Opinion
No. 1 CA-CV 13-0352
04-03-2014
In re the Marriage of: DARYL GILBERT HOLLEY, Petitioner/Appellant, v. CAROL DEAN HOLLEY, Respondent/Appellee.
The Murray Law Offices, P.C., Scottsdale By Stanley David Murray Counsel for Petitioner/Appellant Popp Law Firm, P.L.C., Tempe By James S. Osborn Popp Counsel for Respondent/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. FC2007-070146
The Honorable Michael W. Kemp, Judge
AFFIRMED
COUNSEL
The Murray Law Offices, P.C., Scottsdale
By Stanley David Murray
Counsel for Petitioner/Appellant
Popp Law Firm, P.L.C., Tempe
By James S. Osborn Popp
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
SWANN, Judge:
¶1 Daryl Gilbert Holley ("Husband") appeals the denial of his request to divide retirement benefits that were not expressly mentioned in the decree dissolving his marriage to Carol Dean Holley ("Wife"). We affirm. We hold that Wife received the benefits as separate property under the decree's general personal property provision, and the benefits therefore were not subject to division under A.R.S. § 25-318(D). This case is distinguishable from Rinegar v. Rinegar, 231 Ariz. 85, 290 P.3d 1208 (App. 2012), in which we allowed division of retirement benefits not included in a general provision, because here the parties settled and the decree reflected their agreements.
FACTS AND PROCEDURAL HISTORY
¶2 In 2007, Husband filed a petition for dissolution of his marriage to Wife. The petition and the parties' Early Resolution Conference statements identified Husband's military retirement benefits as an asset to be distributed but made no mention of any retirement benefits belonging to Wife. At the Early Resolution Conference, the parties used a pre-printed form to document a partial settlement. The parties selected a choice on the form indicating that they had agreed to an allocation of retirement benefits, pension plans, and deferred compensation. Beneath that choice, the form set forth blank spaces titled "Petitioner's" and "Respondent's." The parties filled in the "Petitioner's" section with information describing an equal division of Husband's military retirement benefits, but left the "Respondent's" section blank. In separate parts of the form, the parties agreed that Husband would take the parties' home and each party would take the personal property in his or her possession.
¶3 On the date set for trial, the parties informed the court that they had reached agreement on all issues. The court therefore approved and adopted the parties' written agreement, and entered a decree of dissolution consistent with it and the parties' oral representations. With respect to retirement benefits, the court ordered an equal division of
Husband's military retirement benefits but did not expressly mention any retirement benefits associated with Wife. The decree ordered that each party was awarded "as [his or her] sole and separate property, subject to any liens or encumbrances thereon, all vehicles, household furniture, furnishings and appliances, and other personal property currently in [his or her] possession."
¶4 Years after the decree's entry, Husband filed a petition in which he asked the court to order an equal division of the community interest in retirement benefits that Wife held at the time of the decree. He argued that Wife's benefits were omitted from the decree and the parties therefore held the community interest in them as tenants in common under A.R.S. § 25-318(D). Wife responded by filing a motion to dismiss Husband's petition. She argued that her retirement benefits were not omitted from the decree, but were distributed to her as separate property under the general provision awarding her the personal property in her possession. The court denied Husband's request for additional time to conduct discovery, granted Wife's motion to stay all discovery, and, after full briefing, granted Wife's motion to dismiss. Husband timely appeals.
DISCUSSION
¶5 Under A.R.S. § 25-318(D), "community, joint tenancy and other property held in common for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common, each possessed of an undivided one-half interest." When divorcing spouses together decide to intentionally omit property from their divorce decree, § 25-318(D) applies upon entry of the decree. Thomas v. Thomas, 220 Ariz. 290, 292-94, ¶¶ 10, 15-17, 205 P.3d 1137, 1139-41 (App. 2009). Such a scenario is not alleged here. Husband instead contends that Wife's retirement benefits were omitted from the decree because she concealed their existence from him. The time to seek relief from the decree based on fraud or misrepresentation had long passed by the time Husband filed his petition. See ARFLP 85(C)(2). The only issue on appeal is whether the decree's "catch-all" provision governing personal property applies to Wife's retirement benefits. On this point, the parties dispute whether In re Estate of Lamparella, 210 Ariz. 246, 109 P.3d 959 (App. 2005), or Rinegar v. Rinegar, 231 Ariz. 85, 290 P.3d 1208 (App. 2012), controls.
