Loomstein-Ewing v. Ewing

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Marriage of: ) ) ROBYN LOOMSTEIN-EWING, ) ) Petitioner/Appellee, ) ) v. ) ) LEO EWING, ) ) Respondent/Appellant. ) __________________________________) 1 CA-CV 10-0533 DIVISION ONE FILED: 06/21/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FN2009-000278 The Honorable Randall H. Warner, Judge AFFIRMED Bruce D. Brown, P.L.L.C. by Thomas A. Morton Attorneys for Petitioner/Appellee Bregman Burt Feldman by Sandra Burt Attorneys for Respondent/Appellant Phoenix Scottsdale P O R T L E Y, Judge ¶1 Leo Ewing ( Husband ) appeals from the denial of his petition to enforce his divorce decree and the family court s award of attorneys fees. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 After a nearly ten year marriage, Robyn Ewing ( Wife ) filed for divorce in January 2009. Loomstein- By June, the parties had settled all issues concerning their divorce, and their stipulated divorce decree was signed by the family court and filed the following month. ¶3 Two months later, Wife filed a motion to enforce the terms of the decree. She claimed that Husband failed to pay his portion of debts, kept personal property that she was awarded, and damaged her residence. Husband also claimed that Wife violated the decree because she failed to pay her portion of debts, failed to provide statements for the couple s home equity line of credit ( HELOC ), misspent HELOC funds during the marriage, and retained his personal property. ¶4 After an evidentiary hearing, the family court found that both Wife and Husband had violated terms of the decree. The court, however, found that Wife provided the required HELOC statements and that Husband failed to prove that she misspent the HELOC funds. The court also awarded Wife attorneys fees pursuant to Arizona Revised Statutes ( A.R.S. ) section 25-324 2 (Supp. 2010). Husband appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003). DISCUSSION I. Discovery ¶5 Husband restricting discovery divorce decree. erred decree by: contends (1) on that his the family counter-petition court to erred enforce by the Specifically, Husband contends that the court holding discovery; (2) that the denying divorce his motion decree to limited compel; post- and (3) quashing his subpoena of Wife s bank account records. ¶6 We review the family court s interpretation of a dissolution decree de novo, but we review the court s resolution of discovery disputes for an abuse of discretion. Cohen v. Frey, 215 Ariz. 62, 66, ¶¶ 10-11, 157 P.3d 482, 486 (App. 2007); see Seidman v. Seidman, 222 Ariz. 408, 411, ¶ 18, 215 P.3d 382, 385 (App. 2009). We review the decree as a whole in accordance with general principles of contract interpretation. Stine v. Stine, 179 Ariz. 385, 388, 880 P.2d 142, 145 (App. 1994); Lopez v. Lopez, 125 Ariz. 309, 310, 609 P.2d 579, 580 (App. 1980). Because a decree is an independent resolution by the court of the issues before it we do not defer to the negotiated intent of the parties. In re Marriage of Zale, 193 Ariz. 246, 249, ¶ 11, 972 P.2d 230, 233 (1999). But when the decree is subject to more than one interpretation, it is within the court s authority 3 to interpret and clarify the decree. See Cohen, 215 Ariz. at 66, ¶¶ 11-12, 157 P.3d at 486. ¶7 Because Wife s expenditure of HELOC funds was a point of contention before the decree, paragraph 3(G) of the decree provides that: G. Wife shall provide the Husband with two years of HELOC statements so the Husband can verify where those monies were spent. If the Husband has a question on a particular distribution from that account, he shall notify the Wife s counsel and Wife shall provide Husband proof of where the monies were spent. If the Husband believes the HELOC monies were not appropriately spent, he is free to petition the Court for relief as he sees fit. ¶8 In his petition, Husband alleged that he did not receive a complete accounting of all HELOC statements, was unable to verify where the monies went, and believed that Wife could not account for several thousands of dollars. He further argued that paragraph 3(G) did not restrict his right to discovery during post-decree litigation, and he requested that Wife 1 provide financial information 1 so that he could Husband requested the following documents: 1. Electronic copies of all accounting files along with any corresponding access information including logins and passwords; 2. Copies of all loan documents, agreements, notices, credit line amounts, initial balances and statements as well as 4 have a clear and fair accounting of the assets, expenses and obligations related to [the] dissolution. ¶9 Wife asserted that many of the documents that Husband requested were irrelevant because the decree required Husband to first identify particular distributions before she was required to provide detailed expenditure information. refused to provide the requested financial As a result, she information Husband disputed a particular transaction. copies of cancelled checks, transfers or other transactions; electronic 3. Verifiable, legitimate documentation of all withdrawals, payments and interest accruals of all loans; 4. Bank copies of 2 years worth of bank statements of any account that included the deposit of any loan draws or payments to loans including account numbers and account headers; 5. Two years of Issuer s Statement copies of all jointly held credit card or bank accounts; 6. Documented origin of investment or bank accounts; in any 8. Documentation clearly identifying balances of all checking, investment loan accounts as of May 1, 2009; the and 7. funds Receipts for cash transactions; 9. Copies of all tax corresponding documentation seven years. 