Mikalacki v. Rubezic

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

GORDANA MIKALACKI,
Petitioner/Appellee,

v.

DRAGAN RUBEZIC,
Respondent/Appellant.

No. 1 CA-CV 25-0233 FC
FILED 10-28-2025

Appeal from the Superior Court in Maricopa County
No. FC2019-005762
The Honorable Jay R. Adleman, Judge

AFFIRMED

COUNSEL

D. John Rubezic, Mesa
Respondent/Appellant

Jaburg & Wilk, Phoenix
By Kathi M. Sandweiss, Laurence B. Hirsch
Counsel for Petitioner/Appellee
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MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

T H U M M A, Judge:

¶1 Dragan Rubezic (Husband) appeals the superior court’s
denial of several motions he filed more than three years after the entry of
the decree of dissolution of his marriage to Gordana Mikalacki (Wife).
Because he has shown no error, the superior court’s orders are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife have two minor children and were the sole
members of the Rubezic Law Group. In 2019, Wife petitioned to dissolve
the marriage. After significant litigation, a March 2021 decree dissolved the
marriage. The decree awarded Husband the law firm, ordering him to pay
Wife one-half of the firm’s equity; awarded Wife the commercial property,
directing her to pay Husband one-half the property’s equity and to
refinance or, to sell it if she were unable to refinance; and awarded Wife
attorneys’ fees and costs. Husband appealed.

¶3 On appeal, Husband argued the superior court improperly
valued the law firm based on evidence from Wife’s expert, and erred in
awarding Wife fees. Mikalacki v. Rubezic, 1 CA-CV 21-0483 FC, 2022 WL
10219850, at *6-8 ¶¶ 32-41, at *9 ¶¶ 48-52 (Ariz. App. Oct. 18, 2022)
(memorandum decision). This court affirmed, concluding that Wife’s
expert “provided a reasonable basis for calculating the value of the firm and
Husband had a full opportunity to challenge” that evidence at trial. Id. at *8
¶ 41. This court also noted that the superior court adopted Wife’s experts’
“calculation of value and found Husband’s contradictory testimony
regarding valuation not credible.” Id. This court also affirmed the fee
award, rejecting Husband’s argument that his “pattern of noncompliance
with the disclosure rules did not justify an overarching award of all
attorney’s fees incurred by Wife throughout the litigation.” Id. at *9 ¶¶ 51-
52.

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¶4 In June 2024, Husband filed several motions largely targeting
the March 2021 decree that had been affirmed on appeal. Husband: (1)
moved to vacate the valuation of the law firm based on newly discovered
evidence; (2) moved to vacate the award of fees to Wife based on newly
discovered evidence; (3) moved for contempt and to appoint a special
master to sell a jointly owned commercial building; and (4) sought an award
of attorneys’ fees and costs. Wife moved to dismiss Husband’s petitions and
responded to his petition for contempt and for appointment of a special
master.

¶5 After full briefing, at a July 2024 hearing, the superior court
granted Wife’s motions to dismiss Husband’s motions (1) to vacate the
valuation of the law firm and (2) to vacate the fee award. The court
concluded Husband “fail[ed] to identify any valid legal or factual basis” to
vacate those rulings, “or for the Court to grant any relief from the” March
2021 decree. The court also denied Husband’s request for fees and costs as
“entirely inconsistent” with his unreasonable actions during the
proceedings. In August 2024, the superior court granted Wife’s motion to
dismiss Husband’s petition for contempt and to appoint a special master.
The court found the issues Husband sought to raise were precluded by this
court’s decision affirming the March 2021 decree.

¶6 Husband filed a timely notice of appeal, challenging these
rulings. This court has jurisdiction under Article 6, Section 9, of the Arizona
Constitution and pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1) and -2101(A)(1) (2025).1

DISCUSSION

I. Husband Has Waived Any Arguments He May Have Sought to
Raise on Appeal.

¶7 As Wife notes, Husband’s briefs do not comply with
applicable rules. They do not include “appropriate references to the
record,” ARCAP 13(a)(4), state the basis for this court’s jurisdiction, ARCAP
13(a)(4), nor do they cite legal authorities upon which he relies in claiming
error, ARCAP 13(a)(7)(A). By ignoring these requirements, Husband has
waived any arguments he may have wished to present. See, e.g., In re
Aubuchon, 233 Ariz. 62, 64-65 ¶ 6 (2013); Polanco v. Indus. Comm’n, 214 Ariz.

1 Absent material revisions after the relevant dates, statutes cited refer to

the current version unless otherwise indicated.

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489, 491 ¶ 6 n.2 (App. 2007); Delmastro & Eells v. Taco Bell Corp., 228 Ariz.
134, 137 ¶ 7 n.2 (App. 2011).

