Ledo v. Ledo ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
VICTOR LEDO, Petitioner/Appellant,
v.
IRMA LEDO, Respondent/Appellee.
No. 1 CA-CV 14-0331 FC
FILED 5-7-2015
Appeal from the Superior Court in Maricopa County
No. FC2011-000009
The Honorable Christopher A. Coury, Judge
AFFIRMED
COUNSEL
Victor Ledo, Mesa
Petitioner/Appellant
Irma de la Cruz Ledo, Apache Junction
Respondent/Appellee
LEDO v. LEDO
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge John C. Gemmill and Judge Kenton D. Jones joined.
K E S S L E R, Judge:
¶1 Victor Ledo (“Husband”) appeals from the superior court’s
post-judgment order affirming his obligation to pay Irma Ledo (“Wife”)
$35,534 as reimbursement for funds he received from the sale of their
community property. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Husband filed a petition for dissolution of marriage in
January 2011. Prior to trial, at a settlement conference in May 2013, all
pending issues were resolved under a Rule 69 agreement. See Ariz. R. Fam.
L. P. 69. The current dispute arises from the disposition of $127,000 in net
proceeds received from the sale of the parties’ California residence in 2009.
Husband transferred $78,500 of those funds into his personal savings
account. Pursuant to the Rule 69 agreement, Husband was to receive credit
against the proceeds if he could provide documentation to support his
claim that he had used all or part of those proceeds to satisfy community
debts:
Within forty-five days, [Husband] shall provide to [Wife] an
allocation as to what, if any, of those funds were spent on the
community and how those funds were spent. The parties
agree that whatever amount was spent on the community,
[Husband] will receive credit for having spent on the
community and whatever funds are unallocated or not spent
on the community [Wife] will be entitled to reimbursement
for, for her portion of the community share of those funds.
[Husband] will provide bank statements, receipts, credit card
receipts and whatever other tangible receipts he can provide with
respect to those expenditures.
(Emphasis added.) Although the superior court found his submission of
expenses was untimely and disorganized, it admitted and considered the
accounting documentation in the interests of justice, so as not to prejudice,
or afford a windfall to, either party. The court thereafter ordered Husband
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to pay Wife an equalization payment of $59,784.97, which represented 50%
of the unallocated funds from the California property sale proceeds after
offsets, but allowed for Father to file simultaneous motions to correct
mistake, Ariz. R. Fam. L. P. 85, and to appoint a Special Master, Ariz. R.
Fam. L. P. 72, if he desired further consideration of the issue.
¶3 At Husband’s request, the superior court appointed a Special
Master, and granted him full authority to make recommended findings and
orders regarding the financial accounting of the community funds and
whether Husband was entitled to any additional reduction of his
equalization payment. See Ariz. R. Fam. L. P. 72. In the meantime,
Husband’s 50% interest in the proceeds from the sale of other community
properties was held in escrow pending resolution of the dispute. The
Special Master held an evidentiary hearing in January 2014, and after
hearing testimony and reviewing the records, found that Husband failed to
meet his burden of proving he was entitled to any additional offset. As a
result, the Special Master recommended releasing all the funds in escrow to
Wife.
¶4 After the evidentiary hearing, Wife filed an application for
attorneys’ fees and costs. In her request, Wife also sought sanctions against
Husband for failure to disclose certain requested documents. The Special
Master denied Wife’s request:
[P]ursuant to an analysis of existing orders in this case and
balancing the parties’ finances it does not appear to the
Special Master that an award of attorney’s fees and costs . . .
would be appropriate.
In her request for attorney’s fees and costs [Wife] seeks
a sanction against [Husband] for the failure to disclose
requested documents pertaining to this controversy. The
Special Master has recommended that [Husband] not receive
any further credits. The Special Master has recommended
that the remaining funds held in escrow be awarded to [Wife].
The Special Master’s recommendation is based upon
[Husband]’s failure to provide the documentary evidence to
support his claim. In the opinion of the Special Master that is
sanction enough for this matter.
¶5 Husband filed an objection to the Special Master’s report and
recommendations, arguing there was no legal authority to deny Husband
credit for the documented expenses or to impose a sanction. The superior
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court found the record supported the Special Master’s recommendations
and awarded Wife $33,008.97.1 In addition, the court found that Husband
misconstrued the language in the Special Master’s report, and that no
sanction was actually imposed:
[In] the Special Master Report, the Special Master wrote: “In the
opinion of the Special Master that is sanction enough for this
matter.” [Husband] construes this language to mean that the
award of the remaining funds in escrow to [Wife] is a sanction
against him. Although the Court views the use of the term
“sanction” as an unfortunate choice of words, particularly for
a self-represented litigant such as [Husband], the Court finds
that [Husband] has taken this out of context and
misconstrued the ruling. . . . The Special Master considered
the equities of the situation, and concluded that it would not
be equitable for [Wife] — who was receiving the remaining
funds in escrow, pending Court approval — to receive an
additional award of attorneys’ fees. In this context, the Court
finds that the Special Master’s ruling simply concluded that it
was neither fair nor equitable for [Husband] to pay the
attorneys’ fees and costs of [Wife]. The Special Master did not
impose a “sanction” against [Husband] in the form of not
allowing any additional offsets.
