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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          MICHAEL JAMES LOGAN,
                             Petitioner/Appellant,

                                         v.

                         DAYNA LEE ANN LOGAN,
                            Respondent/Appellee.

                            No. 1 CA-CV 16-0764 FC
                                 FILED 1-11-2018


            Appeal from the Superior Court in Maricopa County
                           No. FN2015-001351
                               FN2015-091773
                               (Consolidated)
                The Honorable Suzanne E. Cohen, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Bert L. Roos, Esq., Phoenix
By Bert L. Roos
Counsel for Petitioner/Appellant

Dayna Lee Ann Logan, Surprise
Respondent/Appellee
                          LOGAN v. LOGAN
                          Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Patricia A. Orozco1 joined.


B R O W N, Judge:

¶1           Michael Logan (“Husband”) appeals the superior court’s
order denying his motion to set aside/amend the court’s decree dissolving
his marriage to Dayna Logan (“Wife”). Because the court erred in finding
that the motion was not timely filed, we vacate the order and remand for
further proceedings.

¶2            On the scheduled trial date, the parties alerted the superior
court they had reached a verbal settlement agreement, which Husband’s
counsel explained on the record. Both parties testified that (1) they
understood the terms of the agreement and entered into it freely, without
duress; and (2) the terms were fair and equitable. The court found the
agreement was fair and equitable and accepted the agreement as an
enforceable, “binding agreement under Rule 69.” See Ariz. R. Fam. Law P.
(“ARFLP”) 69 (“Rule 69”). The court then ordered Husband’s counsel to
prepare a formal stipulation containing “the agreement of the parties
dictated on the record.”

¶3            More than two months later, Wife filed a proposed consent
decree, explaining that her counsel mailed a draft consent decree to
Husband’s counsel for review and approval but “Husband has provided
no written input, no objections and no proposed revisions to Wife’s
proposed [d]ecree.” Seventeen days later, Husband filed an objection
asserting the decree “adds additional terms . . . that were not agreed upon
and that materially change [Husband’s] financial obligation.” The court
denied Husband’s objection as untimely pursuant to ARFLP 81, which
requires objections to a proposed judgment be filed within five days. See
ARFLP 81(C). The court filed the signed decree, as prepared by Wife’s
counsel, on August 18, 2016.



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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                            LOGAN v. LOGAN
                            Decision of the Court

¶4             On September 2, 2016, Husband filed a motion to set aside, or
alternatively, to amend the decree, asserting that without his consent, Wife
added terms to the decree “inconsistent with the Rule 69 Agreement.”
Husband thus requested that the superior court review the Rule 69
Agreement and enter a decree consistent with its terms, but the court
denied the motion as untimely. This timely appeal followed.

¶5            Husband asserts the superior court improperly denied his
motion, which we review on appeal for an abuse of discretion. See Duckstein
v. Wolf, 230 Ariz. 227, 232, ¶ 8 (App. 2012). “A court abuses its discretion if
it commits an error of law in reaching a discretionary conclusion, it reaches
a conclusion without considering the evidence, it commits some other
substantial error of law, or the record fails to provide substantial evidence
to support the trial court’s finding.” Id. (internal quotation marks and
citation omitted).

¶6              Husband’s motion was filed on September 2, 2016, 15 days
after the court filed the final decree. Under ARFLP 83 and 85, his motion
was timely. ARFLP 83(D) states that “[a] motion for a new trial shall be
filed not later than fifteen (15) days after entry of the judgment.” A motion
to set aside filed under ARFLP 85 “shall be filed within a reasonable time,”
and “not more than six (6) months after the judgment or order was entered
. . . .” ARFLP 85(C)(2). Thus, the court abused its discretion in denying
Husband’s motion based on timeliness.2 We therefore remand for
consideration of the merits of the motion. Regarding Husband’s request




2     We note that Wife has not argued, either in the superior court or on
appeal, that Husband’s filing was untimely.


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                           LOGAN v. LOGAN
                           Decision of the Court

for attorneys’ fees incurred on appeal, we defer his request to the superior
court pending the ultimate determination of the merits of Husband’s
motion.




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




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