                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 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 Matter of:
                   DANETTE MILLER, Petitioner/Appellee,

                                        v.

           THOMAS ANDREW MILLER, Respondent/Appellant.

                             No. 1 CA-CV 13-0304
                              FILED 06-12-2014


           Appeal from the Superior Court in Maricopa County
                          No. FC2007-008371
             The Honorable Christopher T. Whitten, Judge

                                  AFFIRMED


                                   COUNSEL

McCulloch Law Offices, Tempe
By Diana McCulloch
Counsel for Petitioner/Appellee

Thomas A. Miller, Tempe
Defendant/Appellant in Propria Persona
                           MILLER v. MILLER
                           Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Maurice Portley joined.


K E S S L E R, Presiding Judge:

¶1            Thomas Andrew Miller (“Father”) appeals the order
granting judgment for Danette Miller (“Mother”) on her petition to
enforce the asset distribution agreement contained in the consent decree.
For the following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY 1

¶1           This appeal concerns Mother’s post-decree petition to
enforce the parties’ agreement concerning the sale of corporate stock.
When the dissolution action was filed, the parties owned significant
shares of Premier Information Management (“PIM”), a publicly traded
company. In May 2009, the parties reached an agreement, memorialized
on the record pursuant to Arizona Rule of Family Law Procedure 69, and
adopted by the court. The agreement was later incorporated in a consent
decree signed by the court in July 2009. As relevant, the decree provided:

      Mother is awarded 3 million shares of Premier Information
      Management Inc. stock which currently (at May 27, 2009)
      is/was in Father’s name. Father is to have this done
      immediately following the May 27, 2009 hearing. The intent
      is that Mother has the ability to sell the 3 million shares . . .
      and that it does not reach affiliate status. In addition, Father
      will pay for any opinion letter, and will make wife whole if
      she loses money regarding the period of time from when she
      gets the stock and when she wants to sell it and getting the
      opinion letter.


1 As Mother points out, Father’s statement of facts does not comply with
Arizona Rule of Civil Appellate Procedure 13(a)(4). We rely on our
review of the record for our recitation of the facts. State Farm Mut. Auto.
Ins. Co. v. Arrington, 192 Ariz. 255, 257 n.1, 963 P.2d 334, 336 n.1 (App.
1998).



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                            MILLER v. MILLER
                            Decision of the Court

¶2             In January 2013, Mother moved the court to enforce the
portion of the decree concerning the distribution of stock to Mother. She
alleged the stock price decreased from $.035 on May 27, 2009 (when she
received the stock), to $.01 on June 22, 2009 (when she received the
opinion letter necessary for her to sell the stock), and asked the court to
order Father to make her whole by paying the difference in value of her 3
million shares of stock, $75,000. Mother also sought reimbursement for
the cost of the opinion letter. Father opposed the motion, arguing Mother
had failed to show that she suffered a loss in the sale of the stock. After
conducting an evidentiary hearing, the superior court granted judgment
for Mother in the amount of $69,123.50. 2

¶3          Father timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2) (Supp. 2013). 3

                               DISCUSSION

¶4               Father argues the superior court erred by granting Mother a
judgment of $69,123.50. We apply an abuse of discretion standard when
reviewing the family court’s division of property. In re Marriage of
Pownall, 197 Ariz. 577, 581, ¶ 15, 5 P.3d 911, 915 (App. 2000). As the trier
of fact, it is the family court’s responsibility to observe the parties, weigh
the evidence, make credibility determinations, and resolve disputed issues
of fact. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48, ¶ 13, 972 P.2d 676,
680-81 (App. 1998). We view the evidence in the light most favorable to
sustaining the court’s findings and will uphold them if they are supported
by any reasonable evidence. Mitchell v. Mitchell, 152 Ariz. 317, 323, 732
P.2d 208, 214 (1987).

¶5            Mother sought to compel Father to pay her $75,000 for the
loss in value of the PIM stock between May 27, 2009, when she received




2 The court impliedly denied Mother’s request for an award of attorneys’
fees, first raised in her reply in support of the petition.

3 Although other post-decree matters remained pending, the court’s order
fully resolved Mother’s petition to enforce and was therefore appealable.
See Williams v. Williams, 228 Ariz. 160, 165-67, ¶¶ 19-29, 264 P.3d 870, 875-
77 (App. 2011) (explaining total finality in post-decree context is not
required as long as petition at issue is fully resolved).



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                            MILLER v. MILLER
                            Decision of the Court

the stock, and June 22, 2009, when she received an opinion letter,4 plus
$3124.50 for the cost of the opinion letter. 5 She testified at the evidentiary
hearing that the parties agreed as part of the dissolution that she would
receive three million shares of PIM stock and, if she incurred a loss on the
stock between when she received it and when she obtained the opinion
letter required to sell the shares, Father would reimburse her for the
difference. She offered evidence that the price of the stock on the day she
received it was $.035 per share and when she obtained the opinion letter it
was valued at $.01 per share. She also claimed the stock now has no
value.

