Martin v. Cervantes

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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: BRIANA MARTIN, Petitioner/Appellee, v. STEVEN CERVANTES, Respondent/Appellant. No. 1 CA-CV 25-0907 FC FILED 11-06-2026 Appeal from the Superior Court in Maricopa County No. FC 2013-003229 The Honorable Harla M. Davison, Judge Pro Tempore AFFIRMED COUNSEL Blake & Pulsifer PLC, Tempe By Louis K. Lombardo Counsel for Respondent/Appellant  MARTIN v. CERVANTES Decision of the Court MEMORANDUM DECISION Judge Michael S. Catlett delivered the decision of the Court, in which Presiding Judge Veronika Fabian and Judge Kent E. Cattani joined. C A T L E T T, Judge: ¶1 Steven Cervantes (“Father”) appeals the superior court’s denial of his Arizona Rule of Family Law Procedure 85(b) motion for relief from a judgment modifying child support. We affirm. FACTS AND PROCEDURAL HISTORY ¶2 Father and Briana Martin (“Mother”) (together “the Parents”) have two children together and, since 2015, have entered into parenting time agreements. In 2022, the Parents agreed (“2022 Agreement”) to “downward deviate” Father’s child support from $428 a month to $100 a month. The 2022 Agreement provided Father with parenting time from Thursdays after school to Monday drop off one week and Thursday after school to Friday drop off the next week. The Agreement also gave Father up to two “uninterrupted” weeks in the summer, and the Parents split fall and spring breaks as well as other holidays. ¶3 In 2024, Mother petitioned to modify parenting time, legal decision making, and child support. In 2025, the Parents made a new agreement (“2025 Agreement”), which the court accepted. The 2025 Agreement included a provision giving the Parents until June 30, 2025, to submit position statements about child support, with attached affidavits of financial information and child support worksheets. The 2025 Agreement further detailed that the court would “rule on the issue of child support” and that the Parents “affirm[ed] all other prior agreements not otherwise modified herein.” ¶4 By June 30, only Mother filed her position statement, affidavit of financial information, and child support worksheet. Mother’s position statement indicated that the Parents “share an unequal parenting time schedule,” referenced parenting time set out in the 2022 Agreement, and listed Father as having 126 parenting days per year. Mother asserted that while she agreed in the 2022 Agreement to equal parenting time to calculate 2  MARTIN v. CERVANTES Decision of the Court child support, the situation changed when Father did not use all his parenting time, causing her to incur more childcare costs. Mother referenced Father’s income based on the W2 he submitted in February 2025. She listed her total gross income as of the date of the affidavit as $67,042.45, but her gross wages per month as $4,910 and rate of pay as $31.69 an hour. She also listed $300 a month in auto expenses in a field for additional employer contributions. She requested that the court award her $1,189 a month in child support. ¶5 On June 30, Father filed information about attorney fees but nothing else. On August 6, Father filed a “Motion For Entry Of Child Support Order” that included his child support worksheet and proposed child support order. He separately filed an affidavit of financial information dated February 2025. Father argued he had equal parenting time and that he was responsible for another child with his current wife. He requested to pay $43 a month in child support. Father did not explain the late filing, instead listing June 30 as the date “submitted.” ¶6 In a minute entry, the court discussed the Parents’ filings and stated Father “never” filed the required documents under the 2025 Agreement. Instead, he filed a “Motion for Entry of Child Support Order” after the deadline. The court therefore would consider only Mother’s timely filings. In its child support order, the court listed monthly income of $4,910 for Mother and $8,475.33 for Father. The court found Father’s parenting time “was originally agreed to be calculated at equal, but the actual parenting time is significantly less than equal [and] has lessened[.]” The court calculated Father’s parenting time as 126 days a year and awarded Mother $1,098 a month in child support. ¶7 Father moved for relief from judgment, maintaining he tried to file his documents timely, but the court’s filing system rejected his filing because his affidavit of financial information was attached, rather than filed separately, stating the clerk “believed it might include sensitive information[.]” Father’s counsel attested that the court emailed him a rejection notice, but it either went to his spam folder or was “inadvertently overlooked” by counsel’s assistant. Counsel said he did not notice the filing had been rejected until he