Gonzales-Alpizar v. Griffith

130 Nev., Advance Opinion Z
IN THE SUPREME COURT OF THE STATE OF NEVADA
GABRIELA GONZALES-ALPIZAR, No. 59387
Appellant/Cross-Respondent,
vs. FILED
EDWIN GRIFFITH,
Respondent/Cross-Appellant. JAN 3 0 2014
TH IE K LINDEMAN
CL
BY itf ie
PUT R
H
Appeal and cross-appeal from a final determ iation
r '
concerning a complaint for divorce. Second Judicial District Court,
Washoe Count y; David A. Hardy , Judge.
Affirmed in part, reversed in part, and remanded.
Richard F. Cornell, Reno,
for Appellant/Cross-Respondent.
Kristi Beth Luna, Reno,
for Respondent/Cross-Appellant.
BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
In this appeal, we address whether a spousal and child
support order entered b y a family court in Costa Rica is enforceable in
Nevada. The Uniform Interstate Famil y Support Act (UIFSA), as enacted
in Nevada, allows for the enforcement of a forei gn support order when the
order is entered in a countr y that is a reco gnized "state" under MRS
Chapter 130. UIFSA sets forth three different methods b y which a forei gn
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country may be considered a "state" for purposes of enforcing that
country's support orders. The first method clearly does not apply here,
and we determine that neither of the other two methods authorizes the
court to consider Costa Rica a state for UIFSA purposes. Pursuant to the
second method, the Nevada Attorney General, under NRS 130.035(1), has
not declared Costa Rica a foreign country in which reciprocal provisions
will be made ensuring the enforceability of foreign support orders.
Further, under the third method, the record fails to demonstrate,
pursuant to NRS 130.10179(2)(a), that Costa Rica follows enforcement
procedures that are "substantially similar" to those established under
UIFSA. Accordingly, UIFSA does not require the district court to enforce
the order.
In addition to UIFSA, however, a foreign support order may be
enforced under the doctrine of comity. We determine that, because the
existence of the parties' premarital agreement was not disclosed to the
Costa Rican court issuing the support order, the award for spousal support
should not be recognized in Nevada as a matter of comity. The child
support award may be recognized, however, and we remand for the district
court to make factual findings on Griffith's claim that the child support
was obtained through fraud because Gonzales-Alpizar misrepresented
Griffith's income and assets to the Costa Rican court.
FACTS AND PROCEDURAL HISTORY
Respondent/cross-appellant Edwin Griffith, a resident of Reno,
met appellant/cross-respondent Gabriela Gonzales-Alpizar, a citizen and
native of Costa Rica, when he went to Costa Rica to visit friends. In 1999,
the two were married in Costa Rica. Prior to the marriage, the parties
entered into a premarital agreement prepared by Griffith's counsel and
signed by both Gonzales-Alpizar and her counsel Maria Fait-Shaw in
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Costa Rica. Among other provisions, the premarital agreement waived
any claim for alimony or spousal support, unless the divorce resulted in
one party becoming eligible for public assistance support. It also provided
that the laws of the State of Nevada would govern the premarital
agreement's execution and performance, without regard to where the
parties resided.
After the parties were married, they returned to Reno with
Gonzales-Alpizar's daughter Nicolle. Shortly thereafter, Gonzales-Alpizar
gave birth to a son, Anthony Griffith-Gonzalez. Griffith and Gonzales-
Alpizar resided in Reno for over three years. In 2002, their relationship
began to deteriorate.
The family traveled to Costa Rica in February 2003, but
Gonzales-Alpizar refused to return to Reno. Griffith returned alone,
leaving Gonzales-Alpizar and the two children in Costa Rica. Griffith
subsequently visited Costa Rica twice in 2003 and once in 2004. Griffith
returned to Costa Rica one last time in February 2005, and the parties
met to discuss a divorce settlement.
Procedural history in Costa Rica
2005 Costa Rican spousal and child support order
At the commencement of the parties' divorce settlement
discussions in Costa Rica, Griffith was allegedly served with notice and
process of a Demand for Alimony, which as explained by Gonzales-Alpizar
includes spousal and child support under Costa Rican law. The parties
dispute what occurred and whether Griffith was actually served with
process. According to Gonzales-Alpizar, after both she and her attorney
explained to Griffith that he was being served with legal documents
regarding alimony and child support, Griffith became very angry, threw
the papers to the floor, and immediately left. According to Griffith,
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office and read aloud from paperwork in Spanish. Griffith did• not
understand what the person was saying, and Gonzales-Alpizar refused to
respond to his multiple requests to explain what was happening. He left
the office with no paperwork and no explanation in English as to what was
said. Gonzales-Alpizar's version is supported by a Costa Rican court
officer's affidavit asserting that she served the• Demand for Alimony upon
Griffith in an attorney's office, Griffith understood what the documents
were, he refused to receive them, and he left immediately.