5 returns for the with past until ¶10 Before the evidentiary hearing, the family court denied Husband s motion to compel and quashed his attempt to subpoena Wife s bank account information. After the evidentiary hearing, the court found that Husband failed to make a narrowly focused document request, as required by paragraph 3(G). The court determined that Husband was first required to question particular transactions from the HELOC statements; Wife was then required to questioned provide detailed transactions; and information only after concerning receiving from Wife could Husband seek judicial relief. the information Otherwise, the court determined, the provision requiring that Husband question a particular transaction would be meaningless. Concluding, the court found that Husband was attempting to litigate postdecree what he had the full opportunity to litigate pre-decree ; that he did not comply with the requirements of paragraph 3(G); and that he did not meet his burden of proving that Wife misspent HELOC funds. ¶11 The decree equitably and completely disposes of all community, joint and common property and obligations of the parties, and provides that Wife will fully indemnify Husband for all debt relating to the HELOCs. Despite the finality of the decree, paragraph 3(G) authorizes Husband to petition the Court for relief as he sees fit after the entry of the decree if he believed that Wife misspent 6 money from the HELOCs. Paragraph 3(G) does not, however, specify whether Husband must first question opportunity to particular provide transactions detailed and Wife an information, expenditure give or whether Husband can petition the court for relief without ever disputing a transaction. As a result, paragraph 3(G) is ambiguous, and we will interpret the decree in light of the surrounding circumstances including typical principles of family law. See Zale, 193 Ariz. at 250-51, ¶¶ 17-18, 972 P.2d at 234- 35; Cohen, 215 Ariz. at 67, ¶ 14, 157 P.3d at 487. ¶12 Typically, disposition of property in a decree is final; [t]he well-established rule is that property settlements are not subject to modification or termination. DeGryse v. DeGryse, 135 Ariz. 335, 338, 661 P.2d 185, 188 (1983); A.R.S. § 25-327(A) (2007) (holding that provisions in a decree as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify reopening of a judgment under the laws of this state ). general rule helps explain paragraph 3(G). filed, Husband s right continued litigation property, was to continued concerning extinguished the absent discovery, division potentially of 3(G), enabled to obtain let community Paragraph information Wife s HELOC expenditures after entry of the final decree. 7 alone extraordinary See Ariz. R. Fam. Law P. 84 and 85. Husband The Once the decree was circumstances. however, the about ¶13 his Husband s right to discovery significantly decree argument expands discovery that is belied Husband s rights the into family by restricted paragraph otherwise property court 3(G) which non-existent post- issues. The numerous cases he cited which discussed expansive discovery rights before judgment or decree are inapposite. The proper point comparison is only Husband s discovery rights post-decree. the family court s interpretation of paragraph 3(G) of And, did not restrict Husband s right to post-decree discovery. ¶14 to Husband, however, contends that the decree allows him petition as he sees scope of discovery. His would render the remainder of the property divisions in the decree illusory. See Cohen, His necessarily expansive the Court authorizes a interpretation 215 Ariz. at for relief broad of 67, paragraph ¶ 13, 3(G) 157 P.3d at fit, 487. which interpretation would authorize the alteration of debt, cash, and other property allocations in the decree, which, because the decree divides result in repeatedly settlements. a the de entire facto recognized community modification. the need for property Arizona finality estate, courts of would have property See, e.g., In re Marriage of Gaddis, 191 Ariz. 467, 469, 957 P.2d 1010, 1012 (App. 1997); DeGryse, 135 Ariz. at 338, 661 P.2d at 188; Reed v. Reed, 124 Ariz. 384, 385, 604 P.2d 648, 649 (App. 1979) ( There is a compelling policy interest 8 favoring the finality of property settlements. ). de facto decree modifications are generally To that end, not permitted. LaPrade v. LaPrade, 189 Ariz. 243, 246, 941 P.2d 1268, 1271 (1997); Cohen, 215 Ariz. at 65, ¶ 8, 157 P.3d at 485; Gaddis, 181 Ariz. at 469, 957 P.2d at 1012. After the entry of the decree, Husband did not appeal any issue related to the decree or file other motions attacking its validity. to litigate should have Wife s done alleged so before waste the of entry If Husband wanted community of the property, decree. As he a result, the financial information Husband requested was mostly irrelevant and would not have led to the discovery of admissible evidence. ¶15 See Rule 51(B)(1). We agree with the family court that paragraph 3(G) provides Husband with limited post-decree discovery rights, not the ability to re-litigate the decree. As a result, the family court by did not abuse its discretion limiting Husband s discovery. II. ¶16 Attorneys Fees Husband next asserts that the family court s award of attorneys fees should be vacated because the trial court erred by restricting his discovery. 2 2 Because the court properly In his reply brief, Husband argues that the family court failed to make appropriate findings before awarding Wife attorneys fees. Issues first raised in a reply brief are waived. See State v. Watson, 198 Ariz. 48, 51, 6 P.3d 752, 755 (App. 2000). 9 resolved the post-decree discovery issue, the fee award was not an abuse of discretion. ATTORNEYS FEES AND COSTS ON APPEAL ¶17 Wife requests an attorneys fees and costs on appeal pursuant to A.R.S. §§ 12-341 to -342 (2003), and 25-324. discretion, we decline to award attorneys fees. In our Wife is entitled to costs on appeal upon compliance with ARCAP 21. CONCLUSION ¶18 For the foregoing reasons, we affirm the family court s judgment. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ LAWRENCE F. WINTHROP Judge /s/ ____________________________ SHELDON H. WEISBERG, Judge 10

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