Griego v. Didomenico

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEBRA GRIEGO, Petitioner/Appellant,

v.

ANTHONY DIDOMENICO, Respondent/Appellee.

No. CV 22-0113 FC
FILED 10-11-2022

Appeal from the Superior Court in Maricopa County
No. FN2021-001614
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Alcock & Associates, Phoenix
By David K. Le Lievre
Counsel for Petitioner/Appellant

The Sampair Group PLLC, Glendale
By Patrick S. Sampair
Counsel for Respondent/Appellee
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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 The superior court dismissed Debra Griego’s dissolution
petition after finding that the parties did not have a valid common-law
marriage under Colorado law. We find no reversible error and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Griego and Anthony DiDomenico began living together in
1977 in Colorado. That same year, they had a child. Over the years, they
moved between Colorado and Kansas and eventually moved to Arizona in
2000. Griego petitioned for dissolution, arguing the parties had a valid
common-law marriage in Colorado. DiDomenico moved to dismiss,
claiming no marriage existed.

¶3 The superior court bifurcated the proceedings to address
whether the parties had a common-law marriage. The court ordered the
parties to disclose all documents relevant to that issue within one week and
exchange all exhibits five business days before the September 2, 2021,
hearing. Both attorneys agreed to the schedule. But Griego untimely
disclosed her proposed exhibits around 5:00 p.m. on August 31, 2021.
DiDomenico objected when Griego offered the untimely disclosed exhibits
at the hearing. The court gave Griego the choice of paying a monetary
sanction and continuing the hearing so DiDomenico could review the
exhibits or proceeding without the exhibits. Griego opted to proceed
without the exhibits.

¶4 The superior court found that DiDomenico never intended to
enter a marital relationship. The court detailed the conflicting evidence and
concluded that “their conduct was more consistent with unmarried
cohabitation than a common-law marriage.” Although the court awarded
attorney’s fees to DiDomenico in an amount to be determined, the court
found no just reason for delay and entered judgment under Arizona Rule
of Family Law Procedure (“ARFLP”) 78(b). Griego unsuccessfully moved
for relief, arguing the court misapplied Colorado law and her exhibits were

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erroneously excluded. Griego appealed these rulings. The court later
entered a judgment awarding attorney’s fees to DiDomenico. Griego did
not appeal the attorney’s fees judgment.

¶5 We have jurisdiction over the appeal from the dismissal order
under A.R.S. § 12-2101(A)(1). The denial of the motion for relief is not
appealable because the award of attorney’s fees related to that motion
remained outstanding. See ARFLP 78(b). Nor did Griego file a second
amended notice of appeal after the attorney’s fees judgment. Thus, we lack
jurisdiction to consider the order denying the motion for relief and the fee
award. See Dabrowski v. Bartlett, 246 Ariz. 504, 511, ¶ 13 (App. 2019) (An
appellate court has an independent duty to determine whether it has
jurisdiction.).

DISCUSSION

A. The Superior Court Properly Excluded Griego’s Untimely
Disclosed Evidence.

¶6 Griego did not disclose her exhibits on time. When she offered
the exhibits at the hearing, DiDomenico objected. The superior court
recognized the exhibits were important to Griego’s case. The court
proposed a continuance to allow DiDomenico to review the exhibits, but
Griego would have to pay DiDomenico’s attorney’s fees for that hearing as
a sanction. Instead, Griego opted to proceed without the exhibits. When
questioning DiDomenico, Griego’s attorney offered the excluded exhibits
to impeach his testimony. The court ruled that no disclosure exception
applied to impeachment evidence and again excluded the exhibits. Griego
contends the superior court erred by excluding the exhibits.

¶7 Whether to admit untimely disclosed evidence is a
discretionary decision for the superior court. Allstate Ins. Co. v. O’Toole, 182
Ariz. 284, 287 (1995); Packard v. Reidhead, 22 Ariz. App. 420, 423 (1974). We
will affirm the ruling absent an abuse of discretion or legal error. See
Girouard v. Skyline Steel, Inc., 215 Ariz. 126, 129, ¶ 10 (App. 2007).

