Opinion
1 CA-CV 12-0273
03-19-2013
In re the Matter of: KANWALJIT GADHOK, Petitioner/Appellant, v. VINOD K. NANGIA, Respondent/Appellee.
Kanwaljit Gadhok Petitioner/Appellant In Propria Persona Vinod K. Nangia Respondent/Appellee In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules
of Civil Appellate
Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FN2006-001513
The Honorable Susanna C. Pineda, Judge
AFFIRMED
Kanwaljit Gadhok
Petitioner/Appellant In Propria Persona
Scottsdale Vinod K. Nangia
Respondent/Appellee In Propria Persona
Scottsdale HOWE, Judge ¶1 Kanwaljit Gadhok ("Wife") appeals from the trial court's order denying her Motion to Enforce and/or Correct Decree and request for a hearing. Finding no error we affirm the trial court's denial of Wife's motion.
FACTS AND PROCEDURAL HISTORY
¶2 Wife filed a petition for dissolution of marriage from Vinod Nangia ("Husband") in April 2006. Before trial, the court found that most of the property issues were resolved under a Rule 69 agreement ("the agreement") at a settlement conference before a judge pro tem. The court noted that the agreement divided the majority of the parties' community assets and debts. However, the settlement conference transcript provided to this Court is unclear regarding how the assets were divided under the terms of the agreement. ¶3 In October 2008, the court ruled after a trial on the issues that the agreement did not resolve: (1) ownership of a TD Waterhouse bank account; (2) spousal maintenance; and (3) requests for attorneys' fees. Wife moved for a new trial on the TD Waterhouse account, which was granted. The court did not include the spousal maintenance issue because Wife stated that she did not wish to pursue it. ¶4 Regarding attorneys' fees, the court noted that Wife's unreasonable stance during the dissolution proceedings led to increased attorneys' fees. The court stated that
Wife has expended approximately $75,000.00 in attorneys' fees to date, having used the services of five separate attorneys during the course of these actions. Wife testified that she borrowed $65,000.00 from her adult children to pay these fees. Wife testified that she is a retired pediatrician and that her current monthly income is approximately $4,288.00. She acknowledges that pursuant to the Rule 69 agreement previously reached between [her] and her husband, she will be awarded approximately $1,300,000.00 in assets [in] these dissolution proceedings and that upon her husband's retirement, she will have an additional monthly income of $1,200.00.The court found that Wife's behavior led to increased attorneys' fees and ordered her to pay a portion of the attorneys' fees of Husband and the intervening party. ¶5 The court found the division of assets set forth in the agreement reasonable, and incorporated them in the decree. Thereafter, in April 2009, trial was held on the ownership of the TD Waterhouse account. In its ruling, the trial court stated that "[i]n an abundance of caution, this Court again took jurisdictional testimony from Wife and asked her if there were any issues not resolved by the summary judgment ruling or the Rule 69 agreement." The court then affirmed its previous decree of dissolution. ¶6 Two years later, in January 2012, Wife moved to "Enforce and/or Correct Decree." In her motion, Wife stated that she and Husband entered into a Rule 69 agreement, the terms of which had been confirmed by the court but that she was unaware of any written document the parties signed that set forth the terms of their agreement. Wife then argued that the October 2008 ruling confirmed that Wife was to receive $1,300,000 in assets, and that she had not received them. Wife also requested interest since the October 2008 ruling and an incorporation of the $1,300,000 award into the dissolution decree. Wife further moved for a hearing to determine whether Husband provided her the benefits to which she was entitled under the agreement. ¶7 Husband requested that the court deny Wife's motion without a hearing. He argued that Wife had not listed any asset that she had not received. Husband argued that the court's statement in its October 2008 ruling that Wife would receive approximately $1,300,000 in assets merely documented Wife's statement in the minute entry and was not a factual finding about the division of property. He argued that no evidence supported Wife's assertion that she was entitled to $1,300,000 in assets because all community assets had been divided. The court denied Wife's motion and denied Husband's request for attorneys' fees and costs. Wife moved for reconsideration, which the court denied. ¶8 Wife timely appeals from the court's order denying her motion. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101 (West 2013).