Based on this alleged service and Griffith's failure to answer
the complaint in a Costa Rican court, a default judgment was entered
against Griffith in September 2005, which ordered him to pay $180 per
month in spousal support, $235 per month in child support for Anthony,
and an additional $235 per month in child support for Nicolle (2005 Costa
Rican support order)) The support award was based on Gonzales-
Alpizar's representation of Griffith's earned income. Gonzales-Alpizar
failed to disclose the terms of the premarital agreement to the court.
2007 Costa Rican divorce decree
In January 2006, Gonzales-Alpizar filed a complaint for
divorce against Griffith in Costa Rica. After an initial, unsuccessful
attempt to serve process of the divorce complaint, Gonzales-Alpizar
obtained the Costa Rican court's permission to seek service of process
upon Griffith through publication in Costa Rica, despite knowing that
Griffith resided in Nevada and making no effort to notify him of the
divorce proceedings. Gonzales-Alpizar's divorce complaint also failed to
'Mc°lle is not Griffith's biological child. A dispute exists as to
whether Griffith adopted Nicolle under Costa Rican law.
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inform the Costa Rican court of the existence of the premarital agreement
entered between the parties in August 1999.
Griffith never responded to or appeared in the action, and in
April 2007, the Costa Rican court entered a final divorce decree (2007
Costa Rican decree), granting Gonzales-Alpizar's request for divorce and
giving her custody of the two children with parental authority jointly held.
The prior award of alimony and child support under the 2005 Costa Rican
support order was confirmed. The parties were finally divorced under
Costa Rican law in June 2007, when the decree was published in the
"Boletin Judicial."
Procedural history in Nevada
Meanwhile, Griffith filed a complaint for divorce in Nevada in
April 2007. 2 Although a default divorce decree was initially entered,
Gonzales-Alpizar successfully moved to set aside the default decree, and
she filed an answer to Griffith's complaint for divorce in June 2010. At
issue in the district court was whether the court had jurisdiction over the
divorce proceeding, in light of the 2007 Costa Rican decree, and whether
the court had authority to enforce the 2005 Costa Rican support order.
The district court first found that because the parties had
been effectively divorced under the 2007 Costa Rican decree, it was
unnecessary to enter any decree dissolving the bonds of matrimony in
Nevada. Nevertheless, the court determined that service of process was
not valid in the Costa Rican divorce proceeding, and while the court had no
2Griffith initially filed for divorce in Nevada in April 2006.
However, the first divorce action was dismissed due to a lack of proper
service.
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authority to set aside that decree, the court would not enforce the spousal
support and child custody provisions contained within it. 3
As for the 2005 Costa Rican support order, the district court
concluded that Griffith was served with notice and process in that
proceeding. 4 The court found enforceable any support provision within
that order, provided that the order is valid and enforceable under Costa
Rican law. The district court also concluded that Costa Rica was the
appropriate forum to determine the enforceability of the 2005 Costa Rican
support order, including any defenses Griffith might have in that action,
whether that order is still valid, or whether the 2007 divorce decree served
to modify or vitiate it. The district court directed the parties to litigate
those issues in Costa Rica, under the presumption that the district court
would have authority to enforce the order once it was found to be valid and
effective. The district court entered a final determination as to its
jurisdiction over the matter, and both parties timely appealed. On appeal,
Gonzales-Alpizar argues that the 2005 Costa Rican support order is
enforceable in Nevada and that the support arrears should be reduced to
3 Theparties do not challenge, and we do not address, the court's
determination that the parties were effectively divorced under the 2007
Costa Rican divorce decree.
"The district court found that although Griffith
certainly did not understand the Demand for
Alimony because it was written in Spanish, he had
resources with which to understand the document
and retain legal assistance. [Griffith] was also on
notice of the difficulties he could encounter. He
married a woman from another country, in her
country and acquiesced to her post-marriage
presence in her home country.
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judgment. 5 Griffith asserts that the support order is unenforceable based
on improper service of the Demand for Alimony and fraud in the
procurement of the support order.
