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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DONNA TIMOFEY GHOSOPH, Petitioner/Appellee,

v.

ROBERT KOTTMANN, Respondent/Appellant.

No. 1 CA-CV 14-0356 FC

Appeal from the Superior Court in Maricopa County

No. FC2011-006782

The Honorable James T. Blomo, Judge

AFFIRMED

COUNSEL

Lorona Mead, PLC, Phoenix

By Jess A. Lorona

Counsel for Petitioner/Appellee

Davis Faas Blase, PLLC, Scottsdale

By Greg R. Davis, Cheryl M. Faas

Counsel for Respondent/Appellant
GHOSOPH v. KOTTMANN

Decision of the Court

2

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which 

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

J O N E S, Judge:

¶1 Robert Kottman (Husband) appeals from the trial court’s 

order denying his motion for new trial/motion to vacate a judgment

denying his motion to enforce a property settlement agreement (“PSA”)

entered into with Donna Timofey Ghosoph (Wife). For the reasons stated 

below, we affirm the order denying relief. 

FACTS1 AND PROCEDURAL HISTORY

¶2 In December 2012, in the course of their dissolution 

proceedings, the parties entered into the PSA, agreeing Wife would be 

awarded the marital residence. The PSA provided that: “If Wife is late on 

a payment or misses a payment by more than 30 days, Husband at his 

option may take over payments and assume ownership of the property as 

his sole and separate property.” 

¶3 In June 2013, Husband filed a motion to enforce the PSA,

alleging Wife failed to make the February and May 2013 mortgage 

payments within thirty days of their due date. Husband alleged he paid

both mortgage payments, and, pursuant to the PSA, sought to assume 

ownership of the marital home. Wife disputed Husband’s allegations and 

argued equitable principles prevented strict adherence to the PSA. After an 

evidentiary hearing in October 2013, the trial court concluded Husband 

failed to meet his burden and denied his motion to enforce the PSA. 

¶4 Husband filed a motion for new trial/motion to vacate the 

judgment on the basis that newly discovered evidence indicated Wife 

offered fraudulent evidence at the evidentiary hearing. See Ariz. R. Fam. 

L.P. 83(A)(4) and 85(C)(1)(b). Husband’s new evidence was a letter from 

the mortgage company suggesting a fax submitted by Wife, stating the May 

2013 payment was not late, was fraudulent. In response, Wife argued the 

 

1 We view the facts in the light most favorable to upholding the trial 

court’s ruling. In re Marriage of Yuro, 192 Ariz. 568, 570, ¶ 3 (App. 1998). 
GHOSOPH v. KOTTMANN

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evidence was not newly discovered. She attached evidence that Husband 

indicated, prior to the evidentiary hearing, he would call an employee from 

the mortgage company to testify regarding the authenticity of the faxed 

letter. Wife asserted that, because Husband did not call this witness, voice 

his concern that the document was falsified, or otherwise object to

admission of the fax, he had waived any ability to argue its legitimacy as a 

grounds for new trial.

¶5 The trial court denied Husband’s motion for new 

trial/motion to vacate without comment, and Husband filed a timely notice 

of appeal. We have jurisdiction pursuant to Arizona Revised Statutes 

(A.R.S.) sections 12-120.21(A)(1), -2101(A)(2) and -(A)(5)(a).2 See M & M 

Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141 (App. 

1990) (holding an order denying a motion to set aside a judgment is 

appealable as a “special order made after final judgment”) (citations 

omitted).

DISCUSSION 

I. Motion for New Trial

¶6 We review the denial of a motion for new trial for an abuse of 

discretion.

3 Boatman v. Samaritan Health Servs., Inc., 168 Ariz. 207, 212 (App. 

1990). A motion for new trial based upon newly discovered evidence 

should be granted:

only if it appears that (1) the newly discovered evidence could 

not have been discovered before the granting of judgment 

despite the exercise of due diligence, (2) the evidence would 

probably change the result of the litigation, and (3) the newly 

discovered evidence was in existence at the time of the 

judgment. 

 

2 Absent material changes from the relevant date, we cite a statute’s 

current version.

3 Husband also argues within his opening brief that the trial court 

erred in failing to enforce the PSA. Husband did not reference the 

underlying order denying his motion to enforce in his notice of appeal; 

therefore, this appeal “does not extend to a review of whether the trial court 

was substantively correct in entering the judgment from which relief was 

sought.” Hirsch v. Nat’l Van Lines, 136 Ariz. 304, 311 (1983) (citations 

omitted). 
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Id. (citing Wendling v. Sw. Sav. & Loan Ass’n, 143 Ariz. 599, 602 (App. 1984)).

