Ledo v. Ledo

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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. 31.34 DIVISION ONE FILED: 06/05/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of: ) ) VICTOR LEDO, ) ) Petitioner/Appellant, ) ) v. ) ) IRMA LEDO, ) ) Respondent/Appellee. ) ) 1 CA-CV 11-0633 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2011-000009 The Honorable Sam J. Myers, Judge AFFIRMED Victor Ledo In propria persona Mesa Palomino Law Firm, P.C. By Debra L. Palomino Attorneys for Respondent/Appellee Phoenix J O H N S E N, Judge ¶1 Victor Ledo appeals the superior court s order granting Irma Ledo s motion to set aside the default decree of dissolution Dissolution and of vacating Marriage the by court s Default. earlier For the Decree reasons of that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Victor filed a petition for marriage to Irma on January 6, 2011. 1 petition and summons the next day. dissolution of his Irma was served with the By January 18 and over the next three months, however, Victor assured Irma he had called his attorney to stop the divorce. remained in the marital home During that time, Victor and participated activities, such as attending church as a family. in family Victor and Irma participated in counseling and cooperated in creating draft property and child custody agreements. Until at least April 3, however, Victor told Irma and their children that [the family] [was] going to be okay. ¶3 Meanwhile, petition had against Irma, And that this thing was all over with. after the expired, Victor and court the time for applied entered Irma to for entry default on answer of the default February 16. According to Irma, Victor prevented her from receiving notice of 1 We view the evidence in the light most favorable to sustaining the superior court s findings. In re Marriage of Priessman, 228 Ariz. 336, 337, ¶ 2, 266 P.3d 362, 363 (App. 2011); O'Hair v. O'Hair, 109 Ariz. 236, 240, 508 P.2d 66, 70 (1973) ( [T]he duty of a reviewing court begins and ends with the inquiry whether the trial court had before it evidence which might reasonably support its action viewed in the light most favorable to sustaining the findings. ). 2 the application for entry of default by withholding her mail. The court a decree including default, entered of a property dissolution division and of a marriage child by custody determination, on April 7. ¶4 Irma filed a motion to set aside the default judgment one week later, alleging Victor had deceived her by claiming to withdraw the petition for dissolution while secretly continuing with the hearing, proceedings. the vacated the court After granted default briefing Irma s decree of and motion an to dissolution, evidentiary set aside finding and that [Victor] misrepresented the status of the proceedings, and that [Irma] reasonably relied on the misrepresentations, to her detriment. 2 ¶5 Victor timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and pursuant to Arizona Revised (West 2012). 3 744 P.2d 1, Statutes ( A.R.S. ) section 12-2101(A)(2) See also Sanders v. Cobble, 154 Ariz. 474, 475, 2 (1987) (order setting aside default judgment appealable as special order made after judgment). 2 Although not germane to this appeal, the court later clarified that its order vacating the default decree only set aside the terms of the decree, not the fact of dissolution. 3 Absent material revision after the date of the events at issue, we cite a statute s current version. 3 DISCUSSION ¶6 Victor argues the superior court lacked sufficient grounds to set aside the default dissolution decree. We review the court s order setting aside a default judgment for an abuse of discretion. Richas v. Superior Court, 133 Ariz. 512, 514, 652 1037 P.2d 1035, (1982); Birt v. Birt, 549, ¶ 9, 96 P.3d 544, 547 (App. 2004). Fam. Law P. 1 cmt. (family law 208 Ariz. 546, See generally Ariz. R. rules subject to same interpretation as other rules with substantially same language), 85 cmt. (based on Ariz. R. Civ. P. 60). The law favors resolution on the merits and therefore resolves all doubts in favor of the moving party. Richas, 133 Ariz. at 514, 652 P.2d at 1037 (citing Union Oil Co. of Cal. v. Hudson Oil Co., 131 Ariz. 285, 288, 640 P.2d 847, 850 (1982)). ¶7 Arizona Rule of Family Law Procedure 44(C) authorizes the superior court to set aside a default dissolution judgment based on grounds set forth in Rule 85(C). Rule 85(C)(1)(c) in turn authorizes the court to grant relief from judgment obtained through fraud, adverse party. misrepresentation, or other misconduct of an Ariz. R. Fam. Law P. 85(C)(1)(c); see also Ariz. R. Civ. P. 60(c)(3) (authorizing relief from judgment on grounds of fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party ). To justify