Opinion
1 CA-CV 12-0216
05-07-2013
In re the Matter of: SHANE DALE HUDSON, Petitioner/Appellee, v. ANGELA MORNINGSTAR HUDSON, Respondent/Appellant.
Shane Dale Hudson, Petitioner/Appellee In Propria Persona Angela Morningstar Hudson, Respondent/Appellant In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC2006-070824
The Honorable Harriett E. Chavez, Judge
AFFIRMED
Shane Dale Hudson, Petitioner/Appellee
In Propria Persona
Phoenix Angela Morningstar Hudson, Respondent/Appellant
In Propria Persona
Elkhorn, WI HALL, Judge ¶1 Angela Hudson (Mother) appeals the superior court's post-decree order modifying her child support obligation, entering a judgment against her for child support arrears, and modifying her parenting time. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Shane Hudson (Father) petitioned for dissolution in September 2006. He sought sole custody of the parties' two children and asked that Mother be ordered to pay child support. ¶3 The following month, Father filed an affidavit of publication stating that a Maricopa County newspaper had published notice of the dissolution matter for four consecutive weeks. Father filed affidavits stating service by publication was necessary because Mother's whereabouts were not known to him and his attempts to locate her were unsuccessful. Mother failed to respond to the petition and Father asked the court to enter a default decree. ¶4 The court entered a decree of dissolution in January 2007. Because Mother was served via publication, the court noted in the decree that it reserved jurisdiction until personal service was made upon Mother to consider the disposition of community property and debts and child support. See Ariz. R. Fam. L. P. 41(M). The court nonetheless awarded each party the community property in his or her possession, ordered the parties to split the children's medical and dental expenses, and entered a child support order requiring Mother to pay $117 per month. ¶5 Mother appeared in September 2010, when she filed a petition to modify custody, parenting time, and child support. She requested joint legal custody and asked the court to modify her child support obligation because she was unemployed and earned no income. Father responded that he wished to keep sole custody of the children, but agreed Mother could have supervised parenting time in Arizona. He also filed an affidavit of non-compliance stating that Mother had not paid her $117 per month child support obligation or shared the children's medical and dental expenses. ¶6 The court set an evidentiary hearing and directed the Family Court Conference Center to prepare a child support calculation from February 1, 2001 through December 31, 2010. The Family Court Conference Center submitted a status report stating that the records of the Support Payment Clearinghouse showed Mother's child support arrears were $23,769.90 in principal and $12,092.21 in interest. ¶7 At the hearing, the court accepted the parties' agreement on the record that Father would retain sole custody and Mother would have supervised parenting time twice per month for three months and thereafter transition to unsupervised parenting time. The parties agreed Mother would travel from her home in Wisconsin to Arizona to exercise her parenting time. The court stated Mother would be entitled to long-distance parenting time, the schedule for which would abide further court order. ¶8 The court also heard the parties' testimony concerning child support and ordered Mother to pay $549.55 per month. The court noted Mother disagreed with the Family Court Conference Center's arrearage calculation on the grounds that she had been served by publication and therefore had no knowledge of the child support order. Mother also asserted that service by publication was improper because Father knew her whereabouts and did not attempt personal service. The court granted Mother ten days to file a motion to set aside the decree. ¶9 Mother did not move to set aside the decree, but two months later petitioned for modification of child support. She submitted a new affidavit of financial information showing she earned $131.96 per month and asserted her obligation should be $29.57 per month. The court rejected the petition because it did not comply with Arizona Rule of Family Law Procedure 91. The court then stated it was "affirming the judgment previously entered in the amount of $23,769.90 with interest in the amount of $12,092.21 for the period of February 1, 2001 through December 31, 2010." The court also affirmed the default decree of dissolution. ¶10 Four months later, in September 2011, Mother again petitioned to modify her child support payment to $29.57. That same day, she filed a motion to set aside the default dissolution decree on the grounds that Father was aware of her address and did not attempt to locate her for personal service. Father moved to dismiss the motion to set aside the decree, arguing it was untimely and noting the court had reaffirmed the decree in its previous order. Father also asked the court to enforce Mother's child support obligation and the payment of her arrearage. He requested a hearing on Mother's petition to modify child support. The court granted Father's motion to dismiss the motion to set aside the decree. ¶11 The court then held a hearing on Father's request for child support enforcement and Mother's petition to modify child support. The court found that a previous judgment had been entered against Mother for the $23,769.90 arrearage plus interest. The court determined Mother had willfully failed to pay child support for the period of January 1, 2011 through December 31, 2011, despite her knowledge of the court's order that she pay $549.55 per month. The court found her in contempt and entered judgment for Father in the amount of $6,594.60. The court granted Mother's request for modification of child support, reducing her monthly payment to $412 and ordering her to pay an additional $50 per month toward the arrearage. In addition, the court ordered that the children continue to reside with Father and that Mother have parenting time for one week over Christmas break and summer parenting time from June 1 through July 15. ¶12 Mother timely appealed that order and the court's order dismissing her motion to set aside the decree. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(2) (2012).
