Tutora v. Dominguez ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
NICHOLAS TUTORA, Petitioner/Appellee,
v.
ANN DOMINGUEZ, Respondent/Appellant.
No. 1 CA-CV 14-0669 FC
FILED 12-17-15
Appeal from the Superior Court in Maricopa County
No. FN2014-050399
The Honorable Gerald Porter, Judge (Retired)
AFFIRMED
COUNSEL
Nicholas Tutora, Scottsdale
Petitioner/Appellee
Ann Dominguez, Scottsdale
Respondent/Appellant
TUTORA v. DOMINGUEZ
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
W I N T H R O P, Judge:
¶1 Ann Dominguez (“Wife”) appeals the family court’s
dissolution decree, arguing the court erred in apportioning the assets and
debts between her and Nicholas Tutora (“Husband”).1 For the reasons set
forth below, we affirm.
FACTS AND PROCEDURAL BACKGROUND2
¶2 The limited record provided this court indicates as follows:3
The parties married on January 11, 2013. Wife moved in with Husband,
1 The parties were self-represented throughout the proceedings before
the family court and continue to be self-represented on appeal.
2 Wife’s opening brief fails to cite to the record and contains factual
assertions for which there is no record support. An appellant’s brief must
contain a statement of facts with appropriate references to the record.
ARCAP 13(a)(5). If not, this court may disregard it. See Flood Control Dist.
of Maricopa Cty. v. Conlin, 148 Ariz. 66, 68, 712 P.2d 979, 981 (App. 1985).
Also, bald assertions without proper citation are generally insufficient to
preserve issues for review. See Joel Erik Thompson, Ltd. v. Holder, 192 Ariz.
348, 351, ¶ 20, 965 P.2d 82, 85 (App. 1998); AMERCO v. Shoen, 184 Ariz. 150,
154 n.4, 907 P.2d 536, 540 n.4 (App. 1995); Prairie State Bank v. I.R.S., 155
Ariz. 219, 221 n.1A, 745 P.2d 966, 968 n.1A (App. 1987). Nonetheless, this
court previously denied Husband’s motion to dismiss the appeal, and
although Wife’s briefs are grossly deficient, Husband’s answering brief is
no better. See ARCAP 13(b). We therefore decline to summarily reject
Wife’s appeal. See Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285
(1966); Lederman v. Phelps Dodge Corp., 19 Ariz. App. 107, 108, 505 P.2d 275,
276 (1973).
3 This court previously denied Wife’s motion to add documents to the
record, including a letter dated January 20, 2015, and a print-out concerning
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Decision of the Court
who had two children from a previous marriage. Wife had no previous
children, and the couple have no children in common. During their brief
marriage, the couple purchased on credit a 2011 Hyundai Sonata
automobile (“the Hyundai”), driven primarily by Wife, and a 2008 Chevy
Cobalt (“the Chevy”), driven by Husband.
¶3 The parties’ relationships with one another and the children
were often strained, volatile, and dysfunctional, as were Husband’s
relationships with his ex-wife and others. On February 18, 2014, Husband
sought and received an order of protection after Wife allegedly “stabbed”
Husband in the leg with a pen, ostensibly because Husband was involved
in an extra-marital affair.4 According to Husband, police then removed
Wife from the couple’s rental home, and Wife temporarily relocated to an
extended-stay hotel.
¶4 On March 5, 2014, after slightly more than one year of
marriage, Husband filed a petition for dissolution of the marriage. In the
petition, Husband listed no assets, separate or community, but listed a
community debt of $30,000 on the Hyundai, and listed as separate debts
student loans of $80,000 (Husband) and $30,000 (Wife). Husband also
requested that he and his children “have sole use of the marital rental
property,” contending it was “not feasible” for them to move because the
children attended school in the district where the property was located, and
Wife could not afford the rental payments on her own.
¶5 In her response to the petition, Wife indicated neither party
had any separate property or debts. She listed as community property
various household assets, including furniture, which she cumulatively
valued at $4,190, and the Hyundai, which she valued at $12,000. As
community debts, Wife listed the following: “ER Medical bills” ($2,571.00);
“ASU Medical bills” ($80.00); “Mover (Blair)” ($150.00); “Storage”
($240.00); “Extended Stay costs” ($508.89); “Vehicle registration (Hyundai)”
the value of a vehicle. Our review is limited to the record before the family
court, and we will not consider evidence that was not part of the record
before that court at the time it entered the decree. See GM Dev. Corp. v. Cmty.
