Opinion
No. 1 CA-CV 19-0407 FC
06-23-2020
In Re the Matter of: SHERRY MARKEY, Petitioner/Appellee, v. JAMES MARKEY, Respondent/Appellant.
COUNSEL Law Office of Daniel DeRienzo PLLC, Prescott Valley By Daniel J. DeRienzo Counsel for Petitioner/Appellee Al Arpad Esq., Phoenix By Alexander R. Arpad Counsel for Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. P1300DO201700801 P1300DO201700825
The Honorable John David Napper, Judge
AFFIRMED
COUNSEL
Law Office of Daniel DeRienzo PLLC, Prescott Valley
By Daniel J. DeRienzo
Counsel for Petitioner/Appellee
Al Arpad Esq., Phoenix
By Alexander R. Arpad
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Chief Judge Peter B. Swann joined.
HOWE, Judge:
¶1 James Markey ("Husband") appeals from the decree dissolving his marriage to Sherry Markey ("Wife"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Husband and Wife were married in 1998, and Wife petitioned for dissolution of their marriage in October 2017. Husband and Wife were each represented by counsel during the dissolution proceeding. During a pre-decree settlement conference in July 2018, the parties agreed that each would be awarded their own retirement accounts, "subject to any potential equalization payment at the time of trial."
¶3 At a September 2018 evidentiary hearing, Husband argued, among other things, that part of his retirement accounts were funded by his sole and separate disability payments and that he was entitled to an offset equal to those payments. Husband also suffered from Ankylosing Spondylitis, which he described as a genetic, progressive, deteriorating disease that only gets worse. He added that he also had a traumatic brain injury in three lobes of his brain. Husband additionally testified that he had made a premarital contribution of $27,000 to his 401K and $7,500 to his pension.
¶4 During a February 2019 hearing, the court heard the parties' arguments concerning the division of personal property. At that hearing, the court noted that Husband had removed property from the marital home and that he had no right to do so. The court also stated that Husband's conduct at trial appeared unreasonable because he was making arguments without "any legal basis." The court further stated that if it found Husband's conduct unreasonable, it would "start awarding fees to the other side." The court then encouraged Husband's counsel "to have a conversation with [his] client . . . and see if there isn't a way that this can be
resolved." Nevertheless, the court informed Husband that he need not enter a settlement agreement.
¶5 That afternoon, the parties reached an agreement under Arizona Rule of Family Law Procedure ("Rule") 69. Under the agreement, Wife was to receive $10,000 from the net proceeds from the sale of their marital home and the personal property that remained in the home. The agreement also provided that each party was awarded all personal property in their possession, each party was responsible for payment of their own attorneys' fees and costs, neither party would file motions for enforcement or contempt, and both parties would withdraw all pending motions.
¶6 Both Husband and Wife acknowledged to entering the agreement knowingly, voluntarily, intelligently, and with the advice of their counsel. Both parties also acknowledged that they were neither coerced nor forced to enter the agreement. Husband's counsel then read the agreement into the record and the court accepted the agreement. The court then ruled from the bench, finding that Husband and Wife's retirement accounts were community property and that Husband was entitled to an offset of $1,609. It also found that Wife was required to pay her half of the mortgage and that Husband's disability payments were not sole and separate property. The court then asked Husband if it needed to make any further findings or address any other issues, to which Husband answered "no."
¶7 After trial, the family court entered a Decree of Dissolution of Marriage, which divided the community property and debt and adopted the parties' Rule 69 agreement. Shortly thereafter, Husband moved for reconsideration under Rule 35 and to amend and set aside the decree pursuant to Rules 83(a) and 85(b), alleging that he "was not of sound mind to make any agreement and was not offered his due process rights to a fair trial." The court summarily denied the motions, and Husband timely appealed.
