Primary physical custody of the child
was awarded to the child’s mother, Rewers, and the child’s father, Pope,
was ordered to pay child support.

¶3 Rewers and her daughter moved back to Illinois, and in
September 1993, Rewers petitioned to domesticate the California decree in
the Circuit Court of Cook County, Illinois, and petitioned for an order to
show cause why Pope had not paid child support. An Illinois attorney
filed an appearance on behalf of Pope and moved to quash service of
Rewers’ petitions claiming that Pope was not subject to personal
jurisdiction in Cook County. The court found it had jurisdiction over
Pope, however. Litigation continued between the parties until May 1995,
when the parties entered a settlement agreement stating that Pope must
pay Rewers for child support arrearages from January 1, 1987, to June 1,
1995. It also provided that Pope must pay Rewers monthly support for a
year and a portion of the child’s future expenses, including college,
medical, and dental expenses. The court entered this order.

¶4 Pope retired to Arizona in 2007, and in November 2008,
Rewers filed the Illinois judgment in Arizona pursuant to the Uniform
Enforcement of Foreign Judgment Act. A.R.S. §§ 12-1701 to -1708. For
several years that followed, the record reveals no action taken regarding
the matter.

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REWERS v. POPE
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¶5 In May 2012, Rewers filed a Petition in Support of
Supplemental Proceedings, requesting that the court require Pope to
appear and answer questions concerning his assets pursuant to A.R.S.
§§ 12–1631 and -1632. Pope responded with a “Motion and Memorandum
in Support of Motion to Dismiss with Prejudice,” stating that he had no
knowledge of the Illinois judgment and that it was fraudulent. Pope
further stated that he had paid all child support owed under the
California decree but could not now produce proof of his previous
payments. He argued that the Illinois court lacked personal jurisdiction,
the doctrines of equitable estoppel and laches applied to prevent Rewers
from pursuing the judgment, and the statute of limitations barred the
action. He attached to the motion a signed affidavit supporting his factual
allegations. Rewers opposed the motion.

¶6 The court denied Pope’s motion to dismiss, and rejected
Pope’s challenge to the validity of the Illinois judgment, noting that the
Illinois court records demonstrated that Pope had hired an attorney to
represent him in the case and contest jurisdiction, and stated that “it
appears that Mr. Pope swore a false affidavit.” The court found that the
Illinois judgment was validly entered and the statute of limitation had not
run. It also noted that Pope’s false affidavit “adds an element of ‘unclean
hands’ which further bars him from invoking the doctrine of laches.”

¶7 On October 2, 2012, Pope moved to “Continue Supplemental
Hearing & To Determine Amount Due,” asking the court to continue the
hearing so that “the Court [can] set a hearing and determine how much
the Court believes he owes and to allow him an opportunity to explain
what the Court has found to be false in his affidavit.” The court heard
brief oral argument on Pope’s motion and denied it. 1 The judgment debtor
exam of Pope began with further examination to be held later in the
month.

¶8 The trial court consequently issued a judgment denying
Pope’s motion to dismiss. In the minute entry accompanying the
judgment, the court noted that Pope had argued that the court erred in
denying the motion to dismiss without holding a hearing on whether his
affidavit was willfully false or whether he had a lapse of memory. The
court stated that it denied the motion to dismiss because it was wrong,
regardless of its falsity. Pope timely appeals the judgment.

1 Pope did not provide this Court with a record of the proceedings.

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DISCUSSION

¶9 Pope argues that (1) the California and Arizona statute of
limitations barred the enforcement of the judgment, (2) the court should
have held a hearing allowing Pope to explain why his affidavit was false
and to determine how much child support was owed, and (3) the doctrine
of laches barred the enforcement of the judgment. 2

I. Statute of Limitations

¶10 Pope asserts that the judgment cannot be enforced because
California law provides that child support payments must be collected
within ten years, and— “assuming without admitting” that child support
payment was due when his daughter turned 18, on March 14, 1996—
Rewers had only until March 13, 2006, to collect arrears. 3 We review de
novo whether the trial court erred in applying the law relating to the
statute of limitations defense. Logerquist v. Danforth, 188 Ariz. 16, 18, 932
P.2d 281, 283 (App. 1996). We reject Pope’s argument because the
California statute of limitation is inapplicable.

