Opinion
No. 2 CA-SA 2017-0076
11-24-2017
JAMES D. GUARE JR., Petitioner, v. HON. JAMES E. MARNER AND HON. PAUL E. TANG, JUDGES OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA, Respondents, and CYNTHIA Y. GUARE, Real Party in Interest.
COUNSEL Karp & Weiss, P.C., Tucson By Laura C. Belleau and Jennifer A. Manzi Counsel for Petitioner The McCarthy Law Firm, Tucson By R. Douglas Zirkle and Kathleen A. McCarthy Counsel for Real Party in Interest
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Spec. Act. 7(g), (i). Special Action Proceeding Pima County Cause No. D20151998
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL Karp & Weiss, P.C., Tucson
By Laura C. Belleau and Jennifer A. Manzi
Counsel for Petitioner The McCarthy Law Firm, Tucson
By R. Douglas Zirkle and Kathleen A. McCarthy
Counsel for Real Party in Interest
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Eppich concurred and Judge Howard dissented. VÁSQUEZ, Presiding Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 In this special action arising from a dissolution proceeding, James Guare Jr. asks us to consider whether the respondent judges abused their discretion in ordering him, under penalty of incarceration for civil contempt, "to sign an agreement prepared by counsel for [real party in interest Cynthia Guare] that was inconsistent with and added terms to the parties' written and signed Rule 69[, Ariz. R. Fam. Law P.,] agreement." We accept jurisdiction, and, for the reasons below, we conclude the respondent judges abused their discretion in ordering James to execute a marital settlement agreement and in holding him in civil contempt for failing to do so.
Although the special action petition names only the Honorable James E. Marner as a respondent, the body of the petition makes clear that the petitioner also challenges orders entered by the Honorable Paul E. Tang holding him in contempt for his failure to comply with Judge Marner's April 2017 order. Accordingly, we have directed that Judge Tang be joined as a respondent in this proceeding. See Ariz. R. P. Spec. Act. 2(b) (court may order joinder of parties).
Factual and Procedural Background
¶2 Based on the record provided by the parties, Cynthia filed a petition for dissolution of her marriage to James, and the parties attended mediation in February 2016. Cynthia was represented by counsel, but James's attorney withdrew before the mediation took place. As a result of the mediation, the parties signed a handwritten document memorializing their agreement regarding the "division of assets and debts, and spousal maintenance." Both parties agree this handwritten agreement is valid and binding pursuant to Rule 69 ("the Rule 69 Agreement").
¶3 James has acknowledged "[t]he parties contemplated that this hand-written agreement would be incorporated into a formal Marital Settlement Agreement [("MSA")]," drafted by Cynthia's attorney, "reflecting what the parties agreed to at mediation." In March 2016, Cynthia emailed a first draft of an MSA to James and, according to Cynthia, by August, the parties had resolved "[a]ll of [James's] requested changes . . . with the exception of the issue of spousal maintenance due after the first mortgage on the residence was paid in full." That issue was submitted to the mediator on August 24, 2016, and resolved by him on September 13.
¶4 Cynthia incorporated the additional language approved by the mediator in the thirty-one page MSA she had prepared ("MSA-1") and emailed it to James on September 15. That same day, James hand-delivered a letter stating he had "decided to have this entire matter settled by the courts."
¶5 On October 14, 2016, Cynthia filed a "Motion to Enforce Rule 69 Agreement," asking the trial court to order James to execute the MSA-1 and a consent decree she lodged with her motion. Judge Marner signed the lodged consent decree on November 2, the date originally scheduled for a hearing on Cynthia's motion. James retained counsel before the rescheduled hearing, and, shortly before that hearing, his attorneys filed a response to Cynthia's motion and moved to set aside the previously entered dissolution decree. James argued that "[t]he decree of dissolution and incorporated marital settlement agreement must be set aside as they do not accurately reflect the parties' Rule 69 agreement." And he maintained, "The only terms that have been assented to by both parties were those in the hand-written Rule 69 Agreement, therefore these are the only provisions that this Court should allow [Cynthia] to enforce."
