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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
YOSHIIKI TRAINOR, Petitioner/Appellee,
v.
RUBY TRAINOR, Respondent/Appellant.
No. 1 CA-CV 14-0426 FC
FILED 4-30-2015
Appeal from the Superior Court in Maricopa County
No. FC2010-090465
The Honorable Benjamin R. Norris, Judge, Retired
DISMISSED IN PART AND AFFIRMED IN PART
COUNSEL
Law Offices of Linda Aaron-Lory, PC, Paradise Valley
By Linda Aaron-Lory
Counsel for Petitioner/Appellee
Richard G. Neuheisel, PLLC, Tempe
By Richard G. Neuheisel
Counsel for Respondent/Appellant
TRAINOR v. TRAINOR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Michael J. Brown joined.
T H U M M A, Judge:
¶1 Ruby Trainor (Mother) appeals from an order dismissing her
petition to modify child support and spousal maintenance and from an
order denying her motion for relief from that order. Because this court lacks
jurisdiction to consider the dismissal of Mother’s petition, that portion of
her appeal is dismissed. Because Mother has not shown the superior court
abused its discretion in denying her motion for relief, that order is affirmed.
BACKGROUND
¶2 Mother’s marriage to Yoshiiki Trainor (Father) was dissolved
in a 2011 Consent Decree. Pursuant to the Decree, the parties shared joint
custody of their three minor children, no child support was paid from one
parent to the other and Father paid Mother $500 in monthly spousal
maintenance.
¶3 In 2013, Mother filed a petition to modify the Decree’s
provisions regarding child support and spousal maintenance. The court set
a two-hour evidentiary hearing on the petition, specifying in a minute entry
the hearing would be “at the Southeast Judicial District, 222 East Javelina
Avenue, Courtroom 304, Mesa, Arizona 85210.” The hearing was set to start
at 2:00 p.m. When Mother and her attorney had not appeared by 2:41 p.m.,
the court found Mother in default and dismissed her petition in a signed
minute entry filed March 5, 2014.
¶4 Two weeks later, citing Arizona Rule of Civil Procedure 60(c)
(2015), Mother filed a motion for relief asking that the March 5, 2014 minute
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entry “be vacated and this matter be reinstated on the active calendar and
referred to court administration for reassignment.” The motion stated a
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated. The rule in this
Family Court case is Arizona Rule of Family Law Procedure 85(C)(1).
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TRAINOR v. TRAINOR
Decision of the Court
temporary legal assistant for Mother’s counsel “directed . . . Mother and her
counsel . . . to the wrong court.” The motion stated Mother and her counsel
arrived at court in Phoenix for the hearing and learned the hearing would
be held in Mesa. The motion added that “[a] phone call was immediately
made to” the judge’s chambers in Mesa and that a judicial assistant
informed Mother’s counsel that “he would be granted additional time but
such time would be reduced from his allotted court time.” The motion
included an affidavit from Mother stating that, when she and her attorney
arrived at the Mesa court for the 2:00 p.m. hearing at approximately 2:40
p.m., Father and his counsel were leaving. The motion argued the failure to
timely appear for the hearing under these circumstances amounted to
mistake, inadvertence and excusable neglect, meaning the March 5, 2014
minute entry should be vacated.
¶5 After Father filed a response, the court denied Mother’s
motion for relief in an unsigned minute entry, explaining
The Court waited a considerable amount of time
for Mother and her counsel to appear, but when
the amount of time remaining reached the point
where Mother could not realistically present her
case while still allowing Father one-half of the
originally scheduled time to present his case,
the Court defaulted Mother and dismissed her
petition.
Recognizing the dismissal was without prejudice, the court noted Mother
could refile the petition. The court also awarded Father a portion of his
requested attorneys’ fees incurred in a signed judgment.2
¶6 On June 4, 2014, the court entered a signed version of the
minute entry denying Mother’s motion for relief. Later on June 4, 2014,
Mother filed a notice of appeal purporting to appeal from (1) the March 5,
2014 signed minute entry dismissing her petition and (2) the June 4, 2014
signed order denying her motion for relief. The record does not suggest that
Mother ever refiled her petition.
2 Although Mother timely appealed from the judgment awarding Father
attorneys’ fees, by not challenging that award in her briefs, she has waived
any challenge to that award. See MacMillan v. Schwartz, 226 Ariz. 584, 591 ¶
33, 250 P.3d 1213, 1220 (App. 2011).
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TRAINOR v. TRAINOR
Decision of the Court
DISCUSSION
I. This Court Lacks Appellate Jurisdiction Over Mother’s Purported
Appeal From The March 5, 2014 Minute Entry.
