Horst v. Horst ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
LORDA MARIE JUSTINN HORST, Petitioner/Appellee,
v.
RUSSELL CHARLES HORST, Respondent/Appellant.
No. 1 CA-CV 20-0051 FC
FILED 12-15-2020
Appeal from the Superior Court in Maricopa County
No. FN2018-093743
The Honorable Andrew J. Russell, Judge Pro Tempore
AFFIRMED
COUNSEL
David Miles McGuire Gardner, PLLC, Tempe
By Spencer Schiefer
Counsel for Petitioner/Appellee
Overstreet Law Office, Phoenix
By Eric L. Overstreet
Counsel for Respondent/Appellant
HORST v. HORST
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.
M c M U R D I E, Judge:
¶1 Russell Horst (“Husband”) appeals from the dissolution
decree’s property provisions concerning his marriage to Lorda Horst
(“Wife”). For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Husband and Wife married in August 1993. Shortly before
their marriage, they purchased a home in Chandler (the “Chandler Home”),
taking title as joint tenants with the right of survivorship. In 2011, Husband
and Wife informally separated and began living apart, with Husband
remaining in the Chandler Home. In August 2018, Wife petitioned for
dissolution. Shortly after the dissolution proceedings commenced, the
parties’ focus narrowed to whether the Chandler Home should be
characterized as joint or separate property. Wife asserted the Chandler
Home’s status as joint property never changed, she retained a one-half
interest in the property as a result, and the property was subject to an
equitable division.
¶3 On the other hand, Husband claimed that when the parties
separated in 2011, they agreed otherwise (the “2011 Agreement”). In the
2011 Agreement, Husband claimed Wife agreed to transfer or relinquish
her interest in the Chandler Home. In exchange, Husband would pay her
share of the outstanding mortgage on the home and give her half the
remaining equity—approximately $24,000. Husband asserted this
agreement was enforceable, and the Chandler Home was, therefore, his
separate property.
¶4 Before the trial, both parties submitted proposed factual
findings and legal conclusions. The court held a one-day trial on the
dissolution petition in October 2019. During the trial, the court admitted
several exhibits into evidence, including: (1) a report estimating the
Chandler Home’s current value at $288,000; and (2) two email exchanges
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between Husband’s father and Wife in late November and early December
2011.
¶5 In the November 2011 email exchange, Husband’s father
stated the following:
I do want to talk with you about your equity in the
house. . . . As perhaps you are aware, the appraisal came in
[at] only $117,000. Somehow I want you to get your share as
soon as possible. In the meantime, I plan on paying off the
mortgage via borrowing from my bank; that will get your
name off the mortgage.
In the December 2011 email exchange, Husband’s father stated that he had
“gone thru[sic] the math on all the costs associated with paying . . . the
mortgage[.]” After calculating the equity of the home and subtracting
$5,150 in other debts Wife presumably owed, Husband’s father stated:
Therefore, your share of equity(less above costs) equal[s]
$23,811.16. However, I think we should round it off to
$24,000. . . . We don’t intend to charge you and [Husband]
beyond the first year . . . . Please let me know if you agree to
all of the above.
Wife responded: “If you think it’s fair, go ahead.”
¶6 The court heard testimony from both Husband and Wife
concerning the 2011 Agreement. Wife testified (1) Husband’s father had
agreed to pay the mortgage on the Chandler Home as a loan to both parties;
(2) she refused an offer of payment made by Husband in 2011 because it
was conditioned on an agreement to co-sign a loan for her funds; and (3) she
refused Husband’s request to sign a quitclaim deed concerning the
Chandler Home in 2014. For his part, Husband testified his father acted as
his representative in the November and December 2011 email exchanges.
He also testified his father paid the mortgage in full in 2011 as an advance
on Husband’s inheritance. However, Husband claimed he could not secure
financing to pay Wife for the value of her share of the home’s equity.
