Salcido v. Hamilton

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MONIQUE SALCIDO, Petitioner/Appellant,

v.

RYAN HAMILTON, Respondent/Appellee.

No. 1 CA-CV 23-0584 FC
FILED 06-11-2024

Appeal from the Superior Court in Maricopa County
No. FC2021-001455
The Honorable Max Covil, Judge

AFFIRMED AS MODIFIED; REMANDED IN PART

COUNSEL

Monique Salcido, Tempe
Petitioner/Appellant

Best Law Firm, Scottsdale
By Alexus C. Mamood
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.

M c M U R D I E, Judge:

¶1 Monique Salcido (“Mother”) argues the superior court erred
by entering a consent judgment modifying legal decision-making authority,
parenting time, and child support orders. We affirm the ruling as modified
to clarify that the parties agreed under Arizona Rule of Family Law
Procedure (“Rule”) 69 but did not agree to a consent judgment. As a result,
the Rule 69 agreement controls if it is different from the consent judgment.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2018, the parties divorced in Hawaii. Ryan Hamilton
(“Father”) lived in Texas, and the decree ordered Mother to move to
Arizona. The parties have one child, who turned eighteen in November
2023.

¶3 In 2021, Father registered the Hawaiian decree in Arizona.
The decree awarded Mother sole physical custody and joint legal custody
with certain final decision-making authority. Father had parenting time
over some holidays and part of summer vacation, and the court ordered
him to pay Mother $840 monthly in child support.

¶4 When Father registered the decree, he also petitioned to
modify it and moved for emergency temporary orders for sole legal
decision-making authority and designation as the primary residential
parent. The superior court denied the motion for emergency temporary
orders. When Father returned the child to Arizona at the end of the summer
in 2021, he again filed a motion for emergency temporary orders. The court
denied the emergency motion. The court also ordered (1) Father to return
the child to Mother, (2) the parties to get counseling for the child, and (3) the
court-appointed advisor to re-interview the child and provide a report.

¶5 Father filed a third motion for temporary orders without
notice in February 2022. The superior court denied the motion on an
emergency basis but scheduled an evidentiary hearing. After the hearing,
the court temporarily modified the decree, naming Father the primary

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residential parent and awarding Mother the same parenting time Father
had in the original decree. The court did not change the joint legal
decision-making authority order.

¶6 Father moved to schedule a trial on his modification petition
and for a mental or behavioral health examination of Mother. He also
moved to amend the temporary orders, seeking sole legal decision-making
authority and no parenting time for Mother until she completed a mental
or behavioral health evaluation. Mother’s response requested that Father
undergo a similar evaluation. It also alleged that Father committed
domestic violence in the past and recently committed custodial interference
by denying Mother the right to attend the child’s choir concert. Mother
asked to disqualify Father’s attorney, arguing the attorney was complicit in
the custodial interference based on the attorney’s letter stating that Father
would call the police if Mother attended the concert.

¶7 The superior court granted Father’s motion for Mother to
undergo a behavioral health evaluation but denied Mother’s motion. The
court scheduled a hearing on Father’s petition to modify legal
decision-making, parenting time, and child support.

¶8 Before the hearing, the parties discussed a settlement. On
March 29, 2023, Father’s attorney sent Mother a letter incorporating
previous discussions (“the March 2023 Letter”). Father proposed six
paragraphs of agreements about child support, attorney’s fees, parenting
time, school functions, medical appointments, school records, and updates.
The attorney’s fees agreement stated:

(2) Attorney’s Fees: Mr. Hamilton agrees that each party shall
pay their own attorney’s fees and costs. Should this matter
proceed to trial, Mr. Hamilton will be seeking reimbursement
for his attorney’s fees and costs.

The March 2023 Letter instructed Mother to sign the attached signature
page if she accepted the terms.

¶9 Mother responded by changing paragraph six to state that
Father would provide monthly updates via a certified letter or email. She
signed the March 2023 Letter on March 31, 2023. That same day, Mother
emailed Father’s attorney stating:

I am in agreement with the settlement if Father will
communicate monthly either through certified USPS or email.
These are documented forms of communication. Our Family

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Wizard proved to be unsuccessful if not utilized as intended.
I have no intention on [sic] responding to Father per the
updates. Legally, I would like information regarding my
child, such as her taking her SAT, getting a drivers [sic] license
and pictures of her programs etc.

