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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               LESLIE COX SCHREINER, Petitioner/Appellee,

                                        v.

                MARK SCHREINER, Respondent/Appellant.

                           No. 1 CA-CV 18-0619 FC
                                FILED 8-13-2019


           Appeal from the Superior Court in Maricopa County
                           No. FC2014-004798
                 The Honorable Michael C. Blair, Judge

                                  AFFIRMED


                                   COUNSEL

The Harrian Law Firm, P.L.C., Glendale
By Daniel Riley
Counsel for Petitioner/Appellee

Mark Schreiner, Phoenix
Respondent/Appellant
                        SCHREINER v. SCHREINER
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop joined.


P E R K I N S, Judge:

¶1            Mark Schreiner (“Husband”) appeals the trial court’s denial
of his motion for relief from judgment. For the following reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             Leslie Schreiner (“Wife”) petitioned for legal separation from
Husband in June 2014 and later amended her petition to seek dissolution.
The court entered a dissolution decree in April 2016 after extensive
litigation involving the appointment of a special master, two special master
reports, and a trial.

¶3            At the time the court entered the dissolution decree, the
parties had three businesses: Schreiner Business Pro, LLC (“SBP”), jointly
owned and operated by the parties during the marriage; Accounting
Business Partners, LLC (“ABP”), started by Wife after she filed for legal
separation; and Strategic Sourcing LLC, started by Husband in December
2014. The court found that SBP and ABP were “virtually identical” with
overlapping customers and prospective customers. The court further found
that Wife violated her fiduciary responsibility to SBP because ABP solicited
SBP’s customers. To account for this, the court awarded Wife SBP and ABP
and required Wife to pay Husband “one half of the value of SBP and ABP
on an appropriate valuation date.” Recognizing the existence of disputes
over compensation paid to the parties, the special master’s valuation of the
combined businesses, and personal expenses of each party paid by the
businesses, the court ordered Wife pay Husband $204,246.00 less other
equalization payments unrelated to the businesses. In calculating this
amount, the court deviated from the special master’s business valuation,
based in part on Husband’s arguments, and also made adjustments to
compensate for Wife’s allegedly higher compensation and reimbursement
of personal expenses.




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                          Decision of the Court

¶4          Husband moved for a new trial or, alternatively, to amend the
judgment on April 18, 2016. After considering the motion, the court denied
Husband’s request. Neither party appealed the court’s decree.

¶5            On July 2, 2018, Husband moved for relief from judgment
pursuant to Arizona Rule of Family Law Procedure (“ARFLP”) 85(C)
(2018), alleging Wife had committed “fraud upon the court” by
misrepresenting her income during the pendency of the dissolution
proceedings. Husband further alleged an on-going disparity in the parties’
respective income after the dissolution decree was entered and requested
the court re-open spousal maintenance and re-allocate the division of assets.
Finally, Husband requested that Wife pay him attorney’s fees and costs,
including more than $41,000 for forensic accounting work he alleges he
performed. The court denied Husband’s motion as untimely under Rule
85(C)(2), which required that motions for relief from judgment for fraud or
misrepresentation be filed no later than six months after an order is entered.
Husband now appeals.

                               DISCUSSION

¶6            We review the denial of a Rule 85 motion for relief from
judgment for abuse of discretion. Quijada v. Quijada, 246 Ariz. 217, 220, ¶ 7
(App. 2019). We review the application of rules de novo. Duckstein v. Wolf,
230 Ariz. 227, 231, ¶ 8 (App. 2012).

I.     Rule 85 Motion

¶7            Husband argues that Wife committed fraud upon the court
during the parties’ dissolution proceedings. Husband cites Wife’s allegedly
false testimony at evidentiary hearings and trial, misrepresentations in
Wife’s August and October 2015 affidavits of financial information (“AFI”),
obstruction of discovery before the special master, and alleged violations of
a preliminary injunction filed under Arizona Revised Statutes (“A.R.S.”)
section 25-315.

¶8           Husband’s allegations can be divided into three categories: (1)
misrepresentation or fraud in Wife’s AFIs and at trial; (2) obstruction of the
discovery process; and (3) disposing of assets in contravention of the
preliminary injunction. Other than Wife’s allegedly false testimony at trial,
Husband raised these issues before the court entered the dissolution decree.
For example, in a November 2015 objection to the special master’s report,
Husband alleged Wife misrepresented SBP and ABP’s revenue, concealed
personal expenses in SBP’s business expenses, and prevented Husband and
the special master from accessing SBP’s accounting records. Additionally,


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                           Decision of the Court

Husband raised Wife’s diversion of community assets during the
dissolution proceedings. Husband did not appeal from the April 2016
dissolution decree or denial of his motion for a new trial. To the extent
Husband argues violations of the discovery process or the preliminary
injunction provide a basis for reversal beyond ARFLP 85, we lack
jurisdiction to consider those arguments because the time for filing an
appeal from the judgment has long passed. Ariz. R. Civ. App. P.
(“ARCAP”) 9(a) (appeal must be filed no later than 30 days from entry of
final judgment); In re Marriage of Thorn, 235 Ariz. 216, 218, ¶ 5 (App. 2014)
(timely notice of appeal is prerequisite to jurisdiction).

