Klien v. York ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SHARIE SUE KLIEN, Petitioner/Appellee,
v.
DAVID RICHARD YORK, Respondent/Appellant.
No. 1 CA-CV 15-0543 FC
FILED 3-7-2017
Appeal from the Superior Court in Maricopa County
No. FC2009-006661
The Honorable Roger L. Hartsell, Judge Pro Tempore
DISMISSED IN PART; AFFIRMED IN PART
COUNSEL
David Richard York, York, PA
Respondent/Appellant
KLIEN v. YORK
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
J O N E S, Judge:
¶1 David York (Father) appeals the family court’s orders:
(1) entering judgment in favor of Sharie Klien (Mother) on a petition to
enforce the divorce decree; (2) denying Father’s petition to amend his
support obligations and hold Mother in contempt; and (3) amending the
Income Withholding Order (IWO) for support.1 For the following reasons,
we dismiss the appeal as it relates to the first two orders, and affirm the
order amending the IWO.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Mother were divorced in June 2010. In October
2013, the family court held a hearing on Mother’s petition for enforcement
of the decree and Father’s support obligations. Both Father and Mother
testified at the hearing, after which the court found Husband in violation of
the decree and entered judgment in favor of Mother for spousal
maintenance arrears and unreimbursed medical expenses for the parties’
minor child. Upon Father’s request, the parenting time orders were
amended in February 2014. However, his requests to modify his support
obligations and hold Mother in contempt for purported fraudulent
behavior were denied.
¶3 In May 2015, Mother moved the family court to amend the
IWO to correctly identify Father’s current employer as the garnishee. The
court scheduled a hearing on Mother’s motion for July 6, 2015. Father did
1 Mother did not file an answering brief. Although we may consider
such failure a confession of error, we are not required to do so. See Hodai v.
City of Tucson, 239 Ariz. 34, 45, ¶ 36 (App. 2016) (citing In re 1996 Nissan
Sentra, 201 Ariz. 114, 117, ¶ 7 (App. 2001), and Savord v. Morton, 235 Ariz.
256, 259, ¶ 9 (App. 2014)). Because the record does not contain any
indication Father served Mother with either his notice of appeal or opening
brief, we, in our discretion, choose to address the merits of Father’s appeal.
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KLIEN v. YORK
Decision of the Court
not appear at the hearing, and the court granted Mother’s motion to amend.
Father filed a notice of appeal on July 20, 2015.
JURISDICTION
¶4 This Court only has jurisdiction over appeals specifically
authorized by statute. See In re Guardianship of Sommer, 241 Ariz. 308, 310,
¶ 6 (App. 2016) (quoting Campbell v. Arnold, 121 Ariz. 370, 371 (1979)). Thus,
we are bound by an independent duty to examine jurisdiction in regard to
all appeals that come before us, and, if jurisdiction is lacking, to dismiss the
appeal. In re Marriage of Flores & Martinez, 231 Ariz. 18, 20, ¶ 6 (App. 2012)
(quoting Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304 (App. 1991), and
citing Kim v. Mansoori, 214 Ariz. 457, 459, ¶ 5 (App. 2007)).
¶5 Father first seeks review of the family court’s October 21, 2013
order entering judgment in favor of Mother on her petition to enforce the
decree and February 11, 2014 order affirming his support obligations.2 The
record reflects both the October 2013 and February 2014 orders were
certified as final pursuant to Arizona Rule of Family Law Procedure 81(A),
signed by a judicial officer, and disposed of all issues then pending before
the court. Each order was therefore immediately appealable under Arizona
Revised Statutes section 12-2101(A)(2) (2015) as a special order after final
judgment. See Williams v. Williams, 228 Ariz. 160, 164, ¶ 11 (App. 2011)
(citations omitted). But Father did not timely file notices of appeal of those
judgments, see ARCAP 9(a) (providing a party thirty days from entry of
judgment to file a notice of appeal), waiting instead until July 20, 2015 to
file a notice of appeal. Therefore, we do not have jurisdiction to review the
October 2013 and February 2014 orders. Edwards v. Young, 107 Ariz. 283,
284 (1971) (“[W]here the appeal is not timely filed, the appellate court
acquires no jurisdiction other than to dismiss the attempted appeal.”)