Husband testified that he requested Wife co-sign a loan to furnish payment,
but she refused. Neither party asserted that they engaged in actions
concerning the 2011 Agreement from 2014 until Wife filed the dissolution
petition. After the hearing, the court took the matter under advisement.
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¶7 In November 2019, the court issued the dissolution decree. In
the decree, the court made the following findings and conclusions
concerning the 2011 Agreement and the Chandler Home:
[A]n agreement was reached in 2011 whereby Husband’s
father would pay off the parties’ mortgage and Wife would
receive approximately $24,000. . . . Husband testified that his
father’s agreement to pay off the mortgage constituted an
advance against Husband’s inheritance. That money was
indeed used to pay off the mortgage, but the parties never
completed their agreement – Wife never received the
$24,000 . . . .
Husband was unable to comply with the agreement’s terms.
The Court does not see a legal basis for terminating the joint
ownership of the [Chandler Home] in 2011, because the terms
of the parties’ agreement were not satisfied. As such the 2011
agreement was not binding on these parties, Wife remains a
co-owner of the [Chandler Home] and she is entitled to half
of the equity in that property as of the date of service of the
Petition for Dissolution.
The court found Wife’s proposed division of assets in her pre-trial
statement equitable and ordered: (1) Wife to keep her two retirement
accounts, valued at approximately $85,000, (2) Husband to keep the
Chandler Home as his separate property, and (3) Husband to pay Wife an
equalization payment of $75,000 for her interest in the Chandler Home.
¶8 Husband subsequently filed a motion requesting a new trial
under Arizona Rule of Family Law Procedure 83. The court summarily
denied the motion, and Husband appealed from both the dissolution decree
and the denial of the Rule 83 motion. We have jurisdiction under A.R.S.
§ 12-2101(A)(1).
DISCUSSION
A. The Court Correctly and Equitably Divided the Parties’ Property.
1. The Court Did Not Err by Refusing to Find the 2011 Agreement
Extinguished Wife’s Interest in the Chandler Home.
¶9 Husband first argues the court erred by concluding the 2011
Agreement was not binding on the parties. Husband asserts the court
should have found the 2011 Agreement enforceable, determined that the
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Chandler Home was Husband’s separate property by operation of the
agreement, and ordered that Wife was entitled to half the home’s equity as
of 2011, or approximately $24,000, plus interest. We review the validity and
enforceability of a contract and the property characterization in a
dissolution proceeding de novo. Buckholtz v. Buckholtz, 246 Ariz. 126, 129,
¶ 10 (App. 2019) (validity and enforceability of a contract); In re Marriage of
Pownall, 197 Ariz. 577, 581, ¶ 15 (App. 2000) (characterization of property).
¶10 As an initial matter, we note our review of this issue is
complicated because both the superior court and the parties on appeal
assume the 2011 Agreement constituted a valid written contract concerning
real property. There is certainly reason to doubt this assumption. For
example, the writings Husband submitted as evidence of the written terms
of the 2011 Agreement are between Husband’s father and Wife and do not
mention Husband either as a party or beneficiary to the agreement. See
Savoca Masonry Co. v. Homes & Son Constr. Co., 112 Ariz. 392, 394 (1975) (for
an enforceable contract to exist, there must be “an offer, acceptance,
consideration, a sufficiently specific statement of the parties’ obligations,
and mutual assent”). But given the posture of this appeal, we will assume,
without deciding, the 2011 Agreement was a valid written contract
concerning real property. Under the agreement’s terms, Husband’s father
promised to pay Wife’s share of the mortgage and reimburse Wife for her
share of the Chandler Home’s equity, or approximately $24,000, in
exchange for Wife’s promise to relinquish her interest in the property.
¶11 Here, the undisputed facts and the court’s factual findings
established that from at least 2011 to 2014, Husband failed to perform or
adequately offer to fulfill the promise to pay Wife for her share of the
Chandler Home’s equity. On this basis, the court concluded that the 2011
Agreement was not binding upon the parties.
