Opinion
No. 1 CA-CV 19-0569 FC
05-26-2020
CYNTHIA GAIL KUBASKA, Petitioner/Appellee, v. THOMAS ANDREW KUBASKA, Respondent/Appellant.
COUNSEL The Harrian Law Firm, P.L.C., Glendale By Daniel Riley Counsel for Respondent/Appellant The Shaw Law Group, PLLC, Prescott By Bryan C. Shaw Counsel for Petitioner/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300DO20080321
The Honorable Cele Hancock, Judge
AFFIRMED
COUNSEL The Harrian Law Firm, P.L.C., Glendale
By Daniel Riley
Counsel for Respondent/Appellant The Shaw Law Group, PLLC, Prescott
By Bryan C. Shaw
Counsel for Petitioner/Appellee
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Randall M. Howe and Chief Judge Peter B. Swann joined. THUMMA, Judge:
¶1 Thomas Kubaska (Husband) appeals from the dismissal of his post-dissolution petition filed in 2018. Because Husband's request to enter a Military Dividing Order sought to modify (not enforce) the Decree entered by default in 2008, the petition was untimely. In addition, because the Decree's catch-all provision awarded Cynthia Kubaska (Wife) her pension as separate property, Husband's claim that he was entitled to half of that pension fails. Accordingly, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 The 2008 Decree, entered by default at Wife's request, divided the couple's assets and, as relevant here, awarded Wife "50% of [Husband's] disposable military retirement pay at the time of retirement." Although the Decree did not explicitly mention any other pension or retirement plans, it included a catch-all provision awarding each party "the personal property in his or her possession."
¶3 In January 2018, Husband retired from military service and began receiving retirement benefits from the United States Defense Finance and Accounting Services (DFAS).
¶4 In November 2018, Husband filed a post-decree petition, asserting DFAS was overpaying Wife. More specifically, Husband claimed DFAS was overpaying Wife $534 a month, noting that Wife had been voluntarily paying $534 a month to Husband, which she stopped doing after Husband filed his petition. Husband asked the court to enter a Military Dividing Order (a form of Qualified Domestic Relations Order, or QDRO) to rectify the situation "in accordance with the terms of the Decree." Husband asked that the Military Division Order award "Wife 50% of the community portion of Husband's military retirement benefit, which is the amount she is entitled to pursuant to the Decree." Husband also claimed unjust enrichment for the payments DFAS had allegedly overpaid Wife. In addition, Husband claimed the Decree omitted Wife's pension, to which he claimed a 50 percent interest pursuant to Arizona Revised Statutes (A.R.S.) § 25-318(D) (2020).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
¶5 Wife moved to dismiss, arguing that Husband's petition was untimely and failed to state a claim upon which relief could be granted. See Ariz. R. Fam. L.P. (Rule) 29, 85(c). After briefing and argument, the superior court granted the motion to dismiss. This court has jurisdiction over Husband's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶6 Husband argues the superior court erred in finding his petition was not timely and erred in dismissing his substantive claims. Questions of law, including interpretation of statutes and decrees, are reviewed de novo. Merrill v. Merrill, 230 Ariz. 369, 372 ¶ 7 (App. 2012). I. Because Husband's Petition Sought to Modify, not Enforce, the Decree, It Was Untimely.
¶7 Husband argues that, because he sought to enforce the Decree under Rule 91, the timing requirements of Rule 85 do not apply. The superior court, however, properly found Husband's requested Military Dividing Order sought to modify the Decree, not enforce it.
¶8 The Decree awarded Wife "50% of [Husband's] disposable military retirement pay at the time of retirement." Husband's petition, however, requested entry of a Military Dividing Order that would "award[] Wife 50% of the community portion of Husband's military retirement benefit." (Emphasis added). By seeking entry of the Military Dividing Order, Husband's position is that half of his disposable military retirement pay is a different amount than half of the community portion of Husband's disposable military retirement pay. See A.R.S. § 25-318; Van Loan v. Van Loan, 116 Ariz. 272, 273-74 (1977) (explaining how to calculate a former spouse's community interest in a military pension). Thus, Husband's petition sought to modify, not enforce, the Decree.
¶9 Although Husband claims his request for a Military Dividing Order seeks enforcement of the Decree, entry of such an order would modify the Decree and how it allocated his disposable military retirement benefits. Indeed, the apparent basis for Husband's petition is that DFAS is following the allocation in the Decree and the claimed overpayment is the difference between "50% of [Husband's] disposable military retirement pay" awarded in the Decree and the requested change to "50% of the community portion of Husband's military retirement benefit." Accordingly, Husband's petition sought to modify, not enforce, the Decree, something a court will not do unless such relief is timely under Rule 85(b) and justified on the merits. See Quijada v. Quijada, 246 Ariz. 217, 220 ¶ 6 (App. 2019) (citing cases); see also A.R.S. § 25-327(A).
