Moore v. Dasilva

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALLAN J. MOORE, JR., Petitioner/Appellee,

v.

CYNTHIA RENEE DASILVA, Respondent/Appellant.

No. 1 CA-CV 22-0557 FC
FILED 5-4-2023

Appeal from the Superior Court in Maricopa County
No. FN2004-000106
The Honorable Suzanne Marie Nicholls, Judge

REVERSED

COUNSEL

McKeddie Cooley PLLC, Scottsdale
By Justin R. Cooley, Melanie C. McKeddie
Counsel for Petitioner/Appellee

Yvonne Yragui PC, Phoenix
By Yvonne Yragui
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Angela K. Paton and Judge D. Steven Williams joined.

P E R K I N S, Judge:

¶1 Cynthia DaSilva appeals the superior court’s order granting
Allan Moore’s motion to correct the record under Arizona Rule of Family
Law Procedure 85. For the following reasons, we reverse.

FACTS AND PROCEDURAL BACKGROUND

¶2 This dispute arises out of a divorce, which was first filed in
2004. As part of the asset distribution of Moore’s retirement account,
DaSilva received an overpayment of $7,819.53. Moore filed three motions
in 2008 requesting relief. The superior court granted judgment in favor of
Moore for the overpayment amount under Arizona Rule of Family Law
Procedure (“Rule”) 85 (“2009 Judgment”).

¶3 Later that year, DaSilva filed for bankruptcy. Approximately
four months later, the bankruptcy court entered default judgment and
declared the 2009 Judgment non-dischargeable. See 11 U.S.C. § 523(a)(15).
Moore took no action on the 2009 Judgment for almost five years.

¶4 In April 2014, the Maricopa County clerk of court accepted an
affidavit to renew the judgment under Section 12-1612. Moore then filed
two garnishment actions. DaSilva moved to dismiss the garnishments and
sanction Moore, arguing he failed to timely renew the judgment. Twelve
days later, DaSilva filed a notice to withdraw her motion to dismiss the
garnishment (“Notice to Withdraw”) and moved to discharge the
garnishees. The court granted DaSilva’s motion to dismiss, in essence
taking no action on the Notice to Withdraw (“2015 Order”).

¶5 DaSilva moved to vacate the 2015 Order based on the Notice
to Withdraw and asked the court to discharge the garnishees. The superior
court discharged the garnishees but left the 2015 Order in place. Over the
next ten months, the parties engaged unsuccessfully in various collection
efforts. Two years later, in March 2018, Moore filed an affidavit to renew
the judgment. Following the affidavit, Moore took no action on the 2009
Judgment for more than three years.

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¶6 In September 2020, Moore petitioned the court to conduct a
judgment debtor exam to recover the 2009 Judgment. DaSilva moved to
dismiss the petition, arguing that in its 2015 Order the superior court had
ruled the 2009 Judgment was expired and uncollectable. Moore responded,
arguing that the court improperly granted DaSilva’s motion to dismiss in
the 2015 Order because DaSilva had withdrawn the motion and filed a
motion to vacate the order. The superior court dismissed the petition (“2020
Order”), reasoning that “nowhere is it indicated that the court’s [2015
Order] was set aside . . . The [2015 Order] is a valid judgment and the
[c]ourt’s findings remain intact . . . [and Moore] has again sought to pursue
legal action on an expired, unenforceable judgment.”

¶7 For the next fifteen months, Moore took no action. Then,
Moore filed a motion to correct the record under Arizona Rule of Family
Procedure 85(a). The superior court granted relief under Rule 85(a) and
(b)(6) (“2022 Order”), reasoning that the “2015 Order was improperly
entered due to [DaSilva]’s earlier filed Notice of Withdrawal,” (emphasis in
original), and that the 2020 Order “failed to consider [DaSilva]’s Notice of
Withdrawal.” (Emphasis in original).

¶8 DaSilva timely appealed and we have jurisdiction under
A.R.S. § 12-2101(A)(1), (4).

DISCUSSION

¶9 DaSilva challenges the superior court’s 2022 Order, arguing
that the court erred in granting relief under either Rule 85 subsection (a), or
subsection (b)(6). We do not address whether the 2009 Judgment was
properly renewed because, as Moore correctly points out, “that issue is not
before this Court.” Our analysis is confined to whether the superior court
abused its discretion by granting relief under Rule 85. See Quijada v. Quijada, 246 Ariz. 217, 220, ¶ 7 (App. 2019). We review the superior court’s grant of
Rule 85 relief for an abuse of discretion and will affirm “unless undisputed
facts and circumstances require a contrary ruling.” See City of Phoenix v.
Geyler, 144 Ariz. 323, 330 (1985) (cleaned up).

I. Any Other Reason Justifying Relief

¶10 DaSilva argues that the superior court erred in granting relief
sua sponte under Rule 85(b)(6). We agree. We interpret procedural rules de
novo, Chartone, Inc. v. Bernini, 207 Ariz. 162, 167, ¶ 14 (App. 2004), and using
principles of statutory interpretation. State v. Hansen, 215 Ariz. 287, 289, ¶ 7
(2007). “Statutory interpretation requires us to determine the meaning of
the words the legislature chose to use. We do so neither narrowly nor

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liberally, but rather according to the plain meaning of the words in their
broader statutory context, unless the legislature directs us to do otherwise.”
S. AZ Home Builders Assoc. v. Town of Marana, ––– Ariz. –––, ¶ 31, 522 P.3d
671, 676 (2023).

