Summary
In Chavez, the consent decree ordered the parties to sell the marital home and awarded the husband a portion of the equity, but six months after the decree, the husband conveyed the property to the wife in a warranty deed.
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1 CA-CV 22-0499 FC
05-23-2023
In re the Matter of: CHRISTIAN CHAVEZ, Petitioner/Appellant, v. JAIME ANNE DASILVA, Respondent/Appellee.
Timothy J. Rose, Esq., Chandler By Timothy J. Rose Counsel for Petitioner/Appellant Cosmas Onyia, Esq., Phoenix By Cosmas Onyia Counsel for Respondent/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2018-001825 The Honorable Suzanne M. Nicholls, Judge
Timothy J. Rose, Esq., Chandler By Timothy J. Rose Counsel for Petitioner/Appellant
Cosmas Onyia, Esq., Phoenix By Cosmas Onyia Counsel for Respondent/Appellee
Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge David D. Weinzweig joined.
MEMORANDUM DECISION
CAMPBELL, JUDGE
¶1 Christian Chavez (Husband) appeals the family court's dismissal of his petition to enforce the decree dissolving his marriage to Jaime Dasilva (Wife). He also contests the court's award of attorney's fees. For the following reasons, we affirm.
BACKGROUND
¶2 The parties dissolved their marriage through a consent decree. Specific to this appeal, the consent decree orders the sale of the parties' former marital residence (the property) and a division of its equity:
The home and land located at [street address] shall be sold. When the home is sold the equity shall be divided with Wife receiving 70% of the equity and Husband receiving 30% of the equity after the following are paid: mortgage, loans, closing costs and realtor fees.
The consent decree also contains an enforcement provision:
[S]hould legal proceedings commence for purposes of construing or enforcing this Judgment and Decree, the prevailing party in any such action shall recover his or her reasonable attorneys' fees from the other party as part of any judgment or award rendered therein.
¶3 More than two years after entry of the consent decree, Husband petitioned for its enforcement, alleging Wife had "willful[ly] refus[ed]" to sell the property and divide its equity in violation of the family court's "express orders." In response, Wife moved to dismiss the petition for failure to state a claim upon which relief may be granted under Arizona Rule of Family Law Procedure (Rule) 29(a)(6). Attaching to her motion a warranty deed executed by Husband about six months after entry of the consent decree, Wife asserted that Husband misled the family court by failing to disclose that he had "voluntarily conveyed his 30% interest" in the property to her. Given that conveyance and Husband's failure to raise any claim of fraud or mistake, Wife asked the family court to dismiss the petition and award her attorney's fees.
¶4 In response to the motion to dismiss, Husband acknowledged the conveyance. But he explained that he executed the warranty deed to fulfill his obligation under a "verbal," post-dissolution "understanding" reached with Wife over the property: Husband agreed to convey his property interest to Wife and Wife agreed to "buy out" Husband's share of the equity by either refinancing the property or reallocating the parties' retirement accounts. Contrary to Wife's contention, Husband maintained that the conveyance neither divested him of his 30% share in the property's equity nor his right to enforce the consent decree. To support this claim, Husband attached a copy of a deed of trust documenting Wife's refinancing of the property's mortgage on the same date he executed the warranty deed.
¶5 Without confirming or denying Husband's claim of a brokered post-dissolution agreement, Wife countered that Husband's warranty-deed conveyance extinguished his legal interest in the property's equity. Noting Husband produced no evidence documenting the parties' alleged oral contract, Wife invoked the statute of frauds, A.R.S. § 44-101, arguing it precludes the enforcement of any alleged unwritten agreement between the parties concerning the property.
¶6 Upon full briefing, the family court dismissed Husband's petition, finding he failed to allege-indeed, could not allege-"facts sufficient to state a claim regarding the purported verbal agreement between the parties" because the statute of frauds "is not subject to equitable exceptions." The family court also ordered Husband to pay Wife's reasonable attorney's fees and costs.
¶7 After denying Husband's motion to amend, the family court entered a final judgment. Husband timely appealed.
DISCUSSION
I. Dismissal of the Petition for Enforcement
¶8 First, Husband challenges the family court's dismissal of his petition to enforce the consent decree. Because the consent decree expressly requires the sale of the property and the division of its equity, Husband maintains that "none of the communications post decree between the parties is relevant as to whether or not [he] should be granted a hearing on the enforcement" of the decree. In other words, Husband argues that his "enforcement action is limited to the four corners" of the consent decree, precluding the family court from considering the warranty deed and Wife's "statute of frauds argument . . . without a hearing."
