Ghosoph v. Kottmann ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DONNA TIMOFEY GHOSOPH, Petitioner/Appellee,
v.
ROBERT KOTTMANN, Respondent/Appellant.
No. 1 CA-CV 14-0356 FC
FILED 6-2-2015
Appeal from the Superior Court in Maricopa County
No. FC2011-006782
The Honorable James T. Blomo, Judge
AFFIRMED
COUNSEL
Lorona Mead, PLC, Phoenix
By Jess A. Lorona
Counsel for Petitioner/Appellee
Davis Faas Blase, PLLC, Scottsdale
By Greg R. Davis, Cheryl M. Faas
Counsel for Respondent/Appellant
GHOSOPH v. KOTTMANN
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.
J O N E S, Judge:
¶1 Robert Kottman (Husband) appeals from the trial court’s
order denying his motion for new trial/motion to vacate a judgment
denying his motion to enforce a property settlement agreement (“PSA”)
entered into with Donna Timofey Ghosoph (Wife). For the reasons stated
below, we affirm the order denying relief.
FACTS1 AND PROCEDURAL HISTORY
¶2 In December 2012, in the course of their dissolution
proceedings, the parties entered into the PSA, agreeing Wife would be
awarded the marital residence. The PSA provided that: “If Wife is late on
a payment or misses a payment by more than 30 days, Husband at his
option may take over payments and assume ownership of the property as
his sole and separate property.”
¶3 In June 2013, Husband filed a motion to enforce the PSA,
alleging Wife failed to make the February and May 2013 mortgage
payments within thirty days of their due date. Husband alleged he paid
both mortgage payments, and, pursuant to the PSA, sought to assume
ownership of the marital home. Wife disputed Husband’s allegations and
argued equitable principles prevented strict adherence to the PSA. After an
evidentiary hearing in October 2013, the trial court concluded Husband
failed to meet his burden and denied his motion to enforce the PSA.
¶4 Husband filed a motion for new trial/motion to vacate the
judgment on the basis that newly discovered evidence indicated Wife
offered fraudulent evidence at the evidentiary hearing. See Ariz. R. Fam.
L.P. 83(A)(4) and 85(C)(1)(b). Husband’s new evidence was a letter from
the mortgage company suggesting a fax submitted by Wife, stating the May
2013 payment was not late, was fraudulent. In response, Wife argued the
1 We view the facts in the light most favorable to upholding the trial
court’s ruling. In re Marriage of Yuro, 192 Ariz. 568, 570, ¶ 3 (App. 1998).
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evidence was not newly discovered. She attached evidence that Husband
indicated, prior to the evidentiary hearing, he would call an employee from
the mortgage company to testify regarding the authenticity of the faxed
letter. Wife asserted that, because Husband did not call this witness, voice
his concern that the document was falsified, or otherwise object to
admission of the fax, he had waived any ability to argue its legitimacy as a
grounds for new trial.
¶5 The trial court denied Husband’s motion for new
trial/motion to vacate without comment, and Husband filed a timely notice
of appeal. We have jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1), -2101(A)(2) and -(A)(5)(a).2 See M & M
Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141 (App.
1990) (holding an order denying a motion to set aside a judgment is
appealable as a “special order made after final judgment”) (citations
omitted).
DISCUSSION
I. Motion for New Trial
¶6 We review the denial of a motion for new trial for an abuse of
discretion.3 Boatman v. Samaritan Health Servs., Inc., 168 Ariz. 207, 212 (App.
1990). A motion for new trial based upon newly discovered evidence
should be granted:
only if it appears that (1) the newly discovered evidence could
not have been discovered before the granting of judgment
despite the exercise of due diligence, (2) the evidence would
probably change the result of the litigation, and (3) the newly
discovered evidence was in existence at the time of the
judgment.
2 Absent material changes from the relevant date, we cite a statute’s
current version.
3 Husband also argues within his opening brief that the trial court
erred in failing to enforce the PSA. Husband did not reference the
underlying order denying his motion to enforce in his notice of appeal;
therefore, this appeal “does not extend to a review of whether the trial court
was substantively correct in entering the judgment from which relief was
sought.” Hirsch v. Nat’l Van Lines, 136 Ariz. 304, 311 (1983) (citations
omitted).
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Id. (citing Wendling v. Sw. Sav. & Loan Ass’n, 143 Ariz. 599, 602 (App. 1984)).
