Opinion
2 CA-CV 2023-0246-FC
07-22-2024
In re the Marriage of Erica Ginand, Petitioner/Appellee, and Jesse Crosby, Respondent/Appellant.
The Valley Law Group PLLC, Phoenix By Ryan M. Reppucci Counsel for Petitioner/Appellee Ellsworth Family Law P.C., Mesa By Glenn D. Halterman, Steven M. Ellsworth, and F. Taylor Larson Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2019095596 The Honorable Steve McCarthy, Judge
The Valley Law Group PLLC, Phoenix By Ryan M. Reppucci Counsel for Petitioner/Appellee
Ellsworth Family Law P.C., Mesa By Glenn D. Halterman, Steven M. Ellsworth, and F. Taylor Larson Counsel for Respondent/Appellant
Presiding Judge Gard authored the decision of the Court, in which Chief Judge Staring and Judge Eckerstrom concurred.
MEMORANDUM DECISION
GARD, PRESIDING JUDGE
¶1 Jesse Crosby appeals from the superior court's order denying his motion to be relieved from a non-modifiable spousal-maintenance provision contained in a consent decree dissolving his marriage to Erica Ginand. Crosby maintains that a disciplinary order against Ginand's former counsel constitutes an extraordinary circumstance warranting relief under Rule 85(b)(6), Ariz. R. Fam. Law P. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 Crosby and Ginand married in 1997. In July 2019, Ginand, through counsel, filed a petition to dissolve the marriage. In November of that year, the superior court signed the parties' consent decree of dissolution. The decree awarded spousal maintenance to Ginand:
After considering the factors under A.R.S. § 25-319, the Parties agree that Petitioner/Mother will receive a Spousal Maintenance award from Respondent/Father. Mother will receive a lump sum of $720,000.00, paid in the amount of $6,000.00 per month by Father for a total of one hundred and twenty months (or ten (10) years). This order is nonmodifiable.
Crosby initialed the page containing the above-quoted provision, as well as a separate page affirming he had either been fully advised of the agreement's provisions by his chosen counsel or had been given the opportunity to be so advised. He also initialed a page acknowledging that, before executing the decree, he had read it carefully and understood all of its provisions and their consequences. On the decree's final, notarized page, Crosby signed the document as "Respondent - Pro Per."
¶3 In April 2020, Crosby moved to set aside the decree under Rule 85(b)(1), Ariz. R. Fam. Law P., which permits a court to relieve a party from a judgment based on "mistake, inadvertence, surprise, or excusable neglect." As relevant here, Crosby argued that Ginand's counsel had inserted language making the spousal-maintenance award non-modifiable without Crosby's knowledge or consent. Crosby maintained that he would not have agreed to a non-modifiable provision because he had been experiencing significant health issues that could affect his future employment. In his reply in support of the motion, Crosby asserted that, when signing the consent decree, he had mistakenly believed that Ginand's counsel-a family friend-represented both him and Ginand and thus "had his best interests in mind."
¶4 The superior court denied the motion in May 2020. The court found that Crosby had "initialed each page of the Decree, signed his name to it and agreed that he had read the entire agreement, had the opportunity to consult with counsel and that he fully understood all of its terms and conditions." The court further found that Crosby had "provided no evidence to the Court to demonstrate that the provision regarding nonmodifiability was not agreed upon by the parties." Crosby did not appeal from this ruling.
¶5 In June 2023, Crosby filed a second motion for relief from the consent decree, this time citing Rule 85(b)(6), which permits a court to relieve a party from a judgment based on any "reason justifying relief." As relevant here, Crosby again asserted that, at the time he signed the decree, he had believed Ginand's counsel also represented him, and that counsel had not explained the consequences of making the spousal-maintenance award non-modifiable. Crosby reported that, after the superior court denied his Rule 85(b)(1) motion, counsel had consented to be disciplined by the Presiding Disciplinary Judge based on her actions in Crosby and Ginand's case. As part of the agreement, counsel admitted that, although she had intended to formally represent only Ginand, her conduct in also assisting Crosby caused him to reasonably believe she was his lawyer and created an attorney-client relationship with both parties. She further admitted that she had failed to advise the parties in writing of her representation's scope, to provide Crosby a written statement informing him of the opportunity to seek separate counsel, and to explain adequately to Crosby the potential consequences of agreeing to a non-modifiable award of spousal maintenance.
