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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CHANT H. MANOUKIAN,
Petitioner,
v.
THE HONORABLE MARGARET B. LABIANCA,
Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA,
in and for the County of MARICOPA,
Respondent Judge,
KATHRYN J. MANOUKIAN,
Real Party in Interest.
No. 1 CA-SA 20-0202
FILED 11-5-2020
Petition for Special Action from the Superior Court in Maricopa County
No. FC2020-001453
The Honorable Margaret LaBianca, Judge
JURISDICTION ACCEPTED/RELIEF GRANTED
COUNSEL
Perkins Coie, LLP, Phoenix
By Paul F. Eckstein, Thomas D. Ryerson, Matthew R. Koerner
Co-Counsel for Petitioner
Franks Law Office, PC, Phoenix
By Todd Franks, Robert C. Houser, Jr., Sarah M. Cool
Co-Counsel for Petitioner
Jaburg & Wilk, PC, Phoenix
By Kathi M. Sandweiss, Roger L. Cohen
Counsel for Real Party in Interest
MANOUKIAN v. HON. LABIANCA/MANOUKIAN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.
M O R S E, Judge:
¶1 Chant H. Manoukian ("Husband") seeks special action relief
from the superior court's order dismissing his petition for dissolution of his
marriage to Kathryn J. Manoukian ("Wife") on the grounds of forum non
conveniens. For the following reasons, we accept jurisdiction and grant
relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 Husband and Wife married in April 1995, in Paradise Valley.
Husband is 84 years old, suffered a stroke in February 2020, and has lived
in Arizona for at least 40 years. Wife is 49 years old and resides in
Tennessee with the couples' minor child ("Child"). Before their marriage,
Husband and Wife entered a "Prenuptial and Cohabitation Agreement"
("Agreement"). The Agreement is governed by Arizona law.
¶3 In March 2020, Husband petitioned in Arizona for dissolution
of his marriage to Wife ("Petition"). The Petition acknowledged that
Arizona has jurisdiction over the divorce but does not have jurisdiction
over any child-custody or support proceedings, which would occur in
Tennessee.
¶4 After Husband filed the Petition, Wife sought Conciliation
Court Services claiming that she and Husband could reconcile their
differences. The Conciliation Court stayed the dissolution proceedings
until May 2020. See A.R.S. § 25-381.18. Husband sought to dismiss the
conciliation proceedings. Wife opposed dismissal saying that she did "not
want a divorce," did "not want to break our family up," and "would like to
[proceed] with conciliation services." Four days later, Wife filed for divorce
in Tennessee claiming "irreconcilable differences."
¶5 On May 14, 2020, Wife moved to dismiss the Arizona
proceedings for forum non conveniens. Wife claimed "Tennessee is the most
convenient forum for deciding all issues between the parties[,]"citing (1)
jointly owned real property in Tennessee, (2) the parties' relative resources,
and (3) judicial economy. Wife noted that "[o]ne of the issues will be the
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MANOUKIAN v. HON. LABIANCA/MANOUKIAN
Decision of the Court
validity of the" Agreement. Husband countered that (1) the Agreement is
governed by Arizona law, (2) nearly all property to be addressed is located
in Arizona, and (3) the evidence necessary to resolve disputes, including
prospective witnesses, is located in Arizona.
¶6 The superior court granted Wife's motion to dismiss. The
court's minute entry states:
Taking as true for purposes of this Motion Husband's
allegations of private and public factors regarding
convenience and in consideration of the undisputed facts that
this Court does not have jurisdiction to decide parenting and
financial support issues concerning the parties' child and that
there is a divorce case now pending in a Tennessee court that
does have jurisdiction concerning the parties' child,
THE COURT FINDS the proceedings in Arizona and
Tennessee would be significantly duplicative, and the
Tennessee forum is on balance a far more convenient place to
litigate this case pursuant to Parra v. Continental Tire North
America, Inc.
¶7 The superior court denied Husband's motion to alter or
amend the judgment. Husband then sought special action review in this
Court.
JURISDICTION
¶8 "Ordinarily, this court does not accept special action
jurisdiction in a case in which a final judgment has been entered." Tanque
Verde Unified Sch. Dist. No. 13 of Pima Cty. v. Bernini, 206 Ariz. 200, 203, ¶ 3
(App. 2003) (corrected). However, special action jurisdiction "is highly
discretionary" and is appropriate "when no 'equally plain, speedy, and
adequate remedy by appeal' exists." State ex rel. Romley v. Fields, 201 Ariz.
321, 323, ¶ 4 (App. 2001) (quoting Ariz. R.P. Spec. Act. 1(a)). Jurisdiction is
also appropriate when a traditional appeal would not provide an adequate
remedy due to the passage of time. See Hull v. Albrecht, 192 Ariz. 34, 36, ¶ 7
(1998) (accepting jurisdiction, in part, "because . . . '[a] prompt resolution is
needed'") (citation omitted). Special action jurisdiction is warranted here
because a court in Tennessee has accepted jurisdiction of a separate divorce
proceeding based on the Arizona superior court's dismissal. A direct
appeal is unlikely to provide timely or adequate relief. See Fragoso v. Fell,
210 Ariz. 427, 429, ¶ 3 (App. 2005) (accepting special action review where
the issue would otherwise become moot); Tanque Verde Unified, 206 Ariz. at
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MANOUKIAN v. HON. LABIANCA/MANOUKIAN
Decision of the Court
203, ¶ 4 (accepting special action review when "even an accelerated appeal
would be inadequate"). Accordingly, we accept special action jurisdiction.
