Opinion
No. 1 CA-CV 13-0542
12-04-2014
In re the Matter of: MAXIMO PALOMINO, Petitioner/Appellant, v. GLORIA JADE PALOMINO, Respondent/Appellee.
COUNSEL Jack H. Simon, Mesa Counsel for Petitioner/Appellant J. Robert Walston, P.C., Mesa By J. Robert Walston Counsel for Respondent/Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
FN 2010-093026
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL Jack H. Simon, Mesa
Counsel for Petitioner/Appellant
J. Robert Walston, P.C., Mesa
By J. Robert Walston
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined. GEMMILL, Judge:
¶1 After extended family court proceedings, Maximo Palomino ("Husband") filed in July 2013 a motion pursuant to Rule of Family Law Procedure ("RFLP") 85(C)(1)(f) to vacate and reinstate the decree to allow Husband to timely appeal the decree. Gloria Jade Palomino ("Wife") opposed the motion, and the family court denied it. Husband timely appeals and we have jurisdiction in accordance with Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(3). Because the family court did not abuse its discretion in denying the motion, we affirm.
¶2 At the close of the dissolution trial in 2011, the family court ordered the submission of written briefs from Husband and Wife to serve as closing arguments. Due to a clerical error, the court mistakenly believed that there were no closing briefs to review and entered a signed decree of dissolution of marriage on December 19, 2011 ("the decree"), without having read the closing briefs.
¶3 Citing RFLP 83, Husband filed a motion for new trial on January 3, 2012. He asserted it was clear from reading the decree that the court had not read the closing arguments, and the motion asked the court to grant a new trial and "enter an Amended Decree" with regard to four specific issues or categories of issues. The family court granted Husband's motion for new trial "in its entirety" and scheduled briefing and oral argument regarding the issues raised.
¶4 The family court ruled on the issues presented, and in due course, a written order was signed and entered on the specific issues addressed. Further motions were filed and ruled upon. Husband, believing that the decree entered December 19, 2011 had been set aside or vacated in its entirety, did not appeal, and, in fact, requested the family court to enter an amended decree. The court declined to do so. In July 2013, Husband filed the motion to vacate and reinstate the decree so that he could timely appeal. As noted already, the court denied the motion.
¶5 Husband contends on appeal that the family court erred in denying the motion to vacate and reinstate the decree. In reviewing such a motion under either RFLP 85(C)(1)(f) or Rule of Civil Procedure ("RCP") 60(c)(6), we apply an abuse of discretion standard. See City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985); Ariz. R. Fam. L.P. 1, cmt. ("Wherever the language in [the RFLP] is substantially the same as the language in [the RCP], the case law interpreting that language will apply to these rules.").
¶6 The question presented on appeal, therefore, is whether the family court abused its discretion when it denied Husband's motion to vacate and reinstate the decree entered in December 2011 so that he could timely appeal from a reinstated decree. Husband correctly asserts that our trial and family courts have the discretion to grant such motions.
¶7 The bedrock of Husband's position is his belief that the decree was set aside or vacated in its entirety by the family court's granting of his motion for new trial "in its entirety." That is not the case, however. Husband's motion for new trial did not seek a complete new trial on all issues but rather sought a new trial on four specific issues or categories of issues. Similarly, his motion did not expressly ask the court to vacate or set aside the decree in its entirety but rather sought the entry of an amended decree to correct specific alleged errors. The scope of relief available under a motion for new trial is described in FLRP 83(B):
A new trial may be granted to all or any of the parties and on all or part of the issues for any reasons for which new trials are authorized by law or rule of court. On a motion for new trial, the court may open the judgment, if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.(Emphasis added.) Husband's motion sought relief on specific issues, but not on all issues resolved in the decree. When the family court granted Husband's motion for new trial "in its entirety," the ruling meant that the court agreed with Husband that a "new trial" was warranted on the "entirety" of the specific issues described by Husband in his motion. In other words, the court's use of "in its entirety" referred to Husband's motion for new trial, not the decree. The decree was not set aside. It remained valid and effective, subject to amendment or modification by further order of the court.
We note that in a motion for reconsideration filed in October 2012, Husband confirmed that he did not file a motion for a new trial on all issues, noting that his motion for new trial was directed to four specific categories of issues (with five subparts).
