Strong v. Owens

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

THOMAS H. STRONG, JR., Petitioner/Appellee,

v.

STEPHANI DENISE OWENS, Respondent/Appellant.

No. 1 CA-CV 17-0153 FC
FILED 1-23-2018

Appeal from the Superior Court in Maricopa County
No. FC2014-007248
The Honorable Pamela Hearn Svoboda, Judge

AFFIRMED AS MODIFIED

COUNSEL

Dickinson Wright PLLC, Phoenix
By Dana M. Levy, Michael R. Scheurich, Michelle N. Khazai
Counsel for Petitioner/Appellee

Horne Slaton, PLLC, Scottsdale
By Thomas C. Horne, Sandra L. Slaton, Kristin M. Roebuck Bethell
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge John C. Gemmill1 joined.

C R U Z, Judge:

¶1 Stephani Denise Owens (“Wife”) appeals the superior court’s
denial of her motion for new trial and the underlying Decree of Dissolution
(“Decree”). Wife challenges the award of joint legal decision-making and
equal parenting time, acceptance of the Arizona Rule of Family Law
Procedure (“Rule”) 69 agreement, rescission of a minute entry at the time
of the consent decree, the court’s child support determination, and the
appointment of a parenting coordinator. For the following reasons, we
affirm as modified.

FACTUAL AND PROCEDURAL HISTORY

¶2 Wife and Thomas H. Strong, Jr. (“Husband”), were married
in 1997. Husband and Wife have one child, T.S., born in 2004. Husband
petitioned for dissolution in 2014.

¶3 Pursuant to Rule 69, the parties orally entered an agreement
on the record in open court on February 22, 2016 (“Rule 69 Agreement”).
The Rule 69 Agreement addressed: child custody; spousal maintenance;
child support; the child’s insurance; the child’s extracurricular activities;
personal property; Wife’s personal injury claim; furnishings; life insurance;
Husband’s book publishing; any unclaimed property; a property
equalization payment; Husband’s personal property; child photos; debts;
income tax liability; and a home equity line of credit, with the only issue
purportedly remaining to resolve being the point value attributable to each
party from an American Express credit card account. With counsel for both
parties present, Husband and Wife agreed to enter into the agreement and
stated that they believed it was fair and reasonable.

1 The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

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¶4 Wife thereafter filed a motion to set aside the Rule 69
Agreement, however, Wife did not request an evidentiary hearing or
otherwise request that she be allowed to submit evidence in support of her
motion. Husband filed his notice of lodging form of decree, the court set a
hearing on the matter for September 29, 2016, and Wife submitted a pretrial
statement noting her corrections to Husband’s form of decree.

¶5 At the September 29 hearing,2 the court addressed the
following disputes: the child’s extracurricular activities and the method by
which Husband would pay the first $12,000 of said activities; method of
reimbursement to Wife for the child’s medical expenses; a UBS brokerage
account; whether unclaimed property could extend beyond Arizona;
American Express points; the return of Wife’s jewelry and Bibles; Wife’s
patent; the return of the cable box; a 529(B) account; equalization payment
amount; a holiday parenting plan; and Wife’s personal injury proceeds.
Also, briefly discussed was an existing order of protection for Wife and the
child against Husband, set to expire as to the child only at the end of the
day. However, at the request of the parties, the relevance of the order of
protection was not fully discussed because, per their representations to the
court, the parties were not prepared for that issue and Wife’s divorce
counsel was not her counsel of record for the order of protection
proceedings. The court took the matter under advisement and issued its
rulings on October 7, ordering the parties to resolve the sole remaining
issue, the value of American Express points as of the date of service of the
petition for dissolution, and to file a signed consent decree within two
weeks.

¶6 Wife did not sign Husband’s second proposed decree.
Consequently, Husband filed a second notice of lodging on November 10,
2016, and the court set a December 8 conference to address the same. Wife
did not object. Represented by new counsel at the December 8 conference,
Wife entered an untimely objection to the second proposed decree.

¶7 The court entered the Decree on December 9, 2016. The court
also addressed Wife’s contention that the granting of the order of protection
required the court to conduct a hearing on whether the agreement and
parenting plan were in the best interests of the child. The court entered the
Decree over Wife’s untimely objection.