Am. Mortg. Corp., 165 Ariz. 1, 4-5, 795 P.2d 827, 830-31 (App. 1990).
4 Wife later purportedly sought an order of protection against
Husband, claiming he had physically, verbally, and emotionally abused
her. Wife also asserted that Husband—who is a pharmacist, public speaker,
and “life coach”—had abused marijuana and prescription medications.
Husband has, however, been issued a medical marijuana card.
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TUTORA v. DOMINGUEZ
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($215.46); “Loans on Universal Life Ins.” ($2,527.41); “Title loan” ($456.00);
“ASU Tuition (withdrawal fall semester)” ($5,000.00); “2011 Hyundai
overpayment (because [Husband] would not negotiate price at purchase)”
($5,000.00); and “2011 Hyundai note (until note is refinanced in [Wife’s]
name[)]” ($17,000.00). Wife sought possession of all community property
listed, and indicated Husband should bear full responsibility for all
community debts, except the Hyundai note, which she proposed be paid by
both Husband ($300/month) and Wife ($123/month). She further
requested the court order that Husband pay her a “settlement sum of
$20,000.00,” in part because Husband had “kicked [her] out of the marital
home,” and order that she “have the exclusive use of the marital residence.”
¶6 On May 21, 2014, Wife moved for temporary orders, seeking
spousal maintenance, payment of her medical and dental insurance by
Husband, and an order that Husband pay $300 monthly to “Regional
Acceptance Corp.,” ostensibly as payment on the Hyundai note, which
Wife indicated had a current balance of $18,123.16. In her accompanying
affidavit of financial information, Wife listed her monthly gross income at
$1,829.43.
¶7 At the June 27, 2014 evidentiary hearing regarding Wife’s
motion for temporary orders, the family court ordered that Husband pay
Wife temporary monthly spousal maintenance in the amount of $600 and
“immediately withdraw[] the maximum amount permitted from his IRA
account and provide 100% of the proceeds to Wife.” The court also
confirmed that the issues at trial concerned allocation of the parties’
numerous debts, the Hyundai, the Chevy, Husband’s 401(k) account,
Husband’s claim for reimbursement of insurance money paid, Wife’s claim
for spousal maintenance, and the division of personal assets. Regarding
personal property, the court ordered each party to identify items of
community and sole and separate personal property at issue, create lists,
and exchange the lists before trial. The court stated its planned method for
dividing the community property and also warned:
All other property not identified shall remain with the
party in possession. The items identified as not existing or as
sole and separate property will be divided by the Court after
hearing. Failure to timely provide lists will waive any claim
to property or objection to same. The lists shall be exchanged
by e-mail.
¶8 On July 24, 2014, the family court held an evidentiary hearing
on the petition for dissolution. After discussion, the court approved the
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parties’ agreement awarding Husband the Chevy and making him
responsible for the debt associated with that vehicle, with no equalization.5
See Ariz. R. Fam. Law P. 69(A). Both Husband and Wife then testified, and
the court received into evidence several exhibits from each party. Wife
presented evidence that the trade-in value on the Hyundai was
approximately $10,000.
¶9 On August 11, 2014, the family court issued the dissolution
decree. In the decree, the court denied Wife’s request for continuing
spousal maintenance; ordered the parties to sell the Hyundai, pay off the
associated debt, and “split equally” any resulting deficiency or equity;
ordered a valuation and subsequent division of Husband’s 401(k)
retirement fund; denied Husband’s request to divide a title loan debt he
had incurred from Speedy Cash; ordered Wife solely responsible for her
ASU student loan; ordered all debt associated with medical-related issues
during the marriage split equally, including Wife’s “Scottsdale Medical
debt,” for which neither party had provided any evidence or testimony;
ordered the parties equally responsible for a judgment of $5,700 entered
against both Husband and Wife for breaking a previous lease; ordered Wife
solely responsible for a judgment obtained against her for a lease she broke
before the parties’ marriage; ordered debt owed on Wife’s T-Mobile account
be treated as a community debt and paid from community assets; denied
Husband’s request for reimbursement of insurance money allegedly paid
on the Hyundai after termination of the marriage; and ordered that each
party retain any personal property then in his or her possession. Finally,
the court ordered each side to bear his or her own costs and any attorneys’
fees.
¶10 The family court denied Wife’s motion for reconsideration,
and we have jurisdiction over Wife’s timely appeal. See Ariz. Rev. Stat.
(“A.R.S.”) § 12-2101(A)(1) (Supp. 2015).