¶8 Citing Nielson v. Patterson, 204 Ariz. 530, 533, ¶ 12, 65 P.3d 911, 914 (2003), Husband contends the "law is clear that when a court grants a motion for new trial it in fact is vacating the judgment and thereafter the vacated judgment has no force and effect." In Nielson, however, a judgment for substantial damages was entered and the trial court granted a motion for new trial. As described by our supreme court, "The trial court granted the motion, vacated the judgment and set a new trial." Id. at 531, ¶ 2, 65 P.3d at 912 (emphasis added). Because it appears that the trial court's order in Nielson granting the new trial specifically vacated the judgment, we do not read Nielson as saying that every order granting a new trial automatically vacates the judgment or decree. Moreover, to reach that conclusion would be contrary to the recognition in FLRP 83(B) that a new trial can be granted "on all or part of the issues."
¶9 When the family court ruled in August 2012 on the issues raised in Husband's motion for new trial, the court addressed those specific issues and did not indicate that the December 2011 decree had been set aside or vacated. That unsigned minute entry ruling was presented in written format for signing and entry by the court, and the court entered the ruling in October 2012. The court in this ruling stated:
The Court also clarifies that it set aside the rulings in their entirety based on issuing a ruling prematurely in advance of reviewing the written closing arguments. The parties can anticipate that, as to those undisputed portions of the Court's prior rulings, those will be incorporated into the Decree, nunc pro tunc.We are not aware of a subsequently entered order that was expressly made nunc pro tunc, and the court's language quoted above is not clear in its meaning. Notwithstanding some ambiguity, our analysis of this and later rulings is that the family court did not withdraw or vacate the December 2011 decree, but rather amended it by the subsequent rulings. This is also the family court's assessment of its own rulings.
¶10 In January 2013, Husband submitted a proposed amended decree and asked the court to enter it. Wife opposed the request and the court denied it. In a ruling entered July 2, 2013, the court explained:
Husband's request to sign yet another decree is denied. The Court already entered a decree, albeit without the benefit of written oral argument. The Court allowed additional argument and amended the decree by means [of] subsequent rulings.
¶11 Husband then filed, on July 13, 2013, the motion to vacate and reinstate the decree to permit an appeal — the denial of which is at issue in this appeal. This motion argues, in part, that after granting Husband's motion for new trial, the family court's rulings never stated that the court was "actually reinstating the Decree or any part thereof." Although Husband is correct in this statement, the decree was never vacated or set aside. It did not need to be reinstated.
¶12 In seeking a delayed appeal opportunity, Husband must meet "more stringent standards" than those of FLRP 85(C) or RCP 60(c) by showing "extraordinary," "unique," or "compelling" circumstances. See Geyler, 144 Ariz. at 328, 697 P.2d at 1078 (citing Park v. Strick, 137 Ariz. 100, 103-04, 697 P.2d 78, 81-82 (1985)). Further, "there is a 'compelling interest in the finality of judgments' which should not lightly be disregarded." Id. (citing Rodgers v. Watt, 722 F.2d 456 (9th Cir. 1983)).
¶13 We conclude the family court acted within its discretion in denying the motion to vacate and reinstate the decree. As already explained, the decree was not vacated or set aside and Husband erred in concluding that the decree needed to be reinstated. Husband has not demonstrated such "extraordinary," "unique," or "compelling" circumstances as would require this court to conclude that the family court abused its discretion in denying his motion. See Geyler, 144 Ariz. at 328, 697 P.2d at 1078; Park, 137 Ariz. at 103-04, 697 P.2d at 81-82 (describing necessity of extraordinary, unique or compelling circumstances). Instead, the record of motions and rulings provides ample basis for the family court's discretionary denial of the motion.
Based on the ambiguity created by some of the family court's rulings, the court certainly had discretion to grant Husband's motion to vacate and reinstate the decree. Even if we might have ruled differently if we had been in the shoes of the family court, however, our appellate review is confined to determining if the court abused its discretion in denying the motion. Such a ruling is highly discretionary and the court did not abuse its discretion.
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¶14 For these reasons, we affirm. Both parties have requested an award of attorney fees under A.R.S. § 25-324. In the exercise of our discretion, we decline to award either party attorney fees on appeal.