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In re Marriage of Heredia

Court of Appeals of Arizona, Second Division

December 5, 2013

In re the Marriage of: Damarys C. Heredia, Petitioner/Appellee,
v.
Adrian Heredia, Respondent/Appellant. and

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Santa Cruz County No. DO12187 The Honorable Anna M. Montoya-Paez, Judge

Law Office of Mark L. Williams, Nogales By Mark L. Williams Counsel for Petitioner/Appellee.

Centuori & Associates, Tucson By René S. Alcoverde, Jr. Counsel for Respondent/Appellant

Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.

MEMORANDUM DECISION

VÁSQUEZ, Presiding Judge

¶1 In this dissolution of marriage action, Adrian Heredia appeals from the trial court's order denying his motion to reconsider its denial of his motion to set aside entry of default and his motion to set aside default judgment in favor of appellee Damarys Heredia. On appeal, Adrian argues the court erred by refusing to set aside the entry of default when he had demonstrated his willingness to litigate the matter on the merits and by precluding him from participating at the default judgment hearing. For the reasons that follow, we affirm the entry of default, vacate portions of the default judgment, and remand with instructions.

Factual and Procedural Background

¶2 Damarys and Adrian were married in November 2002. They have one minor child. On August 9, 2012, Damarys filed a petition for dissolution of marriage in Santa Cruz County. She served Adrian with the petition on August 15. The same day, Adrian filed a separate petition for dissolution of marriage in Pinal County but never served Damarys with the petition.

¶3 Damarys filed an application for entry of default after Adrian failed to respond to her petition. Adrian was mailed a copy of the application. After the default became effective, Damarys requested a hearing for entry of default judgment, which was set for October 23, 2012. See Ariz. R. Fam. Law P. 44(A) and (B)(2). On October 1, Adrian filed a motion to dismiss, arguing venue was improper in Santa Cruz County because the parties had resided and acquired real property in Pinal County during their marriage. On October 19, Adrian filed a response to Damarys's petition for dissolution and a motion for temporary orders.

¶4 On the morning of the default judgment hearing, Adrian filed a motion to set aside the entry of default "for the reasons stated in his Motion to Dismiss." After hearing argument, the trial court denied the motion to dismiss and the motion to set aside the entry of default.[1] The court then proceeded with the default judgment hearing, permitting Adrian to be present but precluding him from participating. On November 7, the trial court entered an under-advisement ruling, effectively the default judgment in this case, dividing the parties' community property and awarding Damarys sole physical and joint legal custody of the child, as well as child support and spousal maintenance.

¶5 On November 29, Adrian filed a combined motion to reconsider the denial of the motion to set aside the entry of default and motion to set aside the default judgment pursuant to Rule 85(C), Ariz. R. Fam. Law P. That same day, he also moved the court to stay the child support and spousal maintenance order, claiming the court's child support calculation was "contrary to the Arizona Child Support Guidelines" and spousal maintenance was "not properly address[ed] per Arizona law."

¶6 The trial court denied the motion to reconsider its ruling on the entry of default in a signed order entered December 17.[2] However, the court set a hearing on Adrian's motion to set aside the default judgment and the motion to stay. At that hearing, Damarys conceded errors in the calculation of child support, and the court directed her to prepare a revised worksheet and order. However, Damarys argued that spousal maintenance had been addressed properly and opposed the motion to set aside the default judgment.

¶7 In an under-advisement ruling entered January 31, 2013, the trial court denied the motions. The court noted that it had "corrected issues" in the child support calculation and concluded that Adrian had not timely filed the motion to set ...


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