¶7 This court must independently determine whether it has
jurisdiction over an appeal. Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304,
812 P.2d 1119, 1122 (App. 1991). The superior court dismissed Mother’s
petition without prejudice, meaning the March 5, 2014 minute entry is not
a final appealable order. See L.B. Nelson Corp. of Tucson v. W. Am. Fin. Corp.,
150 Ariz. 211, 217, 722 P.2d 379, 385 (App. 1986). Moreover, even if that
March 5, 2014 minute entry had been appealable, this court would lack
appellate jurisdiction because Mother failed to file a timely notice of appeal
from that ruling. See Ariz. R. Civ. App. P. 9(a). And Mother’s motion for
relief did not extend the time to appeal from the March 5, 2014 minute entry.
See Rosen v. Bd. of Med. Exam’rs, 185 Ariz. 139, 142, 912 P.2d 1368, 1371 (App.
1995), abrogated on other grounds by Sw. Paint & Varnish Co. v. Ariz. Dep’t of
Envtl. Quality, 194 Ariz. 22, 976 P.2d 872 (1999). Because this court lacks
appellate jurisdiction over Mother’s purported appeal from the March 5,
2014 minute entry, the portion of her appeal purporting to challenge that
ruling is dismissed.
II. The Superior Court Did Not Abuse Its Discretion In Denying
Mother’s Motion For Relief.
¶8 Mother argues a “confluence of circumstances” mandates a
finding of mistake, inadvertence and excusable neglect, meaning the
superior court abused its discretion in denying her motion for relief. The
superior court is vested with broad discretion in addressing such a motion.
Panzino v. City of Phoenix, 196 Ariz. 442, 448 ¶ 19, 999 P.2d 198, 204 (2000);
accord Ariz. R. Fam. L.P. 76(D), 85(C). This court reviews the denial of
Mother’s motion for relief for an abuse of discretion. See PNC Bank v.
Cabinetry By Karman, Inc., 230 Ariz. 363, 364 ¶ 6, 284 P.3d 874, 875 (App.
2012).
¶9 In addressing Mother’s motion for relief, the superior court
had the discretion to relieve her from mistake, inadvertence, surprise or
excusable neglect. See Ariz. R. Fam. L.P. 85(C)(1). Neglect may be excusable
if “the neglect or inadvertence is such as might be the act of a reasonably
prudent person under similar circumstances.” Daou v. Harris, 139 Ariz. 353,
359, 678 P.2d 934, 940 (1984) (citation omitted). As applied, the superior
court apparently determined that “a reasonably prudent” person would
have timely appeared for the hearing at the location set forth in the court’s
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TRAINOR v. TRAINOR
Decision of the Court
minute entry, despite having been told inaccurate information about the
hearing’s location. Stated differently, the court apparently found the
inaccurate information did not provide good cause to justify the absence of
Mother and her counsel from attending the hearing. The record supports
this apparent conclusion by the court.
¶10 As acknowledged by Mother’s counsel, his office delivered
trial exhibits to the court in Mesa about a week before the hearing. Mother’s
counsel also included the court’s Mesa chambers in the mailing certificate
for filings and apparently personally appeared at an earlier proceeding in
this case in the court in Mesa. It is clear that Mother’s counsel had written
notice that the evidentiary hearing would be held at the Mesa court
location. In assessing these facts, the superior court apparently concluded
that the error was a result of carelessness, not excusable neglect, a
conclusion that the record supports. See Beyerle Sand & Gravel, Inc. v.
Martinez, 118 Ariz. 60, 62, 574 P.2d 853, 855 (App. 1977) (“Carelessness is
not synonymous with ‘excusable neglect.’”) (citation omitted).
¶11 Mother cites appellate decisions concluding a superior court
did not abuse its discretion in finding that errors by an attorney or the
attorney’s staff can constitute excusable neglect. Those cases do not
mandate that a court find such errors constitute excusable neglect but,
rather, stand for the proposition that the court has the discretion to make
such a finding. As applied, the superior court here appears to have had the
discretion to grant Mother’s motion for relief. The superior court, however,
did not do so. On appeal, Mother has not shown that the superior court
abused its discretion in denying her motion for relief.
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TRAINOR v. TRAINOR
Decision of the Court
CONCLUSION
¶12 The portion of Mother’s appeal purporting to challenge the
March 5, 2014 minute entry dismissing her petition is dismissed for lack of
jurisdiction. As to the remainder of Mother’s appeal, the superior court’s
June 4, 2014 minute entry denying Mother’s motion for relief is affirmed.
Because this court lacks information regarding the parties’ respective
financial resources, the court denies Father’s request under A.R.S. § 25-324
for an award of attorneys’ fees incurred on appeal. Father is, however,
awarded his taxable costs on appeal contingent upon his compliance with
Arizona Rule of Civil Appellate Procedure 21.
:ama
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