Christoff v. Christoff ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DAVID MICHAEL CHRISTOFF, Petitioner/Appellant,
v.
SHERRY LYNN CHRISTOFF, Respondent/Appellee.
No. 1 CA-CV 21-0559 FC
FILED 5-17-2022
Appeal from the Superior Court in Maricopa County
No. FN2018-052921
The Honorable Melissa Iyer Julian, Judge
AFFIRMED
COUNSEL
Provident Law PLLC, Scottsdale
By James P. Mueller
Counsel for Petitioner/Appellant
Hallier Stearns, PLC, Phoenix
By Nicole R. Stearns
Co-Counsel for Respondent/Appellee
Jones Skelton & Hochuli, P.L.C., Phoenix
By Eileen Dennis GilBride
Co-Counsel for Respondent/Appellee
CHRISTOFF v. CHRISTOFF
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Michael J. Brown joined.
C R U Z, Judge:
¶1 David Michael Christoff (“Husband”) appeals the superior
court’s ruling ordering the equal division of Husband’s UPS/IPA Money
Purchase Pension Plan account (“MPPP”). For the following reasons, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Husband and Sherry Lynn Christoff (“Wife”) were married
for thirty-three years before Husband filed for divorce. The parties engaged
in mediation and negotiated the terms of a Property Settlement Agreement
(“PSA”) to be incorporated into their decree.
¶3 The parties have several retirement accounts, which were
listed in the PSA under sections 4(C) Defined Contribution Retirement
Accounts and 4(D) Defined Benefit Plans (pensions). Section 4(D) noted
that Husband had two pensions, including one through his current
employer, UPS.
¶4 Following mediation, Husband’s counsel sent a draft of the
PSA to be approved by Wife’s counsel. Wife provided several redlined
edits, including one pertaining to section 4(C). In the draft, Husband’s
counsel incorrectly listed the balance of a 401(k) account ending in ***6648
as $780,000; however, this was the combined total of both the 401(k) account
(with a balance of $351,000) and the MPPP account (with a balance of
$429,000). The 401(k) and MPPP were separate accounts through
Husband’s employer, UPS. Wife correctly edited the balance of the 401(k)
account to reflect its actual balance of $351,000. Wife believed the MPPP
was covered under section 4(D) of the PSA. But despite its title as a
“pension,” the MPPP is a defined contribution plan and should have been
listed under section 4(C) of the PSA.
¶5 Neither Husband nor his counsel pointed out that the
$429,000 balance of the MPPP was no longer accounted for in the PSA. Both
parties finalized and signed the final PSA, it was incorporated into the
decree, and a third-party attorney began preparing a qualified domestic
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relations order (“QDRO”) to divide the value of the retirement accounts.
The third-party attorney realized the MPPP was not expressly listed in the
PSA and emailed both Husband and Wife to inquire whether it should be
included in the QDRO. Wife claimed the MPPP was to be included and
equally divided between the parties. Husband, however, claimed the
MPPP was not expressly listed in section 4(C) and so it was awarded to him
under a catch-all provision that noted both parties would retain as their sole
and separate property all property within their respective possessions.
Because the MPPP was within Husband’s possession, he argued, it was
awarded to him by default and not subject to division.
¶6 Wife attempted to negotiate with Husband regarding the
division of the MPPP to avoid litigation, but Husband did not respond to
her emails. Accordingly, Wife filed a post-decree motion for the division of
an undivided asset, asking the court to order the equal division of the
MPPP. Following an evidentiary hearing where both parties testified, the
superior court ruled that the MPPP was an undivided asset and ordered it
to be divided equally between Husband and Wife.
¶7 Husband timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2).
DISCUSSION
¶8 Husband argues the MPPP was not an omitted asset from the
decree subject to division because it was allocated to him in the catch-all
provision of the parties’ PSA. However, given the evidence in this case, the
superior court found the MPPP did not fall under the catch-all provision.
We agree.
¶9 Under Arizona law, a property separation agreement is a
contract, and it is to be given a reasonable construction “so as to accomplish
the intention of the parties.” Harris v. Harris, 195 Ariz. 559, 562, ¶ 15 (App.
1999). “Although determination of the intent of contracting parties from
extrinsic evidence may require fact finding, whether contract language is
reasonably susceptible to more than one interpretation so that extrinsic
evidence is even admissible is a question of law for the court.” In re Est. of
Lamparella, 210 Ariz. 246, 250, ¶ 21 (App. 2005). When extrinsic evidence is
offered, “the judge [should] first consider[] the offered evidence and, if he
or she finds that the contract language is reasonably susceptible to the
interpretation asserted by its proponent, the evidence is admissible to
determine the meaning intended by the parties.” Taylor v. State Farm Mut.
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Auto. Ins. Co., 175 Ariz. 148, 154 (1993) (citations and internal quotation
marks omitted).
¶10 Here, the superior court considered parol evidence and found
that it showed the parties intended to equally divide the MPPP. Husband
contends the court erred in considering such evidence when interpreting
the PSA and the decree. He claims he properly raised the issue of parol
evidence before the superior court. But at the very start of the evidentiary
hearing, the superior court specifically stated, “And I know there’s a
dispute about whether or not parol evidence is admissible.” Husband’s
attorney responded “Your Honor, I don’t -- I have none. I have no objection
to them, if opposing counsel doesn’t.” Husband has waived any argument
on the admissibility of parol evidence. See Cedic Dev. Corp. v. Sibole, 25 Ariz.
App. 185, 187-88 (1975) (finding that although counsel made two references
that indicated his awareness of the applicability of the parol evidence rule,
he made no objection to the admission of such evidence, so the court was
entitled to consider parol evidence in reaching its decision).
