Harris v. Smith-Harris ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
PERRY HARRIS, Petitioner/Appellee,
v.
ANITA ELAINE SMITH-HARRIS, Respondent/Appellant.
No. 1 CA-CV 20-0275 FC
FILED 6-24-2021
Appeal from the Superior Court in Maricopa County
No. FN2015-003563
The Honorable David W. Garbarino, Judge Pro Tempore
AFFIRMED
COUNSEL
Anita E. Smith-Harris, Phoenix
Respondent/Appellant
HARRIS v. SMITH-HARRIS
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Brian Y. Furuya joined.
¶1 In this post-decree appeal, Anita Smith-Harris claims that a
June 2019 judgment for $1,980 in attorneys’ fees violated an automatic
bankruptcy stay and was void. But even assuming an automatic stay could
preclude such a judgment, because the superior court validated that
judgment after the automatic stay expired, and because Smith-Harris
acknowledged that the stay was not in place when garnishment orders
issued to satisfy the judgment, those orders are affirmed.
FACTS AND PROCEDURAL HISTORY1
¶2 In January 2017, the court entered the decree of dissolution
ending the marriage of Smith-Harris and Perry Harris. In May 2018,
Michael Rizzo was appointed to sell some of the community’s real property.
The court ordered Smith-Harris to reimburse Rizzo for the cost of moving
items from the property to a storage unit. The court then rejected Smith-
Harris’ claims that Rizzo acted improperly and granted Rizzo’s request for
attorneys’ fees. The specific timing of certain events that followed resolves
the argument Smith-Harris makes on appeal.
¶3 On May 29, 2019, after Rizzo applied for $1,980 in fees, Smith-
Harris filed a Chapter 13 bankruptcy petition.2 On May 31, 2019, the
superior court signed a judgment awarding Rizzo $1,980 in fees. Later on
May 31, 2019, Smith-Harris filed a notice of her May 29, 2019 bankruptcy
petition. On June 3, 2019, the superior court clerk entered the $1,980
judgment.
1 No answering brief was filed. This court could treat that silence as a
confession of error but declines to do so and rules on the merits. Gibbons v.
Indus. Comm’n, 197 Ariz. 108, 111 ¶ 8 (App. 1999).
2 Smith-Harris strategically filed for bankruptcy at various times during this
proceeding, with the record suggesting the May 29, 2019 petition may have
been her fifth bankruptcy petition.
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HARRIS v. SMITH-HARRIS
Decision of the Court
¶4 The bankruptcy court then dismissed Smith-Harris’ May 29,
2019 bankruptcy petition. Although Smith-Harris sought to reinstate her
bankruptcy case, on August 6, 2019, the bankruptcy court denied that
request, finding there was no automatic stay in place from July 8, 2019 to
early August 2019.
¶5 Meanwhile, Smith-Harris moved to vacate the fee judgment.
On July 9, 2019, the superior court denied that motion, thereby validating
the fee judgment at a time when no bankruptcy stay was in place. Smith-
Harris filed a notice of appeal from the fee judgment (CV 19-0571 FC), but
that appeal was dismissed when she failed to comply with procedural
requirements.
¶6 Rizzo sought writs of garnishment against Smith-Harris’
employer and a bank to satisfy the fee judgment. After some delay caused
by Smith-Harris’ unsuccessful appeal in CV 19-0571 FC, the superior court
overruled Smith-Harris’ garnishment-based objections and issued an order
of earnings garnishment directed to her employer. In early March 2020,
Smith-Harris moved to quash the garnishment order, claiming the fee
judgment was void given her May 29, 2019 bankruptcy petition. The court
denied that motion, noting Smith-Harris “admits in the Motion [to quash]
that the [automatic bankruptcy] stay is not in effect, and was not in effect at
the time of the garnishment.” By the end of March 2020, the garnishment
judgment was satisfied, and the court issued an order discharging the
garnishee.
¶7 This court has jurisdiction over Smith-Harris’ timely appeal
from the denial of her motion to quash the garnishment order pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1)(2021).3
DISCUSSION
¶8 Smith-Harris argues the superior court lacked jurisdiction to
enter the fee judgment, given the pendency of her May 29, 2019 bankruptcy
petition and the automatic stay, making that judgment void and also
voiding the garnishment proceedings that followed. This court reviews a
challenge to the superior court’s jurisdiction de novo. Samaritan Health Sys.
v. Ariz. Health Care Cost Containment Sys. Admin., 198 Ariz. 533, 536 ¶ 13
(App. 2000).
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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HARRIS v. SMITH-HARRIS
Decision of the Court
¶9 Smith-Harris’ brief on appeal does not comply with this
court’s procedural requirements, meaning she has waived her argument on
appeal. See, e.g., MacMillan v. Schwartz, 226 Ariz. 584, 591 ¶ 33 (App. 2011)
(“Merely mentioning an argument in an appellate opening brief is
insufficient.”); Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143 (App.
1987); ARCAP 13(a). Moreover, Smith-Harris’ arguments do not establish a
basis for relief.
¶10 “[A] judgment entered in violation of the automatic stay
provisions of the Bankruptcy Code is void as to the debtor in bankruptcy.”
Great Sw. Fire Ins. Co. v. Triple “I” Ins. Servs., Inc., 151 Ariz. 283, 286 (1986).
Presuming an automatic stay was in place that applied to the June 3, 2019
judgment, without more, such a stay would have precluded entry of that
judgment. But here, there is more.
¶11 On July 9, 2019, at a time when no bankruptcy stay was in
place, the superior court denied Smith-Harris’ motion to vacate the fee
judgment, thereby validating the fee judgment. That action, taken at a time
when no stay was in place, negates any argument that the requirement
Smith-Harris pay Rizzo $1,980 in fees was void. Moreover, in March 2020,
when Smith-Harris challenged the writ of garnishment, she conceded that
no stay was in place at that time. Because (1) the requirement that Smith-
Harris pay Rizzo $1,980 was validated when no bankruptcy stay was in
place and (2) the writ of garnishment was issued when no bankruptcy stay
was in place, Smith-Harris has failed to show those orders were void. Nor
has she shown any other error.
CONCLUSION
¶12 Because Smith-Harris has shown no error, the garnishment
orders are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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