Opinion
1 CA-CV 21-0110 FC
01-13-2022
In re the Matter of: ANGELA T. METROPULOS, Petitioner/Appellant, v. JOSEPH E. HOLEVA, Respondent/Appellee.
Angela T. Metropulos, Phoenix Petitioner/Appellant Berkshire Law Office, PLLC, Tempe By Keith Berkshire, Alexandra Sandlin Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2019-000815 The Honorable Margaret B. LaBianca, Judge
Angela T. Metropulos, Phoenix Petitioner/Appellant
Berkshire Law Office, PLLC, Tempe By Keith Berkshire, Alexandra Sandlin Counsel for Defendant/Appellee
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Kent E. Cattani.
MEMORANDUM DECISION
THUMMA, JUDGE
¶1 Angela T. Metropulos (Mother) appeals from the superior court's denial of her motion for relief from a decree dissolving her marriage to Joseph E. Holeva (Father). Because Mother has shown no error, the order denying her motion is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father were married in 2006 and have two minor children. In January 2019, Mother petitioned for divorce, serving Father in April 2019. Mother's petition and Father's response detailed various assets each brought into the marriage. After disclosure and discovery, the parties resolved various issues in Rule 69 agreements that the court accepted in compliance with that rule, including where applicable, noting both were represented by counsel.
¶3 When the parties continued to dispute certain issues, the court held an evidentiary hearing in August 2020, where Mother was self-represented, and Father was represented by counsel. The parties submitted a written Divorce Settlement Agreement, signed at a time both parties were represented by counsel, resolving all issues between the parties (with modifications noted by the court in a written minute entry). The resulting minute entry reflects that both parties testified that they "understood] the agreement; that, under the circumstances, the agreement is fair and reasonable and in their children's best interest; and that they agree to be bound by it as a Court order." The court found the agreement complied with Rule 69 and, after finding it was "knowingly, voluntarily and intelligently made," adopted the agreement "as a settlement of all issues as modified and delineated" in the minute entry. The court entered a final Rule 78(c) decree on September 17, 2020.
¶4 On October 23, 2020, Mother filed a "Motion for Relief from Judgment or Order (Rule 85) or, in the alternative Altering or Amending Judgment (Rule 83)." The superior court found Mother's Rule 83 motion untimely, but directed Father to respond to her Rule 85 motion. After considering that response, the court denied Mother's Rule 85 motion. This court has jurisdiction over Mother's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1) (2022).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶5 Mother argues the superior court (1) erred in denying her Rule 85 motion; (2) did not properly consider or weigh all of the evidence, which she asserts does not support the decree and shows she agreed to the settlement under duress; (3) was biased against her; (4) did not read her pretrial statement or her reply in further support of her Rule 85 motion and (5) did not consider the best interests of the children. Mother also argues the evidence does not support the court's denial of her Rule 85 motion. Father argues that Mother has waived these issues, also addressing the merits of Mother's arguments.
I. Mother Has Waived The Issues She Seeks to Press On Appeal.
¶6 As noted by Father, Mother's opening brief fails to comply with applicable rules. Among other things, an opening brief must include "appropriate references to the record," ARCAP 13(a)(4), and citations to legal authority, see Lake Havasu City v. Ariz. Dep't of Health Servs., 202 Ariz. 549, 553 ¶ 15 n.4 (App. 2002). Mother's opening brief fails to do either, meaning she has waived her arguments. See MacMillan v. Schwartz, 226 Ariz. 584, 591 ¶ 33 (App. 2011) ("Merely mentioning an argument in an appellate opening brief is insufficient."); Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 137 n.2 (App. 2011) (noting failure to adequately cite the record is "an appropriate ground for this court to find an appellant's argument is waived.").
¶7 Similarly, although Mother purports to challenge the sufficiency of the evidence, she failed to provide the relevant transcripts. This court presumes a missing transcript would support the superior court's ruling. See Myrick v. Maloney, 235 Ariz. 491, 495 ¶ 11 (App. 2014); see also Cullison v. City of Peoria, 120 Ariz. 165, 168 n.2 (1978) ("[W]here an incomplete record is presented to an appellate court, the missing portions of that record are to be presumed to support the action of the trial court.") (citations omitted). Thus, to the extent Mother challenges the sufficiency of the evidence or presses arguments on appeal that turn on what a transcript would reveal, those arguments are waived.
