Staker v. Staker ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
KARI ELANA STAKER, Petitioner/Appellee,
v.
JONATHAN LEE STAKER, Respondent/Appellant.
No. 1 CA-CV 21-0766 FC
FILED 3-30-2023
Appeal from the Superior Court in Maricopa County
No. FC2015-001756
The Honorable Kerstin G. LeMaire, Judge
AFFIRMED
COUNSEL
Al Arpad Esq., Phoenix
By Alexander R. Arpad
Counsel for Respondent/Appellant
Udall Shumway PLC, Mesa
By Steven H. Everts, David R. Schwartz
Counsel for Petitioner/Appellee
STAKER v. STAKER
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge David D. Weinzweig joined.
C A M P B E L L, Judge:
¶1 Jonathan Lee Staker (Husband) challenges the superior
court’s ruling directing him to sell a marital community interest in Pediatric
Dental, LLC (Pediatric Dental) and split equally all past and future Pediatric
Dental dividends with Kari Elena Staker (Wife). Discerning no error, we
affirm.
BACKGROUND
¶2 In their marital community, Husband and Wife held a 25
percent ownership interest in Pediatric Dental. After commencing
marriage-dissolution proceedings, the parties agreed to sell that interest
and divide the proceeds equally. Despite their understanding, the parties
could not agree on a sales approach. Wife asserted that Husband thwarted
any potential sale by refusing to participate in an appraisal process.
Husband, for his part, argued that the parties should accept an outstanding
offer to buy the community interest—negating any need for a business
valuation. Pointing to the impending maturity of a ten-year balloon loan on
Pediatric Dental-owned property, Husband also contended that absent a
quick sale of their ownership interest, both parties would need to pay one-
half of the marital-community share of the balloon payment.
¶3 The parties tried the matter to the superior court. Shortly
thereafter, they filed supplemental briefs addressing, as relevant here, the
Pediatric Dental interest. Wife claimed that Husband paid off their portion
of the Pediatric Dental loan “without any consultation”; instead, sending
her a copy of a check purportedly paying their share of the loan payoff with
a demand for reimbursement of her one-half share. Husband, in turn,
acknowledged that he had not presented documentary evidence of the loan
payoff at trial, but countered that he had both disclosed the impending loan
maturity and testified to the payoff at trial. Given that notice, Husband
asked the court to hold Wife responsible for one-half of the marital payoff
amount.
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STAKER v. STAKER
Decision of the Court
¶4 After full briefing, the superior court entered a dissolution
decree (Decree) directing Husband to sell the Pediatric Dental interest “to
his partners according to the terms of the Buy-Sell Agreement between the
partners,” stating that “the net proceeds shall be divided equally.” As part
of a stipulated motion, the parties subsequently asked the court to rule on
the outstanding issues raised in their supplemental briefs. In a
supplemental ruling (the Supplemental Ruling), the court found that
Husband was “not entitled to reimbursement for the Pediatric Dental Loan
payoff because no evidence was presented at trial concerning same.” Upon
the court certifying its ruling as final and appealable—“together with the
Decree”—under then-Arizona Rule of Family Law Procedure (Rule) 81,
Husband moved for reconsideration, which the court denied. Husband did
not appeal.
¶5 Nearly three years later, Wife petitioned to enforce the
division of the Pediatric Dental interest. She explained that Husband had
received regular Pediatric Dental dividends since making the loan payoff
but had refused to divide them; instead, claiming to deduct them from the
loan payoff amount he maintained Wife owed him. Husband moved to
dismiss the petition, asserting the Decree only awarded Wife one-half of the
“net proceeds” of a Pediatric Dental sale, not dividends. Wife then
amended her petition to allege, among other things, that Husband had
intentionally delayed the sale of Pediatric Dental and requested new orders
regarding the division of the Pediatric Dental interest.
¶6 The superior court denied Husband’s motion to dismiss and
set an evidentiary hearing on Wife’s amended petition. After the hearing,
the court ordered Husband to reimburse Wife one-half of all previously
received Pediatric Dental dividends and pay Wife one-half of all future
dividends. The court also directed Husband to sell the Pediatric Dental
interest within six months. Finding that Husband had “unreasonably
retained the business dividends, ha[d] not pursued the sale of the business
interest within a reasonable timeframe, and ha[d] greater financial
resources than Wife,” the court also awarded Wife her reasonable
attorneys’ fees.
¶7 The superior court entered a final order under Rule 78(b).
Husband moved to alter or amend the order under Rule 83, contending the
2017 decree was “completely silent as to the reimbursement for the
Pediatric Dental Loan payoff.” He also argued the court failed to determine
who would have to pay taxes on past and future Pediatric Dental
dividends. He then challenged the fee award, asserting he did not have
greater financial resources than Wife.
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STAKER v. STAKER
Decision of the Court
¶8 The superior court denied Husband’s motion, and he
appealed. We dismissed the appeal under Yee v. Yee, 251 Ariz. 71 (App.
2021), which addressed whether parties may challenge post-decree orders
in a Rule 83 motion to alter or amend. Husband petitioned for review before
the Arizona Supreme Court. The Arizona Supreme Court, citing recent
amendments to Rules 78, 83, and 91, remanded to this court, and we
reinstated Husband’s appeal.