2 In lieu of live testimony, the parties agreed, with leave of the court,
to proceed by way of avowals of counsel as well as the exhibits offered and
admitted into evidence.

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¶8 On December 27, 2016, Wife filed a motion for a new trial or
amended judgment. Among her arguments, Wife contended the court
erred in not considering the order of protection. The court denied Wife’s
motion.

¶9 Wife timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(1), (5)(a).

DISCUSSION3

I. Order of Protection

¶10 Wife argues the superior court erred by not considering the
best interests of the child when it awarded joint legal decision-making and
equal parenting time despite the existence of an order of protection.4
Husband argues the superior court did independently determine, based on
the evidence the parties provided, that the Rule 69 Agreement was in the
best interests of the child and no specific findings of record were required
because the matter was no longer contested. The issue turns on whether
the existence of an order of protection—not properly introduced into
evidence by either party but later attached to a motion for new trial—
necessitates an independent determination of domestic violence by the
superior court, pursuant to A.R.S. § 25-403 et seq., notwithstanding the Rule
69 Agreement.

¶11 We review the court’s legal decision-making and parenting-
time rulings for an abuse of discretion. In re Marriage of Diezsi, 201 Ariz.
524, 525, ¶ 3 (App. 2002). We do not reweigh the evidence and will affirm
if substantial evidence supports the court’s ruling. Hurd v. Hurd, 223 Ariz.
48, 52, ¶ 16 (App. 2009).

¶12 Rule 69 provides that an agreement between the parties shall
be valid and binding if the agreement is in writing, or the terms of the
agreement are set forth on the record before a judge. Ariz. R. Fam. Law P.

3 We view the evidence in the light most favorable to upholding the
superior court’s decision. Baker v. Meyer, 237 Ariz. 112, 113, ¶ 2 (App. 2015).

4 Wife asks that this Court take judicial notice of the November 3, 2016
order of protection transcript. We decline to take judicial notice of the
transcript, and need not take judicial notice of the order of protection
because the order is included in the record.

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69(A). The Rule 69 Agreement granted the parties joint legal decision-
making and parenting time, and Wife and Husband both avowed that the
agreement was in the best interests of the child. At no point during the
February 22 hearing did Wife claim domestic violence or that joint legal
decision-making and parenting time were contrary to the child’s best
interests. Accordingly, the court entered an order approving and adopting
the Rule 69 Agreement, and found “it is in the best interests of the parties’
minor [child].”

¶13 Wife thereafter informally brought the existence of an order
of protection to the court’s attention, but she did not request a hearing or
challenge the Rule 69 Agreement on that basis until after the court had
entered its final decree, when she filed her motion for new trial. In fact, at
the September 29 hearing, Wife’s counsel indicated she was not prepared
to address the issue of the order of protection because she was not Wife’s
counsel on that matter. In its resulting order, the court acknowledged
Wife’s position but stated the existence of “an order of protection does not
satisfy A.R.S. § 25-403.03,” and there was nothing before the court to show
the existence of significant domestic violence under § 25-403.03(A). The
court further stated Wife failed to file anything to allege an act of domestic
violence for the court’s consideration under § 25-403.03(D), and that it
therefore could not act in the absence of evidence. We agree. While
evidence of domestic violence may preclude the grant of joint legal
decision-making and parenting time, see A.R.S. § 25-403.03, the party
seeking relief under that statute must properly present the matter before
the court.

¶14 Section 25-411 provides that, “[a]t any time after a joint legal
decision-making order is entered, a parent may petition the court for
modification of the order on the basis of evidence that domestic violence
involving . . . spousal abuse or child abuse [has] occurred . . . .” A.R.S. § 25-
411(A) (emphasis added). But the court cannot seek evidence on its own.
Wife was required to first “submit an affidavit or verified petition setting
forth detailed facts supporting the requested modification[,]” and she failed
to do so. A.R.S. § 25-411(L). Wife further failed to object to Husband’s
second notice of lodging of the decree. See Ariz. R. Fam. Law P. 81(C)
(stating that judgment may be entered after the expiration of five days after
the proposed form has been served).

