McDonald v. McDonald

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
RUBY K. MCDONALD, Petitioner/Appellee,
v.
TIM D. MCDONALD, Respondent/Appellant.
No. 1 CA-CV 17-0073 FC
FILED 12-14-2017
Appeal from the Superior Court in Mohave County
No. L8015DO201507334
The Honorable Doug R. Camacho, Judge Pro Tempore
AFFIRMED
COUNSEL
Ruby K. McDonald, Lake Havasu City
Petitioner/Appellee
Tim D. McDonald, Portland, Oregon
Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
MCDONALD v. MCDONALD
Decision of the Court
W I N T H R O P, Presiding Judge:
¶1 Tim D. McDonald (“Husband”) appeals the family court’s
amended decree of dissolution and denial of Husband’s motion for new
trial, raising several issues, including challenges to the court’s denial of his
motion for a continuance and division of community assets. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 Husband and Ruby K. McDonald (“Wife”) married in 1995
and have one minor child (“the child”) in common. While married, the
parties owned a business known alternately as “Oregon Custom Marine,
Inc.” and “OCM Offshore Custom Marine, LLC,” which sold boats and
trailers, most on consignment. Husband operated the business, with Wife
assisting part-time.
¶3 Over time, Wife began to suspect that Husband was engaging
in fraudulent business activities and misappropriating funds, and in
September 2015, Wife filed a petition for legal separation.2 In part, Wife
alleged Husband had “committed financial misconduct during the
marriage and the majority of the personal debt as well as 100% of the
business debt should be ordered [Husband’s] responsibility to pay.”3 In
response, Husband requested Wife’s petition be converted to a petition for
dissolution. Husband then relocated to Oregon, where he had family and
1 We view the facts and reasonable inferences in the light most
favorable to affirming the family court. See Mitchell v. Mitchell, 152 Ariz.
317, 323 (1987); Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984).
2 Wife eventually learned the family business owed approximately
$2,400,000 to at least thirty-five purchasers or sellers involved in
consignment sales conducted by Husband. Wife also learned Husband had
been removing and hiding the parties’ marital assets.
3 Husband admitted the allegations of this paragraph in his response
to the petition.
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the parties had previously resided, leaving Wife to deal with numerous
creditors and related lawsuits.4
¶4 At a March 18, 2016 Resolution Management Conference,
counsel for Wife informed the court he was not ready for trial and had been
in communication with Husband’s counsel regarding an outstanding
discovery request. Husband’s counsel conceded additional discovery and
disclosure might be needed, but requested a trial setting. The court then set
trial for August 3, 2016.
¶5 On May 4, 2016, the parties entered a Parenting Plan
Agreement. The parties agreed to joint legal decision-making authority of
the child, with the child residing primarily with Mother. The parties further
agreed the child would spend specified holidays with Father, and Father
would pay to fly the child to and from Oregon.
¶6 On July 14, 2016, Husband’s counsel moved to continue the
scheduled trial for forty-five days, “as the parties ha[d] not completed their
discovery disclosures.”5 Although Wife’s counsel objected, the family court
granted the motion, and later reset trial for November 9, 2016.
¶7 Meanwhile, Wife’s counsel died in late July 2017. Wife sought
to represent herself, and in mid-August, the court granted her request.
¶8 On October 3, 2016, Husband’s counsel moved to withdraw,
“based upon the fact that [Husband] has failed to comply with the terms of
the contract for legal services.” Husband did not object, and in open court
on October 24, 2016, the family court granted the motion to withdraw. The
court filed a signed order to that effect the next day.
¶9 On October 31, 2016, Husband filed a motion to continue the
trial, stating he needed time to hire new counsel and “had been asking for
months that previous council [sic] help with getting documents that are
critical in this case.” Husband did not explain what documents he had not
obtained or their significance. Wife objected, and the court set the matter
4 According to Wife, pending the divorce, Husband transferred most
of the community assets to Oregon and other states, without Wife’s
knowledge or consent, ostensibly to hide, conceal, and/or fraudulently
transfer them.
