Wigand v. Wigand

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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: ) ) DEBORAH WIGAND, ) ) Petitioner/Appellant, ) ) v. ) ) WAYNE WIGAND, ) ) Respondent/Appellee. ) ) DIVISION ONE FILED: 03-16-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CV 09-0198 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FN 2008-000878 The Honorable Michael R. McVey, Judge AFFIRMED The Harrian Law Firm PLC By Julius Harms Attorneys for Petitioner/Appellant Wayne Wigand, Respondent/Appellee In Propria Persona Glendale Gold Canyon P O R T L E Y, Judge ¶1 Deborah Wigand ( Wife ) appeals from an order vacating a default decree of dissolution. we affirm. For the reasons that follow, FACTUAL AND PROCEDURAL HISTORY ¶2 spousal Wife filed for divorce in February 2008, and requested maintenance, an equitable division property and debts, and attorneys fees. of the community Her petition also alleged that Wayne Wigand ( Husband ) wasted community assets during the marriage. Husband, who was living and working in New Mexico, accepted and waived service of process. ¶3 Although Husband claimed that the parties were discussing a divorce settlement, Wife filed an application and affidavit for default, and the court subsequently entered a default decree. ¶4 The decree awarded Wife $2895 per month in spousal maintenance for twelve years, the community residence (which had approximately $155,000 in equity), all personal property and the vehicle in her possession, the retirement account in her name, any debts that were incurred by her or in her name, and her attorneys fees. Husband received the car and personal property in his possession, the retirement account in his name, and any debts that were incurred by him or in his name. ¶5 Five months later, Husband sought to set aside and vacate the default decree. After an evidentiary hearing, the family court vacated the decree, in part, pursuant to Arizona Rule of Family Law Procedure 85(C)(1)(a). 2 Wife appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(C) (2003). 1 DISCUSSION ¶6 relief We review a trial court s ruling on a motion for from discretion. judgment under Rule 60(c) for an abuse of Maher v. Urman, 211 Ariz. 543, 550, ¶ 21, 124 P.3d 770, 777 (App. 2005). Although the family court cited Rule 85(C)(1)(a) as the basis for its ruling, the rule is analogous to Arizona Rule of Civil Procedure 60(c)(1). Both rules provide that the court may relieve a party from a final judgment for mistake, inadvertence, surprise or excusable neglect. Compare Ariz. R. Fam. L.P. 85(C)(1)(a), with Ariz. R. Civ. P. 60(c)(1). Therefore, the cases that interpret Arizona Rule of Civil Procedure 60(c)(1) are applicable to Arizona Rule of Family Law Procedure 85(C)(1)(a). ¶7 See Ariz. R. Fam. L.P. 1, cmt. The purpose of [Rule 60(c)(1)] is to provide relief for those mistakes and errors which inevitably occur despite diligent efforts to comply with the rules. Maher, 211 Ariz. at 550, ¶ 21, 124 P.3d at 777 (quoting City of Phoenix v. Geyler, 144 Ariz. 323, 332, 697 P.2d 1073, 1082 (1985)). To obtain relief under Rule 60(c)(1), a party must show (1) mistake, inadvertence, surprise, or excusable neglect; (2) that relief 1 See also Sanders v. Cobble, 154 Ariz. 474, 475, 744 P.2d 1, 2 (1987) (holding that an order setting aside a default judgment is appealable as a special order made after judgment ). 3 was sought promptly; and (3) that a meritorious claim existed. Maher, 211 Ariz. at 550, ¶ 21, 124 P.2d at 777 (quoting Copeland v. Ariz. Veterans Mem l Coliseum & Exposition Ctr., 176 Ariz. 86, 89, 859 P.2d 196, 199 (App. 1993)). The general test of what is excusable is whether the neglect or inadvertence is such as might be the act of a reasonably prudent person under the same circumstances. State v. Jackson, 210 Ariz. 466, 469, ¶ 15, 113 P.3d 112, 115 (App. 2005) (quoting Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 120, 317 P.2d 550, 552 (1957)). ¶8 Regardless of whether Husband s failure to respond to the petition was reasonable, once Wife notified him that there was an upcoming court hearing, he was required to act. very least, he should have opened the court At the notices he acknowledged receiving. ¶9 We find Beal v. State Farm Mut. Auto. Ins. Co., 151 