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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ANTHONY BALDERE, Petitioner/Appellant,

                                         v.

                     TRACY STARK, Respondent /Appellee.

                            No. 1 CA-CV 17-0458 FC
                                 FILED 5-17-2018


            Appeal from the Superior Court in Maricopa County
                           No. FC 2013-090185
               The Honorable Stephen M. Hopkins, Judge

                                   AFFIRMED


                                    COUNSEL

Bishop Law Office PC, Phoenix
By Daniel P. Beeks
Counsel for Petitioner/Appellant

Davis Miles McGuire Gardner PLLC, Tempe
By Douglas C. Gardner
Counsel for Respondent/Appellee
                           BALDERE v. STARK
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge James P. Beene joined.


C A M P B E L L, Judge:

¶1           Anthony Baldere (“Father”) appeals the family court’s denial
of his motion for a new trial or to alter or amend the judgment, and the
award of attorney fees to Tracy Stark (“Mother”). For the reasons explained,
we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In 2014 the family court entered a decree of dissolution
dissolving the couple’s marriage. The decree incorporated a stipulated
agreement between the parties regarding spousal support, see Ariz. R. Fam.
Law P. 62, and required Father to pay $4,000 a month in spousal support
for a period of seven years, and $1,700 per month in child support.1

¶3             In November 2016, Father served Mother with a petition to
modify his spousal and child support obligations, alleging substantial and
continuing changes. Father cited a decrease in his monthly income, from
$26,467 to $14,843, after his Peru job ended in 2015 and he took a job in
Arizona. Based on his return to Arizona, Father’s parenting time had also
significantly increased.

¶4            Mother opposed the modifications. She argued Father’s
support obligations were based on his historical average income, not his
Peru salary, and thus, there had been no substantial and continuing change
in circumstances that would warrant a modification. Father replied and
argued his spousal support obligation was based on his Peru salary, not his
historical average income. He also argued he had additional monthly
expenses because he remarried.

¶5            The family court held an evidentiary hearing where the only
evidence of current income provided by Father was an affidavit of financial
information and an estimate of his 2016 taxes. Father conceded that during

      1 The stipulated agreement stated that spousal support could be
modified based on substantial and continuing changes.


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the 2014 dissolution proceedings the parties were aware that his job in Peru
was temporary, had yielded a higher salary than what he previously
earned, and he expected his income to decrease when the job ended. He
further testified that he was seeking to have the family court retroactively
modify his spousal support obligation to $1,250 a month.

¶6             Father also acknowledged he was aware that the controlling
child support order was the 2014 decree, requiring him to pay $1,700 a
month. Nonetheless, he unilaterally reduced his child support payments
around March 2016. He testified his child support obligation “was already
modified” in February 2016, per an agreement with Mother, and, based on
that agreement, he was seeking an order that “retroactive[ly]” modified his
obligation. Mother testified she was agreeable to reducing Father’s child
support, but they had been unable to reach a final agreement because Father
insisted that any modification start prior to the date of filing of his petition
for modification.

¶7             The family court later entered an under advisement ruling.
The court denied Father’s request for modification of spousal support. It
found Father failed to show substantial and continuing changes based on
several factors: (1) both parties knew Father’s job in Peru was temporary
when they voluntarily entered into the stipulated agreement that Father
would incur the $4,000 a month spousal support obligation for seven years;
(2) Father failed to provide any independent confirmation of his income at
the evidentiary hearing; (3) Father’s current alleged income of $14,200 to
$14,800 was not substantially different from the income he alleged in the
2014 divorce proceedings of $15,917 a month; (4) there was no evidence
Mother was underemployed; and (5) any increase in Father’s living
expenses was immaterial. Applying the child support guidelines, the court
reduced Father’s child support to $305.30 a month, “effective December 1,
2016.” The court also awarded Mother her reasonable attorney fees.

¶8            Father moved for a new trial or to alter or amend the
judgment pursuant to Arizona Rule of Family Law Procedure 83(A) (the
“Rule 83 Motion”). He argued the court “failed to apply the equitable
doctrines of estoppel and/or waiver in making the Ruling, and that if such
doctrines [were] properly applied, Father [was] eligible to modify spousal
maintenance . . . and to avoid any child support arrearages for the period
from March 1, 2016 to December 1, 2016” (the “equitable defenses”). He
attached a decree of dissolution support modification form. He also
attached “exhibits” consisting of letters and e-mails he marked, but never
admitted into evidence at the evidentiary hearing (the “unadmitted
exhibits”). He argued the unadmitted exhibits demonstrated that in 2014


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                            Decision of the Court

Mother agreed the loss of the Peru job would constitute a substantial and
continuing change and that Mother had agreed to modify child support in
2016, and thus, Father should not be subject to the arrearage payments.

