Opinion
1 CA-CV 22-0286 FC
07-13-2023
In re the Marriage of: KENNETH R. HANZUK, Petitioner/Appellee, v. JULIEANN L. HANZUK, Respondent/Appellant.
The Murray Law Offices, Scottsdale By Stanley D. Murray Counsel for Respondent/Appellant Michael J. Shew, LTD., Phoenix By Michael J. Shew Co-Counsel for Petitioner/Appellee Law Office of Louis Lombardo, PC, Chandler By Louis K. Lombardo Co-Counsel for Petitioner/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2012-094262 The Honorable Paula A. Williams, Judge Pro Tempore
The Murray Law Offices, Scottsdale By Stanley D. Murray Counsel for Respondent/Appellant
Michael J. Shew, LTD., Phoenix By Michael J. Shew Co-Counsel for Petitioner/Appellee
Law Office of Louis Lombardo, PC, Chandler By Louis K. Lombardo Co-Counsel for Petitioner/Appellee
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.
MEMORANDUM DECISION
BROWN, JUDGE
¶1 We address whether the superior court erred in rejecting the efforts of Julieann L. Hanzuk ("Wife") to relitigate her dispute with Kenneth R. Hanzuk ("Husband") concerning the disposition of their frozen embryos, which was considered as part of the couple's divorce proceeding in 2014. For reasons that follow, we affirm.
BACKGROUND
¶2 During their marriage the parties used in vitro fertilization ("IVF"), resulting in the births of their twin daughters in 2000. In connection with that process, four frozen embryos were stored at the fertility treatment center ("Center").
¶3 Husband petitioned to dissolve the marriage in 2012, and the parties eventually resolved all disputes except for how to account for the embryos. The parties do not dispute they were informed by the Center that "it is important that disposition of your embryos follows your current wishes," and that the Center knows "you and your partner are in agreement concerning the disposition of your embryos." The Center's consent form advises that signatures of both parties involved in the original IVF consents "are required in order to update our records" and lists the following options: continued storage (with appropriate payment), donation to the Center to assist other couples, donation to the Center for research, or disposal. The form does not address disposition of the embryos if the parties divorce, and nothing in the record suggests the parties agreed to any disposition other than implicitly deciding on continued storage, with Wife paying the storage fees.
¶4 In his pretrial statement, Husband asserted he would not agree to destroy the embryos, but he did not wish to have more children and would therefore prefer to donate the embryos. In her pretrial statement, Wife asserted that if "the embryos are not human life, they must be property" and thus awarded to one party or the other. Wife asked the court to award the embryos to her, in part because she had been paying the monthly storage fee and felt she has "greater claim to them than Father." Wife explained that as a healthy 41-year-old, she could have more children, but "she may never elect to have any of the embryos implanted" because her "economic and employment situation would not lend itself easily to pregnancy or care for a newborn," so she "may simply continue to pay the storage fees indefinitely." Alternatively, Wife asked that two embryos be awarded to each party.
¶5 After a trial, in June 2014 the superior court made its ruling ("June 2014 Ruling"). Noting the lack of pertinent legal authority, the court was persuaded that under Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), the embryos are "neither 'persons' nor property" but fall under "'an interim category which entitles them to special respect because of their potential for human life.'" After explaining the parties' respective positions and noting that Husband "has not insisted upon an immediate disposition of the embryos," the court ordered that the embryos would remain at the Center "subject to a future agreement of the parties regarding their disposition, as currently required by the [Center]." The court found that if Wife wanted to "preserve the prospect of such a future agreement," she would presumably continue paying the storage fees. But if the parties could not reach an agreement, or if she stopped paying the fees, then under Davis, "'the party wishing to avoid procreation should prevail.'"
¶6 The court ordered the parties to submit a decree of dissolution consistent with its June 2014 Ruling. Despite the court's instruction, when the parties submitted their consent decree and property settlement agreement ("Agreement") they failed to include the June 2014 Ruling or even mention the embryos. The court later approved the consent decree, which neither party sought to amend.
¶7 In 2018, the legislature enacted A.R.S. § 25-318.03, which addresses the disposition of embryos in a dissolution proceeding. The statute directs a court to award embryos to a spouse who intends to allow them to develop to birth, even when the court confronts a previous agreement between the spouses about disposition of the embryos. A.R.S. § 25-318.03(A), (B).
¶8 In May 2021, Wife petitioned the superior court for distribution of unallocated property, alleging that neither the consent decree nor the Agreement had distributed the parties' embryos. Wife claimed that rather than equally dividing the embryos as per the Agreement and A.R.S. § 25-318(D), the court had to award her the embryos under § 25-318.03 because she intended to allow them to develop to birth. Husband moved to dismiss her petition, asserting in part that the June 2014 Ruling was the "law of the case." He asked the court to enter an order nunc pro tunc, under Arizona Rule of Family Law Procedure ("Rule") 85(b)(6), amending the decree to incorporate the omitted ruling. Husband also argued that § 25-318.03 does not apply retroactively. After further briefing, the court held a hearing at which counsel presented oral argument and the parties briefly testified.
