Reyes v. Reyes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALBERT REYES, Petitioner/Appellee,

v.

SANDRA REYES, Respondent/Appellant.

No. 1 CA-CV 19-0455 FC
FILED 10-27-2020

Appeal from the Superior Court in Navajo County
No. S0900DO201700386
The Honorable Michala M. Ruechel, Judge

AFFIRMED

COUNSEL

Aspey Watkins & Diesel PLLC, Flagstaff
By Zachary J. Markham, Elizabeth J. Christy
Counsel for Petitioner/Appellee

Collins & Collins LLP, Phoenix
By Joseph E. Collins
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.

B A I L E Y, Judge:

¶1 Sandra Reyes (“Wife”) appeals the trial court’s order denying
her motion to withdraw from an agreement reached pursuant to Arizona
Rule of Family Law Procedure (“Rule”) 69. Because Wife shows no
reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Wife and Albert Reyes (“Husband”) were married for over
thirty years when Husband filed a petition for dissolution in November
2017. In February 2019, the parties participated in a settlement conference
before the case management judge and reached an agreement to settle the
case.

¶3 After the settlement conference and with both parties and
their counsel present, the court read the terms of the agreement into the
record and found both parties “knowingly, intelligently and voluntarily
entered into the agreement absent any force, threats or coercion.” The court
ordered Husband’s counsel to prepare a consent decree for the parties’
signatures. When Wife refused to sign the decree, Husband lodged the
decree with the court, and Wife objected. Wife then moved to withdraw
from the agreement entered at the settlement conference.

¶4 Wife argued she should be permitted to withdraw from the
agreement because Husband had failed to disclose the existence and value
of certain personal property and the value of a community business. After
full briefing, the court determined that before entering the agreement, Wife
knew of the personal property Husband possessed and had disputed the
value of the community business. The court therefore determined both
parties entered into the Rule 69 agreement knowingly, intelligently, and
voluntarily and that Wife failed to present sufficient grounds to set it aside.

¶5 The court entered the decree of dissolution Husband had
lodged. Although the decree was not certified as final pursuant to Rule

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78(c), Wife filed a notice of appeal. This court stayed the appeal to allow
the trial court to enter a signed order pursuant to Rule 78(c). Following
entry of the amended decree, which contained the Rule 78(c) certification,
Wife timely filed an amended notice of appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶6 “A marital separation agreement is a contract, and when a
property settlement agreement is incorporated into a decree, contract law
governs the agreement.” Buckholtz v. Buckholtz, 246 Ariz. 126, 129, ¶ 10
(App. 2019) (internal citations omitted). We review a mixed question of law
and fact, such as the enforceability and validity of a contract, de novo. Id. A
Rule 69 agreement becomes valid if “the agreement’s terms are stated on
the record before a judge.” See Ariz. R. Fam. Law P. 69(a)(2). The party
challenging the validity of a Rule 69 agreement bears the burden to prove
any defect in the agreement. Id. at (c).

¶7 At the outset, Wife has waived several arguments she raises
on appeal. She argues the decree cannot be enforced due to violations of
A.R.S. § 25-318(F) (requiring decrees to specifically describe the property
affected) and (H) (requiring a notice statement regarding community debts
be provided to both parties in a dissolution action) and asserts the decree is
so vague as to render it unenforceable. She failed to raise these arguments
in the trial court, however, and “arguments raised for the first time on
appeal are untimely and deemed waived.” Odom v. Farmers Ins. Co. of Ariz.,
216 Ariz. 530, 535, ¶ 18 (App. 2007). Accordingly, we will not consider
them.

¶8 Wife argues the court erred in denying her motion to
withdraw because Husband violated his obligations to supplement his
disclosure under Rule 49 and in turn, violated the fiduciary duty he owed
her. She contends in particular that Husband’s disclosure violations
constitute evidence that he concealed assets.

¶9 On January 1, 2019, an amended version of Rule 49 took effect.
Wife argues that, as amended, Rule 49 obligated Husband to disclose
community assets and their values and required him to supplement his
initial disclosure. However, Wife’s argument ignores that the prior version
of Rule 49 imposed the same obligations. Compare Ariz. R. Fam. Law P.
49(b)(2), (g), with Ariz. R. Fam. Law P. 49(E), (I) (eff. Jan. 1, 2017). As to
items of personal property, Wife claims on appeal that Husband’s failure to

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disclose some assets and their values suggests he “could have . . .
concealed” $206,241 in community assets. Yet Wife did not present this
calculation to the trial court and admits she has no basis for this estimate
other than speculation.

¶10 Wife claims Husband failed to provide a “list of personal
property in [Husband’s] possession with estimated values,” as Rule 49(b)
requires. Nine months before the settlement conference, Husband
disclosed a list of property, including real property, vehicles, and
retirement accounts, along with an estimated value of all personal property,
but his inventory did not itemize the personal property items. Wife’s later-
filed inventory list included the real property and vehicles Husband had
listed, and a number of personal property items, including tools and
machinery in Husband’s possession, and included an estimated value for
each item. Furthermore, at both parties’ request, the court continued the
settlement conference for five months to allow a business valuation to be
completed on the business for which the parties disputed value. Husband
provided a copy of the business valuation report to Wife two months before
the settlement conference.

¶11 Wife has not shown, and the record does not support, that
Husband failed to disclose any personal property or that she did not enter
the Rule 69 agreement knowingly. In fact, the record supports the opposite
conclusion. Before the settlement conference, Wife knew Husband had
tools and machinery in his possession and she listed those items, along with
their estimated values, on her inventory list. Wife claims Husband
concealed over $55,000 in additional tools and equipment. But nothing in
the record shows that Wife requested access to inventory the tools and
machinery Husband possessed to verify their existence or that Husband
denied such access.

¶12 Moreover, Wife did not provide this court with a copy of the
transcripts from the settlement conference or the hearing on the motion to
withdraw. “[W]here an incomplete record is presented to an appellate
court, the missing portions of that record are to be presumed to support the
action of the trial court.” Cullison v. City of Peoria, 120 Ariz. 165, 168 n.2
(1978) (citation omitted). We therefore presume the parties each had
sufficient information to enter into the agreement knowingly, intelligently,
and voluntarily. Because the record does not show the agreement was
invalid, we affirm the trial court’s denial of Wife’s motion to withdraw.

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¶13 Both Wife and Husband request their attorneys’ fees and costs
on appeal. Given that Wife’s basis for this appeal was unsupported by the
record, we decline Wife’s request for attorneys’ fees, and award Husband
his reasonable attorneys’ fees and costs on appeal, contingent upon his
compliance with Arizona Rule of Civil Appellate Procedure 21. See A.R.S.
§§ 12-342, 25-324.

CONCLUSION

¶14 We affirm the denial of Wife’s motion to withdraw from the
Rule 69 agreement.

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

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