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);
IN THE COURT OF APPEALS
STATE OF ARIZONA
RUTH A. WILLINGHAM,
In re the Matter of:
No. 1 CA-CV 10-0552
JAYNE MARIE BRANIGAN,
(Not for Publication –
Rule 28, Arizona Rules
of Civil Appellate
JOHN CHRISTOPHER FREDRICKSON,
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
Petitioner/Appellant Pro Se
Ivy L. Kushner
Attorney for Respondent/Appellee
I R V I N E, Presiding Judge
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
FACTS AND PROCEDURAL HISTORY
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
activity costs. Father was responsible for the remaining twothirds of these costs.
In 2008, Father filed a petition for order to show
cause, alleging Mother violated parenting arrangement provisions
“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”).
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:
Activities Costs.” She argued he failed to reimburse her several
statement filed in April 2010, Mother alleged Father owed her
arrearage. Father argued the only reimbursements at issue were
“discussed” prior to the settlement.
At the evidentiary hearing, the family court did not
recall whether reimbursement of medical costs was within the
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:
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
reimbursement in this proceeding.
So basically, what we’re trying to say
resolution back in July, and now she’s
trying to re-argue or re-urge matters that
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
address it because he wasn’t suing me for that.”
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.
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:
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
reinforcement of that is – if you were to look at the Joint
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.”
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
$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.
1. Reimbursements Before July 1, 2009
determining that she waived all her medical reimbursement claims
prior to July 1, 2009, as a result of the Rule 69 agreement. We
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
settlement agreement. Emmons v. Superior Court, 192 Ariz. 509,
512, ¶ 14, 968 P.2d 582, 585 (App. 1998). When interpreting a
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
should consider the surrounding circumstances at the time the
agreement was made. Polk, 111 Ariz. at 495, 533 P.2d at 662.
In this case, Father agrees the language of the Rule
69 agreement is not ambiguous. The Rule 69 agreement reads, in
10. Pursuant to the Rule 69 Agreement of the
parties set forth above, Father withdraws
his Petition for Order to Show Cause Re:
Arrangements in its entirety.
(Emphasis added.) The preceding nine paragraphs address details
concerning co-parenting counseling, child therapy; communication
activities,” agreement on health care providers; communication
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
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,
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
Allowances, and Extra-Curricular Activities Costs,” which appear
at paragraphs I and J. Neither Father’s petition nor Mother’s
provisions were not raised until Mother filed her petition.
Whether Mother should be held in contempt
of Court for failure to follow the [MSA]
and Parenting Arrangements concerning the
1. Parental Communications Guidelines
2. Life Insurance
3. Exchange of Financial Information
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.
Nor are we convinced that a single invoice listed by
explained to the family court that she initially attempted to
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
Counsel for the parties have participated in
unable to reach a resolution of the issues.
The impediment to settlement is Mother’s
litigation be incorporated in a stipulation.
litigated in July 2009, he listed no exhibits of his own as
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.
claims prior to July 2009.
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
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.
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,
otherwise preserve the issue for appeal. Winters v. Ariz. Bd. of
Educ., 207 Ariz. 173, 177, ¶ 13, 83 P.3d 1114, 1118 (App. 2004)
addressed at trial are waived on appeal). We express no opinion,
2. Reimbursements After July 1, 2009
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
Banales v. Smith, 200 Ariz. 419, 420, ¶ 6, 26 P.3d 1190, 1191
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
challenges the exhibit itself, her claim is waived because it
was admitted without objection at trial.
Mother argues, however, that we should consider her
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
We assume, however, that the family court considered
expenses that she had in fact paid, and that another offset for
ultimately found in favor of Father on those issues, we defer to
its assessment of his credibility. See Gutierrez v. Gutierrez,
claimed reimbursements for after July 1, 2009.
3. Attorneys’ Fees on Appeal
Mother requests an award of attorneys’ fees and costs
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
court’s ruling, so we do award her costs incurred on appeal upon
her compliance with Rule 21, Arizona Rules of Civil Appellate
Husband also seeks attorneys’ fees on appeal pursuant
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
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
award of $517.16 in favor of Father for reimbursement claims
after July 1, 2009.
PATRICK IRVINE, Presiding Judge
JOHN C. GEMMILL, Judge
ANN A. SCOTT TIMMER, Chief Judge