DISCUSSION
I. The Superior Court Correctly Interpreted the Decree and
Supplemental Ruling
¶9 Husband first argues the court erroneously interpreted the
Decree as requiring him to pay off the Pediatric Dental loan with no
reimbursement from Wife. Generally, we review the denial of a Rule 83
motion to alter or amend for an abuse of discretion. Stock v. Stock, 250 Ariz.
352, 354, ¶ 5 (App. 2020). But we review the superior court’s interpretation
of the Decree de novo. Quijada v. Quijada, 246 Ariz. 217, 219, ¶ 5 (App. 2019).
¶10 In the Decree, the court obligated Husband to sell the marital
community’s interest to his partners and split the net proceeds equally with
Wife. Husband correctly notes that the Decree is silent about the Pediatric
Dental loan, presumably because the parties raised the loan issue in their
post-trial supplemental briefs. But after considering the supplemental
briefs, the court ruled that Husband was “not entitled to reimbursement
. . . because no evidence was presented at trial concerning same.” Husband
reasons this ruling only denied him “immediate reimbursement,” but
neither the Decree nor the Supplemental Ruling suggests the court reserved
the issue for a later time.
¶11 Citing the Decree’s reference to “net proceeds,” Husband also
argues the Supplemental Ruling should be interpreted as stating the payoff
“would be accounted for when the parties received the proceeds from the
[Pediatric Dental] Interest.” But this construction conflicts with the court’s
express finding that Husband presented no evidence regarding the loan or
the impending loan payoff. And while Husband asserts that he testified at
the trial about the impending loan payoff, he did not provide a transcript
of the trial proceeding. We therefore assume the transcript would support
the court’s finding that he presented no evidence on this issue. Baker v.
Baker, 183 Ariz. 70, 73 (App. 1995). On this record, it is not reasonable to
construe either the Decree or the Supplemental Ruling as deferring
allocation of a loan payoff that was never addressed at trial.
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STAKER v. STAKER
Decision of the Court
¶12 Husband also contends the loan payoff “increased the value
of the [Pediatric Dental] interest” and “led directly to the monthly
distributions” because “rental income was no longer being directed to
service debt.” Although Husband included a transcript of the evidentiary
hearing on Wife’s amended petition to enforce, his testimony from that
hearing belies this contention. In fact, Husband testified only that he did
not start receiving dividends until after entry of the Decree and that he
“hoped” he would start receiving dividends after the loan payoff was
completed. Accordingly, we discern no error in the court’s interpretations
of the Decree and the Supplemental Ruling.
II. Judicial Estoppel Does Not Apply
¶13 Husband also argues that Wife is judicially estopped from
asserting the Supplemental Ruling “was actually a binding determination
that [he] should bear the entire cost of the [loan payoff],” pointing to Wife’s
trial position that liabilities associated with the Pediatric Dental interest
should not be resolved until the interest is sold. In his motion to alter or
amend, Husband cited Wife’s position at trial but did not argue judicial
estoppel. He has therefore waived the argument on appeal. See, e.g., Romero
v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 7 (App. 2005) (stating this court
generally does not consider issues raised for the first time on appeal).
¶14 In any event, judicial estoppel applies only if the party
asserting the inconsistent position succeeded in the prior proceeding. State
v. Towery, 186 Ariz. 168, 182 (1996). The court did not adopt Wife’s trial
position in either the Decree or the Supplemental Order. As discussed
above, it instead ruled that Husband presented no evidence to show he was
entitled to an offset for monies expended in debt service. Judicial estoppel
therefore does not apply.
III. The Superior Court Was Not Obligated to Speculate About Tax
Implications
¶15 Husband also argues the superior court erred by not
determining who would be responsible for paying income taxes on
Pediatric Dental dividends, citing Brucklier v. Brucklier, 253 Ariz. 579 (App.
2022). In Brucklier, we held the superior court erred by “finding, without
supporting evidence, that [husband’s] actions likely increased the
community tax burden and by determining, . . . without supporting
evidence about [wife’s] tax liability for the year, that assigning liability to
each spouse was equitable.” Id. at 532, ¶ 28. In short, the superior court in
Brucklier erred because it speculated about tax implications without
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STAKER v. STAKER
Decision of the Court
competent evidence establishing what those implications may have been.
See id. at ¶ 29.
¶16 Here, Husband presented no evidence to show what tax
liabilities he had incurred or would incur in the future. Instead, he posited
that he should receive all dividends unless Wife was “willing to pay half of
the [loan payoff].” He also did not explain why each party could not simply
be responsible to pay taxes on whatever dividend income he or she receives.
And unlike Brucklier, the superior court here did not speculate on tax
implications. We therefore discern no error.
IV. Attorneys’ Fees and Taxable Costs
¶17 Finally, Husband argues we should reverse the attorneys’ fee
award to Wife if we reverse on the issues discussed above. Because we reject
Husband’s arguments, we will not disturb the attorneys’ fee award.
¶18 Both parties request their attorneys’ fees incurred in this
appeal under A.R.S. § 25-324(A). Before awarding fees, we must consider
the parties’ financial resources and the reasonableness of their positions
throughout the proceedings. Keefer v. Keefer, 225 Ariz. 437, 441, ¶ 16 (App.
2010). Having considered these matters, we decline to award fees to either
party. Wife is the successful party in this appeal and may recover her
taxable costs upon compliance with ARCAP 21.
CONCLUSION
¶19 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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