Dyke v. Dyke
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:
)
)
DONALD ALLEN DYKE,
)
)
Petitioner/Appellant, )
)
v.
)
)
ROBYN KAY DYKE,
)
)
Respondent/Appellee. )
________________________________)
DIVISION ONE
FILED: 09/29/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
No. 1 CA-CV 10-0409
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Not for Publication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. FN2009-003253
The Honorable David J. Palmer, Judge
AFFIRMED
Donald Allen Dyke
In Propria Persona Petitioner/Appellant
Robyn Kay Brown-Dyke
In Propria Persona Respondent/Appellee
Glendale
Moberly, MO
G E M M I L L, Judge
¶1
Donald Dyke (“Husband”) appeals from portions of the
decree dissolving his marriage to Robyn Dyke (“Wife”).
Husband
challenges the spousal maintenance award and the order for him
to pay certain medical costs for Wife.
For the reasons that
follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2
Husband and Wife married in 1983.
In 2003, Wife moved
to Missouri after Husband committed domestic violence against
her.
As a result of this incident, Husband pled guilty to a
class 6 undesignated offense.
See Maricopa County Super. Ct.
Case No. CR2003-009716.
¶3
Husband
2009.
a
petition
for
dissolution
in
August
After a trial, the court issued a decree awarding Wife
spousal
maintenance
retroactive
ordered
to
necessary
of
to
per
1,
2009.
pay
surgery
based
$300
September
Husband
reconstruction
2003.
filed
upon
the
and
the
month
owed
pay
domestic
Husband timely appealed.
thirty
Additionally,
debt
to
for
any
for
future
violence
months
the
Wife’s
court
facial
medical
that
costs
occurred
in
We have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A), (B)
(2003).
DISCUSSION
¶4
Husband first challenges Wife’s entitlement to spousal
maintenance and the amount and duration of the award.
an
award
of
spousal
maintenance
for
an
abuse
of
We review
discretion.
Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14, 972 P.2d 676,
681
(App.
1998).
We
view
the
2
evidence
in
the
light
most
favorable to sustaining the award and “will affirm the judgment
if there is any reasonable evidence to support it.”
Cullum v.
Cullum, 215 Ariz. 352, 354, ¶ 9, 160 P.3d 231, 233 (App. 2007).
¶5
to
To qualify for spousal maintenance, Wife was required
establish
at
least
one
of
the
following
four
statutory
factors: (1) that she lacks sufficient property, including that
awarded to her, to meet her reasonable needs; (2) that she is
unable to be self-sufficient through appropriate employment or
lacks earning ability in the labor market adequate to be selfsufficient; (3) that she contributed to Husband’s educational
opportunities; or (4) that she had a marriage of long duration
and is of an age that may preclude her from gaining suitable
employment.
A.R.S. § 25-319(A)(1)-(4) (2007).
Once a spouse
establishes a statutory basis for spousal maintenance, the court
must then consider the relevant factors listed in A.R.S. § 25319(B)
in
setting
the
amount
and
duration
of
the
award.
Leathers v. Leathers, 216 Ariz. 374, 377, ¶ 10, 166 P.3d 929,
932 (App. 2007).
Those factors include the standard of living
established during the marriage; duration of the marriage; age,
employment history, earning ability and physical condition of
the spouse seeking maintenance; the supporting spouse's ability
to pay and meet his or her own financial needs; the comparative
earning power of the spouses; the financial resources of the
spouse seeking maintenance and time needed to acquire sufficient
3
education
damages
or
from
training
conduct
to
that
find
appropriate
results
in
employment;
criminal
and
conviction
either spouse in which the other spouse was the victim.
of
A.R.S.
§ 25-319(B)(1)-(5), (9)-(10), (13).
¶6
The
because
reasonable
determined
Wife
lacks
she
court
sufficient
property
needs,
is
unable
to
qualified
be
to
for
maintenance
provide
for
self-sufficient
her
through
appropriate employment, and had a marriage of long duration and
is of an age that may preclude gaining employment adequate to be
self-sufficient.
