                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

                           MIA LAVON HARMON,
                             Petitioner/Appellant,

                                         v.

                            BRANDON W. GAINES,
                              Respondent/Appellee.

                            No. 1 CA-CV 18-0653 FC
                                 FILED 10-3-2019


           Appeal from the Superior Court in Maricopa County
                          No. FN2018-000496
           The Honorable Bernard C. Owens, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Katz & Bloom, Phoenix
By Jay R. Bloom
Counsel for Petitioner/Appellant

Law Office of Katherine Kraus, PLLC, Peoria
By Katherine Kraus, Giancarlo A. Sapelli, Kimberly A. Staley
Counsel for Respondent/Appellee
                          HARMON v. GAINES
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


J O H N S E N, Judge:

¶1           Mia Lavon Harmon ("Wife") appeals from the superior court's
order vacating portions of her dissolution decree dealing with community
property and debt. For the reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Wife and Brandon W. Gaines ("Husband") married in October
2016; Wife filed a petition for dissolution in March 2018. In relevant part,
her petition stated:

      11.   The parties have accumulated certain community,
      common, and joint assets during the pendency of the
      marriage that should be equitably divided.

      12.   The parties have incurred certain community, joint, or
      common debts and obligations during the pendency of the
      marriage and said debts and obligations should be equitably
      divided.

      13.   [Wife] has sole and separate property that should be
      confirmed as hers.

      14.   [Husband] has sole and separate debt that should be
      confirmed as his.

                              *      *      *

      WHEREFORE, [Wife] prays that this Honorable Court:

                              *      *      *

      C.     Equitably divide the community, joint and common
      assets of the parties.




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      D.     Equitably divide the community and joint debts and
      obligations of the parties.

      E.     Confirm to [Wife] her sole and separate property.

      F.     Confirm to [Husband] his sole and separate debt.

¶3           Husband did not respond to the petition, and default was
entered against him the following month. On August 14, 2018, the court
held a 10-minute hearing at which the court briefly took testimony from
Wife, who appeared with counsel. There is no indication in the record that
Husband was given notice of the hearing, and he did not appear.

¶4            At the hearing, Wife presented the court with a proposed
decree that allowed her possession of the couple's pickup truck and
motorcycle, directed her to sell them and directed how the proceeds of the
sales would be distributed. Wife's counsel explained these provisions to
the court, and, in the process, counsel asserted that, in violation of the
automatic injunction, Husband had refinanced the pickup, which counsel
called the couple's "only asset of equity." After Wife's counsel finished
outlining the terms of the proposed decree addressing the truck, the
motorcycle and the related debt, the court asked counsel, "Does [Husband]
know about any of these plans?" Counsel responded, "No. He has not
participated." At the conclusion of the hearing, the court signed the
proposed decree.

¶5            Three days later, Husband filed a pro se "Expedited Motion
to Stay Judgment and Motion to Set Aside Default Judgment." His motion
asserted that he did not contest Wife's petition for dissolution because he
and Wife had discussed how to resolve the issues concerning the vehicles.
He said the decree, however, did not reflect his understanding of those
discussions. He also said the decree did not address the parties' two other
vehicles. He wrote, "I feel I was Blind sided and this was rushed through
with out me knowing what was going on after contacting her attorney Jay
Bloom." Husband stated he had emailed Wife's counsel three times about
working out the distribution of the community assets, but her counsel had
not responded. Husband further said that Wife's counsel had told him "he
would send me the paper work." Wife filed a response to Husband's
motion, arguing, inter alia, that Husband cited no specifics to support his
contention that the decree was "different in kind from or exceeds the
amount requested in the pleadings."

¶6           The superior court granted the motion, vacating the terms of
the decree dividing property and debt. In its order, the court stated it


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considered the motion under Arizona Rule of Family Law Procedure
("Rule") 85(b)(1).1 The court concluded, "The Court has doubts about
whether the Decree equitably divided the parties' property and debt as
required by [Arizona Revised Statutes section] 25-318 and as requested in
the Petition. Also, [Husband] articulated meritorious positions that could
lead to a different division of property and debt."

¶7            Wife timely appealed the order. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes ("A.R.S.") § 12-2101(A)(2) (2019); see Sanders v. Cobble, 154
Ariz. 474, 474 (1987).