DISCUSSION
¶9 The decision to dismiss due to forum non conveniens is highly
discretionary, and "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, 214-15, ¶ 8 (App. 2009) (citation and
internal quotation marks 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.
¶10 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. at 214, ¶ 8 (citation and internal
quotation marks omitted). "A defendant invoking forum non conveniens
ordinarily bears a heavy burden in opposing the plaintiff's chosen forum."
Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430 (2007).
¶11 To obtain dismissal due to forum non conveniens, there first
must be "an available and adequate alternative forum to hear the case."
Para, 222 Ariz. at 215, ¶ 9. Second, the movant must show that "on balance,
the alternative forum is a more convenient place to litigate the case." Id. at
¶ 10 (quoting Coonley & Coonley v. Turck, 173 Ariz. 527, 532 (App. 1993)).
"This requires the court to balance private and public 'reasons of
convenience.'" Id. (quoting Cal Fed Partners v. Heers, 156 Ariz. 245, 246-47
(App. 1987)). "Where factors of convenience are closely balanced, the
plaintiff is entitled to its choice of forum." Id. (quoting Cal Fed Partners, 156
Ariz. at 248). "This is because unless the balance is strongly in favor of the
defendant, the plaintiff's choice of forum should rarely be disturbed." Id.
(citation and internal quotation marks omitted).
¶12 The parties agree that Tennessee is an available forum.
Therefore, the first part of the analysis is not in dispute. The issue is
whether the superior court correctly applied the second factor. The
superior court's ruling purports to take Husband's allegations regarding
convenience as "true," and found that "the Tennessee forum is on balance a
far more convenient place to litigate this case . . . ."
¶13 In Husband's response to the motion to dismiss, he identified
private and public factors favoring Arizona as a more convenient forum.
Notably, Husband asserted that Arizona witnesses, property, and assets,
and the Arizona choice of law provisions in the Agreement all favored
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MANOUKIAN v. HON. LABIANCA/MANOUKIAN
Decision of the Court
allowing the case to proceed in Arizona.1 See Coonley & Connley, 173 Ariz.
at 534 (noting that choice of law provisions are a public factor favoring the
forum of the controlling law). Except to state that "proceedings in Arizona
and Tennessee would be significantly duplicative [,]" the superior court's
ruling does not explain how it accepted Husband's allegations as true but
found Tennessee to be a more convenient forum. For example, Husband
contested Wife's assertion that the real property in Tennessee is jointly
owned. Husband also argued that if the Agreement is enforced, there was
no significant potential for overlap between the divorce case and the
custody/support case because the only contested issues will be the child
custody and support matters. Husband also emphasized that the evidence
and witnesses relating to the enforceability of the Agreement are in
Arizona.
¶14 The superior court's ruling does not demonstrate any effort to
balance the lone public factor identified in the order (the potential for
duplication of proceedings) against the public factor identified by Husband
(interpreting Arizona law in Arizona courts). Nor does the superior court's
order explain how it accepted Husband's allegations of private factors as
accurate (Arizona properties, witnesses, and evidence) and balanced them
against any aspect other than duplicating proceedings. Nor does the court's
order offer any suggestion that it accorded deference to Husband's decision
to file in Arizona. See Cal Fed Partners, 156 Ariz. at 246 (stating that
plaintiff's "choice of forum should not be disturbed except for weighty
reasons") (quoting Restatement (Second) of Conflicts of Law § 84 cmt. c
(1971)). Instead, the superior court implicitly rejected Husband's
allegations, including his allegation that there was little risk of duplication
of proceedings, and found the possibility of duplication was controlling.
Thus, the superior court abused its discretion because it did not accord
deference to Husband's forum choice and failed to balance all relevant
factors. See Parra, 222 Ariz. at 215, ¶¶ 8, 11 (finding an abuse of discretion
when the court "fails to balance the relevant factors" and the facts and
argument were not "sufficient to overcome the deference properly accorded
to the plaintiffs' decision to file suit in Arizona").
¶15 While we may review the record to determine whether
substantial evidence supports dismissal, we cannot assess the superior
court's application of forum non conveniens because neither party requested
1 In his petition for special action, Husband also identifies his age and
health as factors supporting litigation in Arizona. Although these facts
were presented to the superior court, Husband did not assert them as
reasons to deny Wife's motion.
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MANOUKIAN v. HON. LABIANCA/MANOUKIAN
Decision of the Court
findings of fact. 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 the superior court had recited the
relevant factors and held oral argument on the motion to dismiss) with First
Nat'l 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). The
superior court was not obligated to make factual findings in the absence of
a proper request, see Ariz. R. Fam. Law P. 82, or to hold an evidentiary
hearing on Wife's motion. But because the court dismissed the petition for
dissolution without factual findings or 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. In the absence of either undisputed facts
or fact-finding by the superior court, we decline to weigh the factors on
appeal. See Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, 292, ¶ 22 (App.
2013) (amended) (remanding to the superior court to reassess and weigh
competing choice of law factors).
CONCLUSION
¶16 For the foregoing reasons, we vacate the superior court's
order dismissing Husband's petition for dissolution on the grounds of
forum non conveniens and remand for proceedings consistent with this
decision. In our discretion, we deny Wife's request for attorney fees.
AMY M. WOOD • Clerk of the Court
FILED: AA
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