Carlston v. Carlston

• Decision Date: 15 December 2011
• Docket Number: 1 CA-CV 11-0041
• Citation: Carlston v. Carlston, 1 CA-CV 11-0041 (Ariz. App. Dec 15, 2011)
• Parties: In re the Marriage of: CHRISTINE CARLSTON, Petitioner/Appellee, v. KIM ROBERT CARLSTON, Respondent/Appellant.
• Court: Arizona Court of Appeals

In re the Marriage of: CHRISTINE CARLSTON, Petitioner/Appellee,

v.KIM ROBERT CARLSTON, Respondent/Appellant.

1 CA-CV 11-0041

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT B

Dated: December 15, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

SeeAriz. R. Supreme Court111(c);ARCAP 28(c);

Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication - Rule 28,Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

CauseNo. FN 2010-090470

The Honorable David M. Talamante

AFFIRMED IN PART; REVERSED & REMANDED IN PART

Sullivan Law Office PLLC

By Dianne Sullivan

Attorney for Petitioner/Appellee

Tempe

Kim Robert Carlston

In Propria Persona

Mesa

DOWNIE, Judge

¶1Kim Robert Carlston("Husband") appeals from a decree of dissolution entered by the superior court.For the reasonsthat follow, we affirm the terms of the decree with the exception of two accounts that the record establishes are Husband's sole and separate property.

FACTUAL AND PROCEDURAL HISTORY

¶2The parties were married in Utah in 1978 and have lived in Arizona since 1986.Christine Carlston("Wife") petitioned for dissolution in January 2010.

¶3At trial, the parties stipulated that each would keep retirement accounts in their own name that had been established through employment.Both parties testified.The superior court found that it had jurisdiction and entered a decree of dissolution.The court ruled the parties' home and three Ameritrade accounts were community property.It further found that Husband did not qualify for spousal maintenance under Arizona Revised Statutes("A.R.S.")section 25-319(A).

¶4Husband filed a timely notice of appeal.We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

I.Jurisdiction

¶5Husband challenges the superior court's subject matter jurisdiction.We review jurisdictional questions de novo.Fryv.Garcia, 213 Ariz. 70, 72, ¶ 6, 138 P.3d 1197, 1199(App.2006).¹

¶6"A court's jurisdiction of the subject matter in a divorce case exists when a constitution or statute specifically confers upon the court such jurisdiction."Leon v. Numkena, 142 Ariz. 307, 309, 689 P.2d 566, 568(App.1984)(citation omitted).Section 25-311(A) vests the superior court with jurisdiction to hear and decide matters pertaining to the dissolution of marriages.The decree need not expressly state the findings listed in A.R.S. § 25-312 as long as the court makes the necessary findings on the record, which occurred here.

¶7Arizona courts have jurisdiction in divorce matters when one party was domiciled in the state for at least 90 daysat the time the action was commenced.A.R.S. § 25-312(1).It is undisputed that both parties here were Arizona residents for more than 90 days prior to the petition's filing.The superior court had subject matter jurisdiction to enter a dissolution decree in this case.

II.Due Process

¶8Husband raises several alleged due process violations, which we address in turn.

A.Adequacy of Pleadings

¶9Husband first claims the petition, summons, preliminary injunction, notice regarding creditors, and waiver of service were defective.The requirements for a dissolution petition are enumerated in A.R.S. § 25-314(A) .Arizona Rule of Family Law Procedure ("Family Law Rule") 29 also provides general pleading rules applicable to divorce proceedings.Wife's petition substantially complied with these requirements.The minor omissions raised by Husband are inconsequential and did not prejudice his procedural or substantive rights.SeeAriz. R. Fam. L.P. 29(E)("All pleadings shall be so construed as to do substantial justice.").

¶10Husband contends the summons was defective because it cited Arizona Rules of Civil Procedure("Civil Procedure Rule") 4 and 5, instead of Family Law Rule 40.This reference is notprejudicial, though, because a summons must contain the same information in civil cases as family law cases.CompareAriz. R. Civ. P. 4withAriz. R. Fam. L.P. 40.The only difference is that a summons in a dissolution case "shall also contain a statement that either spouse, or both spouses, may file in the conciliation court a petition invoking the jurisdiction of the court for the purpose of preserving the marriage."Ariz. R. Fam. L.P. 40(B) .Wife's summons did not include this language.Husband's response noted this omission, demonstrating he was not prejudiced by the missing language.In fact, Husband's response specifically requested transfer to conciliation services.Nor does it appear that the citation to Civil Procedure Rule 10(D) rather than Family Law Rule 30 prejudiced Husband, who properly served his response.