¶6 Husband timely appealed the final order. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1)2 and -2101(A)(1).
ISSUES AND STANDARD OF REVIEW
¶7 On appeal, Husband argues that the superior court abused its
discretion by not enforcing the Rule 69 agreement and imposing a sanction
against him as recommended by the Special Master. We view evidence in
the light most favorable to upholding the decision, Krisko v. John Hancock
Mut. Life Ins. Co., 15 Ariz. App. 304, 305, 488 P.2d 509, 510 (1971), and “will
not disturb a trial court’s factual findings unless clearly erroneous,” Hrudka
v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App. 1995), superseded by statute
1 After a December 2013 hearing, $35,534.97 remained in escrow. Husband
received credit for mortgage payments, bills, and expenses, totaling $2,526.
The remainder, $33,008.97, was paid to Wife.
2 Absent material revisions from the relevant date, we cite a statute’s current
version.
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on other grounds as stated in Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 8, 333
P.3d 818, 821 (App. 2014). “A court abuses its discretion if it commits an
error of law in reaching a discretionary conclusion, it reaches a conclusion
without considering the evidence, it commits some other substantial error
of law, or ‘the record fails to provide substantial evidence to support the
trial court’s finding.’” Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz.
44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007) (quoting Grant v. Ariz. Pub. Serv.
Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982)). “Moreover, we review
legal issues and the application of law de novo.” Walsh v. Walsh, 230 Ariz.
486, 490, ¶ 9, 286 P.3d 1095, 1099 (App. 2012).
DISCUSSION
I. The Superior Court Did Not Err In Its Enforcement of the Rule 69
Agreement.
¶8 Husband first argues that the superior court erred in failing
to enforce the Rule 69 agreement and exceeded its authority in denying him
credit for all of his documented expenses. Husband essentially argues that
because he submitted some documentation, he complied with the Rule 69
agreement and is automatically entitled to a reduction of his equalization
payment. We disagree.
¶9 Pursuant to the Rule 69 agreement, Husband was to receive
credit against the net proceeds received from the sale of the parties’
California residence if he could provide evidence that the money was spent
on the community. See supra ¶ 2. Although Husband provided the superior
court and Special Master with voluminous records of payments on
community expenses, the documents detail expenditures made from the
parties’ joint checking account. Thus, as the court concluded, Husband did
not provide evidence that he paid any of the $78,500 deposited into his
personal savings account on community expenditures:
[Husband] did show expenditures on community expenses.
However, the expenditures for community expenses came
from the parties’ joint checking account . . . . What this means
is that [Husband] has offered voluminous support to
document matters which are not in dispute and for which the
Court and Mother already were giving him credit — namely,
the community expenditures out of the parties’ joint checking
account. What [Husband] has not done with his voluminous
documents is demonstrate that he paid all of the $78,500 —
monies that he deposited into his personal savings account —
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for community expenditures. The Special Master Report noted
that “[Husband] did not provide the money market
statements.” Without such documentary evidence,
[Husband] did not prove by even a preponderance of the
evidence that there was a connection, or nexus, between the
community bills he paid and the $78,500 in community funds
that he transferred to his own savings account.
Based on this record, the superior court did not err in agreeing with the
Special Master’s report that Husband failed to meet his burden of proof.
II. The Superior Court Did Not Sanction Husband.
¶10 Husband next argues the superior court abused its discretion
by imposing a $33,534 sanction against him pursuant to a purported
recommendation by the Special Master.
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Decision of the Court
¶11 As the superior court discussed, although the Special Master
used the phrase “that is sanction enough for this matter” in his report, when
viewed in context, it is clear that Wife’s request for sanctions was, in fact,
denied. See supra ¶¶ 4-5.3 Accordingly, there was no abuse of discretion.
CONCLUSION
¶12 For the foregoing reasons, we affirm.
:ama
3 In his reply brief, Husband argues that the court erred in denying him
$49,500 in credit for mortgage payments made between January 2011 and
October 2013. “We will not address issues raised for the first time in a reply
brief.” Marco C. v. Sean C., 218 Ariz. 216, 219 n.1, ¶ 8, 181 P.3d 1137, 1140
n.1 (App. 2008). In addition, Husband suggests the superior court judge
erred in failing to disclose his working relationship with the Special Master.
Because Husband failed to develop this argument, we consider it
abandoned. See ARCAP 13(a)(6) (requiring the appellant’s briefs to
“concisely and clearly set forth . . . [a]n argument which shall contain the
contentions of the appellant with respect to the issues presented, and the
reasons therefor, with citations to the authorities, statutes and parts of the
record relied on”); see also DeElena v. S. Pac. Co., 121 Ariz. 563, 572, 592 P.2d
759, 768 (1979).
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