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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
MICHELLE DAWN DOUROS, Petitioner/Appellee,
v.
NEAL ANTHONY DOUROS, Respondent/Appellant.
No. 1 CA-CV 14-0469 FC
FILED 5-12-2015
Appeal from the Superior Court in Maricopa County
No. FC2012-001355
The Honorable Sam J. Myers, Judge
AFFIRMED
COUNSEL
Childers & Huey, PLC, Scottsdale
By Joseph M. Huey
Counsel for Petitioner/Appellee
Neal Anthony Douros, Surprise
Respondent/Appellant
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
DOUROS v. DOUROS
Decision of the Court
P O R T L E Y, Judge:
¶1 Neal Anthony Douros (“Father”) appeals the denial of his
motion for relief from judgment brought pursuant to Arizona Rule of
Family Law Procedure 85(C). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Father and Michelle Dawn Douros (“Mother”) were married
in 2007 and divorced in June 2013. They have two minor children, who
reside primarily with Mother. The decree of dissolution ordered Father to
pay $958 per month in child support, which he failed to pay. Seven months
after the decree, the family court entered judgment against Father for child
support arrearages from February 2012 through December 2013 in the
amount of $22,616.21.
¶3 Father filed a petition to modify child support. At the
subsequent evidentiary hearing, Mother testified that the parties’ older
daughter, who attends a private school, is on scholarship. Based on her
testimony, Father filed a Rule 85(C) motion in March 2014 seeking relief
from the child support order contained in the decree and arguing that the
order in the decree was based on Mother’s intentional misrepresentation of
educational expenses.
¶4 The family court found the motion untimely, denied it, and
Father filed his notice of appeal. We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(2).1 See In re Estate of Rose,
108 Ariz. 207, 208-09, 495 P.2d 138, 139-40 (1972) (upholding the right to
appeal the trial court’s decision on a motion for relief from judgment).
DISCUSSION
¶5 We must determine whether the family court abused its
discretion in denying Father’s motion for relief from judgment. See City of
Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985); Martin v.
Martin, 182 Ariz. 11, 16, 893 P.2d 11, 16 (App. 1994) (“Absent an abuse of
discretion, we will not disturb a trial court’s decision on a motion to set
aside a judgment.”).
1Absent material revisions after the relevant dates, we cite the current
version of a statute unless otherwise indicated.
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DOUROS v. DOUROS
Decision of the Court
¶6 Rule 85(C) gives discretion to a family court to relieve a party
from a final judgment or order for the following reasons:
a. mistake, inadvertence, surprise, or excusable
neglect;
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;
. . . ; or
f. any other reason justifying relief from the
operation of the judgment.
Ariz. R. Fam. L.P. 85(C)(1). The motion, however, must be filed “within a
reasonable time,” and, if filed “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.” Ariz. R. Fam. L.P. 85(C)(2) (emphasis added). Rule 85(C) is based
upon Arizona Rule of Civil Procedure 60(c).2 See Ariz. R. Fam. L.P. 85,
2 Rule 60 provides:
On motion and upon such terms as are just the court may
relieve a party or a party’s legal representative from a final
judgment, order or proceeding for the following reasons: (1)
mistake, inadvertence, surprise or excusable neglect; (2)
newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under
Rule 59(d); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct
of an adverse party; (4) the judgment is void; (5) 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 (6) any other reason justifying
relief from the operation of the judgment. The motion shall
be filed within a reasonable time, and for reasons (1), (2) and
(3) not more than six months after the judgment or order was
entered or proceeding was taken. . . .
Ariz. R. Civ. P. 60(c).
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DOUROS v. DOUROS
Decision of the Court
comm. cmt. (“This rule is based on Rule 60, Arizona Rules of Civil
Procedure.”); Ariz. R. Fam. L.P. 1, comm. cmt. (“Wherever the language in
these rules is substantially the same as the language in other statewide
rules, the case law interpreting that language will apply to these rules.”).
¶7 Although Father did not originally identify which Rule 85(C)
subsections he was relying on, he, however, requested relief based on
Mother’s alleged fraud and misrepresentation, claiming:
Father requests this relief due to the March 3,
2014 discovery of fraud committed by Mother
through intentional misrepresentation of
educational expenses which were used in
calculating Father’s child support obligation. . . .
Due to the significant amount of this debt and
special circumstance of fraud, Father requests
relief from only the fraudulent and contrived
portion of the child support that was awarded
to Mother based on the educational expenses
which she fraudulently claimed.
And in his reply, Father clarified that he was relying upon subsections 1(b)
(newly discovered evidence), 1(c) (fraud, misrepresentation or other
misconduct), 1(d) (judgment is void), and 1(f) (any other reason justifying
relief).3
3 Although Father cites subsection 1(d) in his opening brief, he does not
argue for its application on appeal; therefore, he has waived this issue. See
Jones v. Burk, 164 Ariz. 595, 597, 795 P.2d 238, 240 (App. 1990) (“Issues not
clearly raised and argued in a party’s appellate brief constitute waiver of
error on review.”); see also ARCAP 13(a)(7)(A) (requiring a brief to contain
“[Father]’s 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”). Moreover, the underlying record contains no
evidence suggesting the judgment was void. See Martin, 182 Ariz. at 15, 893
P.2d at 15 (“A judgment or order is ‘void’ if the court entering it lacked
jurisdiction: (1) over the subject matter, (2) over the person involved, or (3)
to render the particular judgment or order entered.”).
