Opinion
No. 1 CA-CV 12-0856
07-03-2014
In re the Marriage of: KRISTEN T. THOMAS, Petitioner/Appellee, v. JERRY LEE WITHERSPOON, Respondent/Appellant.
Jerry Lee Witherspoon, Phoenix Respondent/Appellant, In Propria Persona Grant & Vaughn, P.C., Phoenix By Kenneth B. Vaughn, Sharon R. Sprague Co-Counsel for Petitioner/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
Case Nos. FC2011-000237 and FN2011-000116 (Consolidated)
The Honorable James T. Blomo, Judge
AFFIRMED
COUNSEL
Jerry Lee Witherspoon, Phoenix
Respondent/Appellant, In Propria Persona
Grant & Vaughn, P.C., Phoenix
By Kenneth B. Vaughn, Sharon R. Sprague
Co-Counsel for Petitioner/Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Michael J. Brown joined. THOMPSON, Judge:
¶1 Respondent Jerry Lee Witherspoon (Husband) appeals from the family court judgment amending the provisions of the property settlement agreement in the consent decree. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Petitioner Kristen T. Thomas (Wife) and Husband entered into a consent decree for dissolution of their marriage on June 1, 2011. The decree approved and incorporated a property settlement agreement (PSA). The PSA provided that Husband would pay Wife an equalization payment in the amount of $125,000 with payments made as follows: $20,000 paid within five days of the court approved consent decree, $5,000 paid prior to the end of the 2011 calendar year, and the remaining $25,000 "paid during each the following four (4) calendar years (commencing in 2012), divided into twelve (12) equal amounts of $2,083.33." The PSA required Husband to maintain a life insurance policy in the minimum amount of $200,000 with Wife named as sole beneficiary until the equalization payments were paid in full. The PSA further provided that Wife assumed responsibility for the payment of two additional life insurance policies, one for Husband with her named as beneficiary, and one for Wife with Husband named as beneficiary. Upon ninety days notice to Husband, Wife could terminate either policy.
¶3 On January 3, 2012, Wife filed a motion/petition for relief from the property disposition provisions of the consent decree. Wife asserted that Husband's equalization payment of $125,000 in the PSA reimbursed Wife for only one-half of a $250,000 life insurance policy received by Wife upon the death of her late husband. Wife argued that she was entitled to the payment of the full amount of the $250,000 life insurance policy as her sole and separate property, and that the PSA was the product of Husband's fraud, undue influence, and other inequitable conduct.
¶4 Husband filed a response and request to dismiss Wife's motion for relief, arguing that Wife's motion was not timely filed, failed to prove the existence of fraud, and did not meet the requirements necessary to vacate the property disposition provisions of the consent decree. Husband filed motions asserting that Wife's claims in the motion for relief were false, and requesting that the court dismiss Wife's motion, seal all documents referencing the motion, and find Wife in contempt for citing facts in her motion from previously sealed documents. That same day, Husband filed a motion to amend the PSA. In his motion, Husband claimed that he and Wife had an existing verbal agreement that he would reimburse Wife for the full amount of the $250,000 life insurance policy, but that only Husband's initial equalization payment of $125,000 was included in the PSA. Husband requested that the family court amend the PSA to state that Husband would pay Wife an equalization payment in the amount of $250,000. Husband further requested that all terms of the payment schedule remain the same, except that the annual payment of $25,000 (paid in monthly installments of $2,083.33) shall be extended from four years to nine years.
¶5 The family court denied Husband's motion to dismiss and set an evidentiary hearing on Wife's motion for relief for June 8, 2012. Wife filed a motion to continue the hearing because of an unexpected conflict in her counsel's calendar. The family court found good cause and ordered the evidentiary hearing to be continued until October 10, 2012. At the evidentiary hearing, Husband orally requested that the court continue the hearing at a later date because of his recent hospital stay, surgery and recovery from traumatic brain injury. Husband also requested that the family court admit letters from his doctors which advised him "not to undergo any undue stress at this point," in support of his request for a continuance. The family court determined that the hospital stay occurred several months prior to the hearing, and that Husband failed to file a written motion requesting a continuance. The family court denied Husband's request to introduce the letters from his doctors and denied Husband's verbal request for a continuance of the evidentiary hearing.