¶11The preliminary injunction complied with A.R.S. § 25-315(A).It was filed the same day as the petition and was properly issued by the clerk.

¶12There is no notice regarding creditors in the record on appeal.However, Husband's response to the dissolution petition argued that specific aspects of the notice were defective.As appellant, Husband was "responsible for making certain that the record on appeal contains all transcripts or other documents necessary for us to consider the issues raisedon appeal. . . .When a party fails to do so, we assume the missing portions of the record would support the trial court's findings and conclusions."State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d 70, 73(App.2003)(citation omitted).

¶13Finally, Husband contends the waiver of service was defective.However, he filed a response to the petition, which constitutes an appearance and has the same effect as proper service.SeeAriz. R. Fam. L.P. 40(F).Moreover, Husband's response expressly stated that he accepted service of the allegedly defective documents.

B.Alleged Deficiencies in the Judicial Process

¶14Husband contends he was deprived of procedural due process due to judicial neglect and misconduct.Specifically, he alleges the trial court failed to read his response to the petition and failed to rule on motions contained therein.

¶15Although Husband's response included a "petition" to transfer the case to conciliation services, it did not conform to the requirements of A.R.S. §§ 25-381.10 through -381.12.A separate petition for conciliation is required.Id.Husband's response acknowledged the need for a separate conciliation petition.He subsequently filed such a request, and the matter was transferred to conciliation services.

¶16Husband also argues he was denied due process because the court denied his motion for default without reading it.Husband sought entry of default in the future should the court not dismiss Wife's action or should the parties fail to resolve their disputes.Husband cited Family Law Rule 71(D), which authorizes default as a sanction.Husband's response did not establish any basis for a default under that rule.The court was within its discretion to deny Husband's supplemental motion for default because the conduct he alleged also did not warrant the sanction of default.

¶17Lastly, Husband contends the court's alleged failure to rule on the various "motions" advanced in his response denied him due process.However, only the motion challenging service was properly included in the response under Family Law Rule 32(B) and (F)(1).But there is no due process violation as to that issue because Husband's response expressly stated that he accepted service of the petition and the accompanying filings.The remaining "motions" were requests for sanctions and a default judgment and should have been made in separate motions.Moreover, Husband did not assert that there were pending motions at a time when the trial court had the opportunity to rule on them.Husband has thus waived any claim that the court failed to rule on his motions.SeeTrantor v. Fredrikson, 179 Ariz.299, 300, 878 P.2d 657, 658(1994)("[E]rrors not raised in the trial court cannot be raised on appeal.").

¶18Husband also argues he was denied due process because court staff failed to instruct him how to submit exhibits for trial.His argument raises matters not in the record, which we cannot consider.SeeFlood Control Dist. of Maricopa County v. Conlin, 148 Ariz. 66, 68, 712 P.2d 979, 981(App.1985).Furthermore, the court issued a minute entry instructing the parties when and where to deliver trial exhibits.

C.Disclosure Issues

¶19 Husband contends the court erred in proceeding to trial despite Wife's failure to comply with the disclosure requirements of Family Law Rule 49.At trial, the exhibits Wife offered were documents that Husband provided to her.Husband cannot claim he was prejudiced by the admission of these exhibits.Moreover, Husband has not established what Wife failed to disclose and how he was prejudiced.A general allegation of non-compliance with Family Law Rule 49 is insufficient.SeeAriz. Const. art. VI, § 27("No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.").

¶20Husband also contends the court erred by failing to enter a default judgment based on Wife's failure to comply with the preliminary injunction and for filing "documents of process that so patently fail to comply with the rules."The trial court has discretion in imposing sanctions.SeePoleo v. Grandview Equities, Ltd., 143 Ariz. 130, 133, 692 P.2d 309, 312(App.1984).The court did not abuse its considerable discretion by denying Husband's motion for default judgment, as the acts alleged did not warrant such a severe sanction.

III.Property Division

¶21Husband contends the court erred in characterizing the parties' home and Ameritrade accounts as community property.We review the distribution of property for an abuse of discretion.Hrudka v. Hrudka, 186 Ariz. 84, 93, 919 P.2d 179, 188(App.1995).But we review the court's classification of property as separate or...