Montemurro v. Montemurro

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

PHILIP MONTEMURRO, Petitioner/Appellant,

v.

LAURA G. MONTEMURRO, Respondent/Appellee.

No. 1 CA-CV 21-0131 FC
FILED 10-21-2021

Appeal from the Superior Court in Maricopa County
No. FN2014-003648
The Honorable Michael Rassas, Judge

AFFIRMED

COUNSEL

Philip Montemurro, Goodyear
Petitioner/Appellant Pro Per
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Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Maria Elena Cruz joined.

P E R K I N S, Judge:

¶1 Philip Montemurro (“Husband”) challenges several portions
of superior court’s order. He argues the court erred by: (1) awarding the
equalization payment as a money judgment; (2) miscalculating Laura
Montemurro’s (“Wife”) equalization obligation; (3) failing to address his
enforcement claims; and (4) denying his motion to take more discovery,
present “newly discovered evidence,” and preclude Wife’s enforcement
claims under the decree.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 We set out this case’s underlying facts in our earlier
memorandum decision (“First Decision”). See Montemurro v. Montemurro, 1
CA-CV 19-0228, 2020 WL 632612 (Ariz. App. Feb. 11, 2020) (mem. decision).
We summarize here only those facts relevant to this appeal.

¶3 Our First Decision required the superior court to allow
Husband to present evidence on his reimbursement claims under Bobrow v.
Bobrow, 241 Ariz. 592 (App. 2017), and adjust Wife’s equalization payment
obligation. See Montemurro, 1 CA-CV 19-0228, at *4, ¶¶ 18, 24. In its June
2020 minute entry, the court scheduled an evidentiary hearing for
September 8, 2020, and set a July 15, 2020, discovery deadline. The court
specified the four issues to be addressed at the hearing, including: (1) the
November 2018 spousal maintenance payment; (2) the $7,000 change in
Wife’s assets; (3) Husband’s expenses accruing between March 1, 2018, and
November 2, 2018; and (4) Wife’s increased equalization obligation.

¶4 Both parties filed numerous motions, including one of
Husband’s requests to take more discovery and obtain relief from the
decree. The superior court summarily denied Husband’s motion. The court
ultimately held an evidentiary hearing and issued its final order in January
2021. The court addressed the miscalculation discussed in the First Decision
and increased Wife’s equalization obligation by $3,500. The court found
that Husband did not make a $600 spousal maintenance payment in

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November 2018. The court also found that Wife owed Husband $38,657.36
because “Husband paid $77,314.71 towards community expenses between
March 1, 2018 and November 2, 2018 and is entitled to reimbursement . . .
pursuant to Bobrow.” Wife’s equalization obligation amounted to
$41,557.36, which the court awarded to Husband as a money judgment.

¶5 Husband timely appealed and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1). Wife did not submit an
answering brief. When an appellant has raised a debatable issue, we may
treat the appellee’s failure to file an answering brief as a confession of
error. See McDowell Mountain Ranch Cmty. Ass’n v. Simons, 216 Ariz. 266,
269, ¶ 13 (App. 2007). As discussed below, Husband has failed to raise a
debatable issue, so we decline to treat Wife’s failure to answer as a
confession of error.

DISCUSSION

¶6 Husband argues the superior court erred by denying his
motion for relief from the decree. See Ariz. R. Fam. Law P. 85. We review
Rule 85 motions for an abuse of discretion. Quijada v. Quijada, 246 Ariz. 217,
220, ¶ 7 (App. 2019). In his motion, Husband accused Wife of filing for
bankruptcy to perpetuate fraud. Husband cites Birt v. Birt to support his
contention that Wife’s bankruptcy entitles him to relief from the decree. 208
Ariz. 546 (App. 2004). Rule 85(c)(1) provides: “[a] motion under section (b)
must be made within a reasonable time--and for the reasons set forth in
subparts (b)(1), (2), and (3), no more than 6 months after the entry of the
judgment or order or date of the proceeding, whichever is later.” The court
entered the decree of dissolution in November 2018. Husband filed his
motion in July 2020, which exceeds the deadline in Rule 85(c)(1). The court
thus did not abuse its discretion by denying Husband’s untimely motion.

¶7 As to Husband’s other arguments, we note that Husband
failed to meaningfully comply with our rules. Arizona Rule of Civil
Appellate Procedure 13(a)(7) requires an appellant to provide this court
with “references to the record on appeal where the particular issue was
raised and ruled on, and the applicable standard of appellate review with
citation to supporting legal authority.” Husband provided minimal
citations to largely irrelevant legal authority. “We are not required to look
for the proverbial needle in the haystack. We must insist that a bona fide
and reasonably intelligent effort to comply with the rules be manifest.” In
re Aubuchon, 233 Ariz. 62, 64, ¶ 6 (2013) (cleaned up). Despite Husband’s pro
per status, we must hold him to the same standards as attorneys. Kelly v.
NationsBanc Mortg. Corp., 199 Ariz. 284, 287, ¶ 16 (App. 2000). We thus

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conclude that Husband waived the remaining issues raised in his brief. See
Sholes v. Fernando, 228 Ariz. 455, 461, ¶ 16 (App. 2011) (failure to develop
and support arguments waives issue on appeal).

CONCLUSION

¶8 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: JT

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