Although Cynthia's motion referred to a "Consent Decree of Legal Separation," it appears she instead lodged a consent decree of dissolution.
¶6 After hearing arguments from the parties, Judge Marner issued an under-advisement ruling on November 16, 2016, denying Cynthia's motion and her request that James be ordered to execute the MSA-1. He granted James's motion to set aside the decree. Explaining his ruling, Judge Marner found "[t]here is no reference in the written agreement, either express or implied, that indicate[s] the parties reached an agreement on the 10% penalty clause, a designation of the mortgage payments as spousal maintenance or the health insurance/utilities reimbursement provision."
In granting the motion to set aside the dissolution decree, Judge Marner found "persuasive" James's arguments that the decree was infirm due to the absence of jurisdictional findings and that he was entitled to relief pursuant to Rule 85(C), Ariz. R. Fam. Law P.
¶7 Judge Marner then ordered counsel for the parties to "confer and submit a revised decree of dissolution/marital settlement agreement," directing that it "(1) . . . not include the 10% penalty clause contained in paragraph 9(b)(i), (2) . . . not include the health insurance and utilities reimbursement provision in paragraph 9[(b)](ii) and (3) specifically indicate[] that the [marital home] mortgage payments are not to be considered spousal maintenance." The respondent further directed that "[a]ll other terms and conditions of the decree of dissolution/marital settlement agreement shall remain the same" and that "both parties shall sign the revised marital settlement agreement." He also cautioned James that if he "unreasonably delay[ed] the completion of the revised decree of dissolution/marital settlement agreement," Cynthia would be permitted to renew her request for attorney fees.
¶8 Cynthia filed a motion for reconsideration, which Judge Marner denied on January 25, 2017. Cynthia's attorney then prepared a revised MSA ("MSA-2") and forwarded it to James's counsel on February 9.
¶9 On March 8, 2017, Cynthia filed a "Motion for Order Requiring Respondent to Execute Marital Settlement Agreement" and request for attorney fees, asserting her MSA-2 had been "corrected per the terms of the November 16, 2016 court order" and maintaining she had "delet[ed] the provisions as set forth" in that order, but James had refused to sign it. In his response to the motion, James reported counsel had conferred as directed, but he alleged the MSA-2 Cynthia prepared "continue[d] to reflect provisions that . . . do not mirror the parties' [Rule 69] agreement" and did not comply with the court's November 2016 order. He argued it had therefore not been unreasonable for him to withhold his signature. He also suggested Cynthia's motion had come as "a surprise" in light of the parties' discussions about placing the matter on the court's inactive calendar until the first mortgage on the marital home had been paid.
¶10 On April 11, 2017, without a hearing, Judge Marner granted Cynthia's motion, finding James had "raised different concerns" in negotiations "between counsel well after the November 16, 2016 ruling," notwithstanding the respondent's order that, after specified changes had been made, "[a]ll other terms and conditions" of the MSA-1 "shall remain the same," and notwithstanding James's failure to "file a motion for reconsideration or clarification, request for appellate review, etc.," of the November 2016 order. Finding the MSA-2 "complies with the Court's ruling," Judge Marner ordered James to sign it by April 28 and awarded Cynthia attorney fees.
¶11 James filed a motion for reconsideration in which he again argued the MSA-2 did not comply with the respondent's November 2016 order and was inconsistent with the Rule 69 Agreement. Judge Marner denied James's motion for reconsideration on May 2, 2017.
¶12 Notwithstanding Judge Marner's rulings, James did not sign the MSA-2. On June 28, 2017, Cynthia filed a "Verified Petition for Order to Appear Re: Contempt and Enforcement" ("Contempt Motion"). On August 27, James filed a petition for special action relief in this court, styled Guare v. Marner, 2 CA-SA 2017-0063, seeking relief from orders that he sign the disputed MSA-2 and the associated contempt charges. Two days later, Judge Tang held an evidentiary hearing on Cynthia's contempt motion and took the matter under advisement.
