                          NOTICE: NOT FOR PUBLICATION.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 Marriage of:

         FLORENTINA ELMA VILLALOBOS, Petitioner/Appellee,

                                        v.

           JORGE ANCHONDO RIVERA, Respondent/Appellant.

                             No. 1 CA-CV 13-0595
                              FILED 10-14-2014


           Appeal from the Superior Court in Maricopa County
                          No. FN2013-002074
            The Honorable Thomas A. Kaipio, Commissioner
                 The Honorable James T. Blomo, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Ber & Associates, P.L.L.C., Phoenix
By Hershel Ber
Counsel for Petitioner/Appellee

Law Offices of Jose De La Luz Martinez, P.L.L.C., Phoenix
By Jose De La Luz Martinez
Counsel for Respondent/Appellant
                         VILLALOBOS v. RIVERA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Donn Kessler and Judge Kent E. Cattani joined.


T H O M P S O N, Judge:

¶1            Jorge Anchondo Rivera (Husband) appeals from the trial
court’s denial of his motion to set aside a default judgment in a dissolution
case. For the following reasons, we reverse the decision of the trial court
and remand for further proceedings.

               FACTUAL AND PROCEDURAL HISTORY

¶2             In March 2013, Florentina Elma Villalobos (Wife) filed a
petition for dissolution of marriage.1 Wife’s process server served Husband
with various documents, including the summons and petition, on March
28, 2013.

¶3             After Husband did not respond to the petition, Wife filed an
application and affidavit for default on April 22, 2013. Attached to the
application for default was Wife’s certificate of mailing, which stated that
Wife would mail a copy of the application and affidavit for default to
Husband at his current residence the same day she filed the application and
affidavit for default. Husband did not appear or respond to the filings, and
the trial court entered a decree of dissolution of marriage by default on May
31, 2013.2 Along with dissolving the marriage and dividing the community


1 In her petition, Wife requested $1500.00 per month in spousal maintenance

and alleged that 1) she lacked sufficient property to provide for her
reasonable needs, 2) she was unable to support herself through
employment, and 3) she lacked earning ability in the labor market in order
to support herself.

2 The superior court’s website indicates that a “Decree on Demand –
Spanish” hearing took place on May 31, 2013. If the court took any
testimony from Wife that day, we do not know what that consisted of. All
we have from that day is the default Decree, which states on its first page,
“This case has come before this court for a final ‘Decree of Dissolution of



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                         VILLALOBOS v. RIVERA
                           Decision of the Court

property3, the Decree ordered Husband to pay Wife $1500 per month
spousal maintenance for a period of five years.

¶4             On July 15, 2013, Husband filed a motion to show cause re:
vacation of judgment pursuant to Arizona Rule of Family Law Procedure
85(C), asserting that the default judgment was a result of Wife’s fraud and
misconduct. Husband claimed that Wife told him she wanted to reconcile
and that she planned to withdraw her petition for dissolution. Husband
further claimed that he did not receive a copy of Wife’s application for
default until after the trial court granted the dissolution, when Wife handed
him a copy of the application. He conceded that he had actual notice of the
petition for dissolution. The motion was verified by Husband. Wife did
not file a response.4 The trial court denied the motion in an unsigned
minute entry order.

¶5           Husband appealed. We suspended the appeal to allow
Husband to obtain a signed order from the trial court, and he did so. We
have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) § 12-
2101(A)(2) (Supp. 2013).

                              DISCUSSION

¶6             Husband argues that the family court erred in denying his
motion to vacate the default judgment because the judgment was obtained
as a result of Wife’s misrepresentation, fraud, and misconduct and because


Marriage (Divorce) Without Minor Children.’ The court has taken all
testimony needed to enter a final Decree, or has determined testimony is
not needed to enter the final Decree.”

3 The Decree awarded Wife the parties’ house, all of the furniture, a
refrigerator, a television set, one of two ATV’s owned by the parties, a 2008
Chevy Avalanche, and half of a joint checking account containing $2391.00.
The Decree further purports to award Wife Husband’s separate property –
a piece of land of unknown value willed to him by his father. Husband was
awarded a laptop computer, half of the joint account, an ATV, and his tools.
He was awarded a second piece of land of unknown value that he inherited
from his father as his separate property.

