Opinion
No. 1 CA-CV 14-0178 FC
12-08-2015
In re the Matter of: JERELL DAWN REICHERT, Petitioner/Appellee, v. PHILLIP HOWARD SKIRBOLL, Respondent/Appellant.
COUNSEL Enholm & Salekin Law, PLC, Phoenix By John Bain Counsel for Petitioner/Appellee Keil & Keil Law Office, Glendale By Martin F. Keil, Jr. 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. FN2008-002581
The Honorable Roger E. Brodman, Judge
AFFIRMED IN PART; MODIFIED IN PART
COUNSEL Enholm & Salekin Law, PLC, Phoenix
By John Bain
Counsel for Petitioner/Appellee Keil & Keil Law Office, Glendale
By Martin F. Keil, Jr.
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined. HOWE, Judge:
¶1 Phillip Howard Skirboll ("Husband") appeals the family court's order imposing a ten percent interest rate on the judgment against him accruing from sixty days after entry of the decree of dissolution of marriage and the family court's ruling that he is not entitled to a debt setoff. For the following reasons, we affirm the family court's imposition of the ten percent interest rate on the judgment and its ruling that Husband was not entitled to the debt setoff. We modify the accrual date of the interest on the judgment to the date of entry of the original decree.
FACTS AND PROCEDURAL HISTORY
¶2 In 2008, Jerell Dawn Reichert ("Wife") petitioned for dissolution of marriage without minor children. At an evidentiary hearing on the petition, Husband and Wife testified about their community property, including a $15,400 civil lawsuit settlement from which Husband never provided Wife her half and an outstanding community credit card debt to Bank of America. Additionally, Husband testified that although the family court had ordered him to pay temporary spousal maintenance of $2,000 per month, he had not paid any of it. The family court issued a minute entry addressing division of property and debt and spousal maintenance, and ordered Wife to submit a proposed decree of dissolution of marriage consistent with the minute entry.
¶3 Wife submitted the proposed decree to the family court, and on December 8, 2009, the family court issued a decree of dissolution dissolving Husband and Wife's marriage and providing the same provisions as its previous minute entry. The decree ordered Husband to pay Wife $57,221.52, which included $7,700 for Wife's half of the lawsuit settlement to be paid within sixty days of entry and $20,000 in spousal maintenance arrears. The decree also ordered that each party be responsible for one half of the Bank of America credit card debt, which the family court had determined totaled $30,723.54. The decree ordered Wife to pay her obligation of the debt directly to Bank of America.
¶4 That same week, Husband moved for a new trial regarding spousal maintenance, alleging that Wife had failed to disclose that she had a multi-million dollar interest in a Canadian real estate company. The family court granted the motion, and Wife subsequently withdrew her claim for spousal maintenance. Soon after, Husband moved to amend the decree by removing the $20,000 spousal maintenance award and dismissing all of Wife's claims because of her failure to disclose all of her financial information. The family court amended the decree removing spousal maintenance and awarding Wife the remaining $37,221.52 balance owed. The family court left the remaining provisions of the original decree unaltered. Husband appealed the denial of his motion to amend the decree, but this Court affirmed. See Reichert v. Skirboll, 1 CA-CV 11-050, 2012 WL 3239109 (Ariz. App. Aug. 9, 2012) (mem. decision).
¶5 A year after the family court amended the decree, Wife petitioned to enforce the decree, alleging, as relevant here, that Husband had not paid the $37,221.52, and requested a ten percent interest on that amount but did not specify an accrual date. At an evidentiary hearing on the petition, Husband argued that he was entitled to a setoff for Wife's half of the Bank of America debt and that he had satisfied the decree by sending Wife an uncashed check for the amount of the judgment minus the setoff. Husband admitted, however, that he sent the check with the condition that acceptance constituted Wife's stipulation to that amount as satisfaction of the judgment. Husband also argued that the family court should not impose the ten percent interest rate or that the interest rate should only accrue from the date of the amended decree.
¶6 The family court ordered enforcement of the decree in the amount of $37,221.52 plus a ten percent interest rate as provided by A.R.S. § 44-1201(B) from the date of the amended decree. The family court also noted that Husband had failed to prove entitlement to a setoff because the original and amended decrees required Wife to pay her half of the debt directly to Bank of America. The family court stated that Husband did not provide documentary evidence that he had made payment on her behalf. Husband moved to reconsider several of the family court's orders, including the ruling that he was not entitled to a setoff and that he failed to satisfy the decree. The family court denied Husband's motions.
¶7 Wife too moved for reconsideration, arguing that the family court erred in ordering that interest accrue from the date of the amended decree. Reaching its own decision, the family court ordered that "interest on the $37,221.52 will be at the rate of ten percent and will start on February 6, 2010, which is [sixty] days after the entry of the original Decree." The family court reasoned that because the original decree provided that Husband must pay Wife $7,700 for the lawsuit settlement within sixty days of the entry of the decree but did not provide a payment date for the other amounts, the "most logical interpretation of the [original] decree is to have all payments made within [sixty] days of the entry of the Decree of Dissolution of Marriage."
¶8 Husband moved to reconsider the family court's imposition of ten percent interest rate and the denial of the credit card debt setoff, but the family court denied the motion. Husband timely appealed.
DISCUSSION
¶9 Husband argues that the family court erred by ordering a ten percent interest rate on the judgment accruing from sixty days after entry of the original decree, and by ruling that he was not entitled to an offset for the Bank of America credit card debt.