Rule 69 of the Arizona Rules of Family Law Procedure provides that "[a]greements between parties shall be valid and binding if the terms . . . are set forth on the record before a judge, commissioner, judge pro tempore, court reporter, or other person authorized . . . to accept such agreements."
We cite the current version of the applicable statutes because no revisions material to this decision have since occurred.
DISCUSSION
¶9 Wife argues that the trial court erred in refusing to "enforce the October 2008 judgment that confirmed the terms of the agreement." This Court reviews the facts in the light most favorable to sustaining the trial court's judgment. Sw. Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 440, ¶ 2, 36 P.3d 1208, 1210 (App. 2001). We reject Wife's argument because nothing in the record shows that she is entitled to $1,300,000 in assets. ¶10 Here, Wife put nothing in the record demonstrating that she was entitled to $1,300,000 in assets from Husband. Wife's argument rests on the October 2008 order awarding attorneys' fees to Husband. In that order, it appears that the trial court was considering the financial resources of Wife to determine the award of attorneys' fees, as required by A.R.S. § 25-324. The order states that "Wife acknowledges that she will be receiving $1,300,000 in assets in these dissolution proceedings." This can be interpreted to mean that the value of the assets distributed to Wife from the agreement total $1,300,000. While the parties may or may not have agreed that Wife was entitled to $1,300,000 in assets in the agreement, that information is not before this Court. Wife has not informed the Court of what specific assets are allegedly owed to her in her briefs or her motions to the trial court. She merely argues that $1,300,000 in assets are to be allocated to her under the October 2008 order. The record does contain a transcript of the settlement agreement, but it does not provide support for Wife's assertion that she was entitled to $1,300,000 in assets. Without more in the record before us, we must assume that the trial court correctly denied Wife's motion. ¶11 Wife also argues that she was entitled to an evidentiary hearing to enforce the October 2008 order. We review the decision whether to hold an evidentiary hearing for an abuse of discretion. State v. Wassenaar, 215 Ariz. 565, 576, ¶ 48, 161 P.3d 608, 619 (App. 2007). Here, Wife waited over two years before alleging that she never received the assets. Further, Wife had an opportunity to alert the trial court to the missing assets during the TD Waterhouse trial when the court asked Wife if the summary judgment ruling or the agreement left any other issues unresolved, but she said nothing regarding the assets. Instead, she claimed that other community accounts existed, but presented no evidence of their existence. Further, the court had previously found that "Wife has made self-serving assertions without factual support." Because Wife had the opportunity to voice her opinion earlier, has never specifically addressed which assets are missing, and the court found that she had a history of making assertions without factual support, we find no abuse of discretion in the court's denial of her request for a hearing.
Wife also submitted "Motion IA. Community Residence Owned by K. Gadhok" volumes 1-3. Because these motions are untimely and not properly raised before this Court, we decline to address them.
The trial court must consider the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings in awarding attorneys' fees. A.R.S. § 25-324.
Sanctions
¶12 Husband asks for sanctions against Wife and her attorney because they intentionally misstated court orders and the parties' agreement to bring a frivolous claim against Husband. Husband further argues that Wife and her attorney brought and maintained this action for the improper motive of harassment, delay, and needlessly increasing the cost of litigation. ¶13 Arizona Rule of Civil Appellate Procedure ("ARCAP") 25 allows this Court to provide reasonable sanctions when an appeal is frivolous or taken solely for the purpose of delay. The record shows that Wife has been uncooperative in the course of this litigation. The trial court noted that "Wife ha[d] been unreasonable during the course of these proceedings and her behaviors ha[d] lead to a prolonging of these proceedings and increased attorneys['] fees." Wife has been held in contempt for failing to abide the trial court's orders. This is Wife's third appeal to this Court arising from this divorce proceeding. Although we decline to award sanctions, we trust that Wife will not continue to appeal issues previously decided or without merit. ¶14 Husband is awarded his costs on appeal upon his compliance with ARCAP 21.
Wife's attorney filed the opening brief, although Wife proceeds pro per in her reply brief.
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CONCLUSION
¶15 For the foregoing reasons, we affirm the judgment of the trial court.
______________________
RANDALL M. HOWE, Judge
CONCURRING: ______________________
PATRICIA K. NORRIS, Presiding Judge
______________________
ANDREW W. GOULD, Judge