¶8 Mother's opening brief also makes factual statements not supported by the record and cites exhibits struck by this court in a July 2021 order. Evidence that was not part of the record on appeal or presented to superior court will not be considered by this court. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4-5 (App. 1990). Nor are those materials properly the subject of judicial notice on appeal. See Ariz. R. Evid. 201. As a result, to the extent Mother's arguments turn on materials that are not part of the record, they are improper and rejected.
¶9 Finally, to the extent Mother seeks to add new arguments or expand arguments on appeal, she cannot do so. Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535 ¶ 18 (App. 2007) ("[Arguments raised for the first time on appeal are untimely and deemed waived."). For all of these reasons, Mother has waived the arguments she seeks to assert on appeal.
II. Mother Has Not Shown the Superior Court Abused Its Discretion in Denying Her Rule 85 Motion.
¶10 Waiver notwithstanding, this court reviews the denial of a Rule 85 motion for an abuse of discretion. Duckstein v. Wolf, 230 Ariz. 227, 231 ¶ 8 (App. 2012). This court presumes the superior court properly made "all findings necessary to sustain the judgment if they are 'reasonably supported by the evidence, and not in conflict with the court's express findings.'" Great W. Bank v. LJC Dev., L.L.C., 238 Ariz. 470, 479 ¶ 31 n.9 (App. 2015) (citation omitted). With this background, this court addresses the Rule 85 grounds Mother pressed with the superior court.
A. Mother Has Shown No Abuse of Discretion In the Superior Court Rejecting Her Claim of Mistake, Inadvertence, Surprise or Excusable Neglect Under Rule 85(b)(1).
¶11 The superior court "may relieve a party . . . from a final judgment" if that party shows "mistake, inadvertence, surprise or excusable neglect." Ariz. R. Fam. Law P. (ARFLP) 85(b)(1). "A mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition or misplaced confidence." Davis v. Super. Ct., 25 Ariz.App. 402, 403 (1976) (quoting Brown v. Beck, 64 Ariz. 299 (1946)). "[Carelessness is not synonymous with excusable neglect." Almarez v. Super. Ct, In and For Pima Cty., 146 Ariz. 189, 192 (App. 1985) (citation omitted). "Rather, the test of what is excusable is whether the neglect or inadvertence is such as might be the act of a reasonably prudent person under similar circumstances." Daou v. Harris, 139 Ariz. 353, 359 (1984). "The purpose of the rule is to provide relief for those mistakes and errors which inevitably occur despite diligent efforts to comply with the rules." City of Phoenix v. Geyler, 144 Ariz. 323, 332 (1985).
¶12 Mother argues that she is entitled to relief under Rule 85(b)(1) because the community's debts were calculated incorrectly, Father failed to disclose he was retiring and claiming Social Security benefits that led to inaccurate child support calculations, and that Mother's income was "inaccurately listed" on child support calculations. But Mother cites no evidence in the record showing inaccurate calculations about community debts and child support or Father's alleged failure to disclose his intent to retire.
¶13 Mother's Rule 85 motion included no evidence of mistaken calculations or inaccurate child support calculations. Nor did it provide any evidence to support corrected calculations. Further, Mother was aware of Father's potential retirement and collection of Social Security benefits. Her Rule 85 motion attached email messages with Father, which predate the August 2020 trial, showing Father was evaluating his Social Security options. The record also shows that, before the August 2020 trial, Father disclosed his monthly income was $3,875. Although she listed no income in her August 2020 pretrial statement, Mother has pointed to no evidence compelling a finding that she lacked any income or that she was mistaken in calculating her income for child support purposes. Moreover, the parties' settlement agreement accepted by the court after a colloquy with the parties and providing the basis for the decree does not provide any income calculations for either Father or Mother. At least as reflected in the resulting minute entry, Mother testified in open court that she understood the agreement, that the agreement was fair and reasonable and that she agreed to be bound by the agreement as a court order. On the record presented, Mother has failed to show any mistake, inadvertence, surprise or excusable neglect warranting relief from the decree of dissolution. ARFLP 85(b)(1).
B. Mother Has Shown No Abuse of Discretion In the Superior Court Rejecting Her Claim of Newly Discovered Evidence Under Rule 85(b)(2).
¶14 The superior court "may relieve a party . . . from a final judgment" if that party shows "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to file a motion under Rule 83(a)(1)." ARFLP 85(b)(2). Evidence is not "newly discovered" if it could be obtained through reasonable diligence before trial. Catalina Foothills Ass'n, Inc. v. White, 132 Ariz. 427, 429 (App. 1982). On the record presented, Mother has not shown or presented any newly discovered evidence to warrant relief.
