Anderson v. Anderson

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Marriage of: ) ) STEVEN ANDERSON, ) ) Petitioner/Appellee, ) ) v. ) ) SABRINA ANDERSON, ) ) Respondent/Appellant. ) ) DIVISION ONE FILED: 04/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CV 11-0326 DEPARTMENT E MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2010-004580 The Honorable Robert E. Miles, Judge AFFIRMED Law Office of Robert A. Jensen, PLC By Robert A. Jensen Phoenix -AndLaw Office of Scott E. Boehm, PC By Scott E. Boehm Attorneys for Petitioner/Appellee Burt & Feldman By Elizabeth Feldman Attorneys for Respondent/Appellant H A L L, Judge Phoenix Scottsdale ¶1 Sabrina Anderson (Mother) appeals from the family court s order denying her motion to set aside the consent decree (Decree) dissolving her marriage to Steven Anderson (Father). Mother contends she was entitled to relief under Arizona Rule of Family Law Procedure (Rule) 85(C)(1).1 For the reasons set forth below, we affirm. BACKGROUND ¶2 had Father and Mother were married on March 7, 1987, and two children. Father initiated divorce proceedings by filing a petition for dissolution of marriage on July 6, 2010. ¶3 Upon approval of their respective counsel, the parties subsequently executed the Decree, which provided for the division of real and personal property and awarded joint custody of the children. Father agreed Pursuant to a worksheet filed with the Decree, to pay $1,409.47 monthly in child support. Further, the Decree set forth the court s finding and order that neither party was entitled to an award of spousal maintenance. The Decree was filed on October 1, 2010. Neither party timely appealed. 1 Rule 85 is based on Rule 60 of the Arizona Rules of Civil Procedure and provides a party various bases for seeking relief from a final judgment by motion. Compare Rule 85 with Ariz. R. Civ. P. 60; see also Committee Comment to Rule 85. 2 ¶4 After retaining new counsel, on February 4, 2011 Mother requested that the court set aside the Decree2 arguing she was entitled to relief under Rule 85(C)(1)(a), (b)[sic],3 and (f) based on her former attorney s failure to properly advise her. She alleged that there were inequities in the Decree s terms addressing spousal maintenance, division of community property, and the amount of child support. The family court summarily denied Mother s motion without comment by signed minute entry filed March 29, 2011. pursuant to Arizona Mother appealed. Revised Statutes We have jurisdiction (A.R.S.) section 12- 2101(A)(2) (Supp. 2011).4 2 Mother concurrently filed a petition to modify child support, which she later withdrew. 3 Although Mother referenced subsection (b) in her motion to set aside, which subsection refers to newly discovered evidence, her substantive argument makes clear she intended to reference subsection (c). She did raise a subsection (b) argument in her reply to Father s response to the motion to set aside, but she does not expressly raise such an issue on appeal. To the extent she implicitly does so, we reject it for the reasons stated herein. 4 Father argues that we lack jurisdiction to consider this matter because Mother filed her notice of appeal over six months after the Decree was filed, and a motion under Rule 85(C)(1) does not extend the time by which a notice of appeal must be filed. Although Father concedes that an order denying relief under Rule 85(C) is subject to appellate review, he contends that the record reflects Mother is attempting to appeal from the Decree not the court s order denying her motion to set aside. Notwithstanding the technical deficiencies in Mother s notice of appeal and her docketing statement pointed out by Father, these documents sufficiently indicate Mother s intention to appeal from the court s order denying her relief under Rule 3 DISCUSSION ¶5 Rule 85(C) provides, 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: a. mistake, inadvertence, surprise, or excusable neglect; . . . . c. fraud, misrepresentation, or other misconduct of an adverse party; . . . . or f. any other reason justifying relief from the operation of the judgment. 2. The motion shall be filed within a reasonable time, and for reasons 1(a), 1(b) and 1(c) not more than six (6) months after the judgment or order was entered or proceeding was taken. ¶6 We review the denial of judgment for an abuse of discretion. a motion to set aside a City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985). The superior court s decision will be affirmed unless undisputed facts and 85(C). Accordingly, we conclude that we have jurisdiction in this appeal. See Baker v. Emmerson, 153 Ariz. 4, 8, 734 P.2d 101, 105 (App. 1986) ( [A]n appellate court construes the notice of appeal liberally in order to avoid denying review of issues that the parties clearly intend to appeal . . . . ). 