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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

D IVISION O NE

In re the Matter of:

BEATRICE VALENCIA
, P etitioner/Appellee
,

v.

SHAD PARIS GARCIA
, Respondent/Appellant

.

N o . 1 CA

- CV 21

- 0 643 FC

Appeal from the Superior Court in Maricopa County

No. FC 2020

- 071518 The Honorable Joseph Kiefer
, Judge

AFFIRMED

COUNSE L

Beatrice Valencia
, El Mirage Petitioner/Appellee

R.J. Peters & Associates, P.C.
, Phoenix By Lowen C. Jones C ounsel for Respondent/Appellant FILED 12-6-2022VALENCIA v. GARCIA Decision of the Court

2 MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision , in which Presiding Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E , Judge:

¶1 Shad Paris Garcia (“Husband”) appeals from the superior court’s dissolution decree

. He argues that the superior court improperly classified his personal property as “community assets.” We disagree and affirm the judgment

.

FACTS AND PROCEDURAL BACKGROUND

¶2 The superior court found that Husband began serving a
ten

- year prison sentence in 2014. While Husband was in prison, Beatrice Valencia (“Wife”) live d in the marital residence until Husband’s father told Wife she needed to either start paying rent or leave. B eing unable to afford the rent, Wife move d out.
¶3 Wife claimed Husband’s father told her she could take anything she wanted from the home. Wife also claimed she told Husband she was moving out and that he mentioned nothing about preserv ing the property within the home. Husband maintained that Wife did not tell him she was moving out until after she left.

¶4 When Wife moved from the home, she placed many of the home’s items in a storage unit. Wife asserted that Husband was aware she transferr ed the property in to a storage unit and “ never made efforts to obtain the property. ” Wife only paid the storage fees for a few months but left the items in storage indefinitely. Wife thought the storage facility took the property or auctioned off the items. Wife claimed she did not receive profits from the property.

¶5 In the parties’ joint pretrial statement, Husband alleged Wife took items from the home that were his “sole and separate property.” Husband requested that the items be returned or that he be reimbursed. Wife maintained that she did not have “any of Husband’s personal property.” At the trial, Husband assessed the items he left in the home withVALENCIA v. GARCIA Decision of the Court

3 approximate value s and identified whether each item was acquired before or after the marriage.

¶6 The superior court entered a dissolution decree. The court

awa rded Husband the marital residence as his sole and separate property. The court found Husband “failed to provide any supporting information for his claims” that he acquired the personal property inside the home before marriage . The court alternatively foun d that if Husband acquired the property before marriage, Husband and Wife “used the personal property in the home in support of the community” such that most of the items, excluding Husband’s clothes and tools, “became community assets.” The
court classifi ed Husband’s tools and clothes as his “sole and separate property” because Wife did not testify that she used the items.

¶7 The court awarded Wife “the property in her possession from when she initially left the home as her sole and separate property.” The court found Husband “failed to take reasonable steps to secure items” he believed belonged solely to him and “failed to pay his share of the stora ge fees.” Thus, any property value owed to Husband from the items in the storage unit was “offset by [ his ] unpaid share of the cost to store the items.”

¶8 Husband moved for relief from the judgment under Arizona Rule of Family Law Procedure 85 (“Rule 85”), a rguing that the court improperly classified the property within the home as community property. Denying the motion, the court explained Husband “failed to produce any actual invoices or receipts but only a self

- made list and his own testimony regarding cer tain personal property items.” The court found Husband’s evidence “unpersuasive .” It reiterated that even if he acquired the property before marriage, Husband and Wife used most of the property “during the marriage such that it was comingled and converted to community property. ”

¶9 Husband appealed the denial of his motion for relief from judgment in O ctober 2021

. This court stayed the appeal until the superior
court filed a signed order , which it did

. ¶10 On February 14, 2022, Husband requested the trial transcript s

. He filed his notice of transcript order with this court on February 28, 2022. In the notice, Father claimed the court reporte r notified him that she would complete the transcript by March 4, 2022. There is no evidence Husband secured the trial transcript as they are not in the record on appeal.

¶11 We have jurisdiction under A.R.S. § 12

- 2101(A)(1).VALENCIA v. GARCIA Decision of the Court

4 DISCUSSION

¶12 Husband argues that this court should reverse the superior court’s denial of his motion for relief from judgment because the court improperly found the home’s assets were com m ingled and community property.
¶13 We review the denial of a Rule 85 motion for an abuse of discretion , and we review interpretations of statutes and rules de novo

. Clark v. Kreamer , 243 Ariz. 272, 275, ¶ 10 (App. 20 17). We view the facts “in the light most favorable to sustaining the superior court’s order

. ” Id. We will affirm the superior court’s fact

- finding unless it is clearly erroneous and give “due regard” to the court ’s witness credibility assessments

. See Ari z. R. Fam. Law P. (“ARFLP”) 82(a)(5).