¶9           The family court denied Father’s motion. It later entered a
final judgment for attorney fees, awarding Mother her full attorney fees of
$19,255.50.

                               DISCUSSION

   I.       Denial of Rule 83 Motion

¶10           We review the family court’s denial of a Rule 83 motion for
an abuse of discretion. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10 (App. 2009).
The family court found the motion did not comply with Rule 83 because the
“rules do not permit a party to wait until after an adverse final order, and
then present new evidence or arguments.” Specifically, it found Father: (1)
failed to raise any argument regarding the equitable defenses at the
evidentiary hearing; (2) did not “even insinuate” the equitable defenses
could not have been raised; (3) relied on attached unadmitted exhibits never
presented at the hearing; (4) did not allege the unadmitted exhibits were
“newly discovered”; and (5) did not cite “any evidence that is of record”
before the court. The family court also rejected Father’s arguments on the
merits.

¶11           As an initial matter, we agree with the family court that prior
to the Rule 83 Motion, Father did not raise any arguments regarding the
equitable defenses. Therefore, Father has waived these issues on appeal.
Conant v. Whitney, 190 Ariz. 290, 293 (App. 1997) (issues raised for the first
time in a motion for a new trial are generally waived on appeal); see also
Kent v. Carter-Kent, 235 Ariz. 309, 313, ¶ 20 (App. 2014) (ex-wife could not
use motion for new trial as a vehicle for a revaluation of ex-husband’s firm,
when remedy was not at issue in the underlying order).

¶12          Father cites Parra v. Cont’l Tire N. Am., Inc., 222 Ariz. 212, 214
n.2, ¶ 7 (App. 2009), and argues the general rule of waiver is not applied
when a party directly appeals the denial of a motion for a new trial. In Parra,
however, the issue raised in the motion for a new trial, Ariz. R. Civ. P. 59,
had been raised at oral argument and was based on one of the enumerated
grounds for relief under the applicable rule.2 Parra, 222 Ariz. at 214, ¶¶ 6-7.

        In Parra, the plaintiffs moved for a new trial under current Arizona
        2

Rule of Civil Procedure 59(a)(1)(H) (granting relief when verdict, decision,



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Nothing in the record here indicates the equitable defenses were presented
to the family court prior to the Rule 83 Motion, nor did Father allege any of
the Rule 83 grounds for relief applied. See Ariz. R. Fam. Law P. 83(A)
(identifying six grounds for relief). As such, the considerations in Parra do
not apply here.

¶13            Father attempts to characterize his omissions during the
evidentiary hearing proceedings as simply a failure to use “technical legal
terms.” He argues he preserved the equitable defenses because the family
court heard evidence regarding the informal agreement to reduce child
support, and in his reply, he “quoted from two emails sent by Mother’s
former attorney” (both taken from the unadmitted exhibits) which
demonstrate Mother’s agreement that the loss of his temporary Peru job
would constitute a substantial and continuing change. Neither provides
any support for Father’s argument.3 Moreover, the evidence and testimony
at the evidentiary hearing belie this argument: Father’s position on the
existence of substantial and continuing changes focused on the loss of his
Peru job, his remarriage, the informal agreement, see supra ¶¶ 3-7, Mother’s
ability to find better paying employment, and the veracity of her affidavit
of financial information.4 Father repeatedly requested as relief a court
ordered retroactive modification of his support obligations—a
substantively different form of relief than a remedy based on the equitable
defenses of waiver and estoppel. Coburn v. Rhodig, 243 Ariz. 24, 26-27,
¶¶ 10-12 (App. 2017). Accordingly, Father has waived on appeal any
argument regarding the equitable defenses.




findings of fact, or judgment is not supported by evidence or is contrary to
law). We may look to Rule 59 of the Arizona Rules Civil Procedure because
Rule 83 is based on that rule. Ariz. R. Fam. P. 83 comm. com.

      3  Father referred to the quoted portions in his reply to support his
argument that the 2014 spousal support obligation was based on his Peru
salary, not his historical average income.

      4 For example, during Father’s direct examination of Mother, he did
not move to admit any of the unadmitted exhibits that he relied upon in his
motion, nor did he question Mother about estoppel or waiver. Instead,
Father examined Mother regarding why she had not sought a higher paying
job and challenged individual items in her affidavit of financial
information.



