Opinion
2 CA-CV 2023-0002-FC
06-28-2023
In re the Marriage of Adele Shemberger, Petitioner/Appellee, and Richard Shemberger, Respondent/Appellant.
Hunter, Humphrey & Yavitz PLC, Phoenix By Isabel M. Humphrey Counsel for Petitioner/Appellee Clifford Sherr, Phoenix Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FN2021050938 The Honorable Melissa Iyer Julian, Judge The Honorable Jacki Ireland, Judge Pro Tempore
Hunter, Humphrey & Yavitz PLC, Phoenix By Isabel M. Humphrey Counsel for Petitioner/Appellee
Clifford Sherr, Phoenix Counsel for Respondent/Appellant
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 Richard Shemberger appeals from the trial court's decree dissolving his marriage to Adele Shemberger. For the following reasons, we affirm.
Factual and Procedural Background
¶2 Richard and Adele were married in 1991. Three years later, they purchased a house together as community property. They had three children, all of whom are grown. In December 2011, Adele moved out of the marital residence.
¶3 In May 2021, Adele filed a petition for dissolution of marriage. In November, the trial court held a resolution management conference, during which it placed the case on the "Inactive Calendar for dismissal on March 4, 2022." The court later extended the dismissal date to April 8 at the parties' request. The court explained that if the parties did not file a consent decree or a motion to set the case for trial by April 8, the case would be dismissed. The parties did not file the appropriate documentation, and the court dismissed the case on May 2. Adele filed a motion to reinstate the case, which the court granted, setting the case for trial in October 2022.
¶4 Before trial, Richard moved to preclude two of Adele's witnesses from testifying based on "late disclosure" and to "continue the trial" to give him more time to depose those witnesses. The trial court denied both motions. After trial, the court issued a decree of dissolution characterizing the home as community property and ordering equal division of the home's equity as valued "at [the] time of dissolution." This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶5 On appeal, Richard argues the trial court erred in ordering valuation of the house as of dissolution, reinstating the case after it had been dismissed "for lack of prosecution," and denying his motion to preclude witness testimony. Notably, however, Richard has failed to provide us with the trial transcript as part of the record on appeal. "The appellant must order transcripts of superior court proceedings not already in the official record that the appellant deems necessary for proper consideration of the issues on appeal." Ariz. R. Civ. App. P. 11(c)(1). "We may only consider the matters in the record before us. As to matters not in our record, we presume that the record before the trial court supported its decision." Ashton-Blair v. Merrill, 187 Ariz. 315, 317 (App. 1996).
Date of Valuation
¶6 Richard first contends the trial court erred in awarding Adele half of the house's equity as valued at the time of dissolution rather than at the time Adele moved out of the house in December 2011. We review the court's choice of valuation date for an abuse of discretion. See Meister v. Meister, 252 Ariz. 391, ¶ 12 (App. 2021).
¶7 In concluding the instant case did "not present a unique set of facts or circumstances" justifying unequal division of community property and "the only equitable result" was to value Richard and Adele's marital residence "at [the] time of dissolution," the trial court weighed Adele's "credible testimony" against Richard's testimony, which "lacked credibility." The court noted in the decree that Adele had "left the marital home . . . due to significant verbal abuse by [Richard]" and that she had delayed filing for dissolution "for fear of a custody battle" because the parties "still had minor children at the time of their separation" in 2011. The court recognized that Richard had paid the mortgage and other housing expenses after Adele moved out but also considered that he had "received the benefit of living in [the house], whereas [Adele] and at least one of their children had to move into an apartment and struggle financially." Further, the court noted that although Richard also "had the ability to file for dissolution," "[b]oth parties sat on their hands which resulted in the home increasing in value significantly."
¶8 Richard relies on Meister in arguing the trial court's order for valuation of the marital residence as of the time of dissolution did not "comport[] with principles of fairness and equity." 252 Ariz. 391, ¶ 17. Specifically, he asserts the court failed to "utilize[]" in its determination of the valuation date the fact that he had made all of the mortgage payments after Adele left and that the value of the house had increased significantly since 2011. He continues that had the court "used even a nominal amount of equity and fairness, which [it] obviously did not, [it] would have given [him] at least some credit for keeping the dwelling from going into a default situation and further not allocated half of the significantly accrued equity to Adele."
