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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

           BERNADETTE ANN ALVARADO, Petitioner/Appellee,

                                         v.

         CHARLES SAMUEL ALVARADO, Respondent/Appellant.

                            No. 1 CA-CV 15-0536 FC
                                FILED 8-4-2016


              Appeal from the Superior Court in Yuma County
                         No. S1400DO200601168
                 The Honorable Maria Elena Cruz, Judge

                           JUDGMENT VACATED


                                    COUNSEL

S. Alan Cook, PC, Phoenix
By S. Alan Cook
Counsel for Petitioner/Appellee

Mary Katherine Boyte, PC, Yuma
By Mary K. Boyte Henderson
Counsel for Respondent/Appellant
                        ALVARADO v. ALVARADO
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            Charles Samuel Alvarado ("Father") appeals the superior
court's order regarding parenting time, child support and legal decision-
making authority. For the following reasons, we vacate the order.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Father and Bernadette Ann Alvarado ("Mother") were
divorced in 2008. Pursuant to the decree and the parenting plan it
incorporated, the parties were awarded joint legal custody of their children,
with Mother designated as the primary residential parent vested with final
decision-making authority. Father was awarded designated parenting time
and ordered to pay $782 per month in child support.

¶3             In 2013, Father filed a petition to modify, seeking "joint legal
decision making authority" and changes to parenting time and child
support. Following a three-day hearing, the superior court made findings
on the record on parenting time and ordered Father to pay $208 per month
in child support, effective May 1, 2014. On the record, the court denied
Father's request for joint legal decision-making authority, finding "not
enough consensus" between the parties, and ordered that Mother have
"final legal decision making authority."

¶4            Father submitted a form of order that recited that the parties
were to "share the joint legal decision making authority regarding the minor
children." Mother objected, arguing the proposed order was contrary to
both the parenting plan and the court's ruling that she would have final
decision-making authority. Father replied and attached a "corrected" form
of order, which provided:

              IT IS THEREFORE ORDERED that the parties shall
       hereafter share the joint legal decision making authority
       regarding the minor children . . . pursuant to the provisions
       of the Parenting Time Plan dated December 19, 2006 and
       attached to the Decree of Dissolution of Marriage filed March


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                          Decision of the Court

       13, 2008 (hereafter "the Parenting Plan") as amended by the
       provisions of this Order. The parties shall consult together in
       good faith as to any major decisions regarding the minor
       children and attempt to reach agreement. In the event the
       parties are unable to agree after such good faith consideration
       and attempts to agree, Petitioner/Mother shall have the right
       to make a final decision to resolve the dispute.

The superior court signed the "corrected" order on May 20, 2014, and the
clerk filed it on May 21, 2014 (the "May 2014 Order").

¶5            On June 20, 2014, Mother filed a motion seeking a new trial
pursuant to Arizona Rule of Family Law Procedure ("Rule") 83; or, in the
alternative, reconsideration under (now-former) Rule 35(D).1 Mother
argued that the court erred in admitting a recording of a conversation
between her and one of the children as rebuttal evidence and allowing
Father to offer evidence of contemporaneous events but denying her the
same opportunity. She asserted that the hearing was "unfair" and the result
"was very unsatisfactory." She asked the court to "open the judgment, take
additional testimony, and direct the entry of a new judgment" to reflect
"what is actually happening" with regard to parenting time.

¶6            The superior court ruled it would treat Mother's motion as a
motion for reconsideration and ordered Father to file a response.2 The court


1       As of January 1, 2015, current Rule 84 (motion for reconsideration or
clarification) replaced former Rule 35(D).
2      At the time, Rule 35(D) provided:

       A party seeking reconsideration of a ruling of the court may
       file a motion for reconsideration.             All motions for
       reconsideration, however titled, shall be submitted without
       oral argument and without response or reply unless the court
       otherwise directs. No motion for reconsideration shall be
       granted, however, without the court providing an
       opportunity for response. A motion authorized by this rule
       may not be employed as a substitute for a motion pursuant to
       Rule 82(B), 83 or 85(C) and shall not operate to extend the time
       within which a notice of appeal must be filed. A motion for
       reconsideration shall be filed not later than thirty (30) days
       after the date of filing of the ruling sought to be reconsidered.



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                      ALVARADO v. ALVARADO
                         Decision of the Court

then denied the motion as to the recording but granted it "as to the request
for leave to introduce further evidence of events occurring
contemporaneously with the trial and currently." The court set an
evidentiary hearing for April 7, 2015, on parenting time and child support.
After the hearing, the court issued a minute entry order making parenting
time adjustments and ordering Father to pay $1,130 per month in child
support, effective May 21, 2014.