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¶15 For the foregoing reasons, we hold the court did not err when
it entered the decree awarding joint legal decision-making and parenting
time, and affirm accordingly.5

II. Rule 69 Agreement

¶16 Wife argues on appeal, as she did in her March 18, 2016
objection and motion to set aside the Rule 69 Agreement, that the court
abused its discretion when it failed to independently determine that the
Rule 69 Agreement was fair and equitable according to Sharp v. Sharp, 179
Ariz. 205 (App. 1994).

¶17 The court “may approve a valid separation and property
settlement agreement and incorporate it into the dissolution decree if the
agreement is free from fraud or undue influence and if it is fair and
equitable.” Id. at 208 (citing A.R.S. § 25-317(A)). Rule 69 allows parties to
enter agreements orally in court and provides that such agreements “shall
be valid and binding” and that “it shall be the burden of the party
challenging the validity of the agreement to prove any defect[.]” Ariz. R.
Fam. Law P. 69(B). “[P]ursuant to section 25-317(B), it is the court’s duty to
ensure that any separation and property settlement agreement reached by
the parties is fair and equitable.” Sharp, 179 Ariz. at 211. We review the
court’s determinations regarding dissolution for an abuse of discretion. Id.
at 209.

¶18 In Sharp, the wife signed a settlement agreement presented to
her by her husband. Id. at 207. When the wife’s attorney refused to accept
the agreement, the husband moved to enforce it in a combined motion to
enforce/motion for summary judgment. Id. at 208. In response, wife
alleged the agreement was invalid because it was unfair and the result of
undue influence. Id. Thus, Sharp did not involve a presumptively valid
Rule 69 agreement, but instead was decided on summary judgment where
the moving party bears the burden of proof, see Nat’l Bank of Ariz. v.
Thruston, 218 Ariz. 112, 119, ¶ 26 (App. 2008), and because there was a

5 The court did err, in the Decree, when it specifically found “[t]here
[were] no protective orders currently in place.” The record shows that at
the September 29 hearing, the parties informally advised the court of the
existence of an order of protection and the court acknowledged having
limited information regarding the same. As such, we strike that finding in
the Decree, but uphold the court’s determination that the agreed-upon joint
legal decision-making and parenting time were in the best interests of the
child.

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factual dispute about whether it was fair and entered into freely, husband
was not entitled to summary judgment, Sharp, 179 Ariz. at 210-11. Even so,
the court explained when the need for an evidentiary hearing regarding the
fairness of an agreement might arise:

While it is possible for the trial court to decide by summary
judgment whether an agreement is equitable, in this case
there were plainly disputed facts on the question of the
fairness of the agreement, and the court was presented no
evidence as to the extent of the community assets. Although
the dissolution decree states that the parties’ agreements are
not unfair, neither the decree nor the court’s minute entry
granting summary judgment contains any basis on which the
court could have made such a determination and, indeed,
there is no such evidence in the record on which such a
conclusion could be based.

Id. at 210.

¶19 Unlike in Sharp, here, both parties met with counsel;
negotiated an agreement; presented it to the superior court; and testified
under oath they were familiar with and understood the agreement, they
believed it fair and equitable, and were entering it freely without coercion
or duress. In its February 22, 2016 minute entry and order, the court
accepted the parties’ agreement and found that it was knowingly,
intelligently, and voluntarily entered into, was in the best interests of the
child, and was equitable. Additionally, the court made a number of
preliminary findings in October 2015, and when the court accepted the
parties’ oral agreement on February 22, the record contained the parties’
joint prehearing statement for trial, which included descriptions of the
parties’ assets, a list of disputed issues, and each parties’ position, and
Wife’s then-counsel stated there were no omitted assets.

¶20 Wife then sought to set aside the Rule 69 Agreement, claiming
the Rule 69 Agreement was inequitable, unduly influenced, and that Wife
did not have knowledgeable and independent counsel. Without making
specific findings, the court denied the objection and motion to set aside. As
noted above, the record contains sufficient evidence that the court
determined the Rule 69 Agreement was fair and equitable.