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¶14           We further note that even if Father had not waived these
issues on appeal, the family court did not abuse its discretion when it
denied the Rule 83 Motion. Under Rule 83(C)(1), a motion for a new trial
“shall specify generally the grounds upon which the motion is based.”
Father’s motion did not identify any ground for relief under Rule 83(A).5
As discussed, Father raised the equitable defenses and supported his
arguments with unadmitted exhibits, in existence at the time of trial, that
he believed demonstrated waiver and estoppel. Father could not have
argued the unadmitted exhibits were “newly discovered” as required by
the rule; he marked them as exhibits at the evidentiary hearing but never
moved to admit them into evidence. Ariz. R. Fam. Law P. 83(A)(4) (new
evidence is “material evidence, newly discovered, which with reasonable
diligence could not have been discovered and produced at the trial”). Thus,
even absent waiver on appeal, the failure to provide any evidence in the
court’s record, or allege any valid ground for relief, provided sufficient
bases for the family court to deny the Rule 83 Motion. Therefore, we need
not, and do not, address the family court’s other reasons for rejecting the
Rule 83 Motion.

   II.       Attorney Fees Award

¶15            We review an award of attorney fees for an abuse of
discretion. Murray v. Murray, 239 Ariz. 174, 179, ¶ 20 (App. 2016). Pursuant
to A.R.S. § 25-324(A), the family court awarded Mother attorney fees based
on a finding of a disparity in the parties’ financial resources and that Father
took an unreasonable position in the proceedings.

¶16          The family court found that before taking into account
spousal maintenance, there existed a substantial disparity in the parties’
incomes, with Father earning “[b]efore spousal maintenance is paid . . .
almost three times as much as Mother.” Father argues the family court
should have only considered their income after spousal support was
deducted from his earnings and added to Mother’s income. Had the court


        For the first time on appeal, Father identifies four grounds under
         5

Rule 83(A), which he argues entitle him to relief. Father has waived these
arguments. Henderson v. Henderson, 241 Ariz. 580, 586, ¶ 13 (App. 2017)
(arguments raised for the first time on appeal are normally waived).




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                            Decision of the Court

done so, Father’s take home pay would still be much greater than
Mother’s—even under his own estimates, there remains roughly a $30,000
disparity in the parties’ income. Any disparity in income is a factor the court
must consider in entering a fee award, and thus, we find no abuse of
discretion here. See Magee v. Magee, 206 Ariz. 589, 592, ¶ 12 (App. 2004)
(award of fees appropriate when income disparity exists).

¶17           After the court considers the financial resources of the parties,
the court turns to the second factor set forth in the statute—the
reasonableness of the positions taken. In this matter, the family court found
Father had acted unreasonably by: insisting on a retroactive modification
date for child and spousal support; failing to offer competent evidence to
support modification of spousal support; rejecting settlement offers that
were reasonable and more favorable than the family court’s ruling; and
taking a position inconsistent with Arizona law.

¶18           Father adamantly disagrees with the court, but none of his
arguments are persuasive. First, Father asserts that under the equitable
defenses his position on arrearages was reasonable. As discussed, Father
did not raise the equitable defenses at the evidentiary hearing. Supra
¶¶ 11-13. Second, Father argues it was not unreasonable to reject Mother’s
settlement offer because Mother would only agree to reduce child support
starting the month after she was served with the petition for modification.
The family court may consider a party’s settlement position in determining
reasonableness. Gutierrez v. Gutierrez, 193 Ariz. 343, 351, ¶ 34 (App. 1998).
Here, Father rejected Mother’s settlement offer and instead sought to obtain
court-ordered retroactive modifications, prior to service of the petition,
which is in fact prohibited by Arizona law. See A.R.S. § 25-327(A); Guerra v.
Bejarano, 212 Ariz. 442, 444, ¶ 7 (App. 2006). Third, Father argues such
conduct was nonetheless reasonable because Mother had not “disclosed”
her position that the loss of his Peru job did not constitute a substantial and
continuing change in circumstances. Father grossly misstates the record.
Supra ¶ 4.

¶19             Finally, Father contends that even if it was unreasonable to
reject the settlement offer, an award of attorney fees prior to March 1, 2017
(the date of Mother’s settlement offer) was inappropriate. We disagree.
Father moved to modify spousal support but offered little evidence of his
income and admitted the impending loss of his Peru job was known at the
time the decree was entered. Supra ¶¶ 5, 7. Although the family court did
modify child support, Father’s demands regarding arrearages were
unreasonable.



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                              CONCLUSION

¶20           For the foregoing reasons, we affirm the family court’s denial
of the Rule 83 motion and the court’s award of attorney fees to Mother. In
our discretion, we grant Mother her costs and attorney fees on appeal,
A.R.S. § 25-324, contingent upon her compliance with ARCAP 21.




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




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