Serrato v. Serrato
Annotate this Case
Download PDF
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: ) ) ANACLETA G. SERRATO, ) ) Petitioner/Appellee, ) ) v. ) ) JOSE M. SERRATO, ) ) Respondent/Appellant. ) ) __________________________________) No. 1 CA-CV 10-0105 DIVISION ONE FILED: 01/27/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2007-008102 The Honorable Randall H. Warner, Judge AFFIRMED Bert L. Roos P.C. By Bert L. Roos Attorneys for Petitioner/Appellee Phoenix Law Offices of T. Anthony Guajardo By T. Anthony Guajardo Attorneys for Respondent/Appellant Phoenix D O W N I E, Judge ¶1 Jose Serrato ( Husband ) appeals from the denial of his post-decree motion. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Husband 2008. alia, and Anacleta Serrato ( Wife ) divorced in In the decree of dissolution, the court ordered, inter that subdivided the into 6 two acres of property properties of awarded to each of the parties. accomplished, the property on Vista will be value equal Alta which will be If such a subdivision cannot be will be sold with each party receiving half of the sale proceeds. ¶3 In June 2009, Husband filed a motion to enforce the decree. He stated that he had divided the Alta Vista property into two parcels of equal value and equal acreage. Husband further divided one parcel (which he referred to as his ½ of the six acres ) into three one-acre plots. He quitclaimed his interest in the remaining undivided three-acre parcel to Wife. Wife, however, refused to sign a quitclaim deed for the three one-acre plots. Husband s motion asked the superior court to make her sign the Quit Claim Deed. ¶4 After an evidentiary hearing, the court found that Husband had unilaterally selected his desired portion of the Alta Vista property and subdivided it without consulting Wife. In a signed minute entry filed November 9, 2009, the court awarded Wife the three one-acre plots and awarded Husband the 2 undivided three-acre parcel. It reasoned that permitting Husband to both divide the property and pick which half to take is inequitable, and found that Husband had every incentive to pick the better property for himself. The court ordered that the parties equally share the costs of subdividing the property. ¶5 Husband did not appeal from ruling. On December 14, 2009, he filed a Second Motion to Enforce Decree and/or Reconsideration. the November 9, 2009 In an unsigned December 17, 2009 minute entry, the court denied the motion. On December 24, ruling. 2009, Husband appealed from the December 17 We suspended the appeal to allow Husband to obtain a signed order from the superior court. After he did so, the appeal was reinstated. DISCUSSION ¶6 A notice of appeal must be filed within thirty days from entry of judgment from which the appeal is taken. ARCAP 9(a). James We lack jurisdiction over untimely filed appeals. v. State, 215 Ariz. 182, 185, ¶ 11, 158 P.3d 905, 908 (App. 2007). ¶7 days Husband filed his notice of appeal more than thirty after the November 9 decision, extending motion as to that ruling. fact, Husband s notice of 3 he filed no time- As a result, the November 9 ruling is not subject to our review. this and Perhaps in recognition of appeal states that he is appealing from the December 17 ruling that denied his Second Motion to Enforce Decree and/or Reconsideration. That motion, though, raised no new facts or circumstances regarding the Alta Vista property. November 9 ruling. Instead, it sought reconsideration of the The motion asserted that the superior court had improperly deviated from the decree s terms and requested the following relief: WHEREFORE premises, considered, [sic] the movant (Respondent/Jose Serrato) prays that this Court enter an order correcting its most recent Minute Entry Order to conform to the terms of the Divorce Decree . . . . (Emphasis added.) ¶8 filed. Husband s motion for reconsideration was not timely Rule 35(D), Rules of Family Law Procedure, reads in relevant part: A party seeking reconsideration of a ruling of the court may file a motion for reconsideration. All motions for reconsideration, however titled, shall be submitted without oral argument and without response or reply unless the court otherwise directs. . . . A motion authorized by this rule may not be employed as a substitute for a motion pursuant to Rule 82(B), 83 or 85(C) and shall not operate to extend the time within which a notice of appeal must be filed. A motion for reconsideration shall be filed not later than thirty (30) days after the date of filing of the ruling sought to be reconsidered. 4 ¶9 Husband s motion for reconsideration was filed thirty- five days after the November 9 ruling and was thus untimely. The superior court properly denied it. 1 CONCLUSION ¶10 The judgment of the superior court is affirmed. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ DANIEL A. BARKER, Presiding Judge /s/ MICHAEL J. BROWN, Judge 1 The superior court also apparently treated Husband s motion as one for reconsideration. It denied the motion three days after it was filed and did not ask Wife to file a response. 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
