Duran v. Terrones

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GREGORY DURAN,
Petitioner/Appellee,

v.

TRACY LEE DURAN, NKA TRACY LEE TERRONES,
Respondent/Appellant.

No. 1 CA-CV 23-0311 FC
FILED 06-13-2024

Appeal from the Superior Court in Yuma County
No. S1400DO200900713
The Honorable Claudia M. Gonzalez, Judge Pro Tempore
The Honorable Eliza B. Johnson, Judge Pro Tempore

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Mary Katherine Boyte, P.C., Yuma
By Mary K. Boyte Henderson
Counsel for Respondent/Appellant

S. Alan Cook, P.C., Phoenix
By S. Alan Cook
Counsel for Petitioner/Appellee
 DURAN v. TERRONES
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer B. Campbell joined.

B R O W N, Judge:

¶1 Tracy Lee Terrones (“Wife”) appeals from a post-decree order
(1) granting a petition to enforce a provision in the decree awarding half the
equity in the marital home to Gregory Duran (“Husband”), (2) denying her
claim for spousal maintenance arrears, and (3) awarding $2,500 in
attorneys’ fees and costs to Husband. We affirm the orders related to the
equity and spousal maintenance issues but vacate and remand the award
of attorneys’ fees and costs because the superior court did not make
sufficient findings.

BACKGROUND

¶2 Husband and Wife married in 1997 and have one child in
common, who was born in 2001. In 2009, Husband filed an uncontested
petition for dissolution. The superior court entered a default decree. The
portion of the decree relevant to this appeal (paragraph f) states:

[Wife] is awarded the marital home, with the conditions
outlined below . . .

1. [Husband] shall pay [Wife] $500.00 a month in the form of
spousal maintenance to pay 1/2 of the mortgage.

2. [Wife] shall be allowed to reside in the home until the
minor child turns 18 years of age, at which time [Wife] agrees
to sell the home and provide [Husband] his 1/2 share of the
equity proceeds.

3. In the alternative, if [Wife] sells the home before the child
turns 18, then [Wife] shall provide [Husband] his 1/2 share of
the equity proceeds.

4. [Wife] is solely responsible for maintaining the home. The
equity will be determined at the time of the sale or transfer.

2
 DURAN v. TERRONES
Decision of the Court

5. [Husband] shall pay spousal maintenance of $500.00 a
month until the child turns 18 years of age, or the home is
sold, whichever is earlier.

Two days after the court entered the decree, Husband signed a quitclaim
deed conveying to Wife his “right, title, or interest” in the marital home.

¶3 Husband paid Wife $500 in spousal maintenance most
months. Occasionally, Husband deducted amounts for common expenses
instead of asking Wife to reimburse him. But if he missed a monthly
payment, he always made it up the following month.

¶4 In 2016, Husband sent Wife a text message asking if she
planned to sell the home when the child turned 18. The text message said:

I’m just wondering because I know we are supposed to sell it
and split the proceeds when he turn[s] 18. You can keep it or
sell it. It doesn’t matter to me. You can keep the money if you
sell it but I need you to refinance it under your name only. It
still shows up on my credit report so I was unable to refinance
my house to a lower rate.

Wife replied that she would consider refinancing. A few months later, Wife
refinanced and removed Husband from the mortgage. Husband also
refinanced his own home shortly thereafter. He continued to pay Wife $500
a month until the child’s 18th birthday in August 2019. Husband stated
there were other text messages with Wife in which he agreed to give up the
equity if Wife agreed he could stop the $500 monthly payments. Wife
denied this, and Husband did not offer further proof of such text messages.

¶5 According to Wife, in 2018, Husband learned she was
promoted and said he planned to stop paying spousal maintenance because
she no longer needed it. He also said he was entitled to half the equity when
she sold the home. Wife testified that she reminded him of the 2016
agreement, and he responded that the text messages were not admissible in
court.