¶7 The newly discovered evidence asserted in support of 

Husband’s motion for new trial was a letter from the mortgage company 

stating that it did not send a fax regarding the timeliness of Wife’s mortgage 

payments to her. Although the letter Husband attached to his motion was 

dated after the evidentiary hearing, Husband was clearly aware of the

alleged fraudulent nature of the fax prior to the hearing. Indeed, Husband 

advised Wife prior to the hearing that he intended to call “Pam” from the 

mortgage company for the express purpose of testifying there was no 

record of the fax. Husband also advised the trial court of this intent at the 

hearing.

¶8 Although Husband did not call “Pam” as a witness or 

otherwise examine Wife on the issue, on the day of the evidentiary hearing, 

Husband had already questioned the veracity of Wife’s fax, apparently 

possessed information from the mortgage company that it had not 

generated the fax, and had arranged for an employee of the mortgage 

company to testify in support of his position. Husband has failed to 

establish his evidence is “newly discovered” that could not, with due 

diligence, have been presented at the evidentiary hearing. Id. (concluding 

party failed to establish newly discovered evidence where “both witnesses 

furnishing the allegedly newly discovered evidence was known” prior to 

entry of judgment) (citing Ashton v. Sierrita Mining & Ranching, 21 Ariz. 

App. 303, 305 (1974), and 11 Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 2859 (1973)); see also Wendling, 143 Ariz. at 602 (“If 

[newly discovered evidence] was in the possession of the party before the 

judgment was rendered, . . . it is not newly discovered . . . and does not 

entitle the party to relief.”) (citing Roberts v. Morgensen Motors, 135 Ariz. 162, 

166 (App. 1982)). Therefore, the trial court did not abuse its discretion in 

denying Husband’s motion for new trial.

II. Motion to Vacate Judgment

¶9 Husband next argues Wife committed misconduct justifying 

relief from the judgment under Arizona Rule of Family Law Procedure

85(C)(1)(c),

4 because she did not disclose the fax until the afternoon before 

 

4 Husband argues for the first time on appeal that Wife’s alleged 

misconduct also provided grounds for relief under Arizona Rule of Family 

Law Procedure 83(A)(2). While we do not address issues raised for the first 

time on appeal, Medlin v. Medlin, 194 Ariz. 306, 308, ¶ 6 (App. 1999) (“An 
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trial in an attempt, according to Husband, to conceal the fraudulent nature 

of the fax. We review the denial of a motion to vacate a judgment under 

Rule 85(C) for an abuse of discretion. Duckstein v. Wolf, 230 Ariz. 227, 231, 

¶ 8 (App. 2012). 

¶10 Here, Husband’s attorney sent an email to Wife’s attorney 

prior to the evidentiary hearing indicating Husband was not only aware of

the fact that the mortgage company asserted it had no record of sending the 

fax to Wife, but also had prepared for and intended to offer testimony to 

that effect at the hearing. However, Husband did not raise either the 

untimely disclosure or the alleged fraud at the hearing. Because Husband

failed to raise these issues with the trial court, they are waived,5 and the 

trial court did not abuse its discretion in denying Husband’s motion to 

vacate the judgment. See Ritchie, 221 Ariz. at 303, ¶ 51 (“Generally, 

counsel’s failure to object to the argument at trial waives the issue on 

appeal.”) (citing Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 451 (1982), and 

Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 304-05 n.2, ¶¶ 16, 18 (App. 

1999)).

CONCLUSION

¶11 We affirm the order denying Husband’s motion for new 

trial/motion to vacate the judgment. 

¶12 Wife requests her attorneys’ fees on appeal pursuant to A.R.S. 

§§ 12-341.01 and -349. Husband also argues he is entitled to an award of 

fees, but fails to cite any authority to support his claim. In our discretion, 

 

issue raised for the first time after trial is deemed to have been waived.”)

(citing Conant v. Whitney, 190 Ariz. 290, 293 (App. 1997)), Husband is not 

precluded from seeking review of the grounds for relief under Rule 

85(C)(1)(c). 

5 We acknowledge “[w]aiver does not apply when it appears ‘that the 

improper conduct . . . actually influenced the verdict.’” Ritchie v. Krasner, 

221 Ariz. 288, 303, ¶ 51 (App. 2009) (quoting Anderson Aviation Sales Co., Inc. 

v. Perez, 19 Ariz. App. 422, 429 (1973)). However, we defer to the trial 

court’s conclusion, implicit in its denial of Husband’s motion for new 

trial/motion to vacate the judgment, that the alleged misconduct did not 

influence the judgment. Id. at ¶¶ 51-52 (noting trial judge is in the best 

position to determine whether the misconduct materially influenced the 

decision) (citing Leavy v. Parsell, 188 Ariz. 69, 72 (1997), and Anderson 

Aviation, 19 Ariz. App. at 429).
GHOSOPH v. KOTTMANN

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we decline both requests. Wife, as the prevailing party, is entitled to recover 

her costs on appeal upon compliance with ARCAP 21(b).