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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       IVETH FELIX, Petitioner/Appellee,

                                         v.

                   JOSE A. MONTES, Respondent/Appellant.

                            No. 1 CA-CV 16-0668 FC
                                 FILED 8-10-2017


            Appeal from the Superior Court in Maricopa County
                            No. FC2014-095647
             The Honorable Justin Beresky, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Law Offices of Kevin Jensen, PLLC, Mesa
By Brandon Yost
Counsel for Petitioner/Appellee

Bishop Law Office, P.C., Tempe
By Daniel P. Beeks
Counsel for Respondent/Appellant
                             FELIX v. MONTES
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia A. Orozco1 joined.


C R U Z, Judge:

¶1           Jose Montes (“Father”) appeals from the decree dissolving his
marriage to Iveth Felix (“Mother”) and the denial of his motions for relief
from judgment and a new trial. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             Mother and Father married in February 2013 and have one
child in common. In October 2014, Mother filed a petition for dissolution,
and a year later, the family court issued a minute entry setting a one-day
trial for May 16, 2016. At the time set for trial, Father’s attorney was present,
but Father was not. As the hearing commenced, the following exchange
occurred between the court and Father’s attorney:

             THE COURT: All right. Do you expect [Father] to
       appear? Well, let me put it this way. Have you had any recent
       communication with him?

               [COUNSEL]: Not since last week, Your Honor. But
       that’s not unusual. He doesn’t speak English very well and I
       don’t speak Spanish very well so any messages that I leave for
       him are left with a cousin and the cousin talks to him and calls
       me back and she’s able to relate to me whatever their
       communication was. The last such communication I received
       from him, I think, was Thursday.

              THE COURT: But he was aware of the date?

              [COUNSEL]: Oh, yeah. Of course. Yes.


1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3, of the Arizona Constitution.



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                           Decision of the Court

Father’s attorney then moved for a continuance:

              [COUNSEL]: Your Honor in view of my client’s
      unexplained absence, and I have no explanation whatsoever,
      I would ask that this trial be continued. I think in the interest
      of fairness he should be here. I wish that he were here. If he
      is not here, it very much hampers the presentation of [his]
      case in two ways. One is he would be [of] assistance in cross-
      examination of [Mother]. The other is in the presentation of
      the resulting case, Your Honor. So I would ask that this
      matter be continued for approximately 30 days so I can find
      out what has happened to [Father].

¶3             The family court denied the motion and proceeded with the
hearing in Father’s absence. Mother presented her case and was cross-
examined by Father’s attorney. After taking the matter under advisement,
the court issued an eighteen-page ruling on the issues of legal decision-
making and parenting time, child support, spousal maintenance, division
of property and debts, and attorneys’ fees and costs. Following entry of the
decree, Father moved for relief from the judgment and for a new trial,
explaining he did not appear at trial because he believed the parties had
reached a settlement. The court denied the motion and a subsequent
motion for clarification. Finally, the court awarded Mother $5,846.74 plus
interest in attorneys’ fees and costs pursuant to Arizona Revised Statutes
(“A.R.S.”) section 25-324.2

¶4            Father timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1), (5)(a).

                              DISCUSSION

I.    Motion to Continue

¶5            Father argues the family court erred by denying his motion to
continue the trial. We review a ruling on a motion to continue for an abuse
of discretion. Dykeman v. Ashton, 8 Ariz. App. 327, 330, 446 P.2d 26, 29
(1968). A motion to continue based on the unavailability of a party must
state, among other things, that the postponement is based on good cause.
Ariz. R. Fam. Law P. (“Rule”) 77(C)(2). Here, Father’s attorney gave no

2     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.




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                             FELIX v. MONTES
                            Decision of the Court

reason for Father’s failure to appear at trial. Because Father failed to offer
evidence of good cause, the family court did not abuse its discretion in
denying a continuance.3

II.    Motion for Relief from Judgment

¶6              Father argues he was entitled to relief or new trial under Rule
85(C)(1). But a party may seek relief on this basis only from a “final
judgment, order or proceeding.” Rule 85(C)(1) (emphasis added). In this
case, a final judgment had not been entered when Father filed his motion.4
Accordingly, the family court did not err in denying relief under Rule
85(C)(1); cf. Sw. Barricades, L.L.C. v. Traffic Mgmt., Inc., 240 Ariz. 139, 141,
¶ 11, 377 P.3d 336, 338 (App. 2016) (discussing former Arizona Rule of Civil
Procedure 60(c)).5

III.   Motion for New Trial

¶7            Father argues the family court should have granted a new
trial based on “accident or surprise which could not have been prevented
by ordinary prudence.” See Rule 83(A)(3). We review a ruling on a motion
for new trial for an abuse of discretion. Kent v. Carter-Kent, 235 Ariz. 309,


3       Because we find no error, we need not address Father’s argument
that a new trial was required because of an “irregularity in the proceedings”
or an “abuse of discretion” that deprived him of a fair trial. See Rule 83(A)
(providing permissible grounds for altering, amending, or vacating a
decision or judgment upon a party’s motion for new trial or amended
judgment).

4       The decree was not a “final judgment” because it did not resolve all
the issues pending before the family court or have a Rule 78(B) certification
of finality. Natale v. Natale, 234 Ariz. 507, 509, ¶ 9, 323 P.3d 1158, 1160 (App.
2014); Ghadimi v. Soraya, 230 Ariz. 621, 622-23, ¶¶ 10-11, 285 P.3d 969, 970-
71 (App. 2012).

