Opinion
No. 1 CA-CV 12-0723
05-28-2013
TAMIKA CURRY SMITH, Petitioner/Appellant, v. JOHN DAVIS SMITH, 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
Maricopa County
Superior Court
No. CV2011-001955
DECISION ORDER
Judges Patricia K. Norris, Michael J. Brown, and John C. Gemmill have received and reviewed the opening and reply briefs filed by Appellant Tamika Curry Smith ("Wife") and the answering brief filed by Appellee John Davis Smith ("Husband"). We have determined that oral argument will not substantially assist the court in resolving this appeal, and we therefore vacate the oral argument set for Wednesday, June 5, 2013.
Wife appeals from the family court's decree of dissolution of marriage and denial of her motion for new trial. For the reasons that follow, we vacate the family court's decision denying Wife's motion for new trial as untimely and remand for consideration of the motion on its merits.
We review a denial of a motion for new trial for an abuse of discretion. Mullin v. Brown, 210 Ariz. 545, 547, ¶ 2, 115 P.3d 139, 141 (App. 2005). An abuse of discretion exists where the court commits an error of law in reaching its discretionary decision. See State v. Cowles, 207 Ariz. 8, 9, ¶ 3, 82 P.3d 369, 370 (App. 2004). Wife contends the court "incorrectly interpreted the filing time requirements" of Rule 83 of the Arizona Rules of Family Law Procedure ("ARFLP"). We agree.
In ARFLP Rule 83(A), a motion for new trial is required to be filed "not later than fifteen (15) days after entry of the judgment." We held in Ghadimi v. Soraya, 230 Ariz. 621, 622-23, ¶¶ 10-11, 285 P.3d 969, 970-71 (App. 2012), that a decree of dissolution was not a final judgment, and thus premature for appeal, when the issue of the amount of a party's attorneys' fees was still outstanding. As in Ghadimi, the decree in this case was not the final judgment; therefore, the motion for new trial was not required to be filed within 15 days of the decree. The final judgment was rendered when the court filed its minute entry on July 13, 2012, awarding Wife her attorneys' fees. Wife's motion for new trial, filed on July 26, 2012, was therefore timely as to all issues raised.
The family court thus incorrectly concluded that only the attorneys' fees portion of the motion for new trial was timely. Because the court did not consider all the substantive issues raised in the motion for new trial, we vacate the court's denial of the motion and remand for full consideration. We also vacate the denial of the motion on the issue of attorneys' fees to allow the court to redetermine this issue, if appropriate, in light of the court's ruling on the entirety of the motion for new trial.
Wife's motion for new trial addresses essentially the same issues raised in her opening brief on appeal. It is highly preferable in our view for the family court to consider and rule on the substantive issues presented in the motion for new trial, prior to this court addressing those same issues. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004) (noting the trial court is in best position to evaluate evidence and witness credibility); Allied Van Lines v. Parsons, 80 Ariz. 88, 98, 293 P.2d 430, 436 (1956) (acknowledging it is for the trial court to decide in the first instance whether a verdict is excessive). In the interest of the orderly and proper administration of justice, therefore, we decline at this time to address the remaining issues Wife raises on appeal, because our holdings could be moot, premature, and potentially unnecessary in light of the family court's reconsideration of the issues presented by the motion for new trial.
Both parties have requested an award of attorneys' fees on appeal, in accordance with Arizona Revised Statutes section 25-324 (Supp. 2012). Based on the factors set forth in § 25-324 and in the exercise of our discretion, we award Wife an amount of reasonable attorneys' fees and her taxable costs on appeal, contingent upon her compliance with Arizona Rule of Civil Appellate Procedure 21. Accordingly,
IT IS ORDERED vacating the oral argument scheduled for Wednesday, June 5, 2013 in this court.
IT IS FURTHER ORDERED vacating the family court's order entered September 13, 2012, denying Wife's motion for new trial and remanding this matter to the family court for full consideration on the merits of the motion for new trial.
_________________________
PATRICIA K. NORRIS, Presiding Judge