Opinion
No. 2 CA-CV 2016-0109
02-10-2017
IN RE THE MARRIAGE OF AMY ANN TODD, Petitioner/Appellee, v. RONALD KEITH MILLER, Respondent/Appellant.
COUNSEL Thrush Law Group, PLLC, Tucson By Brian K. Kimminau Counsel for Petitioner/Appellee West, Elsberry, Longenbaugh & Zickerman, PLLC, Tucson By Anne Elsberry 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NOT FOR PUBLICATION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)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. D20122554
The Honorable Laurie B. San Angelo, Judge Pro Tempore
AFFIRMED
COUNSEL Thrush Law Group, PLLC, Tucson
By Brian K. Kimminau
Counsel for Petitioner/Appellee West, Elsberry, Longenbaugh & Zickerman, PLLC, Tucson
By Anne Elsberry
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. HOWARD, Presiding Judge:
¶1 Ronald Miller appeals from the trial court's denial of his motion to enforce his and his former wife's Amy Todd's decree of dissolution with regard to tax debt incurred during the marriage. Miller argues the court erred by finding the decree allocated the tax debt and by placing the burden on him to show that Todd was jointly liable for the tax debt. Because we find no error, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences in the light most favorable to upholding the trial court's ruling. In re Marriage of Downing, 228 Ariz. 298, ¶ 2, 265 P.3d 1097, 1098 (App. 2011). Miller and Todd were married in April 1997 and, in November 2013, a trial court entered a decree of dissolution of that marriage. As relevant here, the decree states that "[a]ny taxes owed for any prior years shall be paid according to the Internal Revenue Service [(IRS)] records as to who is responsible for such amounts."
In his opening brief, Miller cites to documents identified in his motion to expand the record on appeal. We, however, denied that motion as those documents had not been presented to the trial court. We therefore strike and do not consider any of the documents identified in that motion and cited by Miller. See LaWall v. Pima Cty. Merit Sys. Comm'n, 212 Ariz. 489, n.3, 134 P.3d 394, 396 n.3 (App. 2006); see also Ariz. R. Civ. App. P. 11(a).
¶3 In February 2015, Miller filed a motion to correct a mistake pursuant to Rule 85(A), Ariz. R. Fam. Law P., or clarification pursuant to Rule 84(A), Ariz. R. Fam. Law P. He contended the decree's provision regarding the tax debt was "built on the false premise that the IRS would allocate payment of the taxes between" Miller and Todd. Thus, he reasoned, "it appears the past due taxes were a community debt that was not allocated." He requested the court find the provision either "ambiguous" or "confusing or susceptible to more than one reasonable interpretation." He additionally requested the court order that "in the event the parties are found to be jointly liable for past due taxes, either party shall be entitled to seek reimbursement for any amount owed over one-half that they pay to the IRS."
¶4 On July 1, 2015, the trial court denied the motion, finding that Miller being mistaken as to the IRS's allocation of debt was not a clerical mistake justifying relief under Rule 85(A). The court noted that the language Miller wanted the court to order had been removed from the decree at his urging. It also found that the provision in question was not "confusing or susceptible to more than one reasonable interpretation" and "[i]f there is joint and several liability for any community tax debt between the parties, it is to be addressed with the IRS, as the parties agreed."
¶5 Less than two weeks later, Miller filed a "Request for Contribution or Enforcement." He asserted again that the decree did not allocate the tax debt and he was entitled to bring an independent action against Todd for contribution because the tax debt was an unallocated community debt. Alternatively, he asserted that the IRS had determined Miller and Todd were jointly and severally liable for the tax debt, and he maintained the court should order Todd to pay one-half of the remaining amount due to the IRS pursuant to the decree. During the evidentiary hearing held on the motion, Miller testified he owed the IRS past due taxes for the years 2005-2010, totaling approximately $90,000, of which he had paid approximately half.
¶6 On April 25, 2016, the trial court denied Miller's motion, first re-affirming its earlier ruling that the decree did allocate the tax debt. It then found that Miller had not met his burden of showing the IRS had allocated the tax debt jointly and thus his motion to enforce the decree failed. We have jurisdiction over Miller's timely appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(2).
Discussion
¶7 Miller first argues the trial court erred in concluding the decree did allocate the tax debt, "[a]s argued . . . in his Motion to Correct Mistake." The denial of that motion was separately appealable, but Miller did not appeal from that denial. See A.R.S. § 12-2101(A)(2); cf. In re Estate of Rose, 108 Ariz. 207, 209, 495 P.2d 138, 140 (1972) (post-judgment ruling on a Ariz. R. Civ. P. 60(c) motion is a special order after final judgment). And his subsequent request for contribution or enforcement was not a time-extending motion. Ariz. R. Civ. App. P. 9(e). Finally, his notice of appeal only included the court's April 25 order. We therefore lack jurisdiction to address Miller's argument that the court erred in denying his motion to correct a mistake. See Ariz. R. Civ. App. P. 9(a) (notice of appeal must be filed "no later than 30 days after entry of the judgment from which the appeal is taken"); In re Marriage of Thorn, 235 Ariz. 216, ¶ 5, 330 P.3d 973, 975 (App. 2014) (court of appeals only has jurisdiction over "matters identified in a timely filed notice of appeal").
¶8 Miller next argues that all debt incurred during a marriage is presumed to be community debt and therefore Todd bore the burden of showing, by clear and convincing evidence, the tax debt was not community debt, relying solely on Hrudka v. Hrudka, 186 Ariz. 84, 91-92, 919 P.2d 179, 186-87 (App. 1995), superseded by statute on other grounds as recognized in Myrick v. Maloney, 235 Ariz. 491, ¶ 8, 333 P.3d 818, 821 (App. 2014). He thus reasons the trial court improperly placed the burden on him to show Todd was jointly liable for the debt.
¶9 First, Hrudka was an appeal from the entry of a decree of dissolution and therefore inapplicable here. Id. at 87, 919 P.2d at 182. Second, despite Miller's repeated assertions to the contrary, the decree did allocate the tax debt, as found by the trial court's ruling on Miller's motion to correct a mistake. Thus, any issue over Todd's liability turned on the IRS's allocation of responsibility as dictated by the decree. Miller did not appeal either the entry of the decree allocating the tax debt or the trial court's ruling on his motion to correct a mistake. We decline to address his argument on this issue further.
Furthermore, Miller has not provided this court with any of the exhibits admitted below. It is an appellant's obligation to ensure the record on appeal contains all documents necessary to consider an issue raised on appeal. State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, ¶ 16, 66 P.3d 70, 73 (App. 2003). Our review is limited to items in the record before us, A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cty., 222 Ariz. 515, ¶ 99, 217 P.3d 1220, 1248 (App. 2009), and we presume any document not in the record would support the trial court's decision, Ashton-Blair v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996). Notably, although Miller claimed he and Todd filed amended joint returns for the years 2008-2010, he was never able to produce those returns for the court to review. --------
¶10 Miller lastly argues, again, "The tax liability is a debt not allocated by the [dissolution] decree and remains a joint obligation of the parties." For the reasons already explained above, we reject this argument as well.
Attorney Fees
¶11 Both parties have requested their attorney fees on appeal pursuant to A.R.S. § 25-324 and Rule 21, Ariz. R. Civ. App. P. We have considered the parties' financial resources and the reasonableness of their positions on appeal, and we award Todd her reasonable attorney fees and costs, upon her compliance with Rule 21. See Leathers v. Leathers, 216 Ariz. 374, ¶ 22, 166 P.3d 929, 934 (App. 2007).
Disposition
¶12 For the foregoing reasons, we affirm the trial court's ruling.