¶14 Property is “separate” if a party acquired it either before the marriage or during the marriage by gift, devise, or descent . A.R.S. § 25

- 213(A). All other property acquired during the marriage is community property unless demonstrated otherwise by clear and convincing evidence. A.R.S. § 25

- 211(A); Sommerfield v. Sommerfield
, 121 Ariz. 575, 57 7 (1979). If community property and separate property are commingled, the property is “presumed to be community proper ty unless the separate property can be explicitly traced.” See Cooper v. Cooper , 130 Ariz. 257, 259 ( 1981) (quoting Porter v. Porter

, 67 Ariz. 273, 281 (1948), overruled on other grounds by Cockrill v. Cockrill , 124 Ariz. 50, 53

– 54 (1979)).

¶15 An appellant mu st include in the record transcripts or other documents necessary to resolve the issues on appeal. ARCAP 11(b), (c); State ex rel. Dep ’ t of Econ. Sec. v. Burton , 205 Ariz. 27, 30, ¶ 16 (App. 2003). “When no transcript is provided on appeal, the reviewing c ourt assumes that the record supports the trial court’s decision.” Kline v. Kline , 221 Ariz. 564, 572, ¶ 33 (App. 2009) (quoting Johnson v. Elson , 192 Ariz. 486, 489, ¶ 11 (App. 1998)). Additionally, as relevant here, an appellant must order transcripts “within 10 days after entry of an order disposing of the last timely remaining motion under Rule 9(e).” ARCAP 11(c)(2). An appellant must also file a notice of transcript order with the court within 15 days of th e same ord er . ARCAP 11(c)(3).

¶16 As noted above, t he trial transcript s are not in the appellate record. Husband allegedly request ed the production of the trial transcripts but asked for them too late. Husband requested the trial transcript on February 14, more than ten days from the superior court’s signed order entered on January 26. Husband filed his notice of transcript order onVALENCIA v. GARCIA Decision of the Court

5 February 28, more than 15 days from the superior court’s January 26 signed order

. Moreover, nothing in the record shows Husband followed up with the court reporter after she failed to provide the transcript. Not only w as Husband’s transcript request and notice untimely, but he failed to obtain the transcripts

. Because we do not have the trial transcript s , we must assume the missing record supports the superior court’s findings. See Kline
, 221 Ariz. at 572, ¶ 33.

¶17 Husband contends he “presented testimony evidence as to multiple pieces of his separate property

. ” No evidentiary record supports Husband’s assertion. See ARCAP 13(a)(7) ( An appellant must support reasons for each issue with “appropriate reference s to the portions of the record on which the appellant relies .”)

. Husband also claims that he “provided an inventory . . . of his sole and separate property.” But the superior court f ound the list lacking because Husband fail ed to support it with invoices or receipts to show when he purchased the property

. Rather,
next to each listed item , Husband merely flagged whether the property was acquired before or during the marriage and how much he believed each item was worth. T he superior court did not err by finding Husband failed to provide enough evidence that the items
, other than his clothes and tools
, were his sep arate property.
¶18 Husband also argues on appeal that Wife lied throughout her testimony

. Because Husband did not include the trial transcript s in the appellate record
, and we defer to the superior court’s witness credibility assessments, we cannot say the su perior court erred by rejecting Husband’s separate property claims. See Kline , 221 Ariz. at 572, ¶ 33; see also ARFLP 82(a)(5).

¶19 Husband objects to the superior court’s alternate conclusion that the personal property was commingled

. Husband is correct that

“ [c] ommingling can transmute financial accounts but not tangible assets.” Brucklier v. Brucklier
, 253 Ariz. 579
, 584 , ¶ 21 (App. 2022). But we will not

reverse this alternate holding because Husband failed to prove the property

was separate

. W e cannot meaningfully review the superior court’s analysis without a trial record

. Because Husband did not provide record evidence to support his arguments, we conclude the superior court did not abuse its discretion by denying his motion for relief from t he judgment.

ATTORNEY’S FEES

¶20 Husband requests attorney’s fees under A.R.S. § 25

- 324. Per our discretion, w e deny th e request.VALENCIA v. GARCIA Decision of the Court

6 CONCLUSION

¶21 We affirm the judgment

.