Gavaldon v. Gavaldon

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SANDRA R. GAVALDON, Petitioner/Appellee,
v.
JOSE G. GAVALDON, JR., Respondent/Appellant.
No. 1 CA-CV 22-0302 FC
FILED 11-8-2022
Appeal from the Superior Court in Maricopa County
No. FC2011-090133
The Honorable David E. McDowell, Judge
AFFIRMED
COUNSEL
Popp Law Firm, P.L.C., Tempe
By James S. Osborn Popp
Counsel for Petitioner/Appellee
Raymond S. Dietrich, PLC, Phoenix
By Raymond S. Dietrich
Counsel for Respondent/Appellant
GAVALDON v. GAVALDON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Peter B. Swann joined.
C R U Z, Judge:
¶1 Jose G. Gavaldon, Jr. (“Husband”) appeals the superior
court’s post-dissolution order in favor of Sandra R. Gavaldon (“Wife”) that
Husband’s undisclosed defined contribution savings plan be divided via a
qualified domestic relations order (“QDRO”). For the following reasons,
we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Husband and Wife divorced in 2012. In 2020, Wife petitioned
for entry of a QDRO against Husband’s Arizona Pipe Trades Pension Trust
Fund pension plan. The superior court ruled in favor of Wife and in early
2021 entered a QDRO against the pension plan.
¶3 Later that year, Wife contacted the administrator of the
pension plan about the QDRO and discovered that Husband also had an
Arizona Pipe Trades Defined Contribution savings plan (“savings plan”)
that she had been unaware of. Wife petitioned for division of the savings
plan as an omitted asset.
¶4 The superior court held an evidentiary hearing. The court
found Husband’s testimony that he had disclosed the savings plan to Wife
unpersuasive, found that the savings plan was an omitted asset, and
awarded Wife one-half of the community’s interest in the savings plan. The
court ordered the savings plan to be divided by a QDRO. It awarded Wife
attorneys’ fees and costs based on disparity of financial resources and the
unreasonableness of Husband’s position in the litigation. See Ariz. Rev.
Stat. (“A.R.S.”) section 25-324. Husband appealed, and after entry of a final
judgment, we have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).
DISCUSSION
¶5 Husband argues the savings plan was not an omitted asset
under A.R.S. § 25-318(D) because the 2012 divorce decree awarded the plan
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GAVALDON v. GAVALDON
Decision of the Court
to Husband. Husband argues the savings plan was his sole and separate
property because of a catchall clause in the decree, which provided:
Each party shall retain as his or her sole and separate property
any disclosed savings, checking or other financial account
held in that party’s name.
(Emphasis added.) The decree contained no express reference to the
savings plan. Nor was the savings plan mentioned in the superior court’s
pre-decree minute entry ruling, wherein the court ordered Husband’s
pension plan to be divided by a QDRO.
¶6 We review the superior court’s interpretation of a dissolution
decree de novo. Cohen v. Frey, 215 Ariz. 62, 66, ¶ 10 (App. 2007). We review
the superior court’s factual findings for clear error. Ahwatukee Custom Ests.
Mgmt. Ass’n v. Turner, 196 Ariz. 631, 634, ¶ 5 (App. 2000). The
determination of witness credibility and the resolution of conflicting
evidence are functions of the superior court. Lee v. Lee, 133 Ariz. 118, 123
(App. 1982).
¶7 The superior court may divide an asset omitted from a decree
of dissolution under A.R.S. § 25-318(D), which provides:
The community, joint tenancy and other property held in
common for which no provision is made in the decree shall
be from the date of the decree held by the parties as tenants in
common, each possessed of an undivided one-half interest.
¶8 Here, the superior court found that the savings plan was
omitted from the decree, and even if it was a “financial account” that could
be subject to the catchall provision, that provision did not apply because
the savings plan had not been disclosed to Wife. In making its
determination, the court accepted Wife’s testimony that Husband did not
disclose the savings plan and rejected Husband’s testimony that he did so.
We will not reweigh the conflicting evidence, and we defer to the superior
court’s credibility determination. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16
(App. 2009). We find no error in the superior court’s determination that the
savings plan was an omitted asset subject to post-decree division.
¶9 Husband argues the decree was unmodifiable because under
A.R.S. § 25-327(A), “[t]he provisions 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 [Arizona].” Husband
suggests that because the superior court did not find “evidence of fraud,
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Decision of the Court
misrepresentation, or misconduct,” or “mistake or newly discovered
evidence,” the decree was unmodifiable. See Arizona Rule of Family Law
Procedure (“ARFLP”) 85(b). We disagree. Under ARFLP 85(b)(6), the
superior court may grant relief from final judgment for “any other reason
justifying relief.” And, as noted above, A.R.S. § 25-318(D) allows the
superior court to divide an asset omitted from a decree of dissolution. We
find no error.
¶10 Husband acknowledges that “A.R.S. § 25-318(D) does not
mandate a standard of proof,” but nevertheless argues the superior court
erred by applying a clear and convincing evidence standard of proof rather
than a preponderance of the evidence standard, noting “the superior court
required documentary evidence to prove disclosure of the annuity.” Even
if Husband did not waive this argument by failing to raise it in the superior
court, the record does not reflect that the superior court applied a higher
standard of proof or required documentary proof of disclosure. The
superior court properly reviewed the record for evidence of disclosure of
the savings plan and noted there was none other than Husband’s testimony,
which the court found “unpersuasive.” We find no error.
¶11 Finally, Husband argues Wife’s petition for division of the
savings plan is barred by laches. The superior court noted in its order that
Husband “cites no . . . equitable limitations arguments against division of
[the savings plan],” and “makes no argument that he has been prejudiced
by the late division of this omitted asset.” The record supports this
determination. Accordingly, Husband has waived his laches argument on
appeal. See Regal Homes, Inc. v. CNA Ins., 217 Ariz. 159, 171, ¶ 52 (App.
2007).
¶12 Wife requests attorneys’ fees pursuant to A.R.S. § 25-324. We
have considered the relative financial resources of the parties and the
reasonableness of the positions asserted on appeal. In the exercise of our
discretion, we grant Wife reasonable attorneys’ fees in addition to her costs
on appeal, upon compliance with ARCAP 21.
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GAVALDON v. GAVALDON
Decision of the Court
CONCLUSION
¶13 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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