checked the docket on August 6. As an offer of proof, he included an automated email sent on June 30 from the court “verif[ying] the receipt of 1 document submitted” to the court. He also included an email dated June 30 to the court and Mother’s counsel. The email attached four documents and said, “Please see the attached documents that we e-filed this afternoon.” One of the attachments was 3  MARTIN v. CERVANTES Decision of the Court titled “Motion for CS Order with Receipt,” and the other three referenced attorney fees. ¶8 He also contended the 2025 Agreement would keep both his parenting time from the 2022 Agreement and $100 a month in child support. He accused Mother of not including his other child and mischaracterizing other details in her child support worksheet, including her income and the amount of his parenting time. Finally, he argued that the court should not have rejected his motion merely because it was titled “Motion for Entry of Child Support Order.” ¶9 Mother responded that their 2022 Agreement did not establish equal parenting time and that Father did not use all of his parenting time. She admitted mistakenly including her monthly vehicle expenses in the wrong column on her worksheet. And she argued Father’s other child should not be included in the calculations. See A.R.S. § 25-320. ¶10 The court denied Father’s motion for relief from judgment. Father timely appealed. JURISDICTION ¶11 In his notice of appeal, Father appealed only “the Final Order Denying Motion to Set Aside Child Support Order[.]” But one of the issues Father raises in his opening brief is whether the court abused its discretion in modifying child support. The notice of appeal must “[d]esignate the judgment . . . from which the party is appealing[.]” ARCAP 8(c)(3). Because Father did not timely appeal the modification order, we do not address Father’s arguments about the modification order itself. ¶12 But we do have jurisdiction over an order denying relief from judgment when (1) the issues decided are “different from those that could have been raised on appeal from the underlying judgment,” and (2) the order “affect[s] the judgment or relate[s] to its enforcement.” Vincent v. Shanovich, 243 Ariz. 269, 271 ¶ 9 (2017); A.R.S. § 12-2101(A)(2). Those two requirements are met here. The court’s order resolved whether to modify the court’s judgment relating to child support. Moreover, the court resolved whether Father’s delayed filing amounted to excusable neglect, whether Mother made misrepresentations justifying setting aside the order, and whether there were any other grounds justifying relief. By denying Father’s motion, the court’s judgment remained enforceable. We therefore have jurisdiction over Father’s appeal of the court’s order denying relief from its prior judgment. See A.R.S. § 12-2101(A)(2). 4  MARTIN v. CERVANTES Decision of the Court DISCUSSION ¶13 Father argues the court abused its discretion by denying his motion for relief from judgment because his delayed filing amounted to excusable neglect, Mother made misrepresentations in her filings, and there were other issues justifying relief. ¶14 Mother failed to file an answering brief, which we could deem a confession of error if there is a debatable issue. But because this appeal could impact the best interests of children, we address the merits. See Hoffman v. Hoffman, 4 Ariz. App. 83, 85 (1966). ¶15 We review the denial of a motion for relief from judgment under Rule 85 for an abuse of discretion. Johnson v. Edelstein, 252 Ariz. 230, 233 ¶ 12 (App. 2021). A court abuses its discretion when it “commits an error of law in reaching a discretionary conclusion . . . or the record fails to provide substantial evidence to support the trial court’s finding.” Duckstein v. Wolf, 230 Ariz. 227, 231 ¶ 8 (App. 2012) (cleaned up). If language in the Arizona Rules of Family Law Procedure “is substantially the same as language in the civil rules, case law interpreting the language of the civil rules will apply[.]” Ariz. R. Fam. Law P. (“ARFLP”) 1(c); compare ARFLP 85(b) with Ariz. R. Civ. P. 60(b). I. Mistake, Inadvertence, Surprise, or Excusable Neglect ¶16 Father contends the court should have granted him relief because his counsel made an “inadvertent error in filing.” The court may relieve a party from judgment for “mistake, inadvertence, surprise, or excusable neglect[.]” ARFLP 85(b)(1). The party seeking relief must also demonstrate a meritorious defense. Richas v. Super. Ct., 133 Ariz. 512, 514 (1982). “Carelessness does not equate with excusable neglect.” Ulibarri v. Gerstenberger, 178 Ariz. 151, 163 (App. 1993). “Rather, the test of what is excusable is whether the neglect or inadvertence is such as might be the act of a reasonably prudent person under similar circumstances.” Daou v. Harris, 139 Ariz. 353, 359 (1984). “The purpose of the rule is to