¶6 Wife did not sell the home when the child turned 18, but
instead waited until 2021. Because she used the equity proceeds from the
sale to buy her new home, Husband petitioned to enforce the provision in
the decree that required her to pay him half of those proceeds. Wife
counter-petitioned to enforce the decree’s spousal maintenance orders. She
claimed Husband owed arrears because his spousal maintenance obligation
was $1,000 a month, citing the two separate provisions in the decree. She

3
 DURAN v. TERRONES
Decision of the Court

also alleged that Husband owed arrears for the expenses he deducted from
some of his monthly payments. She denied that Husband was entitled to
his share of the equity in the marital home because the quitclaim deed and
the parties’ post-decree agreement modified that term in the decree.

¶7 After an evidentiary hearing, the superior court determined
that the parties could not modify the property allocation terms in the decree
with the quitclaim deed or the alleged 2016 text agreement. The court
found no basis to reopen the decree and granted Husband’s petition to
enforce the provisions relating to the allocation of the equity.

¶8 As for the spousal maintenance arrears, the court found the
two spousal maintenance orders were subject to more than one
interpretation. However, considering the overall context of the decree, the
court rejected Wife’s interpretation that there were two separate spousal
maintenance orders. The court also found the evidence did not support
Wife’s claim for arrears based on Husband’s deductions from his monthly
payments.

¶9 Finally, the court awarded Husband $2,500 in attorneys’ fees
and costs, finding Wife’s claim for spousal maintenance arrears was
unreasonable. Wife timely appealed the court’s ruling, and we have
jurisdiction under A.R.S. § 12-2101(A)(2).

DISCUSSION

I. Enforcement of Property Allocation Terms

A. Quitclaim Deed

¶10 The decree awarded the marital home to Wife, subject to the
condition that she sell the home when the child turned 18 in 2019 and pay
Husband half “the equity proceeds.” Husband then signed the quitclaim
deed. Wife argues the superior court erred by not enforcing the quitclaim
deed as a separate contract that modified the decree.

¶11 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). But we review de novo the superior court’s
interpretation of the decree and its resolution of legal questions. Id. We
also apply a de novo standard of review to issues involving the validity,
enforceability, and interpretation of a contract. Id. at ¶ 11.

4
 DURAN v. TERRONES
Decision of the Court

¶12 Husband does not dispute that he voluntarily signed the
quitclaim deed conveying his interest in the marital home to Wife shortly
after the decree. Wife argues the quitclaim deed relinquished Husband’s
interest in the “equity proceeds.” She contends the parties could modify
the property allocation terms of the decree, which Husband effectively did
when he signed the quitclaim deed. Wife misstates the law.

¶13 “A property award is essentially permanent[.]” Edsall v.
Superior Court, 143 Ariz. 240, 248 (1984). The property allocation terms in a
decree of dissolution are not subject to modification “unless the court finds
the existence of conditions that justify the reopening of a judgement under
the laws of this state.” A.R.S. § 25-327(A); Rojas, 255 Ariz. at 282,
¶ 14 (citing A.R.S. §§ 25-317(F), -327(A)); Quijada v. Quijada, 246 Ariz. 217,
220, ¶ 6 (App. 2019) (holding that a decree’s terms based on the parties’
agreement are not subject to modification “unless the court is satisfied relief
is warranted pursuant to Arizona Rule of Family Law Procedure” (“Rule”)
85(b)). Thus, Wife must show that there are grounds under Rule 85(b) to
grant relief from the decree.

¶14 Wife contends that despite the restriction in § 25-327(A),
parties are free to contract, and indeed, have a constitutional right to do so.
See U.S. Const. art. 1, § 10, cl. 1 (“No State shall . . . pass any . . . [l]aw
impairing the [o]bligation of [c]ontracts[.]”); Ariz. Const. art. 2 § 25 (“No
. . . law impairing the obligation of a contract, shall ever be enacted.”).
Beyond citing these constitutional provisions, Wife did not sufficiently
develop any legal argument as to how any law or the court’s ruling
infringed on this right. Moreover, she did not raise this constitutional
argument in the superior court.

