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In re Marriage of Muzyka

Court of Appeals of Arizona, First Division

December 12, 2013

In re the Marriage of: LILLIAN MUZYKA, Petitioner/Appellee,
v.
ROBERT HERKO, Respondent/Appellant.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Yuma County No. S1400DO200701747 The Honorable Lisa W. Bleich, Judge Pro Tempore

Hunt and Gale, Yuma By Jeanne Vatterott-Gale Counsel for Petitioner/Appellee

Robert Herko, Whitehouse Station, New Jersey Respondent/Appellant, In Propria Persona

Judge Margaret H. Downie and Judge Jon W. Thompson joined.

MEMORANDUM DECISION

Lawrence F. Winthrop, Presiding Judge

¶1 Robert Herko ("Husband") appeals the family court's dissolution decree ("the Decree"). Finding no abuse of discretion or legal error, we affirm.

BACKGROUND

¶2 After fifteen years of marriage, Lillian Muzyka ("Wife") petitioned for divorce in December 2007. While the petition was pending in Yuma County Superior Court, Husband notified the family court he had sustained injuries in a September 2010 car accident. According to letters from two neurologists, Husband's injuries limited his ability to travel from his New Jersey home and sit or stand for long periods.

¶3 The family court set the case for trial on August 6, 2012, and denied Husband's August 3, 2012 motion for a continuance. With the court's permission, Husband participated in the trial via telephone from New Jersey between approximately 9:00 a.m. and noon on August 6.

¶4 After trial resumed in the afternoon, the family court received a call from a self-identified physician's assistant, who stated that Husband would not be calling back in to the court. The caller hung up before the court could obtain further information. The court proceeded with the trial, took the matter under advisement, and ultimately issued findings and orders.

¶5 Husband filed a motion for new trial and stay pursuant to Rules 83(A)(1) and 87(A) of the Arizona Rules of Family Law Procedure. After briefing, the family court denied the motion in a signed order filed simultaneously with the Decree. We have jurisdiction over Husband's timely appeal.[1] See Ariz. Rev. Stat. ("A.R.S.") § 12-2101(A)(1) (West 2013).[2]

ANALYSIS

I. This Court May Review Whether The Family Court Erred In Refusing To Re-Open The Trial.

¶6 We first consider whether this court may review the denial of Husband's motion for new trial. Rule 8(c), ARCAP, requires a notice of appeal to designate the judgment from which the appellant appeals. In general, we do not review matters an appellant fails to identify in the notice. See, e.g., Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 561, 578 P.2d 985, 990 (1978).

¶7 Husband's notice of appeal designates only the Decree, and does not include the denial of his motion for new trial. Nevertheless, "[i]f a motion for new trial was denied, the court may, on appeal from the final judgment, review the order denying the motion although no appeal is taken from the order." A.R.S. § 12-2102(B).[3] Accordingly, we may review the issue even though Husband failed to appeal from the order denying his motion for new trial.

II. The Family Court Did Not Abuse Its Discretion By Conducting A Portion Of The Trial In ...


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