Trkula v. Trkula ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
JANAE TRKULA, Petitioner/Appellant,
v.
GERALD TRKULA, Respondent/Appellee.
No. 1 CA-CV 15-0598 FC
FILED 4-28-2016
Appeal from the Superior Court in Maricopa County
No. FC2014-095680
The Honorable Joseph Sciarrotta, Judge, Retired
AFFIRMED
COUNSEL
Modern Law, Mesa
By Kevin Joseph Vale
Counsel for Petitioner/Appellant
Blumberg & Associates, Phoenix
By Bruce E. Blumberg
Counsel for Respondent/Appellee
TRKULA v. TRKULA
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Lawrence F. Winthrop joined.
K E S S L E R, Judge:
¶1 Appellant Janae Trkula (“Mother”) appeals the family court’s
entry of a consent decree as a final order pursuant to Arizona Rule of Family
Law Procedure (“Rule”) 81. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother filed a Petition for Dissolution of Marriage in October
2014. In June 2015, Mother and Father participated in a two-day settlement
conference and reached an agreement pursuant to Rule 691 (the
“Agreement”). The family court read the terms of the Agreement on the
record and found the Agreement “reached by the parties . . . [was] in the
parties’ best interests, [was] fair and equitable, constitute[d] a binding
agreement under Rule 69,” and was immediately enforceable as an order of
the court. As discussed more fully below, the parties affirmed to the court
at the settlement conference that there were no other issues to discuss. The
court then ordered Father to submit a consent decree based on the parties’
Agreement within two weeks (the “Decree”).
¶3 One month later, Father filed a Notice of Lodging Decree,
claiming that Mother refused to sign the Decree, sought to change the
parties’ agreements, and demanded additional discovery. Mother objected,
arguing that the Decree, as drafted by Father, was not faithful to the
agreements reached at the settlement conference. After reviewing the
Decree, the family court found the Decree “conform[ed] to the agreements
reached by the parties and the settlement conference held before the Court,”
overruled Mother’s objection, and signed the Decree as a final order
1 “An agreement between the parties shall be valid and binding if the
agreement is in writing; the terms of the agreement are set forth on the
record before a judge . . . ; or the terms of the agreement are set forth on any
audio recording device before a mediator or settlement conference officer
appointed by the court pursuant to Rule 67.” Rule 69.
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pursuant to Rule 81. Despite their disagreement over the form of the
Decree, the parties agree that the Agreement reached at the settlement
conference resulted in a binding Rule 69 agreement.
¶4 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, and Arizona Revised
Statute (“A.R.S.”) § 12-2101(A) (Supp. 2015).2
DISCUSSION
¶5 Mother argues the family court erred in entering the Decree
as a final order without her signature and over her objection because (1) the
Decree altered or added to the terms of the Agreement and (2) the
Agreement was not intended to be a complete settlement of all issues. We
disagree.
¶6 Parties to a divorce may settle and adjust all property rights
growing out of the marital relation by agreement. Keller v. Keller, 137 Ariz.
447, 448 (App. 1983); Rule 67(D). Settlement is but one of several avenues
available to parties who wish to divorce without going to trial. See Rule 45
(“Whenever the petitioner and respondent agree to the terms of a legal
separation, annulment, dissolution, paternity, or maternity action, the
parties may elect to proceed by Consent Decree, Order, or Judgment
without hearing . . . .”) and 67 (allowing divorcing parties to engage in
mediation, arbitration, and settlement).
¶7 Rule 67(D) provides the rules applicable to settlement
conferences and agreements in the context of divorce. Although dissolution
of a marriage by consent decree requires the parties’ signatures, Rule
45(B)(1), Rule 67(D)(5) clarifies that a judge conducting a settlement
conference may sign “any Decree of Dissolution presented that conforms to
the agreements reached by the parties.” Rule 67(D)(5).
¶8 Although Mother urges us to review entry of the Decree de
novo, the determination whether a consent decree conforms to the parties’
settlement agreement is a factual determination. We will not disturb the
court’s factual determinations unless they are clearly erroneous. See
Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13 (App. 2001). A finding of fact is
not “clearly erroneous” if substantial evidence supports it, even though
there might be substantial conflicting evidence. Moore v. Title Ins. Co. of
Minnesota, 148 Ariz. 408, 413 (App. 1985). We will not reweigh the evidence
2We cite the current version of applicable statutes when no revisions
material to this decision have occurred.
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Decision of the Court
and will construe the evidence in the light most favorable to affirming the
court. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51, ¶ 11 (App. 2009).