¶12 If the 2011 Agreement constituted a contract, then the
question presented is whether Husband’s failure to adequately render or
offer to fulfill the promise to pay Wife within a reasonable period
constituted a material breach excusing Wife from her obligations under the
2011 Agreement. If it did, the court was correct to conclude the 2011
Agreement was unenforceable against Wife and the Chandler Home
retained its status as joint property subject to equitable division.
¶13 “Ordinarily the victim of a minor or partial breach must
continue his own performance, while collecting damages for whatever loss
the minor breach has caused him; the victim of a material or total breach is
excused from further performance.” Zancanaro v. Cross, 85 Ariz. 394, 400
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(1959) (citation omitted). The Restatement (Second) of Contracts
(“Restatement”) § 241 (1981), however, also recognizes that even a material
breach may not justify the discharge of the non-breaching party from a
contract if the breaching party cures within an adequate time. See
Restatement § 242 cmt. a (“Ordinarily there is some period of time between
suspension and discharge, and during this period a party may cure his
failure.”). To determine whether Wife was discharged from an obligation
under the 2011 Agreement, we must consider: (1) whether Husband
breached the express or implied terms of the 2011 Agreement; (2) if so, was
the breach material; and (3) has the time for Husband to cure any material
breach expired.
¶14 Because the terms of the 2011 Agreement omitted provisions
concerning the time to perform or offer to perform, “a reasonable time is
implied.” Zancanaro, 85 Ariz. at 398. What constitutes a “reasonable time”
is typically a question of fact. Id. But the superior court did not need to fix
a particular time for reasonable performance to occur in this case. The
failure to furnish or offer to provide payment for a simple contract to
purchase an interest in the Chandler Home for nearly three years
constituted a breach of the implied promise. See Mahurin v. Schmeck, 95 Ariz.
333, 340 (1964) (“What is a reasonable time is a question of fact for the trier
of fact unless the facts are such that only one inference could be derived
therefrom in which case it would become a question of law.”) And that the
time for performance was an implied, rather than express, promise is of no
consequence in assessing breach. An implied promise arising out of the
contract’s expressed provisions is as much a part of the contract as a written
one and is subject to the same penalties for breach. See Zancanaro, 85 Ariz.
at 398.
¶15 Next, we consider whether the breach of the implied promise
to perform within a reasonable time was material. Our supreme court has
adopted the five-factor analytical framework from Restatement § 241 to
assess whether a breach is material. Found. Dev. Corp. v. Loehmann’s, Inc.,
163 Ariz. 438, 446–49 (1990). But we need not engage in a lengthy analysis
of these factors to conclude a material breach occurred here. The promise to
pay Wife’s share of the Chandler Home’s equity went to the core of the 2011
Agreement and was the sole remaining benefit Wife could reasonably
expect to receive. By failing to perform or offer to perform for nearly three
years, Husband deprived Wife of that benefit. See Restatement § 241(a) (The
“extent to which the injured party will be deprived of the benefit which he
reasonably expected” is a significant circumstance in determining material
breach.); see also Zancanaro, 85 Ariz. at 399 (concluding failure of builder to
complete construction within a reasonable time was a material breach, in
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part, because the other party “was not obligated to wait indefinitely until
[the breaching party] decided to resume construction”). And there is no
evidence that Husband ever explained his failure during that period or
made any assurances to Wife concerning the payment. See Restatement
§ 241 cmt. e (significant circumstances in determining material breach
include “likelihood that the failure will be cured” and “reasonable
assurances of performance”).
¶16 Husband far exceeded any reasonable period to cure his
failure to perform or offer to perform within a reasonable time by making
no efforts to do so for nearly three years. Accordingly, Wife’s duties
concerning the 2011 Agreement were discharged by Husband’s uncured
material breach of the 2011 Agreement.
