Opinion
1 CA-CV 11-0270
01-17-2013
In re the Marriage of: EDWARDO F. OLIVARES, Petitioner/Appellant, v. DANIELLE E. TERAN, Respondent/Appellee.
Edwardo F. Olivares, Petitioner/Appellant In Propria Persona Joe M. Romley, P.C. by Joe M. Romley Attorney for Respondent/Appellee
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
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa
Cause No. FC2009-070984
The Honorable Harriett E. Chavez, Judge
AFFIRMED
Edwardo F. Olivares, Petitioner/Appellant
In Propria Persona
Surprise
Joe M. Romley, P.C.
by Joe M. Romley
Attorney for Respondent/Appellee
Phoenix
PORTLEY, Judge ¶1 Edwardo Olivares ("Husband") challenges several rulings in the decree dissolving his marriage to Danielle Teran ("Wife") and the denial of two post-decree motions. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The parties separated in 2008 after ten years of marriage, and Husband filed a divorce petition in December 2009. Both were employed — Husband owns a landscaping business and Wife works for the City of Surprise. Husband remained in the marital home throughout the separation and divorce. ¶3 Before trial, the parties had disputes about disclosure of financial information. The family court granted Wife's motion to compel production of documents. When Husband did not timely comply, Wife sought sanctions for his failure to comply. The court subsequently denied Wife's motion for sanctions and denied Husband's request to strike Wife's pleadings. ¶4 After trial, the family court divorced the parties, divided their property and resolved custody and child support. The court specifically found that Husband had control of several community assets, including the marital home, two vehicles, and several recreational vehicles during their separation; and he withdrew $23,000 of community funds that remained unaccounted for and sold one community vehicle at a loss. After finding waste of community assets, the court offset the waste of $38,500 by awarding Wife her retirement accounts, which the court valued at $60,102. The court also attributed a monthly income of $6000 to Husband for child support purposes, and, after finding that Husband was unreasonable by failing to provide financial discovery, the court awarded Wife $6000 in attorneys' fees. ¶5 Husband moved for a new trial arguing that Wife provided misleading information about her retirement accounts and did not comply with Arizona Rule of Family Law Procedure ("Rule") 49. He also challenged the waste ruling and the amount the court attributed as his income. The motion was denied, and Husband filed his appeal. He then unsuccessfully moved for relief from the decree pursuant to Rule 85(c)(1)(c) based on Wife's untimely disclosure and alleged misrepresentation about the value of her retirement accounts. He then amended his notice of appeal to include the denial of his motion. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1), (2), and (5) (West 2012).
DISCUSSION
I. Allocation of Community Property ¶6 Husband challenges a number of the family court's rulings apportioning community property. We review the apportionment of community property for an abuse of discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d 676, 679 (App. 1998).
A. Value of Wife's Retirement Accounts ¶7 Husband argues that the court acted inequitably by awarding Wife her retirement accounts as an offset for his waste of community assets because she misled the court about the actual value of her accounts. He contends that the information the court relied on was untimely disclosed and was inaccurate. ¶8 Husband offered two exhibits at trial detailing the valued of her ASRS account and her City of Surprise retirement account in November 2010. After entry of the decree, Husband subpoenaed additional records relating to the two accounts. He claims the subpoenaed records show the ASRS account has a "refund balance" of $83,809, which is significantly higher than the $48,852 "employee account balance" adopted by the court. Husband also argues the City of Surprise account is worth $11,249.39, not $8650.86 as the trial court found, but fails to offer any records supporting this claim. ¶9 Husband's arguments regarding Wife's alleged inadequate disclosure come too late. As the court noted, Husband failed to move to compel disclosure before trial or move to continue the trial so that he could conduct further discovery. The issue about the value of Wife's retirement accounts was no secret. Both parties raised the allocation of the retirement accounts in the joint pretrial statement and Husband knew the value of the accounts would be an issue at trial. He, however, did not try to independently subpoena the documents before trial, offered the retirement account exhibits at trial and did not question Wife about their accuracy. He offered contradictory statements in a letter to Wife's attorney indicating he had the statements for Wife's retirement accounts, but also requesting copies of her 401(k) statements since December 2009. As a result, we conclude Husband has waived any objection to the exhibits he offered at trial that the court relied on in resolving the disputed issue.