5      Rule 85(C) is “substantively identical” to former Arizona Rule of
Civil Procedure 60(c). Cohen v. Frey, 215 Ariz. 62, 64 n.1, ¶ 1, 157 P.3d 482,
484 n.1 (App. 2007). The Arizona Rules of Civil Procedure were extensively
amended in 2017 to “‘restyle’ [them] in a manner similar to the 2007
restyling of the Federal Rules of Civil Procedure.” Ariz. R. Civ. P., prefatory
cmt. to the 2017 amendments. The amendments took effect January 1, 2017.
Id.



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                             FELIX v. MONTES
                            Decision of the Court

312, ¶ 13, 332 P.3d 56, 59 (App. 2014). “An abuse of discretion occurs when
there is no evidence to support a holding or the court commits an error of
law when reaching a discretionary decision.” Dowling v. Stapley, 221 Ariz.
251, 266, ¶ 45, 211 P.3d 1235, 1250 (App. 2009); see also Grant v. Ariz. Pub.
Serv. Co., 133 Ariz. 434, 455-56, 652 P.2d 507, 528-29 (1982). We may affirm
for any reason supported by the record. Pettit v. Pettit, 218 Ariz. 529, 531,
¶ 4, 189 P.3d 1102, 1104 (App. 2008).

¶8              Father suggests the “ordinary prudence” standard for
granting a new trial under Rule 83(A)(3) is analogous to the “excusable
neglect” standard under Rule 85(C)(1)(a). See Roberts v. Morgensen Motors,
135 Ariz. 162, 164-65, 164 n.2, 659 P.2d 1307, 1309-10, 1309 n.2 (App. 1982)
(discussing former Arizona Rules of Civil Procedure 59(a)(3) and 60(c)(1)).
Assuming without deciding this is correct, “the test of what is excusable is
whether the neglect or inadvertence is such as might be the act of a
reasonably prudent person under similar circumstances.” Daou v. Harris,
139 Ariz. 353, 359, 678 P.2d 934, 940 (1984); see also Ulibarri v. Gerstenberger,
178 Ariz. 151, 163, 871 P.2d 698, 710 (App. 1993). In this case, Father has not
shown he took any steps a reasonably prudent person would have taken in
similar circumstances to ensure his participation in a court proceeding
where property rights and child custody were at issue. He did not maintain
contact with his attorney. See Hackin v. First Nat'l Bank of Ariz., Phx., 5 Ariz.
App. 379, 385, 427 P.2d 360, 366 (1967) (stating that a party who willfully or
negligently fails to keep in touch with counsel cannot complain of the court
proceeding in his absence). Nor did he present evidence of a settlement
other than his own affidavit. See Walter v. N. Ariz. Title Co., 6 Ariz. App.
506, 511, 433 P.2d 998, 1003 (1967) (finding no excusable neglect where
appellant failed to submit evidence establishing a settlement agreement);
Villalba v. Villalba, 131 Ariz. 556, 557, 642 P.2d 901, 902 (App. 1982) (stating
a belief that the opposing party will not pursue an action does not establish
excusable neglect). In sum, the record does not support a finding of
excusable neglect that would justify a new trial.

¶9            To the extent Father contends an evidentiary hearing was
required, the family court did not err in denying such a request. Cf. Weaver
v. Synthes, Ltd. (U.S.A.), 162 Ariz. 442, 445, 784 P.2d 268, 271 (App. 1989)
(citations omitted) (noting that where written record is clear, an evidentiary
hearing is not necessary). The resolution of the issue before the court did
not hinge on assessment of the parties’ credibility. Cf. Volk v. Brame, 235
Ariz. 462, 466-67, ¶¶ 14-18, 333 P.3d 789, 793-94 (App. 2014) (citations
omitted) (holding court’s rejection of parties’ efforts to testify violated due
process where credibility was central to the issue before the court).



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                             FELIX v. MONTES
                            Decision of the Court

¶10            Finally, Father contends the family court was required to
consider the four “Pioneer factors” in analyzing the issue of excusable
neglect. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.
380, 395 (1993) (discussing when an attorney’s failure to file a proof of claim
by the bar date can constitute excusable neglect under federal bankruptcy
rules). However, Father offers no Arizona authority, nor have we found
any, addressing application of the Pioneer factors outside the context of late-
filed claims. Cf. Hiatt v. Shah, 238 Ariz. 579, 582, ¶ 9, 346 P.3d 1138, 1141
(App. 2015) (citing Pioneer in discussing consideration of a party’s failure to
file a timely claim against a receivership estate). Thus, we find no error on
this basis.

IV.    Attorneys’ Fees

¶11           Father obliquely disputes that the family court had sufficient
evidence of his financial resources on which to base an award of attorneys’
fees. See A.R.S. § 25-324(A) (requiring court to consider the financial
resources of both parties when determining whether to award attorneys’
fees). We review an award of fees for an abuse of discretion. MacMillan v.
Schwartz, 226 Ariz. 584, 592, ¶ 36, 250 P.3d 1213, 1221 (App. 2011).

¶12            In awarding attorneys’ fees to Mother, the family court
considered (1) the “substantial disparity of financial resources between the
parties” and (2) that Father acted unreasonably in the litigation by failing
to appear at trial, avoiding service of process, and failing to take a drug test
as ordered by the court. Because the record supports the court’s findings,
we find no error. See id. at ¶ 38, 250 P.3d at 1221.

¶13         Mother requests an award of attorneys’ fees incurred on
appeal. After considering the reasonableness of the position taken by
Father on appeal, we award Mother her reasonable attorneys’ fees, upon
her compliance with Arizona Rule of Civil Appellate Procedure
(“ARCAP”) 21.




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                         FELIX v. MONTES
                        Decision of the Court


                           CONCLUSION

¶14          For the foregoing reasons, we affirm. We award fees and
costs to Mother upon compliance with ARCAP 21.




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




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