Simonelic v. Simonelic

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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: ALICIA KELLIE SIMONELIC, Petitioner/Appellee, v. CHRISTOPHER JOSEPH SIMONELIC, Respondent/Appellant. No. 1 CA-CV 26-0080 FC FILED 11-10-2026 Appeal from the Superior Court in Maricopa County No. FC2021-051694 The Honorable Nicole Brickner, Judge Pro Tempore The Honorable Colleen E. O’Donnell-Smith, Judge VACATED IN PART AND REMANDED COUNSEL Alicia Kellie Simonelic, Phoenix Petitioner/Appellee Christopher Joseph Simonelic, Phoenix Respondent/Appellant  SIMONELIC v. SIMONELIC Decision of the Court MEMORANDUM DECISION Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding Judge Andrew M. Jacobs and Chief Judge Randall M. Howe joined. K I L E Y, Judge: ¶1 The marriage of Christopher Joseph Simonelic (“Husband”) and Alicia Kellie Simonelic (“Wife”) was dissolved by a decree entered by default (the “Default Decree”) in 2022. Two years later, Husband moved to set aside the Default Decree, raising three arguments. As we explain below, the superior court correctly rejected the first two. The court erred, however, by rejecting as untimely Husband’s third argument, i.e., that the Default Decree should be set aside because he was not given notice of the default hearing. Because (1) the Default Decree is void because Husband was not given notice of the default hearing and (2) a void decree may be challenged at any time, we vacate the denial of Husband’s motion to set aside the Default Decree and remand for further proceedings. FACTS AND PROCEDURAL BACKGROUND ¶2 Husband and Wife were married in 2005 and have two children in common. ¶3 Wife petitioned for dissolution in June 2021. In her petition, she did not request spousal maintenance, and asked that child support be awarded in accordance with the Arizona Child Support Guidelines (the “Guidelines”). Wife’s petition listed an address on West Medtronic Way in Tempe as Husband’s “current mailing address.” ¶4 Upon the filing of Wife’s petition, the superior court issued an order requiring both parents to attend the parent information program (“PIP”) required by A.R.S. § 25-352(A). The record does not reflect when (or if) the petition or the PIP order were served on Husband. The record shows, however, that Husband complied with the PIP order by completing a co- parenting class and filing the certificate of completion with the court on September 7, 2021. ¶5 In late September 2021, Wife filed an amended dissolution petition in which she asked, for the first time, for an award of spousal maintenance of a fixed amount ($1,800 per month) but unspecified 2  SIMONELIC v. SIMONELIC Decision of the Court duration. Wife also asked, as she had in her original petition, that child support be awarded in accordance with the Guidelines. Alleging that Husband “just relocated” to Texas for employment reasons, Wife listed no mailing address for Husband in the amended petition, instead stating that “his current mailing address is unknown.” ¶6 On September 24, 2021, Wife’s counsel emailed the amended petition and related documents to Husband at his Gmail account along with an acceptance-of-service form, which she asked him to sign and return. The record does not show that he did.1 ¶7 On October 11, 2021, Wife’s counsel emailed Husband to ask that he “[p]lease provide an address so that service can be completed.” Husband replied the same day by emailing a picture of a United States Postal Service change-of-address form that listed his “new address” as a “general delivery” postal address in Tempe. The following morning, Wife’s counsel wrote back, “It is my understanding that you are now in Dallas, so I am unsure as to why you provided a Tempe address.” Husband replied by providing the address of the hotel in Texas where he was currently staying. ¶8 On October 12, 2021, Wife moved for an order allowing alternative service, alleging that Husband had not cooperated with her efforts to effect service. She explained that Husband “was contacted . . . via email . . . requesting an address for personal service,” and that he “provided an address in Tempe, Arizona, not Dallas, Texas where he is currently living.” She therefore requested leave to serve Husband by email. The superior court granted Wife’s motion, authorizing her to serve Husband by email to his Gmail account. Wife later filed an affidavit confirming that she had served Husband by email. ¶9 On