Thomas-Hoffman v. Hoffman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELIZABETH A. THOMAS-HOFFMAN, Petitioner/Appellee,

v.

DAN D. HOFFMAN, Respondent/Appellant.

No. 1 CA-CV 25-0160 FC
FILED 10-24-2025

Appeal from the Superior Court in Maricopa County
No. FC2008-092250
The Honorable Michael Valenzuela, Judge

APPEAL DISMISSED IN PART;
REVERSED AND REMANDED IN PART

APPEARANCES

Dan D. Hoffman, Mesa
Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Andrew J. Becke joined.

B R O W N, Judge:

¶1 Dan D. Hoffman (“Husband”) appeals the superior court’s
order granting Elizabeth A. Thomas-Hoffman’s (“Wife”) post-decree
petition to enforce and awarding attorneys’ fees to Wife. Because Husband
raises debatable issues and Wife failed to file an answering brief, she has
confessed error on the court’s resolution of the petition to enforce. We
therefore reverse and remand for entry of judgment in Husband’s favor. To
the extent Husband seeks to challenge the fee award, we dismiss that
portion of his appeal for lack of jurisdiction.

BACKGROUND

¶2 Husband and Wife married in July 1997. Eleven years later,
Wife filed for dissolution, and the superior court issued a dissolution decree
in October 2008. The decree included a separate agreement dividing
property and debts (“Agreement”) that was “incorporated into, but not
merged with,” the decree.

¶3 Under the Agreement and as pertinent here, Husband
received the marital home, but subject to two conditions: (1) he had to
refinance the mortgage or otherwise remove Wife’s liability within one year
of issuance of the decree, and (2) he had to make five annual payments to
Wife totaling $150,000 for her equitable interest in the home, with the last
payment due in October 2013. If Husband failed to meet either condition,
Wife had “the right to require Husband to sell the house” and receive “the
full balance owed . . . for her interest in the home from the home sale
proceeds.”

¶4 In November 2023, Wife petitioned to enforce the Agreement,
alleging Husband failed to satisfy both conditions. Wife therefore sought
an order compelling Husband to list the home for sale and awarding her
interest, attorneys’ fees, and costs.

¶5 Husband responded, arguing in part that the Agreement
overvalued the equity in the home. Husband later moved to dismiss the

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petition, noting the Agreement was incorporated into, but not merged with,
the decree and thus the six-year statute of limitations under A.R.S. § 12-548
precluded Wife’s petition. Wife did not respond, and the superior court
denied Husband’s motion, explaining the funds he owed Wife were an
equitable lien, not a contractual debt.

¶6 After an evidentiary hearing, the superior court ruled in
Wife’s favor, finding Husband willfully violated the decree. The court
ordered Husband to sell the home, with Wife to receive $150,000 from the
sale proceeds. The court awarded attorneys’ fees to Wife but entered
judgment under Arizona Rule of Family Law Procedure (“Rule”) 78(b)
because the amount of the award still needed to be determined. Husband’s
timely appeal followed, and we have jurisdiction under A.R.S.
§ 12-2101(A)(2).

DISCUSSION

¶7 Husband challenges the superior court’s decision, asserting
the six-year statute of limitations under A.R.S. § 12-548 barred Wife’s
claims. For her part, Wife did not file an answering brief.

¶8 We review the superior court’s ruling on a post-decree
petition to enforce for an abuse of discretion. In re Marriage of Rojas, 255
Ariz. 277, 282, ¶ 10 (App. 2023). We review questions of law, including the
applicability of a particular statute of limitations, de novo. Larue v. Brown, 235 Ariz. 440, 443, ¶ 14 (App. 2014); Occhino v. Occhino, 164 Ariz. 482, 484
(App. 1990) (stating that “[w]hether a particular statute of limitations
applies to any given action is a matter of law”).

¶9 We apply these standards of review and analyze Husband’s
arguments through the lens of Wife’s failure to file an answering brief. See
Tiller v. Tiller, 98 Ariz. 156, 157 (1965). When an appellant raises debatable
issues and the appellee has no good cause for failing to respond, we
generally construe that failure as a confession of reversible error. Nelson v.
Nelson, 91 Ariz. 215, 217 (1962); Mower v. Street, 79 Ariz. 282, 283 (1955).
Arizona courts have not precisely defined what makes an issue
“debatable.” However, the concept includes circumstances when the
opening brief claims error with supporting authority, it would require
significant work to refute the opening brief, Merrill v. Wheeler, 17 Ariz. 348,
350 (1915), or there is “at least grave doubt” about the superior court’s
order, Adkins v. Adkins, 39 Ariz. 530, 532 (1932). In contrast, a matter is not
debatable when the answer is clear from the record. See, e.g., Honsey v.
Honsey, 126 Ariz. 336, 337 (App. 1980).

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¶10 Nothing in the record suggests Wife had good cause for
failing to provide an answering brief. The record shows a copy of the notice
of appeal was sent to Wife on January 28, 2025. The record also confirms a
copy of the amended notice of appeal was emailed to Wife on February 17,
2025. And Husband’s certificate of service indicates that he mailed a copy
of his opening brief to Wife on April 28, 2025. Because Wife did not file an
answering brief, we ordered the appeal submitted for decision on the
record and opening brief. Therefore, if Husband has raised a debatable
issue, Wife has confessed error.