¶11 Arizona has adopted the Uniform Interstate Family Support
Act. See A.R.S. § 25-1201. It provides that “[i]n a proceeding for arrears
under a registered support order, the statute of limitation of this state or of
the issuing state, whichever is longer, applies.” A.R.S. § 25-1304(B). The
“issuing state” is defined as “the state in which a tribunal issues a support
order or renders a judgment determining parentage.” A.R.S. § 25-1202(9).
“Support order” means “a judgment, decree, order or directive . . . for the
benefit of a child . . . or former spouse, that provides for monetary
support, heath care, arrearages or reimbursement . . . .” A.R.S. § 25-
1202(24). The Illinois judgment is therefore a “support order.” Because

2 For the first time on appeal, Pope argues that the Illinois judgment
is not actually a judgment. He cites decisions identifying elements of a
judgment, but does not state why the Illinois judgment fails to meet those
elements. Regardless, the argument was not raised before the trial court
and is therefore waived on appeal. See In re MH 2008-002659, 224 Ariz. 25,
27 ¶ 9, 226 P.3d 394, 396 (App. 2010).

3 Alternatively, Pope also argues that A.R.S. § 25-403(H) (2004), the
statute in effect in Arizona in 2006, bars this action. This argument was
raised for the first time on appeal, and is therefore waived. See In re MH
2008-002659, 224 Ariz. at 27 ¶ 9, 226 P.3d at 396.

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Rewers domesticated the Illinois judgment, and not the California divorce
decree, Illinois is the issuing state, not California, and the statute of
limitation of Arizona or Illinois could apply.

¶12 Arizona’s relevant statute provides that “[n]otwithstanding
any other law, any judgment for support and for associated costs and
attorney fees is exempt from renewal and is enforceable until paid in full.”
A.R.S. § 25-503(K). The statute also provides that “if the oblige . . . make[s]
efforts to collect a child support debt more than ten years after the
emancipation of the youngest child subject to the order, the obligor may
assert as a defense, and has the burden to prove, that the obligee . . .
unreasonably delayed in attempting to collect the child support debt.”
A.R.S. § 25-503(J).

¶13 In this case, Rewers submitted a settlement agreement from
Illinois regarding child support arrearages. Arrearages are included in the
definition of support, and therefore the settlement is enforceable until
paid in full. Pope’s daughter became emancipated upon her eighteenth
birthday on March 14, 1996. Rewers did not attempt to domesticate the
judgment in Arizona until November 21, 2008; therefore, pursuant to
A.R.S. § 25-503(J), Pope may assert as a defense to any attempt by Rewers
to execute on the judgment that Rewers had unreasonably delayed in
attempting to collect the debt. But this defense does not prevent
domestication of the judgment. Therefore, the court did not err rejecting
the motion to dismiss.

II. Evidentiary Hearing

¶14 Pope also argues that the trial court was required to hold an
evidentiary hearing to allow him to explain the inconsistencies in his
affidavit and to determine how much child support he owed. We review
the trial court’s decision not to hold a hearing for an abuse of discretion.
Pioneer Fed. Sav. Bank v. Driver, 166 Ariz. 585, 589, 804 P.2d 118, 122 (App.
1990). “[A] trial court is not required to hold an evidentiary hearing if ‘the
facts produced in support of the claim or defense have so little probative
value, given the quantum of evidence required, that reasonable people
could not agree with the conclusion advanced by the proponent of the
claim or defense.’” Brake Masters Sys., Inc. v. Gabbay, 206 Ariz. 360, 365
¶ 14, 78 P.3d 1081, 1086 (App. 2003) (quoting Ruelas v. Staff Builders Pers.
Serv., Inc., 199 Ariz. 344, 347 ¶ 7, 18 P.3d 138, 141 (App. 2001)).

