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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARTHA CECILIA LUNA, Petitioner/Appellee,

v.

ERNESTO LUNA PEINADO, Respondent/Appellant.

No. 1 CA-CV 23-0634 FC

Appeal from the Superior Court in Maricopa County

No. FN2019-005470

The Honorable Michelle Carson, Judge

VACATED AND REMANDED

COUNSEL

Martha Cecilia Luna, Phoenix

Petitioner/Appellee

Law Office of Joseph T. Stewart, PLLC, Phoenix

By Joseph T. Stewart

Counsel for Respondent/Appellant

FILED 5-16-2024
LUNA v. PEINADO

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which 

Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.

M c M U R D I E, Judge:

¶1 Ernesto Peinado (“Husband”) appeals the Decree dissolving 

his marriage to Martha Luna (“Wife”) and the order denying his motion to 

alter or amend the judgment. Husband claims that the court abused its 

discretion when entering its findings about his income and ability to pay 

spousal maintenance, and awarding Wife $2,000 in monthly spousal 

maintenance. He also claims that the court erred by entering an inequitable 

property division and ordering an equalization payment in an amount he 

cannot pay. The claims appear meritorious, and Wife’s failure to file an 

answering brief on a debatable issue is a confession of error. Thus, we 

vacate the dissolution decree and remand for an evidentiary hearing on the 

petition.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Wife married in 1992. They have no minor 

children. In 2019, Wife petitioned to dissolve the marriage. Wife sought 

spousal maintenance and her share of the community interest in an oyster 

farm in Mexico and requested that the community’s Mexican properties “be 

sold and equally divided.” Wife offered to waive her interest in Husband’s 

trucking business in exchange for spousal maintenance.

¶3 Husband opposed Wife’s spousal maintenance request. He 

agreed that Wife could have the marital residence. He asserted that one of 

the properties he owned in Mexico was an “ejido,” meaning the property 

was “various pieces of vacant land with no titles or deeds.” Husband said 

he owned one-third of the “ejido” and asked the court to award Wife half 

of the one-third of the interest. He claimed he owned only a percentage of

one of the other listed properties.

¶4 Husband requested that he be awarded his trucking business 

but claimed it had “no value other than the vehicles.” Finally, Husband 

stated that the oyster farm was a family business in which he owned a 

one-third interest and asked the court to award Wife half of that interest.
LUNA v. PEINADO

Decision of the Court

3

¶5 The court held a trial on the dissolution petition. A Spanish 

interpreter assisted Wife. The court asked Husband if he also needed an 

interpreter. Husband said no. The court asked, “Are you sure?” Husband 

responded, “Yes.”

¶6 Husband testified that he opened the trucking company in 

2014 and described its gross profits and income after expenses. Husband 

also testified that he and Wife began acquiring property in Mexico around 

2015. Neither party presented documentation supporting ownership of

Mexican property. But Husband sought to explain their property interests.

For example, when the court asked Husband about apartments they 

owned, he explained, “We built that because the lot, my father bought it 

under my name, so he gave me, like . . .” He finished his response in 

Spanish, and Wife’s interpreter confirmed that Husband was trying to say 

the apartments were part of Husband’s inheritance.

¶7 When the court asked Husband about the oyster farm, he 

said, “I not own; I’m part. So there be eight members. Family.” He 

explained that the oyster farm was a “concession from the government, so 

it’s not a purchase.” But he also said he invested in the farm. The court 

asked Husband about the oyster farm’s value. He said it was worth $10,000 

at the most and then explained: “The thing there is, I buy some materials to 

grow oyster, but last year or this year, almost all the oyster died, so we have 

to farm, like, raise again. So it’s, like, jeopardy, is like.” Later, Husband said 

he could give Wife half “[o]f whatever be there” at the oyster farm, and 

when the court asked how much that was, he said, “Ten thousand.”

¶8 Husband also testified about the “ejido.” Husband said, “I 

spend $5,000 to buy that membership under that. It’s, like, community, like, 

the proposed is, like, get lands from the government, and it’s, like, 

concession.” Wife’s interpreter clarified that “[t]he word ejido means 

shared land or public land.”

