White v. Barreras

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARCUS WHITE, Petitioner/Appellee,

v.

REBECCA BARRERAS, Respondent/Appellant.

No. 1 CA-CV 24-0052 FC
FILED 02-04-2025

Appeal from the Superior Court in Maricopa County
No. FN2021-091808
The Honorable Lisa Stelly Wahlin, Judge

VACATED AND REMANDED

COUNSEL

Cervone Law P.C., Phoenix
By Kristina L. Cervone
Counsel for Petitioner/Appellee

Walneck Law, Scottsdale
By Edward J. Walneck
Counsel for Respondent/Appellant

WHITE v. BARRERAS
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Vice Chief Judge Randall M. Howe
joined.

P E R K I N S, Judge:

¶1 Rebecca Barreras (“Wife”) appeals from (1) a decree of
dissolution, (2) a minute entry denying her motion to alter or amend the
decree, and (3) a post-decree minute entry amending the decree. For the
following reasons, we vacate the decree’s division of community property
and remand for proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 Wife married Marcus White (“Husband”) in 2009. In 2019,
Husband and a business partner formed a construction business.

¶3 Husband petitioned for divorce in May 2021. By September,
the parties reached a settlement agreement on disposition of personal
property. The superior court placed the case on the inactive calendar while
the parties conducted discovery and disclosure. For nearly two years, the
parties stipulated to keep the case on the inactive calendar.

¶4 In May 2023, the court set the case for a three-hour trial in
November 2023. Each party would have half of the available time. The court
also advised the parties that any motions for additional time must: (a) be
filed at least 30 days before trial, (b) show good cause, (c) include a list of
witnesses, (d) provide the estimated time allocated to each witness, and (e)
describe the subject matter of each witness’s expected testimony.

¶5 A month before trial, Wife filed discovery motions in which
she claimed to have discovered two witnesses—former employees of
Husband’s construction business—with information that Husband was
“hiding his income received from the business.” Wife requested fees to pay
for a forensic accountant to investigate Husband’s business. She also
requested sanctions against Husband under Arizona Rule of Family Law
Procedure 65 for failure to disclose information about his business. The
court denied Wife’s discovery motions for failure to “specify the discovery
that is alleged to be outstanding.”

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WHITE v. BARRERAS
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¶6 Wife then moved to enlarge or continue the trial, arguing she
needed more trial time to examine her newly-discovered witnesses.
Contrary to the court’s requirements, Wife’s motion did not include a
witness list or an estimate of time and subject matter of her witnesses’
expected testimony. The court summarily denied her motion.

¶7 In his pretrial statement, Husband asserted he made no
income from his construction business because the business could no longer
secure contracts after the only licensed contractor on staff resigned. At trial,
Wife used all her time cross-examining Husband and examining her
witnesses to prove otherwise. Wife moved for additional time, arguing that
she had to spend all her time eliciting witness testimony to make up for
Husband’s refusal to disclose financial documents from the business. When
the court asked why Wife did not file a motion to compel such disclosure,
Wife’s counsel answered “we ran out of money.” The court denied Wife’s
motion for more time, noting that Wife ran out of time because she chose to
gather evidence at trial instead of during discovery.

¶8 The court issued a decree of dissolution a week after trial. The
decree said nothing about Husband’s construction business. A month later,
Wife moved to alter or amend the decree under Arizona Rule of Family
Law Procedure 83, asking for another hearing so she could have more time
to examine witnesses. Husband also filed a Rule 83 motion asking the court
to divide four community debts that were not addressed in the decree.

¶9 Wife filed a notice of appeal of the decree four days after she
filed her Rule 83 motion. The court denied Wife’s Rule 83 motion. The court
did not explicitly rule on Husband’s Rule 83 motion; instead, in February
2024, the court issued a minute entry on its own motion (the “post-decree
minute entry”) dividing three community debts that it failed to address in
the decree. The post-decree minute entry also did not mention Husband’s
construction business. Wife filed a second notice of appeal of the denial of
her Rule 83 motion and the court’s February minute entry.

¶10 Wife timely appealed, and we have jurisdiction. A.R.S. § 12-
2101(A)(1).

DISCUSSION

¶11 Wife contends that the superior court (1) violated her due
process rights by denying her motions for more trial time, (2) should not
have denied her Rule 83 motion, (3) lacked jurisdiction to issue the post-
decree minute entry, and (4) erred by not dividing an undisputed
community asset in the decree.

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I. Due Process

¶12 Wife asserts that the superior court’s refusal to expand the
trial infringed on her due process rights by denying her an adequate
opportunity to be heard. She argues she timely requested more trial time to
address newfound evidence, and that the court’s denial of her requests
forced her to “jettison evidence as to some issues in order to present others.”

