Procedure and Evidence Flashcards
What is the sham affidavit doctrine?
Sham affidavit doctrine – an affidavit that contradicts the party’s prior sworn testimony. The doctrine does not apply if the affiant was confused at the deposition and the affidavit helps explain the confusion or if the affiant lacked access to material facts and the affidavit sets for the newly discovered evidence.
Is TC bound to accept un-contradicted, uncorroborated testimony?
Nope.
Rule 69 Agreements - Go!
a. Validity. An agreement between the parties is valid and binding if:
i. In writing and signed by the parties personally or by counsel on a party’s behalf.
ii. The agreement’s terms are stated on the record before a judge, commissioner, judge pro tempore or certified reporter; or
iii. The agreement’s terms are stated in an audio recording made before a mediator or a settlement conference officer appointed by the court
b. Court approval
i. Not binding until submitted to and approved by the court as provided by law.
c. Challenge to validity
i. An agreement under section (a) is presumed valid, and a party who challenges the validity of an agreement has the burden to prove any defect. Under ARS 25-324, Court may award a party the costs and expenses of maintaining or defending a challenge to the validity of an agreement that was made in accordance with this rule.
Can you cite to unpublished cases?
Supreme Court Rule 111(c)(1)(C) which allows a memorandum decision to be cited for persuasive value, so long as there is not a published case on point, and the case is 2015 or later. You cannot do this if depublished case or portion of case. Other reasons you can cite is for claim and issue preclusion or law of the case.
What are separation agreements (25-317)?
a. To promote amicable settlement of disputes between parties to a marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support, custody, and parenting time. That agreement may provide that its maintenance terms shall not be modified.
b. Except for child related terms, the terms of the separation agreement are biding on the court unless it finds, after considering the economic circumstance of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unfair.
c. If the court determines that the separation agreement is unfair as to property or maintenance, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property or maintenance.
d. If fair, the court shall incorporate by reference or set forth the terms in the decree unless the parties agree not to incorporate, then the separation agreement shall be identified.
e. Terms of the agreement set forth or incorporated by agreement in the decree are enforceable by all remedies available for enforcement of a judgement, including contempt.
f. Except for maintenance and all child issues, entry of the decree shall preclude the modification of the terms of the decree and the PSA set forth or incorporated by reference.
g. The court will loose jurisdiction if SM is non-modifiable.
Are Rule 69 Agreements presumed valid?
Yes but Court must still independently assess the fairness of the agreement
If the parties dispute a basic, but not material term of a separation agreement, is it then unenforceable because there was lack of mutual assent?
No. they must assent to all material terms, but need not work out all basic terms of the agreement.
Is mutual assent measured by an objective or subjective standard?
mutual assent is ascertained from objective evidence, not from hidden intent of the parties.
Email “signatures” by lawyers, is it binding agreement under Rule 69?
Yes. the agreement is valid under ARFLP Rule 69 if in writing and signed by both parties or counsel. ARS 44-7007 states a record and signature in electronic form cannot be denied legal effect and applies to any transaction relating to government affairs. Court is a government affair. Murray v. Murray (2016).
What does 25-301 for annulments say?
25-101 Void and prohibited marriages
a. A marriage between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the one-half as well as the whole blood, and between uncles and nieces, aunts and nephews and between first cousin is prohibited and void.
b. Notwithstanding subsection A, first cousins may marry if both are 65 years old or older or if one is unable to reproduce.
See Hammett v. Hammett – polygamous marriage was presumed by TC to be void, but the legislature has never decided this so, it really is an unknow whether it would be considered a “void” marriage. (versus voidable??? IDK)
What constitutes a valid annulment for “fraud”?
Wisniewski v. Dolecka (May 2021)
a. Facts-H PFA alleged “wife defrauded him into marriage for sole reason of receiving legal residency status.”
b. Trial court annulled (fraud claim – she married him to obtain US legal status). Wife filed Rule 83 (Mtn to Alter/Amend) and TC denied.
c. TC applied preponderance of evidence std.
d. COA reversed and remanded, and said it had to be clear and convincing evidence, citing State v. Renforth (1987) “substantial interests at stake require an extra measure of confidence by fact finder
i. The fact that H failed to plead with particularity the fraud claim was not an “unfair surprise” to W.
ii. There is a “very powerful” public policy favoring marriage
2. BL (bottom line) – to void a marriage for fraud, clear and convincing standard applies.