¶9 The court determined it was the parties' intent to comply with the June 2014 Ruling. Thus, because the parties had inadvertently omitted it from their consent decree, and no contrary evidence was presented, the court amended the consent decree to conform with the June 2014 Ruling. The court also dismissed Wife's petition, concluding it lacked jurisdiction to grant her the relief requested under § 25-318.03 because her petition was not filed "in a proceeding for dissolution of marriage" or any other action described in A.R.S. § 25-318(A).
¶10 Wife then moved for relief from the amended decree under Rule 85(b)(5) &(6), arguing that prospective application of the June 2014 Ruling is no longer equitable and causes extraordinary hardship. The court denied her motion, finding she did not present extraordinary circumstances of hardship, and even if she had, the plain language of the amended decree precluded the relief she sought. The court also reaffirmed that A.R.S. § 25-318.03 was not applicable. Wife timely appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1) & (2).
DISCUSSION
A. Petition for Distribution of Unallocated Property
¶11 Wife contends that because the embryos were not previously distributed by the parties' consent decree, the superior court erred in failing to grant her petition for distribution by applying § 25-318.03 to resolve the stalemate and award the embryos to her as the party who intends to develop them to birth. She also contends the court erred in finding that she could not retroactively avail herself of § 25-318.03, because the relief she sought required prospective application of the statute to the unallocated embryos.
¶12 The parties do not dispute any material facts, and so we review de novo whether the superior court erred in concluding that Wife cannot rely on § 25-318.03 to relitigate disposition of the embryos because of the inadvertent omission of the June 2014 Ruling in the parties' consent decree. See Eans-Snoderly v. Snoderly, 249 Ariz. 552, 555, ¶ 7 (App. 2020).
¶13 Although Wife argues the June 2014 Ruling is irrelevant, we view the ruling and its incorporation into the parties' amended decree as the threshold issue in deciding whether Wife may ultimately seek the relief she requests. A decree of dissolution is a final judgment. Breitbart-Napp v. Napp, 216 Ariz. 74, 80, ¶ 21 (App. 2007). Despite its finality, under Rule 85(a), "[a] court must correct a clerical mistake or a mistake arising from oversight or omission if one is found in a judgment." A judgment contains a clerical mistake when it fails to set forth accurately the court's intended decision. Vincent v. Shanovich, 243 Ariz. 269, 271, ¶ 8 (2017). Here, the superior court ordered the parties to include its June 2014 Ruling-which addressed the sole remaining issue in the dissolution proceeding (distribution of the frozen embryos)-in the final decree. The parties' failure to do so amounted to an "oversight or omission" in the "judgment," and Wife has not shown the court erred by amending the decree to correct this error. Id.; see Ariz. R. Fam. P. 85(a).
¶14 Still, Wife argues the court erred by amending the consent decree because omission of the June 2014 Ruling was an error attributable to Father, who drafted the decree, rather than the court. But the applicability of Rule 85(a) does not depend on who made the mistake. See Crye v. Edwards, 178 Ariz. 327, 329 (App. 1993) (explaining that the "federal counterpart" to Arizona Rule of Civil Procedure 60(a), the civil counterpart to Rule 85(a), "has been interpreted to permit relief from the clerical mistakes of the court, clerk, jury, or party") (citation omitted). Rule 85(a)'s purpose is to ensure accuracy, no matter where the mistake originates. See Egan-Ryan Mech. Co. v. Cardon Meadows Dev. Corp., 169 Ariz. 161, 166 (App. 1990) (explaining that Arizona Rule of Civil Procedure 60(a), the civil counterpart to Rule 85(a), permits the correction of clerical errors "to show what the court actually decided but did not correctly represent in the written judgment").
¶15 Nor do we find persuasive Wife's reliance on In re Marriage of Zale, 193 Ariz. 246, 251-52, ¶ 18 (1999), to support her assertion that amending the consent decree was improper because the June 2014 Ruling was impermissible parol evidence. Zale, unlike the situation before us, did not involve a claim of a clerical error. Id. at 248, ¶ 7. When a court finds it necessary to correct such an error, as in this case, it should "examine the record to determine whether the judgment accurately recorded the court's intent. If not, the judgment should be corrected." Vincent, 243 Ariz. at 271, ¶ 8. Thus, the superior court properly exercised its authority under Rule 85(a) when looking to documents in the record to correct the clerical omission. Given this conclusion, we do not address Wife's arguments that § 25-318.03 applies prospectively and that the embryos should be treated as unallocated property.
B. Rule 85 Motion for Relief
¶16 Wife argues the court also erred in denying her motion for relief from the amended decree. We review the denial of a motion for relief under Rule 85(b) for an abuse of discretion. Quijada v. Quijada, 246 Ariz. 217, 220, ¶ 7 (App. 2019).