¶13 “Whether the superior court afforded [Wife] due process
presents a question of law we review de novo.” Backstrand v. Backstrand, 250
Ariz. 339, 346, ¶ 28 (App. 2020).

¶14 Due process requires that litigants be heard at a meaningful
time and in a meaningful manner, id. at ¶ 29, but it does not require that
litigants be given as much time as they request. “[T]he due-process right to
an adequate opportunity to be heard must be balanced against the superior
court’s broad discretion to impose reasonable time limits on proceedings
and control the management of its docket.” Id. A superior court need not
“indulge inefficient use of time by parties or their counsel,” and “whether
additional time is necessary remains committed to the court’s discretion.”
Id. “Appellate courts do not substitute their judgment for that of the
[superior] court in the day-to-day management of cases.” Findlay v. Lewis, 172 Ariz. 343, 346 (1992).

¶15 For nearly two years, Wife stipulated to keep this case on the
inactive docket. During that time, Wife did not depose any witnesses,
subpoena Husband’s business for records, or otherwise engage in
discovery. And while she claims Husband withheld disclosure, she never
moved to compel disclosure. She did nothing until a month before trial,
when she moved to sanction Husband for disclosure violations and to
enlarge or continue the trial. But Wife’s pre-trial motions did not specify
what disclosure Husband allegedly withheld and did not follow the
superior court’s clear instructions for requesting more trial time. At trial,
Wife spent all her time trying to gather evidence through witness testimony
to make up for her failure to conduct discovery. The superior court’s refusal
to indulge Wife’s inefficient use of time was not a due process violation. We
affirm the superior court’s denials of Wife’s motions for more time.

II. Denial of Wife’s Rule 83 Motion

¶16 We review an order denying a Rule 83 motion to alter or
amend for an abuse of discretion. Stock v. Stock, 250 Ariz. 352, 354, ¶ 5 (App.
2020).

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¶17 Wife argues the superior court should have granted her Rule
83 motion because it raised the same due process arguments she raises on
appeal. We have already concluded the superior court did not violate
Wife’s due process rights by refusing to indulge her inefficient use of time.
We thus reject this argument.

¶18 Wife also argues the superior court should have granted her
Rule 83 motion because she had “new evidence that should have allowed
the superior court to reopen evidence.”

¶19 Rule 83(a)(1)(E) allows the court to alter or amend its rulings
based on “newly discovered material evidence.” Ariz. R. Fam. Law P.
83(a)(1)(E). The rule is permissive, not mandatory.

¶20 And Rule 83(a)(1)(E) only permits alteration or amendment of
a ruling for evidence that “could not have been discovered and produced
at trial with reasonable diligence.” Id. Wife claims that the night before trial,
a witness sent her thousands of invoices from Husband’s construction
business. She argues she had no idea the witness had the invoices, but does
not assert she was unaware that the invoices existed. And Wife’s summary
of the invoices, which she attached as an exhibit to her Rule 83 motion,
shows that the invoices were all from 2020 through 2022. Even if Wife was
unaware that one of her witnesses had the invoices, she points to nothing
in the record indicating she could not have discovered them by
subpoenaing Husband’s construction business or deposing the business’s
employees in the two years that elapsed between petition and trial.

¶21 Thus, Wife has not shown that her newly-discovered
evidence “could not have been discovered and produced at the trial with
reasonable diligence.” See id. Her failure to meaningfully engage in
discovery until the night before trial was not an exercise of reasonable
diligence. See Nardini-Smith v. Jolly, 1 CA-CV 20-0682 FC, 2021 WL 4163496,
at *3, ¶ 26 (Ariz. App. Sept. 14, 2021) (mem. decision) (“Mother had four
months to prepare for trial . . . Mother could have discovered and produced
at the trial with reasonable diligence the evidence of expenses she presented
in her [Rule 83] motion.” (cleaned up)).

¶22 The superior court did not abuse its discretion in denying
Wife’s Rule 83 motion.

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III. The Superior Court’s Jurisdiction

¶23 Wife asserts the superior court lacked jurisdiction to issue the
post-decree minute entry because she had already appealed the decree,
thus divesting the superior court of jurisdiction over the case. Not so.

¶24 “Whether a court has jurisdiction to adjudicate a claim is a
question of law we review de novo.” Alulddin v. Alfartousi, 255 Ariz. 436,
440, ¶ 8 (App. 2023).