5 According to Wife, Husband “never produced one Disclosure
Statement” before trial.
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for a telephonic hearing on November 4, 2016. At the November 4 hearing,
Husband requested a 120-day extension to obtain new counsel and to
complete discovery. The court denied Husband’s motion to continue and
affirmed the November 9 trial date.
¶10 Husband did not appear for the November 9 trial, and the
family court proceeded in his absence, finding him in default and finding
no justification for his non-appearance.6 After hearing Wife testify and
reviewing the evidence, the court adopted the parties’ May 4 parenting
plan, divided the parties’ assets, and ordered Husband to pay $2,500 per
month in spousal maintenance and $525 per month in child support. The
court also ordered “that all the items that have not been sold, currently in
possession of [Husband] or some other person on behalf of [Husband], shall
be turned over to [Wife],” and if those items were not turned over by
December 31, 2016, the court would enter a judgment in the amount listed
on one of Wife’s trial exhibits for the missing items. The court further found
that Husband had committed “waste and misuse of community property,
fraudulent transfers and other actions,” such that all tax and community
debts should be allocated to Husband.7 Finally, the court ordered that
Husband pay Wife’s attorneys’ fees in the amount of $4,425.50.
¶11 On November 21, 2016, Husband filed a motion for new trial.
On December 20, 2016, the family court filed a decree of dissolution of the
parties’ marriage, affirming its November 9 orders and otherwise denying
any affirmative relief sought by the parties. On December 23, 2016, the
family court denied Husband’s motion for new trial.
¶12 Wife moved to amend the judgment and petitioned for a
finding of contempt against Husband, alleging in part that Husband had
refused to turn over community assets as ordered; had hidden, sold, or
fraudulently transferred those assets (including by altering one or more
vehicle titles) to prevent Wife from locating them; and had refused to pay
any bills, attorneys’ fees, taxes, spousal maintenance, and child support as
ordered. Wife stated she had hired an Oregon attorney to domesticate the
6 The court noted that although Husband was aware of the trial, he
had previously “made statements that he would not be appearing today
and has not requested to appear telephonically.”
7 The court also noted, however, that its orders regarding allocation of
debts between the parties may not affect any lawsuits that creditors may
have against the parties.
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divorce decree in Oregon and a private investigator to locate and recover
the hidden assets.
¶13 On April 17, 2017, the family court held an evidentiary
hearing on Wife’s motion to amend, and Husband appeared telephonically.
On April 24, the family court ordered Husband to pay all spousal
maintenance and child support through the Clearinghouse, and after
finding Husband had committed misconduct, amended the judgment in
part, ultimately entering judgment in favor of Wife and against Husband in
the amount of $62,000.
¶14 We have jurisdiction over Husband’s timely appeal pursuant
to Arizona Revised Statutes section 12-2101(A)(1), (2), (5)(a) (2016).
ANALYSIS
I. Standard of Review
¶15 We will affirm if substantial evidence supports the family
court’s decision, Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009), and will
not substitute our opinion for that of the family court unless there has been
a clear abuse of discretion, Deatherage v. Deatherage, 140 Ariz. 317, 319 (App.
1984). Further, we will not set aside findings of fact unless they are clearly
erroneous, and we defer to the family court’s credibility determinations.
Ariz. R. Fam. Law P. 82(A). We also will not reweigh conflicting evidence.
Hurd, 223 Ariz. at 52, ¶ 16.
II. The Merits
A. Conducting the November 9 Trial in Husband’s Absence
¶16 Husband argues the family court abused its discretion and
denied him a fair trial by granting his counsel’s motion to withdraw before
trial, denying his motion to continue the trial, and conducting the
November 9, 2016 trial in his absence. We disagree.
¶17 The family court has great discretion over the control and
management of the trial. See Hales v. Pittman, 118 Ariz. 305, 313 (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 (App. 2007) (citation omitted).
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¶18 “When an action has been set for trial, hearing or conference
on a specified date by order of the court, no continuance of the trial, hearing
or conference shall be granted except upon written motion setting forth
sufficient grounds and good cause, or as otherwise ordered by the court.”