¶9            Husband requests relief from judgment based on fraud,
misrepresentations, and fraud upon the court pursuant to Rule 85. ARFLP
85(C) requires that a motion for relief from judgment be brought within a
“reasonable time.” If the motion is based on a mistake, excusable neglect,
newly discovered evidence, fraud, misrepresentation, or misconduct of an
adverse party, the motion must be brought “not more than six [] months
after the judgment.” ARFLP 85(C)(2). Rule 85(C)(3) permits the court to set
aside the judgment for “fraud upon the court” outside these time
constraints. Fraud upon the court occurs when “a party has prevented a
real contest before the court of the subject matter of the suit, or, put
differently, has committed some intentional act or conduct . . . that has
prevented the unsuccessful party from having a fair submission of the
controversy.” McNeil v. Hoskyns, 236 Ariz. 173, 176–77, ¶ 14 (App. 2014)
(internal quotation marks, alterations, and citations omitted).

¶10           It is unclear from the record whether the trial court
determined that no fraud occurred or that any fraud that did occur did not
rise to the level of fraud upon the court. Even assuming Wife made
misrepresentations in her affidavits and testimony, the misrepresentations
Husband points to do not, as a matter of law, amount to fraud upon the
court.

¶11            “A false statement to the court about a matter in dispute
rarely will constitute a fraud on the court.” Id. at 178, ¶ 23. Husband alleges
fraud in Wife’s statements, both written and at trial, regarding her net
income and her monthly expenses. During the dissolution proceedings,
Husband heavily contested these matters, and the court acknowledged
Husband’s arguments, in some cases granting relief. Husband’s allegations
of fraud concern matters that were in dispute before the court rather than
conduct by Wife which prevented submission of the matter to the court. See
id. at 176–77, ¶ 14. For example, Husband contends Wife committed fraud
upon the court in diverting revenue, clients, and new client leads from SBP


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                          Decision of the Court

to ABP. But Husband made this argument to the trial court and the court
agreed, treating SBP and ABP as a single entity and requiring Wife to pay
an equalization payment to Husband in the amount of one half the
combined value of SBP and ABP, subject to unrelated offsets. Husband
cannot re-frame these issues—some of which he prevailed on—as a fraud
upon the court simply to re-urge them. Moreover, because each of these
issues was in dispute before the court, there was no fraud upon the court.
See id. at 178, ¶ 23.

¶12           At most, Wife’s acts and alleged acts amounted to “fraud” or
“misrepresentation[s]” by the opposing party as contemplated by Rule
85(C)(2). Rule 85(C)(2) prohibits motions for relief from judgment for fraud
or misrepresentation if they are filed more than six months after the entry
of judgment. ARFLP 85(C). The dissolution decree was entered on April 1,
2016. Husband filed the two motions at issue on July 2, 2018. Thus,
Husband’s motions are untimely, and the trial court properly denied them.

II.    Attorney’s Fees and Costs

¶13          Wife requests attorney’s fees under ARCAP 25. In relevant
part, ARCAP 25 permits this court to impose sanctions on a party if we
determine an appeal is frivolous. ARCAP 25. These sanctions may include
imposing costs or attorney’s fees. Id. Wife did not request fees or costs on
any other basis.

¶14            The line between a meritless appeal and a frivolous appeal
that justifies sanctions is narrow. Hoffman v. Greenberg, 159 Ariz. 377, 380
(App. 1988). An appeal is frivolous, absent an allegation of improper
motive, only if there is no colorable legal theory to support it. Ariz. Tax
Research Ass’n v. Dep’t of Rev., 163 Ariz. 255, 258 (1989). Moreover, we
exercise our authority to punish litigants for frivolous appeals “most
sparingly.” Price v. Price, 134 Ariz. 112, 114 (App. 1982) (citation omitted).
In the exercise of our discretion, we decline to impose sanctions pursuant
to ARCAP 25 as Husband’s positions, while unreasonable, do not warrant
sanctions.

                              CONCLUSION

¶15          Based on the foregoing, we affirm the trial court’s denial of
Husband’s Rule 85 motions. In the exercise of our discretion, we decline to
impose sanctions on Husband pursuant to ARCAP 25. Wife is entitled to




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                       Decision of the Court


her costs on appeal upon compliance with ARCAP 21.




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




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