Valencia v. Garcia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BEATRICE VALENCIA, Petitioner/Appellee,

v.

SHAD PARIS GARCIA, Respondent/Appellant.

No. 1 CA-CV 21-0643 FC
FILED 12-6-2022

Appeal from the Superior Court in Maricopa County
No. FC2020-071518
The Honorable Joseph Kiefer, Judge

AFFIRMED

COUNSEL

Beatrice Valencia, El Mirage
Petitioner/Appellee

R.J. Peters & Associates, P.C., Phoenix
By Lowen C. Jones
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E, Judge:

¶1 Shad Paris Garcia (“Husband”) appeals from the superior
court’s dissolution decree. He argues that the superior court improperly
classified his personal property as “community assets.” We disagree and
affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

¶2 The superior court found that Husband began serving a
ten-year prison sentence in 2014. While Husband was in prison, Beatrice
Valencia (“Wife”) lived in the marital residence until Husband’s father told
Wife she needed to either start paying rent or leave. Being unable to afford
the rent, Wife moved out.

¶3 Wife claimed Husband’s father told her she could take
anything she wanted from the home. Wife also claimed she told Husband
she was moving out and that he mentioned nothing about preserving the
property within the home. Husband maintained that Wife did not tell him
she was moving out until after she left.

¶4 When Wife moved from the home, she placed many of the
home’s items in a storage unit. Wife asserted that Husband was aware she
transferred the property into a storage unit and “never made efforts to
obtain the property.” Wife only paid the storage fees for a few months but
left the items in storage indefinitely. Wife thought the storage facility took
the property or auctioned off the items. Wife claimed she did not receive
profits from the property.

¶5 In the parties’ joint pretrial statement, Husband alleged Wife
took items from the home that were his “sole and separate property.”
Husband requested that the items be returned or that he be reimbursed.
Wife maintained that she did not have “any of Husband’s personal
property.” At the trial, Husband assessed the items he left in the home with

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approximate values and identified whether each item was acquired before
or after the marriage.

¶6 The superior court entered a dissolution decree. The court
awarded Husband the marital residence as his sole and separate property.
The court found Husband “failed to provide any supporting information
for his claims” that he acquired the personal property inside the home
before marriage. The court alternatively found that if Husband acquired the
property before marriage, Husband and Wife “used the personal property
in the home in support of the community” such that most of the items,
excluding Husband’s clothes and tools, “became community assets.” The
court classified Husband’s tools and clothes as his “sole and separate
property” because Wife did not testify that she used the items.

¶7 The court awarded Wife “the property in her possession from
when she initially left the home as her sole and separate property.” The
court found Husband “failed to take reasonable steps to secure items” he
believed belonged solely to him and “failed to pay his share of the storage
fees.” Thus, any property value owed to Husband from the items in the
storage unit was “offset by [his] unpaid share of the cost to store the items.”

¶8 Husband moved for relief from the judgment under Arizona
Rule of Family Law Procedure 85 (“Rule 85”), arguing that the court
improperly classified the property within the home as community
property. Denying the motion, the court explained Husband “failed to
produce any actual invoices or receipts but only a self-made list and his
own testimony regarding certain personal property items.” The court found
Husband’s evidence “unpersuasive.” It reiterated that even if he acquired
the property before marriage, Husband and Wife used most of the property
“during the marriage such that it was comingled and converted to
community property.”

¶9 Husband appealed the denial of his motion for relief from
judgment in October 2021. This court stayed the appeal until the superior
court filed a signed order, which it did.

¶10 On February 14, 2022, Husband requested the trial
transcripts. He filed his notice of transcript order with this court on
February 28, 2022. In the notice, Father claimed the court reporter notified
him that she would complete the transcript by March 4, 2022. There is no
evidence Husband secured the trial transcript as they are not in the record
on appeal.

¶11 We have jurisdiction under A.R.S. § 12-2101(A)(1).

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DISCUSSION

¶12 Husband argues that this court should reverse the superior
court’s denial of his motion for relief from judgment because the court
improperly found the home’s assets were commingled and community
property.

