NASH v. NASH

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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: ) ) STEPHEN JOHN NASH, ) ) Petitioner/Appellee ) ) v. ) ) ) ALEJANDRA AMARILLA NASH, ) ) Respondent/Appellant. ) ) __________________________________) DIVISION ONE FILED: 7/23/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CV 12-0039 1 CA-CV 12-0076 1 CA-CV 12-0077 (Consolidated) DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2010-007378 The Honorable Thomas L. LeClaire, Judge JUDGMENTS REVERSED IN PART AND REMANDED Dickinson Wright/Mariscal Weeks PLLC By Robert L. Schwartz Steven D. Wolfson Anne L. Tiffen Attorneys for Petitioner/Appellee Phoenix Hallier & Lawrence, PLC By Angela K. Hallier Phoenix And Jones, Skelton & Hochuli, P.L.C. By Eileen Dennis GilBride Attorneys for Respondent/Appellant J O H N S E N, Chief Judge ¶1 These are consolidated appeals from court s rulings in a dissolution decree. the superior In this decision, we reverse the decree and a subsequent order insofar as they hold and treat the proceeds of the sale of a home as community property. 1 FACTS AND PROCEDURAL HISTORY ¶2 Stephen John Nash ( Father ) Nash ( Mother ) married in 2005. in 2010. and Alejandra Amarilla Father filed for dissolution In April 2011, Father and Mother filed a Memorandum of Understanding ( Memorandum ) pursuant to Arizona Rule of Family Law Procedure property. The ( Rule ) superior 69 that court purported then heard to divide evidence their about the treatment of a home that was the only property remaining in dispute. In the decree and in a subsequent post-decree order, the court ruled that the home was community property. ¶3 and We consolidated Mother s timely appeals of the decree the post-trial order. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona 1 In a separate opinion, we address other issues raised by the decree and post-decree orders. See ARCAP 28(g). 2 Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2013) and -2101(A)(1), (2) (West 2013). 2 DISCUSSION ¶4 The home at issue was purchased with Father s separate funds after the parties were married, but was titled in Mother s name alone and was used by Mother s mother. The Memorandum by which the parties agreed to divide their property omitted any reference to the home. On appeal, Mother argues Father waived any right to any interest in the home or its proceeds. ¶5 The Memorandum provided that Father expressly waive[d] all right he may have to seek or receive a monetary adjustment for any and all funds or property utilized by [Mother] or provided to [Mother] prior to April 12, 2011, or any monetary adjustment or reimbursement for any funds provided to or gifted to any of [Mother s] friends or family prior to April 12, 2011. The superior court accepted Father s argument that the waiver in the Memorandum did not apply to the home because Father did not know when he executed the Memorandum that the home had been titled in Mother s name. Father testified he knew that the children s grandmother lived in the home, and said he thought that when he and Mother purchased the home, title had been placed in the name of the grandmother, not Mother. 2 Absent material revisions after the relevant date, we cite a statute s current version. 3 ¶6 The interpretation of a contract is a question of law that we review de novo. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). A valid contract must be given full force and effect even if its enforcement is harsh, and, absent fraud, misrepresentation or mistake, [a] clear and unambiguous contract must be interpreted according to its terms. Isaak v. Mass. Indem. Life Ins. Co., 127 Ariz. 581, 584, 623 P.2d 11, 14 (1981). ¶7 Citing State v. Davis, 108 Ariz. 335, 337, 498 P.2d 202, 204 (1972), and Sosa v. Marine Midland Automotive Financial Corp., 158 Ariz. 512, 514, 763 P.2d 1387, 1399 (App. 1988), Father argues the waiver provision in the Memorandum does not apply because waiver is a voluntary relinquishment of a known right. The cases Father cites consider the circumstances under which the law will imply a waiver from the conduct of a party. The question here is different. The question is not whether Father intended to waive his rights to any and all funds or property used or provided to Mother the Memorandum clearly states that he did. The question is whether, as Father argues, that broad waiver excludes funds and property that Father did not know Mother had used or been provided. 3 3 Father does not argue the Memorandum should be rescinded reformed. See, e.g., Nelson v. Rice, 198 Ariz. 563, 566, ¶¶ 9, 12 P.3d 238, 241 (App. 2000) (quoting Restatement (Second) Contracts §§ 152, 154 (1981)) (court may rescind contract 4 or 7of on ¶8 In the words of the Memorandum, Father s waiver applied to any and all funds or property utilized by [Mother] or provided to her. That language is plain the waiver is broad, and admits of no exceptions. Father points to no parol evidence to support his contention that he intended the waiver only to apply to money or property he knew Mother had used or taken. The Memorandum was a settlement agreement the parties negotiated through their respective counsel and, as the Memorandum stated, was their attempt to resolve, with finality to the extent possible, all . . . division of property issues. ¶9 Under these circumstances, by signing the Memorandum, Father accepted the possibility that he was waiving his rights in property or funds unknown to him that might fall within the terms of the waiver. property is Such a waiver as to any and all funds or unambiguous and must be enforced. See The Facebook, Inc. v. Pac. Nw. Software, Inc., 640 F.3d 1034, 1040 (9th Cir. 2011) (negotiated waiver by sophisticated parties of all claims included claims they didn t know they had ). For these the reasons, the superior court erred in concluding Memorandum s waiver did not encompass the home or funds provided for purchase of the home. basis of mistake where party claiming mistake does not bear risk of mistake). 5 ¶10 The issue of the waiver arose again in an arbitration proceeding conducted after the superior court issued the decree. In that proceeding, the arbitrator at Father s request ruled that the waiver in the Memorandum would apply only to funds or property Father knew about when he signed the Memorandum. By written order entered after Mother s appeal from the decree was pending, the superior court affirmed that ruling. Mother filed an amended notice of appeal from that order. ¶11 As Mother argues, by submitting the issue of the home to the superior court at the dissolution trial, Father waived his right to have the arbitrator address the matter. An arbitration provision is waived by conduct inconsistent with an arbitration remedy. Ariz. 576, pretrial 582, Meineke v. Twin City Fire Ins. Co., 181 892 statement, P.2d 1365, 1371 Father asked the (App. court 1994). to rule In his that the waiver provision in the Memorandum did not apply to the home because he could not waive what he did not know. Father made the same request in his written closing argument. ¶12 Because Father waived any right to ask the arbitrator to interpret the waiver provision as applied to the home, the arbitrator s ruling and the superior court s order affirming that ruling are void insofar as they purport to invalidate the application of the waiver in the Memorandum to the home. We reverse the decree insofar as it reflects the superior court s 6 finding that the proceeds of the sale of the home are community property. On remand, the court shall direct allocation of the proceeds to Mother. CONCLUSION ¶13 (and For the reasons stated above, we vacate the decree reverse the subsequent order adopting the arbitrator s ruling on waiver) insofar as they hold and treat the proceeds of the sale of the home as community property. superior court shall enter such order as On remand, the is necessary and appropriate to ensure that Mother receives the proceeds of the sale of the home. ______________/s/________________ DIANE M. JOHNSEN, Chief Judge CONCURRING: _______________/s/_________________ SAMUEL A. THUMMA, Presiding Judge _______________/s/_________________ MICHAEL J. BROWN, Judge 7

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