Opinion
1 CA-CV 23-0031 FC
11-28-2023
In re the Matter of: MARK BENEDICT DEKUTOSKI, Petitioner/Appellant, v. SHAUN ELIZABETH DEKUTOSKI, Respondent/Appellee.
Michael & Casey, Your AZ Lawyer, Phoenix By Sarah J. Michael, Robert I. Casey Counsel for Petitioner/Appellant Warner Angle Hallam Jackson & Formanek, PLC, Phoenix By David N. Horowitz, Chris R. Baniszweski, Yvonne S. Tindell 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. FN2018-003537 The Honorable Glenn A. Allen, Judge
Michael & Casey, Your AZ Lawyer, Phoenix By Sarah J. Michael, Robert I. Casey Counsel for Petitioner/Appellant
Warner Angle Hallam Jackson & Formanek, PLC, Phoenix By David N. Horowitz, Chris R. Baniszweski, Yvonne S. Tindell Counsel for Respondent/Appellee
Presiding Judge D. Steven Williams delivered the Court's decision, in which Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.
MEMORANDUM DECISION
WILLIAMS, JUDGE
¶1 Mark Benedict Dekutoski ("Husband") appeals the superior court's order granting Shaun Elizabeth Dekutoski's ("Wife") motion to alter or amend. For reasons that follow, we affirm in part but remand to allow the court to clarify its order.
FACTUAL AND PROCEDURAL HISTORY
¶2 Husband and Wife divorced in 2019. As part of the divorce, the parties agreed to equally divide future royalties from jointly owned intellectual property ("Medtronic I and II"). Later, Husband invented the Solara device (new intellectual property) for which Wife readily acknowledges "is not and never has been a subject of this divorce," and for which she "has never asserted an interest in."
¶3 In 2020, Wife petitioned the superior court to enforce several provisions of the divorce decree, including the equal division of royalties for Medtronic I and II. Wife asked the court to order Mayo Clinic Ventures to pay her share of the royalties directly to her. Because Husband maintained that any royalties Mayo Clinic Ventures had paid him were royalties for Solara, not for Medtronic I and II, Wife also subpoenaed Mayo Clinic Ventures' records to confirm Husband's representations.
¶4 Following an evidentiary hearing, the superior court found that "all royalty payments discussed at the hearing related to Medtronic I and II . . . and none of the royalty payments referenced the Solara device." The court found Husband in contempt for willfully failing to comply with several provisions of the divorce decree, including "failing to pay [Wife] her [nearly $400,000] portion of the royalty payments, despite having the ability to do so."
¶5 Because the superior court was silent on Wife's request for an order directing Mayo Clinic Ventures to pay future royalties directly to her, Wife moved to alter or amend the judgment under Arizona Rule of Family Law Procedure 83 ("Rule 83"). Husband objected. The court granted Wife's motion, but its amended order directed Mayo Clinic Ventures to pay Wife directly for "royalties associated with any owned intellectual property." (Emphasis added.)
¶6 Without simply asking the court to clarify its order, Husband appealed contending, in part, that "[t]his change in the wording from the 'Medtronic I and II []' to 'any owned intellectual property with Mayo Clinic Ventures' creates confusion." We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(B).
DISCUSSION
I. Superior Court's Jurisdiction to Amend its Order
¶7 Husband first argues the superior court lacked jurisdiction to amend its order enforcing the parties' divorce decree and related agreements. We review jurisdictional arguments de novo. In re Marriage of Crawford, 180 Ariz. 324, 326 (App. 1994).
¶8 Though Husband frames his argument as involving the court depriving him of his separate property (future royalties from the Solara device), whether the court had the authority to rule on Wife's Rule 83 motion is a different issue. The superior court has original jurisdiction to hear and decide all matters in divorce proceedings. Ariz. Const. art. 6, § 14(9); A.R.S. § 25-311(A). And the court exercises continuing jurisdiction to enforce divorce decrees through its equitable powers. Jensen v. Beirne, 241 Ariz. 225, 229, ¶ 14 (App. 2016). The court had jurisdiction to consider and rule on Wife's Rule 83 motion.
II. Wife's Rule 83 Motion
¶9 Husband next argues the superior court erred in granting Wife's Rule 83 motion because Wife "failed to cite the provision of the rule that was the basis for the motion." We review a court's ruling on a motion to alter or amend for an abuse of discretion. Stock v. Stock, 250 Ariz. 352, 354, ¶ 5 (App. 2020).
¶10 The superior court "may on its own or on motion [of a party] alter or amend all or some of its rulings" if at least one ground for doing so exists. Ariz. R. Fam. Law P. 83(a)(1). Wife's Rule 83 motion does not cite to a specific subsection of the rule. Though specificity would aid the court (and the parties), and the lack of specificity could justify denial, the text of Rule 83 does not mandate that a movant cite which subsection relief is sought under.
¶11 Wife argued that uncontested facts provided grounds for amending the divorce decree. Ariz. R. Fam. Law P. 83(a)(1)(G) (identifying "mistakenly overlooked or misapplied uncontested facts . . . which were necessary to the ruling" as one ground which may warrant amending or altering a judgment). More specifically, Wife notified the court it had failed to rule on her request that Mayo Clinic Ventures pay future royalties directly to her. Wife also informed the court that Husband did not object to her request in his pretrial statement.
¶12 Because the record supports an amended order under Rule 83(a)(1)(G), Husband has failed to show the superior court erred.
III. Superior Court's Amended Order
¶13 Husband also argues the superior court's amended order impermissibly changed the nature of his separate intellectual property (the Solara device) to community property when it ordered Mayo Clinic Ventures to pay Wife "royalties associated with any owned intellectual property." (Emphasis added.) We review for an abuse of discretion. See In re Marriage of Priessman, 228 Ariz. 336, 338, ¶ 7 (App. 2011).
¶14 As far as the court and the parties are concerned, the record is clear that Wife's equal share in intellectual property royalties pertains only to Medtronic I and II. And, as stated supra ¶ 2, Wife does not now, nor has she ever, claimed an interest in royalties from the Solara device. However, because there is potential for confusion as far as Mayo Clinic Ventures is concerned, we remand to the superior court to clarify its order that -consistent with its previous orders and the parties' agreement-Mayo Clinic Ventures' direct payments to Wife are limited to royalties from Medtronic I and II.
IV. Attorney's Fees and Costs on Appeal
¶15 Wife asks this court to impose sanctions under Arizona Rule of Civil Appellate Procedure 25. We decline to do so. Wife also requests her attorney's fees and costs under A.R.S. §§ 12-341, -341.01, and 25-324. Having considered the reasonableness of positions taken, including Husband's failure to simply move the superior court to clarify its order (something Wife would not have opposed), as well as the parties' financial resources, in our discretion we award Wife her reasonable attorney's fees and costs on appeal.
CONCLUSION
¶16 We affirm in part but remand to allow the superior court to clarify its amended order.