provide relief for those mistakes and errors which inevitably occur despite diligent efforts to comply with the rules” and those who do so “in a prompt and efficient manner.” City of Phoenix v. Geyler, 144 Ariz. 323, 332 (1985). ¶17 Father states his counsel attempted to timely file his required documents but the court rejected the filing for attaching the affidavit of financial information rather than filing it separately stating the clerk “believed [the affidavit] might contain sensitive information[.]” Counsel asserts that the clerk of court emailed him to inform him that the filing was 5  MARTIN v. CERVANTES Decision of the Court rejected, but that email either went to a spam folder or was “inadvertently overlooked” by counsel’s assistant. Counsel therefore did not notice that Father’s document had not been filed until he checked the docket on August 6. ¶18 Father references Cook v. Industrial Commission, 133 Ariz. 310, 312 (1982), as an example when our supreme court reversed a decision to reject a late filing for excusable neglect. In Cook, an employee requested review of an award five days after the deadline. Id. at 311. The employee presented evidence at a hearing showing his counsel’s secretary made an incorrect notation about the filing deadline, resulting in a late filing. Id. An administrative law judge found Cook did not provide a sufficient excuse, but the supreme court held that was an abuse of discretion. Id. The supreme court reasoned that Industrial Commission cases are not adversarial, “Arizona case law has long recognized that the error of a secretary can excuse an untimely filing,” and the Commission was not prejudiced by the untimely filing. Id. at 311–13. ¶19 Setting aside the differences between Industrial Commission and family law cases, this case still differs from Cook because Father did not provide evidence sufficient to require the superior court to find mistake, inadvertence, or excusable neglect. See Daou, 139 Ariz. at 360–61 (determining no abuse of discretion in failing to find excusable neglect and noting the “inconsistenc[ies]” in the evidence presented); see also Baker Int’l Assocs., Inc. v. Shanwick Int’l Corp., 174 Ariz. 580, 583 (App. 1993) (“If the . . . party fails to explain, by affidavit or otherwise, the failure to take the required responsive action, the motion . . . must be denied.”). Father references emails he provided to the court as evidence that he, through counsel, did not “intentionally fail” to timely file his documents. But it was not an abuse of the discretion for the superior to find that Father did not sufficiently support his position. ¶20 Father pointed to the automated email from the court sent on June 30 as evidence he timely filed his child support documents. But that email says “verif[ying] the receipt of 1 document submitted” and does not mention the title of the document. The record shows Father submitted multiple unrelated filings about attorney fees on the same day. ¶21 The second email Father provided was sent to the court and opposing counsel providing “the attached documents that we e-filed this afternoon.” Father claims the attached documents included the child support documents. But the superior court had discretion to conclude that this second email was also insufficient. Moreover, even assuming the 6  MARTIN v. CERVANTES Decision of the Court attachment contained his child support documents, emailing documents to the court is not the same as filing them through the court’s electronic filing system. ¶22 There are other potential pieces of evidence Father could have included but did not. Counsel stated the court emailed him to notify him that it was rejecting his filing because of how he combined the documents and that the filing might have included sensitive information. See Ariz. Code of Jud. Admin. § 1-901(Q) (“If an electronically submitted document is determined to be deficient pursuant to this section, court rule, or other governing authority, the clerk may reject the submission. If a submission is rejected because of a deficiency, the clerk must promptly provide the filer with an explanation for the rejection.”); Ariz. Code of Jud. Admin. § 1- 901(R) (“A submission is deemed filed on the date and time it is received by the EFSP unless the clerk later rejects the document based on a deficiency.”). But Father did not provide the email from the clerk of court demonstrating that he had attempted to file a document that had been rejected because it was deficient. ¶23 Even if we overlooked all this, the superior court was not required to find that Father acted as a “reasonably prudent” person would upon discovering the error. See Geyler, 144 Ariz. at 331–32 (giving an example of acting prudently when, upon “learn[ing] of his predicament, defense counsel promptly took action, filed multiple motions, and at every step acted