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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

In re the Matter of:

LISA SWANS O N , Petitioner /Appell ee ,

v.

JOEL BALL
, Respondent /Appell ant

.
No. 1 CA

- CV 23

- 0 473 FC

Appeal from the Superior Court in Maricopa County

No. FC20 15

- 054409 The Honorable Michael Valenzuela
, Judge

AFFIRMED

COUNSEL

JD Ball, Scottsdale Respondent/Appellant

MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Angela K. Paton and Judge Michael S. Catlett joined. FILED 06-06-2024SWANSON v. BALL Decision of the Court

2 M O R S E , Judge:

¶1 Joel Ball ( " Husband " ) challenges the superior court ' s denial of his petition to enforce terms in the parties ' dissolution decree that pertain
to past marital community businesses. Although Lisa Swansen ( " Wife " ) did not file an answering brief , we affirm because Husband has not raised any debatable issues on appeal

.

FACT S AND PROCEDURAL BACKGROUND

¶2 The parties ' m arriage was dissolved in 2017. Before dissolution, the parties owned two business entities: Hybritech Medical Group ( " Hybritech " ) and Columbia Healthcare ( " Columbia " ). In the dissolution decree, the superior court granted Husband " the entire community interest in Hybritech and Columbia, and any subsidiary or related entity that the community had an interest i n , with no equalization due to [Wife]

. " It also direct ed the parties to " equally share any liabilities associated with Hybritech or Columbia . . . incurred on or before May 31, 201 6. "

¶3 Husband petitioned to enforce these provisions i n August 2022

. He alleged Wife had form ed a new business, MobileOneDoc LLC ( " MOD " ), " from Hybritech taking the clients, the patients, the staff, the business plan, and all assets from Hybritech community interest [sic]. " On that basis, he requested " all revenue generated from [MOD]

. . . from the date of ruling to today and thereafter " ( " MOD Claim " ). He also alleged

" [t]he Columbia liability prior to May 2016 totaled $240,000
, " and on that basis he requested a n additional $120,000 from Wife ( " Contribution Claim " )

. ¶4 Wife moved pursuant to Arizona Rule of Family Law Procedure ("Rule") 29 to dismiss Husband ' s petition. The court dismissed the MOD Claim , finding that while Husband " allege[d] that [Wife] stole customers from the community business, " he did not allege that MOD is " a subsidiary or related entity to the two community businesses. " The parties proceeded to an evidentiary hearing on the Contribution Claim and Wife ' s then

- pending pet ition to enforce child support. After the hearing, the court issued a signed Rule 78(b) judgment den ying the Contribution Claim
, finding that Husband " provided only a vague accounting of the debts " through monthly bank statements that did not show " what debts the company owed on May 31, 2016 . . . [or] that Husband paid these debts. " Husband appealed. We have jurisdiction under A.R.S. § § 12

- 120.21 (A) (1)

a nd

- 2101(A)(1)

.SWANSON v. BALL Decision of the Court

3 DISCUSSION

¶5 Husband contends that the court erred in dismissing the MOD C laim and by ruling that Wife did not violate the divorce decree

. Specifically, he argues that the MOD claim is a related entity to both Hybritech and Columbia and the bank records he provided to the court were sufficient evidence to prove Wife did not pay her liabilities

. Wife failed to submit an answering brief

. W hen an appellee fails to file an answering brief and debatable issues exist, we consider such failure a confession of reversible error. S ee Mayberry v. Stambaugh , 1 CA

- CV 23

- 0289 FC , 2024 WL 1282653, at *1
, ¶ 5 (Ariz. App. Mar

. 26, 2024) (mem. decision) (Mor se, J., specially concurring) ( " [W]hen an appeal raises debatable issues, and a child's best interests are not at issue, we must treat an appellee's failure to respond as a confession of reversible error. " ) ; b ut see Savord v. Morton , 235 Ariz. 256, 259
, ¶ 9 (App. 2014) (stating that we "may" treat a failure to file an answering brief as a confession of reversible error on debatable issues)

. We therefore examine the record to determine whether Husband has raised debatable issues. Meinhard

- C om. Corp. v. Oxford Shops, Inc ., 13 Ariz. App. 592, 593 (1971); see Nat ' l Exhibition Co. v. Marx , 9 Ariz. App. 482, 483 (1969) (stating that reversal based on confession of error

" requires a determination that appellant ' s contentions are substantially debatable " ).

