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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JUNE M. MCCLURE, Petitioner/Appellee,
v.
ROY E. MCCLURE, Respondent/Appellant.
No. 1 CA-CV 14-0782 FC
FILED 4-25-2016
Appeal from the Superior Court in Maricopa County
No. FN2006-001680
The Honorable Susan M. Brnovich, Judge
AFFIRMED
COUNSEL
Steven G. Clark PC, Phoenix
By Steven G. Clark
Counsel for Petitioner/Appellee
Law Office of Patricia A. Hubbard, Phoenix
By Patricia A. Hubbard, Michael Reaves
Counsel for Respondent/Appellant
MCCLURE v. MCCLURE
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.
T H U M M A, Judge:
¶1 Appellant Roy E. McClure (Husband) appeals the superior
court’s order directing him to pay appellee June M. McClure (Wife)
$158,000 for unpaid rent. Because Husband has shown no error, the order
is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 When Husband and Wife divorced in 2009, the court entered
a consent decree awarding Wife commercial property consisting of land
and a building (the Property). At that time, the building was occupied by
the parties’ business, Action Motor Sports (AMS). Wife waived all interest
in AMS, and the decree provided that Husband had a two-year lease for the
Property, paying Wife $7,000 per month the first year and $12,000 per
month the second year.
¶3 In 2014, Wife filed a petition to enforce the decree and hold
Husband in contempt for his failure to make the monthly payments.
Husband argued AMS (not Husband) was obligated to make the payments
and AMS’ bankruptcy filing days after the entry of the decree ended that
obligation. Husband also argued Wife “failed to mitigate her damages by
refusing to lease out [the Property] to others who inquired about” it, and
that laches precluded Wife’s claim because she knew in August 2009 that
Husband had stopped paying rent.
¶4 After an evidentiary hearing, the court ruled the decree
obligated Husband to make the payments, meaning AMS’ bankruptcy did
not alter that obligation. Rejecting Husband’s mitigation and laches
arguments, the court then ordered Husband to pay Wife the remaining
unpaid payments totaling $158,000.
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MCCLURE v. MCCLURE
Decision of the Court
¶5 From Husband’s timely appeal, this court has jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1) (2016).1
DISCUSSION
¶6 Husband argues the superior court erred as a matter of law
by ruling Wife had no duty to mitigate. This court reviews de novo the
interpretation of a decree, applying the general rules of construction for any
written instrument. Cohen v. Frey, 215 Ariz. 62, 66 ¶¶ 10-11 (App. 2007). The
first inquiry is whether the decree is ambiguous when construed according
to the natural and legal import of its language. Id.
¶7 After awarding the Property to Wife, the decree provides:
Wife waives all interest in the businesses of
Northern Auto and [AMS]. However, Wife is
the owner of the [P]roperty that [AMS] sits
upon. As such, the parties agree that Husband
shall have a two year lease with Wife as the
landlord under the following rents:
For the first year, Husband shall
pay $7,000.00 per month for rent.
For year two, Husband shall pay
$12,000.00 per month for rent.
Wife shall be responsible for the
property taxes.
Furthermore, Husband shall have the first
option to purchase the [P]roperty. Said
purchase shall be for the fair market value with
an appraisal done by an appraiser of Wife’s
choice.
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated. The order Husband
appeals from is not one for contempt as Wife asserts, but an appealable
special order after final judgment. See In re Marriage of Dorman, 198 Ariz.
298, 300 ¶ 3 (App. 2000) (noting order relating to enforcement of judgment
may be appealable as special order after judgment).
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MCCLURE v. MCCLURE
Decision of the Court
¶8 The decree does not expressly require Wife to mitigate
damages caused by Husband’s failure to make the required monthly
payments. It is therefore not ambiguous and not subject to more than one
reasonable interpretation regarding that topic. In re Marriage of Johnson and
Gravino, 231 Ariz. 228, 233 ¶ 16 (App. 2012) (“A decree is ambiguous only
when [its language] can reasonably be construed to have more than one
meaning.”) (citation omitted).
¶9 Husband asserts the decree created a commercial lease
relationship, thereby imposing an implied obligation to use reasonable
efforts to mitigate damages. See Dushoff v. Phoenix Co., 22 Ariz. App. 445,
449 (1974) (“We hold that in a commercial lease transaction, if the tenant
abandons the premises, the landlord is under a duty to make reasonable
efforts to rent it at a fair rental.”). The language of the decree, however, is
not reasonably susceptible to creating a commercial lease relationship with
corresponding obligations as landlord and tenant. There is, for example, no
suggestion that the rights and duties in the decree could be assigned and
delegated, as with a commercial lease. Moreover, a properly-entered decree
is not a contract but, rather, “an independent resolution by the court of the
issues before it and rightfully is regarded in that context and not according
to the negotiated intent of the parties.” In re Marriage of Zale, 193 Ariz. 246,
249 ¶ 11 (1999). Husband cites no authority for the proposition that these
decree obligations are accompanied by obligations implied in a commercial
lease. In short, as applicable here, a divorce decree is not the same as a
commercial lease for real estate. Because the decree did not expressly
impose a mitigation obligation and did constitute a commercial lease, and
because the parties never entered into a commercial lease for the Property,
the superior court did not err in rejecting Husband’s mitigation argument.2
¶10 The superior court did not specifically address laches, but
necessarily rejected the defense by ruling in Wife’s favor. Husband has not
shown this was an abuse of discretion. See Rash v. Town of Mammoth, 233
Ariz. 577, 583 ¶ 17 (App. 2013). Laches bars an action only when the
plaintiff’s lack of diligence causes prejudice to the defendant. Meyer v.
2 On the record before this court, Husband’s argument fairs no better
factually. Although Husband disputes Wife’s argument that she discharged
any mitigation obligation, he did not provide the transcript from the
evidentiary hearing, meaning there is no evidentiary support for his
argument that Wife failed to mitigate. And because Husband’s specific
mitigation argument fails on this record, there is no need to address other
arguments, in equity or law, that could have been made that might have
imposed a mitigation obligation.
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MCCLURE v. MCCLURE
Decision of the Court
Warner, 104 Ariz. 44, 47 (1968) (citation omitted). Husband did not assert
any such prejudice, and his failure to provide a transcript of the evidentiary
hearing requires this court to presume the evidence received supports the
superior court’s ruling. Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).
CONCLUSION
¶11 Because Husband has shown no error, the superior court’s
order is affirmed.
:ama
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