In re Heredia

• Decision Date: 05 December 2013
• Docket Number: No. 2 CA-CV 2013-0070,2 CA-CV 2013-0070
• Parties: IN RE THE MARRIAGE OF: DAMARYS C. HEREDIA, Petitioner/Appellee, AND ADRIAN HEREDIA, Respondent/Appellant.
• Court: Arizona Court of Appeals

IN RE THE MARRIAGE OF: DAMARYS C. HEREDIA, Petitioner/Appellee, AND ADRIAN HEREDIA, Respondent/Appellant.

No. 2 CA-CV 2013-0070

ARIZONA COURT OF APPEALS DIVISION TWO

Filed December 5, 2013

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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).

Appeal from the Superior Court in Santa Cruz County

No. DO12187

The Honorable Anna M. Montoya-Paez, Judge

AFFIRMED IN PART; VACATED IN PART;

REMANDED WITH INSTRUCTIONS

COUNSEL

Law Office of Mark L. Williams, Nogales

By Mark L. Williams

Counsel for Petitioner/Appellee

Centuori & Associates, Tucson

By René S. Alcoverde, Jr.

Counsel for Respondent/Appellant

MEMORANDUM DECISION

Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.

VÁSQUEZ, Presiding Judge:

¶1 In this dissolution of marriage action, Adrian Heredia appeals from the trial court's order denying his motion to reconsider its denial of his motion to set aside entry of default and his motion to set aside default judgment in favor of appellee Damarys Heredia. On appeal, Adrian argues the court erred by refusing to set aside the entry of default when he had demonstrated his willingness to litigate the matter on the merits and by precluding him from participating at the default judgment hearing. For the reasons that follow, we affirm the entry of default, vacate portions of the default judgment, and remand with instructions.

Factual and Procedural Background

¶2 Damarys and Adrian were married in November 2002. They have one minor child. On August 9, 2012, Damarys filed a petition for dissolution of marriage in Santa Cruz County. She served Adrian with the petition on August 15. The same day, Adrian filed a separate petition for dissolution of marriage in Pinal County but never served Damarys with the petition.

¶3 Damarys filed an application for entry of default after Adrian failed to respond to her petition. Adrian was mailed a copy of the application. After the default became effective, Damarys requested a hearing for entry of default judgment, which was set for October 23, 2012. See Ariz. R. Fam. Law P. 44(A) and (B)(2). On October 1, Adrian filed a motion to dismiss, arguing venue was improper in Santa Cruz County because the parties had resided and acquired real property in Pinal County during their marriage. OnOctober 19, Adrian filed a response to Damarys's petition for dissolution and a motion for temporary orders.

¶4 On the morning of the default judgment hearing, Adrian filed a motion to set aside the entry of default "for the reasons stated in his Motion to Dismiss." After hearing argument, the trial court denied the motion to dismiss and the motion to set aside the entry of default.¹ The court then proceeded with the default judgment hearing, permitting Adrian to be present but precluding him from participating. On November 7, the trial court entered an under-advisement ruling, effectively the default judgment in this case, dividing the parties' community property and awarding Damarys sole physical and joint legal custody of the child, as well as child support and spousal maintenance.

¶5 On November 29, Adrian filed a combined motion to reconsider the denial of the motion to set aside the entry of default and motion to set aside the default judgment pursuant to Rule 85(C), Ariz. R. Fam. Law P. That same day, he also moved the court to stay the child support and spousal maintenance order, claiming the court's child support calculation was "contrary to the Arizona Child Support Guidelines" and spousal maintenance was "not properly address[ed] per Arizona law."

¶6 The trial court denied the motion to reconsider its ruling on the entry of default in a signed order entered December 17.² However, the court set a hearing on Adrian's motion to set aside the default judgment and the motion to stay. At that hearing, Damarys conceded errors in the calculation of child support, and the court directed her to prepare a revised worksheet and order. However,Damarys argued that spousal maintenance had been addressed properly and opposed the motion to set aside the default judgment.

¶7 In an under-advisement ruling entered January 31, 2013, the trial court denied the motions. The court noted that it had "corrected issues" in the child support calculation and concluded that Adrian had not timely filed the motion to set aside the entry of default. This appeal followed.

Discussion

I. Appellate Jurisdiction

¶8 On February 28, 2013, Adrian filed a notice of appeal challenging the trial court's "January 31, 2013 Under Advisement Ruling denying his Motion to Reconsider Rule 85(C)(1)(f) Motion to Set Aside Default Entered Against [Him], and from the denial of his Rule 85(C)(1)(a), (c), & (f) Motion to Set Aside Divorce Decree." He asserts this court has jurisdiction over the appeal pursuant to A.R.S. § 12-2101. Damarys contends a trial court's denial of a motion to reconsider is not a judgment or order that may be appealed from.

