Duckstein v. Wolf

• Decision Date: 31 July 2012
• Docket Number: No. 1 CA–CV 11–0534.,1 CA–CV 11–0534.
• Citation: 640 Ariz. Adv. Rep. 38,230 Ariz. 227,282 P.3d 428
• Parties: In re the Marriage of Sonja S. DUCKSTEIN, Petitioner/Appellee, v. David J. WOLF, Respondent/Appellant.
• Court: Arizona Court of Appeals

230 Ariz. 227

282 P.3d 428

640 Ariz. Adv. Rep. 38

In re the Marriage of Sonja S. DUCKSTEIN, Petitioner/Appellee,

v.David J. WOLF, Respondent/Appellant.

No. 1 CA–CV 11–0534.

Court of Appeals of Arizona, Division 1, Department A.

July 31, 2012.

Steven D. Keist, P.C.By Steven D. Keist and Jackson L. Walsh, Glendale, Attorneys for Appellee.

Law Office of William P. Sargeant, III By William P. Sargeant, III, Phoenix, Attorneys for Appellant.

OPINION

KESSLER, Judge.

¶ 1David J. Wolf(“Husband”) appeals from the trial court's order denying his motion to set aside a default dissolution decree.We hold that failure to verify a petition for dissolution of marriage and lack of proper notarization of an acceptance of service do not deprive the trial court of jurisdiction.We also hold, however, that when a motion to set aside a default judgment presents contested issues of material fact and a party requests an evidentiary hearing, the trial court should conduct an evidentiary hearing before ruling on the motion.For the following reasons, we remand for further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Husband and Sonja S. Duckstein(“Wife”), both licensed attorneys, were married in 2001.In March 2010, Wife filed a pro perpetition for dissolution of marriage, which did not include a verification statement.Wife also filed an acceptance of service waiving formal service and allegedly signed by Husband.¹

¶ 3The trial court entered a decree of dissolution by default on May 4, 2010.A property settlement agreement was filed contemporaneously with the decree and contained the alleged signatures of both Husband and Wife.The settlement agreement was incorporated into the decree.

¶ 4 Ten months later, in March 2011, Husband moved to set aside the default decree, claiming that Wife committed a fraud upon the court by presenting forged signatures.Husband attached an affidavit in which he claimed he“was never served by a process server,”“never executed any waiver of acceptance of service,” and “never executed any property settlement agreement in connection with the [proceeding].”He did admit, however, to receiving a copy of the petition.He also included a report and letter by a forensic document examiner, supporting his assertion that his signature had been forged on the documents presented by Wife.²Wife responded claiming that Husband: (1) signed the acceptance of service in her presence; (2) acted in accordance with the settlement agreement; (3) confirmed signing the acceptance of service and settlement agreement in multiple e-mails; and (4) made repeated threats to destroy Wife's livelihood and set aside the decree.She attached affidavits supporting her contention that Husband signed the documents,³ as well as a report from her own forensic document examiner concluding that “all documents submitted for examination and identification bearing the signature of [Husband] ... were authored by ... [Husband].”The e-mails between Husband and Wife indicated that Husband acted in conformity with the settlement agreement after the decree was entered.⁴In his reply, Husband stated that Wife's affidavits were false and concluded that the decree should be set aside because the petition was not verified and the acceptance of service was not properly notarized.He also argued that if the court disagreed on those two issues, it should hold an evidentiary hearing as to disputed facts raised by the response to his motion.

¶ 5The trial court denied Husband's motion, reasoning:

Based upon a review of the exhibits submitted as well as the Court's file in this case, the Court finds that Husband has failed to meet his burden to establish grounds for relief under Rule 85(C).The Court does not find convincing Husband's arguments [that]he was blindsided months after the fact of the existence of a decree of which he was not aware.

It is clear in reviewing the e-mails exchanged between Husband and Wife that Husband admitted to signing documents relative to the parties' transfers of property contemplated in the Decree and [Property Settlement Agreement].He clearly had knowledge of terms of the parties' divorce that he would only know if he were aware of and had read the documents at issue.He also transferred some items of property pursuant to the [Property Settlement Agreement].

This knowledge coupled with the fact that Husband filed his Motion to Set Aside over ten months after the Consent Decree and [Property Settlement Agreement] were entered and signed is fatal to his claim under Rule 85(C)(2).

Rule 85(C)(2) requires that any motion filed under this section be filed within a reasonable amount of time, and “not more than six (6) months after the judgment or order was entered or proceeding taken.”

This Husband clearly did not do and his clear knowledge vitiates any argument that this time limit should not apply.Without any further analysis, his argument fails due to lack of timeliness coupled with his obvious knowledge.

The Court also finds that Husband has failed to establish by clear and convincing evidence that the acceptance of service of process signed by him was invalid....