DISCUSSION
To resolve this appeal, we must determine whether the 2005
Costa Rican support order is enforceable in Nevada either under the terms
of UIFSA or under the doctrine of comity, both of which are issues of first
impression.
The 2005 Costa Rican support order is not enforceable under UIFSA
UIFSA governs multiple jurisdiction involvement in child
support issues, and its purpose is to ensure that only one child support
order is effective at any given time. See Valle v. Porsboll, 128 Nev. ,
268 P.3d 1272, 1274 (2012). UIFSA has been codified in Nevada
under NRS Chapter 130 and provides procedures for the enforcement and
modification of a support order issued by another state. Under NRS
130.10179(2), the term "state" is defined to include a foreign country if one
of the following three conditions is met: (1) the country has been declared
to be a foreign reciprocating country under federal law, (2) the state's
attorney general has declared the country a "state" because it has
reciprocal provisions ensuring the enforcement of support orders, or (3) the
country has enacted law or established procedures for enforcing support
orders that are substantially similar to those under UIFSA. See NRS
130.10179(2).
The parties do not dispute that Costa Rica has not been
declared a foreign reciprocating country under federal law. See NRS
Gonzales-Alpizar does not challenge the district court's finding that
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the 2007 Costa Rican decree is invalid as it relates to spousal and child
support.
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130.10179(2)(b). Thus, the first definition of "state" is not met. And, we
turn to whether Nevada has declared Costa Rica a "state" for purposes of
UIFSA. Gonzales-Alpizar argues that the 2005 Costa Rican support order
is enforceable under UIFSA because Costa Rica constitutes a "state"
pursuant to NRS 130.035(1). NRS 130.035(1) provides that "[w]hen the
Attorney General is satisfied that reciprocal provisions will be made by
any foreign country... . for the enforcement therein of support orders
made within this State, the Attorney General may declare the foreign
country . . . to be a state" as intended by NRS Chapter 130.
We conclude that Nevada has not recognized Costa Rica as a
"state" for purposes of UIFSA enforcement. The Attorney General has not
declared Costa Rica to be a foreign country in which reciprocal provisions
will be made to ensure the enforceability of foreign support orders, as
required by NRS 130.035(1). Additionally, the Nevada Department of
Health and Human Services provides that "Heciprocity is the mutual
agreement between the United States or State of Nevada and a foreign
country to process child support cases." See Nev. Dep't of Health and
Human Servs., Div. of Welfare and Supportive Serv., Child Support
Enforcement Manual (Manual), ch. II § 211 (March 1, 2011). Costa Rica is
not a foreign country that maintains a reciprocal agreement with the
United States or Nevada. Id. Nevada specifically provides reciprocity in
child support cases with only four countries other than those recognized by
the United States, and Costa Rica is not listed as one of those countries.
See Manual, supra, § 211.
We next consider whether Costa Rica meets the third
definition of "state" by having procedures for the enforcement of support
orders that are substantially similar to those under UIFSA. See NRS
130.10179(2). Gonzales-Alpizar contends that Costa Rica has procedures
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substantially similar to those under UIFSA, thereby meeting the
definition of "state" and permitting Nevada to enforce the 2005 Costa
Rican support order, but not to modify the terms of that judgment. See
NRS 130.2055(2). The only support for Gonzales-Alpizar's "substantially
similar" argument is a comparison of the laws for establishing and
modifying child support in Nevada and Costa Rica. That comparison,
however, is not the relevant inquiry.
Rather, under NRS 130.10179(2), a foreign country may
qualify as a state when it "[hi as enacted a law or established
procedures ... which are substantially similar to the procedures
established under the Uniform Interstate Family Support Act." Thus,
Costa Rica may be considered a "state" only if it can be shown that it has
laws or procedures that allow for a foreign judgment to be recognized, i.e.,
laws on reciprocity, and that those laws are "substantially similar" to
UIFSA. See NRS 130.10179(2); see also Haker-Volkening v. Haker, 547
S.E.2d 127, 131 (N.C. Ct. App. 2001) ("UIFSA requires that 'a foreign
nation must have substantially similar law or procedures
to . UIFSA . . . (that is, reciprocity) in order for its support orders to be
treated as if they had been issued by a sister State." (quoting Official
Comment, N.C. Gen. Stat. § 52C-1-101(19) (1999) (emphasis added))).
