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Case Number: FN2004-000106
Judge: Marie Nocholls
Court: Superior Court, Maricopa County, Arizona
Description: Phoenix, Arizona family law lawyer represented Petition and Respondent in divorce action.
¶2 This dispute arises out of a divorce, which was first filed in 2004. As part of the asset distribution of Moore's retirement account, DaSilva received an overpayment of $7,819.53. Moore filed three motions in 2008 requesting relief. The superior court granted judgment in favor of Moore for the overpayment amount under Arizona Rule of Family Law Procedure ("Rule") 85 ("2009 Judgment").
¶3 Later that year, DaSilva filed for bankruptcy. Approximately four months later, the bankruptcy court entered default judgment and declared the 2009 Judgment non-dischargeable. See 11 U.S.C. § 523(a)(15). Moore took no action on the 2009 Judgment for almost five years.
¶4 In April 2014, the Maricopa County clerk of court accepted an affidavit to renew the judgment under Section 12-1612. Moore then filed two garnishment actions. DaSilva moved to dismiss the garnishments and sanction Moore, arguing he failed to timely renew the judgment. Twelve days later, DaSilva filed a notice to withdraw her motion to dismiss the garnishment ("Notice to Withdraw") and moved to discharge the garnishees. The court granted DaSilva's motion to dismiss, in essence taking no action on the Notice to Withdraw ("2015 Order").
¶5 DaSilva moved to vacate the 2015 Order based on the Notice to Withdraw and asked the court to discharge the garnishees. The superior court discharged the garnishees but left the 2015 Order in place. Over the next ten months, the parties engaged unsuccessfully in various collection efforts. Two years later, in March 2018, Moore filed an affidavit to renew the judgment. Following the affidavit, Moore took no action on the 2009 Judgment for more than three years.
¶6 In September 2020, Moore petitioned the court to conduct a judgment debtor exam to recover the 2009 Judgment. DaSilva moved to dismiss the petition, arguing that in its 2015 Order the superior court had ruled the 2009 Judgment was expired and uncollectable. Moore responded, arguing that the court improperly granted DaSilva's motion to dismiss in the 2015 Order because DaSilva had withdrawn the motion and filed a motion to vacate the order. The superior court dismissed the petition ("2020 Order"), reasoning that "nowhere is it indicated that the court's [2015 Order] was set aside . . . The [2015 Order] is a valid judgment and the [c]ourt's findings remain intact . . . [and Moore] has again sought to pursue legal action on an expired, unenforceable judgment."
¶7 For the next fifteen months, Moore took no action. Then, Moore filed a motion to correct the record under Arizona Rule of Family Procedure 85(a). The superior court granted relief under Rule 85(a) and (b)(6) ("2022 Order"), reasoning that the "2015 Order was improperly entered due to [DaSilva]'s earlier filed Notice of Withdrawal," (emphasis in original), and that the 2020 Order "failed to consider [DaSilva]'s Notice of Withdrawal." (Emphasis in original).
¶8 DaSilva timely appealed and we have jurisdiction under A.R.S. § 12-2101(A)(1), (4).
Moore v. Dasilva (Ariz. App. 2023)
Outcome: For the above reasons, we reverse the 2022 Order granting Rule 85 relief to Moore.