in a prompt and diligent manner”). Father claims that if he had known the court rejected his filing, he would have “immediately” corrected it and contends he did so once he realized his mistake. But the court was not required to accept Father’s explanation of what he thought was reasonable, and the record supports the superior court’s contrary conclusion. ¶24 When Father finally filed his documents, he did not explain why they were over a month late. Instead, he left June 30 listed as the date he “submitted” the documents and remained silent on why they were late. Only after the court entered judgment did Father seek to explain what had happened. But the proper course was not to file the documents late and remain silent with the hope the court might not notice. Instead, when Father finally realized his documents were not in the court’s filing system, he should have acknowledged they were late, explained what happened, and asked the court for leave to file them after the deadline. ¶25 Given these facts, Father has not established that the superior court abused its discretion in not finding that he was “reasonably prudent,” 7  MARTIN v. CERVANTES Decision of the Court or that he made a “diligent effort[] to comply with the rules.” See Daou, 139 Ariz. at 359; Geyler, 144 Ariz. at 332. The superior court therefore did not abuse its discretion by rejecting Father’s position that his late filing was the product of mistake, inadvertence, or excusable neglect. And given that conclusion, we need not decide whether Father had a meritorious defense. Daou, 139 Ariz. at 361. II. Fraud, Misrepresentation, or Other Misconduct ¶26 Father next argues the court erred by denying his motion for relief because Mother “admitted” she filed incorrect information. The court may relieve a party from judgment for “fraud . . . , misrepresentation or other misconduct of an opposing party[.]” ARFLP 85(b)(3). But the party seeking relief must show “some intentional act or conduct that has prevented the unsuccessful party from having a fair submission of the controversy.” McNeil v. Hoskyns, 236 Ariz. 173, 176 ¶ 14 (App. 2014) (citation modified). ¶27 Father argues the court “turned a blind eye” to Mother’s admission that the income she listed was incorrect. Mother listed her total gross income as of the date of her financial affidavit as $67,042.45, but she listed her gross wages per month as $4,910 and her rate of pay as $31.69 an hour. She also listed $300 a month in automobile expenses in a field for expenses paid by an employer. Father says based on these inputs Mother’s monthly income should have been listed at over $11,000 a month, more than double what she listed. ¶28 In Mother’s response in the superior court, she acknowledged she listed her vehicle expenses in the incorrect column. And her initial filing provided pay stubs reflecting wages of $31.69 per hour and 2023 and 2024 tax forms showing adjusted gross income of just under $60,000. Both her explanation and her documents support the court’s determination that Mother had monthly income of $4,910. Thus, it is reasonable to presume the court recognized Mother made a mistake and did not intentionally attempt to deprive Father of a fair result. See McNeil, 236 Ariz. at 176 ¶ 14. ¶29 Additionally, Father argues the court abused its discretion by not giving him credit for another child he had with his current wife. He argues that Mother’s failure to list this other child on her worksheet was either a mistake or a misrepresentation to the court. But Father provided no evidence that Mother’s omission of his other child from her worksheet amounts sought to deprive Father of a fair result. In fact, the child support guidelines do not require the court to make a reduction for a separate child. 8  MARTIN v. CERVANTES Decision of the Court A.R.S. § 25-320 app. (“Guidelines”) § II.B.2.d. (“If a parent is the primary residential parent of a child from other relationships, that parent’s Child Support Income may be reduced.”) (emphasis added). The court did not abuse its discretion by rejecting Father’s argument that Mother engaged in fraud, misrepresentation, or other misconduct. III. Other Reasons ¶30 Father makes several other arguments about why the court should have granted him relief. The court may relieve a party from judgment for “any other reason justifying relief.” ARFLP 85(b)(6). Other reasons mean “extraordinary circumstances of hardship or injustice justifying relief,” excluding “the reasons set forth in the preceding five clauses of rule 60(c),” and after considering the totality of circumstances. Skydive Ariz., Inc. v. Hogue, 238 Ariz. 357, 364 ¶ 25 (App. 2015) (citation omitted). But there are “no hard-and-fast rules to determine when there are extraordinary circumstances[.]” Davis v. Davis, 143 Ariz. 54, 59 (1984). ¶31 To be clear, the only indication that