YURKA v. YURKA

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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 DIVISION ONE FILED: 8/6/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of: ) ) PETER A. YURKA, ) ) Petitioner/Appellee, ) ) v. ) ) BARBARA M. YURKA, ) ) Respondent/Appellant. ) __________________________________) No. 1 CA-CV 12-0341 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. DR1996-21240 The Honorable Daniel J. Kiley, Judge AFFIRMED Mueller & Drury PC By James P. Mueller and Joel M. Mueller Attorneys for Petitioner/Appellee Scottsdale Abram Meell & Candioto PA By Gregory J. Meell Attorneys for Respondent/Appellant Phoenix B R O W N, Judge ¶1 The marriage of Barbara Yurka ( Wife ) and Peter Yurka ( Husband ) dissolution. was In dissolved 2010, in Wife 1998 filed pursuant a to petition a to decree modify of the decree based on an alleged mutual mistake as to the parties retirement spousal benefits. Wife maintenance, expenses. entirety The and child family she also sought support court denied appealed. For payment costs, Wife s the for and education petition following unpaid in its reasons, we affirm. BACKGROUND ¶2 Husband and Wife divorced in 1998. At the time of dissolution, the parties had two minor children. The decree of dissolution incorporated but did not merge the parties Rule 80(d) agreement, spousal which maintenance provided for four years amount of $1,449 per month. retirement Wife s benefits interest determined ( QDRO ). in through would Husband and child would pay support Wife in the The agreement also addressed how be Husband s a that distributed pension Qualified upon dissolution. was subsequently plan Domestic Relations Order Wife was also to receive the entire benefit of her retirement as a teacher and Husband would likewise receive his Cal Trust retirement. The agreement made no additional mention of retirement benefits outside of the agreement and the attached exhibits. ¶3 In December 2010, Wife petitioned to enforce the decree concerning various matters, including spousal maintenance and child support payments. Wife alleged that Husband failed to 2 comply with maintenance the family obligation Clearinghouse. According court s order through to Wife, to pay the even his spousal Support if the Payment court gave Husband credit for the payments that he made directly to her rather than through the clearinghouse, he still owed a minimum of $12,297.69 based on improper unilateral deductions. Wife also sought consequential damages based on Husband s refusal to make payments through the clearinghouse because she was unable to refinance her home in February of 2000 advantageous . . . interest rate of 3.75%. at a very Regarding child support costs, Wife argued that Husband had failed to reimburse her for his 75% of the medical expenses and thus owed her a total of $3,580.85. Additionally, Wife alleged that Husband had failed to pay his share of the children s education expenses and refused to transfer Marriott Rewards points to Wife. ¶4 Wife also sought re-opening and modification of the decree based on A.R.S. § 25-327(A). Wife asserted she recently learned that once she became eligible to receive federal Social Security benefits, those benefits would be reduced by an amount equal to [two-thirds] of her Ohio State Teacher s Retirement System payments. Wife alleged the parties had entered into their Rule 80(d) agreement based on the mutual understanding and belief that Wife would receive an amount equal to one-half of Husband s Social Security benefits that accrued during the 3 marriage. were Wife therefore asserted that because the parties mutually could be mistaken reopened about and a material modified. fact, Thus, the Wife agreement alleged that fairness and equity require that the Decree be re-opened and that it and the [QDRO] be modified to provide Wife with an additional $840.37 [per month] beginning when Wife reaches the age of 66 and continuing for life thereafter. ¶5 all Husband moved to dismiss Wife s petition, arguing that of Wife s claims were barred waiver, or the doctrine of laches. by statutes of limitation, With respect to Wife s claim for spousal maintenance, Husband pointed to A.R.S. § 25-553(A), which provides that any claim for arrearages must be brought within three years after the date the spousal maintenance order terminates. According to Husband, the terms of the divorce decree and Rule 80(d) agreement made it clear that his spousal maintenance obligations ended, at the latest, in 2002 and Wife s claims related to such payments were therefore untimely. With regard to Wife s claimed medical expenses, Husband cited Section 9A of the Arizona Child Support Guidelines, which provides that [e]xcept for good cause shown, any request for payment or reimbursement of uninsured medical, dental and/or vision costs must be provided to the other parent within 180 days after the date the services occur. According to Husband, all of the claims for medical expenses that Wife brought related to actions 4 that occurred anywhere between four (4) and