NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
DIVISION ONE
FILED: 06/21/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
In re the Matter of:
No. 1 CA-CV 10-0552
JAYNE MARIE BRANIGAN,
DEPARTMENT D
MEMORANDUM DECISION
(Not for Publication –
Rule 28, Arizona Rules
of Civil Appellate
Procedure)
Petitioner/Appellant,
v.
JOHN CHRISTOPHER FREDRICKSON,
Respondent/Appellee.
Appeal from the Superior Court in Maricopa County
Cause No. FC2003-013024
The Honorable Paul A. Katz, Judge
REVERSED IN PART; AFFIRMED IN PART; REMANDED
Jayne Branigan
Petitioner/Appellant Pro Se
Phoenix
Ivy L. Kushner
Attorney for Respondent/Appellee
Scottsdale
I R V I N E, Presiding Judge
¶1
court’s
Jayne
ruling
M.
that
Branigan
she
had
(“Mother”)
appeals
waived
reimbursement
her
the
family
claims
against John Christopher Fredrickson (“Father”) for medical and
extracurricular activity costs incurred prior to their July 2009
settlement agreement. For the reasons that follow, we reverse
and remand.
FACTS AND PROCEDURAL HISTORY
¶2
The parties dissolved their marriage by consent decree
in 2004. According to the Marital Settlement Agreement (“MSA”),
Mother was responsible for the children’s health insurance and
one-third
of
their
uncovered
medical
and
extracurricular
activity costs. Father was responsible for the remaining twothirds of these costs.
¶3
In 2008, Father filed a petition for order to show
cause, alleging Mother violated parenting arrangement provisions
of
the
MSA
relating
to
“Parental
Communication
Guidelines,”
“Life Insurance,” and “Exchange of Financial Information.” At a
hearing in July 2009, the parties advised the court that they
had reached a settlement, which was made binding pursuant to
Arizona Rule of Family Procedure (“Rule”) 69. Father withdrew
his petition, and the court entered an order memorializing the
terms of the settlement (“Rule 69 agreement”).
¶4
A few months later, Mother filed a petition pro per
for order to show cause, alleging Father was in contempt of
different parenting arrangement provisions of the MSA regarding:
“Medical,
Dental
Expenses”
and
and
Vision
“Clothing,
Insurance,”
Allowances,
“Uninsured
and
Medical
Extra-Curricular
Activities Costs.” She argued he failed to reimburse her several
2
thousand
dollars
for
these
costs.
In
the
joint
pretrial
statement filed in April 2010, Mother alleged Father owed her
$9145.48
for
these
costs,
and
$840.54
in
child
support
arrearage. Father argued the only reimbursements at issue were
“from
July
2009
to
present”
because
reimbursement
had
been
“discussed” prior to the settlement.
¶5
At the evidentiary hearing, the family court did not
recall whether reimbursement of medical costs was within the
scope
of
the
Rule
69
agreement.
The
following
discussion
occurred:
THE COURT: Was there any agreement that said
that neither party would make a claim for
those reimbursement expenses?
[Father’s Counsel]: No, it is not -THE COURT:
issue was
resolved.
Because I don’t know if that
one that did or didn’t get
[Father’s Counsel]: Except to the extent . .
. that the last hearing resolved everything
that was at issue before you on July 7th. .
. . [E]xcept as expressly set forth in your
order, it did not reserve any other accrued
issues going forward. And the fact – I mean,
I’m looking at the list of exhibits, and
there is a bill from Sonora Quest for $74.77
in the July 7th Joint Pretrial, and that’s
the same bill that [Mother] is seeking to
include
in
her
claim
from
[sic]
reimbursement in this proceeding.
So basically, what we’re trying to say
is,
[the]
parties
reached
a
global
resolution back in July, and now she’s
trying to re-argue or re-urge matters that
3
were part of the dispute that were [sic]
resolved by the stipulation and your order.
Mother admitted that she asked to include “past out-of-pocket”
expenses in the Rule 69 agreement, but explained: “We didn’t
agree
to
any
of
the
medical
expenses.
