Lewis v. Lynch

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SHIRLEY ANNE LEWIS, Petitioner/Appellee,
v.
MARTIN DANIEL LYNCH, Respondent/Appellant.
No. 1 CA-CV 15-0724 FC
FILED 9-20-2016
Appeal from the Superior Court in Maricopa County
No. FC2011-002533
The Honorable Katherine Cooper, Judge
AFFIRMED
COUNSEL
Shirley Anne Lewis, Chandler
Petitioner/Appellee
Martin Daniel Lynch, Tempe
Respondent/Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.
LEWIS v. LYNCH
Decision of the Court
W I N T H R O P, Judge:
¶1 Martin Daniel Lynch (“Father”) appeals the family court’s
order converting to a judgment an order affirming that Father owes an
equalization payment and interest to Shirley Anne Lewis (“Mother”), and
denying Father’s motions alleging professional misconduct. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father were divorced on June 14, 2012. The
decree of dissolution incorporated a May 24, 2012 settlement agreement,
which provided that Father would pay Mother $30,000 as an equalization
payment within thirty days of signing the settlement agreement. In
agreeing to the equalization payment, Father waived any claims he had
against Mother, and Mother waived her claims for child support arrearages,
previously awarded attorneys’ fees, reimbursement for previous child or
school expenses, and a portion of the proceeds from the sale of an
automobile.
¶3 On June 27, 2012, Mother filed a motion for contempt,
alleging, inter alia, that Father had failed to pay her the $30,000 equalization
payment. After an evidentiary hearing, the court denied Mother’s motion
for contempt, but found that Father’s obligation to pay the equalization
payment was past due. After finding that Father had assets in excess of
$500,000 and the capability to earn more than $100,000 per year, the court’s
minute entry indicated judgment was being entered against Father for the
$30,000 principal amount plus accumulated interest, and ordered Father to
commence making payments in the amount of $1,500 per month starting
January 1, 2013.1
¶4 In February 2013, Mother filed a petition against Father to
enforce the equalization payment obligation. On March 22, 2013, the family
court informed the parties that it did not have the authority to enforce
“Father’s judgment payment,” but affirmed the judgment in favor of
Mother and against Father.
¶5 In August 2015, Mother filed a motion requesting the family
court enter a formal judgment against Father for the equalization payment
in the amount of $30,000 plus statutory interest. Father contested the
motion but did not dispute his obligation to make the payment. Father also
1 The court’s docket does not reflect the entry of a separate judgment.
2
LEWIS v. LYNCH
Decision of the Court
filed a motion alleging professional misconduct by individuals involved in
the case, and requested the court order a criminal investigation.
¶6 On September 25, 2015, the court granted Mother’s motion
and, noting that it did not find on the docket a separately entered judgment
for the equalization payment, entered an order converting that obligation
to a formal judgment, plus interest, against Father. The court declined to
take action on Father’s requests for a criminal investigation on the ground
that the Arizona Rules of Family Law Procedure did not authorize the court
to do so. Father timely appealed the court’s orders. We have appellate
jurisdiction over the family court’s order pursuant to Arizona Revised
Statutes sections 12-120.21(A)(1) (2016) and 12-2101(A)(1) (2016).
ANALYSIS
¶7 An appellant must cite to the record in the opening brief.
ARCAP 13(a). Failure to do so may constitute waiver as to the issues raised.
Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 137 n.2, ¶ 7, 263 P.3d 683,
686 n.2 (App. 2011). An appellant is also responsible for ordering and
providing the court with the transcript of any relevant evidentiary hearing.
ARCAP 11(c). Here, Father did not cite to the record in his brief or provide
a transcript of the family court hearing, which may be deemed a waiver.
See Delmastro, 228 Ariz. at 137 n.2, ¶ 7, 263 P.3d at 686 n.2; ARCAP 11(c). In
the exercise of our discretion, however, we will consider the merits of his
arguments. See Delmastro, 228 Ariz. at 137 n.2, ¶ 7, 263 P.3d at 686 n.2
(stating the appellate court may entertain deficient briefs on the merits).
But to the extent Father contends that the court’s order is contrary to the
evidence, we presume that the testimony and other evidence addressed in
the missing transcript supports the court’s factual findings and conclusions
of law. State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d
70, 73 (App. 2003).
I. Equalization Payment
¶8 Father contests the family court’s order converting the unpaid
equalization payment and interest to a judgment against him.2 Father
argues that the parties’ settlement agreement, which was incorporated into
the decree and outlined the terms of the equalization payment, should be
2 Father does not directly refer to the equalization payment in his
brief; however, he argues that “all provisions of the Order of September 25,
2015 . . . are not actionable.”
3
LEWIS v. LYNCH
Decision of the Court
vacated because, in his view, it was based upon coercion and undue
influence. To the extent Father challenges the terms of the June 2012 decree
and the incorporated agreement, however, his appeal is untimely and this
court lacks appellate jurisdiction to consider it. See ARCAP 9(a) (requiring
notice of appeal to be filed within thirty days after the entry of judgment
from which the appeal is taken). In short, the time to appeal or otherwise
contest the final decree, including Father’s equalization payment
obligations, has long since passed. Accordingly, this court lacks appellate
jurisdiction to review those obligations, which became final long ago.
II. Allegations of Criminal Misconduct
¶9 Father argues the family court erred by not taking action to
address his allegations of criminal misconduct on the part of various
professionals. But Father does not allege specific facts or cite to any ruling
we have appellate jurisdiction to address. See ARCAP 13(a)(7)(A)
(providing that appellant’s argument must contain “contentions
concerning each issue presented for review, with supporting reasons for
each contention, and with citations of legal authorities, and appropriate
references to the portions of the record on which the appellant relies”);
Melissa W. v. Dep’t of Child Safety, 238 Ariz. 115, 117-18, ¶ 9, 357 P.3d 150,
152-53 (App. 2015) (declining to address an appellant’s arguments that
were not supported with citation to relevant authority). Moreover, if Father
believes there has been actionable misconduct, he can provide that
information to agencies that have authority to act on such misconduct.
Similarly, if Father believes that applicable statutes, rules, and operating
procedures of the family court should be changed, his remedy is through
the legislature or to submit a rule change petition.3
3 Indeed, as evidenced by his petition to create ARFLP Rule 96, Father
understands there is a process by which procedural changes are made
within the family court system.
4
LEWIS v. LYNCH
Decision of the Court
CONCLUSION
¶10 The family court’s order converting the court’s prior orders
into a judgment is affirmed. Likewise, we affirm the family court’s
declining Father’s request to refer any professionals associated with this
case for criminal investigation and/or prosecution. 4
AMY M. WOOD • Clerk of the Court
FILED: AA
4 We do not address Mother’s attempts to raise issues in her
answering brief because she has not filed a cross-appeal. See ARCAP 8(b).
5