Nguyen v. Trinh

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

ANTON NGUYEN, Petitioner/Appellant,

v.

KIMQUY THI TRINH, Respondent/Appellee.

No. 1 CA-CV 20-0325 FC
FILED 2-9-2021

Appeal from the Superior Court in Maricopa County
No. FN2018-094469
The Honorable Adele Ponce, Judge

AFFIRMED

COUNSEL

Robert F. Gehrke Attorney at Law, Phoenix
By Robert F. Gehrke (deceased)
Counsel for Petitioner/Appellant

Anton Nguyen, Chandler
Petitioner/Appellant

Fuqua Law Firm PC, Chandler
By Barbara L. Fuqua
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.

B A I L E Y, Judge:

Anton Nguyen (“Husband”) appeals the superior court’s
approval of an Arizona Rule of Family Law Procedure (“Rule”) 69
agreement and entry of a decree of dissolution. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

Husband and Kimquy Thi Trinh (“Wife”) married in Vietnam
in 1975. In October 2018, Husband filed for dissolution. Before Wife filed
a response, the parties’ adult daughter worked with Husband to draft a
Rule 69 agreement (“Agreement”) that divided some but not all of the
parties’ property. Although counsel represented Husband at the time,
Husband signed the Agreement in January 2019 without his counsel
present. Wife signed shortly thereafter.

After the parties appeared for conciliation services in
February 2019, Wife responded to Husband’s petition and moved the court
to approve the Agreement. Without waiting for a response, the trial court
granted Wife’s motion.

Five months later, Husband moved to set aside the
Agreement. He argued he had been coerced into signing the Agreement
and signed it without fully understanding its contents or legal effects. He
also claimed the Agreement unfairly divided the parties’ assets.

The trial court combined an evidentiary hearing on
Husband’s motion with the trial on the dissolution. It provided an
interpreter for both parties. After the trial, the court denied Husband’s
motion to set aside the Agreement, entered a decree of dissolution, and
awarded Wife $10,000 in attorneys’ fees and costs. Husband timely
appealed.

We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution and A.R.S. § 12-2101(A)(1).

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DISCUSSION

Husband argues the trial court erred by approving the
Agreement because evidence showed that Husband did not understand the
Agreement and the Agreement was incomplete. He argues he was
deprived of a fair trial; testimony by the parties’ daughter was improper;
the court erred in ordering reimbursement for community waste; and the
court erred by awarding Wife her attorneys’ fees.

I. Whether Husband was deprived of a fair trial.

Husband contends he was deprived of a fair trial because the
court-appointed interpreter did not adequately interpret the proceedings.
He further argues the trial court abused its discretion by limiting his
testimony and claims that the record clearly shows he did not understand
the proceedings. See Ariz. R. Evid. 611(a).

The Fourteenth Amendment “entitles a party to notice and an
opportunity to be heard at a meaningful time and in a meaningful manner.”
Curtis v. Richardson, 212 Ariz. 308, 312, ¶ 16 (App. 2006). Consistent with
that principle, the trial court provided a Vietnamese interpreter so that
Husband and Wife could understand the proceedings.

Husband points out that the court had to interrupt the
testimony of the parties’ daughter when it noticed that the interpreter did
not appear to be interpreting her testimony. But on that occasion, the court
properly ordered questioning of the daughter to start again from the
beginning, directed the interpreter to interpret her testimony, and stated it
would disregard the daughter’s previous testimony. Husband raised no
objection at trial to the interpreter’s performance, and on appeal, he does
not cite any testimony that should have been interpreted but was not.

Husband also argues the court several times “cut off” his
testimony. But the transcript shows that on those occasions, the court was
exercising its discretion to prevent Husband from testifying about
unrelated topics or continuing to speak when there was no question before
him. Thus, the court acted well within its duty and discretion under
Arizona Rule of Evidence 611. See Ariz. R. Evid. 611(a) (“The court should
exercise reasonable control over the mode and order of examining
witnesses and presenting evidence so as to: (1) make those procedures
effective for determining the truth; [and] (2) avoid wasting time . . . .”).

Husband, who represented himself at trial, further argues he
did not properly understand the nature of the proceedings and the

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applicable rules. Unrepresented litigants are held to the same standards as
attorneys. Flynn v. Campbell, 243 Ariz. 76, 83-84, ¶ 24 (2017). Further,
although Husband complained during the trial that he was confused, in the
court’s written ruling, it expressly rejected his contention that he did not
fully understand the proceedings. “We do not reweigh evidence or
determine the credibility of witnesses.” Clark v. Kreamer, 243 Ariz. 272, 276,
¶ 14 (App. 2017) (quoting Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 92,
¶ 36 (App. 1998)).

For these reasons, we conclude Husband was not deprived of
a fair trial on the decree and was not deprived of a fair hearing concerning
his motion to set aside the Agreement.

II. Whether the trial court erred by approving the Agreement.

Husband next argues the trial court erred by approving the
Agreement before Wife filed her response to the dissolution petition. The
record is to the contrary. Wife’s attorney filed a response to Husband’s
petition on March 29, 2019, and the court approved the Agreement nearly
two months later, on May 20, 2019.

He also contends that because the parties signed the
Agreement before Wife filed her response to his petition, the Rules of
Family Law Procedure did not apply to the Agreement. Husband’s
argument fails because the Rules apply to all family law cases, and
Husband initiated a family law case when he filed his petition for
dissolution. See Ariz. R. Fam. Law P. (“ARFLP”) 1, 23.

