Caswell v. Caswell ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
SHANEN CASWELL, Petitioner/Appellee,
v.
SHAWN CASWELL, Respondent/Appellant.
No. 1 CA-CV 22-0430 FC
FILED 6-20-2023
Appeal from the Superior Court in Yavapai County
No. P1300DO201800728
The Honorable Cele Hancock, Judge
VACATED
COUNSEL
Keist, Thurston O’Brien, P.C., Peoria
By Joel N. Thurston
Counsel for Petitioner/Appellee
Popp Law Firm P.L.C., Tempe
By James S. Osborn Popp
Counsel for Respondent/Appellant
CASWELL v. CASWELL
Opinion of the Court
OPINION
Judge Daniel J. Kiley delivered the opinion of the Court, in which Presiding
Judge Maria Elena Cruz and Judge James B. Morse Jr. joined. Judge Morse
also delivered a separate special concurrence in which Presiding Judge
Cruz joined.
K I L E Y, Judge:
¶1 After dissolving the marriage of Shanen Caswell (“Wife”) and
Shawn Caswell (“Husband”) by consent decree (the “Consent Decree”), the
superior court entered a stipulated domestic relations order (the
“Stipulated DRO”) providing for the distribution of the community interest
in Husband’s pension benefits upon his retirement. More than 18 months
later, and over Husband’s objection, the court entered an amended
Domestic Relations Order (the “Amended DRO”) requiring Husband to
make monthly payments to Wife until he retires pursuant to Koelsch v.
Koelsch, 148 Ariz. 176 (1986). Husband appeals from the Amended DRO.
¶2 When it entered the Stipulated DRO, the court expressly
retained jurisdiction to enforce, but not to modify, its provisions. By
requiring Husband to make Koelsch payments, however, the Amended
DRO modified the Stipulated DRO by imposing a new obligation on one of
the parties. Because Wife neither requested nor established grounds for
modification under Arizona Rule of Family Law Procedure (“Rule”) 85, the
court was without jurisdiction to enter the Amended DRO. Accordingly,
we vacate the Amended DRO.
FACTS AND PROCEDURAL HISTORY
¶3 Throughout the parties’ 14-year marriage, Husband, a law
enforcement officer, was a member of the Arizona Public Safety Personnel
Retirement System (“PSPRS”).
¶4 As relevant here, the Consent Decree awarded each party half
“of the community interest in [Husband’s] PSPRS defined benefit plan”
accrued during the marriage through the date the marital community
terminated in August 2017. The Consent Decree provided that
[Husband’s] PSPRS shall be divided through a Domestic
Relations Order in accordance with the terms contained
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CASWELL v. CASWELL
Opinion of the Court
[herein]. The cost of preparing the Domestic Relations
Order shall be equally shared by the parties.
The Consent Decree was entered as a final judgment under Rule 78, and no
party appealed.
¶5 Later, the superior court entered the Stipulated DRO, which
states that Wife “is awarded as her sole and separate property a pro-rata
share of [Husband’s] pension payable directly by [PSPRS] at the same time
and in the same manner payments are made to [Husband] pursuant to [PSPRS].”
(Emphasis added.) Paragraph 3(d) of the Stipulated DRO states that
“[n]othing in this Order shall be construed to place any limits on [Wife’s]
legal rights to make a claim for direct payments under [Koelsch].” Paragraph
11 of the Stipulated DRO provides that
[t]he Court retains jurisdiction to amend this Order but only
for the purpose of establishing or maintaining its
acceptance to the relevant System or Plan, and to supervise
the payment of retirement benefits as provided in the
Order to [Wife].
(Emphasis added.) No party appealed from the Stipulated DRO, which was
an appealable order under A.R.S. § 12-2101(A)(2). See Boncoskey v.
Boncoskey, 216 Ariz. 448, 451, ¶ 12 (App. 2007) (recognizing right to appeal
from domestic relations order as a special order entered after final
judgment).
¶6 Almost six months after entry of the Stipulated DRO, Wife
filed a petition seeking to “enforce the prior judgment made in this matter.”
Asserting that Husband’s “willful[]” decision not to retire was “preventing
[her] from obtaining her benefits under the pension,” Wife asked the court
to order Husband to “begin to pay [Wife] her expected benefit, now.”
¶7 At a hearing in July 2021, the superior court rejected
Husband’s contention that it lacked jurisdiction to order him to make pre-
retirement Koelsch payments to Wife as compensation for the delay in her
receipt of pension benefits. The court found that Wife did not “waive her
right to a Koelsch claim” in the Consent Decree, and that the Stipulated DRO
“specifically sets out [Wife’s] rights to make a claim under Koelsch.” After
further proceedings, and over Husband’s objection, the court entered the
Amended DRO in May 2022 requiring Husband to pay Wife “a gross
monthly Koelsch payment of $1,144.22” until she “starts receiving direct
payments from the PSPRS” upon Husband’s retirement.
