Jones v. Jones

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
LARRY STEWART JONES, Petitioner/Appellee,
v.
CAROLINE JONES, Respondent/Appellant.
No. 1 CA-CV 15-0803 FC
FILED 11-22-2016
Appeal from the Superior Court in Maricopa County
No. FN2012-001293
The Honorable Katherine M. Cooper, Judge
VACATED AND REMANDED
COUNSEL
Jennings, Haug & Cunningham, L.L.P., Phoenix
By Julianne C. Wheeler
Counsel for Petitioner/Appellee
Caroline Jones, Laveen
Respondent/Appellant
JONES v. JONES
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Rick A. Williams1 joined.
W I N T H R O P, Judge:
¶1 Caroline Jones (“Wife”) appeals from a judgment of the
superior court amending the consent decree that dissolved her marriage to
Larry Stewart Jones (“Husband”). Because the superior court lacked
jurisdiction to amend the decree, we vacate the judgment and remand for
further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 In 2012, Husband and Wife divorced pursuant to a consent
decree. The decree awarded Wife a home located at 5221 W. Pedro Lane in
Laveen, but did not allocate responsibility for the debt secured by the home.
Six months later, Husband petitioned the superior court for an order
removing his name from the mortgage. The court held a hearing during
which the parties entered an agreement pursuant to Arizona Rule of Family
Law Procedure (“Rule”) 69, providing that (1) Husband would quitclaim
the home to Wife, (2) Wife would refinance the home in her sole name, and
(3) if Wife failed to refinance the home by the established deadline, the
home would be sold. Wife failed to meet the deadline for refinancing the
home.
¶3 In light of Wife’s failure, Husband moved the court to order
the home’s sale. The court granted Husband’s motion and appointed a real
estate commissioner to list the home. The court ordered the parties to
cooperate with the commissioner.
¶4 Less than two months later, Husband filed a motion for
sanctions claiming that Wife “continues to stall the listing” and a motion
for approval of a counteroffer on the home. At a hearing on the motions,
1 The Honorable Rick A. Williams, Judge of the Arizona Superior
Court, has been authorized to sit in this matter pursuant to Article 6, Section
3, of the Arizona Constitution.
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JONES v. JONES
Decision of the Court
the superior court found Wife in contempt of court for failure to comply
with its prior orders and directed her to “make the [home] available to show
promptly” upon the commissioner’s request and to vacate the home on or
before November 8, 2015. The court ordered the real estate commissioner
to counter the two pending offers. The court further advised that if Wife
failed to comply with its order, Husband should file an affidavit of
noncompliance.
¶5 One week later, Husband filed an affidavit of noncompliance
alleging that Wife refused to permit the commissioner to show the home
and refused to sign the acceptance of counteroffer. In response, the court
held a hearing and again found Wife in contempt. The Court thereafter
issued a signed minute entry on November 5, 2015 (the “November 5th
Minute Entry”) ordering that “[t]he Consent Decree shall be amended to
award the [home] at issue to Husband” and “[a]ll proceeds from the sale of
the house . . . shall be applied 1) first to any pending community debts, 2)
then to Husband’s attorney’s fees and costs relating to these proceedings,
and 3) the remainder divided equally between the parties.” That same day,
the court entered a Judgment Amending Consent Decree (the “Judgment”).
¶6 Wife timely appealed,2 and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2).3
ANALYSIS
¶7 On appeal, Wife argues the Judgment “has the effect of
drastically re-writing the divorce decree in areas that have not been brought
before the court.” In his answering brief, Husband asks this court to vacate
the Judgment and remand to superior court “for further proceedings
consistent with the contempt orders entered by the trial court.”
¶8 We first address the issue of our jurisdiction, previously
raised by Husband in a motion to dismiss, which Department M of this
court denied. As a general rule, civil contempt orders are not appealable.
See Berry v. Superior Court In & For County of Maricopa, 163 Ariz. 507, 508,
2 Wife moved to stay the order, and upon the filing of adequate
security, the court approved Wife remaining in the home pending the
resolution of this appeal.
3 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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JONES v. JONES
Decision of the Court
788 P.2d 1258, 1259 (App. 1989). If a judgment goes beyond a finding of
contempt, however, and qualifies as an appealable order under A.R.S. § 12-
2101, then this court has jurisdiction. See Green v. Lisa Frank, Inc., 221 Ariz.
138, 145 n.3, 148, ¶¶ 13, 21, 211 P.3d 16, 23 n.3, 26 (App. 2009). In this case,
the Judgment is appealable under A.R.S. § 12-2101(A)(2). Therefore, we
have jurisdiction. As previously noted by Department M, we do not,
however, have jurisdiction over the superior court’s contempt order
entered October 23, 2015. Thus, we limit our review to the Judgment
awarding the home to Husband and that portion of the November 5th
Minute Entry directing distribution of the sale proceeds.