¶17 A second legal principle militates against finding the 2011
Agreement enforceable. In this case, the uncontested facts established
Husband and Wife mutually rescinded or abandoned the agreement, at a
minimum, after Husband’s attempted performance in 2014. During this
time, both parties were aware that the other was not acting consistently
with the 2011 Agreement. Husband had not given Wife her share of the
equity for years, and Wife refused to execute an instrument transferring or
disclaiming her interest in the Chandler Home. “Where the acts of one party
inconsistent with the existence of a contract are acquiesced in by the other,
the contract will be treated as abandoned.” King Realty, Inc. v. Grantwood
Cemeteries, Inc., 4 Ariz. App. 76, 81 (1966); see also Kolberg v. McKean’s Model
Laundry and Dry Cleaning Co., 9 Ariz. App. 549, 550 (1969) (concluding
reasonable evidence supported superior court’s finding that parties
abandoned employment contract when an employee left after a
disagreement, did not return, then filed breach-of-contract suit nine years
later). “Abandonment, a matter of intent, can be inferred from the conduct
of the parties and the attendant circumstances.” Cords v. Window Rock Sch.
Dist. No. 8, 22 Ariz. App. 233, 236 (1974). “Sometimes mere inaction on both
sides, such as the failure to take any steps looking toward performance or
enforcement, may indicate an intent to abandon the contract.” Restatement
§ 283 cmt. a.
¶18 Here, Husband and Wife’s inaction and their respective
decisions to act inconsistently with the 2011 Agreement demonstrate an
intent to abandon the agreement. As stated by our supreme court in Wadell
v. White, 51 Ariz. 526, 535 (1938):
Where a contract has been partly performed and further
performance is abandoned voluntarily by both of the parties,
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there can be no recovery for what has been done under the
contract by either party, unless such right of recovery is
reserved by the parties at the time when such abandonment
takes place, either by express or implied agreement.
See also Restatement § 283(2) (“An agreement of recission discharges all
remaining duties of performance of both parties. It is a question of
interpretation whether the parties also agree to make restitution with
respect to performance that has been rendered.”); Bazurto v. Burgess, 136
Ariz. 397, 399–400 (App. 1983) (“Where a contract is rescinded by mutual
consent, the agreement of recission controls, and, unless the parties
expressly reserve a claim for damages, there is an implied waiver of any
such claims.”).
¶19 For these reasons, on de novo review, we hold the superior
court correctly concluded that the 2011 Agreement was not enforceable
against Wife and that, as a result, the Chandler Home remained joint
property subject to equitable division under A.R.S. § 25-318(A).
2. The Court Did Not Abuse Its Discretion by Dividing the
Marital Property Equitably.
¶20 Citing our supreme court’s decision in Toth v. Toth, 190 Ariz.
218 (1997), Husband argues that, irrespective of the enforceability of the
2011 Agreement, the court erred by refusing to order an unequal division
of the marital property at issue—notably the Chandler Home. Husband
also claims that equitable principles required the court to account for
payment of Wife’s share of the mortgage in 2011.
¶21 The division of marital property in dissolution proceedings is
governed by A.R.S. § 25-318(A), which provides that the court must “divide
the community, joint tenancy and other property held in common
equitably, though not necessarily in kind[.]” “[T]he general principle is that
‘all marital joint property should be divided substantially equally unless
sound reason exists to divide the property otherwise.’” In re Marriage of
Flower, 223 Ariz. 531, 535, ¶ 13 (App. 2010) (quoting Toth, 190 Ariz. at 221).
The superior court has broad discretion in this sphere, including “the
specific allocation of individual assets and liabilities,” and “we will not
disturb a court’s ruling absent a clear abuse of discretion.” Id. at ¶ 14.
¶22 Regarding payment of the mortgage on the Chandler Home,
it is not clear Husband was entitled to reimbursement for that contribution.