The evidence presented by Gonzales-Alpizar, comparing
Nevada's laws with Costa Rica's laws regarding child support awards, is
irrelevant to the question of whether Costa Rica is a "state," and she
makes no argument that Costa Rica has enacted procedures for
interjurisdictional enforcement similar to those under UIFSA. Thus,
because Gonzales-Alpizar did not establish that Costa Rica was a "state,"
we conclude that the 2005 Costa Rican support order is not enforceable
under UIFSA. See Haker-Volkening, 547 S.E.2d at 131 (refusing to
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enforce a foreign support order when the party seeking to enforce the
order failed to establish on the record that Switzerland was a "state" for
the purposes of UIFSA).
The spousal support provision of the 2005 Costa Rican support order is not
enforceable under the doctrine of comity
Although UIFSA does not apply to the 2005 Costa Rican
support order, we must still consider whether the order might be
enforceable by a Nevada court under the doctrine of comity. This doctrine
is a principle of courtesy by which "the courts of one jurisdiction may give
effect to the laws and judicial decisions of another jurisdiction out of
deference and respect." Mianecki v. Second Judicial Dist. Court, 99 Nev.
93, 98, 658 P.2d 422, 424-25 (1983). This court has not previously
considered the circumstances under which a foreign spousal and child
support order will be enforceable in Nevada under the doctrine of comity.
In doing so, we consider the approach taken by the
Restatement (Third) of Foreign Relations Law of the United States, which
discusses reasons why a foreign judgment or order should not be enforced
under comity. Section 482(1) provides: "[a] court in the United States may
not recognize a judgment of the court of a foreign state" if "the judgment
was rendered under a judicial system that does not provide impartial
tribunals or procedures compatible with due process of law," or if "the
court that rendered the judgment did not have jurisdiction over the
defendant." Restatement (Third) of Foreign Relations Law of the United
States § 482(1) (1987). Section 482(2) further provides that a court "need
not recognize" a foreign judgment if:
(a) the court that rendered the judgment did
not have jurisdiction of the subject matter of the
action;
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(b) the defendant did not receive notice of
the proceedings in sufficient time to enable him to
defend;
(c) the judgment was obtained by fraud;
(d) the cause of action on which the
judgment was based, or the judgment itself, is
repugnant to the public policy of the United States
or of the State where recognition is sought;
(e) the judgment conflicts with another final
judgment that is entitled to recognition; or
(0 the proceeding in the foreign court was
contrary to an agreement between the parties to
submit the controversy on which the judgment is
based to another forum.
Id. * 482(2).
The Ninth Circuit Court of Appeals has adopted the
Restatement (Third) approach to enforcing foreign judgments, stating that
it "provide[s] sound guidance for assessing legal judgments of other
nations." Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir. 1997).
Several state courts have also adopted Section 482 of the Restatement
(Third) to analyze whether foreign orders should be recognized under the
doctrine of comity. See Office of Child Support v. Sholan, 782 A.2d 1199,
1203-04 (Vt. 2001) (adopting the Restatement approach in determining
whether or not to enforce a foreign support order); see also Alberta Sec.
Comm'n v. Ryckman, 30 P.3d 121, 126 (Ariz. Ct. App. 2001); Bondi v.
Citigroup, Inc., 32 A.3d 1158, 1185-86 (N.J. Super. Ct. App. Div. 2011).
We find the reasoning of Section 482 of the Restatement
(Third) and these courts to be consistent with Nevada's jurisprudence
under the Full Faith and Credit Clause, as Nevada courts will refuse to
recognize a judgment or order of a sister state if there is "a showing of
fraud, lack of due process, or lack of jurisdiction in the rendering state."
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therefore adopt Section 482 of the Restatement (Third) of Foreign
Relations Law of the United States to analyze whether a foreign support
award for spousal and child support should be recognized by Nevada
courts under the doctrine of comity.
Griffith argues that the 2005 Costa Rican support order
cannot be enforced by a Nevada court under the doctrine of comity based
on lack of due process and fraud in the procurement of the order. We must
consider whether Griffith's contentions are valid and thus prevent this
court from recognizing the 2005 Costa Rican support order.
First, as to the due process argument, although the parties
offer differing versions of the service of the Demand for Alimony, the
district court found that Griffith was served with notice and process of the
2005 Costa Rican support order. Due process, in relation to comity,
encompasses the idea that the order was granted after "proper service or
voluntary appearance of the defendant." Wilson, 127 F.3d at 811 This
court has stated that "Uhl elementary and fundamental requirement of
due process . . . is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action
and afford them the opportunity to present their objections." Browning v.