Crosby also argued that the decree impermissibly rolled the sums owed for Ginand's portion of the family business into the spousal-maintenance award. Crosby does not challenge on appeal the superior court's ruling on that aspect of the Rule 85(b)(6) motion.
¶6 The superior court denied the motion. The court noted that, in his Rule 85(b)(1) motion, Crosby had also "alleged that [Ginand]'s counsel held herself out to represent both parties, and that the non-modifiable spousal maintenance provision was never negotiated or explained to him." The court thus denied relief on the Rule 85(b)(6) motion, concluding that the ruling denying the Rule 85(b)(1) motion had already "addressed the issue at hand." The court thereafter amended its order to include finality language under Rule 78(c), Ariz. R. Fam. Law P. Crosby filed a notice of appeal, and we have jurisdiction under A.R.S. § 12-2101(A)(2). See In re Marriage of Dougall, 234 Ariz. 2, ¶ 9 (App. 2013) (denial of Rule 85 motion appealable as special order made after final judgment).
Discussion
¶7 Crosby contends the Presiding Disciplinary Judge's imposition of professional discipline on Ginand's counsel for her conduct in this case constitutes an extraordinary circumstance warranting relief under Rule 85(b)(6). He further argues that counsel's admissions during the disciplinary proceeding undermine the superior court's findings in denying his Rule 85(b)(1) motion, which the court in turn incorporated in denying the Rule 85(b)(6) motion. Ginand responds that counsel's discipline is a "red herring" and that the totality of the circumstances show Crosby understood the spousal-maintenance provision.
¶8 We review a superior court's order denying a Rule 85(b)(6) motion for an abuse of discretion. Quijada v. Quijada, 246 Ariz. 217, ¶ 7 (App. 2019). An abuse of discretion, in turn, occurs when "there is no evidence that supports the superior court's conclusion, or the reasons given by the superior court [are] 'clearly untenable, legally incorrect, or amount to a denial of justice.'" In re Estate of Long, 229 Ariz. 458, ¶ 22 (App. 2012) (quoting Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, ¶ 17 (App. 2006)).
¶9 Rule 85(b)(6) allows a court to set aside a judgment for any reason that justifies relief, except those reasons enumerated in Rule 85(b)(1) through (5). Birt v. Birt, 208 Ariz. 546, ¶ 22 (App. 2004); see also Gonzalez v. Nguyen, 243 Ariz. 531, ¶ 12 (2018) (recognizing ground for relief from judgment under Rule 60(b)(6) "cannot be one of the reasons set forth in" Rule 60(b)(1) through (5)). Rule 85(b)(6) permits relief "when our systemic commitment to finality of judgments is outweighed by extraordinary circumstances of hardship or injustice." Birt, 208 Ariz. 546, ¶ 22 (quoting Panzino v. City of Phoenix, 196 Ariz. 442, ¶ 6 (2000)). A court should consider the totality of the circumstances in determining whether to set aside a judgment under Rule 85(b)(6), Skydive Ariz., Inc. v. Hogue, 238 Ariz. 357, ¶ 25 (App. 2015), but there are "no hard-and-fast rules" to determine whether extraordinary circumstances exist, Davis v. Davis, 143 Ariz. 54, 59 (1984).
Rule 85(b)(6) tracks Rule 60(b)(6), Ariz. R. Civ. P. Authority interpreting Rule 60(b)(6) thus applies to Rule 85(b)(6), and we rely on such authority herein. See Ariz. R. Fam. Law P. 1(c) ("If language in these rules is substantially the same as language in the civil rules, case law interpreting the language of the civil rules will apply to these rules.").
¶10 Crosby does not challenge the superior court's finding that his Rule 85(b)(1) motion raised the same issue as his Rule 85(b)(6) motion. Rule 85(b)(6) is not "designed to be a vehicle for relitigating issues," Ariz. Dep't of Econ. Sec. v. Mahoney, 24 Ariz.App. 534, 536 (1975), nor does it "provide an alternative to an appeal," Aloia v. Gore, 252 Ariz. 548, ¶ 20 (App. 2022). Moreover, Crosby's allegations that he misunderstood both the scope of counsel's representation and the spousal-maintenance provision itself fall squarely within Rule 85(b)(1), precluding Crosby from seeking relief based on those circumstances under Rule 85(b)(6). See Gonzalez, 243 Ariz. 531, ¶ 12; Birt, 208 Ariz. 546, ¶ 22.
