                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:

                 MARTHA T. ESQUER, Petitioner/Appellant,

                                         v.

              CANDELARIO ROJO RUIZ, Respondent/Appellee.

                            No. 1 CA-CV 17-0391 FC
                                 FILED 3-6-2018


            Appeal from the Superior Court in Maricopa County
                           No. FN2017-052056
              The Honorable Jennifer C. Ryan-Touhill, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

Ortecho Law PLLC, Phoenix
By Christina C. Orizaga-Ortecho
Counsel for Petitioner/Appellant

Yvonne Yragui, P.C., Phoenix
By Yvonne Yragui
Counsel for Respondent/Appellee
                            ESQUER v. RUIZ
                           Decision of the Court




                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maurice Portley1 joined.


C R U Z, Judge:

¶1            Martha T. Esquer (“Wife”) appeals the superior court’s order
dismissing her petition for dissolution of marriage without prejudice on the
grounds of forum non conveniens. For the following reasons, we reverse and
remand for findings consistent with this decision.

              FACTUAL AND PROCEDURAL HISTORY

¶2           Wife and Candelario Rojo Ruiz (“Husband”) were married in
Mexico in 1987. The parties moved to California approximately two years
later and remained there until April 2016, when Husband was laid off from
work. Husband and Wife moved to Arizona to live with their son after
Husband was laid off. After approximately three months, Husband and
Wife separated and Husband moved in with his daughter from another
relationship who also lived in Arizona. About six months later, in
December 2016, Husband moved back to California.

¶3             In February 2017, Wife filed a petition for dissolution of
marriage in Arizona. Approximately a month later, Husband filed for
dissolution of the marriage in Sonora, Mexico.2 The following month,
Husband moved to dismiss Wife’s petition pursuant to Arizona Rule of
Family Law Procedure 32(B)(2) and (5) for lack of personal jurisdiction and
insufficient service of process. With regards to jurisdiction, he argued in
part that it was unreasonable and unfair for him to defend against the
divorce petition in Arizona because the parties had no community property



1      The Honorable Maurice Portley, retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2      Nothing in the record indicates that Wife has been served with the
dissolution documents relating to the Mexico proceeding.



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                            Decision of the Court

in Arizona, their only property was in California and Mexico,3 and Arizona
courts lacked jurisdiction to divide the parties’ real property in Mexico.

¶4              Wife responded, arguing the superior court had personal
jurisdiction over Husband but that Mexican law should apply to the
division of the parties’ property in Mexico. In his reply, Husband argued
for the first time that even if the court determined it had jurisdiction of the
divorce, it should dismiss the case due to forum non conveniens. He asserted
Mexico would be a more convenient forum because Wife wanted the
superior court to apply Mexican law to the case, Husband had filed for
divorce in Mexico, the parties were married in Mexico, and the parties
purchased real property titled in Wife’s name in Mexico. Neither party
requested factual findings pursuant to Arizona Rule of Family Law
Procedure 82(A), and no hearing on the motion occurred.

¶5            After receiving the parties’ response and reply, the superior
court simply dismissed the action without prejudice due to forum non
conveniens. It did not make any findings, explain its decision, or specify
whether it had determined California or Mexico was the alternative viable
and more convenient forum.

¶6            Wife timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(1).

                               DISCUSSION

¶7             Wife argues the superior court abused its discretion by
dismissing her petition due to forum non conveniens because: (1) Husband
did not provide proof of an alternative viable and more convenient forum;
(2) the court failed to give deference to Wife’s choice of forum; and (3) the
court failed to weigh the public and private interests necessary for dismissal
due to forum non conveniens.

I.     Standard of Review

¶8            The decision to decline jurisdiction due to forum non
conveniens is highly discretionary, therefore “we will not overturn the
[superior] court’s ruling on the application of forum non conveniens absent
an abuse of discretion.” Parra v. Cont’l Tire N. Am., Inc., 222 Ariz. 212, 214-


3    The parties agree the only property in Mexico is real property
Husband purchased and titled in Wife’s name in 2000.


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                            Decision of the Court

15, ¶ 8 (App. 2009) (internal quotations and citations omitted). The court
abuses its discretion “when it fails to balance the relevant factors” related
to the application of forum non conveniens. Id. at 215, ¶ 8.

II.    Forum Non Conveniens

¶9              Forum non conveniens is “an exceptional tool to be employed
sparingly rather than a doctrine that compels plaintiffs to choose the
optimal forum for their claim.” Id. (quoting Ravelo Monegro v. Rosa, 211 F.3d
509, 514 (9th Cir. 2000)). To obtain dismissal due to forum non conveniens,
the movant must show there is an available and adequate forum to hear the
case and that, “on balance, the alternative forum is a more convenient place
to litigate the case.” Id. at 215, ¶¶ 9-10.