I. MOD Claim

. ¶6 We review the grant of a motion to dismiss under Rule 29(a)(6 ) and the legal conclusions therein de novo

. Cox v. Ponce , 251 Ariz

. 302, 304, ¶ 7 (2021). And we defer to the superior court's " findings of fact when they are supported by the record and not clearly erroneous. " State v. Hulsey , 243 Ariz. 367, 377, ¶ 17 (2018).

¶7 Husband contends the court erred in finding he did not allege MOD is a related entity of Hybritech . In support, Husband cites his allegation that Wife " created [MOD] from Hybritech taking the clients, the patients, the staff, the business plan, and all assets from Hybritech community interest. " He also contends the court should have treated the Rule 29 motion to dismiss as a Rule 79 motion for summary judgment because the court used "matters outside the pleadings

. " 1 But Husband did not raise this argument before the court and has waived it on appeal

. See

1 Because Rule 56 relates to discovery, we assume Husband intended to argue the motion should be converted to a Rule 79 motion for summary judgment.SWANSON v. BALL Decision of the Court

4 Moretto v. Samaritan Health Sys. , 190 Ariz. 343, 346 (App. 1997) (noting that failure to raise " any procedural irregularity " before the superior court, waives the procedural issue on appeal)

. Waiver aside , the court was not required to convert the motion to dismiss to a motion for summary judgment because the order dismissing the claim only relies on matters that were brought in Husband 's affidavit or the decree

. See Coleman v. City of Mesa , 230 Ariz. 352, 356, ¶ 9 (2012) ( noting that a "complaint's exhib its, or public records regarding matters referenced in a complaint, are not 'outside the pleading,' and courts may consider such documents without converting a Rule [29( a ) ] (6) motion into a summary judgment motion" )

¶8 The court found that Husband only alleged that " [Wife] stole customers from the community business ," and did not allege " that [MOD] is a subsidiary or related entity to the two community businesses. " T he decree granted Husband the community interest in Hybritech, Columbia, and " any subsidiary or related entity that the community had an interest in. " But Husband admitted in his motion for reconsideration that he did not allege a subsidiary relationship, arguing instead that " [t]he gravamen of the [petition] is predicated on it being a given that MOD is a subs idiary of [ Hybritech ]

. " That Wife allegedly took " all assets " from Hybritech does
not mean MOD is a subsidiary of Hybritech. On appeal, w e do not reweigh the evidence presented to the court

. Gutierrez v. Fox , 242 Ariz. 259, 272, ¶ 49 (App. 2017). Because Husband 's argument challenges the court's evaluation of the weight of the evidence presented below, he has not raised debatable issues as to the MOD Claim.

II. Contribution Claim

. ¶9 Husband also contends the court " abused [its discretion] in claiming bank statements do not show a company ' s paid debts " and by ruling that the " bank statements are only a vague accounting of the debts. " Because the court held an evidentiary hearing on th e Contribution C laim, we review its ruling for an abuse of discretion. See Borja v. Borja , 254 Ariz. 309, 31 3 , ¶ 10 ( App. 2022) ( noting that " we defer to the superior court ' s factual findings that are supported by competent evidence " ).

¶10 Although Husband indicated in his case management statement that he had ordered a hearing transcript, there is no transcript in the record. Absent a transcript, we presume the evidence presented at the hearing supported the court ' s findings. Blair v. Burgener , 226 Ariz. 213, 217, ¶ 9 (App. 2010)

. And t he bank statements in the record do not by themselves indicate the court abused its discretion in finding they " do not show that [ Husband ] paid [the Columbia] debts. " To the extent thatSWANSON v. BALL Decision of the Court

5 additional argument was presented at the hearing, we presume the y support the court 's ruling. See Kohler v. Kohler , 211 Ariz. 106, 108
, ¶ 8 n

. 1 (App. 2005)

. T herefore
, Husband failed to raise debatable issue s as to the Contribution Claim

.
CONCLUSION

¶11 Because Husband has not raise d deb a table issues, we do not
treat Wife ' s failure to file an answering brief as a confession of reversible

error

. We affirm the superior court ' s rulings denying the MOD Claim and the Contribution Claim

. See Pinal Cnty., Juv

. Action No. S

- 389 , 151 Ariz. 564, 565 (App. 1986) (affirming whe n " [o]ur review of the appellant ' s memorandum and of the record on appeal . . . shows that the issues raised are not debatable " ). W e do not award Wife taxable costs because she did not file an answering brief.