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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
RICK ESTRADA, Petitioner/Appellant,
v.
MAURA ESTRADA, Respondent/Appellee.
No. 1 CA-CV 20-0554 FC
FILED 9-29-2022
AMENDED PER ORDER FILED 10-13-2022
Appeal from the Superior Court in Maricopa County
No. FN2019-093320
The Honorable Rodrick J. Coffey, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
APPEARANCES
Rick Estrada, Scottsdale
Petitioner/Appellant
Lawyers for Less, PLLC, Phoenix
By Gil Hacohen
Counsel for Respondent/Appellee
ESTRADA v. ESTRADA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge D. Steven Williams delivered the decision of the court, in
which Vice Chief Judge David B. Gass and Judge James B. Morse Jr. joined.
W I L L I A M S, Judge:
¶1 Rick Estrada (“Husband”) appeals from the superior court’s
decree of dissolution, including evidentiary rulings at trial, an equalization
payment for Maura Estrada (“Wife”), and Wife’s award of attorney’s fees.
For the following reasons, we affirm in part, and vacate and remand in part.
FACTUAL AND PROCEDURAL HISTORY
¶2 Husband and Wife married in 1995. In 2019, Husband
petitioned for divorce. The superior court issued a standard preliminary
injunction enjoining the parties from “transferring, encumbering,
concealing, selling, or otherwise disposing of any of the joint, common or
community property of the parties,” with exceptions for business, life
necessities, court fees, and attorney’s fees.
¶3 The parties participated in the collaborative law process
under Arizona Rule of Family Law Procedure (“ARFLP”) 67.1 and reached
a partial settlement agreement under ARFLP 69 allocating much of their
community assets and debts. Where the parties could not agree, they
proceeded to trial.
¶4 The superior court scheduled trial for July 14, 2020, and
ordered the parties to exchange “all exhibits they ha[d] in their possession
that they intend[ed] to use at [t]rial” by June 9.
¶5 At trial, Wife objected to the admission of nearly all of
Husband’s exhibits, arguing each was disclosed only days before trial and
well beyond the court’s disclosure deadline. Husband objected to Wife’s
requests to admit her exhibits, arguing they too were untimely disclosed.
The court stated it would consider requests to admit untimely disclosures
“on an exhibit-by-exhibit basis,” and ultimately admitted only a single
exhibit from Husband. Wife claimed she timely disclosed her exhibits to
Husband’s former counsel, who stopped representing Husband before
trial. The court admitted each of Wife’s exhibits.
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ESTRADA v. ESTRADA
Decision of the Court
¶6 Following trial, the superior court found that “Husband
liquidated [$28,573.58 out] of one of his retirement accounts after the
Petition was served,” that most of those funds were deposited into his
fiancée’s account, and that no persuasive evidence corroborated Husband’s
contention he used those funds to pay for community expenses. The court
awarded Wife an equalization payment for half of the monies Husband
withdrew. The court further awarded each party their separate property,
adopted the parties’ ARFLP 69 agreement, and ordered the parties be
equally responsible for paying certain community debts. Lastly, the court
awarded Wife attorney’s fees and costs under A.R.S. § 25-324.
¶7 Husband moved to alter or amend the judgment under
ARFLP 83, but the superior court denied his motion. Husband then timely
appealed.
¶8 We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution and A.R.S. § 12-2101(A)(1).
DISCUSSION
¶9 As a preliminary matter, Husband’s opening brief did not
comply with Rule 13(a)(7) of the Arizona Rules of Civil Appellate
Procedure (“ARCAP”), which requires an appellant’s opening brief to
provide “citations of legal authorities and appropriate references to
portions of the record on which the appellant relies.” In the exercise of our
discretion, we address Husband’s appeal to the extent he developed his
arguments. See MacMillan v. Schwartz, 226 Ariz. 584, 591, ¶ 33 (App. 2011)
(“Merely mentioning an argument in an appellate opening brief is
insufficient.”); Ace Auto. Products, Inc. v. Van Duyne, 156 Ariz. 140, 143 (App.
1987) (“It is not incumbent upon the court to develop an argument for a
party.”).