¶11 Rule 85(b)(6) states, “[o]n motion and on such terms as are just,
the court may relieve a party or its legal representative from a judgment
for . . . any other reason justifying relief.” Ariz. R. Fam. Law P. 85(b)(6)
(emphasis added). As distinguished from Rule 85(a), which states “A court
must correct a clerical mistake or a mistake arising from oversight or
omission if one is found in a judgment. The court may do so on motion or
on its own, with notice.” Ariz. R. Fam. Law P. 85(a) (emphasis added). The
plain language of Rule 85(a) thus allows the court “on its own” to grant
relief. Ariz. R. Fam. Law P. 85(a). But Rule 85(b) requires a motion before
the court can provide relief under that subsection. Ariz. R. Fam. Law P.
85(b).

¶12 Moore requested relief under Rule 85(a) but did not raise any
of the Rule 85(b) criteria. Yet the superior court granted relief under both
Rule 85(a) and (b)(6). We reverse the court’s ruling as to relief under Rule
85(b) because it does not authorize the superior court to grant such relief on
its own initiative.

II. Clerical Mistakes; Oversights and Omissions

¶13 DaSilva argues that the superior court erred by finding a
clerical error under Rule 85(a). We agree. “A court must correct a clerical
mistake or a mistake arising from oversight or omission if one is found in a
judgment.” Ariz. R. Fam. Law P. 85(a). The superior court “can correct
clerical errors at any time,” but “may correct judgmental errors only within
limited time frames.” Vincent v. Shanovich, 243 Ariz. 269, 271, ¶ 8 (2017)
(internal quotations omitted).

¶14 Clerical errors are “inadvertent and may be a misstatement or
omission.” Id. “A clerical error occurs when the written judgment fails to
accurately set forth the court’s decision.” Id. Judgmental errors occur “when
the court’s decision is accurately set forth but is legally incorrect.” Id.
“Whether error is judgmental or clerical turns on the question [of] whether
the error occurred in rendering judgment or in recording the judgment
rendered.” Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 142 (1987).

¶15 The superior court reasoned that the 2020 Order failed to
consider either the Notice of Withdrawal or the motion to vacate the 2015
Order, but the record does not support that conclusion. Rather, in the 2020

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Order, the court stated that it had reviewed “the motions, pleadings, and
[case] file” before affirming the 2015 Order. And Moore put the court on
notice in his 2020 motion to dismiss when he argued that the court’s 2015
Order “was entered in error,” pointing out both the Notice of Withdrawal
and motion to vacate the 2015 Order.

¶16 The 2020 Order is also consistent with the record. Moore
argues that DaSilva’s Notice of Withdrawal evidenced her belief that the
2009 Judgment was still effective. But DaSilva filed the Notice because
“both garnishees . . . have provided answers that no wages are owed to
[DaSilva].” And the question of whether the 2009 Judgment was
enforceable still required resolution. See In re Marriage of Kassa, 231 Ariz.
592, 593, ¶ 4 (App. 2013) (“The Arizona Rules of Family Law Procedure
require the trial court to resolve all issues raised in a post-decree petition
before the filing of an appeal.”).

¶17 Moore also argues that the superior court impliedly vacated
the 2015 Order, while DaSilva argues that the superior court impliedly
denied the motion to vacate. The record reflects that the superior court
granted the motion to vacate, in so far as it issued an order granting
DaSilva’s requested relief, in part. In her motion to vacate, DaSilva
requested that the court vacate the 2015 Order and discharge the
garnishees. In response, the court discharged the garnishees but did not
vacate the 2015 Order. The court did not discuss the request to vacate the
2015 Order and therefore denied it. See State v. Hill, 174 Ariz. 313, 323 (1993)
(“A motion that is not ruled on is deemed denied by operation of law.”).

¶18 The record does not reflect that either the 2015 Order or the
2020 Order fail to reflect the court’s intent. See Vincent, 243 Ariz. at 271, ¶ 8
(“When clerical error is asserted, the family court should examine the
record to determine whether the judgment accurately recorded the court’s
intent.”). If Moore disagreed with the court’s determination that the 2009
Judgment was expired, he should have raised that issue on appeal from the
2020 Order. See Ace Auto Prods., Inc., 156 Ariz. at 143 (“If there was error in
the amount, the error was not clerical but judgmental, and defendants’
failure to object at trial precludes correction on appeal.”). The superior court
abused its discretion when it granted relief under Rule 85(a).

¶19 Moore requests attorneys’ fees and costs under
A.R.S. § 25-324. We decline to award attorneys’ fees because we have no
information about the parties’ financial resources and both parties
presented reasonable positions on appeal.

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CONCLUSION

¶20 For the above reasons, we reverse the 2022 Order granting
Rule 85 relief to Moore.

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

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