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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                PAMELA J. LAYLAND, Petitioner/Appellee,

                                        v.

                 NEIL E. LAYLAND, Respondent/Appellant.

                           No. 1 CA-CV 15-0853 FC
                                FILED 1-26-2017


           Appeal from the Superior Court in Maricopa County
                          No. FN2014-052316
              The Honorable Jennifer Ryan-Touhill, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Law Offices of March & March, Scottsdale
By Robert A. March
Counsel for Petitioner/Appellee

Neil E. Layland, Happy Jack
Respondent/Appellant
                         LAYLAND v. LAYLAND
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the Court, in
which Judge Patricia A. Orozco (retired) and Chief Judge Michael J. Brown
joined.


S W A N N, Judge:

¶1            Neil E. Layland (“Husband”) appeals the denial of his motion
to reconsider the family court’s granting of Pamela J. Layland’s (“Wife”)
motion to reconsider the dissolution decree. For the following reasons, we
vacate the family court’s order granting mother’s motion to reconsider and
the order denying Husband’s motion to reconsider that order, and remand.

                FACTS AND PROCEDURAL HISTORY

¶2             After almost 27 years of marriage, Wife petitioned for
dissolution in 2014. In the joint pretrial statement, Wife listed an American
General Life Annuity IRA account valued at $30,293 as community
property and stated she had a premarital Putnam account with a premarital
balance of $18,132.04. Wife also requested the family court order Husband
to obtain a life insurance policy naming Wife as a beneficiary to secure
Wife’s interest in Husband’s Public Safety Personnel Retirement System
Account because dissolution would preclude Wife from receiving survivor
benefits in the event of Husband’s death.

¶3           At trial, Wife testified that she rolled the premarital Putnam
account balance into certificates of deposit at another bank then, upon
maturity, put the funds into another bank, which American General
eventually bought.

¶4            The family court dissolved the parties’ marriage and declined
to award “any unspecified ‘Putnam’ account to Wife as her separate
property” because the court had “no explanation” for the differing account
values for the Putnam account and the American General account. The
family court’s decree did not address Wife’s request for life insurance.

¶5           Wife moved for reconsideration, arguing the premarital
Putnam account value increased “with additional dividend reinvestments
and increases in value to the accounts for the 27 years from 1987 to 2015” to
the “amount now held by Wife in the American General Life Annuity.” In


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                         LAYLAND v. LAYLAND
                          Decision of the Court

the same motion, Wife also requested a further ruling on the life insurance
issue that the family court had not addressed in the decree.

¶6             Without directing Husband to respond, the family court
granted Wife’s motion, awarding Wife the American General Life Annuity
as her sole and separate property and ordering Husband to maintain a life
insurance policy naming Wife as beneficiary. Husband filed a motion to
vacate or, alternatively, reconsider the revised order, which the family court
denied.

                               DISCUSSION

¶7            We review the family court’s denial of Husband’s motion for
reconsideration for abuse of discretion. Tilley v. Delci, 220 Ariz. 233, 238,
¶ 16 (App. 2009). Even if the family court erred, we will affirm if the error
was harmless. See Ariz. R. Fam. Law P. (“Rule”) 86 (stating that no error in
any ruling or order is ground for modifying an order “unless refusal to take
such action appears to the court inconsistent with substantial justice”).

¶8            Husband argues the family court erred in granting Wife’s
motion without providing Husband the opportunity to respond, in
violation of Rule 84(B). We agree. Rule 84(B) reads in relevant part: “All
such motions [for reconsideration or clarification] shall be submitted
without oral argument and without response or reply unless the court
otherwise directs. No such motion shall be granted, however, without the
court providing an opportunity for written response.” By granting Wife’s
motion without directing Husband to submit a response, the court
committed clear error.

¶9             The error was not harmless, because it denied Husband a
fundamental due-process right.1 Each party has a fundamental right to be
heard “at a meaningful time and in a meaningful manner.” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545,
552 (1965)). “[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.” Morrissey v. Brewer, 408
U.S. 471, 481 (1972). Under Rule 84, the family court may deny motions that
are facially meritless without squandering the court’s or the non-moving


1      Though Husband did not raise due process arguments on appeal,
fundamental error — error that takes an essential right from a party — is
not waived by failing to argue it, and we must sua sponte consider it. Salt
River Project Agr. Imp. & Power Dist. v. Westinghouse Elec. Corp., 176 Ariz.
383, 387 (App. 1993).


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                         LAYLAND v. LAYLAND
                          Decision of the Court

party’s time with an unnecessary response. In such cases, the aggrieved
party (the unsuccessful movant) has had an opportunity to be heard and
has been afforded due process. However, when such a motion is granted,
the ruling is inherently adverse to the non-moving party. If the non-moving
party is not provided a full and fair opportunity to reply before a motion for
reconsideration or clarification is granted, that party’s fundamental due
process rights are violated, and the ruling cannot be sustained.2 Because
Husband was not given an opportunity to respond to Wife’s motion, the
family court committed error.3

                               CONCLUSION

¶10          We vacate the family court’s order awarding Wife the value
of the Putnam account and requiring Husband to take out a life insurance
policy as well as the order denying Huband’s request to reconsider the
order and remand for Wife’s motion to be considered after Husband has
had an opportunity to respond. This decision is without prejudice to any
order the family court may enter after appropriate proceedings on remand.
We also deny Wife’s request for attorney’s fees on appeal.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




2      Wife argues that Husband was given an opportunity to be heard
when he filed his motion to vacate the order granting Wife’s motion for
reconsideration. We disagree. The issue is not whether Husband could in
some form make his arguments later; the family court erred in granting
Wife’s motion without first hearing Husband’s argument.

3     Because the family court could not have granted Wife’s motion for
reconsideration, we do not address Wife’s arguments on the merits.


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