¶7           Father moved to vacate and set aside the April 7 order, see
Rule 85(C)(1)(d), contending the court lacked subject matter jurisdiction
under former Rule 35(D) to modify the May 2014 Order. In a written
response, Mother argued to the contrary; she also argued she "could have"
moved to open the May 2014 Order pursuant to Rule 85(C)(1)(b) or (f) to
present evidence that Father "was not and has not been parenting with the
minor children as he was credited in the guideline calculation."

¶8            The superior court denied Father's motion, concluding it had
authority under former Rule 35(D) or current Rule 84(A)(1) to reconsider
parenting time and child support. In a footnote, the court added it also
relied on Rule 85(C)(1)(f), finding "that 78 days credit more accurately
reflects the parenting time [Father] was spending with the two minor
children."

¶9            The court issued a separate signed order reducing Father's
parenting time to 78 days a year and increasing his child support to $1,130
a month (the "June 2015 Order"), stating that "the instant order supersedes
this Court's May 21, 2014 orders." The court also awarded Mother sole legal
decision-making authority regarding the minor children, stating:

      This legal decision-making authority decision is not a
      modification from this Court's May 21, 2014 order. Rather,
      according to the orders entered on the record on May 1, 2014,
      this Court's intention was [that] Mother hold the sole legal
      decision-making authority.

Father timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes ("A.R.S.") section 12-2101(A)(2) (2016).3




3     Absent material revision after the relevant date, we cite a statute's
current version.



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                        ALVARADO v. ALVARADO
                           Decision of the Court

                                DISCUSSION

¶10           Father argues the superior court lacked jurisdiction to enter
the June 2015 Order. We review this issue as a matter of law. Danielson v.
Evans, 201 Ariz. 401, 411, ¶ 36 (App. 2001). We review de novo the superior
court's conclusions of law and interpretation of procedural rules. Felipe v.
Theme Tech Corp., 235 Ariz. 520, 524, ¶ 10 (App. 2014); Alley v. Stevens, 209
Ariz. 426, 428, ¶ 6 (App. 2004); see also Duckstein v. Wolf, 230 Ariz. 227, 231,
¶ 8 (App. 2012) ("We review challenges to the trial court's subject matter
jurisdiction and questions involving the application and interpretation of
court rules de novo.").

A.     Rule 83 Motion for New Trial.

¶11             The May 2014 Order was a final, appealable order that
resolved all outstanding issues related to Father's petition. See A.R.S. § 12-
2101(A)(2); Williams v. Williams, 228 Ariz. 160, 165-67, ¶¶ 19-29 (App. 2011)
(order appealed from must resolve all issues in subject petition even though
total finality in post-decree context is not required); In re Marriage of Dorman,
198 Ariz. 298, 300-01, ¶ 4 (App. 2000) (order resolving petition to modify
dissolution decree was appealable as a special order after final judgment).

¶12            There is no dispute that Mother's motion for new trial from
the May 2014 Order was untimely. See Rule 83(D)(1) ("A motion for new
trial shall be filed not later than fifteen (15) days after entry of the
judgment."). Mother's stated reasons for the untimely filing miss the point;
the time limit for filing a motion for new trial is a strict one, and it "may not
be enlarged." Welch v. McClure, 123 Ariz. 161, 164 (1979) (interpreting Ariz.
R. Civ. P. 59(d)); see also Jaynes v. McConnell, 238 Ariz. 211, 214, ¶¶ 8-9 (App.
2015) (same). 4 Accordingly, the superior court lacked jurisdiction to
consider the motion for new trial. Cf. Egan-Ryan Mech. Co. v. Cardon
Meadows Dev. Corp., 169 Ariz. 161, 166 (App. 1990) (court lacks jurisdiction
over untimely motion filed under Arizona Rule of Civil Procedure 59(l)).




4       The family law rules replaced the Arizona Rules of Civil Procedure
in family cases pending as of January 1, 2006, except where the civil rules
are expressly incorporated. Ariz. R. Fam. Law P. 1, 2(A); Kline v. Kline, 221
Ariz. 564, 568-69, ¶ 13 (App. 2009). "Where the language of the family law
rules is substantially the same as the language of other statewide rules, case
law interpreting that language is applicable." Kline, 221 Ariz. at 568-69, ¶
13.