¶9 When the court asked Husband whether there were any other 

properties, Husband said, “There be properties, but they give me, like, 

concession, but I don’t have any title. So it’s, like, on the future, when they 

straight up all the papers, they’re going to give me, like, a title. But could 

be five years, ten years.” Husband clarified he had a commercial property 

as “a concession from the ejido on 2016,” and he did not have a title. The 

court asked about the property’s value, and Husband said, “I’m not being 

able to sell that. . . . under concession, that cost, but I don’t have the papers, 

the right papers to sell, so we have to keep another five years.”
LUNA v. PEINADO

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¶10 At the end of the hearing, Husband requested that Wife keep 

the house, he keep the Mexican properties “where [they] have title,” and 

once they can sell the commercial property in five years, he requested the 

parties split the proceeds equally.

¶11 In May 2023, the superior court entered the dissolution 

decree. The court ordered Husband to pay Wife $2,000 monthly in spousal 

maintenance for 84 months. The court awarded Wife the marital residence.

Husband received the apartments. The court ordered the parties to sell the 

commercial property within 45 days and for Husband and Wife to split the 

equity. It awarded Husband other Mexican properties and the trucking 

company property. The court found the oyster farm interest was worth 

around $20,000 even though the only value evidence was Husband’s 

testimony that it was worth $10,000. Husband received a casita property

and the oyster farm share, but the court ordered him to pay Wife half the 

value of each property interest. The court also allocated the parties’

personal property and debts.

¶12 Finally, the court granted Wife’s request for attorney’s fees 

and costs. It ordered Husband and Wife to brief the fee and cost application.

But the court entered the Decree under Arizona Rule of Family Law 

Procedure (“Rule”) 78(c) and certified that “[n]o further claims or issues 

remain[ed] for the Court to decide.”

¶13 After the briefing, on July 25, the superior court awarded Wife 

$8,000 in attorney’s fees. On August 18, Husband moved to vacate, alter, or 

amend the dissolution decree under Rule 83. See Ariz. R. Fam. Law P. 

83(a)(1) (grounds for altering or amending a judgment). Husband 

challenged the court’s spousal maintenance award and property division.

He claimed the property division was inequitable because he could not 

adequately explain the property interest without an interpreter. The 

superior court denied the motion, finding that because the court entered the 

dissolution decree in May, Husband’s Rule 83 motion was untimely. See 

Ariz. R. Fam. Law P. 83(c)(1) (A Rule 83 motion “must be filed not later than 

25 days after the entry of judgment under Rule 78(b) or (c).”).

¶14 Husband moved for reconsideration and argued the Rule 83 

motion was timely. He claimed that the court improperly certified the 

Decree as a final judgment under Rule 78(c) because the court had not yet 

finalized attorney’s fees. The superior court entered another minute entry 

denying the Rule 83 motion. A few days later, the court denied Husband’s 

motion for reconsideration. Two weeks later, the court entered nunc pro tunc
LUNA v. PEINADO

Decision of the Court

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orders to add Rule 78(c) language to the orders denying Husband’s motion 

as untimely and denying the motion for reconsideration.

¶15 Husband appealed. This court stayed the appeal because the 

inclusion of Rule 78(c) language in the dissolution decree was inaccurate. 

This court revested jurisdiction in the superior court to consider a motion 

for a signed judgment with Rule 78(c) language. The superior court entered 

a nunc pro tunc order to include Rule 78(c) language in the July 2023 

attorney’s fees order. Thus, we have jurisdiction under A.R.S. 

§§ 12-120.21(A)(1), 12-2101(A)(1), and Rule 78(c).

DISCUSSION

¶16 Husband challenges the superior court’s Rule 83 ruling,

property division, and spousal maintenance award. We analyze the issues

through the lens of Wife’s failure to file an answering brief. If an appeal 

raises debatable issues and there appears to be no good cause for the 

appellee’s failure to appear, we “will assume that the failure to file an 

answering brief is a confession of reversible error on the part of the 

appellee.” See Tiller v. Tiller, 98 Ariz. 156, 157 (1965); Stover v. Kesmar, 84 

Ariz. 387, 388 (1958).

