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    Rizona Ourt of Ppeals

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    The court reversed the trial court's denial of the husband's motion to set aside a default judgment in a dissolution case. The husband claimed that the wife told him she wanted to reconcile and would withdraw her petition, but she obtained a default judgment dividing their property instead. The appellate court found that the trial court abused its discretion by summarily denying the husband's motion without a response from the wife, given his specific allegations that she misled him into not responding to the petition. The case was remanded for further proceedings.

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    Rizona Ourt of Ppeals

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    The court reversed the trial court's denial of the husband's motion to set aside a default judgment in a dissolution case. The husband claimed that the wife told him she wanted to reconcile and would withdraw her petition, but she obtained a default judgment dividing their property instead. The appellate court found that the trial court abused its discretion by summarily denying the husband's motion without a response from the wife, given his specific allegations that she misled him into not responding to the petition. The case was remanded for further proceedings.

    Original Description:

    Filed: 2014-10-14 Precedential Status: Non-Precedential Docket: 1 CA-CV 13-0595

    Original Title

    Villalobos v. Rivera, Ariz. Ct. App. (2014)

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    The court reversed the trial court's denial of the husband's motion to set aside a default judgment in a dissolution case. The husband claimed that the wife told him she wanted to reconcile and would withdraw her petition, but she obtained a default judgment dividing their property instead. The appellate court found that the trial court abused its discretion by summarily denying the husband's motion without a response from the wife, given his specific allegations that she misled him into not responding to the petition. The case was remanded for further proceedings.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    46 views5 pages

    Rizona Ourt of Ppeals

    Uploaded by

    Scribd Government Docs
    The court reversed the trial court's denial of the husband's motion to set aside a default judgment in a dissolution case. The husband claimed that the wife told him she wanted to reconcile and would withdraw her petition, but she obtained a default judgment dividing their property instead. The appellate court found that the trial court abused its discretion by summarily denying the husband's motion without a response from the wife, given his specific allegations that she misled him into not responding to the petition. The case was remanded for further proceedings.

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    of 5

    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.

    IN THE

    ARIZONA COURT OF APPEALS


    DIVISION ONE
    In re the Marriage of:
    FLORENTINA ELMA VILLALOBOS, Petitioner/Appellee,
    v.
    JORGE ANCHONDO RIVERA, Respondent/Appellant.
    No. 1 CA-CV 13-0595
    FILED 10-14-2014
    Appeal from the Superior Court in Maricopa County
    No. FN2013-002074
    The Honorable Thomas A. Kaipio, Commissioner
    The Honorable James T. Blomo, Judge
    REVERSED AND REMANDED
    COUNSEL
    Ber & Associates, P.L.L.C., Phoenix
    By Hershel Ber
    Counsel for Petitioner/Appellee
    Law Offices of Jose De La Luz Martinez, P.L.L.C., Phoenix
    By Jose De La Luz Martinez
    Counsel for Respondent/Appellant

    VILLALOBOS v. RIVERA
    Decision of the Court

    MEMORANDUM DECISION
    Presiding Judge Jon W. Thompson delivered the decision of the Court, in
    which Judge Donn Kessler and Judge Kent E. Cattani joined.

    T H O M P S O N, Judge:
    1
    Jorge Anchondo Rivera (Husband) appeals from the trial
    courts denial of his motion to set aside a default judgment in a dissolution
    case. For the following reasons, we reverse the decision of the trial court
    and remand for further proceedings.
    FACTUAL AND PROCEDURAL HISTORY
    2
    In March 2013, Florentina Elma Villalobos (Wife) filed a
    petition for dissolution of marriage.1 Wifes process server served Husband
    with various documents, including the summons and petition, on March
    28, 2013.
    3
    After Husband did not respond to the petition, Wife filed an
    application and affidavit for default on April 22, 2013. Attached to the
    application for default was Wifes certificate of mailing, which stated that
    Wife would mail a copy of the application and affidavit for default to
    Husband at his current residence the same day she filed the application and
    affidavit for default. Husband did not appear or respond to the filings, and
    the trial court entered a decree of dissolution of marriage by default on May
    31, 2013.2 Along with dissolving the marriage and dividing the community
    1 In her petition, Wife requested $1500.00 per month in spousal maintenance

    and alleged that 1) she lacked sufficient property to provide for her
    reasonable needs, 2) she was unable to support herself through
    employment, and 3) she lacked earning ability in the labor market in order
    to support herself.
    The superior courts website indicates that a Decree on Demand
    Spanish hearing took place on May 31, 2013. If the court took any
    testimony from Wife that day, we do not know what that consisted of. All
    we have from that day is the default Decree, which states on its first page,
    This case has come before this court for a final Decree of Dissolution of
    2