¶6 During the evidentiary hearing, Husband stipulated to owing Wife $240,000 for her sole and separate property. Husband conceded that he spent the entire amount of the $250,000 life insurance policy on personal living expenses, but testified that he reimbursed Wife $10,000 of that amount. Husband also admitted that he did not remit payments to Wife in accordance with the payment schedule in the PSA, nor did he maintain a $200,000 life insurance policy with Wife named as beneficiary. The family court found that because Husband stipulated to modifying the consent decree to reflect an equalization payment of $240,000 rather than $125,000, it did not need to decide the issue of whether the PSA was the product of fraud or undue influence. The family court entered judgment amending the PSA of the consent decree to require Husband to pay an equalization payment to Wife in the amount of $240,000, to be paid as follows: $25,000 to be paid by December 31, 2012, and $3,500 paid in monthly installments together with interest in the statutory amount of 4.25%. The judgment retained the provision of the PSA requiring Husband to maintain a life insurance policy in the minimum amount of $200,000 with Wife as the sole beneficiary. The family court also noted in the judgment that Wife continues to pay Husband's life insurance policy with her named as beneficiary, and found that under the terms of the PSA, it is Wife's choice as to whether she will maintain the life insurance policies.
¶7 Husband timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2) (Supp. 2013).
DISCUSSION
As a preliminary matter, we note that Husband failed to adequately develop and support his arguments in his opening brief. See ARCAP 13(a)(6) (The appellant's brief should include "[a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on."). Although we could treat Husband's issues presented on appeal as waived, we decline to do so on this record. See State Farm Mut. Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (App. 1990) (holding that failure to properly develop an argument on appeal resulted in waiver).
I. Request for Continuance
¶8 Husband argues that the family court erred in denying his verbal request at the evidentiary hearing for a continuance. We review the denial of a continuance for an abuse of discretion. Ornelas v. Fry, 151 Ariz. 324, 329, 727 P.2d 819, 824 (App. 1986). "To find an abuse of discretion, there must either be no evidence to support the [ ] court's conclusion or the reasons given by the court must be clearly untenable, legally incorrect, or amount to a denial of justice." Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App. 2006) (internal quotation omitted). The Arizona Rules of Family Law Procedure state that "[w]hen an action has been set for trial, hearing or conference on a specified date by order of the court, no continuance of the trial, hearing or conference shall be granted except upon written motion setting forth sufficient grounds and good cause. . . ." Ariz. R. Fam. Law P. 77(C)(1). On June 4, 2012, the family court set the evidentiary hearing for October 10, 2012. Husband did not request a continuance until after the evidentiary hearing had commenced. The family court determined that Husband had over two months following his release from the hospital in which to file a written motion requesting a continuance of the evidentiary hearing, but failed to do so. Additionally, Husband did not testify that he was physically unable to proceed with the evidentiary hearing at that time. We find no abuse of discretion in the family court's denial of Husband's for a continuance. II. Admission of Letters
We also reject Husband's argument that because Wife's motion for a continuance was granted, his request at the evidentiary hearing for a continuance should have likewise been granted. The family court's prior grant of a motion to continue the evidentiary hearing does not negate Husband's obligation to follow all family court rules and procedures in seeking a continuance of the hearing. See Copper State Bank v. Saggio, 139 Ariz. 438, 441, 679 P.2d 84, 87 (App. 1983) (stating that a party representing himself or herself is entitled to no more consideration than if represented by counsel, and is held to the same familiarity of the procedures, statutes and rules.) We find no error.
¶9 Husband also argues that it was unfair for the family court to refuse to admit into evidence letters from his doctor's attesting to Husband's medical condition and recent hospital stay in support of his request for a continuance. We review the family court's evidentiary rulings for a clear abuse of discretion and do not reverse absent unfair prejudice. Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6, 995 P.2d 281, 283 (App. 2000). The family court found that the letters from Husband's doctors were a non-issue because Husband stipulated to amending the PSA to reflect an equalization payment of $240,000. Moreover, Husband concedes on appeal that the judgment reflects the equalization payment stipulated to by both parties, and requested by Husband in his motion to amend the PSA. Because Husband failed to show that he was prejudiced by the trial court's denial of his request to admit letters from his doctors in support of a continuance, we are unwilling to declare that the was deprived of a fair hearing. Accordingly, we find no abuse of discretion. III. Repayment Schedule in PSA
¶10 Husband next argues that the modified payment schedule in the PSA was unjust and unrealistic. Husband contends that the family court refused to consider his current financial condition, and that the amount he is required to repay is "ludicrous." We disagree. On appeal, "we do not reweigh conflicting evidence or redetermine the preponderance of the evidence, but examine the record only to determine whether substantial evidence exists to support the trial court's action." In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704, 709 (1999).
