From Casetext: Smarter Legal Research

Diaz v. Diaz

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 16, 2016
No. 1 CA-CV 15-0199 FC (Ariz. Ct. App. Feb. 16, 2016)

Opinion

No. 1 CA-CV 15-0199 FC

02-16-2016

In re the Marriage of: OSCAR M. DIAZ, Petitioner/Appellee, v. TARA L. DIAZ, Respondent/Appellant.

COUNSEL Tara Diaz, Mesa Respondent/Appellant


NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2014-091447
The Honorable Joseph Sciarrotta, Judge

AFFIRMED

COUNSEL Tara Diaz, Mesa
Respondent/Appellant

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined. PORTLEY, Judge:

¶1 Tara L. Diaz ("Mother") appeals certain rulings contained in the decree of dissolution. For the following reasons, we affirm the decree.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mother and Oscar M. Diaz ("Father") married in 2000, and have four minor children. Father filed a petition to dissolve the marriage in February 2014. The family court held a hearing, took the matter under advisement, and subsequently entered a decree dissolving the marriage, which addressed myriad issues including relocation, joint legal decision-making, parenting time, child support, and the division of debt and property.

¶3 Shortly thereafter, Mother filed a motion that the court treated as a motion for reconsideration and denied in an unsigned minute entry. Mother then filed this appeal. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2).

Mother did not appeal the denial of her motion for reconsideration, and has thus waived the issue. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ("Failure to argue a claim usually constitutes abandonment and waiver of that claim.") (citations omitted).

We cite the current version of the statute unless otherwise noted.

DISCUSSION

¶4 Mother raises a number of issues on appeal. She contends the family court erred by denying her request to relocate with the children, and seeks to modify the legal-decision-making ruling, the parenting-time ruling, as well as the child support and spousal support orders. She, however, failed to follow the rules for appeals in the Arizona Rules of Civil Appellate Procedure. As a result, and because Mother did not cite to the record, or present arguments supported by statutes, rules, or cases, she has waived her arguments. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (merely mentioning argument in opening brief is insufficient, and failure to properly argue claim on appeal constitutes abandonment and waiver of that claim) (citation omitted); MacMillan v. Schwartz, 226 Ariz. 584, 591, ¶ 33, 250 P.3d 1213, 1220 (App. 2011) ("Opening briefs must present significant arguments, supported by authority, setting forth the appellant's position on the issues raised.") (citation omitted). We will, however, exercise our discretion and review her principle arguments.

Father did not file an answering brief. In the exercise of our discretion, we will not treat his omission as a confession of error. See Michaelson v. Garr, 234 Ariz. 542, 544 n.3, ¶ 4, 323 P.3d 1193, 1195 n.3 (App. 2014). --------

¶5 First, she contends the family court erred by failing to grant her request to relocate. Mother raised her desire to relocate in her pretrial statement. However, the family court found that she "made a passing mention of a desire to relocate to Iowa but presented no evidence, other than very limited and vague testimony" to support her request.

¶6 We cannot review the court's assessment of the record because Mother did not have a transcript of the proceedings prepared and forwarded to this court as required. See ARCAP 11(c)(1)(B) ("If the appellant will contend on appeal that a judgment, finding or conclusion, is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record transcripts of all proceedings containing evidence relevant to that judgment, finding or conclusion."). As a result, we presume the record supports the court's findings. See Michaelson v. Garr, 234 Ariz. 542, 546, ¶ 13, 323 P.3d 1193, 1197 (App. 2014). Because the family court did not find that Mother presented evidence that she wanted to relocate with the children, we cannot find that the court abused its discretion.

¶7 Second, she seeks to challenge or modify the legal decision-making and parenting awards. Although we do not have the transcript, the family court's ruling meets the statutory requirements, including a discussion of how the rulings are in the best interests of the children. As a result, we find no abuse of discretion by the family court.

¶8 Third, Mother challenges the denial of her request for spousal maintenance. The family court analyzed the issue as required by A.R.S. § 25-319. Although the parties were married for some fifteen years, the court found that Mother did not establish a statutory basis for spousal maintenance. Moreover, the court knew the earnings of both parents, as well as other information contained in the affidavits of financial information, and ordered Father to pay $1165 monthly to Mother to support the four children, as well as making him responsible for paying 70% of any medical, dental and orthodontia expenses not covered by insurance. Consequently, we cannot find that the court abused its discretion by denying Mother spousal maintenance.

¶9 Finally, Mother also raises a host of issues about Father's compliance with the decree. Specifically, she contends as follows: (a) Father failed to make the required 401k account payment; (b) Father cannot follow the court's parenting-time schedule; (c) Father does not respond to emails or phone calls; (d) Father has not provided her with the title for the car allocated as her sole property in the decree, which resulted in its foreclosure (and she demands reimbursement for the cost of purchasing a new car); (e) Father makes the same amount of money as when he worked out-of-state, now entitling her to spousal maintenance; (f) she needs money for a dental procedure for one of the children and cannot afford to pay for it and wait to be reimbursed by Father; and (g) Father and his attorney lied to the court when they stated that Father lived in a car because she has documentation to demonstrate he has a residence.

¶10 Those seven claims appear to have arisen after the decree was entered. This court does not have jurisdiction over matters which occurred after the decree was entered and have not been addressed by the family court. If Mother wants the family court to enforce the orders in the decree, she can file a petition asking the court to enforce its orders and ask the court for an evidentiary hearing. Consequently, we do not have jurisdiction over those claims and will not address them.

CONCLUSION

¶11 For the foregoing reasons, we affirm the decree.


Summaries of

Diaz v. Diaz

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 16, 2016
No. 1 CA-CV 15-0199 FC (Ariz. Ct. App. Feb. 16, 2016)
Case details for

Diaz v. Diaz

Case Details

Full title:In re the Marriage of: OSCAR M. DIAZ, Petitioner/Appellee, v. TARA L…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Feb 16, 2016

Citations

No. 1 CA-CV 15-0199 FC (Ariz. Ct. App. Feb. 16, 2016)