¶8 The superior court has the discretion to sanction a party who
violates a discovery order. See ARFLP 65(b). Sanctions may include, but are
not limited to, the exclusion of evidence or staying the proceedings until the
order is followed. See ARFLP 65(b)(1). The court may also order the
disobedient party to pay the other party’s “reasonable expenses, including
attorney fees, caused by the failure, unless the failure was in good faith or
other circumstances make an award of expenses unjust.” ARFLP 65(b)(2).

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¶9 The superior court proposed a continuance if Griego paid the
attorney’s fees DiDomenico incurred for having to appear at the hearing as
a sanction for the disclosure violation. Griego did not offer good cause for
the late disclosure, nor did she argue that imposing the monetary sanction
was unjust. The court, therefore, properly exercised its discretion by
offering to continue the hearing subject to a financial sanction or proceeding
without the untimely disclosed exhibits. Having agreed to proceed without
the exhibits, Griego cannot now object to the consequences of her choice.
As a result, she has waived any objection to excluding the exhibits. See
Valley Nat’l Bank of Ariz. v. Meneghin, 130 Ariz. 119, 122 (1981) (“Any
irregularity in procedure may be waived if a party expressly or implicitly
consents to it, as by acquiescing or failing to object to the procedure.”).

¶10 Griego argues the superior court abused its discretion by
excluding the exhibits as impeachment evidence even though they were
precluded in her case-in-chief. But she has shown no exception for the
admissibility of precluded evidence for impeachment purposes.1 To allow
Griego to have her exhibits admitted as impeachment evidence would
render the original exclusion meaningless, particularly where the exclusion
was imposed as a sanction. Griego chose to proceed without the exhibits
and declined the court’s offer to continue the hearing with a monetary
sanction. That decision binds her.

¶11 DiDomenico asks this court to strike the portions of Griego’s
opening brief that referred to the excluded exhibits. Because we have
upheld the exclusion of the exhibits, we grant DiDomenico’s motion to
strike and do not consider the exhibits in deciding if a common-law
marriage existed under Colorado law.

1 We note that in Helena Chemical Co. v. Coury Bros. Ranches Inc., 126
Ariz. 448, 452 (App. 1980), this court distinguished substantive and
impeachment evidence for disclosure purposes, but ultimately held
evidence that serves both substantive and impeachment purposes must be
disclosed. The continued validity of Helena is questionable because the
disclosure exception was based on a repealed uniform rule of practice. We
need not decide that issue today because the excluded exhibits were
substantive despite Griego offering them for impeachment purposes.

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B. The Superior Court Correctly Applied Colorado Law, and the
Record Supports Its Ruling.

¶12 Arizona does not recognize a common-law marriage unless it
is entered in a state where common-law marriage is legal.
A.R.S. § 25-112(A); Grant v. Smith, 27 Ariz. App. 427, 429 (1976). Colorado
recognizes common-law marriage. See Hogsett v. Neale, 478 P.3d 713, 715,
¶ 3 (Colo. 2021). Griego contends the parties had a valid common-law
marriage, and the court misapplied Colorado law.

¶13 In 2021, Colorado “refined” the standard for determining
whether a common-law marriage exists. Previously, “[a] common law
marriage [was] established by the mutual consent or agreement of the
parties to be husband and wife, followed by a mutual and open assumption
of a marital relationship.” People v. Lucero, 747 P.2d 660, 663 (Colo. 1987).
Lucero instructed courts to consider any evidence that “openly manifests”
the parties’ intent to have a marital relationship, including: “a couple’s
cohabitation; reputation in the community as husband and wife;
maintenance of joint banking and credit accounts; purchase and joint
ownership of property; filing of joint tax returns; and use of the man’s
surname by the woman or by children born to the parties.” Hogsett, 478 P.3d
at 714, ¶ 1 (citing Lucero, 747 P.2d at 665).

¶14 The Colorado Supreme Court issued three opinions in 2021,
refining the Lucero test to reflect the “sea change in social norms” in modern
marriages. Hogsett, 478 P.3d at 722, ¶ 42; see also In re Estate of Yudkin, 478
P.3d 732 (Colo. 2021); LaFleur v. Pyfer, 479 P.3d 869 (Colo. 2021). The Court
held that “the Lucero factors may be overinclusive of couples who lack the
intent to be married yet engage in conduct once associated only with
spouses. On the other hand, the factors may be underinclusive of genuine
marriages that don’t conform to a traditional model.” Hogsett, 478 P.3d at
723, ¶ 48.

