Simonelic v. Simonelic

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALICIA KELLIE SIMONELIC, Petitioner/Appellee,

v.

CHRISTOPHER JOSEPH SIMONELIC, Respondent/Appellant.

No. 1 CA-CV 26-0080 FC
FILED 11-10-2026

Appeal from the Superior Court in Maricopa County
No. FC2021-051694
The Honorable Nicole Brickner, Judge Pro Tempore
The Honorable Colleen E. O’Donnell-Smith, Judge

VACATED IN PART AND REMANDED

COUNSEL

Alicia Kellie Simonelic, Phoenix
Petitioner/Appellee

Christopher Joseph Simonelic, Phoenix
Respondent/Appellant

SIMONELIC v. SIMONELIC
Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Andrew M. Jacobs and Chief Judge Randall M. Howe joined.

K I L E Y, Judge:

¶1 The marriage of Christopher Joseph Simonelic (“Husband”)
and Alicia Kellie Simonelic (“Wife”) was dissolved by a decree entered by
default (the “Default Decree”) in 2022. Two years later, Husband moved to
set aside the Default Decree, raising three arguments. As we explain below,
the superior court correctly rejected the first two. The court erred, however,
by rejecting as untimely Husband’s third argument, i.e., that the Default
Decree should be set aside because he was not given notice of the default
hearing. Because (1) the Default Decree is void because Husband was not
given notice of the default hearing and (2) a void decree may be challenged
at any time, we vacate the denial of Husband’s motion to set aside the
Default Decree and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Wife were married in 2005 and have two
children in common.

¶3 Wife petitioned for dissolution in June 2021. In her petition,
she did not request spousal maintenance, and asked that child support be
awarded in accordance with the Arizona Child Support Guidelines (the
“Guidelines”). Wife’s petition listed an address on West Medtronic Way in
Tempe as Husband’s “current mailing address.”

¶4 Upon the filing of Wife’s petition, the superior court issued an
order requiring both parents to attend the parent information program
(“PIP”) required by A.R.S. § 25-352(A). The record does not reflect when (or
if) the petition or the PIP order were served on Husband. The record shows,
however, that Husband complied with the PIP order by completing a co-
parenting class and filing the certificate of completion with the court on
September 7, 2021.

¶5 In late September 2021, Wife filed an amended dissolution
petition in which she asked, for the first time, for an award of spousal
maintenance of a fixed amount ($1,800 per month) but unspecified

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duration. Wife also asked, as she had in her original petition, that child
support be awarded in accordance with the Guidelines. Alleging that
Husband “just relocated” to Texas for employment reasons, Wife listed no
mailing address for Husband in the amended petition, instead stating that
“his current mailing address is unknown.”

¶6 On September 24, 2021, Wife’s counsel emailed the amended
petition and related documents to Husband at his Gmail account along with
an acceptance-of-service form, which she asked him to sign and return. The
record does not show that he did.1

¶7 On October 11, 2021, Wife’s counsel emailed Husband to ask
that he “[p]lease provide an address so that service can be completed.”
Husband replied the same day by emailing a picture of a United States
Postal Service change-of-address form that listed his “new address” as a
“general delivery” postal address in Tempe. The following morning, Wife’s
counsel wrote back, “It is my understanding that you are now in Dallas, so
I am unsure as to why you provided a Tempe address.” Husband replied
by providing the address of the hotel in Texas where he was currently
staying.

¶8 On October 12, 2021, Wife moved for an order allowing
alternative service, alleging that Husband had not cooperated with her
efforts to effect service. She explained that Husband “was contacted . . . via
email . . . requesting an address for personal service,” and that he
“provided an address in Tempe, Arizona, not Dallas, Texas where he is
currently living.” She therefore requested leave to serve Husband by
email. The superior court granted Wife’s motion, authorizing her to serve
Husband by email to his Gmail account. Wife later filed an affidavit
confirming that she had served Husband by email.