Ariz. 514, 729 P.2d 318 (App. 1986) analogous. In Beal, the appellants failed to respond after being served with a summons and complaint which related action. accompanied a notice of Id. at 518, 729 P.2d at 322. dismissal in a Their attorney had advised them that nothing further needed to be done. Id. However, the appellants only told their attorney of the notice of dismissal complaint. and Id. did not read the accompanying summons and The court held it was reasonable for the trial court to have found this conduct unreasonable and that it did 4 not constitute excusable neglect. failure to open and read his Id. Similarly, Husband s mail was not reasonable, particularly after being told of an upcoming hearing. ¶10 At the evidentiary hearing, unconscionable nature of the decree. the court noted the Although the minute entry order did not refer to Rule 85(c)(1)(f), the rule allows relief from a final judgment for any other reason justifying relief from the operation of the judgment. The rule may be applied when relief is not available under any of the other subsections to the rule, and when our systemic commitment to finality of judgments is outweighed hardship or injustice. by extraordinary circumstances of Birt v. Birt, 208 Ariz. 546, 551, ¶ 22, 96 P.3d 544, 549 (App. 2004) (quoting Panzino v. City of Phoenix, 196 Ariz. 442, 445, ¶ 6, 999 P.2d 198, 201 (2000)) (internal citations omitted). ¶11 As the family court noted, Wife was awarded nearly all of the community assets, including all of the substantial equity in the marital home, her entire retirement account worth approximately $150,000, a car newer than Husband s, and all of the personal property in the marital home. Husband was awarded his older car, which was worth less than Wife s car, and his retirement account with a zero balance. Moreover, Husband was required to pay more than $80,000 in credit card debt. Wife claimed she knew nothing 5 about the debt, and Although Husband maintained it was for household furnishings and family expenses, the family court found that he had made a prima facie case that the debt was a community obligation. allocated $4000 in debt to Wife, Because the decree only the court stated that a reasonable person willing to risk entry of a default divorce decree would not have reason to expect such an unconscionably unfair division of community assets and debts. ¶12 We agree. Arizona law requires the courts to divide community property equitably. See A.R.S. § 25-318(A) (2007). The decree did not divide the community assets and debts equitably. Even if the family court had accepted Wife s allegation that waste created the credit card debt, the division of the community assets was grossly inequitable. The court may exercise its discretion under Rule 85(C)(1)(f) and grant relief where the judgment is harsh, rather than fair and equitable. Ariz. at 551, Gerstenberger, 1993)). ¶ 178 22, 96 Ariz. P.3d 549 (citing 164, 151, at 871 P.2d Birt, 208 Ulibarri 698, 711 v. (App. We can affirm the trial court when it reaches the correct result for any reason supported by the record. See State v. Wassenaar, 215 Ariz. 565, 577, ¶ 50, 161 P.3d 608, 620 (App. 2007); Linder v. Brown & Herrick, 189 Ariz. 398, 402, 943 P.2d 758, appellate 762 (App. court can 1997); affirm ARCAP a 13(b) superior adequately presented in the record). 6 (stating court on that any an basis As a result, we find that the family court did not abuse its discretion in setting aside the default decree. ATTORNEYS FEES ON APPEAL ¶13 appeal Wife requested pursuant to an A.R.S. award § of 25-324 her attorneys (Supp. 2009). fees on Although Husband earns more than Wife, in the exercise of our discretion, we deny Wife s request. We are also denying Husband s request for attorneys fees on appeal because he was not represented. Husband is, however, entitled to his costs pursuant to A.R.S. § 12-341 (2003) upon compliance with Arizona Rule of Civil Appellate Procedure 21. CONCLUSION ¶14 Based on the foregoing, we affirm the order setting aside the default decree. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ________________________________ LAWRENCE F. WINTHROP, Judge /s/ ________________________________ ANN A. SCOTT TIMMER, Chief Judge 7

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