Although Mother also purported to appeal from the court's denial of her request that it vacate its dismissal of her motion to set aside the decree, her motion was, in substance, a motion for reconsideration, which is not appealable. See Arvizu v. Fernandez, 183 Ariz. 224, 226-27, 902 P.2d 830, 832-33 (App. 1995).
Mother filed an amended notice of appeal from the court's November 14, 2011 unsigned minute entry dismissing her motion to set aside the decree. Because that ruling was not final under Rule 58(a), Arizona Rules of Civil Procedure, and therefore not appealable, the portion of Mother's appeal concerning the dismissal of her motion to set aside the decree was premature. On March 4, 2013, we suspended the appeal to allow Mother to apply to the superior court for a signed order corresponding to the November 14, 2011 minute entry. Mother applied for a signed order on March 20, 2013, but on April 5, 2013, the superior court denied her request as untimely filed. On April 15, 2013, Mother asked this court to continue the suspension to allow her to file a motion in the superior court for reconsideration of that ruling. In the exercise of our discretion, we accept special action jurisdiction over that portion of Mother's appeal and deny Mother's motion to continue the suspension as moot.
ISSUES
¶13 Mother challenges the court's entry of the $6,594.60 arrearage judgment, its calculation of her child support obligation, and the modification of her parenting time. She also contends the court erroneously dismissed her motion to set aside the decree. ¶14 Mother raises additional issues that relate to orders from which she did not appeal. For example, she challenges the court's entry of the default dissolution decree on the basis that she was not properly served and asserts it miscalculated the $23,769.90 arrearage judgment. Because Mother did not timely appeal those rulings, we lack jurisdiction to consider those issues. James v. State, 215 Ariz. 182, 185, ¶ 11, 158 P.3d 905, 908 (App. 2007) (perfecting an appeal within the time prescribed is jurisdictional).
DISCUSSION
A. Judgment for Child Support Arrearage ¶15 Mother asks us to vacate the court's $6,594.60 judgment against her for child support arrears because, she argues, it was based on an inaccurate calculation of her income. As we understand it, she contends the court erred by ordering her to pay $549.55 per month in child support and therefore its judgment for the arrearage when she failed to pay that amount is improper. Mother appeared at the evidentiary hearing and had notice of the court's allegedly incorrect $549.55 child support calculation. She, however, chose not to appeal that ruling. As a result, she is barred from challenging the calculation a year later and arguing the calculation was incorrect. ARCAP 9 (a party has 30 days from the entry of judgment to file an appeal); cf. Pettit v. Pettit, 218 Ariz. 529, 533, ¶¶ 9-10, 189 P.3d 1102, 1106 (App. 2008) (holding father's status as daughter's biological father was determined in dissolution decree, from which he did not appeal, and he was therefore barred by the doctrine of claim preclusion from challenging his paternity in post-dissolution proceeding as a means to disputing his child support obligation); Harding v. Sutherlin, 120 Ariz. 193, 195, 584 P.2d 1184, 1186 (App. 1978) ("In Arizona child support installments become vested when due and each installment as it falls due is in the nature of a final judgment conclusively establishing the rights and duties of the parties to that installment.") (internal quotations and citation omitted). Accordingly, we find no error in the court's judgment for Father in the amount of $6,594.60.