Both parties testified that Husband’s father, not Husband, paid off the
mortgage on the Chandler Home directly. And there is no indication in the
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written terms of the 2011 Agreement that Husband’s father intended to be
reimbursed for the payment. Thus, there appears to be substantial evidence
that Husband’s father intended payment of the mortgage to be a gift to the
community—perhaps conditioned on the expectation that Wife would sell
her interest in the property to Husband—despite Husband’s claim at trial
that his father only intended the payment as a gift to him.
¶23 But even assuming payment of Wife’s share of the mortgage
can be attributed to Husband, the record shows he was adequately
compensated for that contribution in the court’s division. It is undisputed
that Husband was permitted exclusive occupancy and use of the Chandler
Home for over seven years without Wife seeking rental or other value for
her property interest. Cf. In re Marriage of Inboden, 223 Ariz. 542, 545, ¶ 12,
n.3 (App. 2010) (“[W]hen making an equitable division of jointly held
property upon dissolution of a marriage, the family court’s obligation is to
consider all factors that bear on the equities of the division[.]”); see also 20
Am. Jur. 2d Cotenancy and Ownership § 50, Westlaw (database updated
Nov. 2020) (noting that in equitable proceedings, it may be permissible to
offset contributions of the joint tenant against the “reasonable value of the
occupancy and use,” even when that tenant may not otherwise be liable for
such benefits).
¶24 Moreover, by accepting Wife’s proposed division of the
contested marital assets, Husband received approximately $25,000 more
than Wife.1 And that figure cannot be attributed to any other contributions
made by Husband because he submitted no evidence concerning additional
expenses he paid concerning the Chandler Home. Given these facts, we
cannot say the court’s property division constituted an abuse of discretion.
1 By adopting Wife’s proposed division of the contested assets, the
court found the value of the home was $288,000, the figure arrived at by the
uncontested valuation of the home. Adding this number to the sum of the
value of Wife’s retirement accounts, $86,976, leaves the total value of the
contested assets at $374,976. Had the court divided this figure equally, each
party would have received $187,488. However, by adopting Wife’s division
of the assets, Husband received $213,000 (the value of the Chandler Home
minus a $75,000 equalization payment) and Wife received $161,976.33 (the
sum of the equalization payment and her retirement accounts). Thus,
husband received a little over $25,000 more than Wife.
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B. Even Assuming the Court Made Inadequate Factual Findings and
Legal Conclusions, Remand is Not Required Here.
¶25 Next, Husband argues the superior court made insufficient
factual findings and legal conclusions to evaluate the court’s judgment
concerning the 2011 Agreement correctly. Husband contends the court
should have addressed each of his proposed findings of facts and
conclusions of law on this issue and that its failure to do so was error.
Husband also asserts the court’s findings and conclusions failed to resolve
disputed issues concerning the 2011 Agreement or adequately explain its
conclusion that the 2011 Agreement was not binding. Whether a court made
sufficient factual findings and legal conclusions presents a mixed question
of fact and law that we review de novo. Murphy Farrell Dev., LLP v. Sourant,
229 Ariz. 124, 128, ¶ 13 (App. 2012).
¶26 The superior court must enter findings and conclusions when
requested by a party before trial. Ariz. Fam. Law P. 82; In re U.S. Currency
in Amount of $26,980.00, 199 Ariz. 291, 294, ¶ 7 (App. 2000). This
requirement’s primary purpose is to enable the appellate court to examine
the bases for the superior court’s decision adequately. In re $26,980.00, 199
Ariz. at 294, ¶ 7. “It must be clear how the court actually did arrive at its
conclusions. Otherwise, there is no assurance that the court itself thought
out each issue, and an appellate court cannot effectively review the
decision-making process of the trial court.” Elliott v. Elliott, 165 Ariz. 128,
132 (App. 1990) (quoting Urban Dev. Co. v. Dekreon, 526 P.2d 325, 328
(Alaska 1974)). However, the court is not required to detail every fact that
supports its ruling. Francine C. v. DCS, 249 Ariz. 289, 296, ¶ 14 (App. 2020).
