Jones v. Jones

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GERRIT A. JONES, Petitioner/Appellant,

v.

ELIZABETH G. JONES, Respondent/Appellee.

No. 1 CA-CV 22-0547 FC
FILED 8-22-2023

Appeal from the Superior Court in Yavapai County
No. P1300DO202000848
The Honorable Cele Hancock, Judge

AFFIRMED

COUNSEL

Law Office of Daniel DeRienzo, P.L.L.C., Prescott Valley
By Daniel J. DeRienzo
Counsel for Petitioner/Appellant

Law Offices of Robert L. Frugé, P.C., Prescott
By Robert L. Frugé
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Michael S. Catlett joined.

C R U Z, Judge:

¶1 Gerrit A. Jones (“Husband”) appeals from the superior
court’s entry of a divorce decree and award of spousal maintenance to
Elizabeth G. Jones (“Wife”). We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Husband and Wife were married in April 1992 and owned a
plumbing business during the marriage. In December 2020, Husband
petitioned for dissolution of marriage, and Wife responded in March 2021
requesting a spousal maintenance award of $2,000 per month for an
undisclosed duration. Wife also requested in her proposed resolution
statement a spousal maintenance award of $2,000 per month for fourteen
years, and in her pretrial statement, she requested an award of $1,500 for
twelve months.

¶3 Shortly before trial in March 2022, the court held oral
argument on all outstanding motions, including those relating to Wife’s
expert business valuations. The court announced that Husband had
stipulated to allow Wife to disclose “an independent business valuation
report one week prior to trial.” Husband never objected to the court’s
characterization of the agreement.

¶4 At the beginning of trial, both parties stipulated that there
were no objections to any exhibits. Husband dedicated his allotted trial
time to the business valuation issue and moved to enter into evidence
Wife’s business valuation disclosed one week before trial. Wife later
testified that her prior attorney made a typo in her pretrial statement, and
she requested a spousal maintenance award of $1,500 per month for
twelve years, not twelve months.

¶5 At the end of trial and after the close of evidence, the court
requested written closing arguments. Husband unsuccessfully requested
permission to call a rebuttal witness—on the amount of money possibly
withdrawn from Husband’s retirement account, passed through the

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business account, and then deposited into another one of his bank
accounts. Husband conceded he could adequately address the issues in
his written closing argument. In July 2022, the court entered its decree of
dissolution of marriage and awarded Wife spousal maintenance of $1,250
per month for 7 years. Husband timely appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-
2101(A)(1).

DISCUSSION

I. Spousal Maintenance

¶6 Husband argues the superior court abused its discretion in
awarding Wife a different spousal maintenance duration than she
requested in her pretrial statement. We review court orders on spousal
maintenance for an abuse of discretion. Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8
(App. 2012). The superior court has “substantial discretion to set the
amount and duration of spousal maintenance,” Rainwater v. Rainwater, 177
Ariz. 500, 502 (App. 1993), and the court abuses its discretion if it makes
an error of law in reaching a discretionary conclusion or if the record does
not support a discretionary ruling, Boyle, 231 Ariz. at 65, ¶ 8. We do not
reweigh evidence on appeal, and we will affirm the superior court’s ruling
if substantial evidence supports it. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16
(App. 2009).

¶7 Husband argues Wife’s request at trial for “spousal
maintenance, in an amount greater than” she requested in her pretrial
statement, “was not an issue properly before the court.” Husband claims
Wife’s pretrial statement request “amended” the pleading, “narrowed”
the issues, and “placed a cap on the requested amount.” Husband relies
on Leathers v. Leathers, 216 Ariz. 374 (App. 2007), where this court held that
a life insurance provision used to secure spousal maintenance was not
properly before the court because life insurance was not listed as a
contested issue in the joint pretrial statement and neither party requested
that the court add it as a contested issue before trial. Id. at 378, ¶¶ 18-19.
But here, both parties listed spousal maintenance as a contested issue for
trial in both their notices of issues and pretrial statements, and Husband
admitted spousal maintenance was “the major dispute at trial.” Husband
has not shown that the court improperly considered Wife’s spousal
maintenance request.

¶8 Husband also relies on Darnell v. Denton, 137 Ariz. 204
(App. 1983), to support his claim that the court’s award of an amount

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greater than Wife’s pretrial statement request “is void because it granted
relief that exceeded and was different in kind from that requested.” But
this court discussed default judgments in Darnell and held that the
purpose of Arizona Rule of Civil Procedure 54(d) is “to assure the
defendant who consciously allows a default judgment to be taken against
him that he may rest secure in the knowledge that the judgment will not
exceed the relief requested in the complaint.” Darnell, 137 Ariz. at 206.
Here, the court did not enter a default judgment against either party
according to that procedural rule, and Husband fails to provide any
relevant legal support showing the court was constrained by Wife’s
pretrial statement request in determining the spousal maintenance
award’s amount or duration. See ARCAP 13(a)(7). Husband does not
allege, and the record does not show, that the parties reached any
agreement as to amount or duration or that any such agreement
constrained the court in determining the award. Instead, the court
exercised its “substantial discretion” in determining Wife’s spousal
maintenance award. See Rainwater, 177 Ariz. at 502.

¶9 Husband claims Wife violated his due process rights by
“clearly” and “intentional[ly]” deceiving him “into believing that his
spousal maintenance [obligation] would be limited to only one year.” We
review due process challenges de novo, Backstrand v. Backstrand, 250 Ariz.
339, 346, ¶ 28 (App. 2020), and we will reverse a decision based on a due
process violation only if the error prejudices a party, Volk v. Brame, 235
Ariz. 462, 470, ¶ 26 (App. 2014).

