Aldana v. Aldana ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
AVELINA E. ALDANA, Petitioner/Appellee,
v.
RICARDO ALDANA, Respondent/Appellant.
No. 1 CA-CV 20-0507 FC
FILED 4-13-2021
Appeal from the Superior Court in Maricopa County
No. FN2019-000589
The Honorable Lori Ash, Judge Pro Tempore
AFFIRMED
APPEARANCES
Ricardo Aldana, Phoenix
Respondent/Appellant
ALDANA v. ALDANA
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Jennifer B. Campbell joined.
M O R S E, Judge:
¶1 Ricardo Aldana ("Husband") appeals from the community
property allocation in the decree dissolving his marriage to Avelina E.
Aldana ("Wife"). For the reasons stated below, we affirm the decree.
FACTS AND PROCEDURAL BACKGROUND
¶2 The parties were married in 1986. Wife filed a petition for
dissolution in 2019. Both parties asked to be awarded the marital residence
subject to an offset for the other spouse's share in the residence. Husband
also asserted that Wife kept $170,000 from the sale of a community
residence in New York and asked the court to award him half of those
funds. Wife claimed the parties sold the New York residence in 2012, used
the bulk of the proceeds to pay off their Arizona marital residence, and
agreed to give the rest of the money to their children. The parties also
disputed the extent of Husband's gambling. Wife argued that Husband
spent over $70,000 gambling between 2014 and 2019, and much more over
the course of their 34-year marriage, which constituted waste of community
property. Husband denied gambling excessively.
¶3 After trial in July 2020, during which both parties and counsel
appeared remotely, the superior court ordered the marital residence sold
and the proceeds divided equally. The court also found Husband's
excessive gambling cost the community over $70,000 and awarded Wife
$35,342.93 from Husband's share of the proceeds from the sale of the marital
residence. The court denied Husband's claim for proceeds from the sale of
the New York residence, finding the money was used for community
expenses and as gifts to the parties' children with Husband's consent.
Husband timely appealed.1 We have jurisdiction under A.R.S. § 12-
2101(A)(1).
1 Wife did not file an answering brief. In the exercise of our discretion,
we decline to treat her failure to do so as a confession of reversible error.
See Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 4 n.3 (App. 2014).
2
ALDANA v. ALDANA
Decision of the Court
DISCUSSION
¶4 Husband argues the superior court erred in (1) finding his
gambling constituted waste of community property, (2) finding he was not
entitled to half of the proceeds from the sale of the New York residence, and
(3) ordering the sale of the marital residence. He also argues that Wife and
his adult son provided false testimony at trial.
¶5 We review the superior court's allocation of community
property for an abuse of discretion. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz.
521, 523, ¶ 4 (App. 2007). "An abuse of discretion exists when the record,
viewed in the light most favorable to upholding the trial court's decision, is
devoid of competent evidence to support the decision." State ex rel. Dep't of
Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 14 (App. 2003).
¶6 Although the trial was digitally recorded, Husband failed to
provide a trial transcript for appellate review. As the appellant, Husband
was responsible for ensuring that the record on appeal contains all
transcripts necessary for this Court to consider the issues raised on appeal.
See ARCAP 11(c) (appellant is responsible for ordering all relevant
transcripts). In the absence of a transcript, "we assume the missing portions
of the record would support the trial court's findings and conclusions."
Burton, 205 Ariz. at 30, ¶ 16.
¶7 Husband failed to show that the property allocation was
unfair or lacked evidentiary support. The record on appeal includes several
bank statements showing many ATM withdrawals at casinos during the
marriage. These exhibits support the court's ruling that Husband spent
significant funds gambling during the marriage. Therefore, we cannot say
the court abused its discretion in finding Husband owed Wife $35,342.93
for wasting community funds. See id.; see also A.R.S. § 25-318(C) (courts may
consider a spouse's excessive or abnormal expenditures or the concealment
or fraudulent disposition of community assets when apportioning
community property).
¶8 Similarly, because we lack a transcript of the trial
proceedings, we cannot say the court abused its discretion by ordering the
sale of the marital residence and denying Husband's claim to half of the
2012 sale proceeds. See Burton, 205 Ariz. at 30, ¶ 16.
3
ALDANA v. ALDANA
Decision of the Court
CONCLUSION
¶9 We affirm the decree.
AMY M. WOOD • Clerk of the Court
FILED: AA
4