                              NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                              In re the Marriage of:

               LOUIE JOSEPH CARUSO, Petitioner/Appellant,

                                          v.

          KIMBERLY JOSEPHINE CARUSO, Respondent/Appellee.

                              No. 1 CA-CV 13-0169
                               FILED 03/13/2014


           Appeal from the Superior Court in Maricopa County
                          No. FC2009-051427
                The Honorable Douglas Gerlach, Judge

              JURISDICTION ACCEPTED; RELIEF DENIED


                                    COUNSEL

Berens Kozub Kloberdanz & Blonstein PLC, Scottsdale
By Richard W. Hundley
Counsel for Petitioner/Appellant

Carrie M. Wilcox, Phoenix
Counsel for Respondent/Appellee
                          CARUSO v. CARUSO
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
joined.


J O N E S, Judge:

¶1             Louie Joseph Caruso (Father) appeals the denial of his
motion for new trial following an adjudication of contempt and
assessment of spousal support and other arrearages. Treating this appeal
as a petition for special action, we accept jurisdiction and deny relief.

                            BACKGROUND

¶2             In 2009, Father and Kimberly Caruso (Mother) entered into a
consent decree (Decree) dissolving their marriage. The Decree required
Father to maintain health insurance for the parties’ two minor children, D.
and R., pay half of the children’s uncovered medical expenses, all of the
children’s private school expenses, and half of the interim community
obligations, including Mother’s vehicle payments.

¶3            The Decree additionally required Father to pay $1,600 in
weekly spousal maintenance for thirty months, and thereafter pay $1,300
for an additional thirty months. Father was additionally responsible for
obtaining, and maintaining, a life insurance policy with Mother as
beneficiary throughout the spousal maintenance period.

¶4            In 2012, Mother filed her first amended petition for
contempt, seeking unpaid spousal maintenance dating from 2009.
According to Mother, Father had also failed to pay $3,000 in Xavier
College Preparatory expenses; made no interim community obligations
payments; failed to reimburse her for medical care, insurance, and
prescriptions; and failed to supply evidence that Mother was the
beneficiary of his life insurance policy. Father filed a response opposing
the petition.




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                           Decision of the Court

¶5            On November 13, 2012, following an evidentiary hearing,
the trial court found Father in contempt for failing to pay spousal
maintenance as ordered. Mother was awarded $194,259.37 1 in spousal
support arrearages, as well as amounts for insurance costs, uninsured
medical expenses, and private school expenses. The trial court also
directed Father to provide proof Mother was designated as his life
insurance beneficiary. Finally, the trial court found Mother was entitled to
attorneys’ fees pursuant to Arizona Revised Statutes (A.R.S.) section 25-
324(A) (2014), 2 subject to documentation of the requested amount. This
judgment was not a final, appealable judgment, pursuant to ARFLP3
78(A)-(B) and 81(A).

¶6            Father then moved for a new trial pursuant to ARFLP
83(A)(1) and (6), contending: (1) the contempt order pertaining to unpaid
spousal support payments due prior to a year before Mother filed her
petition was contrary to law under A.R.S. § 12-865(A) (2014); 4 and (2)
there was an irregularity in the proceedings that deprived him of a fair
trial due to his prior counsel’s ineffectiveness in several respects, such as
failing to disclose and introduce key documents at the evidentiary
hearing. Mother opposed the motion and applied for attorneys’ fees.

¶7            The trial court denied the motion for new trial and awarded
attorneys’ fees to Mother. Following a motion for reconsideration, which
was ultimately denied, Father appealed.

                         STANDARD OF REVIEW

¶8            We review a finding of civil contempt for abuse of
discretion. Munari v. Hotham, 217 Ariz. 599, 605, ¶ 25, 177 P.3d 860, 866
(App. 2008). We accept the factual findings of the trial court unless they
are clearly erroneous. Strait v. Strait, 223 Ariz. 500, 502, ¶ 6, 224 P.3d 997,
999 (App. 2010).

¶9            We review the denial of a motion for new trial under the
abuse of discretion standard. Larsen v. Decker, 196 Ariz. 239, 244, ¶ 27, 995

1 The trial court later amended its judgment to reflect a mathematical
error, and reduced the awarded amount to $188,959.37.
2 Absent material revisions after the relevant date, we cite to the current

version of a statute.
3 Arizona Rules of Family Law Procedure
4 Father does not contest the amount of spousal maintenance awarded.




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                           Decision of the Court

P.2d 281, 286 (App. 2000). A court abuses its discretion by committing an
error of law. Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350,
¶ 17, 141 P.3d 824, 830 (App. 2006).