They
didn’t
want
to
address it because he wasn’t suing me for that.”
¶6
Father testified there was “[v]ery little” discussion
about reimbursement before the July 2009 hearing and cited one
instance in 2005 when Mother handed him a “large pile of stuff,”
which he offset and wrote a $28 check for that was never cashed.
Father reasserted, however, that they “reached a settlement in
July of ’09 that covered everything prior to that point.” Father
argued that after offsets, Mother owed him $517.16 for medical
costs incurred after July 2009.
¶7
The family court stated that it was clear “the parties
did reach a global settlement, so to speak, of issues that were
presented to the Court as of July 7th of 2009,” but because
Father was the one who filed the petition in 2008, it asked:
Had
Mother,
in
response
to
Father’s
petition, raised issues by way of a response
or a cross-motion . . . for enforcement of
medical expenses? Because the question I
have is, if neither party raised the medical
expenses as an issue in pleadings or in
discovery, was that – were all issues
resolved?
Father’s
counsel
responded:
“Yes,
Your
Honor.
And
the
reinforcement of that is – if you were to look at the Joint
4
Pretrial Statement from the July ’09 hearing, you would see that
[Mother] has listed as an invoice – invoice from Sonora Quest
laboratories in the amount of $74.77, dated 4/3/09.”
¶8
The family court took the matter under advisement. Two
months later, it ruled that “any medical expenses incurred by
either party prior to July 1, 2009, have been waived as a result
of the settlement the parties reached at the time of the then
pending litigation.” As to costs incurred from July 1, 2009 to
April
12,
2010,
the
court
concluded
that
Mother
owed
Father
$517.16. The court modified child support and awarded Mother
$840 in arrearage, which it reduced by the $517.16 it found
Mother owed. Mother timely appeals.
DISCUSSION
1. Reimbursements Before July 1, 2009
¶9
Mother
contends
that
the
family
court
erred
in
determining that she waived all her medical reimbursement claims
prior to July 1, 2009, as a result of the Rule 69 agreement. We
agree.
¶10
The interpretation of a contract is a question of law
that we review de novo. Rand v. Porsche Fin. Servs., 216 Ariz.
424, 434, ¶ 37, 167 P.3d 111, 121 (App. 2007). General contract
principles
govern
the
construction
and
enforcement
of
a
settlement agreement. Emmons v. Superior Court, 192 Ariz. 509,
512, ¶ 14, 968 P.2d 582, 585 (App. 1998). When interpreting a
5
contract,
“the
court
must
ascertain
and
give
effect
to
the
intention of the parties at the time the contract was made if at
all possible.” Polk v. Koerner, 111 Ariz. 493, 495, 533 P.2d
660, 662 (1975). The parties’ intent is best ascertained by the
language in the contract itself. See Goodman v. Newzona Inv.
Co., 101 Ariz. 470, 472, 421 P.2d 318, 320 (1966). “The court
must give effect to the contract as it is written, and the terms
or provisions of the contract, where clear and unambiguous, are
conclusive.”
Id.
When
the
written
language
is
ambiguous,
we
should consider the surrounding circumstances at the time the
agreement was made. Polk, 111 Ariz. at 495, 533 P.2d at 662.
¶11
In this case, Father agrees the language of the Rule
69 agreement is not ambiguous. The Rule 69 agreement reads, in
pertinent part:
10. Pursuant to the Rule 69 Agreement of the
parties set forth above, Father withdraws
his Petition for Order to Show Cause Re:
Contempt
and
Modification
of
Parenting
Arrangements in its entirety.
(Emphasis added.) The preceding nine paragraphs address details
concerning co-parenting counseling, child therapy; communication
and
“substantially
scheduling,
dental
equal”
transportation
appointments,
responsibility
and
school
attending
activities
.
and
for
.
.
“arranging,
medical
and
[extracurricular]
activities,” agreement on health care providers; communication
regarding
school-related
matters;
6
and
life
insurance.
