Avila v. Avila Medrano ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
CAROL JAN AVILA, Petitioner/Appellee,
v.
ALEJANDRO AVILA MEDRANO, Respondent/Appellant.
No. 1 CA-CV 13-0593
FILED 5-8-2014
Appeal from the Superior Court in Mohave County
No. S8015DO201300318
The Honorable Rick A. Williams, Judge
REVERSED, DECREE VACATED AND REMANDED
COUNSEL
Alejandro Avila Medrano, Florence
Respondent/Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
AVILA v. AVILA MEDRANO
Decision of the Court
W I N T H R O P, Judge:
¶1 Alejandro Avila Medrano (“Husband”) appeals the trial
court’s entry of default for failure to file a timely response to a petition for
dissolution of a non-covenant marriage with children. Husband contends
the trial court erred by finding that he did not timely file his response to
the petition for divorce. For the following reasons, we reverse the entry of
default, vacate the decree of dissolution, and remand the case to the trial
court for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 On April 18, 2013, Carol Jan Avila (“Wife”) filed a petition
for dissolution of a non-covenant marriage with children. Wife sought
sole legal decision making for the couple’s two minor children and
ownership of the community property.
¶3 Husband, who is incarcerated, accepted service of process
on April 26. In May, Wife applied for entry of default. Although
Husband had mailed a response to Wife’s petition on May 3, it was not
filed until June 4. Husband thereafter filed a motion to deny Wife’s
application for default. In a July 10 order, the trial court determined
Husband did not file a timely response to Wife’s petition for dissolution,
ordered entry of default against Husband, and ordered the matter set for a
default hearing. Following the default hearing, the July 29 decree of
dissolution granted Wife sole legal decision making for the children and
denied Husband parenting time; the decree also awarded Wife ownership
of the community’s real property and motor vehicle.
¶4 Husband filed an untimely notice of appeal accompanied by
a motion to file a delayed appeal, which the trial court granted. We have
appellate jurisdiction pursuant to the Arizona Constitution, Article 6,
Section 9 and Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1)
(West 2014). 1
1 We cite the current Westlaw version of the applicable statutes and
rules because no revisions material to this decision have since occurred.
2
AVILA v. AVILA MEDRANO
Decision of the Court
DISCUSSION
¶5 Husband appeals the validity of the default judgment
pursuant to Arizona Rule of Family Law Procedure 44. 2 See Kline v. Kline,
221 Ariz. 564, ¶¶ 11-12, 568, 212 P.3d 902, 906 (App. 2009). In denying
Husband’s motion to deny Wife’s application for default, it appears the
court considered Husband’s pleading as a motion to set aside the entry of
default. We review a trial court’s ruling on such a motion for abuse of
discretion. Cf. Champlin v. Bank of Am., N.A., 231 Ariz. 265, 267, 293 P.3d
541, 543 (App. 2013).
¶6 Husband contends he submitted a timely response and any
delay in filing that response was an error of processing by the Clerk’s
Office for the Mohave County Superior Court. On this record and in the
absence of a brief from Wife, we agree.
¶7 Wife filed a petition for dissolution on April 18, 2013, and
Husband accepted service of process on April 26. Under Arizona Rule of
Family Law Procedure 32(A), Husband had until May 16 to file a
response. The record indicates Husband mailed his response and an
application for waiver of fees and costs on May 3 and the Clerk’s Office
received the envelope containing the documents on May 6. 3 On that same
date, Husband’s application for waiver of fees and costs was filed;
however, pending court approval or denial of that application, Husband’s
2 Husband also argues the trial court erred by denying his request
for appointment of a guardian ad litem for the children; however, because
Husband does not provide any legal authorities to develop this argument,
we will not consider it on appeal. See ARCAP 13(a)(6) (requiring an
opening brief to set forth “[a]n argument which shall contain the
contentions of the appellant with respect to the issues presented, and the
reasons therefor, with citations to the authorities, statutes and parts of the
record relied on.”).
Husband also contends the trial court did not credit him with
completion of court ordered parent education classes. This issue is moot,
however, because the court credited Husband with completion of these
classes after the filing of the opening brief.
3 In the record on appeal, the envelope is included with the answer,
and the envelope and a return receipt presumably signed by a member of
the Clerk’s Office contain the same parcel number from the shipper.
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AVILA v. AVILA MEDRANO
Decision of the Court
response to Wife’s petition was apparently held in abeyance. On May 8,
Husband’s application for waiver of fees and costs was approved;
however, for some unexplained reason, neither that order nor Husband’s
response to the petition was filed until June 4, nearly a month later.
¶8 With no response by Husband on file, Wife submitted an
application for entry of default pursuant to Rule 44(A) on May 17; as a
result, pursuant to Rule 44(A)(2) and (3), Husband’s default was
automatically entered. Following the entry of default, Husband had a
further ten-day period in which to cure that default by filing his response.
That ten-day grace period expired on June 3. See Ariz. R. Fam. L. Pro.
44(A)(4). As noted above, however, Husband had already timely
submitted his response to the petition in May. On June 14, apparently in
response to receiving Wife’s application for default, Husband filed a
motion to deny the application for entry of default.
¶9 In an order dated July 5 (and filed July 10), the trial court
addressed Husband’s pending motion to deny entry of default. In that
ruling, the trial court found Husband did not file a timely response to
Wife’s petition for dissolution, that the automatic entry of default was
therefore conclusive, and confirmed the entry of default against Husband.
¶10 We assume the delay in timely filing the order granting the
requested waiver of fees and costs and in filing Husband’s timely
response to Wife’s petition was an administrative oversight. The
subsequent entry of default was erroneous, and we therefore direct the
trial court to set the default aside, accept Husband’s response as timely
filed and proceed with this as a contested matter. The decree previously
entered by the court is vacated.
CONCLUSION
¶11 We direct that the entry of default against Husband be set
aside, and the Decree of Dissolution of Non-Covenant Marriage with
Children be vacated, with the matter remanded to the trial court for
further proceedings consistent with this decision.
:MJT
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