Opinion
No. 2 CA-CV 2013-0102
09-23-2014
IN RE THE MARRIAGE OF: MICHELLE RENE PARK, Petitioner/Appellee, and ROBERT LANE PARK, Respondent/Appellant.
COUNSEL Bays Law, P.C., Sierra Vista By P. Randall Bays Counsel for Petitioner/Appellee David Lipartito, Tucson Counsel for Respondent/Appellant
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 NOT FOR PUBLICATION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 Cochise County
No. DO200500497
The Honorable John F. Kelliher, Jr., Judge
AFFIRMED
COUNSEL Bays Law, P.C., Sierra Vista
By P. Randall Bays
Counsel for Petitioner/Appellee
David Lipartito, Tucson
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. HOWARD, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Robert Park appeals from the trial court's order modifying the decree of dissolution between himself and his former wife, Michelle Park. Robert argues the court erred by ordering him to pay Michelle for previously unpaid retirement benefits, by failing to order that the retirement benefits be considered taxable income to Michelle, and by awarding Michelle her attorney fees and costs. Because he waived review of these issues, we affirm.
Factual and Procedural Background
¶2 In May 2005, Michelle filed a petition for the dissolution of her marriage to Robert. The trial court entered the decree of dissolution in August 2006. In June 2009, the parties stipulated, among other things, that Robert would pay Michelle a portion of his contingent military retired pay beginning on March 1, 2010 even if he chose to remain on active duty. Based on that stipulation, the court ordered that if Robert elected to remain on active duty after March 1, 2010, he would, at that time, begin paying Michelle her portion of his contingent military retired pay until his actual retirement.
¶3 In September 2011, Michelle filed a petition to modify certain terms of the decree, to enforce the decree in regards to payments made for their children's dental procedures, and also requested her attorney fees and costs. She did not raise retirement pay as an issue. In response, Robert requested Michelle's share of his retirement be reduced from 39.2 percent to 36 percent. During a May 2012 hearing on the modification petition, Michelle stated she also was requesting $12,600 in unpaid retirement benefits after Robert had stopped making the required payments once he retired, despite the fact that Michelle had not yet begun receiving her portion directly from the government. In January 2013, the trial court ordered that Robert pay Michelle for the unpaid retirement benefits. The court also granted Michelle's request for her attorney fees and costs. Robert then filed a Rule 83, Ariz. R. Fam. Law P. motion for a new trial, which the court denied. We have jurisdiction over Robert's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Retirement Benefits
¶4 Robert first argues the trial court erred by awarding Michelle the amount of retirement benefits she was not paid between November 2011 and December 2012. He contends that because the June 2009 order unambiguously stated that his obligations to pay Michelle directly terminated upon his actual retirement date, he therefore was not responsible for any payments due after that time. Michelle claims in response that Robert did not raise this issue properly in the trial court because it was raised for the first time in his motion for a new trial.
¶5 The initial decree stated that Michelle would receive a portion of Robert's military retirement pay beginning on the date he became eligible to retire. In June 2009, pursuant to a stipulation, the trial court modified the decree to ensure that Robert would begin paying Michelle her portion of his retirement benefits on March 1, 2010 until he actually retired, when she would begin receiving payments directly from the Defense Finance and Accounting Services (DFAS). Robert began making the payments in accordance with that modification, but stopped doing so upon his actual retirement date even though Michelle was not yet receiving her payments from DFAS.
¶6 During a review hearing on May 11, 2012, Robert told the trial court he had informed Michelle she needed to contact DFAS to ensure that, after his actual retirement, she would receive her portion of his retirement pay directly from DFAS. He stated he stopped paying Michelle "[b]ecause DFAS was supposed to, . . . if she had done the paperwork that she was supposed to have done."
¶7 "The general law in Arizona is that legal theories must be presented timely to the trial court so that the court may have an opportunity to address all issues on their merits." Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, ¶ 12, 258 P.3d 200, 204 (App. 2011). An argument not raised below generally is waived on appeal. Id. And an issue raised for the first time in a motion for new trial is deemed to have been waived. Conant v. Whitney, 190 Ariz. 290, 293, 947 P.2d 864, 867 (App. 1997).
¶8 During the hearing, Robert did not argue that the plain language of the 2009 order allowed him to stop making payments to Michelle when he retired. Rather, he raised the issue for the first time in his motion for a new trial filed January 31, 2013. Consequently, Robert has waived his right to review of this issue. See Cont'l Lighting, 227 Ariz. 382, ¶ 12, 258 P.3d at 204; see also Conant, 190 Ariz. at 293, 947 P.2d at 867.
¶9 In his reply, Robert notes he had testified at the hearing he had stopped making payments when he retired because Michelle was supposed to be paid by DFAS. But he did not testify that he relied on the plain language of the June 2009 order. A party's failure to present a legal argument to the trial court deprives the court of the "opportunity to rule properly." Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238 (App. 2007), quoting Payne v. Payne, 12 Ariz. App. 434, 435, 471 P.2d 319, 320 (1970). And the court was not required to "comb the record to make for [Robert] an argument [he] could have made for [himself]." See Zeagler v. Buckley, 223 Ariz. 37, n.6, 219 P.3d 247, 250 n.6 (App. 2009); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in [the record]."). After reviewing the entire transcript, we conclude Robert failed to sufficiently argue that the plain language of the June 2009 order allowed him to stop paying Michelle when he retired.