¶9 After reviewing the transcript of the settlement conference,
we conclude sufficient evidence exists on the record to support the family
court’s determination that the Decree conformed to the Agreement and the
Agreement was intended to be a complete settlement. First, the Decree
accurately represents the provisions of the Agreement that Mother
highlights in her brief. As Mother notes, one Decree provision does not
adhere literally to the language of the settlement transcript: the parties had
agreed on the record that Father would pay Mother a lump sum
representing “mother’s share in the equity . . . on the home,3 and spousal
maintenance and any unpaid or unreimbursed children [sic] expenses,” but
the Decree stated that the sum also represented “an equitable division of
the marital assets.” However, this additional language in the Decree
merely states the status of the parties’ affairs after the parties affirmed to
the court that there were no further issues to discuss; by dividing their
property by agreement, the parties relieved the court of its duty to
undertake equitable division of the community. A.R.S. § 25-318 (Supp.
2015) (“[The court] shall . . . divide the community, joint tenancy and other
property held in common equitably, though not necessarily in kind . . . .”).
The provision of the Decree is therefore a substantially accurate statement
of the parties’ Agreement and the legal effect of that Agreement.
¶10 Second, the record does not support Mother’s argument that
there were property issues left unresolved in the Agreement. In her
objections to the proposed Decree filed in the family court, Mother
contended that there were unresolved issues of several bank accounts,
Father’s federal retirement benefits, pension and unpaid sick leave, and her
property in Father’s possession. However, the Agreement addressed the
return of Mother’s property in Father’s possession and the division of a
401(K) by QDRO. Father’s response to the objections was, in part, that most
of these issues were subject to a discovery dispute that had been waived by
entry of the Agreement.
¶11 The trial court’s determination that the Agreement was
complete is supported by the parties’ representation to the settlement judge
that there was nothing else to discuss about the Agreement after the court
had read the terms into the record and instructed Father’s counsel to
prepare and file a consent decree. See also Rule 67(D)(5) (providing that the
3The home was Father’s sole and separate property, but Mother had a
marital lien on the home.
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parties shall acknowledge that any agreement is “intended to be a final
binding agreement pursuant to these rules . . . .”). When the court recorded
the terms of the Agreement and ordered preparation of a consent decree,
Mother did not voice objection that the Agreement was incomplete. Her
failure to do so waived any argument that the Agreement was only partial
in scope. See Amparano v. ASARCO, Inc., 208 Ariz. 370, 374, ¶ 13 (2004)
(stating that failure to raise an issue in the trial court constitutes waiver of
issue on appeal). Finally, Mother made no objection to Father’s disclosures
during the dissolution proceeding, and Mother has not alleged fraud or
undue influence. See In re Henry’s Estate, 6 Ariz. App. 183, 185-86 (1967)
(“[A] property settlement agreement entered into by the parties in
contemplation of divorce is valid, and, in the absence of fraud or undue
influence, is binding on the parties.”)
¶12 We also reject Mother’s argument that the family court
implicitly recognized other issues had to be addressed by ordering the
parties to put the terms of the Agreement into a written decree after the
conference. The Rules clearly provide the court with the option of having
a decree prepared and entering the decree. See Rule 70(B) (“[T]he court may
require the parties to place their agreement on the record in accordance
with Rule 69 . . . or make such other orders as are reasonable under the
circumstances to ensure that a final judgment, decree, or order is entered.”);
Rule 67(D)(5) (After ensuring the agreement has been reached, the judge
“shall make any findings necessary to approve the agreement . . . and may
sign any Decree of Dissolution presented that conforms to the agreements
reached by the parties.”). Additionally, the court did not indicate that the
Agreement was to be a partial agreement during the conference, and the
court did not report a partial judgment after the conference. See Rule
67(D)(7) (“If no or partial agreement is reached in the settlement conference,
the settlement conference judge or commissioner shall file a brief report
with the court stating that the parties met and attempted to resolve their
differences, but the settlement conference was unsuccessful.”) By requiring
submission of a consent decree to conclude the matter without any
indication that unresolved issues remained, the family court and the parties
recognized at the time the Agreement was read into the record that the
Agreement was intended to resolve all issues pending before the court.
¶13 In light of these facts, the court did not abuse its discretion
when it signed the Decree pursuant to Rule 67(D)(5) and entered the Decree
pursuant to Rule 81.
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CONCLUSION
¶14 For the foregoing reasons, we affirm. Father seeks an award
of attorneys’ fees pursuant to A.R.S. §§ 25-324(A) (Supp. 2015), -324(B)(1)-
(3), Rule 78(D), and ARCAP 25 on appeal. Mother also seeks an award of
fees and costs on appeal. We decline to award fees to either party. As the
prevailing party on appeal, we will award taxable costs on appeal to Father
upon his compliance with ARCAP 21.
:ama
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