¶13 The minute entry for that hearing reflected the parties' intentions to lodge alternative forms of a dissolution decree, and it included Judge Tang's grant of their request to set "a hearing for the Court's ruling on the parties['] lodged Decrees," scheduled for September 28. Meanwhile, James informed this court of that hearing, stating in his special action reply that "the trial court ordered both parties to submit decrees, one of which will be signed after hearing on September 28, 2017" and that, "[i]n the event the trial court signs [Cynthia's] decree incorporating the MSA-2, [James] will appeal."
¶14 On September 19, Judge Tang issued an under-advisement ruling finding James in contempt of court. The respondent further ordered that James "execute the [MSA-2] within ten (10) days," or by September 29, to purge the contempt, or otherwise "appear for an Order to Show Cause Hearing" on October 3, "whereupon he will be subject to incarceration in the Pima County Adult Detention Center, until he complies" with the order to execute the MSA-2.
¶15 On September 25, this court issued an order in James's then-pending special action stating, in relevant part:
Petitioner having informed this court that the trial court has directed the parties to submit their respective proposed decrees and is expected to enter an appealable decree at or after a hearing scheduled for September 28, 2017, and it appearing that entry of an appealable decree will render moot the special action relief presently sought by Petitioner,But at the hearing on September 28, Judge Tang declined to adopt either of the alternative decrees lodged by the parties and instead continued the matter until October 3, the date set for the order-to-show-cause hearing on contempt. According to James, the respondent reaffirmed his direction that James purge the contempt by signing the MSA-2, reportedly telling him that, if he did not comply with that directive before October 3, "he had better 'bring his toothbrush' as he would be jailed."
ORDERED: The Court declines to accept jurisdiction.
¶16 This petition for special action followed. Because the parties had an opportunity to fully brief the same substantive issues in Guare v. Marner, 2 CA-SA 2017-0063, we rely on those filings for our consideration of this petition. We granted James's request to stay the trial court proceedings, including the order-to-show-cause hearing scheduled for October 3.
Special Action Jurisdiction
¶17 "Our decision to accept jurisdiction of a special action is highly discretionary." League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, ¶ 4 (2009). A special action affords "extraordinary relief that is usually granted only where justice cannot be satisfactorily obtained by other means." Haag v. Steinle, 227 Ariz. 212, ¶ 4 (App. 2011). Thus, we may accept special action jurisdiction only when there is no "equally plain, speedy, and adequate remedy by appeal." Ariz. R. P. Spec. Act. 1(a).
¶18 In this case, none of the pre-decree orders at issue, including the civil contempt orders, is appealable. See A.R.S. § 12-2101(A); Stoddard v. Donahoe, 224 Ariz. 152, ¶ 8 (App. 2010) (special action "appropriate method to challenge a civil contempt order because the finding of contempt and civil sanctions are not appealable"). And, because the issue presented is purely legal, special action jurisdiction is appropriate. See Sanchez v. Gama, 233 Ariz. 125, ¶ 4 (App. 2013) (special action jurisdiction may be warranted when "issue is a purely legal question of first impression, is of statewide importance, and will arise again").
Whether Special Action Review is Barred by Laches
¶19 Cynthia argues James's request for special action relief is barred by laches, based on his failure to seek relief after the trial court's order on November 16, 2016. "Arizona courts have repeatedly found laches to be the only restriction on the time for filing a petition for special action." State v. Lee, 226 Ariz. 234, ¶ 7 (App. 2011), quoting State ex rel. McDougall v. Tvedt, 163 Ariz. 281, 283 (App. 1989). "Laches will generally bar a claim when the delay [in pursuing it] is unreasonable and results in prejudice to the opposing party." League of Ariz. Cities & Towns, 219 Ariz. 556, ¶ 6, quoting Sotomayor v. Burns, 199 Ariz. 81, ¶ 6 (2000) (alteration added). The prejudice required to bar relief based on laches "may be demonstrated by showing injury or a change in position as a result of the delay." Id. Although "[d]elay alone will not establish a laches defense," id., undue delay, even without a showing of prejudice, may affect whether, in our discretion, we accept jurisdiction, cf. Catalina Foothills Unified Sch. Dist. No. 16 v. La Paloma Prop. Owners Ass'n, 229 Ariz. 525, ¶ 21 (App. 2012) (even if second special action on same issue "not . . . categorically barred," excessive delay "weighs heavily against our exercising extraordinary jurisdiction").