                               DISCUSSION

I.     Jurisdiction

¶10            “[T]his court has an independent duty to determine whether
it has jurisdiction to consider an appeal.” Sorensen v. Farmers Ins. Co. of
Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). Our
jurisdictional limits are defined by statute. A.R.S. § 12-2101(A) (2014);
Fields v. Oates, 230 Ariz. 411, 413, ¶ 7, 286 P.3d 160, 162 (App. 2012).

¶11           Father appeals the denial of his motion for new trial, which
challenged the trial court’s ruling regarding Mother’s contempt motion.
While a finding of criminal contempt is appealable under A.R.S. § 12-
863(D) (2014), no such provision is found within the civil contempt
statute. A.R.S. § 12-864 (2014).       In general, we lack direct appellate
jurisdiction over appeals from civil contempt orders. Stoddard v. Donahoe,
224 Ariz. 152, 154, ¶ 7, 228 P.3d 144, 146 (App. 2010).

¶12            Father’s appeal, however, also raises questions relating to
other arrearages for which he was not found in contempt. In the exercise
of our discretion, we treat Father’s entire appeal as a special action, accept
jurisdiction, and deny relief for the following reasons.

II.    Ineffective Assistance of Counsel

¶13            Father argues his prior counsel failed to effectively represent
him, which constituted an irregularity in the proceedings and deprived
him of a fair trial. ARFLP 83(A)(1). Prior counsel’s alleged failure is
asserted to reside in not having raised a statute of limitations defense and
failing to introduce documents and testimony at trial, which Father argues
substantiated his lack of financial resources.

¶14           As our Supreme Court has previously found, we find that
“counsel’s failure to act, whether inadvertent, intentional, or negligent, is
not a ground for a new trial. Allegations concerning such omissions are,
thus, necessarily not essential to the judgment on a motion for a new
trial.” King v. Superior Court, 138 Ariz. 147, 152, 673 P.2d 787, 792 (1983)
(affirming the denial of a motion for new trial under analogous Arizona
Rule of Civil Procedure 59).



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                            CARUSO v. CARUSO
                            Decision of the Court

¶15           In support of his argument, Father relies upon Nordensson v.
Nordensson, 146 Ariz. 544, 707 P.2d 948 (App. 1985). As in Nordensson,
Father complains his prior counsel failed to submit evidence and
adequately challenge opposing witnesses. Id. at 545-46, 707 P.2d at 949-50.
However, Nordensson held that the alleged ineffectiveness did not
constitute a “gross breach of duty” and did not warrant a new trial. Id. at
546, 707 P.2d at 950.

¶16            Even assuming prior counsel committed a gross breach of
duty, relief is precluded by our Supreme Court’s subsequent decision in
Panzino v. City of Phx., 196 Ariz. 442, 445, ¶ 7, 999 P.2d 198, 201 (2000).
Simply stated, an ineffective assistance claim is not available here, as
opposed to matters involving criminal defendants and possibly parental
severance. See Glaze v. Larsen, 207 Ariz. 26, 31, ¶ 20, 83 P.3d 26, 31 (2004);
John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 324-25, ¶¶ 14, 17, 173 P.3d
1021, 1025-26 (App. 2007) As such, a civil defendant in Father’s position
may not obtain post-judgment relief based upon ineffective assistance of
counsel. Glaze, 207 Ariz. at 31, ¶ 20, 83 P.3d at 31.

III.   The Statute Of Limitations Argument

¶17           Equally unavailing is Father’s argument that the trial court
should have granted his motion for new trial, as the contempt finding was
contrary to law by virtue of a statute of limitations defense that he first
asserted post-trial and post-verdict. Because the procedural history
surrounding the motion for new trial is significant to the resolution of this
issue, we explain it with greater detail.

¶18           On November 13, 2012, the trial court filed a signed minute
entry with the clerk’s office finding Father owed $194,259.37 for unpaid
spousal maintenance along with several other amounts for various
expenses incurred by Mother. Further, it found Father in contempt for the
unpaid spousal support payments dating back to 2010. The last
paragraph of the minute entry, however, stated it was “not a final,
appealable order under [ARFLP] 78, 81” because the trial court had yet to
determine the amount of attorneys’ fees it would award. See ARFLP
78(B). The trial court noted it “sign[ed] th[is] minute entry so that no one
[would have] any questions about the effective date and enforceability of
the rulings” contained within it, “all of which [were] effective and
enforceable immediately.”

¶19           Thereafter, on November 28, Father filed a motion for new
trial pursuant to ARFLP 83(A)(6), arguing, in pertinent part, that A.R.S. §



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                                Decision of the Court

12-865 precluded the trial court’s ability to find him in contempt for
outstanding payments older than one year from the time Mother filed her
petition for contempt, i.e. any payment required to have been paid before
February 2, 2012.5 Within Father’s reply in support of his motion, he
conceded that his attorney at trial “entirely missed the statute of
limitations issue.”