¶15 Mother argues that Father failed to disclose until after trial his email correspondence with Ziv Investments requesting Mother's inheritance be converted to cash without Mother's knowledge. Mother further asserts that she did not know about any letter sent to Ziv Investments about her investments. Mother, however, cites nothing in the record to support her contentions. Nor did Mother show that any documents were "newly discovered" or that they could not have been discovered within the time to file a Rule 83 motion. To the contrary, the record contains emails from Mother to Father in July 2020 referencing correspondence between Father and Ziv Investments. Accordingly, Mother was aware of those issues before signing the agreement and before trial, meaning they were not newly discovered evidence.
¶16 Mother next argues that she did not receive the marital residence appraisal until just before trial. That argument, however, concedes that she had the appraisal before trial. An undated document attached to her Rule 85 motion mentions that an undated appraisal "shows the value [of the marital home] at $368,000." The next page is a June 2020 valuation at $570,000, with handwritten notes referencing the $368,000 appraisal. And Mother's April 2020 email to her attorney stated she "did not receive a copy of the appraisal report, but think[s] the house was appraised at $380,000," showing she was aware of any valuation issue well before trial. The record, however, shows no conduct evidencing reasonable diligence to follow up on the point.
¶17 Mother has failed to show newly discovered evidence that could not have been discovered with reasonable diligence in time to file a motion under Rule 83(a)(1). Thus, Mother is not entitled to relief under Rule 85(b)(2). White, 132 Ariz. at 429.
C. Mother Has Shown No Abuse of Discretion In the Superior Court Rejecting Her Claim of Fraud, Misrepresentation or Other Misconduct by Father Under Rule 85(b)(3).
¶18 The superior court "may relieve a party . . . from a final judgment" if that party shows "fraud . . . misrepresentation, or other misconduct of an opposing party." ARFLP 85(b)(3). The court has the authority to set aside a decree when a party obtains a judgment by concealing material facts and suppressing the truth with the intent to mislead the court. McNeil v. Hoskyns, 236 Ariz. 173, 177 ¶ 15 (App. 2014). Relief may be granted when a party has prevented "a real contest before the court of the subject matter of the suit" or has committed "some intentional act or conduct . . . [that] has prevented the unsuccessful party from having a fair submission of the controversy." Dockery v. Cent. Ariz. Light & Power Co., 45 Ariz. 434, 451 (1935); Bates v. Bates, 1 Ariz.App. 165, 169 (1965) (holding that when a judgment is a product of fraud, "equity will act to prevent a failure of justice, for fraud is the arch enemy of equity").
¶19 Mother argues that Father's fraud or misconduct entitles her to relief. Mother contends that Father dissipated Mother's assets, lied to her about a 401k account, lied to the superior court about the character of the funds, forged Mother's signature on the parties' rental property sale document, dissipated Mother's inheritance without her knowledge, failed to disclose stock accounts, dissipated community funds, left Mother without community funds and that Mother was not given one-half of the equity in the marital residence. Mother, however, failed to support her contentions with citations to the record.
¶20 On the record presented, Mother's arguments fail as she was aware of the circumstances surrounding each allegation before executing the settlement agreement and before trial. In her June 2019 proposed divorce/legal separation resolution statement, Mother alleged, among other things, "[Father] took all of the money from the sale of the [rental property] purchased jointly; [Father] drained [Mother's] personal checking and savings accounts; [Father] took the equity out of the house." Mother also raised similar allegations in her pretrial statement in anticipation of the August 2020 trial. Thus, on this record, Mother was aware -- before trial and before the entry of the agreement by the court -- of the allegations she now claims were fraud, misrepresentation or misconduct by Father. Put differently, she knew of the bases for these claims before signing the agreement but then testified the agreement was "knowingly, voluntarily and intelligently made" and allowed, without objection, the court to accept it under Rule 69. On this record, Mother has not shown the superior court abused its discretion in rejecting her Rule 85(b)(3) claim. McNeil, 236 Ariz. at 177 ¶ 15.
Although Mother's separate pretrial statement apparently was received by the court the morning of the August 2020 trial, for reasons not apparent in the record, it was not filed with the court until late September 2020.
Although a party may seek Rule 85 relief from a void decree, or if a decree has been satisfied, released or discharged, Rule 85(b)(4) & (5), Mother has provided no evidence showing the decree is void and has not claimed it has been satisfied, released or discharged. Thus, Mother is not entitled to relief on either of these alternatives.