¶20 We agree with our dissenting colleague that James's delay in seeking special action relief was substantial. On May 2, 2017, Judge Marner denied James's motion for reconsideration of the order that he execute the MSA-2. As of that date, James's obligation to either obey that order or challenge it in this court was clear. As noted above, James did not file his initial special action until August 27. But we cannot agree with Cynthia's argument, and suggestions by both respondent judges, that James should have sought special action relief soon after November 16, 2016, when Judge Marner denied Cynthia's order to enforce her MSA-1, ordered the parties to "confer and submit a revised decree of dissolution/marital settlement agreement," corrected per his specific direction, and further ordered that they sign it.
Although Judge Tang suggested Judge Marner had, on April 11, 2017, "rul[ed] a second time against [James] on the merits," Judge Marner had ruled in James's favor in November 2016, denying Cynthia's motion to enforce after finding her MSA-1 inconsistent with the Rule 69 Agreement entered after mediation.
¶21 The November 16, 2016 ruling essentially was in James's favor. We decline to conclude James has "waived" the issues now raised by failing to seek special action relief from an order in his favor, based on its direction that he sign a future, unseen, "revised" agreement that would not be drafted for several months. See League of Ariz. Cities & Towns, 219 Ariz. 556, ¶ 6 (to determine reasonableness of delay, "we examine the justification for delay, including the extent of plaintiff's advance knowledge of the basis for challenge"), quoting Harris v. Purcell, 193 Ariz. 409, ¶ 16, (1998); cf. BCAZ Corp. v. Helgoe, 194 Ariz. 11, ¶ 14 (App. 1998) (court's "interlocutory or intermediate order . . . subject to change prior to final judgment"); In re Mario L., 190 Ariz. 381, 383 (App. 1997) (interlocutory orders "may always be reconsidered prior to final judgment"), quoting Langevine v. District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997). For example, notwithstanding Judge Marner's November 2016 order, the parties could have agreed to different terms, consistent with Rule 69, Ariz. R. Fam. Law P., and A.R.S. § 25-317, and presented the trial court with a new, agreed-upon MSA, obviating the need for special action relief from the November 2016 order. See § 25-317(A), (B) ("parties may enter into a written separation agreement containing provisions" for property disposition and spousal maintenance that is "binding on the court unless it finds . . . the separation agreement is unfair").
¶22 We are not persuaded by James's arguments, however, that he was relieved of the obligation to obey the April 2017 order because Cynthia "at any time could have lodged a decree thereby abrogating" the order, or that "the issue was not ripe until after June 28, 2017," when Cynthia moved to hold him in contempt. But James also maintains the nearly four-month delay was not unreasonable because "[t]hroughout the process," his attorney "made attempts to reach a resolution regarding the various issues in the case, to include the contempt issues." See League of Ariz. Cities & Towns, 219 Ariz. 556, ¶ 7 (noting petitioner's argument that "the parties' ongoing negotiations justified the delay").
¶23 Even if James unreasonably delayed his first petition for special action relief, however, "delay alone will not satisfy the test for laches" as a bar to relief, as "[t]he complaining party must also prove prejudice." Id. ¶ 9; see also Lee, 226 Ariz. 234, ¶ 7 (even assuming unreasonable delay, special action not barred by laches where opposing party failed to show prejudice). Cynthia maintains she was prejudiced by having to initiate a motion to hold James in contempt, and by incurring associated attorney fees, to enforce Judge Marner's April 2017 order. But we conclude this does not reflect an "injury or a change in position as a result of the delay" required to establish laches. League of Ariz. Cities & Towns, 219 Ariz. 556, ¶ 6. Judge Tang has enforced James's obligations with respect to the original Rule 69 Agreement, regardless of his failure to sign the MSA-2, and, as a sanction for James's delay in these proceedings, respondents have ordered James to pay Cynthia's attorney fees from before and after the hearing on November 16, 2016.