1. Rule 85(b)(5)
¶17 A court may relieve a party from a judgment when "applying it prospectively is no longer equitable." See Ariz. R. Fam. Law P. 85(b)(5). Wife contends the prospective application of the order requiring the parties to agree on the disposition of the embryos is no longer equitable because the change of law-the enactment of § 25-318.03-requires a distribution of the embryos and thus affects her substantial rights.
¶18 Wife cites Edsall v. Superior Court in and for Pima Cnty, 143 Ariz. 240, 243 (1984) and Birt v. Birt, 208 Ariz. 546, 550, ¶ 15 (App. 2004) as examples of when judgments have been reopened to account for changes in the law affecting the substantial rights of a litigant. After extensive briefing, the superior court provided a detailed analysis of Edsall to support its denial of Wife's motion. On appeal, Wife maintains the same legal arguments and does not provide any meaningful challenge to the court's analysis.
¶19 In any event, we concur with the superior court's treatment of Edsall, which involved the division of military retirement pay in a divorce action that occurred before Congress changed federal law and explicitly provided that the law was designed to apply retroactively. 143 Ariz. at 241-42. After the law changed, the spouse in Edsall petitioned to re-open her decree for reconsideration of military retirement benefits because the change affected her substantial rights. Id. at 242. Our supreme court held she was entitled to relief because the law was expressly retroactive to when the decree was entered, and the law would give her relief but for the terms included in her decree. Id. at 242-44, 46-47. As to § 25-318.03, however, our supreme court has determined the statute is not retroactive and thus Edsall does not support Wife's position. See Terrell v. Torres, 248 Ariz. 47, 49, ¶ 12 n.1 (2020). Wife has not shown the superior court abused its discretion denying her motion for relief from the amended decree under Rule 85(b)(5).
2. Rule 85(b)(6)
¶20 Similarly, Wife argues she was entitled to relief under Rule 85(b)(6) because the amended decree does not provide a "final, fair and equitable distribution of the embryos," causing her to suffer extraordinary hardship and injustice. Rule 85(b)(6) provides that a party may be granted relief from a judgment if there is a showing of extraordinary hardship or injustice for a reason other than those listed in Rule 85(b)(1) through (5). Edsall, 143 Ariz. at 243. And given the need to ensure the finality of judgments, the reason advanced must be one that justifies relief. Panzino v. City of Phoenix, 196 Ariz. 442, 445, ¶ 6 (2000); Webb v. Erickson, 134 Ariz. 182, 186 (1982).
¶21 Citing Birt, Wife asserts she is suffering extraordinary hardship that justifies relief. The superior court provided legal analysis distinguishing Birt, which Wife does not challenge on appeal. Even so, Birt does not advance Wife's claim of extraordinary hardship. There, a spouse filed bankruptcy shortly after the entry of a decree to avoid allocation of community debts. Birt, 208 Ariz. at 547-48, ¶ 1. Because the prospective application of the decree effectively "destroyed" the way the parties' property was divided, this court vacated those portions of the decree to provide relief to the non-discharged spouse. Id. at 548, ¶ 1. Those circumstances are vastly different from the case before us, and Wife has not shown that continued application of the amended decree has been destroyed by the adoption of § 25-318.03.
¶22 Wife also argues that enforcement of the amended decree is unfair and an unduly burdensome hardship upon her substantial rights in light of § 25-318.03. But Wife fails to recognize the context of the June 2014 Ruling, issued at a time when the legal authority addressing the disposition and legal status of embryos was sparse. Whether a court would have ruled differently today does not mean Wife has established an extraordinary hardship that renders the previous judgment unlawful or unjust. See Int'l Ass'n of Machinists &Aerospace Workers v. Petty, 22 Ariz.App. 539, 541 (1974) (finding that the fact that a "judgment taken may rest upon an erroneous application of substantive law is not, standing alone, a reason for which relief will be granted under [Rule 60(c)]."). "To vacate such a judgment for a mistake of law would be analogous to allowing a collateral attack thereon." Id.
¶23 Finally, even assuming the superior court's handling of the embryo dispute in 2014 was improper, Wife has not explained how she is justified in seeking to revisit the issue seven years later. A motion for relief from a judgment must be filed within a "reasonable time." See Ariz. R. Fam. Law P. 85(c)(1). Wife could have challenged the court's failure to distribute the embryos after it entered the June 2014 Ruling. Similarly, § 25-318.03 was adopted in 2018, and Wife does not explain why an extraordinary hardship exists now, rather than when § 25-318.03 went into effect. Wife offers no justification for these delays, nor does she attempt to show how we can fairly conclude that her motion was filed within a reasonable time. On this record, the superior court did not abuse its discretion in denying Wife's motion for relief under Rule 85(b)(6).
CONCLUSION
¶24 We affirm the superior court's order dismissing Wife's petition for distribution of unallocated property. We also affirm the order denying her Rule 85 motion for relief from the amended decree. Both parties request attorneys' fees under A.R.S. § 25-324, which authorizes a fee award after consideration of the parties' financial resources and the reasonableness of positions taken on appeal. In our discretion, we deny each party's request. As the successful party on appeal, Husband is awarded taxable costs subject to compliance with ARCAP 21.