D. Mother Has Shown No Abuse of Discretion In the Superior Court Finding There Was No Other Reason Justifying Relief from the Decree Under Rule 85(b)(6).
¶21 The superior court may relieve a party from a final judgment if the party can show any other reason justifying relief. See ARFLP 85(b)(6). Mother claims (1) "the court did not properly consider or weigh all of the admitted evidence," which does not support the court's decision and shows Mother agreed to the settlement under duress; (2) the court was biased against Mother and treated her unfairly, siding with Father; (3) the court "did not read" her pretrial statement or her reply (which she titled "mother's response") in further support of her Rule 85 motion; and (4) the court failed to consider the best interests of the children. While Mother raises these arguments in her opening brief on appeal, she did not do so in her Rule 85 motion filed with the superior court. Accordingly, Mother's arguments are waived. See Odom, 216 Ariz. at 535 ¶ 18 ("[A]rguments raised for the first time on appeal are untimely and deemed waived."). Moreover, even on the merits, these arguments show no error by the superior court.
¶22 As to Mother's sufficiency of the evidence argument, Mother provided no transcripts. Because this court presumes that the transcripts would support the court's rulings, her claims based on the sufficiency of the evidence (including her duress claim) fail. Myrick, 235 Ariz. at 495 ¶ 11. In addition, although Mother argues the evidence received should have been weighed differently, resolving conflicting evidence and assessing credibility is for the superior court at trial, not this court on appeal. See Gutierrez v. Fox, 242 Ariz. 259, 272 ¶ 49 (App. 2017). And Mother signed the agreement before the August 2020 trial while she was represented by counsel. For these reasons, Mother has not shown that the superior court failed to properly consider and weigh the evidence, or that such evidence does not support that court's decision or shows that Mother agreed to the settlement under duress. See Dunbar v. Dunbar, 102 Ariz. 352, 355 (1967) (setting forth required showing to prove duress).
¶23 Turning to Mother's claim the court was biased, judges "are entitled to a presumption of honesty and integrity." Emmett McLoughlin Realty, Inc. v. Pima Cty., 212 Ariz. 351, 357 ¶ 24 (App. 2006) (citation omitted). To succeed in her bias claim, among other things, Mother "must show actual bias." Id. She failed to do so here. Mother did not raise the issue in the superior court. ARFLP 6.1. On appeal, Mother provides no admissible evidence to support her bias claim, nor does she show that the court treated her unfairly or improperly ruled for Father. Moreover, the superior court's rulings against Mother do not establish judicial bias. See State v. Granados, 235 Ariz. 321, 326 ¶ 14 (App. 2014) ("'judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.'") (citation omitted). For these reasons, Mother's bias claim fails.
¶24 Mother alleges the superior court "did not read" her pre-trial statement or her reply (which she titled a response) in further support of her Rule 85 motion. From the record presented, Mother's pretrial statement was provided to the court at 10:51 a.m. on the morning of the August 2020 trial, which started at 1:36 p.m. If so, it was untimely. ARFLP 76.1(b)(2). Moreover, on the record provided, including the agreement accepted by the court at trial, Mother has not shown how the court's rejecting her pretrial statement would have constituted error or would have caused prejudice.
¶25 As to the reply in further support of her Rule 85 motion, the court directed Father to respond to that motion by November 30, 2020. And Father responded on November 30, 2020. Mother's reply, however, was not filed until December 31, 2020, long after the presumptive deadline for such a filing. ARFLP 35(a)(3). The court then denied Mother's Rule 85 motion on January 4, 2021. On this record, Mother has shown no error.
¶26 Finally, Mother asserts that the superior court did not properly consider domestic violence or addiction allegations against Father when addressing the children's best interests. Mother's domestic violence claims are belied by her declaration in her January 2019 petition for dissolution that "[n]either party has committed an act of domestic violence against the other parent." Further, Mother signed the agreement and later testified in open court that she understood the agreement, without mentioning these allegations. Moreover, the record provided does not show that the superior court improperly failed to address these allegations. Mother has thus shown no error.
CONCLUSION
¶27 The superior court's denial of Mother's Rule 85 motion is affirmed. After considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings, Father's request for attorneys' fees pursuant to A.R.S. § 25-324(A) is denied. Father is, however, awarded his taxable costs incurred on appeal contingent upon his compliance with ARCAP 21.