¶20            The trial court, on January 7, 2013, denied Father’s motion
for new trial in a final judgment, finding Father had waived the statute of
limitations argument as he “failed to raise the issue before the entry of
judgment.” Father then filed a motion for reconsideration, arguing the
minute entry was not a final, appealable judgment as described in ARFLP
78 and 81, and that he had therefore timely raised the statute of limitations
defense. The trial court acknowledged it erred in denying Father’s motion
for new trial upon the ground that the statute of limitations defense was
not raised prior to the entry of a final judgment. Accordingly, the trial
court vacated that part of its previous judgment. Nonetheless, the trial
court denied Father’s motion for reconsideration as it found Father
waived the statute of limitations defense by failing to assert it prior to his
motion for new trial; his motion for new trial being filed subsequent to
both the conclusion of the trial proceedings and the trial court’s post-trial
verdict.

¶21           On appeal, Father again urges the statute of limitations
defense was timely asserted as it was presented prior to the entry of a
final, appealable judgment. The statute of limitations is an affirmative
defense that may be waived if it is not timely raised. Allen v. Indus..
Comm’n, 152 Ariz. 405, 412, 733 P.2d 290, 297 (1987); Uyleman v. D.S.
Rentco, 194 Ariz. 300, 302, ¶ 10, 981 P.2d 1081, 1083 (App. 1999). ARFLP
32(B) provides that every defense shall be asserted in a responsive
pleading if one is required, and ARFLP 32(F) states that “[a] party waives
all defenses and objections not presented either by motion or in that


5   A.R.S. § 12-865 provides:

         A. No proceeding for contempt shall be instituted against
         any person unless begun within one year from the date of
         the act complained of.

         B. The proceeding for contempt or a satisfied judgment
         thereon shall not bar a criminal prosecution for the same act.




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                           CARUSO v. CARUSO
                           Decision of the Court

party’s answer or response.” Father correctly notes ARFLP 92 does not
require a response to a contempt petition. See also ARFLP 91(M). When a
pleading does not require a response by the opposing party, ARFLP 32(B)
provides that “the adverse party may assert at the trial any defense in law
or fact to [the] claim for relief.” (emphasis added). Father had three
separate interactions with the trial court before it rendered its verdict —
his response to the contempt petition, his pre-hearing memorandum, and
the trial proceedings — and he concedes he did not raise the statute of
limitations defense at any of those junctures.

¶22           Father relies upon Sparks v. Republic Nat’l Life Ins. Co., 132
Ariz. 529, 647 P.2d 1127 (1982) and Romo v. Reyes, 26 Ariz. App. 374, 548
P.2d 1186 (1976) for the proposition that the statue of limitations defense is
waived only if not raised prior to the entry of a final, appealable
judgment. While the defense is certainly waived if not raised prior to a
final judgment, the defense is likewise waived if not asserted prior to the
entry of a non-final, revisable judgment, such as was provided in this case.
See Lewis R. Pyle Mem’l Hosp. v. Gila Cnty., 161 Ariz. 82, 84, 775 P.2d 1146,
1148 (App. 1989) (finding the statute of limitations defense was waived
when asserted for the first time in a motion following a signed and filed
partial summary judgment ruling that was without Rule 54(b) language
(analogous to ARFLP 78(B)). This conclusion is necessary both for the trial
court’s understanding of the issues before it and the opposing party’s trial
preparation and conduct. To find otherwise would prejudice the
opposing party and undermine public policy favoring finality of
judgments. See Panzino v. City of Phx., 196 Ariz. 442, 447-48, ¶ 18, 999 P.2d
198, 203-04 (2000). 6 As the trial court properly applied the law before it,
ARFLP 83(a)(6) does not support the relief Father seeks.

¶23            Father also contends Mother implicitly raised the statute of
limitations issue by presenting three years of spousal arrearage evidence.
We reject this contention. An affirmative defense, by definition, is “[a]
defendant’s assertion of facts and arguments that, if true, will defeat the
plaintiff’s or prosecution’s claim . . . .” Black’s Law Dictionary (9th ed.

6 As the trial court aptly noted, accepting Father’s contention and granting
his request for a new trial to allow him to plead a previously omitted
defense — more appropriately considered “a motion to reopen the record
in [a concluded] proceeding” that resulted in a verdict — would force
courts “to grant new trials routinely when asked to do so by disgruntled
parties seeking a second trial to correct whatever did not go well in the
first trial . . . .”