¶6 In Lamparella, the divorcing spouses agreed to a division of their property by completing a pre-printed form, and the court issued a default decree that incorporated the parties' agreement. 210 Ariz. at 247-48, ¶¶ 4, 6, 109 P.2d at 960-61. The agreement did not specifically mention
an annuity policy that the husband had purchased during the marriage, but did include a catch-all provision that awarded each party all otherwise-undistributed personal property in his or her control. Id. at 248, ¶ 5, 109 P.2d at 961. Upon the husband's death several years later, the wife argued that she was entitled to a portion of the annuity policy proceeds under § 25-318. Id. at ¶¶ 8, 11. We disagreed and held that the broad, unqualified catch-all provision in the parties' agreement included the annuity. Id. at 251, ¶¶ 25-28, 109 P.2d at 964.
¶7 In Rinegar, we held that a similar catch-all provision did not include retirement benefits. 231 Ariz. at 89, ¶¶ 16-17, 290 P.3d at 1212. In Rinegar, the divorcing spouses had specifically excluded the wife's retirement benefits from their pretrial settlement agreement, and had litigated the community interest in those benefits during a disjointed three-day trial before two successive judges. Id. at 86-87, ¶¶ 3-4, 290 P.3d at 1209-10. After the trial, the court failed to address specifically the benefits in the decree of dissolution. Id. at 87, ¶ 5, 290 P.3d at 1210. When the husband later endeavored to divide certain of the benefits, the wife opposed his efforts and argued that the benefits were awarded to her as separate property under the decree's catch-all provision for otherwise-undistributed personal property. Id. at ¶ 6. We distinguished the circumstances from those presented in Lamparella and held that the husband was entitled to one-half of the community interest in the benefits. Id. at 89-90, ¶¶ 16-17, 24, 290 P.3d at 1212-13. We explained that in view of the complex nature of the assets and the case's convoluted procedural history, the decree's failure to distribute the benefits in question was an oversight. Id. at 89, ¶¶ 16-17, 290 P.3d at 1212.
¶8 The instant case is distinguishable from Rinegar. Here, unlike in Rinegar, the distribution of Wife's retirement benefits was never disputed or litigated before entry of the decree. Instead, as in Lamparella, the parties reached an agreement regarding the division of their property and that agreement was reflected in the decree. The agreement and the decree plainly directed that each spouse would receive the personal property in his or her possession. Retirement benefits are "personal property." See Burkett v. Mott, 152 Ariz. 476, 478, 733 P.2d 673, 675 (App. 1986) (describing general definition of personal property as including everything subject to ownership that is not land or an interest in land); see also A.R.S. § 25-201(2) (categorizing property as either real or personal). Though the complex nature of such benefits means that they generally must be described specifically when contested, see Rinegar, 231 Ariz. at 89, ¶ 16, 290 P.3d at 1212, the parties may agree to decree provisions that divide otherwise-undistributed personal property categorically, see
Lamparella, 210 Ariz. at 251, ¶¶ 25-28, 109 P.2d at 964. And though Husband points out that his retirement benefits were divided by a specific provision, nothing required the parties to articulate their agreement in mirror-image terms.
¶9 Wife received her retirement benefits as separate property under the decree. The court did not err by dismissing Husband's petition to divide the benefits as an omitted asset.
CONCLUSION
¶10 We affirm for the reasons set forth above. Husband and Wife each request an award of attorney's fees and costs on appeal under A.R.S. § 25-324. In exercise of our discretion, we deny both parties' requests.