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DOUROS v. DOUROS
Decision of the Court
A. Subsections 1(b) and 1(c)
¶8 Subsection 1(b) permits relief from judgment for “newly
discovered evidence.” Ariz. R. Fam. L.P. 85(C)(1)(b). Subsection 1(c)
permits relief based on “fraud, misrepresentation, or other misconduct of
an adverse party.” Ariz. R. Fam. L.P. 85(C)(1)(c). Rule 85(C) imposes a six-
month limit on motions filed on either of these grounds. Ariz. R. Fam. L.P.
85(C)(2). This limitation is designed to ensure the finality of judgments.
Webb v. Erickson, 134 Ariz. 182, 186, 655 P.2d 6, 10 (1982).
¶9 Father filed his Rule 85(C) motion nine months after the entry
of the decree. The family court, as a result, did not have discretion to set
aside the judgment on the basis of newly discovered evidence, fraud,
misrepresentation, or other misconduct. Fry v. Garcia, 213 Ariz. 70, 73, 138
P.3d 1197, 1200 (App. 2006) (“The superior court correctly denied this
portion of the Rule 60 motion as time-barred because Mother did not file
the motion within six months from the court’s last order . . . .”).
Accordingly, the family court properly exercised its discretion and denied
Father’s untimely motion challenging the child support order in the decree.
B. Subsection 1(f)4
¶10 Subsection 1(f), the catchall provision, allows a court to
provide relief from judgment for “any other reason justifying relief.” Ariz.
R. Fam. L.P. 85(C)(1)(f). To obtain relief under 1(f), Father must show
“extraordinary circumstances of hardship or injustice,” other than or in
addition to those circumstances listed in subsections 1(a) through 1(e).
Gorman v. City of Phoenix, 152 Ariz. 179, 182, 731 P.2d 74, 77 (1987) (citation
omitted). In fact, our supreme court has warned:
The wording of this clause places two separate
limitations upon its application. First, the
reason for setting aside the [judgment] must not
be one of the reasons set forth in the five
preceding clauses. Clause 6 and the first five
clauses are mutually exclusive. Second, the
4 Father argued for the application of subsection 1(f) in his reply to the
family court. Although Father should have included “the precise legal
points, statutes and authorities relied upon” in his original motion and his
reply should have been “directed only to matters raised in the response,”
we will consider Father’s argument under subsection 1(f) because he cited
to Rule 85(C) generally in his motion. Ariz. R. Fam. L.P. 35(A)(1), (4).
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DOUROS v. DOUROS
Decision of the Court
“other reason” advanced must be one which
justifies relief.
Webb, 134 Ariz. at 186, 655 P.2d at 10 (citations omitted) (emphasis added).
Consequently, subsection 1(f) cannot be used to circumvent the six-month
limitation applicable to subsections 1(a), 1(b), and 1(c).
¶11 Father, however, relies on Amanti Elec., Inc. v. Engineered
Structures, Inc., 229 Ariz. 430, 276 P.3d 499 (App. 2012), to establish that he
was entitled to relief under Rule 85(C)(1)(f). His reliance is misplaced. In
Amanti, Division Two held that “[e]ven when relief might have been
available under one of the first five clauses but for the fact that the time
limits of the rule had elapsed, this does not necessarily preclude relief under
clause (6) if the motion also raises exceptional additional circumstances that
convince the court the movant should be granted relief in the interest of
justice.” 229 Ariz. at 433, 276 P.3d at 502. Consequently, the Amanti
decision reinforces the requirement that there must be “exceptional
additional circumstances” to justify relief under subsection 1(f).
¶12 Here, Father did not present any extraordinary or exceptional
circumstances of hardship or injustice warranting relief from the decree.
He based his motion on his allegation that Mother intentionally
misrepresented educational expenses for their children and the court relied
upon those expenses in determining his child support obligation. The
education expense issue was, however, raised by Mother in the joint pretrial
statement filed prior to the trial. In the joint pretrial statement, Mother
stated:
The parties’ children attend Northwest
Christian School which requires tuition to be
paid. Mother has applied for scholarships to
cover some of the costs. Father has not
contributed to the children’s school tuition.
This tuition should be considered when
calculating child support.
¶13 Father could have investigated the educational expenses and
whether any child was receiving a scholarship from the school, and, if
appropriate, he should have challenged the educational expenses and the
impact of any scholarship on those expenses at trial. See Geyler, 144 Ariz. at
328, 697 P.2d at 1078 (“[T]he party seeking relief has had his day in court
since the case has already been litigated on its merit.”). Because he does not
raise any extraordinary reasons why he could not have discovered whether
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DOUROS v. DOUROS
Decision of the Court
any child was receiving a scholarship to attend the private school and
timely challenged the issue at trial, the family court properly exercised its
discretion and denied his Rule 85 motion.
¶14 Finally, Mother requests her attorney’s fees on appeal
pursuant to A.R.S. § 25-324. She argues that she is entitled to fees because
Husband took unreasonable positions on appeal. In the exercise of our
discretion, we deny Mother’s request for fees on appeal, but award her costs
on appeal upon compliance with ARCAP 21.
CONCLUSION
¶15 For the foregoing reasons, we affirm the family court’s order
denying Father relief under Rule 85(C). We also award Mother her costs on
appeal.
:ama
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