Herrera v. Rivero ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
GLORIA HERRERA, Petitioner/Appellant,
v.
JORGE RIVERO, Respondent/Appellee.
No. 1 CA-CV 17-0236 FC
FILED 3-22-2018
Appeal from the Superior Court in Maricopa County
No. FC2014-051148
No. FC2015-071081
(Consolidated)
The Honorable Roy C. Whitehead, Judge
AFFIRMED
COUNSEL
Saldivar & Associates PLLC, Phoenix
By Jose A. Saldivar, Kristian M. Morales
Counsel for Petitioner/Appellant
HERRERA v. RIVERO
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.
P O R T L E Y, Judge:
¶1 Gloria Herrera (Mother) appeals the family court’s division of
property in the decree dissolving her marriage to Jorge Rivero (Father). For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother filed a petition for dissolution of marriage in
November 2015, requesting, as relevant on appeal, “50% of the profit from
the sale of the business LOS OLIVOS CARNICERIA.” The parties resolved
many issues prior to trial under Ariz. R. Fam. Law P. (Rule) 69, but did not
agree on the issue of “[p]rofits from sale/profits from two community
businesses.” Then before trial, Mother filed her pretrial statement, which
again requested 50% of the profit from the sale of Los Olivos Carniceria.
Father did not file a pretrial statement, and neither party submitted any
exhibits.
¶3 At the start of trial, the family court listed parenting time,
spousal maintenance, and retirement accounts as “the only issue[s] for me
to address [today].” Mother did not object to the court’s characterization of
the issue, nor ask to present evidence about the division of the community
property.
¶4 In connection with her spousal maintenance claim, Mother
testified that the parties “had another business, a butcher shop.” Father
testified the parties filed for bankruptcy three years earlier and “lost
1 The Honorable Maurice Portley, Retired Judge of the Arizona Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
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HERRERA v. RIVERO
Decision of the Court
everything,” including, presumably, “the meat market.”2 Mother
explained that Father “sold the store . . . without me knowing about it” and
accused Father of “hiding the money.” The court asked Mother if she had
“any bank accounts or anything that would show me that?” Mother
answered, “Not in his name, no, because he put the money into his brothers’
names.”
¶5 After trial, the court entered a decree, which dissolved the
marriage, and, as relevant to this appeal, awarded Mother $500 a month
spousal maintenance for 24 months. The court also found that (i) Mother
offered no evidence to support her claim that Father was “hiding money”
and (ii) Father disputed the allegation, see Arizona Revised Statutes (A.R.S.)
section 25-319(B)(11), but further found that Father was “not credible”
because he failed to provide an affidavit of financial information or
documentation supporting his income or expenses. Mother filed a timely
appeal,3 and we have jurisdiction pursuant to A.R.S. section 12-2101(A)(1).
DISCUSSION
¶6 We view the evidence in the light most favorable to
upholding the decree. In re Marriage of Foster, 240 Ariz. 99, 100, ¶ 2 (App.
2016). We will uphold the family court’s factual findings unless they are
clearly erroneous or unsupported by any credible evidence, but we draw
our own legal conclusions from the facts. Valento v. Valento, 225 Ariz. 477,
481, ¶ 11 (App. 2010). We do not reweigh conflicting evidence on appeal
and defer to the court's determinations regarding witness credibility and
the weight to give the evidence. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App.
2009); Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998).
2 Father did not produce the bankruptcy pleadings or any discharge
in bankruptcy, or even the case number.
3 Father did not file an answering brief. Although we may regard this
as a confession of error, we exercise discretion to address the merits of the
appeal. See, e.g., Thompson v. Thompson, 217 Ariz. 524, 526 n.1, ¶ 6 (App.
2008).
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HERRERA v. RIVERO
Decision of the Court
A. Compliance with Family Law Rules
¶7 Initially, Mother challenges Father’s compliance with Rule
49(E)(6), positing that he “clearly avoided” the disclosure rules and
withheld information about his finances “to conceal the sale of the
business” (i.e., the butcher shop).4 She, however, did not file a motion to
compel, see Ariz. R. Fam. Law P. 65 (failure to make disclosure or discovery;
sanctions), or otherwise raise the issue to the family court before trial.
Accordingly, because she did not raise the issue to the court before trial, she
waived the argument by failing to object when the family court could have
corrected the error. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994).