¶9 On November 30, 2021, Wife applied for entry of default. The
application listed, as Husband’s “last known mailing address,” the address
on West Medtronic Way in Tempe that Wife had listed in her original

1 Husband replied to counsel’s September 24 email within a week or so,

saying that he “expect[ed]” to sign and return the acceptance of service
“shortly.” Wife later asserted that Husband never followed through on his
promise. Husband, by contrast, claimed that he did, in fact, sign and return
form to Wife’s counsel. The record thus does not make clear whether
Husband did or did not return the signed form to Wife’s counsel, and the
superior court made no findings on this issue.

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petition. The application also listed, as another address for Husband, a post
office box in Tempe.

¶10 Although Husband had provided two current mailing
addresses to Wife’s counsel by email on October 11, 2021, Wife listed
neither address on the application for default, nor did she mail the
application to Husband at either. Wife did, however, email the application
and the supporting documentation to the same Gmail account she had used
to effect service of the amended petition.

¶11 Husband evidently sent an email (which is not in the record)
to the assigned judicial officer’s judicial assistant (the “JA”) with questions
about the procedure for filing a response to the amended petition. The JA
replied on December 15, 2021, by providing a link to a document from the
court’s law library resource center along with the comment: “Here is
information on the court process. If you read through this page you will see
step 3 shows how to file a response[.]” On December 22, Husband sent an
email to the JA reading, “Attached is the my [sic] initial response, which
will be properly filed.” Although Husband’s December 22 email evidently
included an attachment, the attachment is not part of the record. The court
file contains no response to the amended petition.

¶12 The request for child support and spousal maintenance in
Wife’s amended petition required the court to hold a default hearing before
entering judgment. See Ariz. R. Fam. L.P. 44.1(d). The record indicates that
the superior court held the default hearing on January 24, 2022, at which
Wife testified. The record does not indicate that Husband was ever given
notice of the hearing. After the hearing, the court issued the Default Decree
that, among other things, required Husband to pay Wife spousal
maintenance of $1,800 per month for five years and child support of $1,376
per month.

¶13 Husband began making at least partial support payments in
July 2022.

¶14 In late 2023, Wife petitioned to find Husband in contempt for
failure to comply with his financial obligations under the Default Decree.
Husband, in turn, petitioned to modify the spousal maintenance and child
support provisions of the Default Decree, alleging, inter alia, that “a
significant and continuing change in financial circumstances” warranted
reducing the amount of his child support payments and terminating his
spousal maintenance obligation altogether.

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¶15 The court set an evidentiary hearing. Before the hearing, the
parties resolved the issues Wife raised in her contempt petition, which they
incorporated into a signed agreement and filed with the court under
Arizona Rule of Family Law Procedure (“Rule”) 69.

¶16 After several continuances, the evidentiary hearing was held
on November 3, 2025.

¶17 Shortly before the hearing, Husband began filing a series of
motions raising challenges to various orders entered at different stages of
the proceedings. Of relevance to this appeal, Husband filed a motion under
Rule 85 (the “First Rule 85 Motion”) in which he asked that the default be
set aside because the application for default was “not served” on him “at
his current, known address.” Moreover, he alleged, Wife’s counsel
committed “fraud” by “deliberately” mailing the application for default to
two Tempe addresses that she knew were not valid.

¶18 In response, Wife argued that Husband “plainly had notice”
of the application for default because she emailed it to him via his Gmail
account. She further asserted that Husband “waived any claim” that the
Default Decree was void through his “litigation conduct,” including by
making payments toward his support obligations and “entering into a Rule
69 Agreement” with Wife to resolve her contempt petition.

¶19 Before Husband’s First Rule 85 motion was fully briefed, the
court proceeded with the evidentiary hearing on Husband’s modification
petition, after which it reduced the amount of Husband’s monthly support
payments.

