Greenham v. Hope ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
MELANIE BLYTHE GREENHAM,
Petitioner/Appellant,
v.
JASON DOUGLAS HOPE,
Respondent/Appellee.
No. 1 CA-CV 17-0263 FC
FILED 3-20-2018
Appeal from the Superior Court in Maricopa County
No. FC2011-093940
The Honorable Theodore Campagnolo, Judge
AFFIRMED
APPEARANCES
Melanie Greenham, Mexico
Petitioner/Appellant
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.
GREENHAM v. HOPE
Decision of the Court
J O H N S E N, Judge:
¶1 Melanie Blythe Greenham ("Mother") appeals the superior
court's denial of her motion to vacate part of a child-support order. We
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Jason Douglas Hope ("Father") married in 1990
and over the course of their marriage had three children. They divorced in
South Carolina in 2011; the dissolution decree incorporated a settlement
agreement. At the time, Mother lived in Arizona and Father, New York.
The settlement agreement stated that Mother would be the primary
residential parent and Father would pay child support.
¶3 Mother subsequently remarried and moved to Mexico with
the children and her new husband. In 2011, Father filed the decree in
Maricopa County Superior Court and sought custody of the children.
Father was awarded sole custody, and in 2012 he petitioned the Arizona
court to modify his child support. The court allowed Father to serve his
petition on Mother by emails sent to her email address and the email
address of her new husband. The court then set an evidentiary hearing,
which it later continued, over Mother's objection, to November 5, 2012.
Mother moved for leave to appear at the hearing by telephone,
acknowledging in her motion that the court would consider the parties'
child support obligations at that hearing. The record does not disclose
whether the court ruled on Mother's motion, but she failed to attend the
hearing, without explanation. After the hearing, the court adopted Father's
child support proposal, which eliminated Father's responsibility to pay
child support, required Mother to pay Father child support of $124.43 per
month beginning May 1, 2012, and required Mother to pay back child
support of $204.00 per month for the months between November 2011 and
April 2012.
¶4 On appeal, we held it was unclear "whether South Carolina
relinquished its continuing, exclusive jurisdiction" under the Uniform
Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), Arizona
Revised Statutes ("A.R.S.") sections 25-1001 to -1067 (2018).1 See Hope v.
Hope, 1 CA-CV 13-0112, 2014 WL 860797, at *4, ¶ 23 (App. Mar. 4, 2014)
("2014 Decision"). We therefore instructed the superior court to vacate the
1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
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GREENHAM v. HOPE
Decision of the Court
child support modification in accordance with Glover v. Glover, 231 Ariz. 1,
7, ¶ 22 (App. 2012), and to determine whether the court had subject-matter
jurisdiction under the UCCJEA. 2014 Decision at *6, ¶ 34.
¶5 On remand, Mother and Father stipulated that the South
Carolina child support order was properly registered with the superior
court by July 21, 2014, and thus the Arizona court had gained subject-matter
jurisdiction over child support. On June 9, 2015, and after conferring with
the South Carolina court, see A.R.S. § 25-1033 (2018), the superior court
entered an order finding that it had subject-matter jurisdiction over both
child custody and child support and personal jurisdiction over both Mother
and Father. The court further found that Mother had had notice and an
opportunity to be heard on the matter of child support modification, and
accordingly adopted the child support arrangements Father had presented
in 2012.
¶6 Mother again appealed; we held that the superior court had
subject-matter jurisdiction to enter the child support order pursuant to
A.R.S. § 25-1311(A)(2) (2018) and that Mother had waived any objection to
personal jurisdiction by appearing in the action. See Hope v. Greenham, 1
CA-CV 15-0548 FC and -1791 FC, 2016 WL 3773544, at *4, ¶¶ 24-27 (App.
Jul. 12, 2016) ("2016 Decision").
¶7 On January 25, 2017, Mother moved the superior court to
vacate its June 9, 2015 ruling, arguing the superior court lacked subject-
matter jurisdiction to modify child support because Father had not properly
served her with his April 19, 2012 petition to modify child support. The
superior court denied the motion, and Mother timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and A.R.S. §§ 12-120.21(A)(1) (2018) and -2101(A)(2) (2018). See In re
Marriage of Dougall, 234 Ariz. 2, 5-6, ¶ 9 (App. 2013) (denial of a motion
made pursuant to Arizona Rule of Family Law Procedure 85(C) is
appealable under § 12-2101(A)(2)). Father filed no answering brief.
Although we may deem his failure to constitute a confession of reversible
error, in our discretion, we will not do so but will consider the merits of
Mother's appeal. See Bugh v. Bugh, 125 Ariz. 190, 191 (App. 1980).
DISCUSSION
¶8 Mother argues the superior court did not have jurisdiction to
modify the child support order. Specifically, Mother claims Father failed to
properly serve her with his April 19, 2012 petition to modify child support,
which she contends divested the superior court of jurisdiction and rendered
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GREENHAM v. HOPE
Decision of the Court
its subsequent ruling void. She further argues she was deprived of due
process because she was not given proper notice that the court was going
to consider child support modifications at the hearing on November 5, 2012.
We review de novo the superior court's denial of a motion under Rule
85(C)(1)(d) to vacate a void judgment. See Ezell v. Quon, 224 Ariz. 532, 536,
¶ 15 (App. 2010) (de novo review of denial of motion to vacate void
judgment under Arizona Rule of Civil Procedure 60(c)(4)); Ariz. R. Fam. L.
Proc. 85 cmt. (Rule 85 is analog of Ariz. R. Civ. Proc. Rule 60).
¶9 Mother's argument that she was not properly served with the
child-support petition amounts, at most, to a challenge to personal
jurisdiction, not subject-matter jurisdiction. See, e.g., N. Propane Gas Co. v.
Kipps, 127 Ariz. 522, 525 (1980) ("The due process clause of the United States
Constitution . . . limits the power of a state to achieve personal jurisdiction
over a defendant.") (citing Kulko v. Super. Ct., 436 U.S. 84 (1978)). But
Mother waived any challenge to personal jurisdiction by repeatedly
appearing in court and making court filings in the child-support
proceeding. See Shah v. Vakharwala, 1 CA-CV 17-0129 FC, ___ Ariz. ___, 2018
WL 358214 at *2, ¶ 8 (App. Jan. 11, 2018). Indeed, we already have held that
"Mother has waived any challenge to personal jurisdiction because she
appeared in the matter and litigated it on the merits." 2014 Decision at *6,
¶ 30.
¶10 In the event that Mother means to challenge the subject-
matter jurisdiction of the superior court, we held in the 2016 Decision at *4,
¶ 26, that the Maricopa County Superior Court properly acquired subject-
matter jurisdiction when Father properly registered the South Carolina
support order in July 2013 or July 2014. Accordingly, and because "the
consent decree clearly designates Arizona as the minor children's home
state and the state in which all future actions will be adjudicated," we held
the superior court had subject-matter jurisdiction to modify the child
support order. Id. at *4, ¶¶ 24-27.
¶11 Finally, Mother contends that when the superior court ruled
in June 2015, it failed to take into account the changes in Mother's
circumstances since 2012. If Mother believes that she has had a substantial
and continuing change in circumstances, she may ask the superior court to
modify the order. See A.R.S. §§ 25-327(A) (2018), -503(E) (2018).
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GREENHAM v. HOPE
Decision of the Court
CONCLUSION
¶12 For the foregoing reasons, we affirm the superior court's
denial of Mother's motion.
AMY M. WOOD • Clerk of the Court
FILED: AA
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