thirteen (13) years ago and were untimely. ¶6 The family court partially granted Husband s motion, dismissing Wife s claims with respect to unpaid maintenance and the children s education expenses. spousal Following an evidentiary hearing on Wife s remaining claims, the court found that because Wife s Social Security claim was based on mutual mistake, Rule 85(C)(1)(a) of the Arizona Rules of Family Law Procedure ( ARFLP ) barred her claim as untimely because it was filed more than six (6) months after the judgment or order was entered. from her found As to Wife s claim for consequential damages arising alleged that it inability was to refinance without her authority home, under the the court Arizona Constitution to award such damages without giving Husband the benefit of a jury trial, and alternatively, Wife s claims were barred by statutes of limitation. unpaid medical expenses, the With regard to the allegedly court found the evidence Wife presented during the hearing provided no basis for relief. The court further determined that Wife s claims for medical expenses were barred by the doctrine of laches and by the Arizona Child Support Guidelines. Finally, with respect to certain Marriott Rewards points Wife was seeking, the court found that subsequent to the divorce, Husband transferred to Wife 100,000 points along with $1500 in cash to satisfy 5 the terms of the Rule 80(d) agreement. The court also denied both parties requests for attorneys fees. ¶7 Wife s subsequent motion to amend and/or for new trial was denied by the family court, which determined an award of attorneys reasserted fees to arguments Husband the was court appropriate had already because Wife rejected. Wife timely appealed and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1). DISCUSSION 1 ¶8 Wife challenges the family court s rulings denying her requests for distribution consequential reimbursement (1) modification of retirement damages for for medical Marriott Rewards points. of the decree benefits, unpaid expenses, to (2) spousal and (4) address re- payment of support, transfer (3) of the Regarding the retirement issue, we will affirm an order denying a motion to modify a decree of dissolution unless the record on appeal demonstrates a clear abuse of discretion. De Gryse v. De Gryse, 135 Ariz. 335, 336, 661 P.2d 185, 186 (1983). involving the We review de novo, however, questions interpretation of statutes and court rules. Haroutunain v. Valueoptions, Inc., 218 Ariz. 541, 544, ¶ 6, 189 1 After considering their initial briefs, we ordered the parties to provide supplemental briefs addressing various issues related to distribution of the retirement benefits, which we have also considered. 6 P.3d 1114, 1117 (App. 2008) (internal quotations and citation omitted). As to Wife s other claims, we view the evidence in the most light favorable to sustaining the court s factual findings and will uphold them unless they are clearly erroneous or unsupported by the evidence. In re Marriage of Yuro, 192 Ariz. 568, 570, ¶ 3, 968 P.2d 1053, 1055 (App. 1998). A. ¶9 Distribution of Social Security Benefits Wife argues the family court erred by relying on ARFLP 85(C) in finding that her request to modify the distribution of retirement assets was untimely. Specifically, Wife asserts that Rule 85 is irrelevant because she petitioned the court to modify the terms of the agreement based on A.R.S. § 25-327(A), which provides, in pertinent part, that provisions as to property disposition may not be . . . modified, unless the court finds the existence judgment of under conditions the laws of that justify this the state. reopening Wife asserts of a that because the agreement distributing the retirement benefits was incorporated but not merged into the final divorce decree, it maintained its status as an independent contract and is subject to contract law principles, which state under A.R.S. § 25-327(A). ¶10 constitute laws of this We disagree. Pursuant to A.R.S. § 25-317(A), [t]o promote amicable settlement of disputes between parties to a marriage attendant on . . . the dissolution of their marriage, the parties may 7 enter into a written separation agreement containing provisions for disposition of any property owned by either of them[.] Before the agreement is binding on the family court, however, it is subject to the court s determination of whether the proposed disposition is fair. A.R.S. § 25-317(C). Thus, regardless of whether the parties accept the terms of the agreement, it is ultimately subject to the family court s approval. 25-317(B). it can See A.R.S. § If the court determines the agreement is not fair, request the parties to submit a revised separation agreement or may make orders for the disposition of property or maintenance. A.R.S. § 25-317(C). Once the court approves the disposition, the agreement may only be modified if the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state. ¶11 A.R.S. § 25-327(A). In Breitbart-Napp v. Napp, 216 Ariz. 74, 163 P.3d 1024 (App. 2007), this court addressed the proper avenue for modifying a court-approved property settlement agreement. In that case, the parties entered into an agreement which, like the one in this case, divorce decree. initial matter, was incorporated but not merged into Id. at 78-79, ¶ 13, 163 P.3d at 1028-29. we concluded that whether a the As an separation agreement has merged is of no consequence in determining that the court can reopen its determination 8 that a separation agreement is [or is not] unfair. 