Instead, it must make findings concerning the “ultimate facts” or at least
those “essential and determinative facts on which the conclusion was
reached.” Miller v. Bd. of Supervisors, 175 Ariz. 296, 300 (1993) (quoting Star
Realty Co. v. Sellers, 387 P.2d 319, 320 (N.M. 1963)).
¶27 At the outset, we reject Husband’s contention that the court
should have addressed each of his proposed findings and conclusions. The
superior court’s findings need only encompass the ultimate facts. Miller, 175
Ariz. at 300 (quoting Elliott, 165 Ariz. at 132). It need not make findings on
undisputed matters, address every finding or conclusion proposed by a
party, or consider those that conflict with the court’s findings and
conclusions. See Gilliland v. Rodriguez, 77 Ariz. 163, 168–69 (1954).
¶28 But even assuming the court made insufficient factual
findings and legal conclusions in some respects, a remand is not warranted
here. As this court recently affirmed, we “must tailor the proper remedy
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[for] each case.” Francine C., 249 Ariz. at 299, ¶ 27 (alteration in original)
(quoting Miller, 175 Ariz. at 300). Thus, although noncompliance with Rule
82 typically warrants remand for additional findings, an appellate court
“may also decide an appeal without those findings if it is in a position to do
so.” Id. (quoting Miller, 175 Ariz. at 300). As stated in Francine C.,
[I]n the rare case that does not turn on contested facts, if we
can fully understand the issues raised without findings, we
may affirm without findings. Where the record is so clear that
the appellate court does not need the aid of findings, the court
may waive such defect on the ground that the error is not
substantial in that case.
Id. (citations omitted). Our conclusion that the court correctly refused to
find the 2011 Agreement enforceable presents such a rare case for two
reasons.
¶29 First, and as we noted above, the court’s identifiable findings
coupled with the undisputed facts, provide an adequate basis for this court
to conclude that the 2011 Agreement was unenforceable. The court found
that an agreement existed, it included a promise to pay Wife for her share
of the Chandler Home’s equity, and Husband’s initial attempt to pay Wife
was deficient. It is undisputed that Husband engaged in no further efforts
to perform until 2014. After 2014, neither party attempted to enforce the
agreement until Wife filed for dissolution.
¶30 Second, because our analysis and resolution of Husband’s
arguments concerning the 2011 Agreement turn upon questions of law, we
are not bound by the superior court’s conclusions on the issue. See Zellerbach
Paper Co. v. Valley Nat. Bank, 13 Ariz. App. 431, 433 (1970) (“We are
not . . . bound by the trial court’s conclusions of law and may draw our own
legal conclusions from the undisputed facts.”). The adequacy of the
superior court’s conclusions in this case, therefore, does not control the
result here.
C. Husband is Not Entitled to a New Trial.
¶31 Finally, Husband argues the court abused its discretion by
denying his Rule 83 motion for a new trial. Husband identifies three
grounds on which he asserts the court should have granted the motion:
(1) the court did not correctly consider the evidence presented concerning
the 2011 Agreement; (2) Husband was denied a fair trial because the court
hurried him through his case and appeared biased against his positions;
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and (3) the court erroneously admitted evidence submitted by Wife and
erroneously precluded evidence submitted by Husband.
¶32 Given our conclusions above regarding the 2011 Agreement,
we reject Husband’s first argument outright. As for Husband’s assertions
concerning the court’s alleged bias and its evidentiary rulings, he did not
present these arguments in his Rule 83 motion. Thus, these arguments are
better characterized as arising out of Husband’s appeal from the dissolution
decree than from the court’s denial of his motion for a new trial. We address
each in turn.
¶33 Husband asserts the court exhibited bias against his positions
by (1) prejudging the merits of the case during settlement discussions
initiated by the court at the start of the trial and (2) rushing his case. “We
presume that a judge is impartial, and ‘the party seeking recusal must prove
bias or prejudice by a preponderance of the evidence.’” In re Aubuchon, 233
Ariz. 62, 66, ¶ 14 (2013) (quoting State v. Carver, 160 Ariz. 167, 172 (1989)).