Despite
such specific provisions, the Rule 69 agreement is silent as to
unreimbursed medical and extracurricular expenses. There is also
no broad language indicating that the settlement was “global” or
otherwise
intended
addressed
in
the
to
Rule
extend
69
beyond
the
issues
specifically
or
raised
by
agreement
Father’s
petition. See Goodman, 101 Ariz. at 472, 421 P.2d at 320 (“It is
not within the province or power of the court to alter, revise,
modify, extend, rewrite or remake an agreement.”). As written,
the
Rule
69
agreement
did
not
settle
Mother’s
reimbursement
claims.
¶12
Even assuming an ambiguity exists, the circumstances
surrounding the Rule 69 agreement do not show that the parties
intended to settle all reimbursement claims. Father’s petition
only alleged violations of “Parental Communication Guidelines,”
“Life Insurance,” and “Exchange of Financial Information.” These
provisions appear at paragraphs D, K and N of the parenting
arrangement
violations
section
of
of
the
“Uninsured
MSA.
Mother’s
Medical
Expenses”
petition
and
alleged
“Clothing,
Allowances, and Extra-Curricular Activities Costs,” which appear
at paragraphs I and J. Neither Father’s petition nor Mother’s
response
discussed
paragraphs
I
or
J.
Violations
of
provisions were not raised until Mother filed her petition.
7
these
¶13
Furthermore,
regarding
Father’s
the
July
petition
2009
framed
joint
the
pretrial
contested
statement
issues
as
follows:
A.
Whether Mother should be held in contempt
of Court for failure to follow the [MSA]
and Parenting Arrangements concerning the
following?
1. Parental Communications Guidelines
2. Life Insurance
3. Exchange of Financial Information
B.
Whether either party pay [sic] for the
other party’s attorney fees and costs?
The parties’ position statements did not discuss reimbursement
of medical costs.
¶14
Nor are we convinced that a single invoice listed by
mother as
an
exhibit
in
July
2009,
proves
otherwise.
Mother
explained to the family court that she initially attempted to
include
reimbursement
claims
in
the
Rule
69
agreement,
but
Father “didn’t want to address it because he wasn’t suing me for
that.” Father’s own statements about the settlement negotiations
in the July 2009 joint pretrial statement seem to corroborate
this:
Counsel for the parties have participated in
settlement
negotiations,
but
have
been
unable to reach a resolution of the issues.
The impediment to settlement is Mother’s
demand
that
issues
unrelated
to
this
litigation be incorporated in a stipulation.
8
(Emphasis
added.)
conclusive
While
proof
that
Father
Mother’s
argues
Mother’s
reimbursement
invoice
claims
is
were
litigated in July 2009, he listed no exhibits of his own as
offsets
that
would
claims.
Father’s
show
position
that
he
in
the
was
prepared
April
2010
to
joint
rebut
her
pretrial
statement also contradicts that argument, stating: “Mother did
not raise any [reimbursement] issues in her response to Father’s
prior petition nor did she raise these issues with the court at
the time of the Evidentiary hearing in July 2009.” Based on the
evidence before the trial court, 1 we find that the surrounding
circumstances reinforce our reading of the Rule 69 agreement.
The
court
erred
in
finding
that
settlement
waived
Mother’s
claims prior to July 2009.
¶15
Father urges this Court to affirm on the independent
ground that Mother’s reimbursement claims were untimely pursuant
to Guideline 9A because she did not demand payment “within 180
days after the services occur[red].” Father did not raise this
objection at trial, but argues the family court’s comments show
that it considered this as a factor. We disagree. The transcript
reveals the family court was uncertain whether such a statute
even
existed
because
he
was
“unable
1
to
find
[one].”
Father
Father objects to Exhibit 3 in the appendix to the opening
brief because it was not admitted at trial. We have not
considered it in this decision.