¶24 Finally, our supreme court has explained that laches "does not implicate our authority to decide the case; rather, it relates to our exercise of discretion whether to take the case," id. ¶ 5, and "[w]hen determining whether laches should preclude a claim, we consider all factors, including . . . the magnitude of the problem at issue," id. ¶ 13. Notwithstanding James's highly questionable delay in seeking special action relief, we conclude the respondents abused their discretion in ordering James to sign the MSA-2, and, in our discretion, we accept special action jurisdiction. See State ex rel. Romley v. Superior Court, 184 Ariz. 409, 410 (App. 1995) (special action jurisdiction appropriate "to correct a plain and obvious error committed by the trial court"); see also Ariz. R. P. Spec. Act. 3(b) (special action may raise issue whether respondent "has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority").
Discussion
¶25 James first maintains the respondents abused their discretion by ordering him to sign the MSA-2 "despite the fact that [he] indicated he does not agree to the terms of [the] MSA-2 as they significantly differ from the Rule 69 Agreement." But he also contends that, should the respondents have concluded otherwise, they could have enforced the MSA-2 without his signature by finding it complied with Rule 69, Ariz. R. Fam. Law P., finding it was "not unfair" under § 25-317, and incorporating or merging it into a decree, as this would afford him the ability to contest the decree on appeal. In support of the second proposition, he relies on Muchesko v. Muchesko, 191 Ariz. 265 (App. 1997). In that case, we held objective evidence established "mutual assent" to an MSA, even though it was unsigned by the wife, when it had been prepared by the wife's attorney and offered to and signed by her husband, and both parties had acted in accordance with the agreement for three years. Id. at 268-69, 271.
James argues at length that the "MSA-2 is not the agreement contemplated by the parties in their Rule 69 agreement and should not be enforced." Because we conclude the respondent judges abused their discretion by ordering James to sign the MSA-2, we do not reach his arguments regarding the enforceability of the MSA-2 without his signature. Those arguments are best addressed by the trial court in proceedings related to the entry of a dissolution decree.
Orders Directing James to Sign the MSA-2
¶26 A dissolution proceeding is a statutory action, and, "[d]espite the application of equitable standards," a trial court in such a proceeding "has only such jurisdiction as is granted by statute." Weaver v. Weaver, 131 Ariz. 586, 587 (1982). Matters of statutory construction, and those involving the construction of court rules, are subject to de novo review. Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, ¶ 49 (App. 2008).
¶27 "To promote amicable settlement of disputes," § 25-317 authorizes parties to "enter into a written separation agreement containing provisions for disposition of any property owned by either of them[ or] maintenance of either of them." § 25-317(A). The terms of such an MSA are "binding on the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence . . . that the separation agreement is unfair." § 25-317(B).
Section 25-317(B) does not apply to the terms of an MSA "providing for the support, custody and parenting time of children." The Guares have no minor children affected by this proceeding.
Section 25-317(D) further provides, "If the court finds that the separation agreement is not unfair as to disposition of property or maintenance . . . , the separation agreement shall be set forth or incorporated by reference in the decree of dissolution or legal separation . . . ."
¶28 In this proceeding, James maintains he never assented to the MSA-2, alleging its terms deviate from the Rule 69 Agreement entered by the parties. In such circumstances, when a party challenges the existence of an agreement or its terms, a trial court must address whether the MSA is enforceable, under relevant provisions of contract law, before reaching any issue of fairness under § 25-317. See Muchesko, 191 Ariz. at 268 (binding settlement agreement must satisfy all elements of valid contract).
Pursuant to Rule 69(A), Ariz. R. Fam. Law P., "An Agreement between the parties shall be valid and binding if . . . the agreement is in writing," is set forth on the record before a judge or authorized person, or is set forth in an audio recording made before a mediator appointed by the court.