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CASWELL v. CASWELL
Opinion of the Court
¶8 Husband timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2).
DISCUSSION
¶9 The interpretation of a dissolution decree or court order
presents a question of law that is reviewed de novo. Chopin v. Chopin, 224
Ariz. 425, 427, ¶ 6 (App. 2010).
¶10 The Arizona Supreme Court recognized in Koelsch that the
portion of an employee pension that was earned during the employee’s
marriage is community property subject to equitable division upon
dissolution of the employee’s marriage. Koelsch, 148 Ariz. at 181. Noting
that, after dissolution, the non-employee spouse will not begin to receive
his or her share of the pension benefits until the employee spouse retires,
the Koelsch court found that an employee spouse’s decision to delay
retirement after dissolution “deprives the non-employee spouse of the
immediate enjoyment” of his or her share of the pension benefits. Id. To
prevent a pension-eligible employee from “unilaterally depriv[ing] the
non-employee spouse of his or her property,” the Koelsch court held that the
superior court has authority, at dissolution, to order a pension-eligible
employee who delays retirement to pay the non-employee spouse “a
monthly amount equal to his or her share of the benefit which would be
received if the employee spouse were to retire.” Id. at 185.
¶11 In entering the Amended DRO here, the superior court relied
on Koelsch. Koelsch is inapposite, however, because the claim raised in
Koelsch was asserted on direct appeal from a dissolution decree entered
after a contested hearing. Id. at 178-79. As this Court later recognized,
Koelsch “does not authorize a post-judgment alteration to the spouses’
agreed-upon distribution” of retirement benefits at dissolution. Quijada v.
Quijada, 246 Ariz. 217, 219, ¶ 1 (App. 2019).
¶12 In Quijada, the consent decree dissolving the marriage of
Michael and Julie Quijada directed that the community’s interest in
Michael’s PSPRS pension would be divided pursuant to a stipulated DRO.
Id. at ¶ 3. The DRO, in turn, provided that Julie would receive her share of
the community’s interest in the pension “payable directly by [PSPRS] at the
same time and in the same manner payments are made to [Michael].” Id.
(cleaned up). The DRO permitted amendments “only for the purpose of
establishing or maintaining its acceptance to [PSPRS] and to supervise the
payment of retirement benefits as provided in the Order.” Id. When Michael
continued to work past his retirement eligibility date, Julie petitioned the
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Opinion of the Court
superior court to require him to compensate her for the delay in her receipt
of pension benefits by making direct payments to her pursuant to Koelsch.
Id. at ¶ 4. The court denied her request. Id.
¶13 On appeal, we affirmed, holding that a post-dissolution order
requiring Michael to make Koelsch payments to Julie would effect “a de facto
modification” of a final judgment in violation of Arizona law. Id. at 220, ¶ 5.
“[A]t the time of dissolution,” we noted, Julie “could have insisted upon a
different valuation or distribution method,” including “one whereby she
received a Koelsch-type offset payment in the event [Michael] elected not to
retire when first eligible.” Id. at 221, ¶ 10. Instead, Julie stipulated to a
consent decree and a DRO providing that “she would receive her portion
of the retirement benefits upon their distribution to” Michael. Id.
Accordingly, we concluded, Julie “waived any argument” that she was
entitled to later seek Koelsch payments that were not provided for in the
stipulated decree and DRO. Id.
¶14 As in Quijada, the parties here stipulated to a dissolution
decree providing that the community’s interest in retirement benefits
would be distributed pursuant to a DRO. The court subsequently entered
the Stipulated DRO awarding Wife “a pro-rata share of [Husband’s]
pension payable directly by [PSPRS] at the same time and in the same
manner payments are made to [Husband].” When entering the Stipulated
DRO, the superior court retained jurisdiction “only for the purpose of
establishing or maintaining [the DRO’s] acceptance to the relevant System
or Plan, and to supervise the payment of retirement benefits as provided in
the Order to [Wife].” Accordingly, neither the Consent Decree nor the
Stipulated DRO was subject to modification absent a showing of
circumstances justifying relief pursuant to Rule 85. See A.R.S. § 25-327(A)
(“The provisions [of a dissolution decree] as to property disposition may
not be revoked or modified, unless the court finds the existence of
conditions that justify the reopening of a judgment under the laws of this
state.”); Breitbart-Napp v. Napp, 216 Ariz. 74, 80, ¶ 16 (App. 2007) (“The
reopening of a [dissolution decree] is governed by [predecessor to Rule
85].”).