9
concedes, however, that the family court did not find on this
ground, and his response, “I don’t know off the top of my head,
Your
Honor,”
did
not
inform
the
court
of
Guideline
9A
or
otherwise preserve the issue for appeal. Winters v. Ariz. Bd. of
Educ., 207 Ariz. 173, 177, ¶ 13, 83 P.3d 1114, 1118 (App. 2004)
(holding
that
challenges
not
raised
with
specificity
and
addressed at trial are waived on appeal). We express no opinion,
however,
as
to
whether
this
issue
should
be
addressed
upon
remand.
2. Reimbursements After July 1, 2009
¶16
Mother argues that the family court miscalculated the
reimbursements incurred after July 1, 2009, because it credited
Father with offsets that were supported only with “self-serving
testimony” and not documented in violation of Rule 91(C)(4).
Mother also requests an $80.21 reimbursement not presented at
trial. Because these issues were not timely presented to the
family court, Mother may not raise them for the first time on
appeal.
Winters,
207
Ariz.
at
177,
¶
13,
83
P.3d
at
1118;
Banales v. Smith, 200 Ariz. 419, 420, ¶ 6, 26 P.3d 1190, 1191
(App. 2001).
¶17
Mother appears to argue that the family court should
have disregarded offsets in Father’s “John After July” exhibit
that she later discovered were incorrect. To the extent Mother
10
challenges the exhibit itself, her claim is waived because it
was admitted without objection at trial.
¶18
Mother argues, however, that we should consider her
notice,
filed
after
Father
gave
false
family
court
did
the
hearing
testimony
not
rule
and
about
on
before
his
the
ruling,
offsets.
Father’s
motion
that
Because
to
the
strike
the
notice, we agree with Mother that her notice is properly before
this Court. See McElwain v. Schuckert, 13 Ariz. App. 468, 470,
477 P.2d 754, 756 (1970) (holding a motion not ruled upon is
deemed denied by operation of law). Her objection in the notice
to Father’s testimony and claims as “hearsay and false” because
he did not present receipts, however, was untimely raised and
deemed denied.
¶19
the
We assume, however, that the family court considered
evidence
Mother
offered
that
Father
falsely
claimed
two
expenses that she had in fact paid, and that another offset for
“$61”
was
actually
“only
$52.63.”
Because
the
family
court
ultimately found in favor of Father on those issues, we defer to
its assessment of his credibility. See Gutierrez v. Gutierrez,
193
Ariz.
Therefore,
343,
we
347,
affirm
¶
13,
the
972
trial
P.2d
676,
court’s
ruling
claimed reimbursements for after July 1, 2009.
11
680
(App.
1998).
regarding
the
3. Attorneys’ Fees on Appeal
¶20
on
Mother requests an award of attorneys’ fees and costs
appeal
pursuant
to
A.R.S.
§
25-324.
Because
Mother
represented herself, we deny her request. See Connor v. Cal-Az
Props., Inc., 137 Ariz. 53, 56, 668 P.2d 896, 899 (App. 1983)
(holding that party filing pro per cannot claim attorneys’ fees
because
of
the
Mother
has
been
absence
of
successful
the
in
attorney-client
part
in
relationship).
overturning
the
trial
court’s ruling, so we do award her costs incurred on appeal upon
her compliance with Rule 21, Arizona Rules of Civil Appellate
Procedure.
¶21
to
Husband also seeks attorneys’ fees on appeal pursuant
ARCAP
21,
citing
the
provision
in
the
MSA
requiring
the
parties to make “reasonable efforts” to mediate before filing a
court action. Father did not raise this argument below, when its
assertion might have led to a mediated settlement in lieu of
further
litigation.
Therefore,
we
deny
Father’s
request
for
fees.
CONCLUSION
¶22
We reverse the portion of the family court’s order
that the Rule 69 agreement waived all of Mother’s reimbursement
claims prior to July 1, 2009, and remand for a determination of
that amount minus any offsets proven by Father. We affirm the
12
award of $517.16 in favor of Father for reimbursement claims
after July 1, 2009.
/s/
PATRICK IRVINE, Presiding Judge
CONCURRING:
/s/
JOHN C. GEMMILL, Judge
/s/
ANN A. SCOTT TIMMER, Chief Judge
13