¶9 Although Wife moved to dismiss Husband's petition for failure to state a claim for which relief could be granted, both parties submitted materials outside the pleadings for the family court's consideration. When evidence extrinsic to the pleadings is offered and relied on by the family court in making its ruling, we review "the issue as one of summary judgment rather than judgment on the pleadings." Castillo v. Lazo, 241 Ariz. 295, 296-97, ¶ 2 (App. 2016); see also Ariz. R. Fam. Law P. 29(d) ("[I]f matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment[.]"); Canyon del Rio Invs., L.L.C. v. City of Flagstaff, 227 Ariz. 336, 340, ¶ 15 (App. 2011) (explaining the attachment of documents to a motion to dismiss converts the motion to one for summary judgment).
¶10 A family court "must grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Fam. Law P. 79(a). Because Rule 79 is the family law equivalent of Arizona Rule of Civil Procedure 56, we apply de novo review. See Cox v. Ponce, 251 Ariz. 302, 304, ¶ 7 (2021); see also Kline v. Kline, 221 Ariz. 564, 568-69, ¶ 13 (App. 2009) (explaining that law interpreting other statewide rules applies when "the language of the family law rules is substantially the same"); State Comp. Fund v. Yellow Cab Co. of Phx., 197 Ariz. 120, 122, ¶ 5 (App. 1999) (reviewing a superior court's summary judgment ruling de novo). In so doing, we view the facts and the reasonable inferences drawn from those facts in the light most favorable to the non-moving party and affirm "if the evidence produced in support of the defense or claim has so little probative value that no reasonable person could find for its proponent." State Comp. Fund, 197 Ariz. at 122, ¶ 5.
¶11 In this case, a careful examination of the uncontested record reveals no genuine dispute as to any material fact. Without question, in the consent decree, the family court ordered the sale of the property and a division of its equity. But taken together, the warranty deed and the deed of trust show that the parties-not Wife alone-deviated from the consent decree's terms. Whether Husband conveyed his interest in the property to Wife for the consideration of ten dollars, as reflected in the warranty deed, or for an agreed-upon sum consistent with his claim of a negotiated postdecree oral contract, he no longer holds an enforceable legal interest in the property.
¶12 Although Husband alleges that Wife "breached" their post dissolution oral contract, he did not seek to enforce that verbal agreement, nor could he. Under the statute of frauds, "[n]o action shall be brought" about "the sale of real property or an interest therein" unless "the promise or agreement upon which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged." A.R.S. § 44101(6). Because "[t]he statute of frauds is by its terms absolute," Husband may not bring a breach of contract claim based on a verbal agreement about the property. Owens v. M.E. Schepp Ltd. P'ship, 218 Ariz. 222, 225, ¶ 14 (2008). Nor can he unwind the warranty-deed conveyance and recapture his equity interest in the property by bringing an enforcement action. Having knowingly relinquished his legal interest in the property, Husband, as a matter of law, retains no right to enforce the consent decree's property provision.
II. Award of Attorney's Fees
¶13 Next, Husband challenges the family court's award of attorney's fees to Wife. He contends Wife failed to establish a legal basis for an attorney's fees award under A.R.S. § 25-324(B)(1)-(3).
¶14 In her motion to dismiss, Wife requested an award of attorney's fees under A.R.S. §§ 25-324, -415, and Rule 26. Without addressing Wife's request for attorney's fees as a sanction under A.R.S. § 25-415 and Rule 26, the family court ordered Husband to pay Wife's reasonable attorney's fees under A.R.S. § 25-324, finding he "did not act reasonably" by trying to enforce the consent decree's property provision "without a colorable legal basis and while withholding relevant and substantial facts pertaining to his claim."
¶15 We review a family court's ruling on an attorney's fees request under this statute for an abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2014). Section 25-324(A) authorizes an award of attorney's fees upon consideration of both parties' financial resources and the reasonableness of their positions throughout the proceedings. Despite lacking sufficient information to determine whether a disparity of financial resources exists, the family court concluded that Husband's unreasonable conduct and lack of candor justified an attorney's fees award. The record supports the family court's finding. Without question, Husband failed to provide the family court with the most salient information about his former equity interest in the property. Moreover, Husband essentially sought to use the petition to enforce as a mechanism for circumventing the statute of frauds. For these reasons, we conclude the superior court did not abuse its discretion in granting Wife's attorney's fees request.
Having found the family court did not abuse its discretion by ordering Husband to pay Wife's attorney's fees under A.R.S. § 25-324(A), we need not address Husband's contention that the court improperly found Wife was also entitled to an attorney's fees award under A.R.S. § 25-324(B).
CONCLUSION
¶16 For these reasons, we affirm. Both parties request an award of attorneys' fees on appeal under A.R.S. § 25-324. In our discretion, we award Wife her reasonable attorney's fees and taxable costs upon compliance with ARCAP 21.