REICHERT v. SKIRBOLL

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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: ) ) JERELL DAWN REICHERT, ) ) Petitioner/Appellee, ) ) v. ) ) PHILLIP HOWARD SKIRBOLL, ) ) Respondent/Appellant. ) __________________________________) 1 CA-CV 11-0050 DIVISION ONE FILED: 08/09/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FN2008-002581 The Honorable Daniel J. Kiley, Judge AFFIRMED Phillip Howard Skirboll Respondent/Appellant In Propria Persona Scottsdale Jerell Dawn Reichert Petitioner/Appellee In Propria Persona Toronto, Ontario Canada B R O W N, Judge ¶1 court s Phillip Howard Skirboll ( Husband ) appeals the trial order denying dissolution decree. his motion for entry of an amended He argues the court should have dismissed all of Jerell Dawn Reichert s ( Wife ) claims and awarded him attorneys fees because Wife failed to disclose pertinent information regarding her interests in a Canadian real estate project. For reasons that follow, we affirm. BACKGROUND ¶2 Wife petitioned for dissolution in August 2008. moved for temporary orders, spousal maintenance. regarding her 25% hole in the $7500 per month for At the subsequent hearing, Wife testified interest development in Canada. a requesting Wife in her parents real estate She explained it was not much more than ground and it might be worth two million dollars and there might be two million dollars owed on it, leading the court to believe there was little, if any, equity. The court then ordered Husband to pay spousal maintenance of $2000 per month. Husband unsuccessfully moved for reconsideration, asserting in part that Wife had not been candid about the value of her interest. Husband stated that he had visited the Canadian property three years earlier, but at that time only a few homes had been built and an artificial lake was under construction. ¶3 Husband maintenance information claim about then moved because she the to had real dismiss failed estate Wife s to spousal fully disclose project in Canada. Alternatively, he requested a continuance of the trial date. The trial court denied Husband s 2 requests and the parties proceeded to trial in April 2009. Among other things, the court ordered Husband to pay spousal maintenance of $2000 per month for twenty-four months. The court also ordered Husband to pay one-fourth of Wife s attorneys fees, resulting in an award of $4,683.13. ¶4 Prior to entry of the decree, Husband moved for a new trial, asserting he had newly discovered evidence on the issues of spousal maintenance and other matters relating to division of marital assets. He argued that because Wife was able to obtain post-trial records for [the] Court s consideration on property issues, he should be able to obtain additional records on the value of [Wife s] holdings. He interest also in requested her an Canadian award of real estate attorneys fees pursuant to Arizona Revised Statutes ( A.R.S. ) section 25-324 (Supp. 2011). ¶5 request On April 1, 2010, the trial court granted Husband s for maintenance. a new trial, but only on the issue of spousal The court framed the issue as determining what funds are available to Wife upon completion of the lots in the real estate development project, after all costs of sale and existing loans have been paid on this project. 1 1 Husband filed a notice of appeal from the court s April 1 order. At Husband s request, this court suspended the appeal to permit the trial court to enter an amended decree and consider requests regarding attorneys fees. 3 ¶6 On April 13, Wife filed a notice indicating that she was withdrawing and waiving her claim for Husband to pay any spousal maintenance. longer necessary and She asserted that a new trial was no that the dissolution decree should be amended to state that neither party was entitled to an award of spousal maintenance. ¶7 In September 2010, after his counsel was permitted to withdraw from the case, Husband filed his motion for entry of an amended decree. He requested (1) dismissal of all of Wife s claims; (2) reversal of the attorneys fees award previously granted to Wife; and (3) attorneys fees in his favor in the amount of $40,000 pursuant to A.R.S. § 25-324(A). ¶8 On November 15, 2010, the trial court filed a signed order denying Husband s motion for entry of amended decree and generally denying all requests for post-judgment relief. court signed maintenance intact. an amended provision, but decree eliminating otherwise left the the The spousal original terms Husband timely appealed. DISCUSSION ¶9 Husband challenges the denial of his motion for entry of amended decree, which in essence asked the trial court to strike all of Wife s claims as a sanction for her failure to fully disclose information relating to the value