¶15 Rule 85 authorizes relief from a final decree or judgment on
one of several specified grounds, including “mistake,” “surprise,” or “other
reason justifying relief.” The moving party bears the burden of establishing
grounds for relief, see Duckstein v. Wolf, 230 Ariz. 227, 230, ¶ 5 (App. 2012),
and the superior court has “no authority to grant relief without some
evidence to support the claim on which the application for relief
depended,” Breitbart-Napp, 216 Ariz. at 82, ¶ 30 n.5 (citation omitted).
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CASWELL v. CASWELL
Opinion of the Court
¶16 Nothing in the record indicates that the superior court found
grounds for relief under Rule 85. Indeed, the court expressly found that no
request for Rule 85 relief had been made.1 Because relief under Rule 85 was
neither sought nor granted, the court lacked authority to modify the parties’
stipulated distribution of retirement benefits by entering the Amended
DRO.
¶17 In support of her position, Wife relies on DeLintt v. DeLintt,
248 Ariz. 451 (App. 2020). In DeLintt, we vacated the superior court’s denial
of the wife’s post-decree request for an order requiring the husband, a
federal employee covered by a pension plan, to make Koelsch payments to
her until he retired. Id. at 452-53, ¶ 1. In so holding, we determined, first,
that the dissolution decree did not foreclose the wife’s Koelsch claim because
the decree was “silent as to the timing and terms of how [she] was to receive
her share of [the husband’s] retirement benefits.” Id. at 454, ¶ 9. Further, we
noted, the decree expressly reserved jurisdiction to resolve “any disputes”
over the division of the parties’ retirement benefits. Id. at 453-54, ¶¶ 3, 10.
Under the circumstances, we concluded, the superior court erred in
concluding that the wife waived her right to seek Koelsch payments after
entry of the decree. Id. at 454, ¶ 10.
¶18 Unlike the decree in DeLintt, which was “silent” on the
“timing and terms” of the wife’s receipt of her share of pension benefits, the
Stipulated DRO here expressly awarded Wife “a pro-rata share” of the
pension “directly” from PSPRS “at the same time and in the same manner
payments are made to” Husband. Further, while the decree in DeLintt
reserved jurisdiction “to resolve any disputes regarding the division” of the
parties’ retirement benefits, id. at 453, ¶ 3 (emphasis added), the Stipulated
DRO here provides that the court retained jurisdiction only for the purpose
of implementing and enforcing the terms of the Stipulated DRO. Because
the relevant circumstances presented here are unlike those in DeLintt, that
case provides no support to Wife’s position.
¶19 As noted above, Paragraph 3(d) of the Stipulated DRO states
in part that “[n]othing in this Order shall be construed to place any limits
on [Wife’s] legal rights to make a [Koelsch] claim.” In rejecting Husband’s
1 The parties disputed whether, if the court ordered Husband to make
Koelsch payments, he would be entitled to offset attributed Social Security
benefits against the amount of those payments. In holding that Husband
did not preserve his claim for such an offset, the superior court found that
“[t]he issue of a social security offset was not raised during the dissolution,
nor was there a Rule 85 motion to alter or amend timely filed in this case.”
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CASWELL v. CASWELL
Opinion of the Court
challenge to its jurisdiction to modify the Stipulated DRO, the superior
court implicitly relied on Paragraph 3(d) when it stated that the Stipulated
DRO “specifically sets out [Wife’s] rights to make a claim under Koelsch.”
But the Stipulated DRO did not reserve the court’s jurisdiction to modify
the parties’ stipulated allocation of retirement benefits.
¶20 A court’s reservation of jurisdiction upon entry of a stipulated
judgment or consent decree must be set forth in clear and unequivocal
terms. See Major v. Coleman, 251 Ariz. 345, 349, ¶ 15 (App. 2021)
(“[R]etaining jurisdiction to enforce a settlement agreement upon
stipulation of the parties can be accomplished through an express provision
retaining jurisdiction over the settlement agreement[.]”). This is
particularly true in the context of property distributions in dissolution
decrees in light of the “compelling policy interest favoring the finality of
property settlements.” Reed v. Reed, 124 Ariz. 384, 385 (App. 1979); see also
De Gryse v. De Gryse, 135 Ariz. 335, 336, 338 (1983) (affirming denial of
husband’s request to modify decree that awarded half of his military
pension to wife and citing “[t]he well-established rule . . . that property
settlements are not subject to modification”).