November 30, 2021, Wife applied for entry of default. The application listed, as Husband’s “last known mailing address,” the address on West Medtronic Way in Tempe that Wife had listed in her original 1 Husband replied to counsel’s September 24 email within a week or so, saying that he “expect[ed]” to sign and return the acceptance of service “shortly.” Wife later asserted that Husband never followed through on his promise. Husband, by contrast, claimed that he did, in fact, sign and return form to Wife’s counsel. The record thus does not make clear whether Husband did or did not return the signed form to Wife’s counsel, and the superior court made no findings on this issue. 3  SIMONELIC v. SIMONELIC Decision of the Court petition. The application also listed, as another address for Husband, a post office box in Tempe. ¶10 Although Husband had provided two current mailing addresses to Wife’s counsel by email on October 11, 2021, Wife listed neither address on the application for default, nor did she mail the application to Husband at either. Wife did, however, email the application and the supporting documentation to the same Gmail account she had used to effect service of the amended petition. ¶11 Husband evidently sent an email (which is not in the record) to the assigned judicial officer’s judicial assistant (the “JA”) with questions about the procedure for filing a response to the amended petition. The JA replied on December 15, 2021, by providing a link to a document from the court’s law library resource center along with the comment: “Here is information on the court process. If you read through this page you will see step 3 shows how to file a response[.]” On December 22, Husband sent an email to the JA reading, “Attached is the my [sic] initial response, which will be properly filed.” Although Husband’s December 22 email evidently included an attachment, the attachment is not part of the record. The court file contains no response to the amended petition. ¶12 The request for child support and spousal maintenance in Wife’s amended petition required the court to hold a default hearing before entering judgment. See Ariz. R. Fam. L.P. 44.1(d). The record indicates that the superior court held the default hearing on January 24, 2022, at which Wife testified. The record does not indicate that Husband was ever given notice of the hearing. After the hearing, the court issued the Default Decree that, among other things, required Husband to pay Wife spousal maintenance of $1,800 per month for five years and child support of $1,376 per month. ¶13 Husband began making at least partial support payments in July 2022. ¶14 In late 2023, Wife petitioned to find Husband in contempt for failure to comply with his financial obligations under the Default Decree. Husband, in turn, petitioned to modify the spousal maintenance and child support provisions of the Default Decree, alleging, inter alia, that “a significant and continuing change in financial circumstances” warranted reducing the amount of his child support payments and terminating his spousal maintenance obligation altogether. 4  SIMONELIC v. SIMONELIC Decision of the Court ¶15 The court set an evidentiary hearing. Before the hearing, the parties resolved the issues Wife raised in her contempt petition, which they incorporated into a signed agreement and filed with the court under Arizona Rule of Family Law Procedure (“Rule”) 69. ¶16 After several continuances, the evidentiary hearing was held on November 3, 2025. ¶17 Shortly before the hearing, Husband began filing a series of motions raising challenges to various orders entered at different stages of the proceedings. Of relevance to this appeal, Husband filed a motion under Rule 85 (the “First Rule 85 Motion”) in which he asked that the default be set aside because the application for default was “not served” on him “at his current, known address.” Moreover, he alleged, Wife’s counsel committed “fraud” by “deliberately” mailing the application for default to two Tempe addresses that she knew were not valid. ¶18 In response, Wife argued that Husband “plainly had notice” of the application for default because she emailed it to him via his Gmail account. She further asserted that Husband “waived any claim” that the Default Decree was void through his “litigation conduct,” including by making payments toward his support obligations and “entering into a Rule 69 Agreement” with Wife to resolve her contempt