Vasquez-Araiza v. Gurrola ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SOILA ANN VASQUEZ-ARAIZA, Petitioner/Appellee,
v.
JOSE LOPEZ GURROLA, Respondent/Appellant.
No. 1 CA-CV 13-0716 FC
FILED 8-4-2015
Appeal from the Superior Court in Maricopa County
No. FN 2011-091360
The Honorable Boyd W. Dunn, Judge Retired
AFFIRMED
COUNSEL
Jose Lopez Gurrola
Respondent/Appellant
Soila Ann Vasquez-Araiza
Petitioner/Appellee
VASQUEZ-ARAIZA v. GURROLA
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Maurice Portley joined.
W I N T H R O P, Judge:
¶1 Jose Lopez Gurrola (“Husband”) appeals the family court’s
decree of dissolution awarding certain real property to Soila Vasquez-
Araiza (“Wife”). Husband does not contest the family court’s award of the
parties’ business to Wife, or the overall distribution of the parties’ personal
property and community debts. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 After approximately twenty-nine years of marriage, Wife
served a petition for dissolution on Husband in April 2011. The parties
initially attempted to negotiate a settlement regarding their personal and
real property, and Husband ultimately filed a “Notice of Settlement and
Motion to Vacate Trial.” The family court vacated the trial setting and
ordered the parties to submit their settlement documents by April 11, 2013.
No settlement agreement was ever filed. After retaining new counsel, Wife
filed a “Motion for Contempt, Sanctions, Attorney’s Fees, and Request for
Expedited Hearing,” alleging that Husband fraudulently induced Wife into
a settlement and dissipated marital assets. Wife further contended
Husband had failed to provide any disclosures or financial information as
ordered by the court, and Wife had negotiated a settlement based solely
upon assurances made by Husband. Wife also alleged Husband interfered
with the operations of the family business.
¶3 Without ruling on Wife’s motion, the family court set a new
trial date for July 10, 2013, and ordered that all discovery and disclosure be
completed by June 10, 2013. Wife filed her disclosure statement on June 7,
2013. Husband filed his “Supplemental Rule 49 Statement” on July 3, 2013.
During trial, the parties agreed: (1) neither party would receive spousal
maintenance; (2) Wife was entitled to ownership of the family business; (3)
Wife would receive a residence on Millett in Mesa; and (4) both Husband
and Wife would receive the vehicles in his or her possession. Although
both parties testified during trial, the record on appeal does not include
transcripts of the proceedings.
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VASQUEZ-ARAIZA v. GURROLA
Decision of the Court
¶4 The family court dissolved the parties’ marriage on August
23, 2013. The court awarded Wife the marital residence on Mesa Drive in
Mesa and the residence on Millett, and Husband was awarded a residence
on Winterhaven in Mesa. The court ordered that a 4-plex property on
Horne Street in Mesa be sold and the proceeds divided, with Husband
required to reimburse Wife $31,750.35 from his share for improper
expenditures, including (1) $19,409.35 that Husband spent without
agreement or authorization after the dissolution petition was filed, and (2)
$12,341.00 Husband owed to the family business. The court also ordered
Husband to pay Wife half of the proceeds of Husband’s unauthorized sale
of the parties’ personal property. The family court also found Husband had
acted unreasonably during the course of the litigation and, pursuant to
Arizona Revised Statutes (“A.R.S.”) section 25-324,1 awarded Wife her
attorneys’ fees and costs.
¶5 Husband filed a motion for new trial on September 9, 2013,
which the family court denied. Husband timely appealed. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
ANALYSIS
¶6 Husband argues the family court’s apportionment of real
property was unfair. In addition, Husband asserts Wife should have been
bound by the pretrial settlement agreement. Where a family court acts
equitably, we will not disturb its apportionment of community property
absent an abuse of discretion. Cockrill v. Cockrill, 139 Ariz. 72, 74-75, 676
P.2d 1130, 1132-33 (App. 1983). As the appellant, Husband had a duty to
produce the entire record, including providing necessary transcripts. See
ARCAP 11(b). He failed to do so, and this court will thus assume the
missing record supports the family court’s findings. See Baker v. Baker, 183
Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); see also Bliss v. Treece, 134 Ariz.
516, 519, 658 P.2d 169, 172 (1983) (“Where the record is incomplete, a
reviewing court must assume any evidence not available on appeal
supported the trial court’s action.”). In light of that assumption, we find no
error in the family court’s distribution of the community property.
¶7 The record before us does not include complete information
regarding encumbrances on the real property allocated to the parties.
Without that information, we cannot say that the family court’s division of
real property was inequitable. And without a transcript from the trial, we
1 We cite the current version of the statutes if no revisions material to
our decision have occurred since the relevant dates.
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VASQUEZ-ARAIZA v. GURROLA
Decision of the Court
cannot assess whether the family court otherwise failed to consider
evidence, improperly admitted evidence, or violated court rules. Based on
this record, we find no abuse of discretion, as the limited record supports
the family court’s division of the community property.
¶8 Husband’s assertion that Wife should have been bound by the
settlement agreement is without merit. The alleged agreement appears in
an extensive email exchange between the parties’ counsel negotiating the
distribution of the community property and debts. At the conclusion of this
negotiation, Husband’s counsel indicated he would prepare the “notice of
settlement and motion to vacate trial,” which was ultimately filed on March
12, 2013, one day before the original trial date. The family court then
vacated the trial and ordered the settlement agreement be filed by April 11,
2013. No settlement agreement was ever filed. Husband’s assertion that
Wife is bound by Rule 69(B), Ariz. R. Fam. Law P., is unfounded, as no
agreement was ever reduced to a writing or set forth on the record.
Moreover, even assuming arguendo the email negotiations could be deemed
to establish an agreement, the family court had discretion to find the
agreement was unfair and issue orders for the disposition of the parties’
property in a dissolution decree. See A.R.S. § 25-317; see also Rule 69(B).
Accordingly, we see no error in the family court’s ultimate distribution of
the parties’ property.
CONCLUSION
¶9 For the foregoing reasons, we affirm the family court’s decree
delineating the distribution of the community property and order denying
Husband a new trial.
:RT
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