¶21 Wife’s contention that there remained outstanding issues at
the time the agreement was entered into does not otherwise invalidate the
Rule 69 Agreement. After the February 22, 2016 hearing, the court directed

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the parties to present a final parenting plan and their arguments as to the
proper value of American Express points, which would be equally divided.
Similarly, at the February 22 hearing, the court addressed Wife’s concerns
regarding the division of debt and taxes. In contradiction to Wife’s claim
that the court erred in part because Husband hid tax information that Wife
did not have access to, the court held an in-depth discussion regarding
Wife’s concern—tax liability and innocent spouse defense—after which
Wife stated the court had answered all her questions.

¶22 Even though Wife’s counsel at the time of the Rule 69
Agreement stated there were no omitted assets and Wife avowed she had
sufficient information to make the agreement, Wife contends the court
erred because Husband failed to produce certain requested items during
discovery. Wife previously filed a motion to compel in 2015, granted in
May 2015, and a motion to continue trial based on Husband’s lack of
disclosure. Wife re-urged discovery issues, and at an August 6, 2015
hearing, the court ordered the parties to exchange updated disclosure
statements. On September 3, 2015, the court held oral argument regarding
the scope of discovery, and limited the remaining portion of Wife’s motion
to compel to records within a six-month period prior to the time of filing
the petition for dissolution, in accordance with Rule 49, as no waste claim
was pled. No further discovery claims were raised before the February 22
hearing, and the only claim as to unknown information at the hearing was
the tax liability issue, discussed above.

¶23 Wife again raised concerns regarding discovery at the
September 29 hearing, however the court noted that Wife did not raise it as
a contested issue in her joint prehearing statement or in her objection to
Husband’s lodged consent decree, and we further note that Wife did not
list it as a reason to set aside the Rule 69 Agreement in her objection and
motion to set aside.

¶24 The record reflects that the court was not required to conduct
a formal evidentiary hearing. The court had sufficient evidence in the
record and heard from the parties and their attorneys. Despite her ongoing
discovery disputes, at the time of the Rule 69 Agreement, Wife testified she
had sufficient information to make the agreement. Under these
circumstances, the court properly exercised its discretion in making an
implicit determination that the Rule 69 Agreement was fair and equitable.

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III. Rescission of Minute Entry

¶25 Wife argues the court erred when it rescinded its own minute
entry at the time of the hearing without notice. Wife argues that error
deprived her of her due process rights.

¶26 Due process entitles a party to notice and a meaningful
opportunity to be heard, as well as the opportunity to offer evidence and
confront adverse witnesses. Cook v. Losnegard, 228 Ariz. 202, 206, ¶ 18 (App.
2011). A family law judgment rendered without notice and meaningful
opportunity to be heard cannot stand. Cruz v. Garcia, 240 Ariz. 233, 236,
¶ 12 (App. 2016).

¶27 Wife argues the court wrongly rescinded its November 16
minute entry setting the December 8 status conference, and that this
rescission deprived her of her due process rights. In its November 16
minute entry, the court entered a standard order but set a status conference,
not trial or another hearing, in response to Husband’s second notice of
lodging. In the minute entry, the court advised the parties as follows:

Before the conference, counsel (or the party, if unrepresented)
should confer with each other regarding: (1) the prospects for
resolving the case without going to trial, (2) if the case is not
resolved, when the case will be ready for trial and the
anticipated length of the trial, (3) whether a custody evaluator
. . . is needed, (4) deadlines for expert and other disclosure, (5)
whether alternative dispute resolution is appropriate, (6) any
other case management issues.

¶28 At the December 8 conference, the court was made aware of
the additional language and rescinded it, stating the minute entry “just
should have said status conference,” because that is what Husband
requested. The court thereafter corrected the November 16 minute entry to
reflect solely the setting of the status conference on December 8, without
the additional advising language to the parties.

¶29 Given the lengthy proceedings in the case, the Rule 69
Agreement entered into at the conclusion of the February 22 hearing, Wife’s
objection and motion to set aside the Rule 69 Agreement and the court order
denying said motion, Husband’s first notice of lodging, Wife’s pre-
September 29 hearing statement listing her objections to the notice of
lodging, the September 29 hearing regarding Wife’s objections to
Husband’s first notice of lodging, the court’s subsequent under-advisement
ruling specifically stating that trial occurred on February 22 and that a Rule

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69 Agreement had been entered into, and Husband’s second notice of
lodging (to which Wife did not object), it cannot be said that Wife lacked
either notice or a meaningful opportunity to be heard that thereby deprived
her of her due process rights.