ANALYSIS
¶11 Wife contests the family court’s allocation of property and
debts, including numerous items of personal property, and denial of her
5 In his affidavit of financial information, Husband claimed he was
paying $416 per month for the Chevy.
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request for spousal maintenance.6 On this record, we find no abuse of the
family court’s discretion.
¶12 We review the family court’s apportionment of property and
debts for an abuse of discretion. Valento v. Valento, 225 Ariz. 477, 481, ¶ 11,
240 P.3d 1239, 1243 (App. 2010). Because neither party requested findings
of fact and conclusions of law under Rule 82(A) of the Arizona Rules of
Family Law Procedure, we presume the family court found every fact
necessary to support its judgment. See Neal v. Neal, 116 Ariz. 590, 592, 570
P.2d 758, 760 (1977). Absent clear error, we defer to the court’s factual
findings, including any valuation of assets. See Danielson v. Evans, 201 Ariz.
401, 406, ¶ 13, 36 P.3d 749, 754 (App. 2001); Lee v. Lee, 133 Ariz. 118, 122, 649
P.2d 997, 1001 (App. 1982). We also defer to the family court’s credibility
determinations where evidence conflicts. Gutierrez v. Gutierrez, 193 Ariz.
343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998); Ariz. R. Fam. Law P. 82(A).
¶13 A strong presumption exists that property acquired during
marriage is community property and debts incurred during marriage are
community obligations. See Cockrill v. Cockrill, 124 Ariz. 50, 52, 601 P.2d
1334, 1336 (1979); Hrudka v. Hrudka, 186 Ariz. 84, 91-92, 919 P.2d 179, 186-87
(App. 1995); see also A.R.S. § 25-211(A) (Supp. 2015) (providing that, with
certain exceptions, “[a]ll property acquired by either husband or wife
during the marriage is the community property of the husband and wife”).
A spouse seeking to establish the separate character of a debt or property
must overcome the presumption with clear and convincing evidence to the
contrary. See Cockrill, 124 Ariz. at 52, 601 P.2d at 1336; Hrudka, 186 Ariz. at
91-92, 919 P.2d at 186-87. We review de novo the family court’s
characterization of property as separate or community. In re Marriage of
Pownall, 197 Ariz. 577, 581, ¶ 15, 5 P.3d 911, 915 (App. 2000). At the same
time, we view “all evidence and reasonable conclusions therefrom in the
light most favorable to supporting” the family court’s decision regarding
6 An appellant’s argument must contain citations to relevant legal
authorities, supporting reasons for each contention, and appropriate
references to portions of the record on which the appellant relies. See
ARCAP 13(a)(7)(A)-(B). Wife’s brief fails to comply with ARCAP 13(a)(7),
and Husband’s brief is also noncompliant. See ARCAP 13(b)(1). The failure
to comply with ARCAP 13 can constitute waiver of the arguments made.
See Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62, 211 P.3d 1272, 1289 (App.
2009); see also Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161,
167, 920 P.2d 41, 47 (App. 1996) (“Issues not clearly raised and argued in a
party’s appellate brief are waived.” (citations omitted)). Nonetheless, we
decline to apply waiver on this basis.
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the nature of the property. Sommerfield v. Sommerfield, 121 Ariz. 575, 577,
592 P.2d 771, 773 (1979).
¶14 At the outset, we note that our review is limited by the lack of
a transcript, which would allow us to better evaluate the basis for Wife’s
assertions. Wife did not timely order and submit a transcript of the July 24,
2014 evidentiary hearing (or any other transcript, for that matter). Instead,
after Wife filed her reply brief, she filed a “motion,” in which she advised
this court that she had since ordered transcripts, and indicated she would
file a motion to submit the transcripts when completed. On May 13, 2015,
this court issued an order advising Wife in pertinent part as follows:
Arizona Rule of Civil Appellate Procedure 11(c)(2)
requires an appellant to order transcripts within 10 days after
filing a notice of appeal. This appeal is fully briefed and at
issue. Therefore, the court will deny any future motion to add
transcripts to this record.
¶15 As the appellant, Wife had the burden to timely provide this
court with a trial transcript necessary to the resolution of this appeal. See
ARCAP 11(b)(1) (“If the appellant intends to urge on appeal that a finding
or conclusion is unsupported by the evidence or is contrary to the evidence,
the appellant shall include in the record a certified transcript of all evidence
relevant to such finding or conclusion.”). In the absence of a transcript, we
assume the record supports the family court’s findings and conclusions. See
Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). We also
assume the family court considered all relevant information in the record.