II. Husband Has Failed to Show the Superior Court Erred.

¶8 Husband argues that the superior court erred in failing to
grant his motions to vacate the law firm valuation and the award of fees to
Wife, also arguing the superior court should have granted his motion for
contempt and appointment of a special master and should have awarded
him fees. Waiver notwithstanding, Husband has shown no error.

A. Husband Has Shown No Error In The Superior Court
Denying His Request For Relief from the Law Firm’s
Valuation in the Decree.

¶9 Husband contends that the “passage of time” since the
valuation of the law firm by Wife’s expert, given later changes, is “newly
discovered evidence” justifying the court vacating the valuation for the firm
in the decree. This court reviews the rulings on Husband’s motions – filed
under Arizona Rules of Family Law Procedure 83(c) and 85(c) – for an abuse
of discretion. See Stock v. Stock, 250 Ariz. 352, 354 ¶ 5 (App. 2020); Clark v.
Kreamer, 243 Ariz. 272, 275 ¶ 10 (App. 2017).

¶10 A motion to alter or amend a decree under Rule 83 must be
filed within “25 days after the entry of judgment under Rule 78(b) or (c).”
Ariz. R. Fam. Law P. 83(c)(1) (ARFLP). There was no extension of that
deadline under Rule 4(b)(2). Id. An untimely motion to alter or amend
cannot be granted because the court lacks jurisdiction to do so. See In re
Marriage of Dougall, 234 Ariz. 2, 5 ¶ 7 (App. 2013). Appeals of an order where
the superior court lacks jurisdiction to issue an order “gives the appellate
court no jurisdiction except to dismiss the appeal.” McHazlett v. Otis Eng’g
Corp., 133 Ariz. 530, 533 (1982) (citation omitted).

¶11 A motion for relief from a decree under Rule 85 based on
“newly discovered evidence” “must be made within a reasonable time,”
but “no more than 6 months after the entry of judgment.” ARFLP 85(c)(1).
There was no extension of that deadline under Rule 4(b)(2). Id. An untimely
motion for relief on that ground cannot be granted and gives the appellate
court no jurisdiction to hear the appeal. See Duckstein v. Wolf, 230 Ariz. 227,
231-32 ¶ 9 (App. 2012) (husband’s ten-month delayed motion to vacate a
default decree can only be heard on appeal if the decree was void or if wife
committed fraud, otherwise the six-month and reasonableness time limits
apply to the motion).

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¶12 Here, Husband petitioned to vacate the law firm valuation in
June 2024, arguing that the subsequent outcome of a case used by Wife’s
expert in his valuation made the valuation false. The decree valuing the law
firm, which adopted this valuation, was entered in March 2021. Husband’s
challenge was filed more than three years after entry of the decree, an
untimely filing for either a Rule 83 or 85 motion.

¶13 Notwithstanding the six-month deadline, and the need to
make such a filing “within a reasonable time,” Husband knew of the
outcome of this case – the purported “new evidence” – for 20 months before
making his filing challenging the valuation. Husband has not shown how
such a delay was reasonable.

¶14 In addition, the purported “new evidence” Husband cited
was based on events that occurred after the entry of the decree in March
2021 (i.e., that the contingency required to earn fees in a contingency fee
agreement would be met sometime after the March 2021 decree). To be
“newly discovered evidence” supporting such relief, the evidence must
have also been in existence at the time of the decree. See Birt v. Birt, 208 Ariz.
546, 549 ¶ 11 (App. 2004). Husband could not make such a showing based
on the purported “new evidence” he relied upon. And by definition, the
value of the law firm at the time of the entry of the decree had to quantify
future events with uncertain outcomes. Husband showed no error in that
approach in the prior appeal. And a petition for relief cannot be used
“merely because [Husband] is unhappy with the result” of the decree. State
v. Brown, 9 Ariz. App. 323, 325 (1969).

¶15 For all of these reasons, Husband has shown no error in the
denial of his request to vacate the valuation of the law firm contained in the
decree. See ARFLP 83(c)(1) & 85(c)(1); McHazlett, 133 Ariz. at 533; Duckstein,
230 Ariz. at 231-32 ¶ 9.

B. Husband Has Shown No Error in the Denial of His Motion
to Vacate the Decree’s Award of Fees to Wife.

¶16 Husband claimed “newly discovered evidence,” in the form
of Wife filing a malpractice claim against her former attorneys in the
divorce proceeding, requiring the court to vacate the decree’s award of fees
to Wife. This court reviews a ruling under ARFLP 83(c) and 85(c) – the basis
of Husband’s motion – for an abuse of discretion. See Stock, 250 Ariz. at 354
¶ 5; Kreamer, 243 Ariz. at 275 ¶ 10.