¶10 Here, Husband admitted that he “relied upon” Wife’s
request in her pretrial statement and chose not to “squabble over” the
requested spousal maintenance amount because he considered the
business valuation to be “the more pressing issue.” As discussed above,
see supra ¶ 8, Husband does not allege that the parties reached any spousal
maintenance agreement, binding or otherwise, and the record shows
Husband chose to rely, ultimately to his detriment, on Wife’s pretrial
statement request. He has not shown why the court would be limited to
awarding Wife the amount or duration she requested in her pretrial
statement or that he was prejudiced by any alleged error. Id.

¶11 Husband also claims that had he known Wife’s “request was
for 12 years or lifetime spousal maintenance, he would have addressed the
reasonableness of this request in his case-in-chief.” But Wife consistently
requested spousal maintenance for longer than twelve months. Indeed, in
her response to Husband’s petition for dissolution of marriage, Wife
requested spousal maintenance for an undisclosed duration, and in her

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proposed resolution statement, she requested spousal maintenance for
fourteen years. It was only in her pretrial statement that Wife requested
an award for only twelve months, a substantially shorter duration than
her prior requests. Husband was on notice that the court could award
Wife spousal maintenance for a longer duration than her pretrial
statement request through both Wife’s consistent requests and the court’s
“substantial discretion” in awarding spousal maintenance. See Rainwater,
177 Ariz. at 502.

¶12 Husband also contends the court erred by failing to make an
Arizona Rule of Family Law Procedure (“Rule”) 76.1(i) good cause finding
“to allow Wife to dramatically change her requested [spousal
maintenance] amount after [Husband] had rested.” Rule 76.1(i) provides
in pertinent part, “A party may not present an issue not listed in either
party’s Notice of Issues at trial, unless the court orders otherwise for good
cause.” But here, both parties listed spousal maintenance as a contested
issue for trial in both their notices of issues and pretrial statements.
Husband has therefore not shown why the court was required to make a
Rule 76.1(i) good cause finding. We find no error.

II. Business Valuation

¶13 Husband argues the court violated his due process rights by
imposing “strict time limits upon his testimony” and denying his request
for a rebuttal witness. We review the imposition of time limits at trial for
an abuse of discretion. Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 91, ¶ 30
(App. 1998). The superior court may impose reasonable limits on the time
allotted for trial in family court proceedings. See Ariz. R. Fam. Law P.
22(a). Although rigid time limits are disfavored, courts may reasonably
limit trial time “to avoid undue delay, waste of time or needless
presentation of cumulative evidence.” Brown, 194 Ariz. at 91, ¶ 29. In
addition to showing an abuse of discretion, an appellant must also show
they suffered some harm as a result of the time limits imposed. Id. at ¶ 30.

¶14 Husband cites one instance where the court refused his
in-chambers request for additional trial time. Husband does not state
what information he was unable to present at trial due to the court
denying his request, and he fails to allege any harm he suffered as a result
of the time limits imposed. Id. Husband also claims, without proper
citation to the record or any relevant legal authority, that he “should have
been permitted a rebuttal witness.” See ARCAP 13(a)(7). Husband
presumably references one instance at the end of trial where the court
denied his request to call a rebuttal witness instead of providing a written

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closing argument. But there, Husband made his request after the close of
evidence, and he conceded that he could adequately address the issue in
his written closing argument. Husband’s arguments therefore fail.

¶15 Husband next argues the superior court abused its discretion
by “completely disregarding” his expert’s report and testimony, and
instead “accepting as fact” Wife’s expert’s report “without related
testimony.” Husband claims he “asked” the superior court to give Wife’s
expert’s valuation “little or no weight” because it was “not logical or
based on any facts presented as evidence.” Husband asks this court to
reweigh evidence and reassess witness credibility on appeal, but we will
not substitute our judgment for that of the trial judge. See Cook v.
Losnegard, 228 Ariz. 202, 205, ¶ 11 (App. 2011).

¶16 Husband argues Wife untimely disclosed her expert’s
valuation one week before trial creating “a trial by ambush” and denying
Husband “due process.” The record shows otherwise. Both on and off
the record at oral argument, Husband agreed that Wife could submit her
additional business valuation a week before trial. Husband does not
allege, and the record does not show, that he objected during the hearing
or filed any subsequent pleadings objecting to Wife’s disclosure timeline.
Both parties stipulated at the beginning of trial that there were no
objections to any exhibits, and Husband moved to admit Wife’s valuation
into evidence at trial.

¶17 Beyond that, Husband failed to object to Wife’s disclosure
timeline in superior court and has therefore waived the timeliness issue on
appeal. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) (“Because a trial
court and opposing counsel should be afforded the opportunity to correct
any asserted defects before error may be raised on appeal, absent
extraordinary circumstances, errors not raised in the trial court cannot be
raised on appeal.”). The record supports the court’s findings.

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CONCLUSION

¶18 We affirm. Both parties request attorneys’ fees and costs on
appeal. We have considered the relative financial resources of the parties
and the reasonableness of the positions asserted on appeal. See A.R.S.
§ 25-324(A). In the exercise of our discretion, we award Wife her
reasonable attorneys’ fees on appeal, upon compliance with ARCAP 21.
As the prevailing party, Wife is also entitled to her costs, upon compliance
with ARCAP 21.

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

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