Father’s attorney replied that Father agreed “to one email a month.” Father
filed a notice of settlement with the court five days later. He attached the
parties’ correspondence, supra ¶¶ 8-9, and stated he would submit a “Rule
69 Agreement” for the parties’ and the court’s signatures.

¶10 When Mother received Father’s draft of the settlement
agreement, she asked to change the date from March 31 to April 1, 2023,
and to add a stipulation stating that she had not been given the
court-ordered parenting time or communication. Mother also stated that
the draft did not accurately reflect the settlement agreement because it did
not include certain paragraphs from the March 2023 Letter.

¶11 Father’s attorney pointed out that the draft did include those
paragraphs and agreed to add the language Mother requested but
commented that Mother did not complete the court-ordered psychological
evaluation required for parenting time. Mother responded that the
proposed documents included several items not part of the settlement
agreement and asked to delete the “assumptions on Child Support.”
Father’s attorney explained that the added language was required and
would remain, but she instructed Mother to write out any revision requests
and return the document. Father’s attorney informed Mother that Father
would request attorney’s fees if he had to lodge the decree without
Mother’s signature. This is the last communication about the agreement in
the record.

¶12 Mother did not respond and petitioned to enforce the
temporary parenting time orders, alleging that Father committed custodial
interference. Mother acknowledged the settlement discussions but alleged
that Father’s attorney had changed unspecified settlement agreement terms
in the final document. Father moved to dismiss the enforcement petition
because it made the same arguments as Mother’s previously denied
motions. Father’s attorney specifically denied that the proposed “consent
judgment” sent to Mother materially differed from the settlement
agreement letter Mother signed. Mother replied that there was no
enforceable settlement agreement because she disagreed with the terms.
The court denied Mother’s petition, finding no good cause.

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¶13 Father lodged a consent judgment with only his signature. He
included copies of the correspondence detailed above. He asked the court
to enter the consent judgment or the parties’ Rule 69 agreement as a formal
decree by adding the necessary language under Rule 78(c). The court
scheduled a status conference to discuss the matter. Two days before the
status conference, Mother requested a continuance. The record does not
show that the status conference took place. The superior court signed the
consent judgment on June 23, 2023. The clerk did not file the judgment until
August 16, 2023, for reasons unclear in the record.1 Mother immediately
appealed.

¶14 A week later, Mother moved for reconsideration of the
consent judgment, again arguing that Father committed domestic violence
and custodial interference. She also alleged that Father had waived any
child support, which contradicts the consent judgment’s language
requiring Mother to pay Father’s attorney’s fees if she does not repay the
child support. The superior court did not rule on the motion for
reconsideration. We presume this is because it lacked jurisdiction to
consider the motion after Mother filed her notice of appeal. See Moreno v.
Beltran, 250 Ariz. 379, 382, ¶ 14 (App. 2020).

¶15 Father later petitioned to enforce the consent judgment
provision that required Mother to reimburse him for any child support she
received between April 1, 2023, and the date the withholding order
terminated. The superior court dismissed the petition based on Mother’s
motion.

¶16 We have jurisdiction over Mother’s appeal from the consent
judgment under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶17 Mother challenges the consent judgment on several grounds.
Ordinarily, a consent judgment is not appealable. Cofield v. Sanders, 9 Ariz.
App. 240, 242 (1969). That said, we can consider Mother’s appeal because

1 Father stated that he mistakenly inserted his signature page instead
of the correct first page of the proposed consent judgment. He asserted that
the conformed copy filed by the superior court on August 16, 2023,
contained the correct first page and that this clerical error caused the delay
between the court’s signature (on June 23, 2023) and the filing date (August
16, 2023).

