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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

RENATO MARTINEZ, Petitioner/Appellee,

v.

CARMEN ILEM, Respondent/Appellant. 

No. 1 CA-CV 14-0717 FC

Appeal from the Superior Court in Maricopa County 

No. FC2014-091302 

The Honorable Bethany G. Hicks, Judge (Retired)

AFFIRMED 

COUNSEL 

Fromm Smith & Gadow, P.C., Phoenix 

By Jennifer G. Gadow and James L. Cork II 

Counsel for Respondent/Appellant 
MARTINEZ v. ILEM 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined. 

W I N T H R O P, Judge: 

¶1 Carmen Ilem (“Wife”) appeals the family court’s order 

granting the motion of Renato Martinez (“Husband”) to reinstate the case. 

For the forgoing reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife participated in a wedding ceremony in 

California in 1992. Eight years later, after a brief separation resulting from 

marital troubles, Husband followed Wife to Arizona in an effort to 

reconcile. The relationship lasted another fourteen years; however, in 2014, 

Husband filed a petition for dissolution of marriage. Wife moved to 

dismiss the case for failure to state a claim, asserting they were never 

married as a marriage license was never issued in California.1 Husband 

argued that a license had been issued but had apparently not been filed or 

recorded due to the fault of the minister who officiated the ceremony. The 

family court initially granted the motion to dismiss, but later reversed its 

 

1 Because materials extraneous to the petition for dissolution of 

marriage were presented to and considered by the family court, the motion 

was properly considered by the court as one for summary judgment. See

Ariz. R. Civ. P. 12(b)(6) (requiring the conversion of a motion to dismiss for 

failure of the pleading to state a claim to one for summary judgment once 

matters outside of the pleading are presented to and not excluded by the 

court); Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9, 284 P.3d 863, 867 

(2012) (stating the requirement). 
MARTINEZ v. ILEM 

Decision of the Court 

3

order and reinstated the case.2 Wife timely appealed.

3 

ANALYSIS 

¶3 An order to dismiss the case is a final judgment and an order 

to reinstate is a special order made after the final judgment. Johnson v. Elson, 

192 Ariz. 486, 488, ¶ 6, 967 P.2d 1022, 1024 (App. 1998). We thus have 

appellate jurisdiction pursuant to the Arizona Constitution, Article 6, 

Section 9, and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) 

and 12-2101(A)(2).4 

¶4 Because the family court did not state the grounds for 

reinstatement, we will affirm the order if supported by any reasonable legal 

basis. See Johnson, 192 Ariz. at 489, ¶ 10, 967 P.2d at 1025 (stating we review 

an order to see if supported by any reasonable legal basis when the order 

provides no legal basis). One such basis is Arizona Rule of Family Law 

Procedure 85(C)(1)(f), allowing relief from a judgment for any justifying 

reason other than those stated in Rules 85(C)(1)(a)–(e). See Ariz. R. Fam. 

Law P. 85(C)(1)(f); Webb v. Erickson, 134 Ariz. 182, 186, 655 P.2d 6, 10 (1982) 

(stating clause 6 of Rule 60(c) and the rest of the five clauses are mutually 

 

2 Husband filed a notice of appeal after the court denied his motion to 

reconsider the dismissal. While his appeal was pending, the family court 

sua sponte reversed its order of dismissal and reinstated the case. This order, 

however, was void because at that time the family court lacked jurisdiction 

as Husband’s appeal was still pending. See In re Marriage of Flores & 

Martinez, 231 Ariz. 18, 21, ¶ 10, 289 P.3d 946, 949 (App. 2012) (stating the 

filing of notice of appeal divests the trial court of jurisdiction to proceed 

except to issue orders in furtherance of the appeal or address matters 

unrelated to the appeal). For jurisdiction to be properly revested in the 

family court, Husband abandoned his appeal and formally moved to 

reinstate the case, and the motion was granted by the court. 

3 Husband has not filed an answering brief, which can be construed 

as a confession of error; in our discretion, we choose to address the merits 

of the appeal. See Thompson v. Thompson, 217 Ariz. 524, 526, ¶ 6, 176 P.3d 

722, 724 (App. 2008) (stating this court can regard failure to file an 

answering brief as confession of error). 

