Rodriguez v. Steddom

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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 Matter of:

CHRISSY RODRIGUEZ, Petitioner/Appellant,

v.

TODD STEDDOM, Respondent/Appellee.

No. 1 CA CV12-0735
FILED 5-6-2014

Appeal from the Superior Court in Maricopa County
No. FC 2010-093496
The Honorable Benjamin R. Norris, Judge

APPEAL DISMISSED

COUNSEL

Law Office of Stone & Davis PC, Scottsdale
By Kiilu Davis

Counsel for Petitioner/Appellant

Gillespie Shields & Durrant, Mesa
By Jeffrey McCombs and Mark A. Shields

Counsel for Respondent/Appellee
 RODRIGUEZ v. STEDDOM
Decision of the Court

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.

D O W N I E, Judge:

¶1 Chrissy Rodriguez (“Wife”) appeals the denial of her motion
filed pursuant to Rule 85(C) of the Arizona Rules of Family Law
Procedure. Because Wife’s appeal presents issues that could and should
have been the subject of a timely appeal from the underlying decree, we
dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

¶2 During a divorce trial in January 2012, one of the contested
issues was whether Wife had a community interest in a portion of eight
parcels of Iowa farm land. Todd Steddom (“Husband”) testified that he
acquired all of the property before marriage but lost a 3.92-acre parcel
(“Parcel”) in a highway condemnation proceeding. Wife testified that this
Parcel, which she valued at $58,000, was reacquired during the marriage
with funds from her money market account. According to Husband,
though, he repurchased the Parcel with condemnation proceeds. The
parties also testified at trial about their debts and two Chandler rental
properties acquired during marriage. Wife asked the court to assign to
her all debts associated with her own credit cards, which she identified at
trial.

¶3 The family court filed its decree on January 31, 2012. It
awarded Husband the Iowa farm land, including the Parcel, as his sole
and separate property, and assigned to Wife all credit card debt she had
agreed to assume at trial. Each party received one of the Chandler rental
properties.

¶4 Wife did not appeal from the decree or file a motion for new
trial. Instead, on February 28, 2012, she filed a motion for reconsideration
pursuant to Rule 35(D). The family court denied most of the relief Wife
requested therein because, with the exception of her claim for child
support arrearages, she was presenting new facts relating to previously
litigated issues.

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Decision of the Court

¶5 On June 22, 2012, Wife moved for relief from the decree
under Rule 85(C)(1)(b)-(c), (e)-(f) of the Arizona Rules of Family Law
Procedure. The family court denied her motion. Wife then filed a notice
of appeal from the denial of her Rule 85 motion.

DISCUSSION

¶6 Husband challenges our jurisdiction, arguing Wife’s Rule
85(C) motion is a belated attempt to challenge issues that should have
been appealed. We must determine whether the order resolving the Rule
85(C) motion is the type of special order made after final judgment that
may be appealed under Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(2).

¶7 To be appealable under A.R.S. § 12-2101(A)(2), an order
must raise issues different from those that would arise from an appeal of
the underlying judgment. Arvizu v. Fernandez, 183 Ariz. 224, 226-27, 902
P.2d 830, 832-33 (App. 1995). Wife’s Rule 85(C) motion attacked
Husband’s trial testimony, challenged the allocation of property and
debts, and protested the lack of time she was allotted for cross-
examination. The motion raised issues that Wife could have raised in an
appeal from the decree. 1 We therefore lack jurisdiction to consider her
claims on appeal. See Engel v. Landman, 221 Ariz. 504, 510, ¶¶ 19-20, 212
P.3d 842, 848 (App. 2009) (finding no jurisdiction over appeal from a

1 To buttress her Rule 85(C) motion, Wife attached (1) records of the
2010 unpaid balances on two credit cards in her name; (2) a letter from a
Polk County Attorney asserting that the Iowa farm land “was not a part of
the Steddom’s condemnation proceedings;” (3) bank account statements
reflecting transfers from Wife’s account from January to March 2005; (4) a
2004 check Wife made out to cash; (5) a January 2011 statement showing
mortgage balances from one of the Chandler rental properties; and (6) a
valuation of comparable properties contradicting Husband’s estimate of
property values at trial. Each of these documents relates to issues Wife
could have appealed or raised in a new trial motion after the decree was
entered, and none qualifies as newly-discovered evidence that, with the
exercise of due diligence, could not have been discovered for use at trial or
in a timely motion for new trial.

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Decision of the Court

November order because trial court had addressed all substantive issues
in its September order); see also Reidy v. O’Malley Lumber Co., 92 Ariz. 130,
136, 374 P.2d 882, 886 (1962) (“An order made after judgment is not
appealable if the appeal presents the same question as would be presented
on an appeal from the judgment.”).

¶8 Wife’s motion for reconsideration, filed four weeks after the
decree’s entry, underscores the fact that she could have raised her
arguments earlier. That motion substantially duplicates the Rule 85(C)
claims, asserting that: (1) Husband fraudulently assessed the value of the
community-owned residences; (2) Husband falsely represented that he
had used condemnation proceeds, not community funds, to purchase the
Parcel; (3) the decree did not allocate child support arrearages; and (4) the
court should reallocate debts using information Wife failed to present at
trial, purportedly due to time constraints and her inability to cross-
examine Husband.

¶9 Both parties request attorneys’ fees incurred on appeal
pursuant to A.R.S. § 25-324(A), which authorizes an award of fees and
costs “after considering the financial resources of both parties and the
reasonableness of the positions each party has taken throughout the
proceedings.” Wife does not argue she is entitled to an award based on
disparity in the parties’ financial resources, and Husband relies on Wife’s
earning history. But even if Wife currently has fewer financial resources
than Husband, Wife’s appeal improperly attempts to raise issues that are
no longer viable. In the exercise of our discretion, we award Husband his
appellate costs and a reasonable sum of attorneys’ fees incurred on appeal
pursuant to A.R.S. § 25-324(A), contingent on compliance with ARCAP 21.
We deny Wife’s request for fees and costs.

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 RODRIGUEZ v. STEDDOM
Decision of the Court

CONCLUSION

¶10 For the reasons stated, we dismiss this appeal.

:MJT

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