Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 28, Rules of Civil Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. D20120117 Honorable Richard D. Nichols, Judge
Law Office of Thomas C. McDaniel III By Thomas C. McDaniel III Tucson Attorney for Petitioner/Appellant
Law Office of Dina Afek, P.C. By Dina Afek Tucson Attorney for Respondent/Appellee
GARYE L. VÁSQUEZ, Presiding Judge
¶1In this action for annulment, Rebecca Barber appeals from the trial court's denial of her motion for a new trial after finding her in civil contempt for violating its order to return property to appellee Jon Stuart. She contends the court erred by applying the procedure for civil rather than criminal contempt "where [she] would be afforded a jury trial and the burden of proof would be beyond a reasonable doubt." For the reasons that follow, we dismiss for lack of jurisdiction.
Factual and Procedural Background
¶2Rebecca and Jon married in August 2010 in Arkansas. In January 2012, Rebecca, who had moved to Tucson, filed a petition for dissolution of marriage, which later was amended to include a claim for annulment. After a hearing in April 2012, the trial court ordered the marriage annulled and accepted as "fair and equitable" the provisions of the parties' settlement agreement concerning the division of property and debts. Although the court directed Rebecca to prepare a decree of annulment, none has been entered.
¶3Under the settlement agreement, Jon received the residence in Arkansas and was obligated to pay Rebecca $120, 000 as her share with a $75, 000 cash payment due within two weeks of the hearing. The trial court directed Rebecca and Jon to meet at the Tucson-area storage facility where Rebecca had stored some of Jon's belongings so that they could be returned. The court admonished Rebecca "to ensure that [Jon]'s belongings [wer]e returned to him with no further vandalism or damage." Shortly thereafter, Jon filed a notice of non-compliance, requesting that Rebecca "be held in contempt of court and sanctioned for . . . [the] deliberate destruction of [his] property." According to the notice, Jon had discovered that several items were damaged and others missing. Jon claimed he had found "fresh dog feces" in both the washer and dryer and his hunting gear smelled "bad[ly] from dog feces" and had to be thrown out. He requested that Rebecca be ordered to reimburse him for the damaged and missing property, his expenses in traveling to Tucson, and his attorney fees and costs.
¶4After a hearing in May 2012,  the trial court found that "damage was done to [Jon]'s property with [Rebecca]'s knowledge and approval" and directed Jon to file an affidavit of attorney fees and costs. Rebecca subsequently filed a motion for a new trial, arguing the court had erred in finding her in civil contempt of court because the contempt was actually "criminal in nature." Accordingly, she maintained she was entitled to a jury trial in which the higher burden of proof, beyond a reasonable doubt, required to support a criminal contempt sanction, should apply.
¶5The trial court denied Rebecca's motion at a hearing on July 9, 2012. The court determined that its finding of contempt "[wa]s not criminal in nature" because it was "not designed to punish" but, instead, was civil in nature because it was "designed to ensure compliance." However, the court gave Rebecca the opportunity to "purge herself of [the] contempt by agreeing to [pay] a reasonable amount" for the damaged property. Rebecca refused to make an offer "other than minimal, " including "fair market value" for the hunting gear and "no damages for the washer and dryer because [they] . . . work[ed] fine." After hearing argument, the court took the amount of damages under advisement.
¶6In an unsigned order entered on July 11, 2012, "[t]o rectify the situation and bring [Rebecca] into compliance with the order, " the trial court reduced Jon's $75, 000 cash payment relating to the residence in Arkansas by $14, 638, which included $1, 100 for the damage to the washer, dryer, and hunting gear; $4, 062 for travel expenses; and $9, 476 for attorney fees and costs. This appeal followed.