B. Child Support Calculation ¶16 Mother argues the court's $412 child support calculation is erroneous because it was based on inaccurate information regarding her income. We review a child support award for an abuse of discretion, accepting the court's findings of fact unless clearly erroneous. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21, 212 P.3d 842, 848 (App. 2009). We draw our own legal conclusions from the facts and review de novo the court's interpretation of the Arizona Child Support Guidelines, A.R.S. § 25-320 app. (2012) (Guidelines). Id. ¶17 The superior court conducted an evidentiary hearing on Mother's petition to modify child support. After the parties testified, the court discussed the pending issues, and stated the reasons for its ruling on the record. Mother did not provide a transcript of the hearing on appeal. See ARCAP 11(b)(1) (stating that if an appellant intends to argue that a finding or conclusion is unsupported by or contrary to the evidence, he or she must include in the record a certified transcript of all evidence relevant to the finding or conclusion). In the absence of a transcript, we presume the record supports the trial court's rulings, Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995), and therefore find no abuse of discretion in the court's determination that Mother's child support obligation should be $412 per month.
C. Parenting Time ¶18 Mother cites the court's order granting her parenting time for one week during the Christmas break and for forty-five days during the summer. Mother contends she understood that this time would be in addition to the court's previously-ordered every-other-weekend parenting time, but asserts Father has denied her weekend access to the children. Because Mother does not challenge the court's order, but seeks clarification regarding its effect, the issue is not properly raised on appeal. Cf. Stewart v. Mut. Of Omaha Ins. Co., 169 Ariz. 99, 108, 817 P.2d 44, 53 (App. 1991) (finding it inappropriate to address an issue on appeal when the trial court did not consider the merits of the issue). Accordingly, we do not address it.
Mother may ask the superior court to clarify its order and, if necessary, enforce it.
D. Motion to Set Aside the Decree ¶19 Finally, Mother challenges the superior court's denial of her motion to set aside the decree. In September 2011, Mother moved to set aside the default dissolution decree pursuant to Arizona Rule of Family Law Procedure 85(C)(1)(a), (c), and (f), on the grounds that Father knew of her whereabouts and did not attempt to locate her for personal service when he filed the petition for dissolution. We review Family Law Rule 85(C) challenges for an abuse of discretion. Breitbart-Napp v. Napp, 216 Ariz. 74, 82, ¶ 27, 163 P.3d 1024, 1032 (App. 2007). ¶20 Mother argues the court's denial of her motion was erroneous because Father improperly served the petition for dissolution by publication despite his knowledge of her whereabouts and without attempting to locate her for personal service. ¶21 Family Law Rule 85(C) states, in relevant part:
The provisions of Arizona Rule of Family Law Procedure 85(C) are analogous to Arizona Rule of Civil Procedure 60(c). Therefore, the cases that interpret Rule 60(c) are applicable to Arizona Rule of Family Law Procedure 85(C). See Ariz. R. Fam. L. P. 1, cmt.
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1. On motion and upon such terms as are just the court may relieve a party or a party's legal representative¶22 Mother's motion was not timely under Rule 85(C)(1)(a) and (c). Nonetheless, she argues the court erred in denying the motion because it was also based upon Rule 85(C)(1)(f). A motion under that subsection is not required to be filed within six months of the order. However, a Rule 85(C)(1)(f) motion cannot be premised on a ground provided for by the first five subsections of the rule. Birt v. Birt, 208 Ariz. 546, 551, ¶ 22, 96 P.3d 544, 549 (App. 2004). Mother's motion was premised on Father's alleged mistake or misrepresentation, grounds provided for by subsections (1)(a) and (c) of the Rule. Therefore, we affirm the order denying Mother's motion to set aside the decree.
from a final judgment, order or proceeding for the following reasons:
a. mistake, inadvertence, surprise, or excusable neglect;2. The motion shall be filed within a reasonable time, and for reasons 1(a), 1(b) and 1(c) not more than six (6) months after the judgment or order was entered or proceeding was taken.
b. newly discovered evidence, which by due diligence could not have been discovered in time to move for a new trial under Rule 83 (D);
c. fraud, misrepresentation, or other misconduct of an adverse party;
d. the judgment is void;
e. the judgment has been satisfied, released, or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
f. any other reason justifying relief from the operation of the judgment.
CONCLUSION
¶23 For the foregoing reasons, we affirm.
_________________
PHILIP HALL, Judge
CONCURRING: _________________
MARGARET H. DOWNIE, Presiding Judge
_________________
MAURICE PORTLEY, Judge