Opinion
No. 1 CA-CV 15-0775 FC
12-13-2016
In re the Marriage of: KEELY ANN D'AMOURS, Petitioner/Appellant, v. JOHN ROBERT D'AMOURS, Respondent/Appellee.
COUNSEL Keely Ann D'Amours, Glendale Petitioner/Appellant John Robert D'Amours, Chandler Respondent/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. DR1995-093968
The Honorable Stephen M. Hopkins, Judge
AFFIRMED
COUNSEL Keely Ann D'Amours, Glendale
Petitioner/Appellant John Robert D'Amours, Chandler
Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Rick A. Williams joined. CATTANI, Judge:
The Honorable Rick A. Williams, Judge of the Arizona Superior Court, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 Keely D'Amours ("Mother") appeals the superior court's ruling that she and John D'Amours ("Father") had an agreement to settle Father's outstanding child support arrearages and other disputed expenses for $3,000. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father divorced in November 1996. They have one son, K.D., who was born in 1994. Under the parties' consent decree, Father was required to pay $147 per month in child support, and out-of-pocket medical expenses were to be paid 65% by Father and 35% by Mother. In 2008, a court order raised Father's support obligation to $590.17 per month.
¶3 When Father's support obligation ended in May 2012, he remained in arrears. Father and Mother exchanged emails in November and December 2012 discussing Father's arrearages. Mother claimed that Father owed over $2,000 in unreimbursed medical and educational expenses in addition to the child support arrearages. After some negotiation, Mother told Father that she would withdraw her claims if Father agreed to pay the full amount of child support owed, plus nearly half of the medical and educational expenses, for a total of $3,000. Father agreed to this arrangement, telling Mother through an email to "[m]ake this binding so it's recognized by the courts." A few weeks later, Mother sent an email to her attorneys explaining that Father was now trying to pay a lower amount, and asking how to make the $3,000 agreement binding. Father and Mother exchanged several emails over the next few years discussing alternative settlement arrangements, but never reached a resolution. Father did not pay any child support between April 2012 and May 2015.
These emails suggest that Mother believed Father's support arrearages only totaled $1,427.25. This differs from a report prepared by the Clearinghouse in June 2015, which indicates that Father owed $1,967.39 as of November 2012.
¶4 In April 2015, Father sought an order regarding his separate property not at issue in this appeal. Mother filed a counter-petition asking the court to enforce the full amount of Father's arrearages. After a hearing on Mother's counter-petition, the superior court found that the couple had formed a binding agreement under Rule 69 of the Arizona Rules of Family Law Procedure during their 2012 email exchange. The court found that Father had paid $457.50 of the agreed $3,000 during the pendency of Mother's petition, and ordered him to pay Mother the remaining balance of $2,542.50.
¶5 Mother filed a motion under Rule 85 seeking relief from the judgment, which the court denied. She then timely appealed, and we have jurisdiction under Arizona Revised Statutes ("A.R.S.") § 12-2101(A)(2).
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
¶6 Mother asks us to review the superior court's finding that she and Father entered into a Rule 69 agreement allowing Father to pay $3,000 to settle his outstanding support obligations. Whether parties intended to be bound by an agreement is a question of fact, which we review for an abuse of discretion. Tabler v. Indus. Comm'n, 202 Ariz. 518, 521, ¶ 12 (App. 2002). We review the superior court's interpretation of the parties' agreement de novo. Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593, ¶ 9 (App. 2009).
¶7 An agreement is binding only when, based on objective evidence, the parties have manifested mutual assent to the agreement. Ames v. Ames, 239 Ariz. 246, 249, ¶ 15 (App. 2016). An agreement may be binding even if the parties have expressed an intent to reduce its terms to a more formal writing at a later date. See AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 299 (App. 1993). The terms of a purported agreement must be reasonably certain for a court to find that the parties intended to be bound. See Schade v. Diethrich, 158 Ariz. 1, 9 (1988).
¶8 The emails exchanged between Mother and Father in 2012 demonstrate their intent to be bound. Mother told Father that she would accept $3,000, including all Father's arrearages plus a portion of the outstanding medical and educational reimbursements. Father told Mother "OK to the $3,000 for all," and asked Mother to take any additional steps, if necessary, to make the agreement binding. At that point, Mother and Father had demonstrated an objective intent to be bound, and the parties' obligations (Mother would withdraw her legal claims and Father would pay Mother $3,000) were reasonably certain.
¶9 Mother argues that the $3,000 agreement was invalid because it was not signed. Mother points to the couple's Joint Custody Agreement, which requires modifications to the couple's custody plan to be in writing and signed by both parties. However, the $3,000 agreement did not concern custody, and is thus not governed by the Joint Custody Agreement. Instead, the superior court properly found that the parents' agreement could be enforced as a Rule 69 agreement. Under Rule 69, an agreement between parties is binding if it is written, regardless whether the parties have signed it. Although Rule 69 is normally applied to enforce agreements made between the parties while a petition is pending before the court, nothing in the rule restricts its use in a situation where the parties settle a post-decree dispute while no matter is pending. See Ames, 239 Ariz. at 248-49, ¶¶ 13-16 (suggesting that parties may form an agreement under Rule 69 through an email exchange even when no petition is pending before the family court).
¶10 Mother further argues that the superior court's order impermissibly modified Father's child support obligations. Neither the court nor the parties may retroactively modify child support obligations. See A.R.S. § 25-327(A); see also Guerra v. Bejarano, 212 Ariz. 442, 443-44, ¶ 7 (App. 2006); State ex rel. Dep't of Econ. Sec. v. Dodd, 181 Ariz. 183, 185 (App. 1994). But a parent may waive his or her right to collect child support arrearages and use that waiver as consideration for an agreement with the other parent. Albins v. Elovitz, 164 Ariz. 99, 101-02 (App. 1990) (allowing the custodial parent to waive her right to child support in exchange for the non-custodial parent's waiver of visitation rights). "[A]ny such agreement is not binding on the court and will be enforced only so long as the interest of the child is not adversely affected." Id. at 102. Because K.D. had attained the age of majority at the time his parents entered into the $3,000 agreement, Mother's waiver was not against his best interests. Thus, the superior court did not abuse its discretion by finding that Mother and Father had entered a binding settlement agreement, with Mother agreeing to waive her right to pursue complete arrearages in exchange for Father's promise to pay Mother $3,000 for the arrearages, as well as for other disputed expenses.
¶11 Finally, Mother claims that even if the parties made an agreement through their email exchange, the agreement was conditional in nature: Father would first pay her $3,000 and then she would waive her claims. Generally, courts do not favor finding that a contract contains such a condition "unless such construction is plainly and unambiguously required by the language of the contract." Pioneer Roofing Co. v. Mardian Constr. Co., 152 Ariz. 455, 470 (App. 1986). Here, Mother offered to accept $3,000 from Father "if we settled out of court." This language did not "plainly and unambiguously" create a condition. Instead, the superior court correctly read this term as an offer to waive Mother's claims in exchange for Father's payment of $3,000, without making payment a condition of Mother's performance.
Mother appears to be requesting an award of prejudgment interest. But she did not raise that issue in the superior court and we thus decline to address it. --------
CONCLUSION
¶12 For the above reasons, we affirm the superior court's finding that Mother and Father entered an agreement to settle Father's child support arrearages, as well as disputed expenses, for $3,000. We award Father his costs on appeal, subject to compliance with ARCAP 21.