of the Canadian real estate project. Husband s 4 motion, however, failed to recognize the critical fact that after the court s ruling on the motion for new trial, Wife waived her claim to any award of spousal maintenance. Her interests in the Canadian project, as her sole and separate property, were no longer relevant because there were no substantive issues remaining in the case. Unquestionably, Wife should have complied with her disclosure obligations but as a practical matter her failure to do so resulted in the loss of her spousal maintenance claim, including the amounts accrued as part of the temporary orders. Thus, the trial court did not abuse its discretion in denying Husband s request to strike all of Wife s claims. ¶10 his Husband also argues the trial court erred in denying request for attorneys fees. We attorneys fees for abuse of discretion. review rulings on MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36, 250 P.3d 1213, 1221 (App. 2011). A court abuses its discretion when it commits an error of law in the process of exercising its discretion. Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2, 118 P.3d 621, 622 (App. 2005). Husband s motion for new trial sought an award of attorneys fees under A.R.S. § 25-324. In partially granting the motion, the trial court did not award fees to Husband and therefore the request was deemed denied. See Chopin v. Chopin, 224 Ariz. 425, 431, ¶ 22, 232 P.3d 99, 105 (App. 2010) (stating that when a court fails to make a ruling on a motion it is treated as denied.). 5 Husband unsuccessfully repeated his request for attorneys fees pursuant to A.R.S. § 25-324 in his motion for entry of amended decree. ¶11 On appeal, Husband provides no argument as to how the court may have erred in applying § 25-324, which permits fee awards after consideration of the financial resources of the parties and the reasonableness of the positions each party has taken in the litigation. Husband mentions in passing that the court should have awarded fees under Arizona Rule of Family Law Procedure 65; however, he did not request fees on that basis in the trial court. Thus, Husband has waived any argument that the court erred in denying his fee request under Rule 65 or A.R.S. § 25-324. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (issue may not be brought or argued on appeal that was not first raised before the trial court); State Farm. Mut. Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (App. supporting 1990) reasoning); (appellant s brief (declining Ariz. must to consider R. Civ. include the App. issues with Proc. 13(a)(6) contentions of no the appellant with respect to the issues presented, and the reasons therefore, with citations to the authorities, statutes and parts of the record relied on. ). ¶12 Husband also suggests that the court erred in denying the remaining arguments contained in his motion for new trial. 6 Husband, however, has failed to provide us with a transcript of the trial proceedings. As the appellant, it was Husband s obligation to mak[e] certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal. P.2d 764, 767 therefore (App. presume that Baker v. Baker, 183 Ariz. 70, 73, 900 1995); the see also missing ARCAP portions 11(b)(1). of support the trial court s findings and rulings. Ariz. at 108 n. 1, ¶ 8, 118 P.3d at 623 n. 1. the We record Kohler, 211 For the portion of the record we do have, Husband has not directed us to any part of it supporting his general assertions that the court erred in allocating the various marital assets or in granting Wife a relatively small portion of her attorneys fees. Furthermore, Husband s arguments are essentially requests that we re-weigh the evidence, which we will not do. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009) ( Our duty on review does not include re-weighing conflicting evidence or redetermining the preponderance of the evidence. ). ¶13 Both parties request an award of attorneys fees on appeal; however, because they represented themselves they cannot properly claim entitlement to fees. See Connor v. Cal-Az Props., Inc., 137 Ariz. 53, 56, 668 P.2d 896, 899 (App. 1983) (recognizing that a party filing pro per cannot claim fees due to the absence of the attorney-client relationship). 7 As the prevailing party, we award costs to Wife upon her compliance with Arizona Rule of Civil Appellate Procedure 21. CONCLUSION ¶14 For the foregoing reasons, we affirm the trial court s amended decree of dissolution dated November 12, 2010. /S/ _____________________________ MICHAEL J. BROWN, Acting Presiding Judge CONCURRING: /S/ ________________________________ MARGARET H. DOWNIE, Judge /S/ ________________________________ JON W. THOMPSON, Judge 8

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