¶15 Thus, the test for proving a common-law marriage in
Colorado now requires:

the mutual consent or agreement of the couple to enter the
legal and social institution of marriage, followed by conduct
manifesting that mutual agreement. The key question is
whether the parties mutually intended to enter a marital
relationship—that is, to share a life together as spouses in a
committed, intimate relationship of mutual support and
mutual obligation.

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Id. at 723–24, ¶ 49. The courts still look at the parties’ conduct to determine
their intent. Id. at 724, ¶ 49. To that end, courts may still consider the Lucero
factors “such as the parties’ cohabitation, reputation in the community as
spouses, maintenance of joint banking and credit accounts, purchase and
joint ownership of property, filing of joint tax returns, and use of one
spouse’s surname by the other or by children.” Id. at 724–25, ¶ 55. Hogsett
added that courts should also consider conduct such as shared financial
responsibility, joint estate planning, symbols of commitment, and “the
parties’ sincerely held beliefs regarding the institution of marriage.” Id. at
725, ¶ 56.

¶16 Griego argues the superior court erred by applying the
updated Hogsett test for proving a common-law marriage. But in her
pretrial statement, Griego recognized that Hogsett applied. She argued that
under Hogsett, the court could still consider the Lucero factors and the
totality of the circumstances to determine whether they intended to enter a
marital relationship. By arguing on appeal that Hogsett does not apply, she
contradicts the position taken in her pretrial statement. Thus, we do not
consider it. See Bobrow v. Bobrow, 241 Ariz. 592, 597, ¶ 23 (App. 2017).

¶17 A common-law marriage requires a mutual intent to enter a
marital relationship. Hogsett, 478 P.3d at 723–24, ¶ 49. The superior court
weighed the conflicting evidence of the parties’ intent. It found that their
conduct was more consistent with an intent to cohabitate than to enter a
marital relationship. The evidence supports this conclusion.

¶18 The superior court found DiDomenico credibly testified that
he never expressed an intent to marry Griego and did not call her his wife.
DiDomenico did not believe they were married because his religious beliefs
required them to be married “before the eyes of God and witnesses, which
was never done.” He did not give her a ring, and there was no evidence of
any ceremony or anniversary celebrations. Griego sometimes used
DiDomenico’s last name, but she also used “Griego” or a combination of
both names at other times. Griego never legally changed her name. The
parties only filed joint tax returns once, and according to DiDomenico, he
did so to claim Griego as a dependent. The parties owned some property
jointly but held other property individually. According to DiDomenico,
they held joint title to the Arizona real property as a form of estate planning
to pass the property to their son. DiDomenico claimed they had not lived
together continuously for the last thirty years.

¶19 On the other hand, Griego testified that the parties
cohabitated since 1976 and had a child together in 1977. Griego believed

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they were in a marital relationship and testified that they held themselves
out as husband and wife. They had joint bank accounts. According to
Griego, DiDomenico’s pension documents stated the parties were married
in April 1977. That said, in 2018, Griego signed a statement witnessed by
the pension representative saying they were not in a common-law marriage.

¶20 Determining whether there is a common-law marriage
“present[s] difficult, fact-intensive inquiries.” Hogsett, 478 P.3d at 725, ¶ 60.
The Colorado courts recognize that trial courts can best make these
discretionary decisions. Id.; Lucero, 747 P.2d at 665. The superior court
thoughtfully weighed the conflicting evidence, and the evidence supported
its decision. Because the court did not abuse its discretion, we affirm.

ATTORNEY’S FEES AND COSTS

¶21 Per our discretion, we deny DiDomenico’s request for an
award of attorney’s fees on appeal. But as the successful party, DiDomenico
is entitled to his reasonable costs under A.R.S. § 12-342 upon compliance
with ARCAP 21.

CONCLUSION

¶22 We affirm.

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

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