2 1029 (internal conclusion, we quotations emphasized Id. at 79, ¶ 13, 163 P.3d at omitted). that all In reaching separation that agreements reflecting property dispositions must be approved by the court. Id. at ¶ 15. of a We then determined that following court approval property settlement agreement, A.R.S. § 25-327(A) controlled when a party could seek to modify the terms of that agreement. Id. at 79-80, ¶ 16, 163 P.3d at 1029-30. Based on the plain language of the statute, which requires conditions that justify the reopening of a judgment under the laws of this state, ( ARCP ) we 60(c)(3) disposition. ¶12 concluded that governs Arizona the Rule of reopening Civil of a Procedure property Id. at 80, ¶¶ 16-17, 163 P.3d at 1030. Applying the reasoning of Breitbart-Napp to this case, we conclude that Wife s petition to modify the terms of the property disposition on the basis of mistake was untimely. 3 Under ARFLP 85(C)(2), any motion to reopen a final judgment on the basis of mistake must be filed not more than six (6) months 2 Whether the agreement is merged into the decree is relevant, however, to enforcement of the decree. See Section D, infra. 3 Although the court in Breitbart-Napp applied ARCP 60(c)(3) rather than ARFLP 85, we find that distinction to be of no consequence. The committee note to ARFLP 85 indicates that it is based on ARCP 60. And the comment to ARFLP 1 states that [w]herever the language in these rules is substantially the same as the language in other statewide rules, the case law interpreting that language will apply to these rules. 9 after the taken. judgment Here, or order was entered or proceeding was the trial court concluded that Wife s request to reopen the decree was untimely because Wife failed to file her petition until more than twelve years after the final decree was entered. Moreover, even assuming the discovery rule applies to Rule 85(C)(2), the court found that Wife became aware of the Social Security distribution issue in March 2010 but did not file her petition until December 2010, three months after the six-month limitation. Thus, Wife s petition was untimely and the trial court did not err in declining to reopen the judgment. ¶13 Wife s reliance on Lamb v. Ariz. Country Club, 124 Ariz. 239, 603 P.2d 510 (App. 1978) is misplaced. According to Wife, Lamb recognized that where a party seeks to re-open and vacate a judgment under ARCP 60(C) based on a claim that the judgment was based on a mutual mistake . . . the real question is whether or not the settlement should be vacated, not whether ARCP 60(C) applies. In that case, however, the parties entered into a settlement agreement outside of the context of family court, and thus A.R.S. §§ 25-327 and -317 simply did not apply. Id. at 239, 603 P.2d at 510. While we do not disagree with Lamb, in our view it has no application in the family court context, where the specific statutes court and operates rules within governing modification of judgments. 10 the the confines re-opening of and ¶14 rule We [] find that additional property support in settlements modification or termination. the are well-established not subject to In re Marriage of Gaddis, 191 Ariz. 467, 469, 957 P.2d 1010, 1012 (App. 1997) (quoting De Gryse, 135 Ariz. at 338, 661 P.2d at 188); see also Edsall v. Superior Court, 143 Ariz. 240, 248, 693 P.2d 895, 903 (1984) (noting that [a] property award is essentially permanent; the well established rule is that property settlements cannot be modified or terminated. ). prohibition is [t]he The rationale behind the general need marriage and family law[.] for finality and stability in De Gryse, 135 Ariz. at 338, 661 P.2d at 188. B. ¶15 Wife Consequential Damages for Unpaid Spousal Support argues the family court erred in refusing to award consequential damages arising from Husband s failure to make spousal maintenance payments through the clearinghouse and his unilateral deductions from support payments. evidence that she was unable to refinance Wife presented her home at an advantageous interest rate in 2000 because of Husband s decision to make maintenance payments outside of the clearinghouse. The court found Wife s claims were barred by statutes of limitation. ¶16 Wife does not dispute that she waited approximately ten years to bring her claim for damages arising from Husband s alleged failure to make spousal maintenance payments through the 11 clearinghouse. findings Nor that her does claims Wife dispute would be the barred family by court s statutes of limitation for contempt under A.R.S. § 12-865, for breach of contract under A.R.S. § 12-548, or for any other real property