¶11 Husband testified at the evidentiary hearing that he works as an independent contractor for municipal entities making approximately $150.00 to $200.00 per hour, that in 2012 he made $14,000 for three months of work, but that recently he has had difficulty finding work, due in part to Wife's allegations of fraud in the petition for relief. When questioned by the family court about how Husband proposed to repay Wife the $240,000 he owed her, Husband responded that he would agree to extend the payment schedule in the original PSA to satisfy the increased equalization payment, stating, "If I'm able to maintain the travel schedule and maintain the level . . . of stress that's required with the consulting business that I've been involved in, then I would have no problem with bumping payments up." The record clearly reflects that the family court inquired into Husband's income and expenses at the evidentiary hearing, that it had an affidavit of financial information listing Husband's income and expenses, that it mentioned Husband's difficulty in finding work in its ruling, and that it specifically found Husband to be not credible. Although the family court did not weigh the evidence and order a payment schedule as Husband would have liked, nothing in the record suggests the court ignored Husband's claims or that it lacked information upon which to base its decision. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998) (We "defer to the trial court's determination of witnesses' credibility and the weight to give conflicting evidence."). The record provides substantial support for the family court's decision, and therefore, we find no abuse of discretion. IV. Liability for Equalization Payment and Right to Life Insurance Policy
In response to Husband's claim that his current financial condition prohibits his compliance with the payment schedule in the PSA, Wife requests that we take judicial notice of Husband's amended statement of financial affairs filed in his chapter 7 bankruptcy proceeding, which details Husband's financial transfers and payments to creditors. We take judicial notice of Husband's amended statement of financial affairs to the extent necessary to resolve the issue before us. In re Jerry Lee Witherspoon, No. 2:13-bk-02911-GBN (Bankr.D.Ariz. April 18, 2013); see Ariz. R. Evid. 201; see also Stallings v. Spring Meadows Apartment Complex Ltd. P'ship, 185 Ariz. 156, 160, 913 P.2d 496, 500 (1996) (taking judicial notice of a bankruptcy court's clarification order).
¶12 Husband also asks this court to vacate the judgment and order a new evidentiary hearing on the following issues: 1. Whether Husband is liable for the $240,000 equalization payment; and 2. Whether Husband is entitled to take-over the maintenance of Husband's life insurance policy, which is currently maintained by Wife, and name Husband's estate as sole beneficiary. Husband failed to argue either of these issues to the family court and, in fact, stipulated to liability for the $240,000 equalization payment. Because these issues were not contested before the family court, they are not properly before us. See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18, 169 P.3d 120, 125 (App. 2007) ("Generally, arguments raised for the first time on appeal are untimely and deemed waived."); see also Premier Fin. Servs. v. Citibank (Ariz.), 185 Ariz. 80, 86-87, 912 P.2d 1309, 1315-16 (App. 1995) (court of appeals cannot consider issues, theories, and evidence not presented to superior court). V. Judicial Prejudice and Bias
¶13 Lastly, Husband asserts that the family court judge was prejudiced against him and abused his position and power. Husband argues that various rulings by the family court, including the denial of his request for a continuance, the denial of his request for the admission of letters from his doctors, and the amount of the repayment schedule in the PSA, demonstrate misconduct and prejudice by the judge. A judge is presumed to be free of prejudice and bias, and a party challenging a judge's impartiality must overcome this presumption by a preponderance of the evidence. State v. Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768 (App. 2005). Adverse judicial rulings "almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994); see also State v. Emanuel, 159 Ariz. 464, 469, 768 P.2d 196, 201 (App. 1989) (stating that the prejudice necessary for disqualification generally "must arise from an extra-judicial source and not from what the judge has done in his participation in the case") (citations omitted). Husband has not overcome his burden to show the family court was in some way biased or prejudiced against him. Although Husband may not agree with the court's rulings, our review of the record demonstrates no indication of judicial bias or prejudice towards Husband.
We also reject Husband's assertion that the judge's warning to Husband about the potential consequences of Husband's noncompliance with the PSA and the payment schedule amounted to unethical and unprofessional behavior, and proved judicial bias. Absent a definite indication that Husband was, in some way, denied a fair trial, we will not reverse on the basis of bias or prejudice. See Standage v. Standage, 147 Ariz. 473, 482, 711 P.2d 612, 621 (App. 1985).
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CONCLUSION
¶14 For the foregoing reasons, we affirm the family court's judgment. Wife, citing A.R.S. §§ 25-324, 12-349 and 12-341.01, requests attorneys' fees and costs on appeal. In our discretion, Wife will be granted costs and fees on appeal, in an amount to be determined after compliance with Arizona Rules of Civil Appellate Procedure (ARCAP) 21.