¶6             As the superior court noted, Father did not dispute Mother’s
testimony regarding the dates she received the stock and the opinion
letter, or her assertion that the stock now has no value. He did, however,
challenge Mother’s evidence regarding the value of the stock on the
relevant dates and questioned whether she had sold any of the three
million shares she received.

¶7           The superior court accepted Mother’s evidence regarding
the change in the value of the stock between May 27, 2009 and June 22,
2009, and her testimony that she had only recovered $9000 for the stock. It
granted Mother a judgment against Father for $69,123.50 (the difference in
stock value plus the cost of the opinion letter).6 Father challenges the



4 Although neither entirely clear from the record nor fully explained by
the parties, it appears that the stock Father conveyed to Mother on May
27, 2009 was “restricted,” and federal securities laws therefore prohibited
Mother from selling the stock in the public marketplace until she received
the opinion letter. See Securities Act of 1933, 15 U.S.C. § 77a-77aa; 17
C.F.R. § 230.144.

5 We reject Father’s argument that the superior court had previously
denied Mother’s claim as untimely. In the minute entry Father cites,
dated February 10, 2012 and filed on March 7, 2012, the court stated: “to
the extent there are any motions before the Court [that] have not been
ruled upon[,] they are denied as untimely.” Mother filed her motion to
enforce the asset distribution agreement on January 25, 2013.
6 Mother asserts the court erred by offsetting the $75,000 loss by the $9000
value of her stock sales, but states she is not asking this Court to enlarge
the judgment. See ARCAP 13(b)(3) (stating appellate court may direct that



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                           MILLER v. MILLER
                           Decision of the Court

sufficiency of Mother’s evidence, arguing the court erred by accepting her
testimony because she did not provide a full accounting of all sales of
stock from her brokerage account, so the court could not determine what
stock she sold and for what price. 7

¶8            Father contends Mother’s evidence did not support the
court’s ruling because if Mother had attempted to sell all of her stock on
May 27, 2009, the large-volume sale would have lowered the share price.
As the superior court noted, Father did not offer any evidence to support
his theory, assist the court in valuing the stock, or otherwise contradict
Mother’s evidence concerning the price of the stock on the relevant dates.

¶9            The evidence reasonably supports the superior court’s
findings and we find no abuse of discretion. See Mitchell, 152 Ariz. at 323,
732 P.2d at 214; Gutierrez, 193 Ariz. at 347-48, ¶ 13, 972 P.2d at 680-81. 8

¶10          Mother requests an award of attorneys’ fees and costs
incurred on appeal pursuant to A.R.S. § 12-349 (Supp. 2013) and ARCAP
25. We deny Mother’s request because she has not shown that the appeal


a judgment be modified to enlarge the appellee’s rights only if the
appellee has cross-appealed seeking such relief).

7 Father also challenges the court’s interpretation of the decree, arguing
the provision concerning Mother’s sale of PIM stock was vague and
unenforceable. We decline to consider this argument because Father did
not raise it in the superior court. See Trantor v. Fredrikson, 179 Ariz. 299,
300, 878 P.2d 657, 658 (1994) (“Because a trial court and opposing counsel
should be afforded the opportunity to correct any asserted defects before
error may be raised on appeal, absent extraordinary circumstances, errors
not raised in the trial court cannot be raised on appeal.”).
8  Father complains the superior court showed no “leniency or
consideration” for the fact that he was self-represented. “Parties who
choose to represent themselves ‘are entitled to no more consideration than
if they had been represented by counsel’ and are held to the same
standards as attorneys with respect to ‘familiarity with required
procedures and . . . notice of statutes and local rules.’” In re Marriage of
Williams, 219 Ariz. 546, 549, ¶ 13, 200 P.3d 1043, 1046 (App. 2008) (citation
omitted). Nevertheless, we deny Mother’s request that we sanction Father
for the inclusion of this statement in his opening brief.




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                           MILLER v. MILLER
                           Decision of the Court

was frivolous or that Father brought it without substantial justification or
for the purpose of delay or harassment. 9

¶11           Mother also requests an award of attorneys’ fees pursuant to
A.R.S. § 25-324 (Supp. 2013), which grants courts discretion to award
attorneys’ fees in a divorce case after considering both parties’ financial
resources and the reasonableness of their positions throughout the
proceedings. Because we lack evidence of the parties’ current financial
resources and in the exercise of our discretion, we deny Mother’s request.
Mother, however, as the prevailing party is entitled to recover her costs on
appeal upon compliance with ARCAP 21.

                                   CONCLUSION

¶12          For the foregoing reasons, we affirm.




                               :gsh




9 We also deny Mother’s request that we sanction Father for his inclusion
of the sealed consent decree in the appendix to his opening brief, but on
the Court’s own motion, it is ordered sealing the opening brief.




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