Berns v. Berns

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RACHELLE BERNS, Plaintiff/Appellant,

v.

SPENCER BERNS, Defendant/Appellee.

No. 1 CA-CV 25-0261
FILED 12-24-2025

Appeal from the Superior Court in Maricopa County
No. CV2024-090334
The Honorable Timothy J. Ryan, Judge Retired

AFFIRMED IN PART, REVERSED IN PART

COUNSEL

Keith R. Lalliss, Attorney at Law, Mesa
By Keith R. Lalliss
Counsel for Plaintiff/Appellant

Ellsworth Family Law, PC, Mesa
By F. Taylor Larson
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge David D. Weinzweig delivered the decision of the Court,
in which Presiding Judge Jennifer M. Perkins and Judge Cynthia J. Bailey
joined.

W E I N Z W E I G, Vice Chief Judge:

¶1 Rachelle Berns (“Wife”) appeals the superior court’s dismissal
of her complaint against Spencer Berns (“Husband”), along with the order
she pay sanctions. We affirm the dismissal but reverse the sanctions.

FACTS AND PROCEDURAL BACKGROUND

¶2 On appeal from a Rule 12(b) dismissal, we assume the truth
of all well-pled facts and draw all fair inferences. Swift Transp. Co. of Ariz.
v. Ariz. Dep’t of Revenue, 249 Ariz. 382, 383, ¶ 3 (App. 2020).

¶3 The parties were married for nearly ten years. Neither had
counsel when they divorced. A document preparer drafted the dissolution
decree, which the superior court entered in February 2023.

¶4 Six months later, Wife retained an attorney and asked the
superior court to reopen the decree and divide the rest of the community
property under Rule 85. See Ariz. R. Fam. Law P. 85. Wife claimed that
several assets and debts were not included in the dissolution decree. The
court denied her petition. She did not appeal.

¶5 Four months later, Wife filed a new civil complaint raising the
same issues. Husband moved to dismiss that complaint for lack of subject
matter jurisdiction and failure to state a claim. See Ariz. R. Civ. P. 12(b)(1),
(6). He argued the complaint was a horizontal appeal and barred by issue
preclusion. The court agreed and dismissed the case, ruling that Wife
should have appealed the family court’s denial of her Rule 85 petition.

¶6 Husband then moved for sanctions under A.R.S. § 12-349,
which the superior court granted, ordering Wife pay $10,150 in attorney
fees and $313.77 in costs to Husband. Wife timely appealed both rulings.
We have jurisdiction. See A.R.S. §§ 12-120.21(A)(1), -2101(A)(1).

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Decision of the Court

DISCUSSION

¶7 Wife argues the superior court erred in dismissing her
complaint and in sanctioning her. We address each issue in turn.

¶8 We review de novo a dismissal for lack of subject matter
jurisdiction. Church of Isaiah 58 Project of Ariz., Inc. v. La Paz County, 233
Ariz. 460, 462, ¶ 9 (App. 2013). The superior court grants that motion only
if the plaintiff cannot get relief under any view of the facts. Swift Transp.,
249 Ariz. at 385, ¶ 14. We assume the truth of all well-pled, material facts
but do not accept as true legal conclusions, unreasonable inferences or
unsupported deductions. Id.

I. The Dismissal Was Proper.

¶9 Arizona law empowers a spouse to pursue one of two
avenues to divide community property omitted from a dissolution decree—
either file a post-decree motion in family court or a separate civil suit.
Dressler v. Morrison, 212 Ariz. 279, 281–82, ¶¶ 10, 12–14 (2006) (“We granted
review to determine whether a party may bring a separate civil action for
relief, rather than file a Rule 60(c) motion, when the party alleges ownership
in real property not disposed of in a dissolution decree.”) (emphasis added)
(abrogated on other grounds); see also Duckstein v. Wolf, 230 Ariz. 227, 231,
¶ 8 (App. 2012) (holding that because Ariz. R. Civ. P. 60(c) is substantially
the same as the language in Ariz. R. Fam. Law P. 85(b), case law interpreting
the former will apply to the latter).

¶10 Wife relies on Dressler for the argument that she may pursue
both avenues. But Dressler describes a choice between two discrete
options—filing a Rule 60(c) motion in the dissolution case or filing a
separate civil suit. Id. at 281–82, ¶¶ 9–14. In Dressler, the spouse chose to
file the separate civil suit and the supreme court said that was appropriate.
Id. at 279–80, ¶ 1. Here, by contrast, Wife chose the Rule 85 path, lost that
motion and never appealed. Now she wants a second chance to file the
separate civil suit. But Dressler does not authorize a do-over. See generally
id.

¶11 Wife seeks to assert a horizontal appeal—a request to “a
second trial judge to reconsider the decision of the first trial judge in the
same matter, even though no new circumstances have arisen in the interim
and no other reason justifies reconsideration.” Powell–Cerkoney v. TCR–
Mont. Ranch Joint Venture, II, 176 Ariz. 275, 278–79 (App. 1993). Arizona law
discourages horizontal appeals because they waste judicial resources and
encourage judge shopping. Id. at 279. Her remedy was to appeal the family

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Decision of the Court

court’s denial of her Rule 85 motion—not to start over in civil court with
the same claim. Donlann v. Macgurn, 203 Ariz. 380, 386, ¶ 29 (App. 2002)
(“[A] judge should not reconsider a motion already decided by another
superior court judge unless new circumstances are demonstrated.”). To
hold otherwise would let any litigant who loses in one department simply
refile in another, undermining finality and burdening the courts.

II. The Sanctions Were Improper.

¶12 We review an order of sanctions for abuse of discretion. Villa
De Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, 96, ¶ 12 (App. 2011).

¶13 Courts may sanction parties who bring claims without
substantial justification—that is, claims that are both groundless and not
made in good faith. A.R.S. § 12-349(A)(1), (F). “Groundless” means
“frivolous.” Ariz. Republican Party v. Richer, 257 Ariz. 237, 243, ¶ 15 (2024).
A claim is groundless “if the proponent can present no rational argument
based on the evidence or law in support of that claim.” Id. But a claim is
not groundless when it is “fairly debatable” or a “long shot.” Id. Even a
claim that lacks merit may have enough rational support to avoid being
groundless. Id.

¶14 A claim is made in bad faith only when it is both objectively
groundless and when “the party or attorney knows or should know that it
is groundless, or is indifferent to its groundlessness, but pursues it
anyway.” Id. at 248–49, ¶¶ 38, 40. The standard is objective: what would
professional, competent attorneys do in like circumstances? Id. at 249, ¶ 40.

¶15 We conclude that Wife’s claim was “fairly debatable.”
Arizona statutes do not expressly bar a separate civil suit after the family
court denies relief under Rule 85, and Dressler recognized that a spouse may
file a separate civil suit to add community property to the dissolution
decree. Dressler, 212 Ariz. at 279–80, ¶ 1. Dressler did not expressly reach
whether a spouse may file a separate civil suit after the denial of her Rule
85 motion in the dissolution proceeding. See id. at 283, ¶ 17 n.7. The
argument was not frivolous, even if a long shot, so we reverse the sanction
award.

CONCLUSION

¶16 The superior court correctly dismissed Wife’s complaint but
erred in imposing sanctions on her. We affirm the dismissal and reverse
the sanctions.

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Decision of the Court

¶17 Both parties request fees and costs on appeal. Wife seeks
them under A.R.S. § 25-324. Husband seeks them under A.R.S. §§ 12-349
and -341. We deny both requests for attorney fees in our discretion. As the
prevailing party, however, Husband may recover costs on appeal upon
compliance with ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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