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she alleges that she did not consent to the judgment and that it resulted
from fraud or mistake. Id. The validity of a separation agreement is a mixed
question of fact and law reviewed de novo. Ertl v. Ertl, 252 Ariz. 308, 312,
¶ 11 (App. 2021). Mother bears the burden of showing the agreement was
invalid. See id. at 314, ¶ 17; Ariz. R. Fam. Law P. 69(c).2

A. We Do Not Address the Moot Arguments About Legal
Decision-Making Authority and Parenting Time.

¶18 Many of Mother’s arguments relate to the legal
decision-making and parenting time orders in the consent judgment. These
arguments are moot because the child is now an adult. See A.R.S. § 25-312(E)
(A decree must resolve legal decision-making, parenting time, and child
support orders for any child common to the parties.); id. § 1-215(6) (defining
a child as a person under eighteen). Our resolution of these issues will not
affect the parties. See Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 5 (App. 2012) (A
moot appeal is one where the appellate court’s action will not affect the
parties.). We decline to consider these arguments because no exceptions to
the mootness doctrine apply. See id. at 617, ¶¶ 5-7 (recognizing exceptions
to mootness when there is “an issue of great public importance or one
capable of repetition yet evading review”).

B. Mother’s Signature on the March 2023 Letter and Father’s
Acceptance of Her Revisions Created a Binding Rule 69 Agreement
Regarding the Agreed Terms. Any Materially Different Terms Are
Unenforceable.

¶19 An enforceable agreement requires “an offer, acceptance,
consideration, a sufficiently specific statement of the parties’ obligations,
and mutual assent.” Buckholtz v. Buckholtz, 246 Ariz. 126, 129, ¶ 10 (App.
2019). Mutual assent to all material terms is required, but the parties “need
not have worked out all the basic terms of the agreement.” Ertl, 252 Ariz. at
312, ¶ 12. Under Rule 69, agreements between the parties are valid if they

2 Father asks this court to dismiss the appeal as a sanction under
Arizona Rule of Civil Appellate Procedure (“ARCAP”) 25 because the
opening brief does not comply with ARCAP 13. Mother’s brief fails to
include correct record citations for many issues and an appropriate
statement of this court’s jurisdiction. See ARCAP 13(a)(4), (5), (d). But we
decline to dismiss the appeal because we generally prefer to decide cases
on the merits. See Clemens v. Clark, 101 Ariz. 413, 414 (1966).

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are “in writing and signed by the parties personally or by counsel on a
party’s behalf.” Ariz. R. Fam. Law P. 69(a)(1).

¶20 The March 2023 Letter and Father’s attorney’s acceptance of
Mother’s proposed changes constitute a binding agreement to the
document’s terms. The March 2023 Letter, Mother’s proposed
modifications, and Father’s attorney’s acceptance of the modifications
provide the necessary elements for an enforceable agreement. See Buckholtz,
246 Ariz. at 129, ¶ 10. Mother’s “subsequent decision not to sign the
memorialization of the parties’ agreement does not negate her prior act of
agreeing . . . to all the terms in the [signed March 2023 Letter].” See Ertl, 252
Ariz. at 314, ¶ 17.

¶21 Although Father lodged a “consent judgment” for the
superior court’s signature, he stated that the attached exhibits showed a
binding Rule 69 agreement. He asked the court to enter the consent
judgment or the parties’ Rule 69 agreement as a final court order. The court
did not issue a corresponding minute entry when it signed the proposed
consent judgment. It is unclear whether the court approved the parties’
agreement under Rule 69, which would have been correct, or entered a
consent judgment in error.

¶22 Consent judgments are governed by Rule 45, which states that
both parties must sign the consent judgment before a notarial officer or in
the clerk’s presence. Ariz. R. Fam. Law P. 45(b)(4). Here, only Father signed.
Thus, the court could not have entered a consent judgment.

¶23 In any case, the parties had a binding Rule 69 agreement
without Mother’s signature on the proposed consent judgment. See Ertl, 252
Ariz. at 314, ¶ 17. Thus, the superior court could have approved the
agreement under Rule 69 as Father alternatively requested. See Ariz. R.
Fam. Law P. 69(b). That the superior court entered a document titled a
consent judgment does not negate the parties’ binding Rule 69 agreement.

