McClellan v. McClellan

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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 Matter of: TERRY K. MCCLELLAN, Petitioner/Appellee, v. SUSAN E. MCCLELLAN, Respondent/Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06/07/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CV 10-0421 DEPARTMENT D MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FN 2008-002907 The Honorable David J. Palmer, Judge AFFIRMED Terry K. McClellan In Propria persona Tempe Mariscal, Weeks, McIntyre & Friedlander, P.A. By Leonce A. Richard Attorneys for Respondent/Appellant Phoenix H A L L, Judge ¶1 Susan McClellan appeals from the family court s rulings on her petition to enforce the dissolution decree and its denial of her motion for a new trial. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Susan McClellan (Wife) and Terry McClellan (Husband) were married on April 3, 1971. On September 12, 2008, Husband filed a petition for dissolution of marriage. On April 30, 2009, the family court entered a signed decree of dissolution dividing the parties property and request for spousal maintenance. debts and denying Wife s On May 15, 2009, Wife filed a motion to reconsider, which the family court denied. Neither party appealed from the dissolution decree. ¶3 On May 26, 2009, Husband filed an amended property settlement agreement, subsequent to dissolution, advising the family agreed to differently. the court that court s entry of divide their the the property parties, decree and of debts The settlement agreement bears the signatures and initials of both parties. ¶4 Emergency On June Motion 15, 2009, Wife Ex-Husband s filed Failure to a motion Comply entitled with Court Orders for a 2nd Time [and] Trying to Coerce Me into Signing Everything Away [and] Continually Harassing Me [and] Trying to Manipulate Me. Two days later, Husband filed a second amended property settlement agreement, advising the family court that 2 the parties had entered a new binding agreement controlling the division of their property and debts. The second settlement agreement bears the names and initials of the parties. ¶5 an On November 18, 2009, the Honorable Scott McCoy held evidentiary hearing dissolution decree. that she never McCoy Wife s motion to enforce the At the evidentiary hearing, Wife testified saw, settlement agreements. Judge on regarding read, or agreed to either of the When she was initially questioned by her signature on the agreements, Wife responded that she had signed a blank piece of white paper, not the actual agreements. Later, however, Wife Husband force[d] her to sign the documents. testified that Finally, Wife testified that her initials on the settlement agreements were not written in her handwriting. Husband, on the other hand, testified that Wife had the opportunity to read and review the settlement agreements before signing and that the initials and signatures on both agreements are in Wife s handwriting. Judge McCoy took the matter under advisement. ¶6 Shortly disqualified thereafter, himself and the however, case was Judge transferred Honorable David Palmer for all further proceedings. McCoy to the On February 12, 2010, Judge Palmer entered a signed minute entry ruling on Wife s petition to enforce the 3 dissolution decree. At the outset of his ruling, Judge Palmer explained that he carefully and deliberately reviewed the pleadings and the audio-recording of the evidentiary evidence, entered Judge the finding, hearing. Palmer amended Judge Based found that property Palmer upon both his parties agreements. explained review that of the voluntarily In making Wife s this inconsistent testimony that (1) she never saw the agreements, and (2) she was coerced into signing the agreements, and (3) she only signed a blank piece of paper, was not credible. Instead, Judge Palmer found Husband s testimony that the agreements were valid and voluntary credible. amended property Accordingly, Judge Palmer found that the agreements were binding and denied Wife s claims for relief other than ordering that Wife be permitted to retrieve her residence, personal as ordered property in the from the dissolution contravened by the subsequent agreements. ordered that consideration Husband pay pursuant to Wife the former the terms decree and not Judge Palmer also $5,000 of community the she is second owed as property agreement. ¶7 Wife timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-2101(B) and 2102(B) (2003). 4 DISCUSSION I. Denial of Motion for New Trial ¶8 Wife contends that the family court erred by denying her motion for new trial. Specifically, Wife argues that she should have been afforded a new trial because Judge Palmer did not have the opportunity to view the witnesses testimony firsthand and assess their credibility. ¶9 We review a trial court s ruling on a motion for new trial for an abuse of discretion. See State v. Rhodes, 219 Ariz. 476, 478, ¶ 9, 200 P.3d 973, 975 (App. 2008). As set forth in Rule 88 of the Rules of Family Law Procedure, when a judicial officer is unable to proceed after a trial or hearing has commenced, another judicial officer may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. available, [I]f an adequate electronic record is not however, successor judicial testimony is and a officer material and party shall recall disputed and testify again without undue burden. ¶10 Here, carefully Judge reviewed Palmer all enters the request, witness any who is the whose available to Id. expressly of a stated relevant that he had documents and carefully and deliberately listened to the recording of the 5 November 18, 2009 evidentiary hearing. Wife does not argue that the audio-recording of the evidentiary hearing was inadequate or unreliable. Cf. Gersten v. Gersten, 223 Ariz. 99, 105, ¶¶ 15- 16, 219 P.3d 309, 315 (App. 2009) (rejecting party s claim that electronic record was inadequate Rather, she contends assess the witnesses testimony in-person. that Judge for purposes Palmer credibility could without of not Rule 88). adequately receiving their Initially, we note that Judge Palmer was not merely reviewing a transcript but listened to the parties testimony. Cf. In re MH 2004-001987, 211 Ariz. 255, 258-59, ¶¶ 120 15-19, P.3d 210, 213-14 (App. 2005) (concluding telephonic testimony is permissible under the Arizona Rules of Civil Procedure). Moreover, Judge Palmer explained that he found Wife s testimony not credible because it was internally inconsistent, that is, because Wife offered contradictory and mutually exclusive initials appeared explanations on the for property how her signature agreements. Thus, and Judge Palmer did not conclude that Wife s testimony was not credible simply by comparing the relative strength of the parties testimony, but rather found Wife s differing explanations for her signature and initials on the property agreements to be implausible. Wife s The record supports Judge Palmer s conclusion that testimony regarding whether 6 the parties voluntarily entered the property agreements was not credible. Therefore, absent a claim that the electronic recording was inadequate, we conclude that the family court did not abuse its discretion by denying Wife s motion for a new trial. II. ¶11 Miscellaneous Issues To the extent Wife also contends that Judge Palmer s ruling is erroneous because it is not it[e]mized, we note that Judge Palmer thoroughly explained his reasoning and conclusions and Wife has failed to identify any omissions in the ruling or explain how she was prejudiced thereby. address this claim. Therefore we do not Likewise, to the extent Wife requests that this court order Husband to pay her $5,000 and allow her to retrieve her personal property, we note that the family court included such provisions in its minute entry ruling. ¶12 Finally, Husband requests that we order Wife to sign quitclaim deeds and impose sanctions for her obvious perjured statements at the evidentiary hearing. In his minute entry ruling, Judge Palmer upheld the parties property agreements and specifically noted that those agreements require Wife to execute quitclaim deeds on two properties. If Wife has refused to sign the quitclaim deeds, Husband may seek an order in the superior court compelling her to do so. As to the request for sanctions, Husband failed to submit this request in the family court and we 7 therefore do not consider it. See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18, 169 P.3d 120, 125 (App. 2007) (arguments raised for the first time on appeal are untimely and generally waived). CONCLUSION ¶13 For the foregoing reasons, we affirm court s denial of Wife s motion for new trial. /s/ PHILIP HALL, Judge CONCURRING: /s/ PATRICK IRVINE, Presiding Judge /s/ JOHN C. GEMMILL, Judge 8 the family

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