Husband further argues, citing A.R.S. § 25-317 and Sharp v.
Sharp, 179 Ariz. 205 (App. 1994), that the court erroneously concluded the
Agreement was fair and equitable and that the court failed to consider the
property that was given to the parties’ children.

A Rule 69 “agreement is presumed valid, and a party who
challenges its validity has the burden to prove any defect.” ARFLP 69(c).
“[T]he terms of [a] separation agreement . . . are binding on the court unless
it finds, after considering the economic circumstances of the parties and any
other relevant evidence produced by the parties, on their own motion or on
request of the court, that the separation agreement is unfair.” A.R.S. § 25-
317(B). Although several cases—including Sharp— have stated in dicta that
a separation agreement is binding unless the court finds the agreement
“unfair or inequitable,” § 25-317 does not use the term equitable. See
Buckholtz v. Buckholtz, 246 Ariz. 126, 131, ¶ 18 (App. 2019). “Accordingly,
when a separation agreement is presented to the superior court under

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A.R.S. § 25-317, the court's obligation is to determine whether the
agreement is ‘unfair.’” Id. (quoting A.R.S. § 25-317(B)).

We conclude the court did not abuse its discretion by finding
the Agreement fair and approving it. Although Husband argues the
Agreement is not fair because it did not take into account property the
parties gave to their children, the record does not support this assertion.
The Agreement itself acknowledged that the parties had already
transferred the property to their children, a fact Husband admitted at trial.
Additionally, contrary to Husband’s assertion, the court expressly found
that the Agreement was fair.

Finally, Husband argues the court should have set aside the
Agreement because of “confusion and uncertainty along the way the
Agreement was executed” and because it did not address the parties’
retirement and other financial accounts. But testimony at trial established
that the parties’ daughter drafted the Agreement in close cooperation with
Husband, and that she had urged Husband to include the retirement
accounts in the Agreement, but that he intentionally omitted the accounts
because “[h]e said they were about the same, and they weren’t important.”
Further, testimony also established that the Agreement had been explained
to Husband in English and Vietnamese multiple times in front of witnesses
and notaries. Based on the foregoing, the court did not err by approving
the Agreement and denying Husband’s motion to set it aside.

III. Whether admission of the parties’ daughter’s testimony was proper.

Husband next argues the parties’ daughter practiced law
without a license when she helped him prepare the Agreement. Rule 69,
however, does not require that a lawyer prepare an agreement subject to
the rule. Cf. Fowler v. Fowler, 1 CA-CV 14-0361, 2015 WL 410594, at *2, ¶ 13
(Ariz. App. Jan. 27, 2015) (mem. decision) (concluding email between the
parties, without the input of counsel, was a binding enforceable Rule 69
agreement).

Husband further asserts the court erred by allowing the
daughter to testify because she was “clearly biased” in favor of Wife.
Judging the credibility of witnesses is the province of the trier of fact. Pugh
v. Cook, 153 Ariz. 246, 247 (App. 1987). Similarly, although Husband argues
the court improperly allowed the daughter to testify about her opinions, the
transcript does not support this assertion.

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IV. Whether the court erred by ordering reimbursement for community
waste.

Husband next argues the trial court erred by ordering him to
reimburse Wife for community waste because the only evidence of waste
was his daughter’s testimony.

“When the court determines one spouse has wasted or
dissipated marital assets, it may apportion the community property in a
manner designed to compensate the other spouse for the waste.” Helland v.
Helland, 236 Ariz. 197, 201, ¶ 17 (App. 2014). “The spouse
alleging waste must make a prima facie showing to support his or her claim;
the other spouse then bears the burden to demonstrate the absence
of waste.” Id.

Again, the record does not support Husband’s assertion.
Although the parties’ daughter testified about the amount Husband had
spent on his mistress, the court also admitted financial records supporting
the daughter’s testimony. Husband did not object to the records, and in
fact admitted he gave his mistress gifts, sent her money, and spent
community funds to travel to see her. Accordingly, the trial court did not
err by ordering reimbursement for community waste.

V. Whether the court erred by awarding attorneys’ fees.

Husband finally argues the trial court erred by ordering him
to pay Wife $10,000 in attorneys’ fees. He complains the award was
substantively unfair and the amount of fees were excessive.

“The court . . . after considering the financial resources of both
parties and the reasonableness of the positions each party has taken
throughout the proceedings, may order a party to pay a reasonable amount
to the other party for the costs and expenses of maintaining or defending
any proceeding . . . .” A.R.S. § 25-324(A).

The trial court based its fee award on finding that Husband
acted unreasonably in the litigation, and the record supports this finding.
As the court found, Husband was delinquent in responding to discovery
requests, requiring Wife to issue several subpoenas to obtain information
on Husband’s financial accounts. Further, Husband took unreasonable trial
positions, including that the parties’ marriage certificate was fake and the
parties were not married.

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Further, the amount of attorneys’ fees and costs was
supported by documentation and properly assessed by the court. See A.R.S.
§ 25-324; Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 188-89 (App.
1983). Wife requested $19,560.77 in fees and costs, but, after receiving
Husband’s response to Wife’s request, the court awarded Wife only
$10,000.

The court did not abuse its discretion by awarding Wife her
attorneys’ fees and costs.

VI. Attorneys’ fees on appeal.

Husband requests an award of his attorneys’ fees and costs
pursuant to ARCAP 21 and A.R.S. §§ 12-341 and 25-324. Wife also requests
an award of her fees and costs pursuant to ARCAP 21 and A.R.S. § 25-324.
In an exercise of our discretion, we award Wife her reasonable fees and
costs upon her compliance with ARCAP 21.

CONCLUSION

For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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