Ariz. R. Fam. Law P. 77(C)(1). We will not disturb a ruling on a motion for
continuance absent an abuse of discretion. Dykeman v. Ashton, 8 Ariz. App.
327, 330 (1968). To the extent the family court based its rulings on
Husband’s credibility, we defer to its judgment. See Gutierrez v. Gutierrez,
193 Ariz. 343, 347-48, ¶ 13 (App. 1998).
¶19 The record reflects that before Husband moved to continue
the November 9 trial, the family court had already once continued the trial
at Husband’s request and over the objection of Wife. Then, on October 3,
2016—thirty-seven days before the new trial date—Husband’s counsel
moved to withdraw, stating that Husband had failed to comply with terms
of his contract for legal services. Husband did not object to the motion to
withdraw, dispute its basis, or immediately request a continuance to enable
him to retain a new attorney. Three weeks later—on October 24—the
family court granted Husband’s counsel’s motion to withdraw.
¶20 After waiting another week, Husband filed his second motion
to continue on October 31—nine days before trial. The next day, the family
court scheduled a hearing on the issue, and both parties appeared by
telephone on November 4, 2016. At that hearing, Husband argued he
needed more time to obtain new counsel.8 The court denied Husband’s
request, and Husband informed the court he would not appear at the trial.
¶21 On the limited record before us, we have no reason to
conclude the family court abused its discretion or denied Husband a fair
trial when it granted his counsel’s motion to withdraw and denied
Husband’s motion to continue. Further, Husband makes no effort to
explain what evidence he would have presented, how he was prejudiced,
or how the result would have been different had the court continued the
8 Although the November 4, 2016 telephonic hearing was digitally
recorded, Husband did not provide this court with a transcript of that
hearing. Husband bore the burden of ensuring the record on appeal
contained all transcripts or other documents necessary for us to consider
the issues raised, see ARCAP 11(b)(2), (c)(1)(A), and because he has failed
to provide this court a transcript of the November 4 hearing, we assume the
missing transcript would support the court’s findings and conclusions, see
Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).
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trial.9 Additionally, Husband offers no authority, and we are aware of
none, for the proposition that a family court abuses its discretion by
proceeding with a properly noticed trial when one of the parties
deliberately fails to appear and thereafter offers no good cause for his
absence. Under the circumstances, the family court likely was concerned
that Husband would continue to waste and/or fraudulently transfer
community assets if the trial were continued, and therefore it did not abuse
its discretion in denying Husband’s belated motion to continue and
conducting the November 9 trial in Husband’s absence. Furthermore,
because he fails to specify how the court’s alleged error prejudiced him, we
find no basis for reversal. See Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz.
140, 143 (App. 1987) (declining to develop an argument for a party).10
B. Alleged Conflict of Interest
¶22 Without citing any factual support, Husband argues the
family court had a conflict of interest (and ostensibly was biased) because
Wife “has built strong relationships and even lived with some of the court
staff, such as the [Mohave County] court clerk.”
¶23 Wife disputes Husband’s assertion, stating “[t]he only reason
[she] has any relationship at all with anyone working at the Clerk’s office is
because [Husband] has ignored all of the lawsuits filed against the parties,
while [Wife] has struggled, without representation to defend herself in all
three Mohave County Courts.” She further denies residing at any time with
anyone who works for the Mohave County Superior Court.
¶24 We have carefully reviewed the record in search of support
for Husband’s argument, and have found none. Moreover, Husband fails
to cite any supporting evidence in the record for his argument.
Accordingly, we decline to further address Husband’s argument. See
9 Wife asserts Husband “did not produce any disclosure or discovery
in any way in this proceeding,” and argues that, even with a continuance,
the family court likely would have precluded Husband from presenting
documents or other witnesses. Husband does not dispute Wife’s factual
assertion.
10 We also reject Husband’s assertion that he could not afford to fly to
Arizona to personally attend the trial. Husband’s assertion is inconsistent
with his claim that he has paid for all travel for the parties’ child between
Arizona and Oregon. Moreover, he did not request to appear
telephonically.