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                         ALVARADO v. ALVARADO
                            Decision of the Court

B.     Rule 35(D) Motion for Reconsideration.

¶13           Rule 35(D), the other rule Mother cited in her post-judgment
motion, expressly prohibits use of a motion for reconsideration as a
substitute for a motion pursuant to Rule 83 or 85(C). See supra n.2.
Accordingly, the superior court lacked the power to vacate or modify the
May 2014 Order based on a motion for reconsideration.

C.     Rule 85(C) Motion for Relief from Judgment.

¶14            Although Mother did not request relief under Rule 85(C), the
superior court cited Rule 85(C)(1)(f) as additional support for its June 2015
Order.5 "[I]n proper circumstances an untimely motion for new trial [can]
be treated as a motion for relief from judgment." See Welch, 123 Ariz. at 164.
But the superior court may treat such a motion as a motion for relief for
judgment only if the motion sets forth a basis recognized by Rule 85(C) for
setting aside a judgment. See id. We review this ruling for an abuse of
discretion. Maher v. Urman, 211 Ariz. 543, 550, ¶ 21 (App. 2005). "A court
abuses its discretion if it commits an error of law in reaching a discretionary
conclusion[.]" Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9 (App. 2012) (quoting
Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007)).

¶15            Relief is available under Rule 85(C)(1)(f) only when "the
movant can show extraordinary hardship or injustice for a reason other
than the five specified in [subsections (a)-(e)]." Rogone v. Correia, 236 Ariz.
43, 48, ¶ 12 (App. 2014); see also Webb v. Erickson, 134 Ariz. 182, 186 (1982)
("Clause 6 [of Rule 60(c)] and the first five clauses are mutually exclusive.");
but see Amanti Elec., Inc. v. Engineered Structures, Inc., 229 Ariz. 430, 433, ¶ 10
(App. 2012) ("[E]ven when relief might have been available under one of
the first five clauses but for the fact that the time limits of the rule had
elapsed, this does not necessarily preclude relief under clause (6) if the
motion also raises exceptional additional circumstances that convince the
court the movant should be granted relief in the interest of justice.").

¶16           The grounds Mother offered as the basis for her motion for
reconsideration or for new trial are insufficient to support a motion for relief
from judgment pursuant to Rule 85(C). She argued in that motion that the
court erred by admitting evidence of a recording and failing to allow her to
offer other evidence to rebut text messages she contended the court should
not have admitted. Arizona law is clear, though, that Rule 85(C) "is not a


5     Rule 85(C)(1) is "substantively identical" to Arizona Rule of Civil
Procedure 60(c). Cohen v. Frey, 215 Ariz. 62, 64, ¶ 1, n.1 (App. 2007).


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                       ALVARADO v. ALVARADO
                          Decision of the Court

device for weighing evidence or reviewing legal errors." Welch, 123 Ariz. at
165; see also Hyman v. Arden-Mayfair, Inc., 150 Ariz. 444, 446 (App. 1986)
("Rule 60(c) does not encompass situations, other than void judgments,
where a party merely asks the court to reconsider a previous legal ruling.").
To the extent Mother believed the superior court's evidentiary rulings were
in error, her proper course was to move for new trial or file a notice of
appeal within the time frames specified by the rules. See Rule 83(D);
ARCAP 9.6

¶17          Accordingly, we conclude the superior court erred in
modifying or vacating the May 2014 Order based on Rule 85(C)(1)(f).

                              CONCLUSION

¶18           Because the superior court lacked jurisdiction to modify the
May 2014 Order, we vacate the court's June 2015 Order. We express no
opinion about whether, on remand, Father may be entitled to
reimbursement or credit for any amounts he paid in child support pursuant
to the June 2015 Order that are in excess of the calculated support obligation
properly commensurate with the parenting time he actually exercised since
June 2015.




6      Accordingly, we deny Mother's motion filed pursuant to ARCAP 9.1
to suspend this appeal and remand to the superior court to allow her to ask
that court to consider her June 20, 2014, motion as a motion pursuant to
Rule 85(C)(1)(c) or (f).



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                       ALVARADO v. ALVARADO
                          Decision of the Court

¶19            Both parties request an award of attorney's fees on appeal –
Father pursuant to A.R.S. § 25-503(E) (2016) and/or § 25-324 (2016), see Clark
v. Clark, 239 Ariz. 281, 282-83, ¶¶ 8-10 (App. 2016), and Mother pursuant to
§ 25-324. After considering the statutory criteria, we decline to award fees
to either party. As the prevailing party, Father is entitled to an award of his
taxable costs on appeal, upon compliance with Arizona Rule of Civil
Appellate Procedure 21.




                                  :AA




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