(citations omitted). The portion of Father’s appeal challenging those orders
is therefore dismissed.
¶6 Father also seeks review of the family court’s July 13, 2015
order amending the IWO. The court affirmed those orders in a signed, final
judgment dated October 29, 2015. Father timely appealed that order, and
we review his claims on the merits. See ARCAP 9(c) (treating “[a] notice of
appeal . . . filed after the superior court announces an order . . . but before
2 Within his opening brief, Father incorrectly identifies the orders as
entered on October 9, 2012 and January 24, 2014 respectively.
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KLIEN v. YORK
Decision of the Court
entry of the resulting judgment that will be appealable . . . as filed on the
date of, and after the entry of, the judgment”).
DISCUSSION
¶7 In the sole remaining issue on appeal, Father argues the
family court erred by addressing Mother’s petition to amend the IWO
“without regards to proper service.” Father does not identify what he
believed to have been required of Mother before the court could entertain
her request. However, the family court has continuing jurisdiction to
enforce a judgment “when the defendant is in default in the payment of any
support money which the judgment requires him to pay.” Lubbehusen v.
Lubbehusen, 16 Ariz. App. 45, 48 (1971) (citing Bruce v. Froeb, 15 Ariz. App.
306, 308 (1971)). Therefore, formal service is not required where the court
“only furnishes a means of effective enforcement of an old judgment . . .
giv[ing] the plaintiff no new right, and add[ing] nothing to the defendant’s
burden.” Id. Mother’s request here was simply to update Father’s
employer on the IWO so she would continue to receive payments against
current and past-due support obligations. It did not give her any right to
additional funds, nor burden Father with an additional obligation to pay
support, serving only to assist Mother in obtaining support payments
already awarded. We must therefore determine only whether Father
received reasonable notice of Mother’s request.3
¶8 The certificate of service attached to Mother’s request to
amend the IWO states the document was “hand-delivered/
mailed/emailed” to Father at his current address in Pennsylvania. Because
the certificate of service does not specify how, precisely, the document was
delivered, it is conclusively presumed to have been served by mail. Ariz.
R. Fam. L.P. 43(C)(3). And, our supreme court has approved U.S. mail as a
method of service for papers upon persons who have previously appeared
in a family court action, see Ariz. R. Fam. L.P. 43(C)(2), and this method is
3 Although the family court did not make an express finding as to the
reasonableness of notice to Father, this finding was a necessary prerequisite
to the granting of relief, see Endischee v. Endischee, 141 Ariz. 77, 79 (App.
1984) (“[A] judgment is void . . . if the court rendered it without jurisdiction
due to the lack of proper service.”) (citing Koven v. Saberdyne Sys., Inc., 128
Ariz. 318, 321 (App. 1980)), and is therefore presumed from the court’s
order, Neal v. Neal, 116 Ariz. 590, 592 (1977) (citing Porter v. Porter, 67 Ariz.
273, 282 (1948), and Myrland v. Myrland, 19 Ariz. App. 498, 504 (1973)).
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KLIEN v. YORK
Decision of the Court
presumptively reasonable. Indeed, Father does not allege this method was
insufficient to apprise him of Mother’s request or even that he did not
actually receive the request. The record reflects Father received reasonable
notice of Mother’s request, and we find no error.
¶9 To the extent Father suggests he was not properly notified of
the hearing because the family court mailed the notice of hearing to a
previous address in Virginia, we likewise find no error. As a party to a
family court action, Father was required to “keep the court apprised of [his]
current mailing address[] . . . by notify[ing] the court within ten (10) days
of any changes in [his] mailing address.” Ariz. R. Fam. L.P. 23. Father was
notified of this requirement at the bottom of each order issued from the
court. The record reflects Father relocated to Pennsylvania as early as April
3, 2015. Although he knew his support obligations would continue at least
through January 2016, and received notice of Mother’s request in May 2015,
Father did not update his address until August 2015. Because Father did
not update his address in accordance with court rules, he accepted the risk
that mail sent to him at that address may not reach him. And, a judgment
will not be disturbed if acquired because of a party’s mere neglect to follow
the rules. See Daou v. Harris, 139 Ariz. 353, 360 (1984).
CONCLUSION
¶10 The family court’s order amending the IWO is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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