¶17 Our courts have not established a definitive test for a

“debatable issue.” But caselaw provides us with examples. Our supreme 

court treated the failure to file an answering brief as a confession of error 

when the opening brief claimed error with supporting authority, and the 

court found it would “require much industry and independent research to 

refute” the appellant’s position. Merrill v. Wheeler, 17 Ariz. 348, 350 (1915).

The court also found a debatable question when there was “at least grave 

doubt” about the superior court’s order. See Adkins v. Adkins, 39 Ariz. 530, 

531-32 (1932). Our courts have also found debatable issues when an appeal 

raised novel legal questions. See, e.g., Childs v. Frederickson, 21 Ariz. 248, 249

(1920); Nelson v. Nelson, 91 Ariz. 215, 218 (1962); Campbell v. Malik, 9 Ariz. 

App. 562, 563 (1969). On the other hand, an issue is not debatable when the 

record “clearly” resolves the question raised. See, e.g., Air East, Inc. v. 

Wheatley, 14 Ariz. App. 290, 294 (1971); Honsey v. Honsey, 126 Ariz. 336, 337 
LUNA v. PEINADO

Decision of the Court

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(App. 1980). And contrary to cases from this court,1 our supreme court has 

never recognized that we may arbitrarily waive a confession of error. See 

Mayberry v. Stambaugh, 1 CA-CV 23-0289 FC, 2024 WL 1282653, at *2, 

¶¶ 9-10 (Ariz. App. Mar. 26, 2024) (Morse, J. specially concurring) (mem. 

decision).

¶18 Applying the supreme court’s test, we discern no good cause 

for Wife’s failure to answer. The record shows that Wife was mailed notice 

of the appeal assignment, the case management statement, the opening 

brief, and the appendix. When this court received no answering brief nor a 

motion to extend the time to file it, we submitted the appeal for a decision. 

See ARCAP 15(a)(2) (“If the appellee does not timely file an answering brief, 

the appellate court may deem the appeal submitted for [a] decision based 

on the opening brief and the record.”). Thus, Wife confessed to error if the 

opening brief raised debatable issues. See Tiller, 98 Ariz. at 157; Stover, 84 

Ariz. at 388. Of course, if it is clear that the superior court did not err, we 

may affirm regardless of the confession of error. See Honsey, 126 Ariz. at 337.

A. The Superior Court Erred by Denying the Rule 83 Motion as 

Untimely.

¶19 Husband argues that the superior court abused its discretion

by denying his Rule 83 motion as untimely. He claims that because the 

superior court did not certify the Decree under Rule 78(b), it was not a final,

appealable judgment, and thus his Rule 83 motion was timely.

¶20 We review an order denying a motion to alter or amend the 

judgment for abuse of discretion. Stock v. Stock, 250 Ariz. 352, 354, ¶ 5 (App. 

1 See, e.g., City of Phoenix v. Schooley, 5 Ariz. App. 149, 150 (1967)

(“[W]here there are debatable issues before this Court, we may assume that 

the failure to file an answering brief is a confession of reversible error.”) 

(Emphasis added.); Ariz. Tank Lines, Inc. v. Ariz. Corp. Comm’n, 13 Ariz. App. 

19, 21 (1970) (“[T]his Court views [the confession of error rule] as a 

permissive rather than a mandatory rule[.]”); Pima County Juv. Action No. 

J-65812-1, 144 Ariz. 428, 429 (App. 1985) (“[W]e may, in our discretion, treat 

the lack of a response as a confession of error.”); Nydam v. Crawford, 181 

Ariz. 101, 101 (App. 1994) (citing Pinal County Juv. Action No. S-389, 151 

Ariz. 564 (App. 1986)) (Failure to file an answering brief could be a 

confession of error.); Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 4, n.3 (App. 

