Opinion
1 CA-CV 12-0004
02-12-2013
In re the Matter of: KAREN ANN HOPKINS, Petitioner/Appellee, v. MARK DAVID HOPKINS, Respondent/Appellant.
Jeffrey G. Pollitt P.C. by Jeffrey G. Pollitt Jennika N. McKusick Attorneys for Petitioner/Appellee Fromm, Smith & Gadow, P.C. by Stephen Roy Smith Attorneys for Respondent/Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28,
Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa
Cause No. FC2009-005182
The Honorable Sam J. Myers
AFFIRMED
Jeffrey G. Pollitt P.C.
by Jeffrey G. Pollitt
Jennika N. McKusick
Attorneys for Petitioner/Appellee
Phoenix Fromm, Smith & Gadow, P.C.
by Stephen Roy Smith
Attorneys for Respondent/Appellant
Phoenix PORTLEY, Judge ¶1 Mark David Hopkins ("Husband") appeals the order denying his motion to set aside the property settlement agreement ("PSA") and decree of legal separation. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 After eleven years of marriage, Husband and Karen Ann Hopkins ("Wife") agreed to separate, and entered into a PSA. Their agreement provided that: Husband would pay Wife spousal maintenance of $5000 a month until her death, remarriage, or until November 1, 2023; Wife would get the marital home free of any encumbrance; the parties would pay off the mortgage on the house from retirement or stock assets, then split the remaining retirement and stock assets equally; and Husband would pay half of any college tuition Wife incurred within four years of the PSA, pay indefinitely all of her health insurance premiums, and split all current and future frequent flyer benefits. The PSA also provided that both Husband and Wife agreed that the terms are fair and equitable and entered into without any duress or undue influence. Husband also affirmed that he had the opportunity to be advised by counsel and that he understood the terms of the PSA. ¶3 The PSA was submitted, and the court signed a decree of legal separation. The decree, as submitted, provided that the parties found the terms fair and equitable, and that they entered into the PSA without any duress or undue influence. The decree also provided that the court reviewed the PSA and found it to be fair, equitable, and not unreasonable. ¶4 Approximately one month later, Husband filed a divorce petition but did not mention the decree of legal separation or PSA. Wife unsuccessfully moved to convert the decree of legal separation to a decree of dissolution. ¶5 Husband then sought to set aside the PSA and decree of legal separation. The court held an evidentiary hearing, and concluded that there was no basis under Arizona Rule of Family Law Procedure ("Rule") 85(C)(1), or Arizona Revised Statutes ("A.R.S.") sections 25-317(B) or 25-327(A) (West 2013) to set aside either the PSA or the resulting decree. Husband then filed this appeal.
The decree of legal separation, however, provides that the spousal maintenance is non-modifiable.
Because Husband filed a timely Rule 85(C) motion that was denied, we can consider his appeal as one from a special order after judgment pursuant to A.R.S. § 12-2101(A)(2) (West 2013).
DISCUSSION
¶6 Husband argues that the court abused its discretion by failing to set aside the decree of legal separation under Rule 85(C)(1)(f). We review the denial of a request for relief from judgment for an abuse of discretion. See Birt v. Birt, 208 Ariz. 546, 549, ¶ 9, 96 P.3d 544, 547 (App. 2004). Relief is warranted pursuant to Rule 85(C)(1)(f) "when our systemic commitment to finality of judgments is outweighed by extraordinary circumstances of hardship or injustice[]" or "where the result is harsh, rather than fair and equitable." Id. at 551, ¶ 22, 96 P.3d at 549 (quoting Panzino v. City of Phoenix, 196 Ariz. 442, 445, ¶ 6, 999 P.2d 198, 201 (2000)) (internal quotation marks omitted).
Rule 85(C)(1)(f) is based on Arizona Rule of Civil Procedure 60(c). See Ariz. R. Fam. L.P. 85 cmt. "Whenever the language in [the Arizona Rules of Family Procedure] is substantially the same as the language in other statewide rules, the case law interpreting that language will apply to these rules." Ariz. R. Fam. L.P. 1 cmt. Accordingly, we apply case law analyzing Arizona Rule of Civil Procedure 60(c).