¶11 Crosby argues, however, that counsel's professional discipline constitutes an extraordinary circumstance that undermined the superior court's analysis in ruling on his Rule 85(b)(1) motion and warranted revisiting this issue under Rule 85(b)(6). As previously discussed, after the superior court ruled on Crosby's Rule 85(b)(1) motion, counsel admitted she had violated the Arizona Rules of Professional Conduct in several respects while litigating Crosby and Ginand's case, including by engaging in the conduct Crosby had identified in connection with his Rule 85(b)(1) motion. The Presiding Disciplinary Judge disciplined her accordingly. But Crosby cites no authority holding that an attorney's professional discipline warrants relief from a judgment, and the law in fact suggests otherwise. See Rogone v. Correia, 236 Ariz. 43, ¶ 31 (App. 2014) (denying motion for new trial based on attorney's conflict of interest and recognizing that "[t]he Rules of Professional Conduct are not intended to be invoked as a procedural weapon or to serve as a basis for civil liability"); see also Ariz. R. Sup. Ct. 42 pmbl. ¶ 20 ("[T]he purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.").
¶12 Likewise, an attorney's misadvice-or even his or her gross negligence-generally does not warrant setting aside a judgment. See Glaze v. Larsen, 207 Ariz. 26, ¶ 20 (2004) ("In the civil context, a party generally cannot obtain post-judgment relief because of the inexcusable neglect of counsel."); Panzino, 196 Ariz. 442, ¶ 19 ("Permitting relief from judgments entered as a result of an attorney's actions clearly undermines the 'undeniable public policy that recognizes the finality of judgments and discourages multiplicitous litigation.'" (quoting Smith v. Saxon, 186 Ariz. 70, 74 n.3 (App. 1996))), overruled on other grounds by Gonzalez, 243 Ariz. 531, ¶ 12; Rogone, 236 Ariz. 43, ¶ 31 ("Civil litigants are not entitled to postjudgment relief based on the adverse consequences of their counsel's ineffective assistance."). The same reasoning applies here, where counsel, at best, neglected to communicate to the parties the scope of her representation and failed, in some unspecified manner, to adequately explain the spousal-maintenance provision's consequences to Crosby.
Crosby argues we must impute counsel's errors to Ginand under principles of agency law. Crosby, however, did not make this argument below, and thus has waived it on appeal. See Roebuck v. Mayo Clinic, 256 Ariz. 161, ¶ 16 (App. 2023). And in any event, whether an agent's error is imputed to a principal is a different question from whether that error constitutes an extraordinary circumstance warranting relief under Rule 85(b)(6).
¶13 Moreover, counsel's admissions during the disciplinary proceeding do not materially change the factual allegations Crosby made in the Rule 85(b)(1) litigation and reiterated in his Rule 85(b)(6) motion. Instead, her admissions generally tracked Crosby's factual assertions. In particular, counsel admitted that she had "discussed" the spousal-maintenance provision with the parties but maintained, without offering details, that she had not adequately explained its "possible ramifications" to Crosby. This admission, however, did not preclude a finding that Crosby understood the provision despite counsel's omission and the confusion over her representation's scope. Therefore, the court did not abuse its discretion by making that finding based on Crosby's under-oath avowal that he had read and understood the entire agreement. See In re Estate of Henry, 6 Ariz.App. 183, 186 (1967) (competent persons "as a matter of law" held to know contents of agreements they sign). For these reasons, the superior court did not abuse its discretion by denying Crosby's Rule 85(b)(6) motion.
Crosby additionally maintains the superior court erred by placing "significant weight" on the parties' agreement, made after the Rule 85(b)(1) motion, to amend the decree to award Crosby the family business. But although not challenged on appeal, the business's division was at issue in the Rule 85(b)(6) motion, and the court did not err by addressing it.
Attorney Fees
¶14 Both parties request attorney fees on appeal under A.R.S. § 25-324. Although we disagree with Crosby's legal arguments, we conclude that neither he nor Ginand took an unreasonable position in the appellate litigation and therefore deny both requests. See § 25-324(A) . As the prevailing party, however, we award Ginand her costs on appeal on her compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-341.
Disposition
¶15 For the reasons explained above, we affirm the superior court's order denying Crosby's motion for relief from judgment.