Clark v. Clark ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
LINDA JEAN HARNISH CLARK, Petitioner/Appellee,
v.
EDWARD WAYNE CLARK, Respondent/Appellant.
No. 1 CA-CV 14-0293 FC
FILED 5-12-2015
Appeal from the Superior Court in Maricopa County
No. FC2011-090967
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
Bishop Law Office, PC, Tempe
By William D. Bishop, Daniel P. Beeks
Counsel for Petitioner/Appellee
Edward Wayne Clark, Mesa
Respondent/Appellant
CLARK v. CLARK
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.
C A T T A N I, Judge:
¶1 Edward Wayne Clark (“Husband”) appeals from the superior
court’s order denying his motion for relief from judgment in his divorce
case against Linda Jean Clark (“Wife”). Husband argues that the court
should have reallocated marital assets based on Wife’s alleged failure to
comply with disclosure rules. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Husband and Wife married in August, 1993; they separated
in January, 2010. Over the course of the marriage, the parties purchased a
marital residence and a condominium office. After separating, the parties
discussed by email the need to refinance the mortgage on the home, a
process that included obtaining an appraisal. After the appraisal was
completed on October 7, 2010, Wife sent Husband a copy of the appraisal
as an attachment to an email, which Husband subsequently acknowledged
receiving.
¶3 In February 2011, Wife filed for divorce. Following a
dissolution trial in April 2012, the parties submitted proposed findings of
facts and conclusions of law. Wife’s submittal valued the home at
approximately $328,000, a figure she reached through her independent
research and an estimate posted on “Zillow.com.” Husband did not
dispute this value.
¶4 In an amended decree of dissolution, the superior court
awarded the home to Wife conditioned on her refinancing it in her name.
The court awarded Husband the office, likewise conditioned on
refinancing. Neither party took issue with the distribution of the home to
Wife and the office to Husband or otherwise asserted that the distribution
was inequitable. Following various motions and proceedings in 2013, the
superior court entered a final order and awarded Wife her attorney’s fees.
¶5 In December 2013, Husband filed a motion for relief from
judgment, asserting that he had become aware that the home had been
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Decision of the Court
appraised at $410,000 during the 2010 refinancing process. Wife responded
that Husband was aware of the bank’s appraisal long before entry of the
decree because of the parties’ email correspondence regarding the
refinancing, including the email from Wife to Husband attaching a copy of
the appraisal. Although Husband acknowledged receiving the email, he
claimed that he had not opened the attachment containing the appraisal.
¶6 Following briefing and oral argument, the superior court
denied the motion for relief from judgment. The court found that the
appraisal was not obtained in the anticipation or course of litigation and in
any event the appraisal “was physically in [both parties’] possessions.”
¶7 Husband timely appealed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(2).1
DICUSSION
I. Rule 49 Disclosure Violation.
¶8 Husband argues that Wife’s failure to formally disclose the
appraisal during litigation constituted a “reason justifying relief from the
operation of the judgment.” Ariz. R. Fam. Law P. (“ARFLP”) 85(C)(1)(f).
We review a denial of relief under Rule 85 for an abuse of discretion. See
Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8, 282 P.3d 428, 432 (App. 2012). We
similarly review a superior court’s decision regarding an alleged disclosure
violation for an abuse of discretion. Jimenez v. Wal-Mart Stores, Inc., 206
Ariz. 424, 426, ¶ 5, 79 P.3d 673, 675 (App. 2003).
¶9 Husband asserts that Wife violated Rule 49 of the Rules of
Family Law Procedure by not formally disclosing the appraisal as part of
the divorce proceedings. Rule 49 is based on Rule 26.1 of the Arizona Rules
of Civil Procedure, and we thus analyze the claim as we would a claim
under Rule 26.1. See ARFLP 1 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.”).
¶10 The disclosure rules are intended to avoid unfair surprise at
trial. See Carlton v. Ernhardt, 138 Ariz. 353, 355, 674 P.2d 907, 909 (App. 1983)
(“[T]rial by ambush is a tactic no longer countenanced in Arizona courts.”).
But the rules are not designed to give the parties a “weapon” to use at trial
or on appeal. See Zimmerman v. Shakman, 204 Ariz. 231, 235, ¶ 13, 62 P.3d
1 Absent material revisions after the relevant date, we cite the current
version of a statute unless otherwise indicated.
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976, 980 (App. 2003) (citation omitted); see also Bryan v. Riddel, 178 Ariz. 472,
476 n.5, 875 P.2d 131, 135 n.5 (1994) (noting that the purpose of the rules is
to provide the parties “a reasonable opportunity to prepare for trial or
settlement-nothing more, nothing less”).
¶11 As relevant here, Rule 49 provides the minimum disclosure
requirements for family law cases, including disclosure of:
copies of all documents and all electronically stored
information that may assist in identifying or valuing any item
of real or personal property in which any party has or had an
interest for the period commencing six (6) months prior to the
filing of the petition, including any documents that the party
may rely upon in placing a value on any item of real or
personal property.
ARFLP 49(E)(5).
¶12 Here, the appraisal at issue was arguably relevant to assist in
valuing the home and should have been disclosed under Rule 49. But Wife
did not rely on the appraisal, and the lack of formal disclosure did not deny
Husband a reasonable opportunity to prepare for trial because he was
aware of (and had access to) the appraisal by virtue of his email
correspondence with Wife in October 2010. Thus, the lack of formal
disclosure did not result in a “trial by ambush,” and the superior court acted
well within its discretion by denying Husband’s request for relief based on
the alleged Rule 49 violation.
A. Involvement of Wife’s counsel.
¶13 Husband argues that Wife’s counsel may have been aware of
the appraisal and if so, had an obligation to disclose it. But Husband did
not present evidence to that effect, and the superior court appropriately
reasoned that there is “no basis to suggest [Wife’s attorney] knew anything
about [the appraisal].” Moreover, even assuming Wife’s attorney knew
about the appraisal, Husband has not established that he was prejudiced by
the attorney’s alleged inaction because Husband was already aware of and
had a copy of the appraisal prior to trial.
B. Bias.
¶14 Husband argues the trial judge’s comments regarding his
failure to open the email attachment containing the appraisal demonstrates
that the court was biased against him during the hearing addressing the
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motion for relief from judgment. However, Husband did not raise this
issue in the superior court, so his claim is arguably waived. See State v.
Schackart, 190 Ariz. 238, 256, 947 P.2d 315, 333 (1997) (bias claims based on
“comments allegedly showing the [superior] court’s irritation with
defendant, should have been raised at that time and are therefore now
waived”).
¶15 Moreover, Husband has not shown any bias on the part of the
trial judge. Judicial bias or prejudice ordinarily must “arise from an extra-
judicial source and not from what the judge has done in his participation in
the case.” Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 63, ¶ 29, 234 P.3d 623,
631 (App. 2010) (quoting State v. Emanuel, 159 Ariz. 464, 469, 768 P.2d 196,
201 (App. 1989)). Thus, “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S.
540, 555 (1994); see also State v. Ellison, 213 Ariz. 116, 129, ¶ 40, 140 P.3d 899,
912 (2006). Here, Husband has not alleged bias arising from an extrajudicial
source, and the judge’s comments interpreting evidence presented at trial
do not establish bias.
II. Attorney’s Fees.
¶16 Wife requests her attorney’s fees and costs under A.R.S. § 25-
324(A). In an exercise of our discretion, we award her reasonable attorney’s
fees and costs upon compliance with ARCAP 21.
CONCLUSION
¶17 We affirm the superior court’s denial of Husband’s motion for
relief from judgment.
:ama
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