¶15 We generally do not consider issues, even constitutional
issues, raised for the first time on appeal. Englert v. Carondelet Health
Network, 199 Ariz. 21, 26, ¶ 13 (App. 2000). We apply waiver here because
neither party fully developed or briefed the constitutional arguments, and
this case involves disputed facts. See Larsen v. Nissan Motor Corp. in U.S.A.,
194 Ariz. 142, 147, ¶ 12 (App. 1998) (holding courts may address a
constitutional issue raised for the first time on appeal where “the issue is of
statewide importance, is raised in the context of a fully developed record,
does not turn on resolution of disputed facts, and has been fully briefed by
the parties.”).

¶16 Wife argues the superior court failed to acknowledge that
divorced spouses can convey property awarded to them in the decree
through a valid post-decree contract. To be sure, “parties can modify their

5
 DURAN v. TERRONES
Decision of the Court

independent contracts in any manner they choose and can separately
enforce these modifications without regard to whether they would be
enforceable via the dissolution decree itself.” LaPrade v. LaPrade, 189 Ariz.
243, 246–47 (1997). But the decree is not a contract; rather, it is a judgment
entitled to finality. See In re Marriage of Zale, 193 Ariz. 246, 249, ¶ 11 (1999).
Once the decree is entered, any purported change or modification in the
property rights set forth in the decree must comply with § 25-327(A), which
requires the court find conditions that justify reopening the judgment. See
Edsall, 143 Ariz. at 248; Rojas, 255 Ariz. at 282, ¶ 14.

¶17 The decree immediately divested Husband of all his interest
in the real property by awarding the home to Wife. See A.R.S. § 33-456
(“When a judgment directs the conveyance of real property . . ., the
judgment shall pass title to such property without any act by the party
against whom the judgment is given.”). A quitclaim deed conveys only the
rights the grantor then possessed, even if the grantor possessed no interest
in the property. USLife Title Co. of Ariz. v. Gutkin, 152 Ariz. 349, 354 (App.
1986). Because the decree awarded the home to Wife, Husband had no
interest in the home to convey when he signed the quitclaim deed two days
later. Thus, the quitclaim deed is consistent with (and confirmed)
conveyance of the real property to Wife in the decree.

¶18 Even so, the quitclaim deed could not and did not modify the
decree’s allocation of the “equity proceeds.” See A.R.S. § 25-327(A); Edsall,
143 Ariz. at 248; Rojas, 255 Ariz. at 282, ¶ 14. Wife argues the quitclaim deed
modified the property allocation in the decree because the decree did not
award her full title to the home, only a right to reside in the home until the
child turned 18 or she decided to sell the home. The decree, however, did
not restrict Wife’s ability to sell the home at any time. The only conditions
imposed in the decree were that Wife pay Husband his share of the equity
whenever she sold the home, which had to occur no later than when the
child turned 18. Thus, the decree conveyed full ownership in the home to
Wife and a share of the “equity proceeds” to Husband. 1 The allocation of
the equity is a property provision in the decree that the parties cannot
modify without showing grounds to reopen the decree. See A.R.S.
§ 25-327(A); Rojas, 255 Ariz. at 282, ¶ 14; LaPrade, 189 Ariz. at 247.

¶19 Wife cites a memorandum decision in which this court
affirmed the dismissal of a petition to enforce a spouse’s right to a share of

1 Wife’s argument that Husband could have recorded the decree as a
way to perfect clear title is inconsistent with her position that the decree did
not award the home to her.

6
 DURAN v. TERRONES
Decision of the Court

the equity in the marital home. Chavez v. Dasilva, 1 CA-CV 22-0499 FC, 2023
WL 3597245 (Ariz. App. May 23, 2023) (mem. decision). In Chavez, the
consent decree ordered the parties to sell the marital home and awarded
the husband a portion of the equity, but six months after the decree, the
husband conveyed the property to the wife in a warranty deed. Id. at *1,
¶¶ 2–3. This court found that the parties “deviated” from the decree when
the husband signed the deed. Id. at ¶ 11. On appeal, the parties did not
dispute their ability to modify the decree, so the Chavez decision did not
address this issue. Given that significant difference, Chavez does not apply
here.