¶21 Paragraph 3(d)’s statement that “[n]othing in this Order shall
be construed to place any limits on [Wife’s] legal rights to make a [Koelsch]
claim” does not expressly retain the court’s jurisdiction to modify the
Stipulated DRO. Instead, Paragraph 3(d) merely provides that, by
consenting to the Stipulated DRO, Wife would not be deemed to have
waived her right to later seek modification of the distribution of retirement
benefits by post-judgment motion. Paragraph 3(d), in other words, operates
to spare Wife the fate of the ex-wife in Quijada, who was held to have
“waived” her claim for Koelsch payments when she stipulated to a decree
and DRO that did not provide for them. Quijada, 246 Ariz. at 221, ¶ 10.
¶22 Paragraph 11, the retention-of-jurisdiction provision of the
Stipulated DRO, states that “[t]he Court retains jurisdiction to amend this
Order but only for the purpose of establishing or maintaining its acceptance
to the relevant System or Plan, and to supervise the payment of retirement
benefits as provided in the Order to [Wife].” (Emphasis added.) Because
Paragraph 11, by its terms, reserves jurisdiction only to implement and
enforce the Stipulated DRO, it does not allow modification of the Stipulated
DRO.2 See Cohen v. Frey, 215 Ariz. 62, 66, ¶ 11 (App. 2007) (“The meaning of
2In Miner v. Miner, No. 1 CA-CV 21-0155 FC, 2021 WL 4901603, at *1, ¶ 1
(Ariz. App. Oct. 21, 2021) (mem. decision), this Court affirmed the superior
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CASWELL v. CASWELL
Opinion of the Court
a decree is to be determined from the language used.”) (citation omitted).
The superior court therefore lacked jurisdiction to modify the Stipulated
DRO unless one of the parties sought, and established grounds for, relief
under Rule 85(b). See Solmo v. Friedman, 909 So. 2d 560, 565 (Fla. Dist. Ct.
App. 2005) (holding that dissolution decree’s provision reserving
jurisdiction “for the purpose of enforcing” its terms and “entering such
further orders” as may be “just and proper” was insufficient to reserve
jurisdiction “to modify property rights after an adjudication of those
rights”); Schrader v. Schrader, 669 N.E.2d 878, 878-80 (Ohio Ct. App. 1995)
(holding that DRO’s provision retaining “limited jurisdiction to amend this
order only . . . to create, conform, and maintain” the DRO “cannot be read
as an express reservation of jurisdiction to modify the terms of the [DRO]”).
¶23 Under the guise of a petition to “enforce” the Stipulated DRO,
Wife obtained a de facto modification of the Stipulated DRO with no
showing of grounds for such a modification under Rule 85(b). Because,
when it entered the Stipulated DRO, the superior court retained jurisdiction
only to enforce it, the court exceeded its jurisdiction when it entered the
Amended DRO modifying the parties’ agreed-upon distribution of
retirement benefits. See Danielson v. Evans, 201 Ariz. 401, 412, ¶ 38 (App.
2001) (“Any action taken by a court which does not have jurisdiction is void
and a nullity.”) (cleaned up). We therefore vacate the Amended DRO and
need not address the alternative arguments Husband raises on appeal.
CONCLUSION
¶24 For the foregoing reasons, we vacate the Amended DRO.
¶25 Husband requests an award of attorney fees and costs on
appeal pursuant to A.R.S. § 25-324 and Arizona Rule of Civil Appellate
Procedure (“ARCAP”) 21. In our discretion, we deny his request for fees.
However, as the prevailing party, Husband is awarded his costs incurred
on appeal upon compliance with ARCAP 21(b).
court’s order modifying a DRO to award Koelsch payments to the former
wife after the former husband decided to continue working as a police
officer past his retirement eligibility. In so holding, we noted that the DRO
expressly “reserved the court’s authority to amend the Order to reflect the
amount of the Koelsch payment.” Id. at *2, ¶ 11 (cleaned up). Because the
Stipulated DRO here does not reserve the superior court’s jurisdiction to
modify its provisions, Miner is inapposite.
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CASWELL v. CASWELL
Morse, J. Special Concurrence
M O R S E, Judge, joined by Presiding Judge Cruz, specially concurring:
¶26 The majority faithfully applies our existing precedents to the
facts of this case. We write separately to note our concern with these
precedents.