I. Evidentiary Rulings
¶10 Husband first argues the superior court erred in admitting
Wife’s exhibits while refusing to admit his exhibits. “We will not disturb a
[superior] court’s ruling on the admissibility of evidence absent a clear
abuse of discretion and resulting prejudice.” Fuentes v. Fuentes, 209 Ariz. 51,
56, ¶ 24 (App. 2004) (quoting Jimenez v. Wal-Mart Stores, Inc., 206 Ariz. 424,
427, ¶ 10 (App. 2003)). ARFLP 49 governs the timeliness of disclosure
leading up to a family law trial. But the superior court maintains “broad
discretion” over disclosure matters, Johnson v. Provoyeur, 245 Ariz. 239,
241-42, ¶ 8 (App. 2018), including the authority to impose deadlines other
than those specifically stated in the rule, see, e.g., ARFLP 49(b)(1) (“Unless
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Decision of the Court
. . . the court orders otherwise, every party must serve an initial disclosure
of information . . . not later than 40 days after the filing of the first
responsive pleading to a petition.”).
¶11 Here, the court ordered the parties to exchange exhibits by
June 9, five weeks before trial. Husband acknowledged he disclosed his
exhibits only days before trial and did not meet that deadline. The court
further noted Husband objected to Wife’s motion to continue the trial to
allow more time for discovery. The court was within its discretion to refuse
to admit into evidence Husband’s exhibits. And where the parties
disagreed on the timeliness of Wife’s disclosure, the court was within its
discretion to admit Wife’s exhibits. Gutierrez v. Gutierrez, 193 Ariz. 343, 347
¶ 13 (App. 1998) (reviewing courts defer to trial court’s determination of
credibility).
II. Equalization Payment
¶12 Husband next argues the superior court erred in awarding
Wife a $14,286.79 equalization payment after Husband withdrew funds
from his 401(k). “We will not set aside the [superior] court’s findings of fact
unless they are clearly erroneous.” Van Dyke v. Steinle, 183 Ariz. 268, 273
(App. 1995).
¶13 The record is clear that Husband withdrew funds from his
401(k) before filing for divorce, not after as the superior court found. The
court admitted Wife’s exhibit 5 into evidence, which was a printed
statement from J.P.Morgan showing Husband withdrew his funds in
January 2019, ten months before he filed for divorce. Husband testified to
the same and Wife’s written pre-trial statement informed that in “January
2019 both parties disbursed their individual retirement accounts to their
individual bank accounts.” No record evidence suggested otherwise. Thus,
the court’s finding that “Husband liquidated a portion of one of his
retirement accounts after the Petition was served,” was error.
¶14 Wife argued that Husband spent those withdrawn monies for
purposes other than to benefit the marital community. Though the court
presumes that community funds are spent for the benefit of the community,
we cannot discern from the decree whether the superior court would have
awarded the equalization payment had it correctly found Husband
withdrew the 401(k) monies before filing for divorce. See Gutierrez at
346-47, ¶ 7 (holding that the spouse alleging abnormal or wasteful
expenditure of community assets by the other spouse bears the burden of
proof). Consequently, we vacate the equalization award and remand for the
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Decision of the Court
superior court to decide whether that award is warranted given the timing
of Husband’s withdrawal.
III. Attorney’s Fees
¶15 Husband finally argues the superior court erred in awarding
Wife her attorney’s fees under A.R.S. § 25-324. Section 25-324 authorizes an
award of attorney’s fees after the court considers both parties’ financial
resources and the reasonableness of their positions throughout the
proceedings. We review the court’s fee award for an abuse of discretion.
Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2014).
¶16 Here, the superior court found Husband acted unreasonably
by (1) not timely disclosing information to Wife; (2) failing to present
persuasive evidence during trial; and (3) violating the preliminary
injunction by withdrawing funds from his 401(k) after the petition for
dissolution was served. The third basis for the court’s award was not
supported by the record, supra ¶ 13. And because we cannot perceive
whether the court would have awarded Wife her attorney’s fees based only
on the first two factors it identified, we vacate the award and remand for
the court to reconsider whether fees are justified.
CONCLUSION
¶17 For the foregoing reasons, we affirm the superior court’s
evidentiary rulings, but vacate Wife’s equalization award and award of
attorney’s fees. We remand to allow the superior court to reconsider both
awards.
AMY M. WOOD • Clerk of the Court
FILED: JT
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