¶20 The court later issued an order denying Husband’s First Rule
85 motion. In its ruling, the court found, inter alia, that Father provided the
“general delivery” postal address in Tempe to Wife’s counsel before
counsel filed the application for default. Wife’s counsel did not send the
application for default to that address. The court also found, however, that
Husband had notice of the application for default because Wife “emailed
[Husband] a copy” of it “at an email address that he was communicating
with counsel through.” Further, the court noted that Husband did not seek
to set aside the default until October 2025, and held that his motion was
untimely under Rule 85.

¶21 Shortly before the court denied Husband’s First Rule 85
Motion, Husband filed a second motion under Rule 85 (the “Second Rule
85 Motion”), seeking to set aside the Default Decree because he “did not
receive notice of the Default Hearing and so did not appear. He further

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asserted that Wife presented “materially false” testimony about her
financial condition at the hearing to support her requested spousal
maintenance award.

¶22 In response, Wife did not contest Husband’s allegation that
the court held a default hearing in January 2022 of which Husband did not
receive notice. Instead, she asserted simply that Husband’s Second Rule 85
Motion was untimely, and asked that it be denied on that basis.

¶23 Before the court ruled on Husband’s Second Rule 85 Motion,
Husband filed a notice of appeal from the denial of the First Rule 85 Motion.

¶24 Noting that the Default Decree lacked the “finality”
determination required by Rule 78, this Court stayed the appeal and
remanded the matter so the superior court could address the unresolved
Second Rule 85 Motion and enter “a signed judgment with full Rule 78(c)
language.” On remand, the superior court denied Father’s Second Rule 85
Motion as untimely and entered final judgment on all claims and issues
under Rule 78(c).

¶25 Husband filed a timely amended notice of appeal. We have
jurisdiction under A.R.S. § 12-2101(A)(2).

DISCUSSION

¶26 Husband challenges the denial of his requests for relief,
asserting, first, that the superior court never acquired personal jurisdiction
over him due to lack of personal service. Noting that Rule 41(l)(1) permits
a court to authorize service by alternative means if the moving party shows
that service by traditional means “is impracticable,” Husband asserts that
the court erred in authorizing Wife to serve him by email because she failed
to make the requisite showing of “impracticability.”

¶27 “Proper service of process is essential for the court to have
jurisdiction over the defendant.” Ruffino v. Lokosky, 245 Ariz. 165, 168, ¶ 10
(App. 2018) (citation omitted). A defendant may, however, waive his
objection to improper service. See, e.g., Nat’l Homes Corp. v. Totem Mobile
Home Sales, Inc., 140 Ariz. 434, 437 (App. 1984). “The validity of a waiver of
service is a question of law, which we review de novo.” Matter of 2000
Peterbilt Tractor & Trailer, WA LIC: 19601RP, VIN: 1XPSD69X2YD479117,
240 Ariz. 450, 452, ¶ 6 (App. 2016); see also McMahan v. Grasshopper Trans,
Inc., 262 Ariz. 556, ___, ¶ 10 (2026) (recognizing that whether a party
“waived its objection concerning service of process” is a “legal question[]”
reviewed de novo (citations omitted)).

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SIMONELIC v. SIMONELIC
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¶28 A party waives a jurisdictional objection based on improper
service by making a general appearance in the action. See McMahan, 262
Ariz. at ___, ¶ 13 (“A general appearance is a waiver of notice and if a party
appears in person or by attorney he submits himself to the jurisdiction of
the court.” (citation omitted)); Tarr v. Superior Court in and for Pima County,
142 Ariz. 349, 351 (1984) (“[A]ny action on the part of the defendant, except
to object to the jurisdiction over his person which recognizes the case as in
court, will constitute a general appearance.” (citation omitted)).