¶10            “[A]n alternative forum ordinarily exists when the defendant
is amenable to service of process in the foreign forum.” Lueck v. Sundstrand
Corp., 236 F.3d 1137, 1143 (9th Cir. 2001) (citing Piper Aircraft Co. v. Reyno,
454 U.S. 235, 254 n.22 (1981)). When determining whether the alternative
forum is more convenient, the court must “balance private and public
reasons of convenience.” Parra, 222 Ariz. at 215, ¶ 10. Relevant private
interests are “the relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing witnesses; . . . and all other practical problems that
make trial of a case easy, expeditious and inexpensive.” Cal Fed Partners v.
Heers, 156 Ariz. 245, 246 (App. 1987) (quoting Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508 (1947)). Public interests include court congestion, the prospect
of imposing jury duty on a community that lacks a relationship to the
litigation, and the “appropriateness . . . in having the trial . . . in a forum
that is at home with the state law that must govern the case, rather than
having a court in some other forum untangle problems in conflict of laws,
and in law foreign to itself.” Id. at 247. “Where factors of convenience are
closely balanced, the plaintiff is entitled to its choice of forum.” Id.

¶11           The superior court abused its discretion by implicitly finding
Husband had shown the availability of an alternative forum. Although
Father filed for divorce in Mexico while Mother’s petition was pending,
nothing in the record shows Mother was served in Mexico, neither party
provided any information regarding whether they are amenable to process
in Mexico, and neither party has agreed to stipulate to the jurisdiction of a
Mexican court. Cf. Avila v. Chamberlain, 119 Ariz. 369, 372 (App. 1978)
(stating the requirement of an alternate forum is “satisfied by a dismissal
conditioned upon the defendant’s stipulation to submit to the jurisdiction
of the appropriate court”). Father accordingly failed to demonstrate the


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availability of an adequate alternative forum, and the superior court abused
its discretion by implicitly finding he had done so.

¶12             Even assuming, arguendo, that Husband demonstrated the
availability of an adequate alternative forum, the superior court abused its
discretion by implicitly finding Husband had presented facts and argument
sufficient to overcome the deference properly accorded to Wife’s decision
to file suit in Arizona. Husband raised issues that were sufficient to require
further factual development before dismissal, such as Husband’s purchase
of a vehicle in California and the existence of his 401(k) in California, but he
did not show that a different forum such as Mexico would be able to
properly account for an equitable division of that property. See A.R.S. § 25-
211(A)(1) (providing all property acquired by either spouse during the
marriage is community property except property acquired by gift, devise,
or descent); see also Johnson v. Johnson, 131 Ariz. 38, 41 (1981) (“[I]t is well
settled in Arizona and elsewhere that pension rights, whether vested or
non-vested, are community property insofar as the rights were acquired
during marriage, and are subject to equitable division upon divorce.”).
Additionally, the superior court failed to hold hearings to develop these
factual issues before dismissing, and it failed to provide any explanation,
commentary, or findings within its order dismissing Mother’s petition.

¶13           Although we may review the record to determine whether
substantial evidence supports the court’s dismissal, we cannot assess the
court’s application of forum non conveniens because neither party requested
findings of fact and the court simply dismissed the petition. Compare Parra,
222 Ariz. at 215, ¶ 12 (reviewing the record to determine whether
substantial evidence supported the court’s dismissal under forum non
conveniens where superior court had recited the relevant factors and held
oral argument on the motion to dismiss) with First Nat. Bank & Tr. Co. v.
Pomona Mach. Co., 107 Ariz. 286, 290 (1971) (noting the “determination
cannot be made on a factually incomplete record,” where forum non
conveniens had not been developed at the trial level). Although under Rule
52(a), Arizona Rules of Civil Procedure, the superior court was not
obligated to make factual findings in the absence of a proper request, or to
hold an evidentiary hearing on Husband’s motion, because the court
simply dismissed the petition for dissolution without any factual findings
and without holding a hearing, the record is insufficient for us to assess the
court’s consideration of the forum non conveniens factors and the weight it
afforded them. We accordingly cannot say the court properly balanced the
relevant factors, and we hold the superior court abused its discretion by




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dismissing Wife’s petition due to forum non conveniens. Therefore, we
reverse and remand for proceedings consistent with this decision.

III.   Costs and Fees on Appeal

¶14            Wife requests her reasonable attorneys’ fees and costs, but she
does not “specifically state the statute, rule, decisional law, contract, or
other authority for an award of attorneys’ fees” as required by Arizona Rule
of Civil Appellate Procedure 21(a)(2). We accordingly decline to award fees
on that basis.

                               CONCLUSION

¶15          For the foregoing reasons, we reverse the superior court’s
order dismissing Wife’s petition for dissolution on the grounds of forum non
conveniens and remand for proceedings consistent with this decision.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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