Bibbee v. Smith

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                STATE OF ARIZONA, ex rel.,
 DEPARTMENT OF ECONOMIC SECURITY, et al., Petitioners/Appellees,

                                        v.

             TRAVIS EUGENE SMITH, Respondent/Appellant.

                           No. 1 CA-CV 19-0671 FC
                             FILED 10-15-2020


           Appeal from the Superior Court in Maricopa County
                           No. FC2015-050872
                               FC2016-052843
                The Honorable Adam D. Driggs, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Petitioners/Appellees

Travis Smith, Phoenix
Respondent/Appellant
                            BIBBEE v. SMITH
                           Decision of the Court


                      MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.


G A S S, Judge:

¶1             Travis Smith appeals the superior court’s denial of his motion
to correct alleged clerical mistakes in a child support order. Because the
superior court did not abuse its discretion in denying Smith’s motion, we
affirm.

¶2             This case has a lengthy and convoluted history. In January
2015, the Arizona Department of Economic Security (ADES) brought an
action against Smith to establish a child support obligation for his two
biological children. See A.R.S. § 25-509.A. Three months later, the superior
court held a child support establishment hearing. Based on the evidence
presented, the superior court ordered Smith to pay $1,987.07 per month to
satisfy his current and past child support obligations. Smith did not comply
with his payment obligation, leading the State and the children’s mother to
initiate enforcement proceedings.

¶3            The following year, Smith petitioned for dissolution of his
marriage to the children’s mother and the superior court consolidated the
cases. Smith and the children’s mother then reached a Rule 69 agreement,
settling custody matters. At a separate hearing the next week, under a
settlement agreement with the State, the superior court modified Smith’s
monthly child support payment and conditionally released him from
further enforcement proceedings if he remained current on his child
support payments. Smith failed to comply.

¶4            Later that year, the superior court issued its final decree
dissolving Smith’s marriage to the children’s mother. In a separate order,
the superior court again modified Smith’s monthly child support payment.
Approximately eight months later, Smith filed an “Emergency Ex-Parte
Motion under Rule 85(a).” Smith argued (1) the final divorce decree did not
include a custody determination, (2) the subsequent child support order
was improper because the final decree was incomplete, and (3) the child
support order incorrectly listed his earning capacity.




                                     2
                            BIBBEE v. SMITH
                           Decision of the Court

¶5            The superior court denied Smith’s motion, explaining the
Rule 69 agreement settled all custody matters and directing Smith to the
minute entry detailing the parties’ agreement. Smith timely appealed. This
court has jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21.A.1 and 12-2101.A.1.

¶6              Arizona Rule of Family Law Procedure 85(a) allows the
superior court to “correct a clerical mistake or a mistake arising from
oversight or omission if one is found in a judgment, order, or other part of
the record.” But this power “does not extend to the changing of a judgment,
order, or decree which was entered as the court intended.” Cf. Ace Auto.
Prods., Inc. v. Van Duyne, 

156 Ariz. 140

, 142–43 (App. 1987) (addressing Ariz.
R. Civ. P. 60(a), the civil counterpart to Rule 85(a)).

¶7            This court reviews the denial of a Rule 85 motion for an abuse
of discretion. See Quijada v. Quijada, 

246 Ariz. 217

, 220, ¶ 7 (App. 2019).
Smith has not established a clerical error in the final decree or subsequent
child support order. The superior court, therefore, did not abuse its
discretion in denying his Rule 85(a) motion.

¶8             To the extent Smith’s motion might be interpreted as a motion
for relief from judgment under Rule 85(b), we will not consider it because
it was untimely. See Ariz. R. Fam. Law P. 85(c) (Rule 85(b) motions must be
filed within six months). Smith filed his Rule 85 motion approximately eight
months after the child-support modification order and ten months after the
Decree had issued. The motion, therefore, was beyond six months and not
within a “reasonable time.” See

id. ¶9 Finally, Smith’s

other challenges to the superior court’s child
support and enforcement orders were neither raised before the superior
court nor included in his Rule 85 motion. Accordingly, they are not
properly before this court, and we deem them waived. See Logan B. v. Dep’t
of Child Safety, 

244 Ariz. 532

, 536, ¶ 9 (App. 2018).

¶10          For the above reasons, we affirm the superior court’s denial
of Smith’s Rule 85 motion.




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

                                        3

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