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                          CARUSO v. CARUSO
                          Decision of the Court

2009) (emphasis added). “The trial court cannot be expected to glean a
party’s arguments from a review of the evidence; the party must articulate
its legal arguments.” Best Choice Fund, L.L.C. v. Low & Childers, P.C., 228
Ariz. 502, 508 n.3, ¶ 17, 269 P.3d 678, 684 n.3 (App. 2011) (rejecting claim
that issues were sufficiently raised because they were implicit in the
affidavits). If we were to accept this argument, an opposing party would
never be required to affirmatively raise a limitations period defense as it
would always be “implicitly” raised whenever applicable to a claim, and
therefore could never be waived. This, of course, is not the law in
Arizona. Uyleman, 194 Ariz. at 302, ¶ 10, 981 P.2d at 1083 (“The statute of
limitations is an affirmative defense that is waived unless raised.”).

¶24           ARFLP 34(A)(1) allows for a party to amend its pleading
once as a matter of course prior to service of a responsive pleading, or if
no responsive pleading is required, within twenty days following its
service. ARFLP 34(B) provides that a party, even after judgment, may
move to amend the pleadings to raise issues previously omitted from the
pleadings but tried by express or implied consent of the parties at trial.
Father, however, never requested leave to amend pursuant to ARFLP 34,
but rather chose to assert a previously unasserted affirmative defense in a
post-verdict motion for new trial. While motions seeking leave to amend
should be liberally granted, 7 such motions must necessarily be filed,
which in the immediate case never occurred.

¶25          Therefore, based upon the foregoing, the trial court’s ruling
denying Father’s motion for new trial was correct and will not be
disturbed on appeal.

IV.   Attorneys’ Fees

¶26           Finally, Father challenges the trial court’s award of
attorneys’ fees to Mother under A.R.S. § 25-324(A). We review this award
for abuse of discretion. Mangan v. Mangan, 227 Ariz. 346, 352, ¶ 26, 258
P.3d 164, 170 (App. 2011).

¶27           The trial court had discretion to award attorneys’ fees based
upon the parties’ resources and the reasonableness of the parties’
positions throughout the litigation. See A.R.S. § 25-324(A). In exercising


7ARFLP 34(A)(1); Dube v. Likins, 216 Ariz. 406, 415, ¶ 24, 167 P.3d 93, 102
(App. 2007); MacCollum v. Perkinson, 185 Ariz. 179, 185, 913 P.2d 1097, 1103
(App. 1996).



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                           Decision of the Court

that discretion, the trial court found Father had behaved unreasonably by
(1) arguing his spousal support obligation was discharged because Mother
was living with her brother and sister-in-law, and (2) threatening to
initiate litigation for recovery of “back child support.” Father also rejected
Mother’s settlement offer without proposing a reasonable alternative.

¶28           The trial court also had evidence from the contempt hearing
concerning the parties’ respective resources. Indeed, the trial court
concluded Father’s bank account statements substantiated his ability to
pay spousal support. Although Father disputes the inferences to be
drawn from the bank account evidence, it cannot be said the trial court
abused its discretion in concluding that the reasonableness of the positions
taken and the parties’ resources, considered together, supported the
award of attorneys’ fees to Mother.

¶29            To the extent Father asserts an abuse of discretion based
upon a lack of findings regarding fees, nothing in the record reflects a
request for such findings or challenged the lack thereof in the trial court.
“There is no obligation for the trial court to make findings of fact under
A.R.S. § 25-324” unless a party makes a formal request. MacMillan v.
Schwartz, 226 Ariz. 584, 592, ¶¶ 39-40, 250 P.3d 1213, 1221 (App. 2011); see
A.R.S. § 25-324(A) (“On request of a party or another court of competent
jurisdiction, the court shall make specific findings concerning the portions
of any award of fees and expenses that are based on consideration of
financial resources and that are based on consideration of reasonableness
of positions.”). “A litigant is required ‘to object to inadequate findings at
the trial court level so that the court will have an opportunity to correct
them, and failure to do so constitutes a waiver.’” MacMillan, 226 Ariz. at
592, ¶ 39, 250 P.3d at 1221 (quoting John C. Lincoln Hosp. & Health Corp. v.
Maricopa Cnty., 208 Ariz. 532, 540, ¶23, 96 P.3d 530, 538 (App. 2004)).
Consequently, Father failed to preserve his objection as to the lack of
findings. See id.

                              CONCLUSION

¶30          We accept jurisdiction and deny relief. In accordance with
A.R.S. § 25-324(A), we deny Mother’s request for attorneys’ fees on
appeal; however, as the prevailing party we award her costs on appeal




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                         CARUSO v. CARUSO
                         Decision of the Court

subject to her compliance with Arizona Rule of Civil Appellate Procedure
21(b) and (c). We deny Father’s request for attorneys’ fees and costs on
appeal.




                                :gsh




                                  10