B. Husband's Waste ¶10 Husband argues that the court abused its discretion in finding waste because Wife did not specifically raise the issue in the joint pretrial statement. Generally, the pretrial statement controls the course of litigation. See Carlton v. Emhardt, 138 Ariz. 353, 355, 674 P.2d 907, 909 (App. 1983) (pretrial statement controls the subsequent course of litigation unless otherwise modified at trial to prevent manifest injustice). Despite the fact that the issues are generally limited by the joint pretrial statement, the family court is specifically authorized to "consider excessive or abnormal expenditures and the concealment or fraudulent disposition of community property when apportioning community property." Gutierrez, 193 Ariz. at 346, ¶ 6, 972 P.2d at 679 (citing former A.R.S. § 25-318(A), now § 25-318(C) (West 2012)). Because the court found that Husband had abnormal expenditures and sold the Ford truck at a reduced price, the court did not abuse its discretion in finding waste. ¶11 More importantly, Husband did not object to Wife raising the waste issue until the motion for new trial. As a result, even if there was any error, he has waived the issue. See Conant v. Whitney, 190 Ariz. 290, 293-94, 947 P.2d 864, 867-68 (App. 1997) (holding error raised for first time in motion for new trial was untimely and cannot be raised on appeal). ¶12 Husband also argues that there was insufficient evidence to support the court's determination that he wasted $15,500 by selling the Ford truck for less than it was worth. Husband admitted selling the truck for $7500 because he was desperate for cash to pay family expenses. Wife testified that the truck was worth $26,000. Because "an owner may estimate the value of his real or personal property," Atkinson v. Marquart, 112 Ariz. 304, 307, 541 P.2d 556, 559 (1975), the court could rely on Wife's testimony to establish the value of a community asset. Consequently, the court did not abuse its discretion by determining that he wasted $15,500, especially since the court gave him credit for using the sales proceeds of $7500 for family expenses. ¶13 Husband also contends the evidence does not support the finding that he spent $23,000 in community funds for his own benefit. On appeal, Husband admits that he is unable to account for how he spent those funds but posits that because he did not have a steady income between 2008 and May 2010, he must have spent the funds on community expenses. The evidence shows that Husband withdrew $23,000 over a ten-day period in September 2008. At trial, he initially claimed he did not make the withdrawals. He also testified that the parties were remodeling the house at that time, but could not say if those funds were used for that expense. On appeal, Husband offers several possible explanations about how he spent $23,000. He, however, offered none of the explanations at trial or supported the explanations with any financial records. ¶14 The family court, as fact finder, "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). We will not reweigh the evidence on appeal. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009). Wife presented a prima facie case of waste by showing excessive withdrawals in a short period. Husband then had "the burden of showing that the money was spent to benefit the community." Gutierrez, 193 Ariz. at 346, ¶ 7, 972 P.2d at 679. Given the lack of evidence showing the funds were spent on community expenses, the court was within its discretion to conclude that Husband's withdrawal of such a large amount in a short period of time was not for community expenses. We find no abuse of discretion in the finding that Husband wasted $38,500.
Wife listed the Ford truck as a community asset that needed to be allocated in the joint pretrial statement.
There was also reason for the court to disbelieve that he sold the truck. He listed the truck as an asset in the petition several months after it was allegedly sold, and Wife testified that she saw him driving it after he claimed he sold it.
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C. Award of Recreational Vehicles to Husband ¶15 Husband argues the court erred by awarding him recreational vehicles that belonged to his Father but not to him or the community. Wife testified that the recreational vehicles were community property. Moreover, the decree did not award Wife any additional property or offsets in exchange for allocating these items to Husband. The offset Wife received was attributed solely to the waste from the Ford truck and $23,000 withdrawn from a community account. Accordingly, we find no abuse of discretion. ¶16 Finally, Husband argues the property allocation was improperly punitive. See Hatch v. Hatch, 113 Ariz. 130, 133, 547 P.2d 1044, 1047 (1976) ("Property may not be distributed in order to reward one party or punish the other."). As discussed above, the court's property allocation is not punitive, but properly takes into account Husband's abnormal expenditures and fraudulent disposition of community assets. See A.R.S. § 25-318(C). Accordingly, the offset of Husband's waste by awarding Wife her retirement accounts was not an abuse of discretion.