¶29 Here, Husband made a general appearance by participating
in the superior court proceedings before the entry of default without
objecting on grounds of improper service. He participated in the case both
by complying with the PIP order in September 2021 and by emailing the JA
about filing a response to the amended petition. See supra ¶¶ 4, 11; see also
BYS Inc. v. Smoudi, 228 Ariz. 573, 578, ¶¶ 19, 21 (App. 2012) (noting that the
term “[a]ppearance” “generally applies to any action taken by the
defendant in which he recognizes that the case is in court and submits
himself to the court’s jurisdiction,” and holding that defendants
“appear[ed]” by sending a letter to the court asking for an extension of time
to answer the complaint, thereby “demonstrat[ing] their knowledge that
the case was in court and their submission to the court’s jurisdiction”).
Husband’s appearance in the case waived any objection he may have had
to the method of service. Shah v. Vakharwala, 244 Ariz. 201, 203, ¶ 8 (App.
2018) (holding that following service of order of protection, defendant
“waived any objection to the exercise of personal jurisdiction” by
“request[ing] a hearing . . . without raising any objections as to the court’s
jurisdiction,” thereby “entering a general appearance.”). Husband is
entitled to no relief, therefore, on his challenge to the method of service
authorized by the court, and we reject his contention that the court never
acquired personal jurisdiction over him.

¶30 Husband next challenges the superior court’s denial of his
First Rule 85 Motion, asserting that the default never became effective
because Wife did not mail the application for default to his last known
address as required by applicable court rules.

¶31 The superior court may set aside the entry of default for good
cause. Ariz. R. Fam. L.P. 44(a)(5). The court’s ruling on a motion to set aside
a default is reviewed for abuse of discretion. Gen’l Elec. Capital Corp. v.
Osterkamp, 172 Ariz. 185, 188 (App. 1992).

¶32 Under Rule 44, a party seeking default must file a written
application that, among other things, “provides the last known mailing

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address for the party claimed to be in default, or states that the party
requesting the default does not know the whereabouts of the party in
default.” Ariz. R. Fam. L.P. 44(a)(2)(C). The party requesting default must
mail “a copy of the application for default to the party in default” if “the
party requesting default knows the whereabouts of the party in default.”
Ariz. R. Fam. L.P. 44(a)(3)(A).

¶33 On October 11, 2021, Husband provided Wife’s counsel with
two mailing addresses: a “general delivery” address in Tempe and a hotel
address in Texas. Wife did not list either address in her application for
default, nor did she mail a copy of the application to Father at either
address. Instead, the application for default listed two other addresses in
Tempe even though Wife knew (as shown in her counsel’s October 11
email) that Husband did not live in Tempe anymore. Because neither of the
Tempe addresses listed on the application for default were Husband’s “last
known mailing address,” the application did not satisfy Rule 44’s
requirement of mailing to the defaulting party’s last known mailing
address. Ariz. R. Fam. L.P. 44(a)(3)(A).

¶34 Although Wife’s application for default did not comply with
Rule 44, that fact alone does not require that the default be set aside. The
purpose of service rules is to provide the notice and opportunity to be heard
that due process requires. See Marks v. LaBerge, 146 Ariz. 12, 15 (App. 1985)
(“[T]he purpose of process is to give the party actual notice of the
proceedings against him and that he is answerable to the claim of the
plaintiff.”); see also McClintock v. Serv-Us Bakers, 103 Ariz. 72, 74 (1968)
(“[N]o judgment by default may be entered against a defendant who has
appeared—as by timely filing an answer—unless he is given notice of the
application for judgment.” (citation omitted)). Once a defendant has been
properly served with process, orders entered upon subsequent pleadings
will be given effect even absent strict compliance with procedural service
rules so long as the defendant received actual notice of the plaintiff’s
requested relief. See Kline v. Kline, 221 Ariz. 564, 570, ¶ 21 (App. 2009)
(“[S]trict technical compliance with rules governing service may be excused
when the court has already acquired jurisdiction over [the defendant] and
that party receive[d] actual, timely notice of an amended pleading and its
contents.”); see also Best v. Hull, Holliday & Holliday PLC, 2020 WL 5523202
at *1, ¶ 8 (Ariz. App. Sept. 15, 2020) (mem. dec.) (plaintiff moved to strike
defendant’s filing based on defendant’s alleged failure to serve a copy of
the filing by mail as required by applicable court rules; affirming trial
court’s denial of plaintiff’s motion to strike, this Court observed that
“[b]ecause [plaintiff] received timely actual notice of the motion, he was not
prejudiced by any technical defect in service”). Wife’s failure to strictly

