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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
TAMMY S. HILEMAN, Petitioner/Appellant,
v.
STEPHEN A. HILEMAN, Respondent/Appellee.
No. 1 CA-CV 14-0859 FC
FILED 2-11-2016
Appeal from the Superior Court in Maricopa County
No. FN2011-094248
The Honorable Boyd W. Dunn, Retired Judge
AFFIRMED
COUNSEL
Tammy S. Hileman, Greensburg, IN
Petitioner/Appellant
Law Firm of M. Paul Fischer, PC, Mesa
By Thomas J. Griggs
Counsel for Respondent/Appellee
HILEMAN v. HILEMAN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
J O H N S E N, Judge:
¶1 Tammy S. Hileman ("Wife") appeals the superior court's
denial of her motion to set aside a dissolution decree. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In December 2011, Wife filed a verified petition in Maricopa
County Superior Court seeking dissolution of her marriage to Stephen A.
Hileman ("Husband"). In her petition, Wife alleged she had been
"domiciled within the State of Arizona for more than ninety (90) days prior
to the commencement of [her] action." After a two-day trial more than two
years later, the superior court entered a decree dissolving the parties'
marriage and ordering division of their property and debts. One month
after the court entered the decree, Wife moved to set it aside, arguing the
superior court lacked subject matter jurisdiction because she was not
domiciled in Arizona as required by Arizona Revised Statutes ("A.R.S.")
section 25-312(1) (2016).1 After briefing and oral argument, the superior
court denied Wife's motion.
¶3 Wife timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1) (2016).
DISCUSSION
¶4 "[N]o state has jurisdiction to grant a divorce unless one of the
spouses is a domiciliary of the state, for without such domicile there is no
sufficient nexus between the state and the marriage relationship or status
to entitle that state to put an end to the marriage." Brandt v. Brandt, 76 Ariz.
154, 158 (1953). By statute, an Arizona court may enter a dissolution decree
when "one of the parties, at the time the action was commenced, was
domiciled in this state . . . [and] the domicile . . . has been maintained for
ninety days prior to filing the petition for dissolution of marriage." A.R.S.
1 Absent material revision after the relevant date, we cite a statute's
current version.
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HILEMAN v. HILEMAN
Decision of the Court
§ 25-312(1). Domicile requires (1) physical presence and (2) an intent to
remain for an indefinite period of time. Lake v. Bonham, 148 Ariz. 599, 601
(App. 1986). "[The] requisite intent [to establish domicile], as evidenced by
the conduct of a person in question, becomes a question of fact." Bialac v.
Bialac, 95 Ariz. 86, 87 (1963). We will not disturb the superior court's
determination of domicile so long as sufficient evidence supports its
conclusion. Id. at 88. In reviewing the superior court's findings of fact, we
view the evidence in the light most favorable to supporting the court's
decision. Johnson v. Johnson, 131 Ariz. 38, 44 (1981).
¶5 Wife first argues that because she was present in Arizona for
less than two months just before she filed for divorce, the 90-day
requirement was not met.2 Wife's argument, however, misperceives the
nature of domicile, which can be maintained despite a temporary absence
from the state. See Clark v. Clark, 124 Ariz. 235, 236-37 (1979) (two-week trip
to Pennsylvania during the 90 days prior to divorce filing did not change
Arizona domicile).
¶6 More generally, although Wife argues she was not domiciled
in Arizona when she filed the petition for dissolution, in her petition for
dissolution and again at trial, she admitted she was domiciled in Arizona.
Husband argues Wife accordingly is estopped from arguing on appeal that
Arizona was not her domicile. See Martin v. Wood, 71 Ariz. 457, 459 (1951)
("[A] party who has assumed a particular position in a judicial proceeding
is estopped to assume an inconsistent position in a subsequent proceeding
involving the same parties and questions." (quotation omitted)). While
judicial estoppel might apply, we nonetheless address the merits of Wife's
appeal, given her assertion on appeal that she did not fully understand the
meaning of "domicile" when she filed her petition.
¶7 In deciding Wife's motion to set aside the decree, the superior
court considered a record that included evidence admitted during the
dissolution trial, an affidavit by the attorney who represented Wife in that
trial, and Husband's affidavit, which stated Wife had lived and worked in
Arizona for many years before she met and married Husband in 2005.
Husband's affidavit, as well as the affidavits from Wife's employer and
attorney, indicated that Wife had maintained employment at an Arizona
company from 2000 through at least 2010 and possibly through 2012. Wife's
2 Neither party disputes that at all relevant times, Husband was
domiciled in Indiana.
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HILEMAN v. HILEMAN
Decision of the Court
minor son also continued to be enrolled in school in Arizona throughout
the parties' marriage.
¶8 Wife's attorney's affidavit stated that Wife "presented herself
as a permanent resident of Arizona, who maintained a second residence
out-of-state at her husband's farm[.]" Wife did not dispute that she had
lived in Arizona for many years, and even admitted in the parties' joint
prehearing statement that "she filed for divorce in her home state of
Arizona." Wife's attorney's affidavit stated that Wife had insisted on
pursuing the divorce in Arizona because she did not want to return to
Indiana ever again and because she considered Arizona to be her home.
¶9 After considering this evidence and hearing oral argument,
the superior court concluded Wife was a domiciliary of Arizona. The court
stated:
Wife's actions regarding Wife's establishment and
maintenance of an Arizona domicile, including the existence
of a residence and a continuing business entity in Arizona, the
retention of both an Arizona driver's license and voter
registration and the exercise of the act of voting in this state,
substantiates Wife's intent and state of mind regarding her
Arizona domicile.
¶10 Wife argues the superior court erred because she was and
continues to be domiciled in Indiana and not Arizona. Wife contends that
she spent the majority of her time during the marriage in Indiana. She also
points to tax returns indicating that she and Husband filed as Indiana
residents and Arizona nonresidents.
¶11 Wife, however, admits that she is registered to vote in
Arizona and that she maintains an Arizona driver's license. In her petition
for dissolution, Wife alleged that she was employed by an Arizona
employer. Wife admits that she spent every winter at the couple's home in
Arizona. The superior court also found persuasive the fact that "Wife,
through the representation of multiple legal counsel, provided verified
pleadings as well as sworn testimony before the Court that Wife had been
domiciled in the state of Arizona for 90 days prior to the filing of her
original petition[.]" Notwithstanding Wife's subsequent assertion to the
contrary, the superior court's determination was supported by sufficient
evidence and we will defer to its findings. See Gutierrez v. Gutierrez, 193
Ariz. 343, 347, ¶ 13 (App. 1998).
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HILEMAN v. HILEMAN
Decision of the Court
CONCLUSION
¶12 For the foregoing reasons, we affirm the superior court's order
denying Wife's motion to set aside the judgment.
:ama
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