¶25 Wife filed a Rule 83 motion to alter or amend the decree four
days before she appealed the decree. Her Rule 83 motion asked the court to
hold another hearing so she could introduce more testimony and exhibits.
A motion requesting a new hearing is a “substantive matter[] requiring the
discretion of the decision-maker.” Smith v. Ariz. Citizens Clean Elections
Comm’n, 212 Ariz. 407, 415, ¶ 38 (2006). And a notice of appeal filed while a
substantive motion is pending in the superior court is premature and
ineffective. See id.; see also In re Marriage of Johnson & Gravino, 231 Ariz. 228,
231, ¶ 8 (App. 2012) (“[A] notice of appeal is premature if there are any
unresolved claims when the notice is filed[,] and all premature notices of
appeal are ineffective and a nullity.”). Because Wife’s substantive Rule 83
motion was pending when she filed her notice of appeal, the notice of
appeal was premature and ineffective. The superior court thus had
jurisdiction to issue the post-decree minute entry.

IV. Division of the Community Business

¶26 “We review the [superior] court’s division of property for an
abuse of discretion.” In re Marriage of Pownall, 197 Ariz. 577, 581, ¶ 15 (App.
2000).

¶27 Wife argues the superior court erred by making no ruling on
Husband’s construction business because (1) the business was an
undisputed community asset, and (2) Wife introduced sufficient evidence
of its existence and operations.

¶28 Husband asserts the decree addressed the construction
business by awarding him all his sole and separate property. He contends
that award includes the business because his interest in the business is his
sole and separate property, and Wife failed to present evidence of her claim
to it.

¶29 Husband’s tautology fails for three reasons. First, Husband’s
interest in the business is not his sole and separate property—it is

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community property because he acquired it during the marriage. See A.R.S.
§ 25-211(A). Second, Husband, not Wife, bore the burden to show by clear
and convincing evidence that the business was not community property.
See Cockrill v. Cockrill, 124 Ariz. 50, 52 (1979). Third, Husband misrepresents
the language in the decree. The decree stated that Husband “is awarded as
sole and separate property . . . all vehicles, household furniture, furnishings
and appliances, and other related personalty in his[] possession.” That
language merely clarified that personal property already in Husband’s
possession was his sole and separate property. It did not transform a
community asset into sole and separate property.

¶30 A superior court must divide community property equitably.
A.R.S. § 25-318(A). “[T]he general principle [is] that all marital joint
property should be divided substantially equally unless sound reason
exists to divide the property otherwise.” Toth v. Toth, 190 Ariz. 218, 221
(1997). “[A] substantially unequal division of property . . . represent[s] a
rare exception.” In re Marriage of Flower, 223 Ariz. 531, 539, ¶ 35 (App. 2010).

¶31 Whether or not the superior court intended to award the
business to Husband, the decree’s failure to address the business allowed
Husband to keep his entire interest, thus resulting in an unequal division
of that marital asset. That unequal division contradicts the superior court’s
express finding in the decree that “an equal division of community
property is appropriate to achieve equity.” Given the superior court’s
finding that no sound reason existed to depart from the general rule of
equal division, we conclude that the decree’s silence on the community
business was error. See Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16 (App. 2009)
(abuse of discretion is “discretion . . . exercised on untenable grounds”).

¶32 We thus vacate the decree’s division of community property
and remand to the superior court to equitably divide Husband’s interest in
the construction business. We leave to the superior court’s discretion how
best to implement the division. See, e.g., Meister v. Meister, 252 Ariz. 391, 400,
¶ 31 (App. 2021) (determine value of business interest and order equitable
payment to wife); Dole v. Blair in & for Cnty. of Maricopa, 248 Ariz. 629, 633,
¶ 16 (App. 2020) (sale and division of proceeds); Barnett v. Jedynak, 219 Ariz.
550, 553–54, ¶¶ 14–21 (App. 2009) (equitable lien). The superior court may
consider that Husband conceded at oral argument that Wife is entitled to
fifty percent of his interest in the business. Husband also acknowledged
that Wife’s entitlement would “potentially” extend to Husband’s future
earnings from the business. However the superior court decides to divide
the business, it “must provide enough analysis, however labeled, to allow
an appellate court to fulfill its obligation to decide whether the . . . property

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distribution[] withstand[s] the test of equity and fairness.” Meister, 252 Ariz.
at 400, ¶ 30.

ATTORNEY FEES AND COSTS ON APPEAL

¶33 Both parties seek attorney fees and costs on appeal under
ARCAP 21 and A.R.S. § 25-324. In our discretion, and after considering the
parties’ financial resources and positions taken on appeal, we decline to
award attorney fees to either party.

CONCLUSION

¶34 We vacate the decree’s division of community property and
remand for proceedings consistent with this decision. We affirm the rest of
the decree and the post-decree minute entry except to the extent the
superior court may find necessary to achieve an equitable division of the
construction business. Although our due process analysis concluded that
Wife is not entitled to more trial time, the superior court retains discretion
to hold whatever additional proceedings necessary to equitably divide the
construction business.

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

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