1. Interest Rate and Accrual Date
¶10 Husband first argues that the family court should have imposed a four and twenty-five hundredths percent interest rate pursuant to A.R.S. § 44-1201(B) as amended in 2011, instead of the ten percent interest rate pursuant to the previous version of the statute. Husband reasons that because the Arizona Supreme Court held in McBride v. Superior Court, 130 Ariz. 193, 194, 635 P.2d 178, 179 (1981) that "when the statute was changed, the legal rate of interest [on the judgment] also changed," he is entitled to the amended rate. Whether the interest rate set forth in A.R.S. § 44-1201(B) as amended in 2011 applies to a 2009 judgment is a legal question that we review de novo. Flood Control Dist. of Maricopa Cty. v. Paloma Inv. Ltd. P'ship, 237 Ariz. 322, 326 ¶ 16, 350 P.3d 826, 830 (App. 2015).
¶11 When the family court entered the original decree in 2009, A.R.S. § 44-1201(A) provided that interest on a judgment "shall be at the rate of ten per cent per annum." As stylistically and substantively amended in 2011, A.R.S. § 44-1201(B) provides that the interest rate must be the lesser of ten percent per annum or "a rate per annum that is equal to one per cent plus the prime rate as published by the board of governors of the federal reserve system in statistical release H.15 or any publication that may supersede it on the date the judgment is entered." As amended, A.R.S. § 44-1201 applies only to "all judgments that are entered on or after the effective date of this act." 2011 Ariz. Sess. Laws, ch. 99, § 17 (1st Reg. Sess.). This language is "a clear indication that A.R.S. § 44-1201(B) does not apply to judgments entered before the effective date of the amendment, July 20, 2011." Flood Control, 237 Ariz. at 327 ¶¶ 20-22, 350 P.3d at 831 (distinguishing McBride because the amendment to A.R.S. § 44-1201 in that case did not include the applicability language included in the enactment of the 2011 amendment). Thus, because the family court entered the original decree on December 8, 2009, the statute as amended does not apply to it and the family court correctly ordered a ten percent interest rate on the judgment, not the four and twenty-five hundredths percent that Husband urges.
The prime rate is published on the Federal Reserve's website. See BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, http://www.federalreserve.gov/releases/h15/data.htm (last visited Dec. 2, 2015). --------
¶12 Husband next argues that the family court erred by ordering that the interest accrue from sixty days after entry of the original decree because the judgment was not final until the date of the amended decree. But in dissolution matters, a decree of dissolution is a final judgment from which interest may accrue if it adjudicates all the claims and liabilities of all the parties, is properly signed and filed, and provides a liquidated sum certain. Ariz. R. Fam. Law P. 78(A), (B), 81; Cockrill v. Cockrill, 139 Ariz. 72, 75, 676 P.2d 1130, 1133 (App. 1983); see also Malecky v. Malecky, 148 Ariz. 121, 122, 713 P.2d 322, 323 (App. 1985) (citation omitted) (stating that "a claim is liquidated if the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness, without reliance upon opinion or discretion.").
¶13 Here, the family court erred not by ordering accrual from the date of the amended decree as Husband argues, but by not ordering accrual from the date of the original decree. The original decree adjudicated all claims, rights, and liabilities of Husband and Wife, including the division of property and debt and spousal maintenance. The family court's amendment removing the spousal maintenance did not change the finality of the original decree, nor did it change Wife's entitlement to interest on the $37,221.52 beginning from entry of the original decree. The family court also properly signed and filed the original decree, making it a final judgment. The original decree ordered a liquidated sum certain judgment against Husband in the amount of $57,221.52 and enumerated the several individual sums included in that total. From this original decree, then, Husband could compute with exactness the amount he owed to Wife. Accordingly, the family court erred in ordering that the ten percent interest rate accrue from sixty days after entry of the original decree, and we modify the family court's order to order that the interest accrue from the date of entry of the original decree.
2. Credit Card Debt Setoff
¶14 Finally, Husband argues that the family court erred in ruling that he was not entitled to a setoff for the Bank of America credit card debt. We view the facts in the light most favorable to sustaining the family court's judgment and will only reverse for an abuse of discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 346 ¶ 5, 972 P.2d 676, 679 (App. 1998). The family court did not abuse its discretion. Both the original and amended decrees ordered Wife to pay her share of the credit card debt directly to Bank of America, not to Husband. Despite these orders, Husband repeatedly requested that the family court order Wife to pay her share of the credit card debt to him and the family court repeatedly refused. Further, the family court noted that although Husband testified regarding the debt, he did not provide documentary evidence that he made payments to Bank of America on Wife's behalf. Husband counters that (1) Wife did not testify that she had paid her portion of the debt to Bank of America, (2) he "is in a far better position to know whether payments were made than [Wife] is," and (3) the age of the debt is "further evidence that the debt has been resolved." However, on appeal we do not reweigh the evidence and defer to the family court's determination of credibility of the witnesses. In re Estate of Pouser, 193 Ariz. 574, 579 ¶ 13, 975 P.2d 704, 709 (1999); Gutierrez, 193 Ariz. at 347-48 ¶ 13, 972 P.2d at 680-81. Accordingly, because the record supports the family court's ruling regarding Husband's entitlement to the debt setoff, the family court did not abuse its discretion.
CONCLUSION
¶15 For the foregoing reasons, we affirm the family court's order imposing a ten percent interest rate on the $37,221.52 judgment against Husband, but modify the accrual date to the original decree's entry date of December 8, 2009. Additionally, we affirm the family court's ruling that Husband was not entitled to a setoff for the Bank of America credit card debt.