Miner v. Miner ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
ANGELA R. MINER, Petitioner/Appellee,
v.
ERIC L. MINER, Respondent/Appellant.
No. 1 CA-CV 21-0155 FC
FILED 10-21-2021
Appeal from the Superior Court in Maricopa County
No. FC2017-095713
The Honorable Suzanne Scheiner Marwil, Judge
AFFIRMED
COUNSEL
Curry Pearson & Wooten PLC, Phoenix
By Daniel Seth Riley
Counsel for Petitioner/Appellee
Raymond S. Dietrich PLC, Phoenix
By Raymond S. Dietrich
Counsel for Respondent/Appellant
MINER v. MINER
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Eric Miner (“Husband”) appeals the superior court’s order
requiring him to make monthly Koelsch payments to Angela Miner
(“Wife”). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Husband and Wife married in 1998. During the marriage,
Husband worked for the Phoenix Police Department. As a police officer,
Husband participates in the Arizona State Public Safety Personnel
Retirement System (“Pension”). Husband still worked for, but could not
retire from, Phoenix Police Department when the parties divorced in
November 2017.
¶3 In the consent decree, the parties agreed to equally divide the
community’s interest in the Pension. The decree required the parties to hire
an attorney to “prepare any orders and documentation necessary to
effectuate a division of the Pension.” In September 2019, the parties entered
a stipulated domestic relations order (“Order”) that divided the Pension.
The Order provided: “[Wife] is awarded as her sole and separate property
a pro-rata share of [the Pension] payable directly . . . at the same time and
in the same manner payments are made to [Husband].”
¶4 In June 2020, Wife petitioned to enforce the decree’s provision
concerning the Pension. Wife alleged “Husband will reach retirement
eligibility within forty-five days and intends to continue working.” Wife
then asked the superior court to amend the Order and compel Husband to
make reimbursement payments under Koelsch v. Koelsch. 148 Ariz. 176, 185
(1986); see also DeLintt v. DeLintt, 248 Ariz. 451, 453, ¶ 4 (App. 2020) (Koelsch
payments are reimbursements owed by an employee spouse who continues
working after becoming eligible to retire). Husband responded that Wife
waived her claim to Koelsch payments because the Order did not permit
such payments. The Order contemplated this disagreement, stating: “[t]he
parties disagree as to whether [Wife] has a right to make a claim under
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MINER v. MINER
Decision of the Court
[Koelsch] and this issue is not resolved here nor shall any provision in this
order be construed in favor of one party or the other if a legal determination
is sought.”
¶5 After an evidentiary hearing, the superior court found that
Husband’s decision to continue working entitled Wife to Koelsch payments.
In its November 2020 minute entry, the court reasoned that the Order’s
explicit language established that Wife “did not waive her right to Koelsch
payments and left the issue for the Court to decide.” The court then ordered
the parties to hire an expert to calculate the value of the Koelsch payments.
¶6 Husband filed a notice of appeal, which we dismissed as
premature because the amount of Husband’s Koelsch payments remained at
issue. The superior court then entered a final order that included the
monthly amount owed to Wife. We reinstated Husband’s appeal and have
jurisdiction under A.R.S. § 12-2101(A)(2) and Arizona Rule of Family Law
Procedure 78(c).
DISCUSSION
¶7 Interpretation of an existing decree presents a question of law,
which we review de novo. See Quijada v. Quijada, 246 Ariz. 217, 219, ¶ 5 (App.
2019). Husband argues Wife waived her right to seek Koelsch payments
when she stipulated to the Order. Husband also argues the superior court
lacked jurisdiction to order Koelsch payments and that such payments
violate the Pension Clause of the Arizona Constitution.
I. Koelsch Payments
¶8 Our Supreme Court defines a matured pension as an
“unconditional right to immediate payment.” See Koelsch, 148 Ariz. at 178
n.2 (cleaned up). When an employee spouse continues working after his
retirement benefits mature, then he is “liable to reimburse the non-
employee spouse for the property interest in the monthly pension benefit.”
Id. at 185. A non-employee spouse may waive her right to seek Koelsch
payments if that spouse agrees to receive her share of benefits when
distributed to the employee spouse. See Quijada, 246 Ariz. at 221, ¶ 10.
¶9 The Order’s language setting forth the timing and terms of
how the Pension would pay Wife, is identical to the domestic relations
order’s language in Quijada. Id. at 220, ¶ 5. Unlike Quijada, however, here
the parties expressly addressed Koelsch. The Order memorialized the
parties’ dispute about whether Wife retained “a right to make a claim under
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MINER v. MINER
Decision of the Court
Koelsch” and commands that no “provision in this order be construed in
favor of one party or the other if a legal determination is sought.”
¶10 In Quijada, we found the non-employee spouse waived the
right to receive Koelsch payments by agreeing to receive her share of the
benefits directly from the pension system, at the same time, and in the same
manner as the employee-spouse. Id. at 221, ¶ 10. The non-employee spouse
in Quijada also failed to include any alternatives to the specific distribution
described in the domestic relations order. Id. But here, the parties
anticipated litigation and agreed that the superior court would enter an
amended order if Koelsch payments were required. See DeLintt, 248 Ariz. at
454, ¶ 10. The Order makes clear that Wife did not waive her right to Koelsch
payments and the court did not err in finding her entitled to them.
II. Husband’s Other Arguments
¶11 Husband contends the superior court lacked jurisdiction to
order Koelsch payments. He correctly notes that Section 11 of the Order
reserves the court’s jurisdiction “to amend this Order but only for the
purpose of establishing or maintaining its acceptance to the relevant System
or Plan.” But the parties also agreed to Section 3(d), which reserved the
court’s authority to amend the Order to “reflect the amount of the Koelsch
payment.” We find no error.
¶12 Husband also contends that Koelsch violates the Pension
Clause of the Arizona Constitution. See Ariz. Const. art. 29, § 1(D). He failed
to raise this issue to the superior court and cannot assert it for the first time
on appeal. See Lemons v. Showcase Motors, Inc., 207 Ariz. 537, 541, ¶ 17 n.1
(App. 2004). Notwithstanding waiver, our Supreme Court approved
Koelsch payments to compensate the non-employee spouse for her interest
in the pension benefit. See Koelsch, 148 Ariz. at 185. We may not abandon
Koelsch without further direction from our Supreme Court. See State v.
Lucero, 223 Ariz. 129, 137, ¶ 24 (App. 2009).
III. Attorneys’ Fees
¶13 Both parties request attorneys’ fees under A.R.S. § 25-324. In
the exercise of our discretion, and after considering the parties’ financial
resources, we award Wife her reasonable attorneys’ fees and costs on
appeal upon compliance with ARCAP 21.
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MINER v. MINER
Decision of the Court
CONCLUSION
¶14 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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