Wassenaar v. Wassenaar

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SAMANTHA WASSENAAR, Petitioner/Appellee,

v.

RYAN WASSENAAR, Respondent/Appellant.

No. 1 CA-CV 20-0429 FC
FILED 7-27-2021

Appeal from the Superior Court in Maricopa County
No. FC2015-053180
The Honorable Alison S. Bachus, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin
Counsel for Petitioner/Appellee

Garnice Law PLLC, Scottsdale
By Victor A. Garnice
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Kent E. Cattani
joined.

T H U M M A, Judge:

¶1 Ryan Wassenaar (Father) appeals from a post-decree order
denying his petitions regarding parenting time, child support and to
enforce or modify the Decree. For the reasons stated below, that portion of
the June 2020 order requiring the parties to help prepare and execute a new
deed naming Samantha Anderson Wassenaar (Mother) the sole owner of a
home, is vacated. In all other respects, the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother married in 2007 and have one minor child
who was born in 2009. After Mother petitioned for dissolution in 2015, the
parties entered into a consent decree later entered by the court. Mother’s
counsel drafted the Decree, which disposed of the parties’ community
property, including the former marital home in Anthem. The Decree
provided that Mother:

shall retain the marital home . . . as her sole and
separate property. Mother shall be solely
responsible for any and all mortgage and
liabilities associated with the marital home and
shall indemnify and hold Father harmless
therefrom. Mother shall make reasonable
attempts to refinance the marital home to
remove Father’s name from the loan documents
within one year of the entry of the Decree. Upon
the sale of the marital home by Mother,
whenever that shall occur, Father shall be
entitled to 30% of the equity in the home after
all mortgages, closing costs and fees are paid.

Father waived the opportunity to have counsel of his choice review the
Decree before he signed it. At about this same time, Father relocated for a

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landscape design job in California. Neither party appealed from the Decree,
which was entered in December 2015.

¶3 In 2019, Father returned to Arizona and became self-
employed. Father began making informal requests for more parenting time
with their child, most of which Mother granted. After a few months, Father
petitioned for increased parenting time and a modification of child support.
Father also petitioned to enforce or modify the Decree to immediately
convey his community property share of the equity in the former marital
home awarded to Mother.

¶4 Both Father and Mother testified at an evidentiary hearing on
Father’s petitions held in June 2020. In a ruling issued later that month, the
court found Father’s return to Arizona was a material change in
circumstances and awarded him more parenting time. Father testified that
he earns just under $3,000 per month after business expenses. The court,
though, attributed to him income of $9,000 per month and ordered him to
pay $543 per month in child support. On the issue of the marital home, the
court denied Father’s petition to enforce or modify the Decree. The court
awarded Mother her attorneys’ fees under A.R.S. § 25-324, after finding
Father’s position about the home to be unreasonable. This court has
jurisdiction over Father’s timely appeal pursuant to Arizona Revised
Statutes (A.R.S.) section 12-2101(A)(2) (2021).1 Accord Yee v. Yee, 251 Ariz.
71, 73 ¶ 1 (App. 2021).

DISCUSSION

I. Father Has Shown No Abuse of Discretion by the Court Denying
His Request for Floating Parenting Time.

¶5 The Decree awarded joint legal custody with Father receiving
35 days of long-distance parenting time. Mother did not dispute that
Father’s post-Decree return to Arizona in 2019 was a material change in
circumstances that might justify a modification of the parenting time
schedule. Thus, the court’s role was to determine what parenting time
schedule was in the child’s best interests. See A.R.S. § 25-403(B).

¶6 Father proposed a parenting time schedule of every other
weekend and four “floating days” per month. Mother did not object to
Father having parenting time every other weekend, but did oppose any
floating days. She testified that an inconsistent schedule caused conflict and

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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harmed the child. Based on the evidence presented, the court found that
“floating days” conflicted with the child’s best interests. Accordingly, the
court denied Father’s request for floating days and instead awarded him
127 scheduled days, a decision Father challenges on appeal.

¶7 Father asserts the court modified parenting time based on
findings unsupported by the evidence. Specifically, he argues there was no
evidence that floating days harmed the child. In doing so, Father misstates
the record. In addressing the past, present and potential future relationship
between the parents and the Child, the court expressed concerns about
father’s behavior:

The Court is concerned that Father’s
pattern of requesting time with the Child on
short notice has signaled to the Child that Father
spends time with the Child at Father’s
convenience, or that the Child is expected to be
“on call.” This pattern could have long-term
negative effects on the Father/Child
relationship, particularly as the Child enters her
teenage years, unless parenting time is
exercised with consistency and on a predictable
schedule.

Having considered this, and the other A.R.S. § 25-403(A) factors, the court
then found that a changing schedule associated with floating days
conflicted with the child’s best interests.