4 We cite the current version of all applicable statutes unless revisions 

material to this decision have occurred since the events in question. 
MARTINEZ v. ILEM 

Decision of the Court 

4

exclusive).

5 We review the trial court’s determination of motion to reinstate 

or to set aside under Rule 60(c) or Rule 85(C) for abuse of discretion. 

Johnson, 192 Ariz. at 488–89, ¶ 9, 967 P.2d at 1024–25. The court acts within 

its allowable discretion if it does not act arbitrarily or inequitably, nor make 

decisions unsupported by facts or sound legal policy. Id. at 489, ¶ 9, 967 

P.2d at 1025. 

¶5 The trial court has broad discretion in deciding a motion to 

set aside a prior order of dismissal or judgment under Rule 60(c)(6); the goal 

of the rule is to allow the parties and the court to accomplish justice in view 

of totality of circumstances. Rogone v. Correia, 236 Ariz. 43, 48, ¶ 12, 335 P.3d 

1122, 1127 (App. 2014). Although the family court did not specify its 

reasoning behind the decision to grant Husband’s motion to reconsider and 

to reinstate the case, in its earlier order the court reasoned that “there are 

substantial issues of material fact [which justify] denying [Respondent]’s 

Motion for Summary Judgment.” We review the order to reinstate for 

abuse of discretion and, on this record, find none. 

¶6 As previously noted, Wife’s motion to dismiss was, by 

operation of law, converted to one for summary judgment. Summary 

judgment should not be granted if there is a genuine dispute as to any 

material fact or if the movant is not entitled to judgment as matter of law. 

Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 311, 802 P.2d 1000, 

1010 (1990). 

¶7 In the proceedings below, the parties focused their arguments 

on whether a marriage license had been issued and whether their marriage 

was valid under California law when a marriage license could not be 

produced. “Marriages valid by the laws of the place where contracted are 

 

5 Rule 85(C) is the family law equivalent of Arizona Rule of Civil 

Procedure 60(c). Ariz. R. Fam. Law P. 85, comm. cmt; Ariz. R. Fam. Law P. 

1, comm. cmt. As such, we look to the case law interpreting and applying 

Rule 60(c) in evaluating the family court’s application of Rule 85(C).
MARTINEZ v. ILEM 

Decision of the Court 

5

valid in this state.”6 A.R.S. § 25-112(A) (1992);7 accord Cook v. Cook, 209 Ariz. 

487, 489, ¶ 8, 104 P.3d 857, 859 (App. 2005). “Marriages solemnized in 

another state or country by parties intending at the time to reside in this 

state shall have the same legal consequences and effect as if solemnized in 

this state.” A.R.S. § 25-112(B) (1992);8 accord Donlann v. Macgurn, 203 Ariz. 

380, 384, ¶ 19, 55 P.3d 74, 78 (App. 2002). 

¶8 Here, the entire wedding ceremony occurred in California 

and the couple did not move to Arizona until eight years later. 

Accordingly, California law controls the resolution of marriage validity in 

this case. 

¶9 Sections 300 and 306 in part 1 of division 3 of the California 

Family Code list five requirements for a valid marriage in California: First, 

the couple must consent to be married; second, the couple must obtain a 

marriage license from the county clerk, as well as a certificate of registry as 

the license and the certificate are combined into one form; third, a person 

 

6 If a marriage is found invalid, a party who believes the marriage was 

entered in good faith may be entitled to relief under the putative spouse 

doctrine or other equitable doctrines. See Stevens v. Anderson, 75 Ariz. 331, 

335, 256 P.2d 712, 714 (1953) (recognizing the right of an innocent party who 

believes there was a good faith marriage may be entitled to recover 

proportionate share of the property accumulated during the relationship); 

see also, Cal. Fam. Code § 2251 (1994) (continuing, without substantive 

change, the first three sentences of Cal. Civ. Code § 4452 (1983) that codified 

the putative spouse doctrine); Estate of DePasse, 118 Cal. Rptr. 2d 143, 155 

(Cal. Ct. App. 2002) (noting that Cal. Fam. Code § 2251 codifies the putative 

spouse doctrine, and directing the court to treat property acquired during 

the relationship as community property), disapproved on other grounds by 

Ceja v. Rudolph & Sletten, Inc., 302 P.3d 211, 219 (Cal. 2013). 