A
¶7 Husband argues that the property allocation in the PSA and decree of legal separation is not equitable and unfairly benefits Wife. Although the terms of the PSA and resulting decree give Wife more than an equal share of some community assets and benefits, the testimony at the evidentiary hearing supports the court's determination not to set aside the PSA or resulting decree. Husband testified that he proposed many of these terms and agreed to the entire PSA because he wanted to save the marriage, show Wife he had changed, and get Wife to agree to a legal separation instead of a divorce. He offered to give Wife the house and pay off the mortgage without seeking any financial benefit in exchange even though Wife had offered to refinance the house and take over paying the mortgage. She also proposed that Husband only pay forty percent of any college tuition she incurred in the next four years and share his frequent flier benefits with the children. He, however, agreed to pay fifty percent of her college tuition and share his current and future frequent flier benefits with her. ¶8 Husband also argues that the spousal maintenance terms are inequitable because he agreed to pay Wife maintenance for a period that is two years longer than the marriage. He testified that at the time the parties entered into the PSA he wanted to support Wife for the rest of her life. Wife, however, initially sought spousal maintenance for six years, but later proposed maintenance until the youngest child turned eighteen. Wife's former attorney testified, without contradiction, that they suggested that Husband pay spousal maintenance for thirteen years (the date the youngest child turns eighteen) because she understood the parties wanted to ensure that Wife did not have to work outside of the home while raising the children. ¶9 Husband also argues that he was emotionally distraught when he signed the PSA. The court, however, heard testimony that he had proposed settlement terms that were more favorable to Wife after receiving her initial settlement offer. He also had time to consult with an attorney and did so before the settlement meeting. Not only did he propose many of the terms he now claims are unfair, he admitted that he knew the PSA was legally binding when he signed it and that he agreed to all its terms. The evidence, as a result, belies Husband's argument on appeal that he agreed to the settlement in the midst of an emotional breakdown. Consequently, we cannot conclude that the court erred by denying his Rule 85 motion.
Husband also argues that the ruling violated A.R.S. §§ 25-317(B) and 25-327(A). Section 25-317(B) requires the court to initially determine the PSA and decree of legal separation are fair and equitable. Section 25-327(A) authorizes a petition for modification if there is a reason to reopen the judgment. Those statutory sections do not provide an avenue for relief from a final decree where the court initially determined that the PSA and decree of legal separation were fair and equitable.
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B
¶10 Husband argues that the court gave no reasons to support its conclusion that the decree and PSA were fair and equitable. The parties, however, did not request findings of fact and conclusions of law pursuant to Rule 82(A) . The court was, as a result, not required to provide findings of fact or conclusions of law. As a result, we presume that the court found every fact necessary to support and sustain the judgment "if any reasonable construction of the evidence justifies it." Berryhill v. Moore, 180 Ariz. 77, 82, 881 P.2d 1182, 1187 (App. 1994). ¶11 Contrary to Husband's allegations, the court complied with Sharp v. Sharp, 179 Ariz. 205, 210-11, 877 P.2d 304, 309-10 (App. 1994), by finding that the agreement was fair and equitable under the circumstances. Husband proposed most of the terms he now claims are inequitable. He did not dispute that he had valid, non-financial reasons for offering Wife more than her share of some community assets. He also has adequate financial resources to comply with the terms of the PSA and decree. ¶12 Husband suggests that he only agreed to these terms because Wife intended to work on reconciling. Even if we assume for the sake of argument that Wife's conduct constituted misrepresentation or fraud, Husband's request for relief based on fraud or misrepresentation was untimely. See Rule 85(C)(2) (request for relief from judgment based on fraud or misrepresentation must be filed within six months from the judgment). Moreover, he did not present any evidence to support his allegation that Wife misrepresented her intent to reconcile within a month of the decree of legal separation.
C
¶13 Husband contends that the PSA must provide financially equal benefits to both parties in order to comply with A.R.S. § 25-317(B) and (D). We disagree. ¶14 Neither statutory provision requires the court to determine that a property settlement agreement provides equal financial benefits to both parties for it to constitute a fair and equitable agreement. "Equitable means just that — it is a concept of fairness dependent upon the facts of particular cases." Toth v. Toth, 190 Ariz. 218, 221, 946 P.2d 900, 903 (1997) (internal quotation marks omitted). And, A.R.S. § 25-317(B) provides that the court shall consider the "economic circumstances of the parties and any other relevant evidence produced by the parties" pertaining to fairness. (Emphasis added.) Consequently, the court only needed to determine that the PSA was fair and equitable, and was entitled to consider both the economic circumstances and other factors presented by the parties. ¶15 Husband struck a bargain he believed to be fair and equitable given the parties' desires and objectives at the time of the settlement. His motion for relief provided no grounds for undoing the bargain he willingly made, but later regretted. Consequently, we find no abuse of discretion and affirm the order denying his Rule 85 motion.
D
¶16 Wife requests her attorneys' fees on appeal pursuant to A.R.S. § 25-324 (West 2013) because Husband was unreasonable on appeal and because of the disparity of their financial resources. Based on the disparity of income of the parties, we will award Wife a reasonable sum for her attorneys' fees on appeal upon her compliance with ARCAP 21. We also award Wife her appellate costs as the successful party pursuant to A.R.S. § 12-342(A) (West 2013), upon compliance with ARCAP 21.
CONCLUSION
¶17 We affirm the order denying Husband relief from the PSA and the decree of legal separation.
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MAURICE PORTLEY, Judge
CONCURRING: ________________
MARGARET H. DOWNIE, Presiding Judge
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PHILIP HALL, Judge