A.R.S. § 25-319(A)(1)-(2), (4).
Additionally,
the court set forth findings on all of the relevant A.R.S. § 25319(B) factors in setting the amount and duration of the award.
For instance, the court found the parties enjoyed a comfortable
standard of living during the marriage, Wife occasionally worked
at
low
paying
jobs
during
the
marriage
and
currently
needs
certification to work as a caregiver, which she has done since
separating from Husband in 2003.
(10).
is
A.R.S. § 25-319(B)(1), (3),
Husband is in a better financial position than Wife and
able
to
maintenance
meet
to
his
Wife.
own
financial
A.R.S.
§
needs
while
25-319(B)(4),
however, cannot currently meet her own needs.
also
(5).
paying
Wife,
A.R.S. § 25-
319(B)(9).
¶7
The
record
the court’s findings.
contains
substantial
evidence
supporting
The parties were married 20 years before
4
separating.
A.R.S. § 25-319(A)(4), (B)(2).
At the time of the
hearing, Wife was 47 years old, had completed tenth grade and
obtained a GED.
A.R.S. § 25-319(A)(4), (B)(3).
Wife worked at
a convenience store for a couple of years during the marriage,
but was primarily a stay at home mother. 1
A.R.S. § 25-319(B)(1).
Between 2003 and July 2009 she worked as a caregiver, making
$9.00 per hour approximately 30 hours per week, but the company
she
worked
According
for
to
unemployment,
certification
closed.
the
is
to
A.R.S.
record,
unable
work
to
as
319(A)(2), (B)(9), (10).
Wife
a
pay
§
25-319(A)(2),
is
currently
her
caregiver
bills,
again.
(B)(4).
receiving
and
A.R.S.
needs
§
25-
Husband has worked as a truck driver
throughout the marriage and earns approximately $1,000 per week.
A.R.S. § 25-319(B)(4), (5).
and
may
need
future
Additionally, Wife suffered damages
surgeries
resulting
from
violence incident for which Husband was convicted.
the
domestic
A.R.S. § 25-
319(B)(13); see State v. Thompson, 200 Ariz. 439, 441, ¶ 7, 27
1
Without citing to the record, Husband states Wife is
able to be gainfully employed because of her customer service
and cashier experience and because she attended college classes.
Additionally, Husband asserts Wife was self-sufficient for the
seven years prior to the petition for dissolution.
Because
Husband does not cite to the record as required and because
these statements are not supported by the record, we disregard
them. See Flood Control Dist. of Maricopa County v. Conlin, 148
Ariz. 66, 68, 712 P.2d 979, 981 (App. 1985) (court may disregard
facts lacking appropriate references to record and those
unsupported by record); see also ARCAP 13(a)(6) (an argument in
an opening brief must contain citation to authority and parts of
the record relied on).
5
P.3d 796, 798 (2001) (“One is convicted when there has been a
determination of guilt by verdict, finding, or the acceptance of
a plea.”).
¶8
Wife requested $300 per month for 240 months and the
court awarded $300 per month for 30 months.
Because the court
considered the relevant statutory factors and its findings are
supported by the record, the court did not abuse its discretion
in awarding Wife spousal maintenance in the amount and duration
set forth therein.
¶9
Next, Husband argues the court erred by considering
evidence of the criminal case stemming from the 2003 domestic
violence incident because the court rejected Wife’s pre-trial
motion “to include case #CR2003009716 as Respondent’s Exhibits
in
Divorce”.
discretion.
We
review
evidentiary
issues
for
an
abuse
of
Cervantes v. Rijlaarsdam, 190 Ariz. 396, 398, 949
P.2d 56, 58 (App. 1997).
¶10
Although the court rejected Wife’s motion because of
her failure to file the motion with the clerk of the court 2 and
to
send
Husband
a
copy,
there
was
testimony about the criminal case.
no
error
considering
the
Wife listed the case in her
pre-trial statement and Husband did not object.