¶20 Although Wife raises inconsistencies in Husband’s stated
reasons for signing the quitclaim deed, his reasons for doing so have no
bearing on our conclusion that the quitclaim deed did not affect Husband’s
interest in the equity proceeds awarded in the decree.

B. Equitable Relief

¶21 Wife argues that Husband cannot enforce the equity
allocation in the decree because he waived that interest in 2016. Wife relies
on text messages from that timeframe in which Husband asked her to
refinance and take his name off the mortgage on the marital home so he
could refinance his own home. In a text message conversation Wife offered
in evidence, Husband said Wife could keep the proceeds when she sold the
residence. According to Wife, she agreed to this and immediately began
the refinancing process. She also noted that Husband then refinanced his
own home, which was consistent with their claimed agreement. Wife
reminded Husband of his 2016 agreement when, in 2018, he told her that
he expected his share of the equity when Wife sold the home. Husband
testified that his offer to forego the equity was conditioned on Wife agreeing
to terminate the $500 monthly spousal maintenance. Wife did not agree, so
Husband claims there was no agreement, and he continued paying her $500
until the child turned 18. As discussed above, the parties could not
properly agree to modify the property allocation terms in the decree absent
conditions that justify reopening the decree. See A.R.S. § 25-327(A); Rojas,
255 Ariz. at 282, ¶ 14; LaPrade, 189 Ariz. at 247.

¶22 Moreover, the superior court found the parties’ conduct after
2016 did not constitute extraordinary circumstances that justified reopening
the decree under Rule 85(b) because it did not create an additional burden
or obligation not otherwise created by the decree. We review that ruling
for an abuse of discretion. Quijada, 246 Ariz. at 220, ¶ 7.

7
 DURAN v. TERRONES
Decision of the Court

¶23 Wife argues the court abused its discretion because it only
considered whether the agreement was fraudulent, a claim she did not
raise. Although the court mentioned a fraud claim, it considered the
equitable arguments Wife asserted in her pretrial statement and at the
hearing. Thus, we consider whether the court abused its discretion in
denying equitable relief, particularly, estoppel. See City of Tucson v. Clear
Channel Outdoor, Inc., 218 Ariz. 172, 190, ¶ 65 (App. 2008). Estoppel involves
fact-intensive inquiries on which we defer to the superior court absent clear
error. Id.

¶24 Wife claimed that Husband was equitably estopped from
seeking to enforce the decree based on the 2016 text message agreement.
The elements of equitable estoppel are: (1) conduct by which one induces
another to believe certain material facts, (2) the inducement results in other
party’s justifiable reliance, and (3) injury to the relying party. Ray v.
Mangum, 163 Ariz. 329, 333 (1989).

¶25 The court did not expressly state whether it accepted
Husband’s or Wife’s version of the 2016 agreement. But by accepting Wife’s
claim that Husband did not condition the agreement on terminating his
$500 payment, we agree that Wife’s continued payment of the mortgage
and her improvements to the home after the 2016 text messages were
consistent with the decree. The decree ordered Wife to maintain the
property, and by awarding the home to Wife, it implicitly ordered her to
make the mortgage payments and improvements. Her conduct is also
consistent with this understanding.

¶26 Wife argued that she did not sell the home after the child’s
18th birthday and continued to make mortgage payments and
improvements beyond that date in reliance on Husband’s agreement to
forego his equity interest. Again, we agree with the superior court that this
was not reasonable reliance because Husband told Wife in 2018 that he
expected to collect his share of the equity. Given this statement from
Husband, Wife could not reasonably rely on keeping all the equity that
accrued after the child turned 18.

¶27 Wife argues she detrimentally relied on the agreement
because she paid the cost to refinance the mortgage and became solely
responsible for the debt. Although Husband remained on the mortgage
until Wife refinanced the loan in 2016, the decree required Wife to pay the
mortgage because she was awarded the home and ordered to maintain it.
Thus, as to the parties, Wife’s obligations did not change. The court did not

8
 DURAN v. TERRONES
Decision of the Court

abuse its discretion by denying Wife’s claim for equitable or other relief
from the property allocation in the decree.