Dixon, 114 Nev. 213, 217, 954 P.2d 741, 743 (1998) (quoting Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
Here, the record demonstrates that, at the very least, Griffith
was reasonably made aware that Gonzales-Alpizar was serving him with
some form of legal papers despite his inability to understand Spanish.
Griffith was personally handed these papers while in an attorney's office
to discuss a divorce settlement. Thus, substantial evidence supports the
district court's determination that Griffith was properly served with the
Demand for Alimony. Bedore v. Familian, 122 Nev. 5, 9-10, 125 P.3d
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1168, 1171 (2006) (stating that this court will not disturb a district court's
findings of fact "if they are supported by substantial evidence" (internal
quotation omitted)). As such, lack of due process would not provide a basis
to refuse to enforce the support order under the principle of comity.
Second, Griffith argues that the spousal support award was
procured through fraud because Gonzales-Alpizar failed to disclose to the
Costa Rican court the existence of the premarital agreement, which
precluded any award of spousal support. Gonzales-Alpizar does not
appear to challenge this factual assertion, instead arguing that the
premarital agreement was void as a matter of Costa Rican law such that
the lack of disclosure is immaterial.
Specifically, Gonzales-Alpizar argues that the parties'
premarital agreement was unenforceable because she did not execute the
agreement knowingly or voluntarily and because the agreement is
unconscionable. See NRS 123A.080(1)(a) and (b). The validity of a
premarital agreement is reviewed by this court de novo. See Fick v. Fick,
109 Nev. 458, 463, 851 P.2d 445, 449 (1993); Sogg v. Nev. State Bank, 108
Nev. 308, 312, 832 P.2d 781, 783 (1992); see also NRS 123A.080(3). Our
review of the record demonstrates that Gonzales-Alpizar did knowingly
and voluntarily sign the premarital agreement, and Gonzales-Alpizar has
failed to demonstrate how the agreement was unconscionable. Thus, we
conclude that the district court did not commit reversible error in
concluding that the parties' premarital agreement was enforceable. See
NRS 123A.080(1) and (2); Sogg, 108 Nev. at 312, 832 P.2d at 783-84.
Because the premarital agreement is enforceable, we decline
to recognize and enforce the 2005 Costa Rican spousal support order under
the doctrine of comity where a spouse purposefully failed to provide to the
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foreign court the premarital agreement that governed the parties'
agreement regarding spousal support.
The child support portion of the 2005 Costa Rican support order might be
entitled to enforcement under the doctrine of comity
However, the failure to disclose the premarital agreement
would not necessarily prevent the district court from enforcing the child
support order because the agreement contained no provision concerning
child support. The 2005 Costa Rican support order awarded child support
for Griffith's biological son Anthony and Gonzales-Alpizar's daughter
Nicolle. Griffith challenges any responsibility to support Nicolle because
Griffith claims Gonzales-Alpizar misrepresented Griffith's parental
relationship with Nicolle to the Costa Rican court. Griffith also argues
that the entire child support award was procured through fraud because
Gonzales-Alpizar misrepresented his income and properties in procuring
the award, and the award would render him destitute in violation of
Nevada public policy. The district court failed to make any specific
findings concerning Griffith's adoption of Nicolle or his fraud claim,
instead concluding that
[Griffith] may have had and may still have valid
defenses to the alimony/child support proceedings.
The questions of his responsibility for
Nicolle, . .. and [Gonzales-Alpizar's] alleged fraud,
in describing Plaintiffs resources to the Costa
Rican court . . . are not resolved to [Griffith's]
satisfaction. However, the only forum for
resolving these issues is the Country of Costa
Rica.
Because the district court deferred ruling on Griffith's
parental status in regard to Nicolle and his other defenses to the child
support award to the Costa Rican court, this court is unable to determine
whether comity should be granted or denied to the child support award.
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Thus, we remand this issue to the district court to make appropriate
findings of fact and conclusions of law under the Restatement (Third)
approach adopted by this court, and to determine whether the child
support portion of the 2005 Costa Rican support order should be enforced
as a matter of comity.
Because the district court erred in concluding that it may
have to enforce the spousal support provision of the 2005 Costa Rican
support order if it is determined valid and enforceable in a Costa Rican
court, we reverse that portion of the district court's order, and we affirm in
all other respects.
J.
Hardesty
We conc
, C.J.
Gibbon's
Poem ti
\ering
Parr a guirr e
J.
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