McFarlane v. McFarlane

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WILLIAM ALLEN MCFARLANE, Petitioner/Appellant,

v.

JEANNE LOUISE MCFARLANE, Respondent/Appellee.

No. 1 CA-CV 20-0433 FC
FILED 6-1-2021

Appeal from the Superior Court in Maricopa County
No. FN 2016-050307
The Honorable Jon C. Rea, Judge (Retired)
The Honorable Melissa Iyer Julian, Judge

AFFIRMED IN PART, VACATED IN PART; REMANDED

APPEARANCES

William A. McFarlane, Moraga, CA
Petitioner/Appellant
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MEMORANDUM DECISION

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

B R O W N, Judge:

William McFarlane (“Husband”) appeals the superior court’s
order denying his request to enforce the decree of dissolution relating to his
former wife’s unpaid credit card debt. Because the record lacks support for
the court’s order requiring Husband to stop using his credit card, we vacate
that portion of the order and remand for further proceedings. We affirm
the rest of the order.

BACKGROUND

Husband and Jeanne McFarlane (“Wife”) divorced in April
2018. In its decree, the superior court divided various debts and property
between the parties, including community debt for a Citibank credit card
(“Citibank debt”), with an outstanding balance of $11,333. The court
ordered each party to pay half the debt, and later awarded Wife $6,000 in
attorneys’ fees she incurred in the litigation. Husband continued to use the
credit card and eventually paid his portion of the Citibank debt, all his
personal charges, and interest, as well as $2,124.01 of Wife’s portion. Wife
made a $50 payment on the Citibank debt.

Both parties now live in California. Husband filed a motion
to enforce the decree. While the motion was pending, he obtained a
$12,546.24 judgment against Wife in a California court for her portion of the
Citibank debt. In his pretrial statement relating to his motion to enforce,
Husband sought a lien on Wife’s art collection stored in Arizona.

The superior court (Judge Rea) treated Husband’s motion as
a petition to enforce the decree under Arizona Rule of Family Law
Procedure 91. Wife countered that Husband had unclean hands because he
never produced the credit card statements, requested that payments be
made directly to him, and made no payments to satisfy the $6,000 judgment
for attorneys’ fees. After an evidentiary hearing, the court found Wife owed
Citibank $12,155.92, calculated by using the original debt, $5,666.50, plus
interest compounded monthly at 21.49 percent, but minus her $50 payment.
The court ordered Wife to make at least the minimum monthly payment,

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and Husband to provide the monthly statements to Wife or allow her
electronic access to the account. The court also ordered Husband not to use
the credit card or else he would assume the whole debt. Husband timely
appealed. Wife has not filed an answering brief, but in our discretion we
decline to treat it as a confession of error. See Nydam v. Crawford, 181 Ariz.
101, 101 (App. 1994).

DISCUSSION

A. Jurisdiction–Superior Court

In dissolution proceedings, the superior court’s jurisdiction
derives solely from statute. See Thomas v. Thomas, 220 Ariz. 290, 292, ¶ 8
(App. 2009). And the court exercises continuing jurisdiction to enforce
decrees through its equitable powers to do “full and complete justice
between the parties . . . .” Jensen v. Beirne, 241 Ariz. 225, 229, ¶ 14 (App.
2016) (quoting Genda v. Superior Ct., 103 Ariz. 240, 244 (1968)).

The [superior] court thus retains jurisdiction to enforce a
dissolution decree, until such justice is achieved. In this
pursuit, the court here may either grant relief in accordance
with the original decree, or if such relief will no longer achieve
full and complete justice between the parties, it may
alternatively make new orders, consistent with the parties’
property interests, to accomplish that end.

Jensen, 241 Ariz. at 229, ¶ 14 (citation omitted). Husband argues the court
lacked jurisdiction to make any orders about the Citibank debt because
enforcement of the decree must be resolved in a civil case. Given the court’s
equitable powers, and its statutory authority, the court retained jurisdiction
to enforce the decree or make new orders, including addressing the parties’
rights and obligations related to the Citibank debt. See id.; A.R.S. § 25-318(P)
(authorizing a court (1) to enter orders transferring property between
former spouses if a party violates an order to pay debts, and (2) find a party
in contempt for failure to pay debts and impose appropriate sanctions).