¶8 This court will not disturb a parenting time decision absent
an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525 ¶ 3 (App.
2002). The superior court weighs the conflicting evidence before exercising
its discretion to determine what schedule is in a child’s best interests. Nold
v. Nold, 232 Ariz. 270, 273-74 ¶ 14 (App. 2013) (applying A.R.S. § 25-403(A)).
Father has shown no abuse of discretion.

¶9 Mother testified about the effect of an inconsistent schedule
on the child and the court considered the conflicting evidence before
modifying the schedule. Parenting plans are designed to protect a child’s
emotional and physical health, which are not trumped by a parent’s
convenience or desires. See A.R.S. §§ 25-403.02(C)(3) (requiring a “practical
schedule”), - 403.02(D). The court made findings on all the A.R.S. § 25-
403(A) best interest factors and Father has shown no error.

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II. Father Has Shown No Error in the Court’s Attributing to Him
$9,000 in Monthly Income.

¶10 Father argues it was error for the court to calculate his child
support obligation based on $9,000 in monthly income, which was his
California salary. Father asserts that his self-employed net income is less
than $3,000 per month, meaning the court’s calculation of child support is
legal error.

¶11 The superior court must consider the financial resources of
each parent when determining child support. A.R.S. § 25-320(D). Arizona
permits the attribution of a higher income based on a parent’s work
experience and earning capacity. See, e.g., Taliaferro v. Taliaferro, 188 Ariz.
333, 337 (App. 1996); Williams v. Williams, 166 Ariz. 260, 266 (App. 1990).
Findings of fact are reviewed for an abuse of discretion, while legal
questions under the child support Guidelines are reviewed de novo.
McNutt v. McNutt, 203 Ariz. 28, 30 ¶ 6 (App. 2002); A.R.S. § 25-320 app.
(2018) (Guidelines). The evidence is construed in the light most favorable to
affirming. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51 ¶ 11 (App. 2009).

¶12 Self-employment income is calculated based on “gross
receipts minus ordinary and necessary” business expenses. See Guidelines
§ 5(C). The court squarely addressed Father’s contention that he earned less
than $3,000 per month from self-employment, finding that Father had not:

corroborated that testimony. Father provided
no profit/loss statement or clear accounting of
his earnings at his current position. Father runs
his personal and business expenses through the
same financial accounts. In short, the Court does
not conclude that the documentary evidence
supports Father’s claim of such low earnings.
Even if Father had proven lower earnings,
Father has not demonstrated that he is
incapable of earning more than he is. He
provided no evidence regarding a job search for
any employment, much less a position that pays
$9,000.00 per month. Based on the evidence
presented, the Court finds Father is capable of
earning $9,000.00 per month.

The Guidelines allow the attribution of income up to full earning capacity
when a parent is under-employed. Guidelines § 5(E). Father did not prove

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that he is incapable of earning the amount attributed to him (like what he
earned in California).

¶13 The superior court considered the conflicting evidence on
Father’s self-employment income and earnings capacity, as well as
credibility, and this court does not reweigh that evidence on appeal. See
Clark v. Kreamer, 243 Ariz. 272, 276 ¶ 14 (App. 2017). Because the order
shows the court engaged in the necessary inquiry, and Father has shown no
error based on his employment status/potential as of the date of the
hearing, the attribution of income to Father is affirmed.

III. Father Has Shown No Error in Denying His Petition to Enforce or
Modify the Decree.

¶14 Father asserts the Decree unfairly dealt with the distribution
of the equity in their community property marital home and asked the court
to intercede. Father, however, did not timely appeal from the entry of the
Decree. And the court denied Father’s petition to enforce or modify the
Decree. He does not challenge the awarded amount, per se, but he
challenges the indefinite nature of that payout. Father has shown no error.

¶15 To promote the amicable settlement of disputes in a
dissolution proceeding, the parties may enter into a valid, binding
agreement to dispose of property. See Ariz. R. Fam. Law P. (ARFLP) 69.
Settlement agreements are contracts. Emmons v. Superior Court, 192 Ariz.
509, 512 ¶ 14 (App. 1998). Although this court reviews de novo whether a
settlement agreement is enforceable, Burke v. Ariz. State Ret. Sys., 206 Ariz.
269, 272 ¶ 6 (App. 2003), the disposition of property under such an
agreement reflected in in a decree that has become final generally is not
subject to modification, De Gryse v. De Gryse, 135 Ariz. 335, 338 (1983); A.R.S.
§ 25–327(A).

¶16 The court’s entry of the Decree in 2015 is a tacit finding that
the settlement was enforceable. Neither party appealed from the Decree.
Thus, the only issue is whether the court erred in denying Father’s petition
to enforce or modify the Decree. The Decree reads, in relevant part: “Upon
the sale of the marital home by Mother, whenever that shall occur, Father shall
be entitled to 30% of the equity in the home after all mortgages, closing costs
and fees are paid.” [Emphasis added.] “A general principle of contract law
is that where parties bind themselves by a lawful contract and the terms of
the contract are clear and unambiguous, a court must give effect to the
contract as written.” Estes Co. v. Aztec Constr., Inc., 139 Ariz. 166, 168 (App.
1983).