2014) (similar); McDowell Mountain Ranch Cmty. Ass’n, Inc. v. Simons, 216 

Ariz. 266, 269, ¶ 13 (App. 2007) (similar).
LUNA v. PEINADO

Decision of the Court

7

2020). The court abuses its discretion by committing legal errors or issuing 

orders without record support. See Shinn v. Ariz. Bd. of Exec. Clemency, 254 

Ariz. 255, 259, ¶ 13 (2022). We review “questions involving the application 

and interpretation of court rules de novo.” Duckstein v. Wolf, 230 Ariz. 227, 

231, ¶ 8 (App. 2012).

¶21 A Rule 83 motion “must be filed not later than 25 days after 

the entry of judgment under Rule 78(b) or (c).” Ariz. R. Fam. Law P. 83(c)(1).

A Rule 78(c) judgment resolves all claims and issues for every party and 

recites that “no further matters remain pending.” See Ariz. R. Fam. Law P. 

78(c). A Rule 78(b) judgment resolves fewer than all claims but expressly 

determines that “there is no just reason” to delay the appeal of the resolved 

claims. See Ariz. R. Fam. Law P. 78(b). Under the rule, an attorney’s fees 

claim is separate from the action’s merits. Id.

¶22 The court entered the Decree and certified it under Rule 78(c), 

finding that it had no more claims or issues to decide. But the court had not 

yet resolved the attorney’s fees claim. Rather, the court ordered the parties 

to brief the issue and stated it would enter an attorney’s fees judgment after 

reviewing the briefing. Thus, the Decree was not a Rule 78(c) judgment. See 

Ariz. R. Fam. Law P. 83(c)(1); see also Madrid v. Avalon Care Center-Chandler, 

L.L.C., 236 Ariz. 221, 224, ¶ 6 (App. 2014) (Because “not all claims as to all 

parties have been resolved, the judgment is not a Rule 54(c) judgment.”); 

Ghadimi v. Soraya, 230 Ariz. 621, 623, ¶ 10 (App. 2012) (Rule 78 is based on 

Arizona Rule of Civil Procedure 54, and courts should look to its caselaw 

for guidance.).

¶23 The court found that because it entered the Decree in May, the 

Rule 83 motion filed in August was untimely. But the Decree was not a Rule 

78(c) judgment until the court resolved the attorney’s fees claim on July 25.

See Ariz. R. Fam. Law P. 78(c); Madrid, 236 Ariz. at 224, ¶ 6; Hill v. City of 

Phoenix, 193 Ariz. 570, 573, ¶ 15 (1999) (A judgment that fails to include Rule 

54(b) language becomes final and appealable upon entry of the judgment 

disposing of the last pending claim.). Thus, Husband’s Rule 83 motion, filed 

on August 18, was timely. See Ariz. R. Fam. Law P. 83(c)(1). We conclude 

that the superior court erred by denying the motion as untimely. See Shinn, 

254 Ariz. at 259, ¶ 13.

B. We Remand the Case to the Superior Court for an Evidentiary 

Hearing.

¶24 In this case, Husband challenges the superior court’s spousal 

maintenance award and property division, claiming “there was 
LUNA v. PEINADO

Decision of the Court

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misunderstanding as to the value of the marital residence, the equitable 

interest in the Mexico properties and the calculation of [his] income.”

¶25 Husband argues that the court failed to understand that he 

could not sell the commercial property as the superior court ordered. He 

claims he tried to explain at trial that the property was “shared land or 

public land.” Similarly, he notes he was “not artful in his explanation of the 

nature of [his] interest” in the oyster farm, and he cannot comply with the 

court’s order to pay Wife her share because he cannot obtain a lien on the 

property interest.

¶26 In this case, Husband and Wife disputed their property 

interests and the facts underlying Wife’s spousal maintenance claim.

Husband claims he cannot comply with some of the court’s orders, and the 

record did not support the final Decree. It is debatable whether the record 

supports the superior court’s dissolution decree. Wife has confessed error

by not filing an answering brief. See Tiller, 98 Ariz. at 157; Stover, 84 Ariz. at 

388. Based on the record and Wife’s confession, we vacate the Decree and 

attorney’s fee award and remand for an evidentiary hearing on the 

dissolution petition.

CONCLUSION

¶27 We vacate the dissolution decree and attorney’s fee award 

and remand for an evidentiary hearing on the dissolution petition.