II. Spousal Maintenance

A. Interpretation of Award

¶28 In the superior court, Wife argued the decree ordered
Husband to pay $1,000 a month in spousal maintenance. She based her
argument on the two separate paragraphs in the decree referencing a $500
payment. See supra ¶ 2. The court rejected Wife’s interpretation. Although
the court initially described the decree as ambiguous, the court ultimately
concluded that Husband had been ordered to pay $500 in total spousal
maintenance. We review the court’s interpretation of the decree de novo.
Cohen v. Frey, 215 Ariz. 62, 66, ¶ 10 (App. 2007).

¶29 “The first step in construing a decree is to determine if it is
ambiguous.” Id. at ¶ 11 (citing Zale, 193 Ariz. at 250, ¶ 13). To do so, we
look to the language in the decree. Id. The first paragraph in section (f)
orders Husband to pay Wife $500 “in the form of spousal maintenance to
pay 1/2 of the mortgage.” The last paragraph orders Husband to “pay
spousal maintenance of $500 a month until the child turns 18 years of age,
or the home is sold, whichever is earlier.”

¶30 The decree can be reasonably interpreted two ways. Read
literally, it orders Husband to pay $500 twice, both for spousal
maintenance. But the overall context of the section containing these two
paragraphs is a property allocation that (improperly) incorporates a
spousal maintenance award. See Koelsch v. Koelsch, 148 Ariz. 176, 182 (1986)
(“[P]roperty division and spousal maintenance are two separate and
distinct considerations at dissolution.”). Thus, it is reasonable to interpret
the first paragraph as explaining how the amount was determined (it
related to the mortgage amount) and the last paragraph as setting forth the
duration of the award (it terminated on the earlier of the sale of the home
or the child’s 18th birthday). This interpretation avoids rendering one of
the paragraphs meaningless. See Cohen, 215 Ariz. at 66, ¶ 12 (“[W]hen
interpreting a decree, we may not assign meaning to one provision which
would render other provisions meaningless.”). Additionally, the absence
of language referring to an additional or separate spousal maintenance
order in the last paragraph suggests that paragraph (f), as a whole, created
a single $500 monthly spousal maintenance requirement.

¶31 Wife refers to parol evidence showing that $500 did not equal
half of the mortgage payment, and Husband points to the minute entry

9
 DURAN v. TERRONES
Decision of the Court

from the default hearing in support of his interpretation. We may not
consider extrinsic evidence to interpret a judgment like a decree. Zale, 193
Ariz. at 249, 250, ¶¶ 10, 14–15. Moreover, the decree, not the minute entry,
controls. Id. at 251, ¶ 18.

¶32 According to Wife, the superior court improperly considered
her post-decree conduct when interpreting the decree. The record indicates
otherwise. The court did not consider Wife’s post-decree conduct to
interpret the decree. Rather, it found Wife had not previously raised the
alleged underpayment. This was not improper because Husband raised the
equitable defenses of laches and waiver. See Coburn v. Rhodig, 243 Ariz. 24,
26, ¶ 10 (App. 2017) (holding a court may deny a petition to collect spousal
maintenance arrears if the other spouse proves an equitable defense by clear
and convincing evidence). Nonetheless, we need not consider these
equitable defenses given the conclusion that the court ordered Husband to
pay Wife $500 in monthly spousal maintenance, not $1,000.

¶33 We affirm the ruling that Husband owed Wife $500 a month
in spousal maintenance until the child turned 18 or Wife sold the home,
whichever occurred first.

B. Spousal Maintenance Arrears

¶34 Wife argues that Husband still owed arrears because he
occasionally deducted expenses from the spousal maintenance payment
instead of separately requesting reimbursement. According to Wife, these
deductions totaled over $7,700. She claims the superior court relied on her
unadmitted deposition testimony to deny her claim. Alternatively, she
argues the bank statements are more reliable evidence than her deposition
testimony.

¶35 Wife’s deposition transcripts were not admitted as a trial
exhibit. But at the hearing Wife confirmed her deposition testimony that
Husband made up any missed payments. Although the court’s ruling
mistakenly cited the unadmitted deposition transcripts, Wife’s testimony
was consistent with her deposition testimony and supported the court’s
finding.