See Aguirre v. Robert Forrest, P.A., 186 Ariz. 393, 397, 923 P.2d 859, 863 (App.
1996).
¶16 Given the limited record provided this court, we are unable
to fully address most of Wife’s arguments. Without a transcript, we cannot
determine whether Wife objected to the proceedings on the grounds she
raises on appeal, whether the family court improperly precluded or failed
to consider evidence, or whether the court committed any other
transgression alluded to by Wife. Moreover, given the non-specific and
conclusory arguments Wife presents on appeal, we have no basis for
disturbing the family court’s ruling. See Adams v. Valley Nat’l Bank of Ariz.,
139 Ariz. 340, 343, 678 P.2d 525, 528 (App. 1984); see also Gen. Elec. Capital
Corp. v. Osterkamp, 172 Ariz. 191, 193, 836 P.2d 404, 406 (App. 1992) (stating
that a judgment is presumed correct and the appellant bears the burden to
show otherwise).
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¶17 Wife devotes much of her opening brief to arguing the family
court erred when it ordered that each party retain any personal property in
his or her possession. In her brief, however, Wife concedes the property at
issue was community property. Further, before trial, the court ordered each
party to identify items of community and sole and separate personal
property at issue, create lists, and exchange the lists. The court warned the
parties that the failure to timely provide lists would waive any claim to
personal property held by the other party, and all property not identified
“shall remain with the party in possession.” However, neither party
heeded the court’s warning; accordingly, in the decree, the court explained
its order that each party retain personal property in his or her possession
by noting that “neither party provided any list that they had exchanged
concerning personal property.” Given both the parties’ failure to follow the
court’s orders and the lack of a transcript, we find no abuse of discretion.
See Baker, 183 Ariz. at 73, 900 P.2d at 767; see also Romero v. Sw. Ambulance &
Rural/Metro Corp., 211 Ariz. 200, 203, ¶ 4, 119 P.3d 467, 470 (App. 2005)
(holding that unsupported arguments without the relevant transcripts are
insufficient for this court to meaningfully review the trial court’s rulings or
overcome the presumption that those rulings are supported by the record).
¶18 We also find no abuse of discretion in the family court’s
decision to deny Wife’s request for continuing spousal maintenance. In
denying her request, the court noted that “Wife provided absolutely no
testimony concerning any of the factors in spousal maintenance” at trial,
and “no testimony or evidence concerning efforts she is making to become
self-sufficient.” The court further noted that, although Wife had previously
filed an affidavit of financial information, she provided no supporting
documentation, and the court had “no idea, based on Wife’s presentation,
where she is working and what she is earning.” The court also found that
Wife had “provided no evidence of her need.” Given these findings, and
the failure of the record to provide a basis to refute them, we find no abuse
of the court’s discretion.
¶19 To the extent Wife attributes any adverse rulings to judicial
partiality, we must presume the family court judge is free of prejudice and
bias. State v. Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768 (App. 2005).
To overcome this presumption, a party must prove “a hostile feeling or
spirit of ill-will, or undue friendship or favoritism, towards one of the
litigants.” State v. Cropper, 205 Ariz. 181, 185, ¶ 22, 68 P.3d 407, 411 (citation
omitted), supplemented by 206 Ariz. 153, 76 P.3d 424 (2003). In this case, Wife
has not rebutted the presumption of judicial impartiality. Although we lack
the transcript, the portions of the record available reflect no bias and
indicate the family court impartially considered the parties’ positions.
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¶20 Finally, we acknowledge and emphasize the family court has
discretion over the control and management of the trial. See Hales v.
Pittman, 118 Ariz. 305, 313, 576 P.2d 493, 501 (1978). “We will not interfere
in matters within the [family] court’s discretion unless we are persuaded
that the exercise of such discretion resulted in a miscarriage of justice or
deprived one of the litigants of a fair trial.” Christy A. v. Ariz. Dep’t of Econ.
Sec., 217 Ariz. 299, 308, ¶ 31, 173 P.3d 463, 472 (App. 2007) (citation omitted).
On this limited record, we find no evidence that the court abused its
discretion or denied Wife a fair trial.
CONCLUSION
¶21 We affirm the judgment of the family court and grant
Husband his taxable costs on appeal, contingent upon his compliance with
Rule 21, ARCAP. To the extent Wife argues Husband is not fully complying
with the family court’s orders, Wife may seek a remedy in that court.
:jt
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