¶29 While satisfaction of the "writing" requirement of Rule 69, Ariz. R. Fam. Law P., may be necessary to enforce a settlement agreement, it is not, standing alone, sufficient. The agreement must also satisfy all requirements for a valid contract. See Ames v. Ames, 239 Ariz. 246, ¶¶ 15-16 (App. 2016) (even if exchange of emails satisfied "writing" requirement of Rule 69(A)(1), Ariz. R. Fam. Law P., husband's apology for failing to pay maintenance was not manifestation of assent to extend operative maintenance period); Muchesko, 191 Ariz. at 268, (binding settlement agreement must satisfy all elements of a valid contract). And, although Rule 69, Ariz. R. Fam. Law P., may require a writing, it does not require a party's signature. See Murray, 239 Ariz. 174, ¶¶ 12-13 (suggesting email correspondence satisfied Rule 69, Ariz. R. Fam. Law P., writing requirement); cf. Robertson v. Alling, 237 Ariz. 345, ¶¶ 2, 22 (2015) (Rule 80, Ariz. R. Civ. P., does not "require the written assent of a client" to agreement entered by attorney "cloaked with apparent authority" to do so).
¶30 The MSA-2 is indisputably a written, albeit unsigned, document and, therefore, meets the "writing" requirement under Rule 69, Ariz. R. Fam. Law P. James contests his assent to the agreement and, on that basis, maintains it is unenforceable and has refused to sign it. But even without his signature, the trial court is free to conclude otherwise. See Muchesko, 191 Ariz. at 268. As with any contract, the court may determine whether a contract existed based on "objective manifestations of assent by the parties." Hill-Shafer P'ship v. Chilson Family Trust, 165 Ariz. 469, 474 (1990). If it is satisfied as to the existence and terms of a binding agreement, the court may then proceed to determine, pursuant to § 25-317(D), whether those terms are "not unfair," and, based on such findings, enter a decree that merges or incorporates the MSA-2.
Pursuant to § 25-317(C), a trial court is authorized to modify an MSA if it finds its provisions "unfair." See Keller v. Keller, 137 Ariz. 447, 448 (App. 1983) (court "can, if it believes the agreement to be unfair or inequitable, reject or modify the agreement"). But where, as here, the issues raised do not implicate fairness and the terms of an agreement voluntarily executed by the parties, the court has no such authority. See, e.g., Isaak v. Mass. Indem. Life Ins. Co., 127 Ariz. 581, 584 (1981) (not within power of court "to 'revise, modify, alter, extend, or remake' a contract to include terms not agreed upon by the parties"), quoting Goodman v. Newzona Inv. Co., 101 Ariz. 470, 472 (1966). A court may, of course, proceed to trial on any issues not resolved by the parties' agreement. See A.R.S. § 25-312(4) (dissolution decree must reflect findings that, "[t]o the extent it has jurisdiction to do so, the court has considered, approved or made provision for . . . the maintenance of either spouse and the disposition of property").
¶31 In sum, we find no authority, under statute or rule, suggesting a trial court may order a party to execute an MSA that he disputes, as respondents have done here. James's signature on an MSA is unnecessary for the respondents to have found that it nevertheless constitutes the parties' binding agreement. And based on that finding, the respondents could have merged or incorporated the terms of the MSA into a decree. Entry of a decree that merges or incorporates an MSA, based on the findings described above, would leave no doubt that a party has preserved a challenge to the MSA in any appeal of the decree.
We reject Cynthia's assertion that under Rule 70(a), Ariz. R. Civ. P., "a court can not only order a party to sign a document, but also has the authority to order a third person to sign on behalf of a party," to the "same effect." Rule 70(a), Ariz. R. Civ. P., like its family law counterpart, Rule 89(A), Ariz. R. Fam. Law P., provides a remedy when a party fails to comply with a judgment's direction to perform an act, such as the conveyance of land, by permitting the court to "order the act to be done—at the disobedient party's expense—by another person appointed by the court." Ariz. R. Civ. P. 70(a). But as James maintains, these rules only apply "[i]f a judgment" directs a party's execution of a document or other act; in this case, no judgment or decree has been entered. See De Beers Consol. Mines v. United States, 325 U.S. 212, 218 (1945) (similar provision of Rule 70, Fed. R. Civ. P., "operative only after a judgment is entered"). --------
Civil Contempt for Failing to Sign the MSA-2
¶32 We review a civil contempt finding and any sanction for an abuse of discretion, accepting a trial court's factual findings unless clearly erroneous. Stoddard, 224 Ariz. 152, ¶ 9. We appreciate Judge Marner's frustration, clearly shared by Judge Tang, after Cynthia informed the court that she had made all of the corrections required by the November 2016 order but James was refusing to execute the MSA-2 and related documents. But, again, there has been no judgment entered here.