¶9 Meister does not require a trial court to rely on any specific factor in choosing a valuation date and instead recognizes a court's "wide discretion to choose a . . . valuation date, so long as the ultimate valuation is equitable." Id. ¶ 18; see also A.R.S. § 25-318(A) (court must divide community property equitably); cf. Sample v. Sample, 152 Ariz. 239, 242 (App. 1986) (court did not err in valuing stock at date other than that of dissolution because equitableness is "touchstone"). There, we explained that a court "may use the date of service, or a date near the date of service, as a starting point in choosing the valuation date," "[b]ut the court must select a different date when necessary to ensure an equitable result." Meister, 252 Ariz. 391, ¶ 18. We ultimately concluded "[t]he decree the superior court entered lack[ed] sufficient analysis to permit us to decide whether its valuation . . . and its ultimate division of assets were equitable." Id. ¶ 30.
¶10 In contrast, the trial court in this case did provide its analysis in determining an equitable valuation date for Richard and Adele's marital residence. Indeed, it expressly weighed the parties' testimony, considering Adele's reason for waiting until 2021 to file for dissolution, as well as Richard's ability to have filed for dissolution earlier. See Lehn v. Al-Thanayyan, 246 Ariz. 277, ¶ 20 (App. 2019) (we do not reweigh evidence on appeal). On this record, we cannot conclude the court abused its discretion in ordering valuation of the house as of the time of dissolution. See Meister, 252 Ariz. 391, ¶ 12.
Reinstatement of Case
¶11 Richard also argues the trial court erred in reinstating the case after it had been dismissed for lack of prosecution, "making all subsequent proceedings void." Such a dismissal is properly challenged pursuant to Rule 85(b), Ariz. R. Fam. Law P.-the family-law counterpart to Rule 60(b), Ariz. R. Civ. P.-under which "the court may relieve a party or its legal representative from a judgment" on six bases, one of which is "any other reason justifying relief." Ariz. R. Fam. Law P. 85(b)(6); see Jepson v. New, 164 Ariz. 265, 275-76 (1990). We review a court's decision to set aside an order of dismissal under Rule 85(b) for an abuse of discretion. See Gonzalez v. Nguyen, 243 Ariz. 531, ¶ 8 (2018).
The language of Rule 85(b) is substantially the same as the language of Rule 60(b). As such, we look to case law interpreting and applying Rule 60(b) in addressing Richard's argument. See Ariz. R. Fam. Law P. 1(c).
¶12 In November 2021, the trial court placed the parties' dissolution matter on the "Inactive Calendar for dismissal on March 4, 2022," unless the parties filed "appropriate documents" indicating they were ready to proceed to trial. Adele and Richard subsequently requested that the "matter be continue[d] on the inactive calendar for an additional 120 days to allow the parties to participate in Alternate Dispute Resolution" (ADR). The court "extend[ed] the inactive deadline to April 8," stating that "[i]f a consent decree or motion to set this case for trial is not filed on or before that date, the case will be dismissed from the court's inactive calendar" and "[n]o further extensions will be granted." In March, in response to Adele and Richard's joint request, the court scheduled an ADR settlement conference to take place later that month.
¶13 On May 2, after the parties had failed to file any of the required documents, the trial court dismissed the case for "lack of prosecution." That same day, Adele filed a motion to reinstate and to set the case for trial, explaining that she and Richard had been unable to reach an agreement "with respect to the division of community property" and that the "case w[ould] be ready for trial on or after May 1, 2022." Richard opposed the motion, arguing there was no legal mechanism for reinstatement of a case following dismissal. In reply, Adele asserted the court had "discretion to extend the dismissal date for good cause shown." She contended Richard "had control" over their house, "the only significant asset owned by the parties," and she lacked "the financial resources to delay th[e] matter any longer." She continued that the denial of her motion to reinstate would result in "both parties incurring additional costs and attorney fees and delay" and that it was "not fair and reasonable for this matter to be delayed due to an error on the part of [her] attorney's staff." The court found "[g]ood cause" for reinstatement and set the matter for trial.
Although Adele did not cite to Rule 85, Ariz. R. Fam. Law P., or Rule 60, Ariz. R. Civ. P., in her motion, "a party need not file a specific motion to invoke the rule." Quijada v. Quijada, 246 Ariz. 217, n.3 (App. 2019); see also Ariz. R. Civ. P. 7.1(a)(1).
¶14 For the first time on appeal, Richard argues Adele did not have a valid "excuse" justifying reinstatement. He relies on Campbell v. Deddens, 93 Ariz. 247 (1963), to support his assertion that reinstatement requires both "good cause" and "a valid reason" for granting relief under Rule 60, neither of which were present. However, Richard waived this argument by raising it for the first time on appeal. See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, ¶ 18 (App. 2007).