petition. ¶19 Before Husband’s First Rule 85 motion was fully briefed, the court proceeded with the evidentiary hearing on Husband’s modification petition, after which it reduced the amount of Husband’s monthly support payments. ¶20 The court later issued an order denying Husband’s First Rule 85 motion. In its ruling, the court found, inter alia, that Father provided the “general delivery” postal address in Tempe to Wife’s counsel before counsel filed the application for default. Wife’s counsel did not send the application for default to that address. The court also found, however, that Husband had notice of the application for default because Wife “emailed [Husband] a copy” of it “at an email address that he was communicating with counsel through.” Further, the court noted that Husband did not seek to set aside the default until October 2025, and held that his motion was untimely under Rule 85. ¶21 Shortly before the court denied Husband’s First Rule 85 Motion, Husband filed a second motion under Rule 85 (the “Second Rule 85 Motion”), seeking to set aside the Default Decree because he “did not receive notice of the Default Hearing and so did not appear. He further 5  SIMONELIC v. SIMONELIC Decision of the Court asserted that Wife presented “materially false” testimony about her financial condition at the hearing to support her requested spousal maintenance award. ¶22 In response, Wife did not contest Husband’s allegation that the court held a default hearing in January 2022 of which Husband did not receive notice. Instead, she asserted simply that Husband’s Second Rule 85 Motion was untimely, and asked that it be denied on that basis. ¶23 Before the court ruled on Husband’s Second Rule 85 Motion, Husband filed a notice of appeal from the denial of the First Rule 85 Motion. ¶24 Noting that the Default Decree lacked the “finality” determination required by Rule 78, this Court stayed the appeal and remanded the matter so the superior court could address the unresolved Second Rule 85 Motion and enter “a signed judgment with full Rule 78(c) language.” On remand, the superior court denied Father’s Second Rule 85 Motion as untimely and entered final judgment on all claims and issues under Rule 78(c). ¶25 Husband filed a timely amended notice of appeal. We have jurisdiction under A.R.S. § 12-2101(A)(2). DISCUSSION ¶26 Husband challenges the denial of his requests for relief, asserting, first, that the superior court never acquired personal jurisdiction over him due to lack of personal service. Noting that Rule 41(l)(1) permits a court to authorize service by alternative means if the moving party shows that service by traditional means “is impracticable,” Husband asserts that the court erred in authorizing Wife to serve him by email because she failed to make the requisite showing of “impracticability.” ¶27 “Proper service of process is essential for the court to have jurisdiction over the defendant.” Ruffino v. Lokosky, 245 Ariz. 165, 168, ¶ 10 (App. 2018) (citation omitted). A defendant may, however, waive his objection to improper service. See, e.g., Nat’l Homes Corp. v. Totem Mobile Home Sales, Inc., 140 Ariz. 434, 437 (App. 1984). “The validity of a waiver of service is a question of law, which we review de novo.” Matter of 2000 Peterbilt Tractor & Trailer, WA LIC: 19601RP, VIN: 1XPSD69X2YD479117, 240 Ariz. 450, 452, ¶ 6 (App. 2016); see also McMahan v. Grasshopper Trans, Inc., 262 Ariz. 556, ___, ¶ 10 (2026) (recognizing that whether a party “waived its objection concerning service of process” is a “legal question[]” reviewed de novo (citations omitted)). 6  SIMONELIC v. SIMONELIC Decision of the Court ¶28 A party waives a jurisdictional objection based on improper service by making a general appearance in the action. See McMahan, 262 Ariz. at ___, ¶ 13 (“A general appearance is a waiver of notice and if a party appears in person or by attorney he submits himself to the jurisdiction of the court.” (citation omitted)); Tarr v. Superior Court in and for Pima County, 142 Ariz. 349, 351 (1984) (“[A]ny action on the part of the defendant, except to object to the jurisdiction over his person which recognizes the case as in court, will constitute a general appearance.” (citation omitted)). ¶29 Here, Husband made a general appearance by participating in the superior court proceedings before the entry of default without objecting on grounds of improper service. He participated in the case both by