¶33 We find persuasive James's argument that requiring him to sign the agreement was both unnecessary and potentially detrimental to his position on appeal. See Teran v. Citicorp Person-to-Person Fin. Ctr., 146 Ariz. 370, 372 (App. 1985) (generally, party who signs written agreement "is bound to know and assent to its provisions in the absence of fraud, misrepresentation, or other wrongful acts by the other party"). As discussed, James's signature on the MSA-2 is not required for entry of a decree. See Muchesko, 191 Ariz. at 268. And James would then have the opportunity to challenge the decree on appeal without the need to argue that his signature, entered under penalty of incarceration for civil contempt, was obtained by duress.
¶34 Because we conclude Judge Marner lacked authority to order James to sign the MSA-2, we also vacate Judge Tang's finding of civil contempt and the order to show cause why James should not be "subject to incarceration . . . until he complies with" the trial court's order that he execute the MSA-2. The United States Supreme Court has cautioned that, "in selecting contempt sanctions, a court is obliged to use the least possible power adequate to the end proposed." Spallone v. United States, 493 U.S. 265, 276 (1990), quoting United States v. City of Yonkers, 856 F.2d 444, 454 (2d Cir. 1988). In this case, because James's signature on the MSA-2 was not required for the entry of a decree, an order authorizing his incarceration, which could be purged only by his signature, was excessive. See Stoddard, 224 Ariz. 152, ¶¶ 1, 26 (sanction that detention officer be jailed until he apologized to counsel at a news conference did not "appropriately fit the circumstances of the contempt").
¶35 Nonetheless, James was not entitled to simply ignore the respondent's order, even if it was entered in error. Cf. Broomfield v. Maricopa County, 112 Ariz. 565, 568 (1975) (noting "settled principle of law that an order issued by a court with jurisdiction over the subject matter must be obeyed by the parties until that order is reversed by orderly and proper proceedings"). Thus, some sanctions may have been appropriate for his causing delay following Judge Marner's order to sign the MSA-2, particularly between May 2, when Judge Marner denied his motion for reconsideration, and August 27, when James first petitioned this court for special action relief. James has not requested that we overturn the substantial awards of attorney fees to Cynthia, including fees she incurred in bringing her unsuccessful motion to enforce the MSA-1 in the fall of 2016, and we decline to do so.
Disposition
¶36 We accept special action jurisdiction. For the reasons set forth above, we conclude the respondent judges abused their discretion in ordering James to sign the MSA-2, a contested settlement agreement, and in finding that he "continues to be" in civil contempt of court and therefore subject to incarceration for failing to sign that document. We vacate those directives and the civil contempt finding, and we remand the case to the trial court for further proceedings consistent with this decision. We deny Cynthia's request for fees. HOWARD, Judge, dissenting:
¶37 I must respectfully dissent. James failed to challenge immediately the trial court's April 11, 2017 order that he sign the MSA. He did not file a special action after the court denied his motion for reconsideration of May 2, 2017. He did not challenge the April 11 order after Cynthia filed a petition for contempt on June 28, 2017. Rather, he waited until two days before the contempt hearing to file his first special action on August 27, 138 days after the order. And he has continued to refuse to obey the court order after filing the special action. His delay is unreasonable. It is clear the special action is another delaying tactic that this court should not allow. I would decline jurisdiction. See League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, ¶ 4 (2009) ("Our decision to accept jurisdiction of a special action is highly discretionary.").