¶27 Because "retirement benefits are often one of a community's
most valuable assets," courts can order payments from an employee spouse
to compensate a non-employee spouse for delayed payment of community
retirement benefits. Koelsch, 148 Ariz. at 181. Our supreme court
recognized at least four options for addressing this situation, including (1)
an award of other community property "equal to the value of the [non-
employee spouse's] interest in the" retirement benefit; (2) "order that the
non-employee spouse's interest be paid in full [or installments] at a
specified time"; (3) monthly-payments for the share of the "monthly pension
benefit that is precluded by the employee spouse's decision not to retire";
and (4) "deferring all or part of the monthly payment" to be repaid with
interest and "secured by a lien on the employee spouse's separate property"
or an insurance policy. Id. at 184-85.
¶28 Koelsch involved a claim raised on direct appeal from a
dissolution decree. Our recent cases, however, involve post-decree
litigation from dissolution decrees that are silent about whether to order
Koelsch payments, the amount of any such payments, and the appropriate
method for making payments. E.g., DeLintt, 248 Ariz. at 453, ¶ 4; Quijada,
246 Ariz. at 219, ¶ 4; Miner, 2021 WL 4901603, at *1, ¶ 4. We have tacitly
endorsed an approach in which the trial court does not address Koelsch in
the decree except to reserve jurisdiction to address the issue in the
future. E.g., DeLintt, 248 Ariz. at 454, ¶ 10. Because determining both
whether and how to order Koelsch payments is part of dividing community
property, see Koelsch, 148 Ariz. at 181, a decree that only reserves jurisdiction
to decide the issue later may not be a true final appealable judgment, see
Ariz. R. Fam. Law P. 78(c) (stating that an appealable judgment must
resolve all claims and issues), nor an all-inclusive decree, see A.R.S. § 25-
312(E).
¶29 "A.R.S. § 25-318 is clear in its mandate that community
property must be divided on dissolution of the marriage." Dole v. Blair, 248
Ariz. 629, 633, ¶ 12 (App. 2020). And "A.R.S. § 25-312 clearly mandates that
all issues relative to the marital status and the termination thereof be
resolved prior to entry of a decree of dissolution. Piecemeal litigation is not
to be encouraged; to the contrary, amicable settlement of custody,
maintenance and property disputes between spouses is the desirable
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CASWELL v. CASWELL
Morse, J. Special Concurrence
goal." Porter v. Estate of Pigg, 175 Ariz. 194, 195-96 (App. 1993) (quoting
Brighton v. Superior Court, 22 Ariz. App. 291, 292 (1974)), approved by 175
Ariz. 303, 304 (1993). Thus, the family court errs when it "bifurcat[es] its
rulings," and dissolves the marriage but retains jurisdiction to enter further
orders about property. Larchick v. Pollock, 252 Ariz. 364, 367, ¶ 13 (App.
2021); see A.R.S. § 25-312(E) ("To the extent it has jurisdiction to do so, the
court shall make provisions for . . . the disposition of property." (emphasis
added)); A.R.S. § 25-318(A) ("[T]he court shall also divide the community,
joint tenancy and other property held in common equitably . . . ." (emphasis
added)).
¶30 Admittedly, our supreme court has approved the
reserved-jurisdiction approach for immature pension benefits that are
impossible to calculate and award at the time of divorce. Koelsch, 148 Ariz.
at 183; Boncoskey, 216 Ariz. at 451-52, ¶ 16. But, when possible, Koelsch
contemplates addressing the issue while dividing other community
property in the dissolution. See Koelsch, 148 Ariz. at 184-85 (endorsing use
of other community property to offset retirement benefits). This is
especially true when, as in this case, the court's judgment is based on a
consent decree and stipulated DRO, i.e., a settlement agreement, and a
subsequent motion to enforce. If a dissolution decree is silent about
whether Koelsch payments should be awarded, the amounts to be paid, and
the method for making such payments, it is difficult to discern what
settlement the court retains jurisdiction to enforce. See Major v. Coleman, 251
Ariz. 345, 349, ¶ 15 (App. 2021) (noting that retaining jurisdiction over a
settlement agreement "encourages settlement by providing parties
certainty about the terms of an agreement and a mechanism to easily
enforce performance of the agreement").
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CASWELL v. CASWELL
Morse, J. Special Concurrence
¶31 Instead of leaving such a significant issue unresolved, the
parties and the family courts should attempt to resolve Koelsch issues in the
final dissolution judgment. When a lump-sum payment or
community-property offset is not possible, dissolution decrees should (1)
specify the date or event (e.g., attaining eligibility for normal or early
retirement) after which the employee ex-spouse will either retire or begin
making Koelsch payments, (2) the amounts to be paid (or the manner in
which the amount will be calculated), and (3) the method (i.e., current or
deferred) by which the obligation will be satisfied.
AMY M. WOOD • Clerk of the Court
FILED: AA
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