Heredia v. Heredia

• Decision Date: 29 December 2016
• Docket Number: No. 2 CA-CV 2015-0201,2 CA-CV 2015-0201
• Parties: IN RE THE MARRIAGE OF DAMARYS HEREDIA, Petitioner/Appellant, and ADRIAN HEREDIA, Respondent/Appellee.
• Court: Arizona Court of Appeals

IN RE THE MARRIAGE OF DAMARYS HEREDIA, Petitioner/Appellant, and ADRIAN HEREDIA, Respondent/Appellee.

No. 2 CA-CV 2015-0201

ARIZONA COURT OF APPEALS DIVISION TWO

December 29, 2016

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Santa Cruz County

No. DO201200187

The Honorable Kimberly A. Corsaro, Judge Pro Tempore

AFFIRMED IN PART; REVERSED IN PART

COUNSEL

Law Office of Mark L. Williams, Nogales

By Mark L. Williams

Counsel for Petitioner/Appellant

Centuori & Alcoverde, PC, Tucson

By René S. Alcoverde, Jr.

Counsel for Respondent/Appellee

MEMORANDUM DECISION

Judge Staring authored the decision of the Court, in which Judge Espinosa concurred and Presiding Judge Howard concurred in part and dissented in part.

STARING, Judge:

¶1 Damarys Heredia appeals from the trial court's award of attorney fees to her former spouse Adrian Heredia. We affirm in part and reverse in part.

Factual and Procedural Background

¶2 We review the record in the light most favorable to upholding the trial court's ruling and will affirm if any reasonable evidence in the record supports its decision. Johnson v. Johnson, 131 Ariz. 38, 44, 638 P.2d 705, 711 (1981). The parties married in 2002 and have one minor child, A.H. Damarys petitioned for dissolution of the marriage in August 2012. Adrian was served and subsequently defaulted for failure to file a timely response. Adrian then filed motions to dismiss the petition and to set aside the entry of default, which the trial court denied.

¶3 After a default hearing, at which Adrian was not allowed to participate, the trial court entered a default decree. It subsequently denied Adrian's motion to set aside the decree. See Ariz. R. Fam. Law P. 85. Adrian appealed, and this court concluded he should have been allowed to participate in the default hearing, vacated portions of the decree, and remanded for further default proceedings pursuant to Rule 44(B)(2), Ariz. R. Fam. Law P. In re Marriage of Heredia, No. 2 CA-CV 2013-0070, ¶¶ 26-29 (Ariz. App. Dec. 5, 2013) (mem. decision).

¶4 On remand, Adrian served discovery requests, moved to continue the default hearing scheduled for May 2014, and sought temporary orders pursuant to Rule 47, Ariz. R. Fam. Law P. Damarys moved to strike Adrian's filings, arguing he was notentitled to file anything because he was still in default. Adrian argued new temporary orders were permissible because this court had vacated the portions of the default decree regarding child support, legal decision-making authority, and parenting time, and because his right to participate in the "de novo default trial/hearing" entitled him to serve discovery requests.

¶5 The trial court denied Damarys's motion to strike Adrian's discovery requests, and ordered her to "respond to child support and spousal maintenance issues." The court also reinstated the temporary orders issued before the default decree. The court proceeded to conduct a default hearing spanning two days in August and October 2014, and subsequently issued an amended decree awarding Adrian $5,791 in attorney fees pursuant to A.R.S. §§ 25-324(A) and 12-349(A)(3). It also entered a separate judgment making Damarys's counsel responsible for twenty-five percent of the award. Damarys appeals from the award of attorney fees.

Jurisdiction

¶6 "This court may not address an issue or provide relief if it lacks jurisdiction to do so and we have an independent duty to ensure that we have jurisdiction before addressing the merits of any claim raised on appeal." State v. Bejarano, 219 Ariz. 518, ¶ 2, 200 P.3d 1015, 1016 (App. 2008). Notably, the exercise of our jurisdiction requires the timely filing of a notice of appeal. Korens v. Ariz. Dep't of Econ. Sec., 129 Ariz. 426, 427, 631 P.2d 581, 582 (App. 1981). Adrian argues we lack jurisdiction because Damarys did not appeal the final judgment entered on January 6, 2016. We disagree that jurisdiction is absent in this instance.

¶7 The trial court's under-advisement ruling following the 2014 default hearing included a decision to award Adrian attorney fees expended on remand. The court subsequently entered an amended decree containing the $5,791 fee award and its rulings on the remaining issues in the case. The court also entered a separate judgment, one minute before the amended decree, only discussing the $5,791 fee award. The judgment made Damarys's attorneyresponsible for twenty-five percent of the $5,791, a provision not contained in the under-advisement ruling or amended decree.