complying with the PIP order in September 2021 and by emailing the JA about filing a response to the amended petition. See supra ¶¶ 4, 11; see also BYS Inc. v. Smoudi, 228 Ariz. 573, 578, ¶¶ 19, 21 (App. 2012) (noting that the term “[a]ppearance” “generally applies to any action taken by the defendant in which he recognizes that the case is in court and submits himself to the court’s jurisdiction,” and holding that defendants “appear[ed]” by sending a letter to the court asking for an extension of time to answer the complaint, thereby “demonstrat[ing] their knowledge that the case was in court and their submission to the court’s jurisdiction”). Husband’s appearance in the case waived any objection he may have had to the method of service. Shah v. Vakharwala, 244 Ariz. 201, 203, ¶ 8 (App. 2018) (holding that following service of order of protection, defendant “waived any objection to the exercise of personal jurisdiction” by “request[ing] a hearing . . . without raising any objections as to the court’s jurisdiction,” thereby “entering a general appearance.”). Husband is entitled to no relief, therefore, on his challenge to the method of service authorized by the court, and we reject his contention that the court never acquired personal jurisdiction over him. ¶30 Husband next challenges the superior court’s denial of his First Rule 85 Motion, asserting that the default never became effective because Wife did not mail the application for default to his last known address as required by applicable court rules. ¶31 The superior court may set aside the entry of default for good cause. Ariz. R. Fam. L.P. 44(a)(5). The court’s ruling on a motion to set aside a default is reviewed for abuse of discretion. Gen’l Elec. Capital Corp. v. Osterkamp, 172 Ariz. 185, 188 (App. 1992). ¶32 Under Rule 44, a party seeking default must file a written application that, among other things, “provides the last known mailing 7  SIMONELIC v. SIMONELIC Decision of the Court address for the party claimed to be in default, or states that the party requesting the default does not know the whereabouts of the party in default.” Ariz. R. Fam. L.P. 44(a)(2)(C). The party requesting default must mail “a copy of the application for default to the party in default” if “the party requesting default knows the whereabouts of the party in default.” Ariz. R. Fam. L.P. 44(a)(3)(A). ¶33 On October 11, 2021, Husband provided Wife’s counsel with two mailing addresses: a “general delivery” address in Tempe and a hotel address in Texas. Wife did not list either address in her application for default, nor did she mail a copy of the application to Father at either address. Instead, the application for default listed two other addresses in Tempe even though Wife knew (as shown in her counsel’s October 11 email) that Husband did not live in Tempe anymore. Because neither of the Tempe addresses listed on the application for default were Husband’s “last known mailing address,” the application did not satisfy Rule 44’s requirement of mailing to the defaulting party’s last known mailing address. Ariz. R. Fam. L.P. 44(a)(3)(A). ¶34 Although Wife’s application for default did not comply with Rule 44, that fact alone does not require that the default be set aside. The purpose of service rules is to provide the notice and opportunity to be heard that due process requires. See Marks v. LaBerge, 146 Ariz. 12, 15 (App. 1985) (“[T]he purpose of process is to give the party actual notice of the proceedings against him and that he is answerable to the claim of the plaintiff.”); see also McClintock v. Serv-Us Bakers, 103 Ariz. 72, 74 (1968) (“[N]o judgment by default may be entered against a defendant who has appeared—as by timely filing an answer—unless he is given notice of the application for judgment.” (citation omitted)). Once a defendant has been properly served with process, orders entered upon subsequent pleadings will be given effect even absent strict compliance with procedural service rules so long as the defendant received actual notice of the plaintiff’s requested relief. See Kline v. Kline, 221 Ariz. 564, 570, ¶ 21 (App. 2009) (“[S]trict technical compliance with rules governing service may be excused when the court has already acquired jurisdiction over [the defendant] and that party receive[d] actual, timely notice of an amended pleading and its contents.”); see also Best v. Hull, Holliday & Holliday PLC, 2020 WL 5523202 at *1, ¶ 8 (Ariz. App. Sept. 