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¶17 The Decree’s language is plain, and Father admits he
understood the terms when he signed it. Moreover, the court found that it:

received no credible evidence that Father was
under any duress, coercion or undue influence
when he entered into the agreement. Father
could have insisted upon a different timeframe
for sale of the home or disposition of the home’s
equity (or his share of the valued equity upon
date of dissolution), but he did not.

¶18 To the extent that Father wished to challenge the terms of the
Decree entered in 2015, he should have timely appealed years ago. By
failing to do so, Father waived any arguments on the rule against
perpetuities or the fairness of the Decree that he now seeks to press. See
Porter v. Estate of Pigg, 175 Ariz. 194, 197 (App. 1993) (holding that any legal
error in a decree did not affect its validity “but only made it subject to
correction by a timely appeal”). Moreover, the term Father objects to
addresses Mother’s sale of the marital home, a right vested in Mother at the
time of the entry of the Decree. Because Mother was a “life in being at the
creation of the interest,” the Decree does not violate the rule against
perpetuities. See Thomas F. Bergin & Paul G. Haskell, Preface to Estates in
Land and Future Interests 178 & n.1 (2d ed. 1984) (citing Gray, The Rule
Against Perpetuities § 201 (4th ed 1942)).

¶19 Likewise, the home was not property that was omitted from
the Decree. See A.R.S. § 25-318(D); State ex rel. Goddard v. R.J. Reynolds
Tobacco Co., 206 Ariz. 117, 120 ¶ 12 (App. 2003) (language in a contract is
ambiguous only if it can reasonably be construed to have more than one
meaning). The Decree unambiguously specified the property address.
Finally, Father did not meet the requirements for a timely post-judgment
modification under one of the six conditions listed in ARFLP 85(b). For
these reasons, he has shown no error in the superior court declining to grant
his petition to enforce or modify the Decree.

IV. The Superior Court Erred in Requiring the Parties to Prepare and
Execute a New Deed Placing the Home in Mother’s Name Alone.

¶20 Father did not ask that his name be removed from the deed to
the home, and Mother filed no petition or motion seeking affirmative relief.
The superior court, however, ordered the parties “to prepare and execute a
corrective deed to reflect the sole and separate character of the” home,
placing it solely in Mother’s name. Father challenges this ruling, arguing

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the court, “without creating even so much as a recordable lien interest” in
his favor, “modified the Decree to reduce Ryan’s equitable interest in the
real property from 30% of the net equity to zero and effectively eliminated
that share equity.”

¶21 The Decree required Mother to “make reasonable attempts to
refinance the marital home to remove Father’s name from the loan
documents within one year of the entry of the Decree.” Mother admittedly
failed to do so. Accordingly, in June 2020, the court ordered Mother to
refinance the home “to ensure Father’s name is removed from any and all
loan documents for the property” by mid-October 2020. Although
enforcing the terms of the Decree in this respect, the court denied Father’s
petition to enforce or modify the Decree “insofar as Father requests any
other relief.” Stated differently, the court’s order enforced the Decree but
refused to modify it.

¶22 The Decree, entered in 2015, did not require the parties to
prepare and execute a new deed for the home. Mother testified that Father’s
name had been removed from the home in 2013 through a warranty deed,
“when the parties initially contemplated dissolution of their marriage,”
testimony the court found “credible and corroborated by documentary
evidence.” Although that understanding may have been incorrect, any such
misunderstanding did not alter the terms of the Decree, which did not
require the parties to prepare and execute a new deed for the home.

¶23 Although not directly addressing this issue on appeal, Mother
asserts Father could not properly seek relief from the Decree under ARFLP
85(b). Even if Mother had filed an ARFLP 85(b) motion (she did not), that
same argument would apply with equal force to her. Because the Decree
did not require the parties to sign a new deed for the home removing
Father’s name and placing it solely in Mother’s name, and because the
court’s order did not modify the Decree, that portion of the court’s order
requiring a new deed is vacated.2

2 Although Father argues the superior court erred in awarding Mother
attorney’s fees under A.R.S. § 25-324, as explained in this court’s March 3,
2021 order, this court lacks jurisdiction to review that award.

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IV. Attorneys’ Fees on Appeal

¶24 Both parties request attorneys’ fees on appeal pursuant to
A.R.S. § 25-324, which focuses on the financial resources of the parties and
the reasonableness of their legal positions. The record shows that the parties
are in a similar financial position. Mother took reasonable legal positions.
Father, although he continues to assert the waived home payout argument
on appeal, also took reasonable positions on parenting time and the
attribution of income. Thus, in the exercise of the court’s discretion, neither
party is awarded fees on appeal. Mother is awarded her taxable costs on
appeal contingent upon her compliance with ARCAP 21.

CONCLUSION

¶25 That portion of the June 2020 order requiring the parties to
help prepare and execute a new deed naming Mother the sole owner of a
home is vacated. In all other respects, the order is affirmed.

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

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