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comply with the requirements of Rule 44 would not prevent the default
from becoming effective, therefore, if Husband timely received notice of the
application for default. See Ariz. R. Fam. L.P. (“A default will not become
effective if the party in default responds within 10 days after the application
for default is filed.”); see also Kline, 221 Ariz. at 571, ¶ 23 (“[Rule 44] was
intended to serve as a shield for those prejudiced by a lack of notice, not as
a sword for those who, with full information, elect to be defaulted.”).

¶35 The court found that Wife’s counsel emailed the application
for default to Husband at his current email address. The record supports
this contention, and Husband does not dispute it on appeal. We therefore
affirm the court’s denial of Husband’s First Rule 85 Motion. The entry of
default following Husband’s failure to respond to the amended petition
thus remains effective. See BYS Inc., 228 Ariz. at 579, ¶ 24 (affirming entry
of default against parties who had appeared but not filed a responsive
pleading).

¶36 Finally, Husband argues the superior court erred in denying
his Second Rule 85 Motion, asserting that the Default Decree is void because
he was not given notice of the default hearing.

¶37 We review a ruling on a motion to set aside a default
judgment for an abuse of discretion. Ruffino, 245 Ariz. at 168, ¶ 9. But the
court lacks discretion to deny a motion to set aside a judgment if it is void.
Id. at 168-69, ¶ 10 (“When a judgment is void, the court must vacate it.”).

¶38 Rule 44.2(b) provides in pertinent part that “[i]f the defaulted
party has appeared in the matter, that party . . . must be served . . . with
written notice of the hearing not later than 3 days before the hearing.” Ariz.
R. Fam. L.P. 44.2(b); see also BYS Inc., 228 Ariz. at 578, ¶ 20 (“Once a
defendant has appeared, a default judgment can be obtained only after a
hearing by the court upon three days’ written notice.”). If the requisite
three-days’ notice is not given, “the resulting judgment [is] void.” BYS Inc.,
228 Ariz. at 578, ¶ 20.

¶39 The record indicates that the court held a default hearing on
January 24, 2022. Nothing in the record indicates that Husband was given
notice of this hearing, and Wife does not contend otherwise. Because
Husband did not receive the requisite three-day notice of the default
hearing, the Default Decree is void. BYS Inc., 228 Ariz. at 579, ¶ 24 (vacating
default decree entered against parties who had appeared but were not
given notice of default hearing).

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¶40 The superior court denied Husband’s Second Rule 85 Motion
as untimely because it was not filed within six months of entry of the
Default Decree. But because a void judgment may be challenged at any
time, Ruffino, 245 Ariz. at 169, ¶ 10, Husband’s motion to set aside the
Default Decree could not properly be denied on that basis. See also Master
Financial, Inc. v. Woodburn, 208 Ariz. 70, 74, ¶ 19 (App. 2004), as amended
(June 7, 2004) (“[A] party seeking relief from a void judgment need not
show that their failure to file a timely answer was excusable, that they acted
promptly in seeking relief from the default judgment, or that they had a
meritorious defense.” (citation omitted)). We therefore reverse the denial of
Husband’s Second Rule 85 Motion, vacate the Default Decree, and remand
for further proceedings.

CONCLUSION

¶41 Husband’s participation in the case constituted an
“appearance” that waived his objection to the method of service. And the
superior court properly denied Husband’s motion to set aside the entry of
default. But because Husband never received notice of the January 2022
default hearing, the Default Decree was void, and the superior court erred
by denying Husband’s motion to set it aside. We vacate the Default Decree
and remand for further proceedings. Husband is entitled to his costs on
appeal. See A.R.S. § 12-342.

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

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