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¶17 As with his challenges to the valuation of the law firm
discussed above, his June 2024 petition seeking to vacate the March 2021
decree’s award of fees to Wife was untimely, and Husband made no
attempt to show how his more than three-year delay was reasonable.
Finally, Husband did not show (and could not have shown) that this
evidence existed at the time of the decree. To the contrary, Wife filed her
malpractice suit in November 2023, 32 months after the entry of the decree.

¶18 For all of these reasons, Husband has shown no error in the
denial of his request to vacate the valuation of the law firm contained in the
decree. See ARFLP 83(c)(1) & 85(c)(1); McHazlett, 133 Ariz. at 533; Duckstein,
230 Ariz. at 231-32 ¶ 9.2

C. The Superior Court Properly Denied Husband’s Petition for
Attorneys’ Fees.

¶19 Husband challenges the superior court’s denial of his petition
for attorneys’ fees. Husband sought fees under A.R.S. § 12-341.01. That
statute, however, provides a basis for a fee award for successful parties in
actions arising out of a contract. See A.R.S. § 12-341.01(A). Husband has
shown no authority that § 12-341.01 applies to divorce proceedings,
including post-decree proceedings like those here. The superior court
properly denied Husband’s petition for attorneys’ fees.

III. Husband’s Appeal of the Denial of His Petition for Contempt and
Appointment of a Special Master Provides No Basis for Reversal.

¶20 Husband argues the superior court erred in dismissing his
petition for contempt and request to appoint a special master. Husband
argues that Wife’s post-decree motions resolved in the prior appeal caused
“unnecessary and avoidable delay” and that he “was required to expend
considerable legal fees defending against Wife’s vexatious litigation,”

2 As Wife notes, Husband’s challenges to the valuation of the law firm and

the award of fees to Wife also are barred by claim preclusion, particularly
given that these aspects of the decree were affirmed in the prior appeal. See
In re Gen. Adjudication of All Rights to Use Water In Gila River Sys. & Source,
212 Ariz. 64, 69-70 ¶ 14 (2006) (“The defense of claim preclusion has three
elements: (1) an identity of claims in the suit in which a judgment was
entered and the current litigation, (2) a final judgment on the merits in the
previous litigation, and (3) identity or privity between parties in the two
suits.”) (citation omitted).

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consisting of motions that she filed “that were ultimately reversed” in the
prior appeal. Husband’s arguments fail for at least three reasons.

¶21 First, to the extent he seeks to appeal from a ruling on a
request for a contempt finding, this court lacks appellate jurisdiction to
address those arguments. See Stoddard v. Donahoe, 224 Ariz. 152, 154 ¶ 7
(App. 2010).

¶22 Second, to the extent that he seeks an award of fees incurred
leading up to the prior appeal, this court resolved that request against him
in the prior appeal. See Mikalacki, 1 CA-CV 21-0483 FC, at *12 ¶ 65 (in
awarding Wife fees in the prior appeal, the court noted that “Husband, on
the other hand, has been unreasonable,” including violating applicable
rules of procedure and making arguments “contrary to applicable statutes
and court rules or [that] misconstrue the record”). Those arguments have
been resolved previously and cannot be raised again here. In re Gila River
Sys. & Source, 212 Ariz. at 69 ¶ 14.

¶23 Third, other than quoting A.R.S. § 25-324(A)-(C) in its
entirety, Husband does not develop his argument that the superior court
erred in denying this petition. Accordingly, he has waived any challenge to
the ruling. See Boswell v. Fintelmann, 242 Ariz. 52, 54 ¶ 7 n.3 (App. 2017)
(failure to develop and support conclusory arguments results in waiver).

IV. Husband and Wife’s Requests for Attorneys’ Fees on Appeal.

¶24 Husband and Wife have each requested an award of
attorneys’ fees and costs on appeal. Husband cites ARCAP 21, which is not
a proper basis for a fee award. See ARCAP 21(a)(2) (“A claim for fees under
this Rule must specifically state the statute, rule, decisional law, contract, or
other authority for an award of attorneys’ fees. If a party fails to comply
with this requirement, the appellate court may decline to award fees on that
basis.”). Accordingly, and also recognizing that Husband appears as a self-
represented litigant, his request is denied.

¶25 Wife seeks fees under A.R.S. § 25-324(A). After considering
the reasonableness of the parties’ positions on appeal and their respective
financial positions, the court awards Wife her reasonable attorneys’ fees
and taxable costs incurred on appeal, contingent upon her compliance with
ARCAP 21.

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CONCLUSION

¶26 The superior court’s rulings are affirmed.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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