Tax Liability
¶10 Robert next argues the trial court erred by failing to order the direct payments he had made to Michelle for the retirement benefits be considered taxable income to her. Following the hearing and the court's oral order on the retirement benefits, Robert objected to Michelle's notice of lodging and requested, among other things, that language be added ensuring that the direct payments he had made to her for his retirement pay were credited as taxable income to Michelle and, therefore, as deductions for himself. The court heard oral argument on Robert's objections, noted that the tax liability issue had not been raised previously, and overruled the objection.
¶11 "An issue raised for the first time after trial is deemed to have been waived." Medlin v. Medlin, 194 Ariz. 306, ¶ 6, 981 P.2d 1087, 1089 (App. 1999). The trial court therefore was not required to rule on Robert's untimely objection and properly overruled it. See id.; see also Nat'l Broker Assocs., Inc. v. Marlyn Nutraceuticals, Inc., 211 Ariz. 210, ¶ 38, 119 P.3d 477, 485 (App. 2005) (court does not abuse discretion "by summarily overruling [untimely] objections"). And Robert has not cited any portion of the record which would explain the court's reasoning, nor has he cited any authority that the court erred in overruling the objection based on his failure to raise the issue timely. He therefore has waived this argument on appeal. See Ariz. R. Civ. App. P. 13(a)(6) (appellate brief argument shall contain "citations to the authorities, statutes and parts of the record relied on"); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007) (appellant's failure to develop and support argument waives issue on appeal).
Robert has not provided us with a complete transcript of the hearing and we therefore cannot determine the exact basis upon which the trial court overruled his objection. However, the portion of the transcript available to us shows that the court did voice its concerns that the issue had not been raised before the court's oral order on the issues. Additionally, Robert raised the issue again in his motion for a new trial, which was denied based on the court's finding that the arguments presented had not been introduced at trial. Based on the record before us, it appears the court found Robert's objection untimely, which, as we have concluded, was a proper finding. See Nat'l Broker Assocs., Inc. v. Marlyn Nutraceuticals, Inc., 211 Ariz. 210, ¶ 38, 119 P.3d 477, 485 (App. 2005).
¶12 Additionally, Robert has not provided a complete transcript of the hearing at which the tax issue was argued and ruled upon. Rather, the transcript he provided contains only his opening argument to the trial court regarding the tax issue. It does not contain Michelle's counter-argument, or the court's oral ruling on the issue. As appellant, Robert was obligated to "mak[e] certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised." Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); see also Ariz. R. Civ. App. P. 11(b). In the absence of the transcript, we presume it supports the court's ruling. See Baker, 183 Ariz. at 73, 900 P.2d at 767. Thus, even were we to find Robert had not waived this argument, we presume the arguments made at the hearing support the court's denial of his request. See id. Similarly, if the court chose to overrule Robert's objection on its merits, we presume the transcript supports that ruling as well. See id.
Attorney Fees
¶13 Robert last argues the trial court abused its discretion by awarding Michelle a portion of her attorney fees and costs. He argues the court erred by striking and failing to consider his financial affidavits and by finding he took an unreasonable position during the proceedings. We review the award for an abuse of discretion. See In re Marriage of Robinson & Thiel, 201 Ariz. 328, ¶ 20, 35 P.3d 89, 96 (App. 2001).
¶14 Robert failed to object to the trial court's award based on the reasonableness of the parties' positions below and therefore has waived review of the issue. See Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 6, 119 P.3d 467, 470-71 (App. 2005). And he failed to raise the issue of a financial disparity until his motion for a new trial, which was also the first time he provided the court with a financial affidavit, thus failing to preserve the issue for appellate review. See Conant, 190 Ariz. at 293, 947 P.2d at 867. Robert cannot complain now that the court failed to properly take into account his finances when he failed to provide the court with that information timely.
In his opening brief, Robert contends that had the trial court considered his financial affidavit, "an important part of [its] basis for its $6,500 fee award would have been undermined, particularly in light of the new information that Michelle had been working for months and was actually earning more than Robert." The affidavits show, however, that Michelle's monthly income was $4,077 while Robert's was $13,214. Consequently, we fail to see how this information, even if timely filed below, would have "undermined" the court's award. See Magee v. Magee, 206 Ariz. 589, ¶ 18, 81 P.3d 1048, 1052 (App. 2004) ("relative financial disparity between the parties is the benchmark for eligibility" for attorney fees award in dissolution proceedings); see also A.R.S. § 25-324(A).
¶15 Additionally, our record does not contain the transcript of the hearing at which the trial court ruled on the award of attorney fees and costs. Rather, the transcript of that hearing contains only Robert's opening argument to the court regarding the tax liability issue. Given the presumption described above, we cannot say on the record before us that the court abused its discretion in granting the award. See Baker, 183 Ariz. at 73, 900 P.2d at 767; see also Marriage of Robinson & Thiel, 201 Ariz. 328, ¶ 20, 35 P.3d at 96. Moreover, we presume the court correctly ruled on the objection, if any, to the attorney fees award. See Baker, 183 Ariz. at 73, 900 P.2d at 767.
Attorney Fees and Costs on Appeal
¶16 Michelle has requested her attorney fees and costs on appeal pursuant to Rule 21, Ariz. R. Civ. App. P., Rule 31, Ariz. R. Fam. Law P., and A.R.S. §§ 25-324, 12-341, 12-341.01, and 12-349. Considering the relative financial position of the parties, as set forth in the record, and the reasonableness of their positions, we grant Michelle her reasonable attorney fees and costs pursuant to § 25-324 upon her compliance with Rule 21.
¶17 Robert also has requested his attorney fees and costs on appeal pursuant to Rule 21 and § 25-324(A). In our discretion we deny his request.
Disposition
¶18 For the foregoing reasons, we affirm the judgment of the trial court.