¶24 We agree with Mother that the consent judgment entered by
the superior court conflicts with the Rule 69 agreement on one material
point. Mother agreed to and signed the March 2023 Letter providing that
Father could seek attorneys’ fees if the matter goes to trial. But the consent

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judgment states that Mother shall pay Father’s attorney’s fees and costs if
Father goes to court on the child support issue.3 This is a material difference.

¶25 The consent judgment’s mandatory fee provision is
unenforceable because the parties’ binding Rule 69 agreement controls.
Under the agreement, Father could only request fees; it does not require
Mother to pay Father’s fees. Thus, the parties are only bound by the terms
agreed to in the March 2023 agreement for any future enforcement action.4

¶26 Finally, we are compelled to comment on the conduct of
Father’s attorney. As discussed above, she lodged a consent judgment with
terms that varied materially from the parties’ Rule 69 agreement. She later
signed a pleading stating that the consent judgment did not differ
significantly from the Rule 69 agreement. Counsel has an ethical obligation
of candor to the tribunal and to avoid factual misrepresentation. See Ariz.
R. Sup. Ct. 42, ER 3.3(a)(1) (“A lawyer shall not knowingly . . . make a false
statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer[.]”); ER

3 Mother agreed to the following attorney’s fees provision in
the March 2023 Letter:

[E]ach party shall pay their own attorneys’ fees and costs.
Should this matter proceed to trial, [Husband] will be seeking
reimbursement for his attorney’s fees and costs. (Emphasis
added.)

Yet the signed judgment states:

Each party shall pay his or her own attorney’s fees and costs.
However, in the event Mother fails to reimburse Father for the
child support paid to Mother from April 1, 2023 through such
time as the Income Withholding Order is effectively
terminated, and Father must seek judicial interference to
retrieve the same, Mother shall be responsible for Father’s
attorney’s fees and costs associated with said judicial interference.
(Emphasis added.)

4 On appeal, Father states he decided not to pursue the child support
overpayment. Still, this statement does not render the issue moot because
Father could decide otherwise in the future.

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8.4(c) (“It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation[.]”).

¶27 Based on the record, Father’s attorney appears to have
misrepresented the terms of the parties’ Rule 69 agreement by lodging the
consent judgment containing materially different terms. She provided no
basis to support the additional terms favorable to her client and
disadvantageous to Mother, a self-represented litigant. See State v. Cornell, 179 Ariz. 314, 331 (1994) (“[T]he right to self-representation does not signal
playtime” for opposing counsel.). “In a legal system which relies on the
integrity of lawyers to provide honest, forthright adversarial representation
as a means to achieving truth and justice, we demand that members of the
bar provide nothing less.” In re Wetzel, 143 Ariz. 35, 45 (1984). As a result,
we must refer this case to the State Bar of Arizona to determine whether
Father’s attorney has committed an ethical violation. See Ariz. R. Sup. Ct.
81, Canon 2, Rule 2.15(B); see also J.W. v. Dep’t of Child Safety, 252 Ariz. 184,
190, ¶ 19, n.13 (App. 2021).

¶28 At our discretion, we award Mother her costs and any
certified legal document preparer’s fees as a sanction under ARCAP 25
based on Father’s attorney’s misrepresentation of the terms in the Rule 69
agreement.

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CONCLUSION

¶29 We affirm the judgment as modified to reflect that the Rule 69
agreement governs. Father may request, but is not necessarily entitled to,
an award of attorney’s fees related to the child support repayment
provision. The judgment is redesignated as a Rule 69 agreement because it
does not satisfy the requirements of a consent judgment. Finally, as an
ARCAP 25 sanction, Father or Father’s attorney must pay Mother’s
reasonable legal document preparer’s fees and taxable costs contingent
upon Mother’s compliance with ARCAP 21. If Mother complies with
ARCAP 21, we will determine the fee amount and remand for the superior
court to hold a culprit hearing to determine whether Father or Father’s
attorney must pay the sanction. See Lund v. Donahoe, 227 Ariz. 572, 581, ¶ 34
(App. 2011) (A culprit hearing is “aimed at protecting a party from
dispositive sanctions when the fault lies only with counsel.”).

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

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