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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 3-6-2018
ESQUER v. RUIZ

Decision of the Court

2

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.
ESQUER v. RUIZ

Decision of the Court

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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.
ESQUER v. RUIZ

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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 
ESQUER v. RUIZ

Decision of the Court

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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 
ESQUER v. RUIZ

Decision of the Court

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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.