At the hearing,
the court questioned Wife about the domestic violence incident
2
The motion is not part of the record.
6
and Wife testified about the criminal case and gave the case
number.
Husband did not object to Wife’s testimony, and in
fact, testified about the matter himself.
See Estate of Reinen
v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286, ¶ 9, 9 P.3d
314, 317 (2000) (“An objection to proffered testimony must be
made either prior to or at the time it is given, and failure to
do so constitutes a waiver.”).
is waived.
Accordingly, Husband’s argument
Additionally, Husband’s conviction was relevant to
the issue of spousal maintenance.
generally
Ariz.
R.
Evid.
402
A.R.S. § 25-319(B)(13); see
(“All
relevant
admissible, except as otherwise provided”).
evidence
is
Further, a court
may take judicial notice “that a record exists,” “the nature of
its
content,”
and
“that
a
judgment
has
been
rendered.”
Scottsdale Mem'l Health Sys., Inc. v. Clark, 157 Ariz. 461, 468,
759 P.2d 607, 614 (1988); see also Reidy v. O'Malley Lumber Co.,
92 Ariz. 130, 132, 374 P.2d 882, 884 (1962) (court can take
judicial notice of another action in the same court).
Based on
the information set forth in the decree, it appears the court
took judicial notice of the criminal case, and there was no
error in so doing.
¶11
Husband also argues the court erred by ordering him to
pay for Wife’s medical costs because the restitution issue was
adjudicated
in
the
criminal
case.
Contrary
to
Husband’s
argument, Wife testified there was no restitution ordered in the
7
criminal case. 3
We defer to the family court’s assessment of
witness credibility as it is in the best position to make such
determination.
680.
Further,
Gutierrez, 193 Ariz. at 347, ¶ 13, 972 P.2d at
in
her
pre-trial
statement,
Wife
requested
payment of her past and future medical bills resulting from the
domestic violence and Husband did not object to these issues.
Based on the evidence in this record, the court did not err by
ordering Husband to pay Wife’s medical costs resulting from the
domestic violence.
¶12
Last, Husband argues the court erred by considering
Wife’s untimely response to the petition for dissolution.
Wife
accepted service of the petition on September 14, 2009, but did
not file a response until November 2, 2009.
Husband filed an
application and affidavit for default on October 19, 2009.
¶13
There
was
no
error
considering
Wife’s
response.
First, this issue is waived because Husband never requested the
court to strike Wife’s response, nor does he cite any legal
authority requiring the family court to sua sponte strike Wife’s
response.
See In re 1996 Nissan Sentra, 201 Ariz. 114, 117, ¶
7, 32 P.3d 39, 42 (App. 2001) (failing to file a motion to
strike waives any objection to deficiencies of a document); and
3
We disregard Husband’s unsupported statements in his
reply brief concerning his plea agreement.
See Flood Control
Dist. of Maricopa County, 148 Ariz. at 68, 712 P.2d at 981.
8
Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62, 211 P.3d 1272,
1289
(App.
2009)
(failing
to
support
arguments
with
legal
authority may constitute abandonment or waiver of that claim).
¶14
Moreover, the court never entered a default judgment
against Wife.
and
shortly
Nearly two months after Wife filed her response,
after
Wife
failed
to
appear
at
a
resolution
conference, the court set a default hearing for March 31, 2010.
At some point, the hearing was apparently converted to a hearing
on Wife’s motion for temporary orders, although notification of
such change does not appear in the record.
At the hearing, the
court converted the matter to the dissolution trial and Husband
did not object.
¶15
Additionally,
Wife
actively
participated
telephonically at the trial and Husband made no objection to
Wife’s participation.
CONCLUSION
¶16
Finding no error, we affirm the dissolution decree.
__/s/____________________________
JOHN C. GEMMILL, Judge
CONCURRING:
____/s/____________________________
JON W. THOMPSON, Presiding Judge
____/s/____________________________
MAURICE PORTLEY, Judge
9
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.