¶11 Regardless, Husband’s arguments are without merit.
Husband claims extrinsic evidence cannot be used to interpret a judgment,
and the PSA was merged into the decree—a final judgment. See In re the
Marriage of Zale, 193 Ariz. 246, 249, ¶ 10 (1999) (“[I]t is error to conclude that
the parol evidence rule applies to judgments,” because “[a] judgment is not
an agreement between or among the parties.”). But this belies the express
language of the PSA, which states, “[t]his Agreement shall be incorporated,
but not merged, in any Decree entered by any Court in any such action and
this Agreement shall be incorporated, but not merged, into any Divorce or
Separation Decree between the parties . . . .” (emphasis added).
Additionally, the decree states, “[t]he Property Settlement Agreement
between the parties dated July 8, 2019, attached hereto as Exhibit B and filed
herewith, is incorporated herein by this reference, but not merged . . . .”
(emphasis added). The PSA was incorporated, but not merged, and so the
PSA stands alone as an independent contract between the two parties. See
Harris, 195 Ariz. at 562, ¶ 15. Extrinsic evidence can appropriately be used
to interpret such an agreement. See Zale, 193 Ariz. at 249, ¶ 10.
¶12 Further, the superior court did not err in finding the extrinsic
evidence was admissible because the contract language was reasonably
susceptible to the interpretation proffered by Wife. Husband maintains the
MPPP was unambiguously awarded to him under the catch-all provision
in the PSA:
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Decision of the Court
Husband shall have and retain as his sole and separate
property, free from any claim of Wife, and Wife does hereby
grant, sell, assign, transfer and set over to Husband all of her
right, title and interest in and to all personal property now in
possession of Husband, except those [expressly enumerated
in the PSA].
¶13 Husband argues the circumstances in this case mirror those
in Lamparella, 210 Ariz. at 250-51, ¶¶ 19-28. They do not. In Lamparella, a
probate matter, the parties did not expressly include the husband’s annuity
policy in their pro per fill-in-the-blank decree and the wife raised the issue
after the husband’s death. Id. at 248, ¶¶ 6, 8. The court found that a similar
catch-all provision required allocation of the annuity to the husband’s
estate because the wife presented no evidence that the catch-all provision
was intended to encompass less than all personal property in each of their
possession, or that the annuity policy was not in the husband’s possession
and control when the marriage ended. Id. at 251, ¶¶ 26-27. Unlike
Lamparella, the parties here did not altogether exclude the MPPP when
drafting the PSA, such that the parties’ intent in its division was unclear.
At the evidentiary hearing, Husband conceded the MPPP was a community
asset, that the parties had agreed to equally divide it, and that it was never
his intent to exclude this money from division. The record supports the
superior court’s findings that parties’ intent regarding the division of the
MPPP was clear and its omission was unintentional.
¶14 The instant case more closely resembles Rinegar, where this
court found that another similar catch-all provision did not apply to the
parties’ omitted pension plan and stock options. Rinegar v. Rinegar, 231
Ariz. 85, 88, ¶ 14 (App. 2012). Like the case here, the court in Rinegar found
the parties did not simply forget to include these assets in the decree. Id.The parties had clearly intended to divide these assets and extensively
litigated the issue of their division. Id. at 89, ¶ 17. However, due to a
mistake, these assets were unintentionally omitted from the final decree. Id.
¶15 Husband’s original mistake caused confusion when he
incorrectly listed the balance of the 401(k) account as $780,000, which was
the combined total of both the 401(k) account and the MPPP account. Wife
correctly edited the balance of the 401(k) account to reflect its actual balance
of $351,000. Given its title as a “pension” plan, Wife was unaware the MPPP
account was not otherwise accounted for in the parties’ agreement,
specifically under section 4(D) of the PSA: “defined benefit plans
(pensions).” Further, at the evidentiary hearing, Wife testified that during
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Decision of the Court
settlement discussions, Husband represented to her that the MPPP was part
of the UPS pension plan discussed in section 4(D).
¶16 Additionally, Husband concedes that throughout
negotiations the parties operated under the belief the MPPP would be
equally divided, which affected how the remaining assets were divided and
how much spousal maintenance would be awarded to Wife. Awarding the
entirety of the MPPP to Husband would undermine the parties’ agreement,
result in an inequitable division, and plainly contradict the parties’ intent.
See Rinegar, 231 Ariz. at 89, ¶¶ 17-18.
¶17 Husband’s suggestion that Wife voluntarily gave up her one-
half interest in the MPPP without reason is disingenuous. This is the second
largest asset of the parties. And at the hearing, Husband seemed to
recognize that the redline of Wife’s attorney was likely due to a mistake on
the part of Wife’s counsel:
[T]he amount was removed. Everything was disclosed. And
that was a change on your office. And you repeated it and
you never accounted for that $429,000 again. I’m not in your
office. I don’t know what you are doing. I don’t know if
you’re running a puppy mill of divorce decrees and not
quality control in your work. I don’t know.
¶18 The record supports a finding that omission of the MPPP was
unintentional, and the catch-all provision does not apply to it. Accordingly,
the superior court did not err in ordering the equal division of the MPPP.
¶19 Finally, Husband contends the court improperly modified the
PSA in violation of A.R.S. § 25-327. However, as explained above, the PSA
was not modified; the superior court divided an omitted asset. Husband
has shown no error.
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CHRISTOFF v. CHRISTOFF
Decision of the Court
CONCLUSION
¶20 For the foregoing reasons, we affirm. Both parties request
their attorneys’ fees and costs on appeal pursuant to A.R.S. § 25-324(A).
After considering the parties’ financial resources and the reasonableness of
the positions each party has taken, we award Wife her reasonable attorneys’
fees and costs upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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