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generally ARCAP 13(a)(7)(A) (providing that an argument must contain
citations “to the portions of the record on which the appellant relies”);
Prairie State Bank v. IRS, 155 Ariz. 219, 221 n.1A (App. 1987) (declining to
consider assertions unsupported by record evidence).
C. Division of the Parties’ Assets
¶25 Husband also contests the family court’s allocation of
property, asserting without specification that the court unfairly divided the
parties’ assets.
¶26 We review for an abuse of discretion the family court’s
apportionment of community property. Valento v. Valento, 225 Ariz. 477,
481, ¶ 11 (App. 2010). In determining an equitable division of property, the
family court retains broad discretion in allocating assets and liabilities, and
may consider a party’s excessive or abnormal expenditures; the destruction,
concealment, or fraudulent disposition of property; and other factors that
bear on the equities of a particular case. Flower v. Flower, 223 Ariz. 531, 535,
¶ 14 (App. 2010) (citations omitted). “[A] substantially equal division is not
required if a sound reason exists to divide the property otherwise.” Id. at
536, ¶ 18 (citations omitted). 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 (1977) (construing
analogous Rule 52(a) of the Arizona Rules of Civil Procedure (citations
omitted)).
¶27 Husband provides no argument supporting his assertion that
the court unfairly divided the parties’ assets,11 and, because he has given us
no transcript of the trial, we have no basis on which to evaluate his
assertion.12 As the appellant, Husband had the burden to provide this court
11 See AMERCO v. Shoen, 184 Ariz. 150, 154 n.4 (App. 1995) (recognizing
that a party who fails to present argument or authority to support a claim
of error has waived the claim (citation omitted)).
12 Although the November 9, 2016 trial was digitally recorded,
Husband has not provided this court a full transcript of that trial; instead,
the record contains only a partial transcript covering approximately two
minutes of the trial, which lasted more than two hours. Moreover, the
partial transcript does not support Husband’s argument. The record does,
however, contain a transcript of the April 17, 2017 evidentiary hearing on
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with a trial transcript necessary to the resolution of this appeal. See ARCAP
11(b)(2), (c)(1)(A). Because Husband has failed to do so, we assume the
record supports the family court’s findings and conclusions. See Baker, 183
Ariz. at 73. We also assume the family court considered all relevant
factors.13 See Aguirre v. Robert Forrest, P.A., 186 Ariz. 393, 397 (App. 1996).
Given those assumptions, we find no abuse of the family court’s discretion
in distributing the marital assets and debts.
D. Wife’s Alleged False Statements
¶28 Husband also asserts Wife introduced “false evidence” into
the case, including providing false sworn statements regarding the parties’
assets. Husband does not further elaborate on the basis for his assertion,
which Wife disputes, and we decline to further consider Husband’s
assertion, which is unsupported by record evidence. See Prairie State Bank,
155 Ariz. at 221 n.1A.
E. New Issues in the Reply Brief
¶29 Husband also raises several issues in his reply brief that he
did not raise in his opening brief. Issues not clearly raised and argued in
the opening brief are waived. See State v. Lopez, 223 Ariz. 238, 240, ¶ 6 (App.
2009); Jones v. Burk, 164 Ariz. 595, 597 (App. 1990). Accordingly, we decline
to address any new issues raised by Husband in the reply brief.
Wife’s motion to amend the judgment, which was also digitally recorded.
That transcript also does not support Husband’s argument.
13 Before trial, Wife filed a list of witnesses and an exhibit list with
ninety-five exhibit items. At trial, the court admitted ninety-seven exhibits
into evidence. Wife asserts the court questioned her extensively and
reviewed the documentation she submitted concerning the value of the
parties’ assets and the parties’ debts. Wife also asserts she requested less
than fifty percent of the parties’ assets. The limited record before us appears
to support Wife’s assertions.
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CONCLUSION
¶30 We affirm the family court’s rulings in all respects. Wife is
entitled to her taxable costs on appeal upon compliance with Arizona Rule
of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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