Father relies on Rule 85(b)(6) is that his opening brief lists that subsection as one of the three grounds for relief. He does not call his arguments Rule 85(b)(6) arguments or couch those arguments in terms of “extraordinary circumstances of hardship or injustice.” See Skydive Ariz., 238 Ariz. at 364 ¶ 25. Rather, his arguments are mostly framed as disagreements with the modification order, which again is not before us. Nonetheless, his arguments fail to establish extraordinary circumstances. ¶32 Father argues the court erred by stating he “never” filed his position statement or other required documents and rejecting his motion because of how it was titled. But Father did not file a position statement. He filed a “Motion For Entry Of Child Support Order.” So the court’s conclusion (at least in the literal sense) is correct—Father did not file a position statement. Moreover, by titling his position statement a motion, Father injected unnecessary confusion because motions trigger a response under the rules. See ARFLP 35(a)(3) (“[A] response must be filed within 10 days after service of the motion.”). More importantly, even if his filings were sufficient, he did not file his child support documents timely, so the court had discretion when deciding whether to consider them. See State v. Vincent, 147 Ariz. 6, 8 (App. 1985) (because court has discretion to extend time for filing motions, court must necessarily have discretion to consider late ones). And even if the superior court’s “never filed” language was incorrect, that would be insufficient to justify extraordinary relief because 9  MARTIN v. CERVANTES Decision of the Court it does not change the fact that Father untimely filed his documents without excusable neglect. ¶33 Next, Father asserts that the record does not support the parenting time and income attributed to him. He contends the 126 days of parenting time should have been 155 days, based on the 2025 Agreement continuing the parenting plan from the 2022 Agreement. While the 2022 Agreement does establish the parenting plan, it does not calculate the specific number of days for Father. And there were variables including the length of the children’s spring and fall breaks, as well as whether Father would elect to exercise his second full week during summer. Finally, although Father argued in his untimely filing that the Parents “share equal parenting time[,]” that conflicts with both the parenting time listed in the 2022 Agreement and Father’s position in his Rule 85(b) motion that he should be given credit for 155 days. ¶34 The superior court found parenting time “was originally agreed to be calculated at equal, but the actual parenting time is significantly less than equal [and] has lessened[.]” When “a court’s decision is based upon a determination of disputed questions of fact . . . a balance of competing interests . . . or any other basis to which we should give deference, we will not second-guess or substitute our judgment for that of the trial court.” Hilgeman v. Am. Mortg. Sec., Inc., 196 Ariz. 215, 218 ¶ 7 (App. 2000) (citation modified). ¶35 Father also maintains his income should have been $8,037.47, not $8,475.33, and the court should have used his February 2025 financial affidavit. But the 2025 Agreement required Father to submit a new financial affidavit, so any deficiencies in the record about Father’s income stems from his failure to file documents by the deadline he agreed to. And Father fails to explain why he thinks the court calculated his income incorrectly, other than it differs from his position. Finally, even if the court used Father’s February 2025 financial affidavit, the social security wages listed in the W2 he included totaled $101,703.89. See Guidelines § II.A.1.b. (“Child Support Income includes income from any source before any deductions or withholdings.”). That annual income equates to $8,475.33 a month, the precise amount Father now disputes. Thus, Father’s arguments do not demonstrate that the court erred. ¶36 Finally, Father argues the court should have awarded Mother only $100 a month in child support based on the 2022 Agreement because he “did not agree” to change his reduced child support. But in the 2025 Agreement, which Father filed with the court, the Parents stipulated they 10  MARTIN v. CERVANTES Decision of the Court would submit filings by June 30, and “[t]he Court shall then rule on the issue of child support.” This provision differed from the 2022 Agreement, in which the Parents agreed to a downward deviation. The 2025 Agreement contradicts Father’s argument about what he agreed to regarding child support. ¶37 Because Father fails to demonstrate “extraordinary circumstances of hardship or injustice,” the court did not err in denying relief under Rule 85(b)(6). CONCLUSION ¶38 We affirm. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 11