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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANGELICA GONZALEZ,
Petitioner/Appellant,

v.

CARLOS SANTIAGO HERNANDEZ GARCIA,
Respondent/Appellee.

No. 1 CA-CV 23-0756 FC
FILED 10-10-2024

Appeal from the Superior Court in Maricopa County
No. FC2022-000702
The Honorable James N. Drake, Judge

AFFIRMED

COUNSEL

Angelica Gonzalez Moreno, Avondale
Petitioner/Appellant

Carlos Santiago Hernandez Garcia, Phoenix
Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Andrew M. Jacobs joined.

C R U Z, Judge:

¶1 Angelica Gonzalez (“Mother”) appeals from the dissolution
decree ending her marriage to Carlos Garcia (“Father”). For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In February 2022, Mother filed for divorce and in July 2023 the
superior court issued a decree of dissolution. The decree of dissolution
awarded equal parenting time on a two-week schedule and ordered Father
to pay child support and 51% of any uninsured medical costs. The decree
also awarded the home the family had lived in to Father as sole and
separate property and determined that there were no financial accounts
containing community property that required allocation. Mother then filed
a motion to alter or amend the decree arguing the superior court erred when
it offset a community lien with Father’s post-service expenditures toward
an asset found to be his sole and separate property. The superior court
denied Mother’s motion to alter or amend.

¶3 Mother timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

¶4 Mother’s opening brief fails to comply with Arizona Rule of
Civil Appellate Procedure (“ARCAP”) 13. ARCAP 13(a)(7)(A) requires
arguments to include “contentions concerning each issue presented for
review, with supporting reasons for each contention, and with citations of
legal authorities and appropriate references to the . . . record.” Mother does
not support her arguments with citations to the record or relevant
authority. Mother also raises issues not previously litigated in the superior
court. Even if we overlook the deficiencies in the opening brief, we must
affirm the superior court’s ruling.

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Decision of the Court

¶5 Mother argues, for the first time on appeal, that Father’s
401(k) should be equitably divided as community property. An argument
not raised before the superior court cannot be raised for the first time on
appeal. Dillig v. Fisher, 142 Ariz. 47, 51 (App. 1984). Therefore, we will not
consider this argument.

¶6 Mother also argues the superior court erred when it awarded
the home the family lived in to Father as his sole and separate property.
Mother has not provided the transcript of the hearing. See ARCAP
11(c)(1)(A) (“The appellant must order transcripts of superior court
proceedings not already in the official record that the appellant deems
necessary for proper consideration of the issues on appeal.”). “[I]n the
absence of a transcript, we presume the evidence and arguments presented
at the hearing support the trial court’s ruling.” Blair v. Burgener, 226 Ariz.
213, 217, ¶ 9 (App. 2010). Because we lack a transcript of the hearing where
the superior court received evidence and heard arguments, we cannot say
the superior court erred.

¶7 We have independently reviewed the record including: (1)
the petition for dissolution of marriage; (2) the response to the petition; (3)
the decree of dissolution; (4) admitted exhibits including a Disclaimer Deed
signed by Mother renouncing any interest in the home and acknowledging
the house as Father’s sole and separate property; (5) Mother’s motion to
alter or amend; (6) Father’s response to the motion to alter or amend; and
(7) the judgment denying Mother’s motion to alter or amend. Nothing in
the record shows the superior court erred in awarding the home to Father
as his sole and separate property.

¶8 Mother does not argue the superior court erred when
granting equal parenting time but requests that parenting time be modified
due to changed circumstances. The superior court retains jurisdiction to
“modify an order granting or denying parenting time rights whenever the
modification would serve the best interest of the child.” A.R.S. § 25-411(J).
Therefore, any request for modification of parenting time should be filed
with the superior court.

¶9 Similarly, Mother does not argue the superior court erred
when awarding child support and shared responsibility for uninsured
medical costs but requests these payment obligations be enforced. The
superior court retains jurisdiction to enforce these payments and any
requests for enforcement should be filed with the superior court. See A.R.S.
§ 25-502(A) (“The superior court has original jurisdiction in proceedings

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Decision of the Court

brought by . . . a person having physical custody of a child. . . to establish,
enforce or modify the duties of support . . . .”).

CONCLUSION

¶10 We affirm.

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

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