A. Contractual Liability and Statute of Limitations

¶11 Husband argues the superior court erred in ruling in Wife’s
favor because the Agreement was incorporated into, but not merged with,
the decree, making it a contract subject to a six-year statute of limitations.
See A.R.S. § 12-548.

¶12 Parties to a dissolution proceeding “may enter into a written
separation agreement containing provisions for disposition of any property
owned by either of them[.]” A.R.S. § 25-317(A). A separation agreement
can be either merged into a dissolution decree or incorporated by reference
into the decree. If “the separation agreement [is] set forth or incorporated
by reference in the decree of dissolution,” and the decree orders the parties
to perform the terms of the agreement, the separation agreement is merged
into the decree under A.R.S. § 25-317(D). See LaPrade v. LaPrade, 189 Ariz.
243, 247–48 (1997); see also In re Matter of Scott, No. 1 CA-CV 24-0698 FC,
2025 WL 905112, at *1, ¶ 7–8 (Ariz. Ct. App. Mar. 25, 2025) (mem. decision).
On the other hand, a separation agreement is incorporated by reference “[i]f
the separation agreement provides that its terms shall not be set forth in the
decree,” and the decree identifies the agreement as incorporated by
reference under A.R.S. § 25-317(D). LaPrade, 189 Ariz. at 247.

¶13 If a separation agreement is merged, it is “superseded by the
decree, and the obligations imposed are . . . those imposed by decree, and
enforceable as such.” Marriage of Rojas, 255 Ariz. at 282, ¶ 14. In contrast, if
a separation agreement is incorporated by reference, “the agreement retains
its independent contractual status and is subject to the rights and
limitations of contract law.” Id. at ¶ 16 (quotation and citation omitted).

¶14 Here, the decree incorporated the parties’ Agreement by
reference and thus the Agreement did not merge with the decree. As a
result, the Agreement can only be enforced by a separate action on the
contract. Id. at ¶ 17; see also Helber v. Frazelle, 118 Ariz. 217, 219 (1978),

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overruled on other grounds by Solomon v. Findley, 167 Ariz. 409 (1991)
(explaining that when there is no merger, rights arising out of the
separation agreement can only be enforced by bringing a separate action on
the contract, by obtaining a judgment thereon, and then enforcing it as any
other civil judgment).

¶15 Two debatable issues arise under Rojas. First, Wife filed her
petition to enforce the decree in the parties’ divorce case. A debatable issue
exists on whether Wife needed to file a contract action to recover damages
rather than seeking relief in the dissolution proceeding.

¶16 Second, A.R.S. § 12-548(A) requires “[a]n action for debt [to]
be commenced and prosecuted within six-years after the cause of action
accrues, and not afterward, if the indebtedness is evidenced by . . . [a]
contract in writing that is executed in this state.” Under A.R.S. § 12-548(A),
“debt” includes actions for damages for breach of contract. Woodward v.
Chirco Constr. Co., 141 Ariz. 520, 525 (App. 1984). Wife’s claim for damages
against Husband for his unpaid obligations began each time he was in
default for failing to pay each of the five annual payments contemplated
under the Agreement. Because the fifth (and final) payment was due in
October 2013, the six-year statute of limitations under A.R.S. § 12-548 ended
in October 2019. Additionally, Wife’s claim that Husband did not refinance
the home or otherwise remove her liability from the mortgage began in
October 2009, and the six-year statute of limitations period ended in
October 2015. Yet Wife did not file her petition to enforce until November
2023, well after the statute of limitations had expired for both claims.
Husband has shown a debatable issue exists on whether the claims Wife
asserted in her petition are time barred.

¶17 At a minimum, Husband has raised “grave doubts” about the
superior court’s decision, which means Wife has confessed that reversible
error occurred. Adkins, 39 Ariz. at 532. Given our conclusion, we need not
address Husband’s argument that Wife’s petition is time-barred by A.R.S.
§ 12-1551.

B. Attorneys’ Fees

¶18 Husband also challenges the superior court’s award of
attorneys’ fees and costs to Wife. However, the Rule 78(b) judgment from
which he appeals neither includes the amount of attorneys’ fees the court
allegedly awarded nor does the record include any information about
whether the court later awarded a specific amount of attorneys’ fees to
Wife. Thus, we dismiss this portion of Husband’s appeal for lack of

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jurisdiction. See Hernandez v. Athey, 256 Ariz. 530, 533, ¶ 8 (App. 2023)
(dismissing appeal for lack of jurisdiction because the superior court had
not determined the amount of attorneys’ fees to be awarded).

CONCLUSION

¶19 We dismiss the portion of Husband’s appeal attempting to
challenge the superior court’s award of attorneys’ fees to Wife. As to Wife’s
petition to enforce, we reverse the court’s order and remand for entry of
judgment in Husband’s favor. We award taxable costs to Husband subject
to his compliance with ARCAP 25.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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