4 circumstances require a contrary ruling. at 1080 (citation omitted). The Id. at 330, 697 P.2d party seeking to have a judgment vacated bears the burden of proving the grounds relied upon for relief, and the superior court cannot set aside a judgment without some evidence to support the claim on which [the Rule 85(C) motion] depended. Lawwill v. Lawwill, 21 Ariz.App. 75, 78, 515 P.2d 900, 903 (1973). ¶7 We find no abuse of discretion here. First, Mother s motion to set aside does not point to any evidence supporting her Rule 85(C) claims. unsubstantiated inequities Rather, her motion consists entirely of conclusory and her statements former counsel s properly advise and represent her. states she recommended was by advised Father s regarding by and attorney, the purported Decree s failure to For example, Mother s motion relied who did upon an not attorney conduct any discovery but informed her that the division of property was fair, and that maintenance. the Court would not likely award spousal Further, in an apparent attempt to explain the timeliness of her motion, Mother asserted: In this case, Mother promptly sought independent legal advice by consulting with undersigned counsel after the Decree was entered and filed. Mother and counsel then requested that Father reconsider his position and attempt to resolve the issue in an amicable forum, mediation. Father requested additional time, which counsel consented to and then Father failed to 5 communicate with counsel. Mother promptly filed the instant motion. ¶8 then Mother did not provide evidentiary support by way of an affidavit or copies of letters for the above assertions. Thus, she did not meet her burden to prove the alleged grounds for Rule 85(C) relief. See id. Mother then repeats this error in her brief on appeal; her citations to facts mostly refer to the unsubstantiated assertions in her motion.5 facts that are not properly supported. We disregard See Ariz. Dep t of Econ. Sec. v. Redlon, 215 Ariz. 13, 15, ¶ 2, 156 P.3d 430, 432 (App. 2007). ¶9 Second, Mother s under Rule 85(C)(2). divorce decree noticed the motion to set aside was untimely She asserts that she received the final on October 8, 2010 and child support worksheet, for which the first listed time Father s income as . . . $204,000 annually[], which is less than one-half of his true reasonable annual income explanation of supported $480,000. by the She record provides for why no she waited until February 4, 2011 to seek Rule 85(C) relief based, 5 Mother contends on appeal that these undisputed facts compelled the superior court, at a minimum, to hold an evidentiary hearing on her Rule 85(C) claims, which hearing would apparently provide the basis for the court to explain its rationale for denying Mother s motion. We reject this argument because Mother herself recognizes that the court was not required to provide a reason for its decision. And, in any event, the court correctly concluded no evidentiary hearing was necessary because Mother did not provide the court with any evidence that disputed the findings in the Decree. 6 at least in part, on the amount of child support that was determined by Father s purported misrepresentation of income. See supra at ¶ 5 (Rule 85(C)(2) requires motion to set aside to be filed within a reasonable time[.] ). ¶10 Finally, we note that Mother s dissatisfaction with her former attorney s representation in this matter does not provide a basis for Rule 85(C) relief from the Decree. Permitting relief from judgments entered as a result of an attorney's actions clearly undermines the undeniable public policy that recognizes the finality of judgments and discourages multiplicitous litigation. Panzino v. City of Phoenix, 196 Ariz. 442, 448, ¶ 19, 999 P.2d 198, 204 (2000) (quoting Smith v. Saxon, 186 Ariz. 70, 74 n.3, 918 P.2d 1088, 1092 n.3 (1996)). ¶11 Based on the foregoing, we cannot conclude that the family court abused its discretion in denying Mother s motion to set aside the Decree. 7 CONCLUSION ¶12 The family relief is affirmed. Father s request for court s order denying Mother Rule 85(C) Based on the disparity in income, we deny attorneys fees. However, Father is entitled to his costs upon his compliance with ARCAP 21. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/______________________________________ PATRICIA A. OROZCO, Presiding Judge _/s/______________________________________ JOHN C. GEMMILL, Judge 8

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