¶15 We agree with the trial court that a hearing was not
necessary for Pope to explain any inconsistencies in his affidavit. To

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enforce a judgment from another state, a party may file a properly
authenticated copy of that judgment in the superior court pursuant to
A.R.S. § 12–1702. Rewers filed a properly authenticated copy of the Illinois
judgment and the trial court accepted it. Whether Pope forgot about the
Illinois proceedings or lied to the court concerning those proceedings had
no relevance to whether the judgment should have been filed and
accepted. Moreover, whatever relevance an explanation may have had,
Pope had the opportunity through counsel to explain the inconsistencies
to the trial court at the hearing on the motion. Because Pope did not
include a transcript of the hearing, we presume that the record supports
the trial court’s ruling. Kohler v. Kohler, 211 Ariz. 106, 108 ¶ 8 n.1, 118 P.3d
621, 623 n.1 (App. 2005).

¶16 We also find that the trial court did not abuse its discretion
in rejecting Pope’s request for an evidentiary hearing on the amount of
child support Pope owed. A judgment debtor is certainly entitled to argue
that he has already satisfied a domesticated judgment. A.R.S. § 12–1702
(“A judgment so filed has the same effect and is subject to the same
procedures, defenses and proceedings for reopening, vacating, or staying
as a judgment of a superior court of this state . . . .”); Jones v. Roach, 118
Ariz. 146, 150, 575 P.2d 345, 349 (App. 1977) (prior payment is proper
defense). Although Pope may defend an action to collect on the judgment
by claiming that he has already satisfied part or all of the arrearages, at the
time of the hearing, Rewers had not yet instituted any collection
proceedings. Thus, any question about the amount Pope still owed was
premature, and the trial court was well within its discretion to decline to
hold an evidentiary hearing.

III. Laches

¶17 Pope argues that the trial court erred in rejecting his defense
of laches because Rewers’ delay in enforcing the Illinois judgment was
unreasonable and the delay caused him to lose his records of child
support payment. This Court reviews a trial court’s decision on laches for
an abuse of discretion. McLaughlin v. Bennett, 225 Ariz. 351, 353 ¶ 5, 238
P.3d 619, 621 (2010). The equitable doctrine of laches applies when delay is
unreasonable and results in prejudice to the opposing party. League of
Ariz. Cities and Towns v. Martin, 219 Ariz. 556, 558 ¶ 6, 201 P.3d 517, 519
(2009). Equity does not encourage the use of laches, and the doctrine “may
not be invoked to defeat justice but only to prevent injustice.” Beltran v.
Razo, 163 Ariz. 505, 507, 788 P.2d 1256, 1258 (App. 1990). In child support
cases, the doctrine requires the obligor to establish laches by clear and

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compelling evidence. Schnepp v. State ex rel. Dept. of Econ. Sec., 183 Ariz. 24,
30, 899 P.2d 185, 191 (App. 1995).

¶18 The trial court did not abuse its discretion in rejecting Pope’s
arguments. To the extent that Pope argued that laches precluded the mere
domestication of the Illinois judgment, he is wrong. Domestication of a
foreign judgment requires only the filing of a properly authenticated
foreign judgment in the superior court. A.R.S. § 12–1702. Laches is
inapplicable. To the extent that Pope argued that laches should prevent
the collection of the arrearages owed under the Illinois judgment, the issue
was premature because although Rewers had called for a debtor’s
examination to determine Pope’s assets, Rewers had yet to institute
collection proceedings against Pope.

ATTORNEYS’ FEES

¶19 Rewers requests a fee award under A.R.S. § 12-341.01, which
provides for a fee award in any contested action arising out of contract.
Because this action arose out of Pope’s alleged failure to abide by the
settlement agreement, the action arose out of contract. As the successful
party on appeal, Rewers is entitled to an award of reasonable attorneys’
fees and costs upon her compliance with Arizona Rule of Civil Appellate
Procedure 21 and pursuant to A.R.S. § 12-342.

CONCLUSION

¶20 We affirm the trial court’s domestication of the Illinois
judgment.

:gsh

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