“Bias and prejudice are evidenced by ‘a hostile feeling or spirit of ill-will, or
undue friendship or favoritism, towards one of the litigants.’” Id. (quoting
State v. Myers, 117 Ariz. 79, 86 (1977)).
¶34 Husband’s claims of bias are meritless. The court explained
its rationale for initiating settlement discussions and expressing its opinion
on the parties’ claims. Its rationale does not show bias or prejudice. See In
re Guardianship of Steyer, 24 Ariz. App. 148, 151 (1975) (“The fact that a judge
may have an opinion as to the merits of the cause or a strong feeling about
the type of litigation involved, does not make the judge biased or
prejudiced.”). There is simply no indication that the court was acting in bad
faith by encouraging the parties to settle or expressed bias towards either
party.
¶35 Husband’s subjective impressions of the court’s statements
concerning the time left for trial also do not overcome the presumption of
impartiality. See Aubuchon, 233 Ariz. at 67, ¶ 17; Liteky v. United States, 510
U.S. 540, 551 (1994) (“[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.”). The record
demonstrates that the court managed both parties’ time appropriately to
allow direct, cross, and redirect examination of their respective witnesses
and closing arguments. For example, the court told Wife’s counsel to keep
cross-examination of Husband and her closing statement brief due to time
constraints. And to the extent Husband’s arguments imply the court denied
him the opportunity to present his case adequately, he waived that claim
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by failing to request additional time at trial. See Henderson v. Henderson, 241
Ariz. 580, 586, ¶ 13 (App. 2017) (arguments raised for the first time on
appeal usually are waived). Thus, Husband has not presented sufficient
evidence of bias to warrant relief.
¶36 Turning to Husband’s arguments concerning the court’s
evidentiary rulings, Husband does not explain how the rulings were
erroneous and cites no authority to support his assertions beyond a single
citation to Arizona Rule of Evidence 401 in his reply brief. Thus, Husband
has failed to adequately present or argue these issues, and we need not
address them. In re J.U., 241 Ariz. 156, 161, ¶ 18 (App. 2016) (“We generally
decline to address issues that are not argued adequately, with appropriate
citation to supporting authority.”); ARCAP 13(a)(7).
¶37 But even if we were to address Husband’s arguments and
conclude the superior court erred in its evidentiary rulings, Husband
would not be entitled to relief absent a showing of prejudice. See John C.
Lincoln Hosp. & Health Corp. v. Maricopa County, 208 Ariz. 532, 543, ¶ 33
(App. 2004) (“We review evidentiary rulings for an abuse of discretion and
generally affirm a trial court’s admission or exclusion of evidence absent a
clear abuse or legal error and resulting prejudice.”) (emphasis added); Ariz.
R. Fam. Law P. 86 (“At every stage of the proceeding, the court must
disregard all errors and defects that do not affect any party’s substantial
rights.”). Other than making the conclusory assertion that the court’s
decision to exclude an exhibit had “a negative impact on the ruling,”
Husband does not explain how the court’s evidentiary rulings prejudiced
his case. Accordingly, we see no basis to disturb the court’s orders.
ATTORNEY’S FEES AND COSTS
¶38 Both Husband and Wife request attorney’s fees and costs on
appeal. Because Husband failed to specify a statutory basis for such an
award, we deny his request. ARCAP 21(a)(2); Chopin v. Chopin, 224 Ariz.
425, 432, ¶ 24 (App. 2010). Wife requests an award of attorney’s fees and
costs under A.R.S. § 25-324. In the exercise of our discretion, we decline to
award Wife her attorney’s fees but award her costs incurred on appeal upon
compliance with Arizona Rule of Civil Appellate Procedure 21.
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CONCLUSION
¶39 We affirm the superior court’s decree.
AMY M. WOOD • Clerk of the Court
FILED: AA
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