II. Husband's Income
¶17 Husband argues that the court erred by attributing to him an income of $6000 a month. He offered four months of financial records that were admitted at trial. The records demonstrated that Husband's landscaping business was grossing, on average, $10,580.50 per month; that the business account generally had monthly cash balance between $2578 to $4612; that he routinely used his business account to pay for many personal expenses, including groceries, restaurants, cash transfers to his personal bank account, and one mortgage payment; and that there were unidentified checks and withdrawals that he could not demonstrate were legitimate business expenses. Additionally, Husband did not dispute Wife's testimony that historically he was paid with cash or checks that he would not deposit into the business account. There was, as a result, evidentiary support for the attribution of $6000 per month. Consequently, the court did not abuse its discretion. ¶18 Husband, however, contends for the first time on appeal that the court should have appointed a tax practitioner to determine the accuracy of Husband's income as a self-employed parent pursuant to A.R.S. § 25-320.02(A) (West 2012). He never requested the court to appoint an expert to determine the accuracy of his income or retain his own expert. As a result, he has waived the issue and we will not address it. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994).
III. Attorneys' Fee Award ¶19 Husband challenges the $6000 award to Wife as attorneys' fees. He contends that the award was an abuse of discretion because the income of the parties was relatively equal. He also argues that Wife failed to fully disclose her financial information. We review an award of attorneys' fees for an abuse of that discretion. Gutierrez, 193 Ariz. at 351, ¶ 32, 972 P.2d at 684. ¶20 The experienced family court judge was aware of the pretrial discovery disputes, the orders, the trial evidence, and the relative income of the parties. The court was aware that Wife had sought an order to compel and then sought sanctions when Husband ignored the order. The court was also aware that Husband never sought to compel production of discovery from Wife. As a result, when considering the fees issue, the court found Husband's refusal to disclose ordered documents to be unreasonable. Consequently, and considering all of the evidence, the court did not abuse its discretion in awarding fees pursuant to A.R.S. § 25-324(A) (West 2012).
IV. Denial of Post-Decree Motions ¶21 Husband first argues that the court erred by denying his motion for new trial. His brief does not explain why Husband believes the court erred by denying his motion and does not cite to any legal authority to support the argument. Instead, the brief merely lists the issues raised in his motion for new trial and asks this court to review and consider the motion for new trial. ¶22 Husband's claim that the court erred by denying his motion for new trial does not raise a proper legal argument. He does not provide citations to the record and does not provide any legal authority to support his argument as required by Arizona Rule of Civil Appellate Procedure ("ARCAP") 13(a)(6). See Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62, 211 P.3d 1272, 1289 (App. 2009) (holding failure to present and address significant arguments and failure to provide citations to the record and legal authority can constitute abandonment and waiver). Accordingly, we will not scour the record to attempt to determine whether the court erred and will not address the issue. ¶23 Husband also challenges the denial of his motion for relief from the decree. He argues that relief is warranted because Wife engaged in fraud, misrepresentation and misconduct by failing to disclose her retirement account records. We review the ruling for an abuse of discretion. Birt v. Birt, 208 Ariz. 546, 549, ¶ 9, 96 P.3d 544, 547 (App. 2004). ¶24 After the entry of the divorce decree and his initial notice of appeal, Husband argued Wife had not fully or timely disclosed her retirement account information. The court denied Husband's motion because: (1) he never filed a motion to compel disclosure; (2) he placed her retirement account records into evidence; (3) he failed to question Wife about her retirement accounts; (4) he could have subpoenaed the City of Surprise and the state retirement system to secure Wife's retirement documents; and (5) he had indicated that he had some of Wife's retirement account records prior to trial. ¶25 Given Husband's knowledge of her employment history, Wife's failure to provide disclosure did not prevent him from obtaining additional information about Wife's retirement accounts. See Estate of Page v. Litzenburg, 177 Ariz. 84, 93-94, 865 P.2d 128, 137-38 (App. 1993) (holding that a party is entitled to relief under analogous Federal Rule of Civil Procedure 60(b)(3) when the moving party shows he was prevented from fully presenting a meritorious defense before judgment or that "the nondisclosure worked some substantial interference with the full and fair preparation or presentation of the case"). As a result, Husband's post-decree motion did not sufficiently show he was entitled to relief under Rule 85(C)(1)(c). Consequently, we find no abuse of discretion.
ATTORNEYS' FEES AND COSTS ON APPEAL
¶26 Wife requests an award of attorneys' fees and costs on appeal pursuant to A.R.S. § 25-324 and ARCAP 21. In the exercise of our discretion we deny her request. Because she is the successful party on appeal, Wife is entitled to recover her appellate costs upon compliance with ARCAP 21.
CONCLUSION
¶27 Based on the foregoing, we affirm the family court's rulings.
______________________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: _______________
PATRICIA A. OROZCO, Judge
_______________
RANDALL M. HOWE, Judge