¶15 Even if Richard had properly raised this argument below, the trial court had discretion to grant Adele relief. See Gonzalez, 243 Ariz. 531, ¶ 11 (construing Rule 60 as "investing extensive discretion in trial courts"). The court did not explain its reasoning for granting Adele's motion to reinstate beyond "[g]ood cause appearing," but if one of the grounds set forth in Rule 60(b) was satisfied, reinstatement was not an abuse of the court's discretion. See Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986) ("We will affirm the trial court's decision if it is correct for any reason, even if that reason was not considered by the . . . court.").
¶16 "To obtain Rule 60([b])(6) relief, a plaintiff must show extraordinary circumstances of hardship or injustice justifying relief as well as proof that (1) plaintiff diligently and vigorously prosecuted the case; (2) the parties took reasonable steps to inform the court of the case status; (3) substantial prejudice will result unless relief is granted; (4) plaintiff sought relief promptly and (5) plaintiff has a meritorious claim." Copeland v. Arizona Veterans Mem'l Coliseum &Exposition Ctr., 176 Ariz. 86, 89 (App. 1993); see also Jepson, 164 Ariz. at 275-77; Ariz. R. Fam. Law P. 85(b)(6); Ariz. R. Fam. Law P. 1(c). Here, Adele and Richard asked the trial court to extend the dismissal date to allow them to engage in ADR, which the court itself set to occur in March 2022, indicating Adele had been pursuing resolution of the case and the court was informed of its status. And Adele promptly sought relief by filing her motion to reinstate on the same day the case was dismissed. Adele asserted that she did not have the financial resources to delay the case any longer and that the parties were prepared to proceed to trial, suggesting she would experience hardship and suffer prejudice if the court did not grant relief. Further, Adele had a meritorious claim for dissolution with the expectation of division of the parties' community property. We cannot conclude the court abused its discretion in granting the motion to reinstate. See Gonzalez, 243 Ariz. 531, ¶ 8.
Although Copeland's analysis was based on a prior version of Rule 60, we cite the current version of the rule because the language of the relevant subsection is substantially the same.
Witness Testimony
¶17 Richard argues the trial court erred in denying his motion to preclude testimony of Nicole Mancini, Adele's daughter from a previous relationship, because Adele had failed to disclose her as a witness until "long after the discovery deadline for disclosure of such witness[es] had passed" and because "disclosure . . . occurred so shortly before the scheduled date of trial." "[W]e review the trial court's evidentiary rulings for abuse of discretion." Woyton v. Ward, 247 Ariz. 529, ¶ 14 (App. 2019); see also Marquez v. Ortega, 231 Ariz. 437, ¶ 14 (App. 2013) ("A trial court has broad discretion in ruling on disclosure and discovery matters, and this court will not disturb that ruling absent an abuse of discretion.").
¶18 In reinstating the case, the trial court set trial for October 20, 2022, and ordered the parties to "complete all disclosure requirements . . . at least 30 days prior to trial." On September 10, 2022, Adele disclosed Nicole Mancini and Jessica Shemberger as witnesses, and Richard subsequently moved in limine to preclude them from testifying, arguing they had not been timely disclosed and, in any event, their testimony was irrelevant. The court denied Richard's motion, but ultimately only Nicole testified at trial.
¶19 On appeal, Richard relies on Jones v. Buchanan, 177 Ariz. 410 (App. 1993), to support his argument that the trial court erred in allowing Nicole's testimony based on Adele's "late disclosure." Jones involved a prior version of Rule 26.1, Ariz. R. Civ. P., which required good cause for a court to allow evidence disclosed outside of the rule's timing provisions. 177 Ariz. at 412. However, Rule 49, Ariz. R. Fam. Law P., is the applicable disclosure rule in this case. Under Rule 49(i), "[t]he court may not allow a party to call witnesses whom the party did not disclose at least 60 days before trial or by a different deadline ordered by the court." Here, the court required all disclosure to be completed thirty days before trial, which was scheduled for October 20. Adele timely disclosed her witnesses on September 10. Thus, the court did not err in denying Richard's motion.
To the extent Richard suggests Nicole's testimony was irrelevant because she had "left the family dwelling at age 19, in the year 2000, about 11 years before Adele left" and argues the trial court erred in denying his motion to continue trial "so that he could depose the late disclosed witness," he has waived any such arguments by failing to provide "supporting reasons" with "citations of legal authorities" in his opening brief. Ariz. R. Civ. App. P. 13(a)(7)(A); see Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009).
Attorney Fees
¶20 Adele requests attorney fees pursuant to A.R.S. § 25-324(A) and (C). In our discretion, we deny her request for attorney fees, but as the prevailing party on appeal, she is entitled to her costs upon compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-341.
Disposition
¶21 For the foregoing reasons, we affirm.