                                DISCUSSION

¶8             We will affirm an order vacating a judgment unless the
superior court abused its discretion. See City of Phoenix v. Geyler, 144 Ariz.
323, 328 (1985) (reviewing order entered under Ariz. R. Civ. P. 60(b)). "In
exercising its discretion, the trial court is not authorized to act arbitrarily or
inequitably, nor to make decisions unsupported by facts or sound legal
policy. Neither does discretion leave a court free to misapply law or legal
principle." Id. at 328-29 (citation omitted). In "setting aside default
judgments, all doubts should be resolved in favor of a trial on the merits."
Dungan v. Superior Court, 20 Ariz. App. 289, 290-91 (1973).

¶9            Under the version of Rule 44(G) in effect at the time, "[a]
judgment by default shall not be different in kind from or exceed the
amount requested in the pleadings." Wife's petition merely asked the court
to "equitably divide" the couple's community property and debt; it
contained no specifics about the manner in which the court should do so.
Nor does the record reflect that Wife provided Husband with a copy of her
proposed decree before the hearing; indeed, the record contains no
indication that Wife notified Husband that there was to be a hearing on the
matter.

¶10           The result was that the court entered a default judgment
containing terms not specified in the petition following a hearing conducted
without notice to Husband. Moreover, Husband's motion to set aside the
judgment asserted that the decree the court entered at Wife's request was
inconsistent with the terms that he and Wife had discussed. He also


1     At the time of the order, this rule was codified as Arizona Rule of
Family Law Procedure 85(C)(1)(a). Absent material revision after the
relevant date, we cite the current versions of statutes and rules.


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asserted Wife's counsel had rebuffed his attempts to discuss how to allocate
the couple's property and debt.

¶11             Under the version of Rule 85 in effect at the time, a court could
vacate a judgment on the basis of "mistake, inadvertence, surprise, or
excusable neglect." Ariz. R. Fam. Law 85(C)(1)(a). Mistake includes "[s]ome
unintentional act, omission, or error arising from ignorance, surprise,
imposition, or misplaced confidence." Davis v. Superior Court, 25 Ariz. App.
402, 403 (1976). Here, the superior court could conclude that Husband had
relied on representations by Wife and/or her counsel and had received no
notice of the August hearing at which Wife presented a form of decree.
Unaware of the terms of that decree and presumably unaware of the
hearing, Husband did not appear at the hearing to contest the decree.
Whether that more accurately constitutes mistake rather than surprise is
immaterial, as either is a ground for vacating a judgment. See Rule
85(C)(1)(a); Davis, 25 Ariz. App. at 403 (implying that when mistake is
evident, it is an abuse of discretion for a court not to vacate a judgment).

¶12            Although Wife argues that Rule 85 does not permit relief
based on a party's "surprise" about the terms of a decree, under the
circumstances presented, and given the mandate in former Rule 44(G) that
a default judgment must substantially mirror the relief sought in the
petition, the superior court did not abuse its discretion in ruling based on
what it characterized as "surprise." Moreover, "[w]e may affirm the trial
court's judgment on other grounds if we determine the trial court reached
the right result." In re Estate of Lamparella, 210 Ariz. 246, 250, ¶ 18 (App.
2005); see Gary Outdoor Advertising Co. v. Sun Lodge, Inc., 133 Ariz. 240, 242
(1982) ("The trial court will be affirmed when it reaches the correct
conclusion even if it does so for an incorrect reason."). As noted, Rule
85(C)(1)(a) provided an independent basis for affirming the superior court's
order.

¶13          Wife further argues the superior court erred by finding that
Husband's motion set forth "meritorious positions." In granting Husband's
pro se motion, the court explained that Husband's assertions caused it to
doubt "whether the Decree equitably divided the parties' property and
debt" as required by law. Without expressing any view of the correct
outcome on remand, we will not upset the court's conclusion that the facts
Husband asserted might require a different allocation of property and debt.




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                              CONCLUSION

¶14           For the reasons stated, we affirm the superior court's order
vacating portions of the dissolution decree. Both parties ask for their
attorney's fees pursuant to A.R.S. § 25-324 (2019). That statute allows the
court to make an award of fees "after considering the financial resources of
both parties and the reasonableness of the positions each party has taken
throughout the proceedings." A.R.S. § 25-324(A). Although we doubt the
reasonableness of Wife's decision to appeal the order vacating the
judgment, the record does not provide us with information about the
parties' respective financial resources. For that reason, we deny both
parties' requests for fees without prejudice to a decision by the superior
court to award attorney's fees incurred on appeal at the conclusion of the
matter. We grant Husband his costs on appeal contingent upon his
compliance with Arizona Rule of Civil Appellate Procedure 21.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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