Husband also contends the California judgment precluded
the superior court from ruling on the same debt. The full faith and credit
clause of the Constitution “requires all states to give to a sister state’s
judgment the [r]es judicata effect which the judgment would be accorded
in the rendering state.” Tarnoff v. Jones, 17 Ariz. App. 240, 243–44 (1972)
(citing Durfee v. Duke, 375 U.S. 106 (1963)). But Arizona law recognizes that
neither “[r]es judicata nor full faith and credit flowing from recognition of
a judgment by a sister state is available to bar the court which originally

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issued the judgment from subsequently modifying or reversing that
judgment in accordance with the established laws and procedure of that
original jurisdiction.” Tarnoff, 17 Ariz. App. at 244. Notwithstanding the
California judgment, the superior court had jurisdiction to enforce the
decree or make new orders. See Jensen, 241 Ariz. at 229, ¶ 14.

Husband further argues that Judge Julian’s October 2019
ruling barred the superior court from making any later orders on the
Citibank debt. He contends the ruling made clear that enforcement of the
debt must be adjudicated in civil court, citing Andrews v. Andrews, 126 Ariz.
55 (App. 1980). But the October 2019 ruling did not involve a motion to
enforce; instead, it addressed, among other things, Husband’s request to
offset the $6,000 fee award against Wife’s portion of the community debts.
Judge Julian explained that an offset claim cannot properly be decided in a
dissolution proceeding, specifically noting that Husband had not
petitioned to enforce “such that the court could make any determinations
as to whether and to what extent Wife has failed to pay her portion of the
community debts and what remedy would be appropriate.” In Andrews,
we held that the superior court had no jurisdiction “to enter judgment for a
civil contract claim” in a child support enforcement proceeding. 126 Ariz.
at 58. Neither the October 2019 ruling nor Andrews barred Judge Rea from
addressing various matters that Husband placed at issue by filing his
motion to enforce the decree. See generally ARFLP 91; see also A.R.S. § 25-
318.

B. Lien Request

Husband next argues the superior court erred by denying his
request for a lien on Wife’s art collection. We review a court’s order
granting or denying post-decree relief for an abuse of discretion, City of
Phoenix v. Geyler, 144 Ariz. 323, 328 (1985), which occurs if the court commits
an error of law in exercising its discretion, Fuentes v. Fuentes, 209 Ariz. 51,
56, ¶ 23 (App. 2004).

According to Husband, the superior court’s decision was
punitive because the Citibank debt will not be satisfied for 22 years under
the minimum monthly payment schedule. He also asserts that because the
credit card is solely in his name, Wife has no incentive to pay the debt.

A “court may impress a lien on the separate property of either
party . . . to secure the payment of . . . [c]ommunity debts that the court has
ordered to be paid by the parties.” A.R.S. § 25-318(E)(2). Thus, the court
has discretion to impose a lien under the statute. The legislature identified

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no specific factors for the court to consider in exercising its discretion. We
discern no abuse of discretion. After considering the record, the court
determined that a lien was unnecessary unless Wife fails to make the
minimum payments.

C. Credit Card Use

In its ruling, the superior court made it clear that Wife is
responsible “for the entire balance existing on the [Citibank debt] at present
and all accrued interest.” The court further ordered Husband to either stop
using the credit card or assume the full amount of the debt. The court
reasoned that Husband’s use of the credit card would complicate Wife’s
ability to calculate what portion of the monthly minimum payment relates
to her outstanding debt and interest, and what portion corresponds to
Husband’s new charges. Husband argues the court abused its discretion
because it lacked authority to prevent him from using his own credit card.

The superior court may revoke or modify a property
disposition if it “finds the existence of conditions that justify the reopening
of a judgment under the laws of this state.” A.R.S. § 25-327(A). “If the court
finds that a party is in contempt as to an order to pay community debts, the
court may impose appropriate sanctions under the law.” A.R.S. § 25-318(P).
Though the court’s order might ease the administrative burden to perform
an accounting, the record does not support the court’s ruling. Nothing
reflects that the court (1) found circumstances justifying reopening the
decree, or (2) found either party in contempt. Without either of those
findings, we cannot conclude the court acted within its authority by
ordering Husband to discontinue use of his credit card. See A.R.S. § 25-
327(A); § 25-318(P). Thus, we vacate that portion of the order.

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CONCLUSION

We vacate the portion of the superior court’s order requiring
Husband to stop using his own credit card and remand for further
proceedings as the court deems appropriate. We affirm the rest of the
court’s order. Because each party has prevailed in part in this appeal, we
decline to award taxable costs to either Husband or Wife.

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

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