relief, the party seeking to set aside a 4 default judgment generally must show 1) that its failure to file a timely answer was excusable under one of the subdivisions of [Rule 85(C)(1)], 2) that it acted promptly in seeking relief and 3) that it had a substantial and meritorious defense to the action. Blair v. Burgener, 226 Ariz. 213, 216, ¶ 7, 245 P.3d 898, 901 (App. 2010) (quoting Almarez v. Superior Court, 146 Ariz. 189, 190 91, 704 P.2d 830, 831 32 (App. 1985)). Victor concedes Irma promptly sought relief from the default decree, but argues she failed to show misrepresentation under the rule and a meritorious defense. ¶8 showing other Relief from judgment under Rule 85(C)(1)(c) requires a that the adverse misconduct party s prevented presenting its case. fraud, the misrepresentation moving misconduct rendering it meriting inequitable (citation omitted). from fully Estate of Page v. Litzenburg, 177 Ariz. 84, 93, 865 P.2d 128, 137 (App. 1993). remedial, party or to relief let Because the rule is can the come in judgment any stand. form Id. Here, Irma admitted she was served with the petition and initially knew of the dissolution proceedings. She further testified, however, that Victor thereafter told her on several occasions that he had called his attorney to stop the divorce. Until reconciling because marital home, at least Victor attended April 3, remained church with 5 she with her believed the and they family the were in the children and repeatedly told her that we were going to be okay. this thing prevented default was her until all over from with. receiving after the Irma notice court also of granted the And that testified Victor application judgment by for default. Although Victor claimed he never suggested he would withdraw the dissolution petition, Irma s testimony constituted a proper showing of facts on which the superior court could exercise its discretion. See Richas, 133 Ariz. at 514, 652 P.2d at 1037. Similarly, although Victor argues Irma s cooperation in creating a draft custody agreement shows agreement she knew and the draft property dissolution settlement proceedings were ongoing, these actions are consistent with an attempt to reach an amicable, out-of-court agreement in the event reconciliation efforts might fail. The court did not err by finding [Victor] misrepresented the status of the proceedings, and that [Irma] [] relied on the misrepresentations. ¶9 Victor next argues Irma failed to establish a meritorious defense warranting relief from the default decree. Although the moving party must present something more than simple speculation, the showing of a meritorious defense need not be strong because it is not intended to be a substitute for a trial of the facts. at 1040. agreement, Here, signed Irma by Richas, 133 Ariz. at 517, 652 P.2d presented Victor, a draft property under which Irma 6 settlement would receive full ownership of the house on 80th Street and Victor would receive the marital residence. Under the default dissolution decree, however, Victor was awarded title to both houses. 4 In fact, under the draft agreement, Irma was to receive $12,000 cash, whereas she received only an $8,000 equalization payment under the default decree. Because the default decree is less favorable to Irma than the draft agreement, the court did not err by concluding Victor s misrepresentations resulted in a detriment to Irma. ¶10 actual Finally, notice Victor of the argues petition that and because failed Irma to received answer, her culpable conduct prevents her from obtaining relief by way of a motion to vacate. But Rule 85(C)(3), in conjunction with Rule 44(C), addresses that precise situation. notice, but the excused under court the rule found by Irma s Victor s Irma conceded actual failure to respond misrepresentations. was As described above, the court did not err in so finding. CONCLUSION ¶11 order. For the foregoing reasons, we affirm the court s Irma requests attorney s fees on appeal under A.R.S. § 4 The default decree assigned to Irma the outstanding mortgage debt on the 80th Street house even though it awarded title to Victor. Victor characterized this as a typographical error, and, because Victor conceded he had and would assume the debt, we need not consider it as an additional detriment to Irma under the default decree at this time. 7 25-324 (West 2012). We deny her request without prejudice. She may seek her fees incurred in this appeal pursuant to § 25324(A) at the conclusion of the dissolution action. Because she has on prevailed on appeal, we grant her costs appeal, contingent on compliance with Arizona Rule of Civil Appellate Procedure 21. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PHILIP HALL, Judge 8

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