4 Wife claims on appeal that Husband received the application for default
in April 2013, but she bases this assertion on affidavits that were prepared
in February 2014 and that were not before the trial court when it denied
Husband’s motion to show cause.


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                          VILLALOBOS v. RIVERA
                            Decision of the Court

he did not receive proper notice of the application for default. We review
the trial court’s ruling on a motion to vacate a default judgment for an abuse
of discretion. Douglas v. Lease Investors, Inc., 19 Ariz. App. 87, 89, 504 P.2d
1310, 1312 (1973) (citation omitted). “To find an abuse of discretion, there
must either be no evidence to support the superior court’s conclusion or the
reasons given by the court must be ‘clearly untenable, legally incorrect, or
amount to a denial of justice.’” Charles I. Friedman, P.C. v. Microsoft Corp.,
213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App. 2006) (quoting State v.
Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 N.18 (1983)). Generally,
a default judgment is not appealable; only the order setting aside or
declining to set aside the default judgment is appealable. Kline v. Kline, 221
Ariz. 564, 568, ¶11, 212 P.3d 902, 212 P.3d 902, 906 (App. 2009) (citations
omitted).

¶7             Arizona Rule of Family Law Procedure 44(A) provides that a
party’s request for default shall be by written application to the superior
court and that the party who failed to respond to the petition for dissolution
shall be notified. Notice to a party claimed to be in default and whose
whereabouts are known is accomplished by mailing a copy of the
application for entry of default to that party. Id. A default does not become
effective if the party claimed to be in default files a responsive pleading or
otherwise defends within ten days after the filing of the application for
entry of default. Ariz. R. Fam. Law P. 44(A)(4). If the party claimed to be
in default does not respond, the party seeking the default decree must then
either file a motion and affidavit with the trial court5, or request a hearing.
Ariz. R. Fam. Law P. 44(B)(1)), 44 (B)(2). Rule 44(B)(2) provides:

              If, in order to enable the court to enter judgment
              or to carry it into effect, it is necessary to take an
              account or to determine the relief to be granted,
              or to establish the truth of any statement by
              evidence or to make an investigation of any
              other matter, the court may conduct such
              hearings or order such references it deems
              necessary and proper. The defaulted party is in
              the position of having admitted each and every
              material allegation of the petition.




5 The motion and affidavit option is not available when either party has
requested spousal maintenance, as Wife did here. See Ariz. R. Fam. Law P.
44(B)(1)(b)(2).


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                         VILLALOBOS v. RIVERA
                           Decision of the Court

If a judgment by default is entered, the trial court may set aside the default
judgment in accordance with Rule 85 (C). Ariz. R. Fam. Law P. 44(C). Rule
85(C)(1)(c) states that the court may relieve a party from a final judgment if
there is fraud, misrepresentation, or misconduct from an adverse party. See
also Ariz. R. Civ. P. 60(c)(3) (court may relieve a party from a final judgment
due to fraud, misrepresentation, or other misconduct). “The law favors
resolution on the merits and therefore resolves all doubts in favor of the
moving party.” Richas v. Superior Court, 133 Ariz. 512, 514, 652 P.2d 1035,
1037 (1982) (citations omitted).

¶8             Wife did not respond to Husband’s motion to vacate the
default judgment. Husband asserts that Wife’s failure to file a response
created “an adverse inference against Wife permissible in that she does not
dispute the assertions raised by Husband in his motion.” “Generally, a
party must file a written response whenever a motion is filed.” Schwab v.
Ames Constr., 207 Ariz. 56, 59, ¶ 14, 83 P.3d 56, 59 (App. 2004) (citations
omitted). If an opposing party does not file a response, “non-compliance
may be deemed a consent to the denial or granting of the motion, and the
court may dispose of the motion summarily.” Ariz. R. Fam. Law P. 35(B).
See also Ariz. R Civ. P. 7.1(b). In this case, given that Husband’s motion
contained specific, sworn factual allegations raising questions about
whether Wife misled Husband into failing to respond, a response was
called for. Accordingly, and given Husband’s assertion that the default
judgment resulted in an inequitable division of the parties’ community
assets, we find that the trial court abused its discretion in summarily
denying Husband’s motion.

                              CONCLUSION

¶9            We reverse the decision of the trial court denying Husband’s
motion to set aside the default and remand for further proceedings
consistent with this decision.




                                   :gsh




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