DISCUSSION
¶8 Husband argues that the court abused its discretion and deprived him of due process when it denied his motion to set aside the decree, drafted pursuant to the Rule 69 agreement, because he was not competent to execute the agreement. "We will not disturb the trial court's decision on a motion to set aside a judgment absent an abuse of discretion." Tovrea v. Nolan, 178 Ariz. 485, 490-91 (App. 1993). "The court abuses its
discretion when it makes an error of law in reaching a discretionary conclusion or 'when the record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision.'" Michaelson v. Garr, 234 Ariz. 542, 544 ¶ 5 (App. 2014) (quoting Mahar v. Acuna, 230 Ariz. 530, 534 ¶ 14 (App. 2012)). We will affirm the court's factual findings unless they are clearly erroneous. Alvarado v. Thomson, 240 Ariz. 12, 14 ¶ 11 (App. 2016). We review conclusions of law de novo. Id.
¶9 Under Rule 69, "an Agreement between the parties shall be valid and binding if (1) the agreement is in writing and signed by the parties personally or by counsel on a party's behalf, or (2) the terms of the agreement are set forth on the record before a judge, commissioner, judge pro tempore, or court reporter." ARFLP 69(A)(1)-(2). Moreover, "it shall be the burden of the party challenging the validity of the agreement to prove any defect in the agreement." ARFLP 69(B).
¶10 Nothing in the record supports the conclusion that Husband met his burden. The terms of the agreement were set forth in the record before a judge, and both Husband and Wife acknowledged to entering the agreement knowingly, voluntarily, intelligently, and with the advice of their counsel. The evidence also showed that Husband was competent to enter the agreement. During his testimony, he was rational, coherent, and quick to respond to questions. He knew that the trial was about the division of personal property and exhibited understanding that property acquired before marriage is sole and separate property. The family court did not abuse its discretion in declining to set aside the decree, nor did it violate Husband's due process rights in proceeding with trial.
¶11 Husband also argues that the court pressured him to settle the case. The record reflects, however, that Husband had assured the court that he was neither coerced nor forced to enter the agreement. Further, the family court advised Husband that he need not enter a settlement agreement. As such, this argument also is unsupported by the record and fails.
¶12 Husband argues next that the court should have set a hearing on his post-trial motions. But Husband cites no authority suggesting that the court was required to hold a hearing on his motions, and he does not otherwise develop this argument. Accordingly, he has waived the argument, and we need not address it further. See ARCAP 13(a)(6); see also City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 195 ¶ 88 (App.
2008) (appellate court will not address issues or arguments waived by party's failure to develop them adequately).
¶13 Husband contends that the family court made no findings on his argument that his premarital contributions to his retirement accounts were separate property. However, Husband did not object to the lack of this finding in family court. In his post-trial motions, he argued only that he was not of sound mind to make a Rule 69 agreement and was not afforded his due process rights. Husband has waived any alleged error the court might have made in failing to issue a specific finding on this issue. See In re Marriage of Pownall, 197 Ariz. 577, 583 ¶ 27 (App. 2000); see also John C. Lincoln Hosp. and Health Corp. v. Maricopa County, 208 Ariz. 532, 540 ¶ 23 (App. 2004) (noting that a litigant is required "to object to inadequate findings at the trial court level so that the court will have an opportunity to correct them, and failure to do so constitutes waiver").
¶14 Husband argues that the court erred in ordering that Wife pay one-half of the mortgage payments for the period of 11 months. He maintains that he had paid at least 16 months of mortgage payments. Nothing in the record, however, supports this claim.
¶15 Husband highlights his testimony that he paid a $780 bill from a homeowners' association and that Wife withdrew $5,000 from a community bank account, arguing that the family court should have credited him for those payments. But this issue was not in the parties' pretrial statement. Accordingly, we decline to address this argument. See Heidbreder v. Heidbreder, 230 Ariz. 377, 380 ¶ 7 n.1 (App. 2012) ("[T]he pretrial statement controls the subsequent course of litigation . . . ."). Likewise, we need not address Husband's argument, made for the first time on appeal, that the court erred in its attorneys' fees calculation. See Bobrow v. Bobrow, 241 Ariz. 592, 597 ¶ 23 (App. 2017) (applying waiver based on party's failure to raise argument in the trial court).
CONCLUSION
¶16 For the foregoing reasons, we affirm. In our discretion, we decline to award attorneys' fees. As the prevailing party, however, Wife is entitled to costs on appeal upon compliance with Arizona Rule of Civil Procedure 21.