¶30 Because we find more than sufficient evidence in the record
to establish Wife was given notice and a meaningful opportunity to be
heard, we affirm the court’s order entering the Decree.

IV. Child Support

¶31 Wife argues the court abused its discretion when it ordered
child support payments that were not in the child’s best interests and were
unreasonable given Husband’s income.

¶32 The superior court has broad discretion to determine an
appropriate award of child support, and we will uphold the award so far
as it is supported by evidence. Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8 (App.
2007). While the guidelines provide a presumptive amount, and cap
income generally at $20,000, they allow a parent to seek a deviation if such
deviation is in the best interests of the child. Nash v. Nash, 232 Ariz. 473,
476, 478, ¶¶ 8, 16 (App. 2013); A.R.S. § 25-320 app. §§ 2(G)(2), 8 (2011). A
parent seeking such deviation bears the burden of proof to establish that a
higher amount is in the child’s best interests. Nash, 232 Ariz. at 478, ¶ 16.

¶33 Wife claims she requested a deviation based on Husband’s
income, however, the record does not support that claim. Wife’s
contentions that the Rule 69 Agreement “did not waive either parties’ rights
to assert a different calculation at any point,” and that the court entered the
child support payment over Wife’s objections, misrepresent the record.

¶34 The agreement that “[did] not waive either parties’ rights to
assert a different calculation at any point” was a pretrial stipulation on
November 13, 2015. In the joint prehearing statement for trial, submitted
on February 17, 2016, Wife contended a deviation would be appropriate
because, as based on Husband’s recommended child support value and the
possibility Wife would have to pay for the child’s continued participation
in expensive activities, Wife would be unable to meet such payments
without a deviation. At the hearing, the parties entered into a valid and
binding Rule 69 Agreement, as discussed below, in which the parties agreed
child support would be based on the $20,000 cap, but the court would use
his income of $54,000 a month to determine the percentages of which each
party would make additional payments. No separate deviation was
requested. Further alleviating Wife’s pretrial unrequested concern

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regarding the need for a deviation, it was agreed that Husband would pay
the first $12,000 per year of the child’s extracurricular activity expenses, and
any additional expenses would be paid according to an 85% Husband/15%
Wife split as determined by Husband’s $54,000 monthly income.

¶35 Husband proposed a specific child support obligation in his
notice of lodging accordingly. In her prehearing statement, Wife requested
child support in the amount of $1,458.33 per month, but did not object to
use of the cap or request a deviation. Only at the December 8 conference
did Wife’s counsel orally raise a concern that no deviation was given and
that such a failure was contrary to the best interests of the child. As such,
Wife did not properly request a deviation, and even assuming the issue was
brought to the court’s attention, the burden was on her to establish that a
deviation was in the best interests of the child, which she has not done. See
Nash, 232 Ariz. at 478-79, ¶¶ 16-20. We hold the court did not err in
determining child support.

V. Appointment of a Parenting Coordinator

¶36 Wife argues the court erred when it allowed the appointment
of a parenting coordinator without proper stipulation under Rule 74.

¶37 Rule 74 provides that the court may appoint, at any time after
entry of a legal decision-making or parenting time order, a parenting
coordinator. But the court can only appoint such parenting coordinator “if
each parent has agreed to the appointment either by written stipulation or
orally on the record in open court.” Ariz. R. Fam. Law P. 74(B).

¶38 At oral argument, Husband conceded there was no
agreement as to the appointment of a parenting coordinator. We therefore
vacate the portion of the Decree appointing a parenting coordinator.

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CONCLUSION

¶39 For the foregoing reasons, we affirm as modified.

¶40 Husband requests attorneys’ fees on appeal. In exercising our
discretion under A.R.S. § 25-324, we decline to award attorneys’ fees.

AMY M. WOOD • Clerk of the Court
FILED: AA

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