This is not a case where Husband suddenly was blindsided by information after the fact that a judgment had been entered against him.Rather it is quite obvious that he was aware of the [d]ecree and especially the [Property Settlement Agreement] and its terms.

¶ 6 Husband timely appealed.We have jurisdiction pursuant to Arizona Revised Statutes(“A.R.S.”)section 12–2101(A)(1)(Supp. 2011).

ISSUES AND STANDARD OF REVIEW

¶ 7 Husband argues the trial court misinterpreted Arizona Rule of Family Law Procedure85(C)(“Rule 85(C)”) and its applicability to this case.He asserts that: (1)the trial court lacked the authority to enter the decree because Wife's petition was not verified pursuant to A.R.S. § 25–314(Supp.2011); and (2)the court's erroneous interpretation of Rule 85(C) denied Husband the opportunity to present evidence regarding lack of service.

¶ 8“Wherever the language in [the Arizona Rules of Family Law Procedure] is substantially the same as the language in other statewide rules, the case law interpreting that language will apply to these rules.”Ariz. R. Fam. L.P. 1 cmt.CompareAriz. R. Fam. L.P. 85(C), withAriz. R. Civ. P. 60(c).We review the trial court's denial of a motion to set aside a judgment for an abuse of discretion.SeeStaffco, Inc. v. Maricopa Trading Co.,122 Ariz. 353, 356, 595 P.2d 31, 34(1979)(interpretingArizona Rule of Civil Procedure 60(c) which is substantially the same as Rule 85(C)).“A court abuses its discretion if it commits an error of law in reaching a discretionary conclusion, it reaches a conclusion without considering the evidence, it commits some other substantial error of law, or ‘the record fails to provide substantial evidence to support the trial court's finding.’ ”Flying Diamond Airpark, L.L.C. v. Meienberg,215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155(App.2007)(quotingGrant v. Ariz. Pub. Serv. Co.,133 Ariz. 434, 456, 652 P.2d 507, 529(1982)).However, if a claim is made that a judgment is void, we review a decision on that claim de novo.Oldfield v. Pueblo De Bahia Lora, S.A.,558 F.3d 1210, 1217(11th Cir.2009).We review challenges to the trial court's subject matter jurisdiction and questions involving the application and interpretation of court rules de novo.State v. Bryant,219 Ariz. 514, 516, ¶ 4, 200 P.3d 1011, 1013(App.2008);Vega v. Sullivan,199 Ariz. 504, 507, ¶ 8, 19 P.3d 645, 648(App.2001).

DISCUSSION

¶ 9 Because Husband waited ten months to seek to vacate the default decree, his appeal can only succeed if the decree was void under Rule 85(C)(1)(d) or if Wife committed a fraud on the court under Rule 85(C)(3).This is because the six-month and reasonableness time limits of Rule 85 do not apply if the judgment is void, including being void for lack of personal jurisdiction.SeeAriz. R. Fam. L.P. 85(C)(1)(d)(providing the court may grant relief when the judgment is void);Ariz. R. Fam. L.P. 85(C)(2)(providing that a motion for relief from judgment must be filed within a reasonable time, and under subsections (1)(a)-(c), not more than six months from entry of judgment);Ariz. R. Fam. L.P. 85(C)(3)(permitting a court to set aside a judgment for fraud upon the court in an independent action);Springfield Credit Union v. Johnson,123 Ariz. 319, 322, 599 P.2d 772, 775(1979)(“The reasonable time requirement of Rule 60(c) does not apply, however, when a judgment is attacked as void.”);Martin v. Martin,182 Ariz. 11, 15, 893 P.2d 11, 15(App.1994)(“A judgment or order is ‘void’ if the court entering it lacked jurisdiction: (1) over the subject matter, (2) over the person involved, or (3) to render the particular judgment or order entered.”).Accordingly, Husband argues the court lacked authority to enter the decree for lack of a verified petition and that it lacked personal jurisdiction over him because he had never signed the acceptance of service and Wife misled the court in representing that he had.We deal with each argument in turn.

I.UNVERIFIED PETITION

¶ 10 Husband argues that the trial court lacked the authority to enter the decree because Wife filed an unverified petition in violation of A.R.S. § 25–314(A).Wife contends that she verified the petition when she signed it acting pro se,she verified all of the contents in a hearing on the petition, and that if it was not properly verified, it does not affect the authority of the trial court to enter the decree.

¶ 11Arizona Rule of Family Law Procedure31(A)(“Rule 31(A)”) provides that pleadings do not require formal verification “[e]xcept when otherwise specifically provided by rule or statute.”As Husband points out, A.R.S. § 25–314(A) specifically provides that a party shall file a “verified petition” in a dissolution proceeding.⁵Husband argues that because Wife failed to...