¶36 At the hearing, Wife clarified that Husband never repaid the
amounts he deducted from the spousal maintenance payments. However,
there was no evidence that Wife objected to Husband deducting those
expenses. Conversely, Husband testified that Wife agreed to his practice of
deducting expenses instead of separately asking for reimbursement. Given
this conflicting testimony, we defer to the court’s finding that Husband did

10
 DURAN v. TERRONES
Decision of the Court

not owe any arrears. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009)
(appellate court defers to trial court’s credibility determinations and the
weight to give conflicting evidence); see also Aries v. Palmer Johnson, Inc., 153
Ariz. 250, 261 (App. 1987) (trial court is not bound to accept the
uncontradicted testimony of an interested party).

III. Attorneys’ Fees in the Superior Court

¶37 The superior court found that Wife’s claim for spousal
maintenance arrears was unreasonable and thus granted Husband a partial
award of attorneys’ fees, tacitly denying his request for a sanction under
A.R.S. § 12-349. Husband’s fee application sought approximately $19,000
(plus over $1600 in expenses) and Wife objected to most of the fees as being
unrelated to the spousal maintenance claim. Husband responded that at
least $9,300 (plus over $800 in expenses) arose from the unreasonable
spousal maintenance claim. The court awarded Husband $2,500 as a
“partial” award of “fees and costs” without further explanation. We review
the superior court’s award of attorneys’ fees under A.R.S. § 25-324 for an
abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2014).

¶38 Months earlier, Husband had requested written findings of
fact and conclusions of law under Rule 82. When a party requests findings
under Rule 82, the “appellate court must be able to discern more than a
permissible interpretation of the trial court’s analysis. The reviewing court
needs a sufficient factual basis that explains how the trial court actually
arrived at its conclusion.” Miller v. Bd. of Supervisors of Pinal Cnty., 175 Ariz.
296, 299 (1993).

¶39 The findings here do not explain how the court determined
that the spousal maintenance claim was unreasonable or decided to award
$2,500 instead of some other amount. Nor did the court delineate how
much of the award was based on fees versus costs. As to the
unreasonableness finding, the court’s statement is conclusory. Moreover,
given its finding that the spousal maintenance provision in the decree was
subject to more than one reasonable interpretation, the conclusion that Wife’s
position was unreasonable lacks a sufficient factual basis. Id. The ruling
also failed to explain why the court awarded $2,500 when Husband claimed
he incurred at least $9,300 in fees to litigate the spousal maintenance issue.
Finally, the findings do not address Wife’s request for attorneys’ fees, much
less provide a factual basis to support its implicit denial.

¶40 Although we might infer reasons for awarding some fees to
Husband and denying Wife’s fee request, the reasons for these rulings are

11
 DURAN v. TERRONES
Decision of the Court

not clear from the record. We therefore vacate the fee award and remand
for additional findings on both issues. See Stein v. Stein, 238 Ariz. 548, 551,
¶ 12 (App. 2015).

IV. Attorneys’ Fees and Costs on Appeal

¶41 Both parties request an award of attorneys’ fees and costs on
appeal under A.R.S. § 25-324. Wife also cites A.R.S. § 12-349 in support of
her fee request. Although we lack current financial information, we find
that neither party took unreasonable positions. See A.R.S. § 25-324(A). As
a result, we deny each party’s request for attorneys’ fees incurred on appeal.

¶42 The award of costs under A.R.S. § 12-342 shall abide the
superior court’s decision on remand. If the fee award is the same or greater,
Wife shall pay Husband’s costs incurred on appeal; if the award is less,
Husband shall pay Wife’s costs incurred on appeal. See A.R.S. § 12-342.

CONCLUSION

¶43 We affirm the enforcement orders and the denial of Wife’s
claim for spousal maintenance arrears. We vacate the $2,500 award of
attorneys’ fees and costs and remand for the superior court to make
additional findings of fact as required by Rule 82.

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

12