Opinion
No. 1 CA-CV13-0220
02-06-2014
MICHEAL D. CHAPMAN, Petitioner/Appellant, v. SUSAN M. SOTO CHAPMAN, Respondent/Appellee.
Michael D. Chapman, Prescott Petitioner/Appellant In Propria Persona Monroe McDonough Goldschmidt & Molla, PLLC, Tucson By Karl MacOmber Counsel for Respondent/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. P1300DO20020581
The Honorable Kenton D. Jones, Judge
AFFIRMED
COUNSEL
Michael D. Chapman, Prescott
Petitioner/Appellant In Propria Persona
Monroe McDonough Goldschmidt & Molla, PLLC, Tucson
By Karl MacOmber
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined. HOWE, Judge:
¶1 Michael Chapman appeals from the denial of his "Petition to Enforce Court Order About Division of Property." For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 1994, Chapman purchased a home with his grandmother. In 1998, he married Susan Soto and quit-claimed half of his one-half interest in the property to Soto with the verbal understanding that if they separated, Soto would re-deed the property to Chapman. This verbal understanding was never written.
Although the parties state in their briefing before this Court that the ownership interest involved is a joint tenancy, the true nature of this interest is unclear. We need not resolve that question in resolving this appeal, however.
¶3 Chapman petitioned for legal separation in July 2002. Soto responded that the marriage was irreconcilable and requested that the court proceed with dissolution proceedings. The court agreed and a bench trial was held to distribute the parties' assets. Chapman did not appear. During the trial, Soto testified that the couple did not acquire any real estate during the marriage and that they had agreed upon a fair and equitable division of their personal property. The decree of dissolution ordered that each party was assigned his or her separate property, and noted that "the parties have already divided most property and are aware and agree to the so far undelivered property. The understood and agreed property division is approved, confirmed and deemed not unfair." The standard form attachment used for division of real property was left blank except for "N/A" written on it. Chapman never contested the decree or sought a new trial.
¶4 In 2008, Chapman contacted Soto and asked that she transfer her property ownership in the home back to him. She refused to meet with him. Chapman's grandmother passed away, and he remarried in 2009. Chapman quit-claimed his interest in the property to his new wife.
¶5 In 2012, nine years after the decree was entered, Chapman petitioned to "Enforce Court Order About Division of Property." He stated that Soto had failed to sign a quit-claim deed releasing her interest in the property back to him, and that he wanted the court to order that Soto sign such a deed.
¶6 After a hearing on the matter, the court noted that Chapman had known of the 2003 proceedings and decree, had never challenged the decree by appeal or asked for a new trial, and had now waited too long to do so. The court recognized that some evidence existed that Soto had agreed to sign a quitclaim deed removing her from any interest in the residence in Prescott but that the terms of the decree did not address Chapman's interest in the real property. The court concluded that Chapman was not asking for enforcement of the terms of the decree, but for a modification of its terms to give him an interest in real property that was never reflected in the decree. The court stated that it could not find that the decree or other documents Chapman submitted indicated that an agreement had been entered into between the parties before the 2003 bench trial, and therefore denied Chapman's petition. Chapman timely appeals.
We have an independent duty to determine whether we have jurisdiction over an appeal. A.R.S. § 12-2101(A)(1). Chapman filed his notice of appeal prematurely, but "a premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised need not be dismissed." Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981). Because the premature filing of the notice of appeal did not prejudice Soto, the Barassi exception applies, and the notice is effective to vest jurisdiction within this Court. With the amendments to Arizona Rule of Civil Appellate Procedure 9, this analysis is unnecessary for notices of appeal filed after January 1, 2014.
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DISCUSSION
¶7 Chapman's brief is largely indiscernible and does not comply with Arizona Rule of Civil Appellate Procedure 13(a). Most important, the brief does not contain any relevant legal argument or citation to authority, nor does it articulate the proper standard of review. See Arizona Rule Civil Appellate Procdure 13(a)(6) (the opening brief shall contain argument with "citations to the authorities, statutes and parts of the record relied on" and identify "the proper standard of review on appeal"). Chapman's failure to comply with these rules limits our ability to evaluate his arguments or otherwise address his claims. See, e.g., In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 299 ¶ 28, 18 P.3d 85, 93 (App. 2000) (refusing to consider bald assertions offered without elaboration or citation to legal authority); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 93 ¶ 50, 977 P.2d 807, 815 (App. 1998) (rejecting assertions made without supporting argument or citation to authority). Although Chapman is a non-lawyer representing himself, he is held to the same standards as a qualified attorney. See, e.g., Old Pueblo Plastic Surgery, P.C. v. Fields, 146 Ariz. 178, 179, 704 P.2d 819, 820 (App. 1985). Nevertheless, in the exercise of our discretion, we will attempt to discern and address the substance of Chapman's arguments because we prefer to decide cases on the merits. See Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285 (1966).
¶8 Chapman argues that he and Soto had an understanding that she would re-deed her interest in the property if they divorced, and she did not comply with that understanding. He also argues that Soto committed fraud by testifying at the 2003 proceeding that no issues existed concerning the real property.
¶9 We find no error. The superior court correctly found that the decree did not indicate that an agreement had been entered into between the parties regarding the real property. The decree stated that the parties did not acquire community property during the marriage and the form used to divide real property was left blank except for "N/A" written on it. The superior court could not enforce the distribution of real property in the decree because property did not exist within the decree. We find no error.
¶10 Chapman also argues that no statute of limitations exists when a party commits fraud, but Chapman is incorrect. Arizona Rule of Civil Procedure 60(c)(3) governs the reopening of a property disposition. Breitbart-Napp v. Napp, 216 Ariz. 74, 80 ¶¶ 16-17, 163 P.2d 1024, 1030 (App. 2007). This rule allows the court to relieve a party from a final judgment for fraud, misrepresentation, or other misconduct of an adverse party. A party moving for relief under Rule 60(c)(3) move "within a reasonable time" and "not more than six months after the judgment or order was entered or proceeding was taken." Chapman waited years to contest the decree when he was aware of the proceedings and decree in 2003. He may not now re-open the disposition of property issue when he knew of the error and failed to contest the issue.
ATTORNEYS' FEES
¶11 Soto requests an award of attorneys' fees on appeal arguing that she is entitled to the award because Chapman's appeal "indisputably" had no merit. We interpret this as a request for attorneys' fees under Arizona Rule Civil Appellate Procedure 25. Rule 25 allows an award of attorneys' fees where the appeal is frivolous or taken solely for the purpose of delay. In our discretion, we do not find that the appeal was frivolous. We therefore decline to award Soto attorneys' fees.
CONCLUSION
¶12 We affirm the court's denial of Chapman's petition. As the prevailing party, Soto is entitled to costs incurred on appeal pursuant to her compliance with Arizona Rule Civil Appellate Procedure 21.