7 We cite to the 1992 version of the statute, as the statute was amended 

in 1996 to read “[m]arriages valid by the laws of the place where contracted 

are valid in this state, except marriages that are void and prohibited by 

§ 25–101.” See 1996 Ariz. Sess. Laws, ch. 348 § 2. The circumstances 

identified in § 25-101 for void marriages do not apply in this case. 

8 We similarly cite to the 1992 version, as this statute was similarly 

amended in 1996 to exclude the statute’s application to marriages 

prohibited by § 25-101. See 1996 Ariz. Sess. Laws, ch. 348 § 2. 
MARTINEZ v. ILEM 

Decision of the Court 

6

(“the officiant”) must solemnize the marriage and, before solemnizing, the 

officiant must ensure the couple has obtained a marriage license; fourth, the 

officiant must authenticate the marriage by signing the certificate of registry 

and arrange for at least one witness to sign the certificate; and fifth, the 

officiant must return the signed certificate to the county clerk for filing. Cal. 

Fam. Code §§ 300, 306;9 Estate of DePasse, 118 Cal. Rptr. 2d 143, 150, 154–55. 

A license is mandatory for a marriage to be valid; the lack of a valid license 

invalidates the marriage. Estate of DePasse, 118 Cal. Rptr. 2d at 151–52, 154–

55. However, “[n]oncompliance with this part[, part 1,] by a nonparty to 

the marriage does not invalidate the marriage.” Cal. Fam. Code § 306; Estate 

of DePasse, 118 Cal. Rptr. 2d at 155. 

¶10 Here there is a genuine dispute of material fact as to whether 

a marriage license was issued, signed, or filed. Wife stated they filed an 

application for a marriage license, but it was rejected for some error. She 

did not correct the error or resubmit the form because she did not want to 

get married; her decision to proceed with the marriage was the result of 

yielding to the pressure from her father. Husband claims the parties 

learned at some point of time about a “clerical error” concerning the 

marriage certificate eight years after the ceremony when the couple 

contemplated divorce after experiencing marital troubles. Husband 

contends a license was issued and duly signed by the parties, witnesses, 

and the officiant, and he had a copy before it went missing after Wife took 

most of family files with her in January 2014, approximately the same time 

Husband’s petition for dissolution of marriage was filed. Moreover, 

Husband could not acquire a copy from the county clerk because the license 

was apparently not recorded due to the fault of the officiant—a nonparty to 

their marriage. Husband provided an affidavit from the county where they 

applied for a marriage license, documenting that the county purges 

applications for marriage licenses after two years—the normal document 

retention period for such records. Husband also provided an affidavit from 

the officiant who solemnized their marriage, stating he routinely officiates 

marriage ceremonies, was certain that the couple presented him with a 

valid license before the solemnization, that the certificate was signed and 

that he duly authenticated the marriage and sent the certificate to the 

county clerk for filing. The officiant could not explain why the marriage 

certificate was not recorded by the county clerk. 

 

9 Sections 300 and 306 did not become operative until 1994, but they 

continue former California Civil Code Sections 4100 and 4200 without 

substantive change. 23 Cal.L.Rev.Comm. Reports 1 (1993). 
MARTINEZ v. ILEM 

Decision of the Court 

7

¶11 On this record, we find the family court did not abuse its 

discretion or commit any error in denying the motion for summary 

judgment. There is a genuine dispute of material fact regarding the 

marriage license, and assuming the court finds the problem in recording the 

marriage certificate was caused by “nonparty” error, the legal question 

becomes whether the parties’ marriage is otherwise valid and/or 

recognizable under California law and entitled to comity under Arizona 

law. 

CONCLUSION 

¶12 The family court’s order granting motion to reinstate is 

affirmed.