¶9 We next address whether the superior court had jurisdiction
to amend the decree. See Danielson v. Evans, 201 Ariz. 401, 411, ¶ 36, 36 P.3d
749, 759 (App. 2001) (explaining that appellate courts independently review
the superior court’s jurisdiction as a matter of law). We review the superior
court’s jurisdiction de novo. In re Marriage of Dorman, 198 Ariz. 298, 301, ¶ 6,
9 P.3d 329, 332 (App. 2000).
¶10 Our supreme court has acknowledged the well-established
rule “that property settlements are not subject to modification or
termination” because “[t]he need for finality and stability in marriage and
family law is great.” De Gryse v. De Gryse, 135 Ariz. 335, 338, 661 P.2d 185,
188 (1983). Entry of a decree precludes “modification of the terms of the
decree and the property settlement agreement, if any, set forth or
incorporated by reference.” A.R.S. § 25-317(F). Likewise, property
disposition provisions cannot 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.” A.R.S. § 25-327(A); see Ariz. R. Fam. Law P.
85(C) (listing grounds for reopening a decree).4 “[T]he inherent power of
4 Rule 85(C) provides:
On motion and upon such terms as are just the court may
relieve a party or a party’s legal representative from a final
judgment, order or proceeding for the following reasons:
a. mistake, inadvertence, surprise, or excusable neglect;
b. newly discovered evidence, which by due diligence could
not have been discovered in time to move for a new trial
under Rule 83(D);
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JONES v. JONES
Decision of the Court
the court to vacate or modify its judgment does not extend beyond the point
at which the judgment becomes final, except as authorized by law.” See
Preston v. Denkins, 94 Ariz. 214, 219, 382 P.2d 686, 689 (1963) (noting that the
power of a court to vacate or modify a judgment is governed by the Rules
of Civil Procedure).
¶11 Here, the consent decree awarded Wife the home as her sole
and separate property. The parties later entered a Rule 69 agreement
agreeing that (1) Husband would quitclaim the home to Wife, (2) Wife
would refinance the home in her sole name, and (3) if Wife failed to
refinance the home by the established deadline, the home would be sold.
¶12 The superior court has jurisdiction to enforce the decree and
the Rule 69 agreement.5 See A.R.S. § 25-317(E) (establishing that a court can
enforce the terms of a decree “by all remedies available for enforcement of
a judgment, including contempt”). In the absence of an affirmative request
to set aside the decree and/or the agreement and circumstances justifying
relief under Rule 85(C), however, the court lacks jurisdiction to amend the
property disposition provisions of the decree. See LaPrade v. LaPrade, 189
c. fraud, misrepresentation, or other misconduct of an adverse
party;
d. the judgment is void;
e. the judgment has been satisfied, released, or discharged, or
a prior judgment on which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or
f. any other reason justifying relief from the operation of the
judgment.
Ariz. R. Fam. Law P. 85(C).
5 Rule 69 provides that:
An Agreement between the parties shall be valid and binding
if . . . the terms of the agreement are set forth on the record
before a judge, commissioner, judge pro tempore, court
reporter, or other person authorized by local rule or
Administrative Order to accept such agreements.
Ariz. R. Fam. Law P. 69(A).
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JONES v. JONES
Decision of the Court
Ariz. 243, 246, 941 P.2d 1268, 1271 (1997) (“[T]he trial court does not have
jurisdiction to modify property settlement provisions unless circumstances
exist which justify reopening the judgment.”).
¶13 Here, the court was understandably frustrated with Wife’s
intransigence and apparent willful refusal to timely obey the court’s orders
in furtherance of the legitimate exercise of its civil contempt power.
Undoubtedly, the court was also influenced by likely time-sensitive
negotiations which were stalled or otherwise frustrated by Wife’s failure to
comply. However, neither party had moved for relief under Rule 85(C) and
neither party alleged, much less established, grounds for relief under this
rule. And by ordering that (1) the proceeds from an anticipated sale of
Wife’s home be used to satisfy pending community debts and (2) excess
proceeds be divided equally between Wife and Husband, the court
improperly modified the property disposition provisions of the decree.
Because the superior court lacked jurisdiction to sua sponte modify the
property disposition provisions, the Judgment is void and must be vacated.
See Solomon v. Findley, 165 Ariz. 45, 46, 796 P.2d 477, 478 (App. 1990),
approved, 167 Ariz. 409, 808 P.2d 294 (1991) (“[A]ny action taken by a court
which does not have jurisdiction is void and a nullity.”).
CONCLUSION
¶14 For the foregoing reasons, we vacate the Judgment amending
the decree. We likewise vacate that portion of the November 5th Minute
Entry ordering distribution of proceeds from the sale of the home, which
was a de facto modification of the decree’s property disposition.6 We
remand the matter to the superior court for further enforcement
proceedings consistent with this decision. We award Wife her costs on
6 Specifically, we vacate the following part of the November 5th
Minute Entry:
All proceeds from the sale of the house shall be held in a
secure account pending either a) the parties’ agreement as to
disbursement, or b) a court order. The proceeds shall be
applied 1) first to any pending community debts, 2) then to
Husband’s attorney’s fees and costs relating to these
proceedings, and 3) the remainder divided equally between
the parties.
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JONES v. JONES
Decision of the Court
appeal upon compliance with Arizona Rule of Civil Appellate Procedure
21.
AMY M. WOOD • Clerk of the Court
FILED: AA
7