    VILLALOBOS v. RIVERA
    Decision of the Court
    property3, the Decree ordered Husband to pay Wife $1500 per month
    spousal maintenance for a period of five years.
    4
    On July 15, 2013, Husband filed a motion to show cause re:
    vacation of judgment pursuant to Arizona Rule of Family Law Procedure
    85(C), asserting that the default judgment was a result of Wifes fraud and
    misconduct. Husband claimed that Wife told him she wanted to reconcile
    and that she planned to withdraw her petition for dissolution. Husband
    further claimed that he did not receive a copy of Wifes application for
    default until after the trial court granted the dissolution, when Wife handed
    him a copy of the application. He conceded that he had actual notice of the
    petition for dissolution. The motion was verified by Husband. Wife did
    not file a response.4 The trial court denied the motion in an unsigned
    minute entry order.
    5
    Husband appealed. We suspended the appeal to allow
    Husband to obtain a signed order from the trial court, and he did so. We
    have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) 122101(A)(2) (Supp. 2013).
    DISCUSSION
    6
    Husband argues that the family court erred in denying his
    motion to vacate the default judgment because the judgment was obtained
    as a result of Wifes misrepresentation, fraud, and misconduct and because
    Marriage (Divorce) Without Minor Children. The court has taken all
    testimony needed to enter a final Decree, or has determined testimony is
    not needed to enter the final Decree.
    The Decree awarded Wife the parties house, all of the furniture, a
    refrigerator, a television set, one of two ATVs owned by the parties, a 2008
    Chevy Avalanche, and half of a joint checking account containing $2391.00.
    The Decree further purports to award Wife Husbands separate property
    a piece of land of unknown value willed to him by his father. Husband was
    awarded a laptop computer, half of the joint account, an ATV, and his tools.
    He was awarded a second piece of land of unknown value that he inherited
    from his father as his separate property.
    3

    Wife claims on appeal that Husband received the application for default
    in April 2013, but she bases this assertion on affidavits that were prepared
    in February 2014 and that were not before the trial court when it denied
    Husbands motion to show cause.
    4

    VILLALOBOS v. RIVERA
    Decision of the Court
    he did not receive proper notice of the application for default. We review
    the trial courts ruling on a motion to vacate a default judgment for an abuse
    of discretion. Douglas v. Lease Investors, Inc., 19 Ariz. App. 87, 89, 504 P.2d
    1310, 1312 (1973) (citation omitted). To find an abuse of discretion, there
    must either be no evidence to support the superior courts 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) (quoting State v.
    Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 N.18 (1983)). Generally,
    a default judgment is not appealable; only the order setting aside or
    declining to set aside the default judgment is appealable. Kline v. Kline, 221
    Ariz. 564, 568, 11, 212 P.3d 902, 212 P.3d 902, 906 (App. 2009) (citations
    omitted).
    7
    Arizona Rule of Family Law Procedure 44(A) provides that a
    partys request for default shall be by written application to the superior
    court and that the party who failed to respond to the petition for dissolution
    shall be notified. Notice to a party claimed to be in default and whose
    whereabouts are known is accomplished by mailing a copy of the
    application for entry of default to that party. Id. A default does not become
    effective if the party claimed to be in default files a responsive pleading or
    otherwise defends within ten days after the filing of the application for
    entry of default. Ariz. R. Fam. Law P. 44(A)(4). If the party claimed to be
    in default does not respond, the party seeking the default decree must then
    either file a motion and affidavit with the trial court5, or request a hearing.
    Ariz. R. Fam. Law P. 44(B)(1)), 44 (B)(2). Rule 44(B)(2) provides:
    If, in order to enable the court to enter judgment
    or to carry it into effect, it is necessary to take an
    account or to determine the relief to be granted,
    or to establish the truth of any statement by
    evidence or to make an investigation of any
    other matter, the court may conduct such
    hearings or order such references it deems
    necessary and proper. The defaulted party is in
    the position of having admitted each and every
    material allegation of the petition.

    The motion and affidavit option is not available when either party has
    requested spousal maintenance, as Wife did here. See Ariz. R. Fam. Law P.
    44(B)(1)(b)(2).
    5

    VILLALOBOS v. RIVERA
    Decision of the Court
    If a judgment by default is entered, the trial court may set aside the default
    judgment in accordance with Rule 85 (C). Ariz. R. Fam. Law P. 44(C). Rule
    85(C)(1)(c) states that the court may relieve a party from a final judgment if
    there is fraud, misrepresentation, or misconduct from an adverse party. See
    also Ariz. R. Civ. P. 60(c)(3) (court may relieve a party from a final judgment
    due to fraud, misrepresentation, or other misconduct). The law favors
    resolution on the merits and therefore resolves all doubts in favor of the
    moving party. Richas v. Superior Court, 133 Ariz. 512, 514, 652 P.2d 1035,
    1037 (1982) (citations omitted).
    8
    Wife did not respond to Husbands motion to vacate the
    default judgment. Husband asserts that Wifes failure to file a response
    created an adverse inference against Wife permissible in that she does not
    dispute the assertions raised by Husband in his motion. Generally, a
    party must file a written response whenever a motion is filed. Schwab v.
    Ames Constr., 207 Ariz. 56, 59, 14, 83 P.3d 56, 59 (App. 2004) (citations
    omitted). If an opposing party does not file a response, non-compliance
    may be deemed a consent to the denial or granting of the motion, and the
    court may dispose of the motion summarily. Ariz. R. Fam. Law P. 35(B).
    See also Ariz. R Civ. P. 7.1(b). In this case, given that Husbands motion
    contained specific, sworn factual allegations raising questions about
    whether Wife misled Husband into failing to respond, a response was
    called for. Accordingly, and given Husbands assertion that the default
    judgment resulted in an inequitable division of the parties community
    assets, we find that the trial court abused its discretion in summarily
    denying Husbands motion.
    CONCLUSION
    9
    We reverse the decision of the trial court denying Husbands
    motion to set aside the default and remand for further proceedings
    consistent with this decision.

    :gsh

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