¶8 The separate judgment did not contain "an express determination that there is no just reason for delay and . . . an express direction for the entry of judgment" as required to issue "final judgment as to . . . fewer than all of the claims or parties." Ariz. R. Fam. Law P. 78(B). Nevertheless, the judgment was rendered final by the court's subsequent entry of the amended decree disposing of all other issues before the court.¹ See id. (decision on individual claims without Rule 78(B) language "subject to revision at any time" until judgment addressing remaining claims and parties); Hill v. City of Phoenix, 193 Ariz. 570, ¶ 16, 975 P.2d 700, 704 (1999) (partial judgments "become final upon entry of . . . judgment which effectively terminates all issues remaining in the litigation").

¶9 Because the judgment and the decree concerned the same fee award, Damarys's timely appeal from the decree was sufficient to confer appellate jurisdiction over the judgment for attorney fees. See Hill, 193 Ariz. 570, ¶ 10, 975 P.2d at 702-03 (notice in substantial compliance with rules "should be construed as sufficient so long as the defect has neither misled nor prejudiced an opposing party"); Hanen v. Willis, 102 Ariz. 6, 10, 423 P.2d 95, 99 (1967) (timely notice of appeal not invalidated by reference to date of earlier version of judgment); Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, ¶¶ 17-19, 343 P.3d 438, 446-47 (App. 2015) (timely notice not invalidated for omitting reference to amended judgment on same claims).² Accordingly, we have jurisdiction pursuant toA.R.S. § 12-2101(A)(1) over the entirety of Damarys's appeal. See also A.R.S. § 12-2102(A).

Award of Attorney Fees

¶10 The trial court based its fee award on the conclusion that Damarys had "refus[ed] to facilitate meaningful parenting time . . . [and] expand[ed] the proceedings by refusing to accept service and in the filing of frivolous motions." The court awarded fees pursuant to two statutes: § 25-324, which allows a discretionary fee award in dissolution proceedings "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings" and § 12-349(A)(3), which requires the imposition of fees as a sanction when a party "[u]nreasonably expands or delays [a] proceeding."³ We review a court's decision to award fees under § 25-324 for abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, ¶ 6, 333 P.3d 818, 821 (App. 2014). In reviewing a decision to award fees pursuant to § 12-349, we uphold the court's factual findings unless clearly erroneous, but review the application of the statute de novo as a question of law. Fisher ex rel. Fisher v. Nat'l Gen. Ins. Co., 192 Ariz. 366, ¶ 13, 965 P.2d 100, 104 (App. 1998). Damarys claims the trial court's award of attorney fees was improper under both statutes. She argues the court's finding concerning her "refusal to facilitate meaningful parenting time" was clearly erroneous and that the court abused its discretion by punishing her insistence on following its written orders.

¶11 Damarys, however, mischaracterizes the ruling of the trial court, which specifically found she had "continuously refused to allow [Adrian] any reasonable expansion of parenting time or make up parenting time." This finding refers to a disagreement over Adrian's midweek parenting time. Damarys testified she had complained the midweek visits resulted in later bed times for A.H. and problems with behavior and school performance. Though Damarys claimed she "never asked him not to see [A.H.]," Adrian testified he had discontinued his midweek parenting time at Damarys's request and she then refused his requests for substitute parenting time. Damarys admitted she had refused multiple requests for alternative parenting time, but still claimed she had "worked with" Adrian to make up his lost time.

¶12 Thus, the record supports the finding Damarys was willing to disregard court orders when it came to discontinuing Adrian's midweek visits, but not to allow Adrian make-up time.⁴ The trial court also doubted Damarys's credibility in regard to complaining about both the disruptiveness of midweek visits and the fact that Adrian stopped exercising them.⁵ We treat the court's findings concerning contradictory evidence and witness credibility with deference. Carrasco v. Carrasco, 4 Ariz. App. 580, 582, 422 P.2d 411, 413 (1967). Moreover, in light of Damarys's failure to provide a complete copy of the transcript of the default hearing, we must presume the record supports the court's factual findings. See Bliss v. Treece, 134 Ariz. 516, 519, 658 P.2d 169, 172 (1983) (appellate court presumes missing portion of record supports trial court decision); Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 191, 193, 836 P.2d 404,406 (App. 1992) (appellant has burden of proving trial court error to obtain relief).

¶13 We thus conclude it was not clearly erroneous for the trial court to find Damarys's "refusal to facilitate meaningful parenting time" amounted to an unreasonable position warranting an award of attorney fees pursuant to § 25-324(A). The court did not abuse its discretion by awarding fees under § 25-324(A).⁶

¶14 However, as noted, when reviewing a § 12-349 award, we uphold the court's factual findings unless clearly...