¶13 We review the denial of a Rule 85 motion for an abuse of
discretion, and we review interpretations of statutes and rules de novo. Clark
v. Kreamer, 243 Ariz. 272, 275, ¶ 10 (App. 2017). We view the facts “in the
light most favorable to sustaining the superior court’s order.” Id. We will
affirm the superior court’s fact-finding unless it is clearly erroneous and
give “due regard” to the court’s witness credibility assessments. See Ariz.
R. Fam. Law P. (“ARFLP”) 82(a)(5).

¶14 Property is “separate” if a party acquired it either before the
marriage or during the marriage by gift, devise, or descent. A.R.S.
§ 25-213(A). All other property acquired during the marriage is community
property unless demonstrated otherwise by clear and convincing evidence.
A.R.S. § 25-211(A); Sommerfield v. Sommerfield, 121 Ariz. 575, 577 (1979). If
community property and separate property are commingled, the property
is “presumed to be community property unless the separate property can
be explicitly traced.” See Cooper v. Cooper, 130 Ariz. 257, 259 (1981) (quoting
Porter v. Porter, 67 Ariz. 273, 281 (1948), overruled on other grounds by Cockrill
v. Cockrill, 124 Ariz. 50, 53–54 (1979)).

¶15 An appellant must include in the record transcripts or other
documents necessary to resolve the issues on appeal. ARCAP 11(b), (c);
State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16 (App. 2003).
“When no transcript is provided on appeal, the reviewing court assumes
that the record supports the trial court’s decision.” Kline v. Kline, 221 Ariz.
564, 572, ¶ 33 (App. 2009) (quoting Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11
(App. 1998)). Additionally, as relevant here, an appellant must order
transcripts “within 10 days after entry of an order disposing of the last
timely remaining motion under Rule 9(e).” ARCAP 11(c)(2). An appellant
must also file a notice of transcript order with the court within 15 days of
the same order. ARCAP 11(c)(3).

¶16 As noted above, the trial transcripts are not in the appellate
record. Husband allegedly requested the production of the trial transcripts
but asked for them too late. Husband requested the trial transcript on
February 14, more than ten days from the superior court’s signed order
entered on January 26. Husband filed his notice of transcript order on

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February 28, more than 15 days from the superior court’s January 26 signed
order. Moreover, nothing in the record shows Husband followed up with
the court reporter after she failed to provide the transcript. Not only was
Husband’s transcript request and notice untimely, but he failed to obtain
the transcripts. Because we do not have the trial transcripts, we must
assume the missing record supports the superior court’s findings. See Kline,
221 Ariz. at 572, ¶ 33.

¶17 Husband contends he “presented testimony evidence as to
multiple pieces of his separate property.” No evidentiary record supports
Husband’s assertion. See ARCAP 13(a)(7) (An appellant must support
reasons for each issue with “appropriate references to the portions of the
record on which the appellant relies.”). Husband also claims that he
“provided an inventory . . . of his sole and separate property.” But the
superior court found the list lacking because Husband failed to support it
with invoices or receipts to show when he purchased the property. Rather,
next to each listed item, Husband merely flagged whether the property was
acquired before or during the marriage and how much he believed each
item was worth. The superior court did not err by finding Husband failed
to provide enough evidence that the items, other than his clothes and tools,
were his separate property.

¶18 Husband also argues on appeal that Wife lied throughout her
testimony. Because Husband did not include the trial transcripts in the
appellate record, and we defer to the superior court’s witness credibility
assessments, we cannot say the superior court erred by rejecting Husband’s
separate property claims. See Kline, 221 Ariz. at 572, ¶ 33; see also ARFLP
82(a)(5).

¶19 Husband objects to the superior court’s alternate conclusion
that the personal property was commingled. Husband is correct that
“[c]ommingling can transmute financial accounts but not tangible assets.”
Brucklier v. Brucklier, 253 Ariz. 579, 584, ¶ 21 (App. 2022). But we will not
reverse this alternate holding because Husband failed to prove the property
was separate. We cannot meaningfully review the superior court’s analysis
without a trial record. Because Husband did not provide record evidence
to support his arguments, we conclude the superior court did not abuse its
discretion by denying his motion for relief from the judgment.

ATTORNEY’S FEES

¶20 Husband requests attorney’s fees under A.R.S. § 25-324. Per
our discretion, we deny the request.

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CONCLUSION

¶21 We affirm the judgment.

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

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