under A.R.S. § 12-550. As we understand Wife s argument, she believes consequential damages are appropriate because Husband violated a court order by improperly making support payments. Thus, Wife s claim is premised on a claim for contempt of court, which would be subject to the one-year statute of limitations prescribed by A.R.S. § 12-865. Even if a longer statute of limitation applies, her ten-year-old claim cannot survive the most lenient time period. The family court did not err in denying Wife s claim for consequential damages. C. ¶17 Unpaid Medical Expenses Wife argues the family court should have awarded her damages for medical expenses that Husband failed to reimburse but she has not directed us to any evidence supporting her argument that she requested reimbursement for medical expenses in a timely manner. Instead, Wife relies on conclusory allegations that she paid for medical expenses and made timely requests for contribution. of Husband s Husband to make his court-ordered 75% percent The only evidence that Wife presents is a portion deposition testimony from March of 1998, where Husband admitted he failed to reimburse Wife for certain medical 12 expenses. The date of the deposition, however, precedes the decree of dissolution. Thus, although there is evidence that Husband failed to reimburse for medical expenses prior to the finalization of the divorce decree, Wife has presented no evidence that Husband refused to reimburse any expenses after dissolution. ¶18 Even assuming the truth of Wife s assertions, we conclude that her claims for reimbursement are time-barred. In her opening brief, Wife concedes that Husband s obligation to pay medical expenses terminated fourteen months prior to Wife filing her petition. expense Husband would fourteen months old. At that point, the most recent medical have been obligated to reimburse was Section 9(A) of the Arizona Child Support Guidelines mandates that [e]xcept for good cause shown, any request for payment or reimbursement of uninsured medical . . . costs must be provided to the other parent within 180 days after the date the services occur. A.R.S. § 25-320. The rationale behind Rule 9(A) is that one parent should not be permitted to withhold demand unreasonably as expenses mount, thereby depriving the other of the opportunity to cover the expenses with excess monthly benefit payments. Keefer v. Keefer, 225 Ariz. 437, 441 n.2, ¶ 15, 239 P.3d 756, 760 n.2 (App. 2010). Accordingly, because any claim for unpaid medical expenses was 13 at least eight months late, the family court did not err in finding that Wife s claims for such expenses were untimely. D. ¶19 Marriott Rewards Points Wife also asserts the family court erred in determining that Husband had satisfied his obligation under the Rule 80(d) agreement as to Marriott Rewards points transferring 100,000 points and giving her $1500 cash. by Although we decide the issue on different grounds, we find no error. ¶20 merged When into a a property divorce settlement decree, the is incorporated agreement but not retains its independent contractual status and is subject to the rights and limitations of contract law. MacMillan v. Schwartz, 226 Ariz. 584, 589, ¶ 15, 250 P.3d 1213, 1218 (App. 2011). Claims under contract law are subject to the six-year statute of limitations set forth in A.R.S. § 12-548. In this case, Wife did not file her petition seeking the points until approximately twelve years after the divorce decree and accompanying property settlement were final. Wife does not argue, and nothing in the record suggests, that her claim for the Marriott Rewards points is not subject to the six-year statute of limitations for contracts. See Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986) (explaining that appellate court will affirm trial court s decision if it is correct for any reason, even if that reason 14 was not considered by the trial court ). Accordingly, Wife s claim for the Marriott Rewards points was time-barred. E. ¶21 Attorney s Fees Finally, Wife argues the family court erred in awarding attorneys fees to Husband and denying her request. We review a ruling on an attorneys fee request for an abuse of discretion. In re Marriage of Magee, 206 Ariz. 589, 590, ¶ 6, 81 P.3d 1048, 1049 (App. 2004). basis for Wife s argument is We find none here. that rulings when it denied her petition. the court made The sole incorrect Because we are affirming the court s denial of Mother s petition, Wife lacks any basis for her argument related to the fee award. CONCLUSION ¶22 For the foregoing reasons, we affirm the judgment of the family court. We deny, in the exercise of our discretion under A.R.S. § 25-324, both parties requests for attorneys fees on appeal. Husband, however, is entitled to an award of costs upon compliance with ARCAP 21. _____________/s/_________________ MICHAEL J. BROWN, Judge CONCURRING: ______________/s/__________________ PATRICIA K. NORRIS, Presiding Judge ______________/s/__________________ JOHN C. GEMMILL, Judge 15

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