¶9 Generally, only final judgments are appealable. Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991). But, we also have jurisdiction to review special orders made after judgment pursuant to § 12-2101(A)(2). "To be appealable, a special order after judgment must raise different issues than those that would be raised by appealing the underlying judgment." In re Marriage of Dorman, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000). "[A]n order setting aside or refusing to vacate default judgment is a special order made after judgment and is therefore appealable." Hanen v. Willis, 8 Ariz. App. 175, 178, 444 P.2d 732, 735 (1968). Although an order denying a motion to set aside entry of default is not appealable, Rueda v. Galvez, 94 Ariz. 131, 133, 382 P.2d 239, 240 (1963), we may nevertheless address arguments challenging the entry of default to the extent they are urged as grounds to set aside the default judgment, see BYS Inc. v. Smoudi, 228 Ariz. 573, ¶¶ 3-6, 269 P.3d 1197, 1198-99 (App. 2012) (addressing challenge to entry ofdefault argued as ground for setting aside judgment). We therefore have jurisdiction to consider the issues in this appeal.³

II. Denial of Rule 85(C) Motion to Set Aside Judgment

¶10 Although Adrian has raised numerous issues on appeal, his arguments can be distilled to two: (1) whether the trial court erred by refusing to reconsider denying his motion to vacate the entry of default; and, (2) whether the court erred in denying his motion to set aside the default judgment because it improperly precluded him from participating at the default judgment hearing.

¶11 We review a trial court's denial of a motion to set aside under Rule 85(C) for an abuse of discretion.⁴ See Judge v. Judge, 18 Ariz. App. 320, 320, 501 P.2d 948, 948 (1972). "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, LLC v. Meienberg, 215 Ariz. 44, ¶ 27, 156 P.3d 1149, 1155 (App. 2007), quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982). We review de novo a trial court's interpretation of court rules, Balestrieri v. Balestrieri, 232 Ariz. 25, ¶ 3, 300 P.3d 560, 561 (App. 2013), and whether a default judgment isvoid and should be vacated, BYS Inc., 228 Ariz. 573, ¶ 18, 269 P.3d at 1202.

¶12 To establish that a default judgment should be set aside pursuant to Rule 85(C), the defaulting party must demonstrate: (1) the presence of one or more of the reasons enumerated in Rule 85(C)(1); (2) prompt action in seeking relief; and, (3) a meritorious defense to the petition. See Blair v. Burgener, 226 Ariz. 213, ¶ 7, 245 P.3d 898, 901 (App. 2010); see also Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 185, 189-90, 836 P.2d 398, 402-03 (App. 1992).

A. Entry of Default

¶13 First, apparently relying on Rule 85(C)(1)(a), Adrian argues the trial court erred by entering a default judgment because his motion to set aside entry of default was both timely and supported by good cause.⁵ Specifically, he maintains the fact that he filed the separate action in Pinal County showed a willingness to litigate the matter on its merits and demonstrated a meritorious defense to the claims asserted by Damarys. Under Rule 85(C)(1)(a), a court may set aside the entry of default for "mistake, inadvertence, surprise, or excusable neglect." See Ruiz v. Lopez, 225 Ariz. 217, ¶¶ 8-9, 236 P.3d 444, 447 (App. 2010) (considering trial court's decision whether to vacate the entry of default under Rule 60(c)). Rule 85(C)(2) provides that such a motion must "be filed within a reasonable time, and for reasons 1(a), 1(b) and 1(c) not more than six (6) months after the . . . order was entered."

¶14 Although Adrian's Rule 85(C) motion may have been timely, the trial court did not abuse its discretion in determining that his motion to set aside the entry of default was not. See Judge, 18 Ariz. App. at 320, 501 P.2d at 948. Adrian's motion to set aside the entry of default was filed on the morning of the October 23 hearing for entry of the default judgment. At the start of the hearing, the court addressed that motion as well as Adrian's motion to dismiss. Adrian relied upon the motion to dismiss as the central basis for hisarguments on the motion to set aside. He essentially argued that because of the "dual" filing in Pinal County, it was not "appropriate to default [him] seeing there were two open cases at the same time." And, on the issue of timeliness, he further argued that he "did file his motion to dismiss [the Santa Cruz County case] before the [sixty-]day cooling off period." In response, Damarys pointed out that the motion to set aside was not filed until that morning....