Husband's argument, raised for the first time in his reply on appeal, that the Decree is ambiguous comes too late. See Nelson v. Rice, 198 Ariz. 563, 567 ¶ 11 n.3 (App. 2000) (appellant waives arguments not raised in opening brief).
Indeed, Husband fails to explain why DFAS would need an additional order, unless it is to modify the Decree. See 10 U.S.C. § 1408(a)(2), (d) (stating court order, such as "a final decree of . . . dissolution" that meets the listed requirements, allows DFAS to make payments).
¶10 Rule 85(b) provides six different categories for potential relief from a decree. Husband's petition could not rely on the first three categories, Rule 85(b)(1), (2) & (3), which required relief to be requested "no more than six months after the entry" of the Decree, Rule 85(c). The other three categories require that relief must be sought "within a reasonable time." Rule 85(c). Husband's petition was filed more than eight years after entry of the Decree and does not allege or show how his petition fits within these other three categories or how his delay was "within a reasonable time."
¶11 In substance, Husband's petition takes issue with how the Decree divided his pension. That issue, however, was resolved in the Decree entered in 2008 and Husband has not shown how, nearly a decade later, he can properly reopen that division of property. On this record, Husband has shown no error in the court dismissing that portion of his petition seeking entry of a Military Dividing Order. Given this resolution, Husband's claim of unjust enrichment also fails.
II. Wife's Pension Was Not Omitted from the Decree.
¶12 Husband argues the court erred in finding that Wife's pension was not an asset omitted from the Decree, given that Wife's Arizona State Retirement System pension was not expressly listed in the Decree. Therefore, Husband claims that Wife's pension is an omitted asset and that he has an undivided one-half interest in her pension.
¶13 A community asset "for which no provision is made in the decree" is "held by the parties as tenants in common, each possessed of an undivided one-half interest." A.R.S. § 25-318(D). This court reviews the Decree de novo to determine whether Wife's pension was an omitted asset. Merrill, 230 Ariz. at 372 ¶ 7.
¶14 In addressing retirement benefits or pension plans, the Decree referenced Exhibit 5, which states that Wife is "to receive 50% of [Husband's] disposable military retirement pay at the time of retirement. [Wife] has the right to become the former spouse for the Survivor Benefits Plan. [Husband] is to notify [Wife] within 30 days of such retirement." The Decree did not mention any other retirement benefits or pension plans. Based on this language in Exhibit 5, Husband argues Wife's pension is an omitted asset.
¶15 The Decree, however, contains a catch-all provision for other unenumerated community property, awarding each party "the personal property in his or her possession." Wife's retirement benefits are personal property held in her possession and therefore fall within this catch-all provision. See A.R.S. § 25-201(2) (defining property as an interest in either real or personal property). Two cases that deal with similar catch-all provisions and omitted assets are instructive. See Rinegar v. Rinegar, 231 Ariz. 85 (App. 2012); In re Estate of Lamparella, 210 Ariz. 246 (App. 2005).
¶16 Rinegar concluded that a catch-all provision for personal property did not allocate otherwise unlisted assets. 231 Ariz. at 89 ¶ 17. That conclusion, however, was based on a decree that failed to mention retirement benefits that were a key component of a three-day trial involving two different judges addressing "complex financial matters several months apart." Id. at 87 ¶ 5, 89 ¶ 17. Here, there was no such failure in the default Decree.
¶17 Lamparella, by contrast, concluded that a catch-all provision for personal property did allocate otherwise unlisted assets. 210 Ariz. at 251 ¶ 28. In Lamparella, as here, the decree was entered by default using "a commercially prepared, pre-printed form." Id. at 248 ¶ 6. Although the decree did not explicitly mention an annuity, it divided specifically enumerated assets and included a catch-all provision allocating all other personal property. Id. at 248 ¶ 5, 250-51 ¶ 24. Upon the husband's death, the former wife argued she was entitled to a portion of the annuity under Section 25-318. Id. at 248 ¶ 8. Lamparella concluded that the catch-all provision included the annuity, because the provision was "[un]ambiguous" and "all encompassing," meaning that the parties "relinquished any claim one of them might have against the other to any of the personal property in the possession of the other without having to specifically identify and describe that property." Id. at 250-51 ¶¶ 24-25.
¶18 As in Lamparella, the Decree here awarded all unspecified community property via a catch-all provision as separate property to the possessor. Applying Lamparella, this provision awarded Wife her pension benefits as separate property. Accordingly, the court did not err by dismissing Husband's petition to divide that property as an omitted asset.
III. Attorneys' Fees and Costs.
¶19 Wife requests her attorneys' fees on appeal pursuant A.R.S. § 25-324. The parties' current financial resources are not known from the record provided and, in exercising this court's discretion, Wife's request for fees is denied. Wife is awarded her costs on appeal, contingent upon her compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶20 The judgment is affirmed.