Young v. Conceio

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 02-25-2010 PHILIP G. URRY,CLERK BY: DN IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE AMY ELIZABETH YOUNG, ) ) ) ) ) ) ) ) ) ) Petitioner/Appellant, v. MARK CONCEIO, Respondent/Appellee. No. 1 CA-CV 08-0386 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FN 2007-001774 The Honorable Robert Budoff, Judge REVERSED AND REMANDED Michael E. Hurley Attorney for Appellant Phoenix J O H N S E N, Judge ¶1 a This is an appeal from the superior court s denial of Motion for Reconsideration and for Partial Relief from Judgment pursuant to Rule 85(C) of the Arizona Rules of Family Law Procedure. For the following reasons, we reverse the superior court s order denying the motion and remand for further proceedings. FACTUAL AND PROCEDURAL HISTORY ¶2 Trial in the dissolution of the marriage of Amy Elizabeth Young ( Wife ) and Mark Conceio ( Husband ) was held on April 1, 2008. April 14, 2008. The court entered a dissolution decree on The decree disposed of the parties property, including the marital home, which was encumbered by a first mortgage and a separate home equity line of credit. During the marriage, Husband alone drew on the line of credit. At trial, he testified that the balance owed on the line of credit was $56,000. In the decree, the court concluded that each party was entitled to half of the equity remaining in the marital home. The court calculated that, taking into account the first mortgage balance of $139,000 and the $56,000 owing on the line of credit, $43,750. Husband and Wife each would have home equity of Accordingly, the court awarded the residence to Wife provided she is able to refinance the residence and pay Husband his equity interest which is determined to be $43,750.00 by July 31, 2008. ¶3 At trial, the parties disputed the use of the funds that Husband had obtained from the line of credit. Husband had put those funds toward his Wife argued separate expenses; Husband testified he used the funds exclusively for community 2 purposes. Among the exhibits admitted in evidence was Husband s verified financial affidavit, which listed his monthly expenses. ¶4 In the decree, the court stated: Wife also alleges that the $56,000.00 apparently utilized from the line of credit was also used by Husband for sole and separate purposes and that she should be reimbursed for at least half of those funds. Husband alleges that he also used the line of credit money to pay community expenses in the last two years due to the parties lack of income. No evidence has been presented to controvert Husband s testimony in this regard. Again, these funds were needed to support the parties during the last year. The Court therefore finds, in the absence of evidence to the contrary, that the utilization of the . . . line of credit funds was for community purposes. ¶5 28, Roughly six weeks after entry of the decree, on May 2008, Wife filed a Motion Partial Relief from Judgment. for Reconsideration and for Wife asserted in her motion that when she contacted the lender to secure a new home loan so that she could discovered buy that out Husband s although interest Husband had in the testified residence, he had she drawn $56,000 on the line of credit, in reality the balance on the line of credit was not $56,900 but was $95,000. She asserted that despite Husband s testimony that he had taken only $56,000 from the line of credit, in reality, in addition to that amount, he had drawn down another $35,000 on March 10, 2008 (three weeks before trial) and on March 31, 2008, the day before trial, he 3 had exhausted the line of credit by drawing another $4,800. She argued Husband had perjured himself and committed a fraud on the court by failing to disclose his additional receipt of funds from the line of credit, and that the fact that he had drawn down more funds evidence. than he to Attached testified her to motion, was newly Wife discovered submitted bank statements showing the March 2008 withdrawals. ¶6 Although the court ordered a response, Husband filed no substantive response to Wife s motion. Instead, he moved to strike the motion, arguing that Wife s notice of appeal from the decree, filed on May 13, 2008, had divested the superior court of jurisdiction. strike. The court agreed and granted the motion to After this court revested jurisdiction in the superior court, the court reviewed Wife s Motion for Reconsideration and for Partial Relief from Judgment and denied it in an unsigned order without explanation. The court issued a signed order denying Wife s motion on March 17, 2009. of Wife s appeal from the denial of We have jurisdiction her motion pursuant to Arizona Revised Statutes ( A.R.S. ) Section 12-2101(B)(2003). DISCUSSION A. Standard of Review. ¶7 We review the denial of a Rule 85(C) motion for an abuse of discretion. P.2d 37, 39 (App. R.A.J. v. L.B.V., 169 Ariz. 92, 94, 817 1991). The 4 superior court abuses its discretion if it misinterprets the law. Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004). The superior court is not authorized to act arbitrarily or inequitably, nor to make decisions unsupported by facts or sound legal policy. City of Phoenix v. Geyler, 144 Ariz. 323, 328-29, 697 P.2d 1073, 1078-79 (1985). We will uphold the superior court s denial of a motion for relief from judgment unless undisputed facts and circumstances . . . require a contrary ruling as a matter of law . . . . Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 121, 317 P.2d 550, 552 (1957) (applying Arizona Rule of Civil Procedure 60(c)). B. Confession of Error. ¶8 We Husband failed to file an answering brief on appeal. could consider this a confession of error. Thompson v. Thompson, 217 Ariz. 524, 526 n.1, 176 P.3d 722, 724 n.1 (App. 2008). In our discretion, however, we will decide the appeal on its merits. See Gibbons v. Indus. Comm n of Ariz., 197 Ariz. 108, 111, ¶ 8, 3 P.3d 1028, 1031 (App. 1999). C. ¶9 Rule 85(C). Wife argues the evidence she discovered after entry of the decree showed that Husband had perjured himself in his trial testimony and had committed a fraud on the court. She argues at the very least she is entitled to an adjustment of the decree 5 because Husband withdrew nearly $40,000 more than he had testified to at trial. ¶10 for Arizona Rule of Family Law Procedure 85(C) provides relief from judgment under specific circumstances. It states, in relevant part: C. Mistake; Inadvertence; Excusable Neglect; Newly Evidence; Fraud, etc. Surprise; Discovered 1. On motion and upon such terms as are just the court may relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons: * * * b. newly discovered evidence, which by due diligence could not have been discovered in time to move for a new trial under Rule 83(D); c. fraud, misrepresentation, or other misconduct of an adverse party . . . . ¶11 The superior court gave no explanation for its denial of the Rule 85(C) motion. provide a reason however brief, for greatly The superior court is not required to its decisions, assists in but some appellate explanation, review, and may prevent unnecessary reversal where facts are close and support for a ruling is not patent from the record. at 329 n.3, 687 P.2d at 1079 n.3. Geyler, 144 Ariz. When the superior court provides no legal basis, we review the decision to see if it is 6 supported by any reasonable legal basis. Johnson v. Elson, 192 Ariz. 486, 489, ¶ 10, 967 P.2d 1022, 1025 (App. 1998). ¶12 As noted, although the superior court directed him to file a response to Wife s Rule 85(C) motion, Husband did not deny the evidence Wife proffered; nor did he argue that it was not newly discovered, within the meaning of the Rule, or that the reasonable conclusion to be drawn from the evidence was not that he had committed perjury or a fraud on the court. ¶13 In the absence of an answering brief by Husband, we have reviewed the record, including the evidence and testimony presented at trial. the original As the superior court concluded in entering decree, the record contains evidence supporting Husband s testimony that he had used $56,000 from the line of credit to pay community expenses. The same record, however, contains no evidence to support the proposition that Husband spent the additional $38,000 he withdrew just before trial on community expenses. ¶14 In fashioning its decree, the superior court relied on Husband s testimony that he had drawn down only $56,000 from the line of credit and that he had spent those funds on expenses of the community. equitable That evidence formed the basis of the court s division of the parties community property. We conclude that having been presented with newly discovered evidence that contrary to his 7 sworn testimony, Husband had withdrawn another $38,000 from the line of credit, and in the absence of evidence that Husband spent that additional amount on community expenses, the court erred by failing to grant Wife s Rule 85(C) motion. CONCLUSION ¶15 court s For the denial of foregoing Wife s reasons, Motion for we reverse the Reconsideration superior and for Partial Relief from Judgment and remand for further proceedings consistent with this decision. /s/_______________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/________________________________ PATRICIA A. OROZCO, Presiding Judge /s/________________________________ JON W. THOMPSON, Judge 8

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