¶7 The newly discovered evidence asserted in support of
Husband’s motion for new trial was a letter from the mortgage company
stating that it did not send a fax regarding the timeliness of Wife’s mortgage
payments to her. Although the letter Husband attached to his motion was
dated after the evidentiary hearing, Husband was clearly aware of the
alleged fraudulent nature of the fax prior to the hearing. Indeed, Husband
advised Wife prior to the hearing that he intended to call “Pam” from the
mortgage company for the express purpose of testifying there was no
record of the fax. Husband also advised the trial court of this intent at the
hearing.
¶8 Although Husband did not call “Pam” as a witness or
otherwise examine Wife on the issue, on the day of the evidentiary hearing,
Husband had already questioned the veracity of Wife’s fax, apparently
possessed information from the mortgage company that it had not
generated the fax, and had arranged for an employee of the mortgage
company to testify in support of his position. Husband has failed to
establish his evidence is “newly discovered” that could not, with due
diligence, have been presented at the evidentiary hearing. Id. (concluding
party failed to establish newly discovered evidence where “both witnesses
furnishing the allegedly newly discovered evidence was known” prior to
entry of judgment) (citing Ashton v. Sierrita Mining & Ranching, 21 Ariz.
App. 303, 305 (1974), and 11 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2859 (1973)); see also Wendling, 143 Ariz. at 602 (“If
[newly discovered evidence] was in the possession of the party before the
judgment was rendered, . . . it is not newly discovered . . . and does not
entitle the party to relief.”) (citing Roberts v. Morgensen Motors, 135 Ariz. 162,
166 (App. 1982)). Therefore, the trial court did not abuse its discretion in
denying Husband’s motion for new trial.
II. Motion to Vacate Judgment
¶9 Husband next argues Wife committed misconduct justifying
relief from the judgment under Arizona Rule of Family Law Procedure
85(C)(1)(c),4 because she did not disclose the fax until the afternoon before
4 Husband argues for the first time on appeal that Wife’s alleged
misconduct also provided grounds for relief under Arizona Rule of Family
Law Procedure 83(A)(2). While we do not address issues raised for the first
time on appeal, Medlin v. Medlin, 194 Ariz. 306, 308, ¶ 6 (App. 1999) (“An
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trial in an attempt, according to Husband, to conceal the fraudulent nature
of the fax. We review the denial of a motion to vacate a judgment under
Rule 85(C) for an abuse of discretion. Duckstein v. Wolf, 230 Ariz. 227, 231,
¶ 8 (App. 2012).
¶10 Here, Husband’s attorney sent an email to Wife’s attorney
prior to the evidentiary hearing indicating Husband was not only aware of
the fact that the mortgage company asserted it had no record of sending the
fax to Wife, but also had prepared for and intended to offer testimony to
that effect at the hearing. However, Husband did not raise either the
untimely disclosure or the alleged fraud at the hearing. Because Husband
failed to raise these issues with the trial court, they are waived,5 and the
trial court did not abuse its discretion in denying Husband’s motion to
vacate the judgment. See Ritchie, 221 Ariz. at 303, ¶ 51 (“Generally,
counsel’s failure to object to the argument at trial waives the issue on
appeal.”) (citing Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 451 (1982), and
Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 304-05 n.2, ¶¶ 16, 18 (App.
1999)).
CONCLUSION
¶11 We affirm the order denying Husband’s motion for new
trial/motion to vacate the judgment.
¶12 Wife requests her attorneys’ fees on appeal pursuant to A.R.S.
§§ 12-341.01 and -349. Husband also argues he is entitled to an award of
fees, but fails to cite any authority to support his claim. In our discretion,
issue raised for the first time after trial is deemed to have been waived.”)
(citing Conant v. Whitney, 190 Ariz. 290, 293 (App. 1997)), Husband is not
precluded from seeking review of the grounds for relief under Rule
85(C)(1)(c).
5 We acknowledge “[w]aiver does not apply when it appears ‘that the
improper conduct . . . actually influenced the verdict.’” Ritchie v. Krasner,
221 Ariz. 288, 303, ¶ 51 (App. 2009) (quoting Anderson Aviation Sales Co., Inc.
v. Perez, 19 Ariz. App. 422, 429 (1973)). However, we defer to the trial
court’s conclusion, implicit in its denial of Husband’s motion for new
trial/motion to vacate the judgment, that the alleged misconduct did not
influence the judgment. Id. at ¶¶ 51-52 (noting trial judge is in the best
position to determine whether the misconduct materially influenced the
decision) (citing Leavy v. Parsell, 188 Ariz. 69, 72 (1997), and Anderson
Aviation, 19 Ariz. App. at 429).
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we decline both requests. Wife, as the prevailing party, is entitled to recover
her costs on appeal upon compliance with ARCAP 21(b).
:ama
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