15, 2020) (mem. dec.) (plaintiff moved to strike defendant’s filing based on defendant’s alleged failure to serve a copy of the filing by mail as required by applicable court rules; affirming trial court’s denial of plaintiff’s motion to strike, this Court observed that “[b]ecause [plaintiff] received timely actual notice of the motion, he was not prejudiced by any technical defect in service”). Wife’s failure to strictly 8  SIMONELIC v. SIMONELIC Decision of the Court comply with the requirements of Rule 44 would not prevent the default from becoming effective, therefore, if Husband timely received notice of the application for default. See Ariz. R. Fam. L.P. (“A default will not become effective if the party in default responds within 10 days after the application for default is filed.”); see also Kline, 221 Ariz. at 571, ¶ 23 (“[Rule 44] was intended to serve as a shield for those prejudiced by a lack of notice, not as a sword for those who, with full information, elect to be defaulted.”). ¶35 The court found that Wife’s counsel emailed the application for default to Husband at his current email address. The record supports this contention, and Husband does not dispute it on appeal. We therefore affirm the court’s denial of Husband’s First Rule 85 Motion. The entry of default following Husband’s failure to respond to the amended petition thus remains effective. See BYS Inc., 228 Ariz. at 579, ¶ 24 (affirming entry of default against parties who had appeared but not filed a responsive pleading). ¶36 Finally, Husband argues the superior court erred in denying his Second Rule 85 Motion, asserting that the Default Decree is void because he was not given notice of the default hearing. ¶37 We review a ruling on a motion to set aside a default judgment for an abuse of discretion. Ruffino, 245 Ariz. at 168, ¶ 9. But the court lacks discretion to deny a motion to set aside a judgment if it is void. Id. at 168-69, ¶ 10 (“When a judgment is void, the court must vacate it.”). ¶38 Rule 44.2(b) provides in pertinent part that “[i]f the defaulted party has appeared in the matter, that party . . . must be served . . . with written notice of the hearing not later than 3 days before the hearing.” Ariz. R. Fam. L.P. 44.2(b); see also BYS Inc., 228 Ariz. at 578, ¶ 20 (“Once a defendant has appeared, a default judgment can be obtained only after a hearing by the court upon three days’ written notice.”). If the requisite three-days’ notice is not given, “the resulting judgment [is] void.” BYS Inc., 228 Ariz. at 578, ¶ 20. ¶39 The record indicates that the court held a default hearing on January 24, 2022. Nothing in the record indicates that Husband was given notice of this hearing, and Wife does not contend otherwise. Because Husband did not receive the requisite three-day notice of the default hearing, the Default Decree is void. BYS Inc., 228 Ariz. at 579, ¶ 24 (vacating default decree entered against parties who had appeared but were not given notice of default hearing). 9  SIMONELIC v. SIMONELIC Decision of the Court ¶40 The superior court denied Husband’s Second Rule 85 Motion as untimely because it was not filed within six months of entry of the Default Decree. But because a void judgment may be challenged at any time, Ruffino, 245 Ariz. at 169, ¶ 10, Husband’s motion to set aside the Default Decree could not properly be denied on that basis. See also Master Financial, Inc. v. Woodburn, 208 Ariz. 70, 74, ¶ 19 (App. 2004), as amended (June 7, 2004) (“[A] party seeking relief from a void judgment need not show that their failure to file a timely answer was excusable, that they acted promptly in seeking relief from the default judgment, or that they had a meritorious defense.” (citation omitted)). We therefore reverse the denial of Husband’s Second Rule 85 Motion, vacate the Default Decree, and remand for further proceedings. CONCLUSION ¶41 Husband’s participation in the case constituted an “appearance” that waived his objection to the method of service. And the superior court properly denied Husband’s motion to set aside the entry of default. But because Husband never received notice of the January 2022 default hearing, the Default Decree was void, and the superior court erred by denying Husband’s motion to set it aside. We vacate the Default Decree and remand for further proceedings. Husband is entitled to his costs on appeal. See A.R.S. § 12-342. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 10