¶8 Mother also now points out that Father failed to file a pretrial
statement as required by Rule 76(C).5 She did not raise the issue with the
family court or seek a sanction for Father’s failure. Again, she waived the
issue for appeal. See, e.g., Medlin v. Medlin, 194 Ariz. 306, 308, ¶ 6 (App.
1999) (citing Conant v. Whitney, 190 Ariz. 290, 293 (App. 1997)).
B. Division of Community Property
¶9 Mother next argues the family court erred by failing to
equitably divide the profit from the sale of the butcher shop. We disagree.
¶10 The family court is obligated to “equitably divide clearly
identified community property” -- specifically, when one or both parties list
the asset in a pretrial statement, exhibits are admitted, and testimony
regarding the asset is given at trial. Nold v. Nold, 232 Ariz. 270, 274, ¶ 20
(App. 2013); see A.R.S. § 25-318(A). We review the court’s allocation of
community property for an abuse of discretion. Boncoskey v. Boncoskey, 216
Ariz. 448, 451, ¶ 13 (App. 2007). A court abuses its discretion if the record
4 Rule 49(E)(6) provides for disclosure of certain business documents,
including “copies of all business tax returns, balance sheets, profit and loss
statements, and all documents and all electronically stored information that
may assist in identifying or valuing any business or business interest for the
last two (2) completed calendar or fiscal years,” and related information.
5 If a party fails to comply with Rule 76, the family court “shall, except
upon a showing of good cause, make such orders with regard to such
conduct as are just, including . . . an order refusing to allow the disobedient
party to support or oppose designated claims.” Ariz. R. Fam. Law P.
76(D)(1).
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HERRERA v. RIVERO
Decision of the Court
lacks competent evidence to support its decision, Little v. Little, 193 Ariz.
518, 520, ¶ 5 (1999), or if the court “commits an error of law in the process
of exercising its discretion.” Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23 (App.
2004).
¶11 In her pretrial statement, Mother requested her share of the
profit from the sale of the butcher shop, but she did not bring the issue to
the family court’s attention at trial, nor offer any evidence regarding the
asset, or its sale. Cf. Kelsey v. Kelsey, 186 Ariz. 49, 51 (App. 1996) (explaining
that “[t]he valuation of assets is a factual determination”). Additionally,
although she contends the court improperly excluded evidence, for
example, a termination of the lease agreement and a bill of sale, the record
does not support her contention.6 The trial transcript does not demonstrate
that she attempted to mark the documents, requested the documents be
admitted, or that the court excluded the marked documents.
¶12 Moreover, Mother did not make a prima facie showing of
waste. See Gutierrez, 193 Ariz. at 346, ¶ 7 (explaining that the party
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asserting waste must make a prima facie showing of such expenditures).
Although Mother contends she can present “overwhelming evidence” on
remand, we limit our review to the record before the family court at the
time of its ruling. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1,
4 (App. 1990). Based on the trial record, we cannot say the court abused its
discretion in allocating the community property. See Kohler v. Kohler, 211
Ariz. 106, 107, ¶ 2 (App. 2005).
6 We note that Mother’s opening brief does not contain a citation to
the record on this point. See Ariz. R. Civ. App. P. 13(a)(7) (the opening brief
must set forth an “argument” that includes references to the record
concerning the issue presented for review).
7 The term “waste” is used to describe excessive or abnormal
expenditures from, and the concealment or fraudulent disposition of,
community property, which must be accounted for when making an
equitable distribution. See Gutierrez, 193 Ariz. at 346, ¶ 6 (citing A.R.S. § 25–
318(A) (recodified as A.R.S. § 25–318(C)), Martin v. Martin, 156 Ariz. 452,
458 (1988), and Hrudka v. Hrudka, 186 Ariz. 84, 93 (App. 1995), superseded in
part by statute on other grounds as recognized in Myrick v. Maloney, 235 Ariz.
491, 494, ¶ 8 (App. 2014)).
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HERRERA v. RIVERO
Decision of the Court
¶13 Finally, Mother requests an award of attorneys’ fees on appeal
pursuant to A.R.S. § 25-324. In the exercise of our discretion, we deny her
request.
CONCLUSION
¶14 Based on the foregoing, we affirm the decree.
AMY M. WOOD • Clerk of the Court
FILED: AA
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