Jacobs v. Jacobs

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

ASHLEE JACOBS, Petitioner/Appellee,

v.

BRANDON JACOBS, Respondent/Appellant.

No. 1 CA-CV 24-0293 FC
FILED 04-03-2025

Appeal from the Superior Court in Mohave County
No. S8015DO202200285
The Honorable Kenneth Gregory, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin
Counsel for Petitioner/Appellee

Silk Law Office, Lake Havasu City
By Melinda Silk
Counsel for Respondent/Appellant

OPINION

Judge David D. Weinzweig delivered the opinion of the Court, in which
Presiding Judge Michael S. Catlett and Judge Daniel J. Kiley joined.
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Opinion of the Court

W E I N Z W E I G, Judge:

¶1 Arizona law empowers the parties to a dissolution
proceeding to settle a range of issues in writing, including property
disputes, spousal maintenance, legal decision-making and parenting time.
At issue here is whether the superior court must adopt the terms of those
separation agreements in full or whether it may choose a la carte which
terms to adopt and which terms to reject. We hold the superior court must
either accept or reject a separation agreement in its entirety.

¶2 Brandon Jacobs (“Husband”) appeals the dissolution decree
ending his marriage to Ashlee Jacobs (“Wife”). He argues the superior
court erroneously altered a marital separation agreement it had previously
adopted, rejected his request to modify child support and denied his
request for attorney fees. We reverse and remand because the court
adopted some terms of the separation agreement, but rejected others.

FACTS AND PROCEDURAL HISTORY

¶3 Wife petitioned to dissolve her marriage with Husband in
March 2022. She attached a marital separation agreement (“Agreement”)
to the petition, signed by both parties. Among other things, the Agreement
divided the marital assets, required Husband to pay child support of $500
per month and directed Husband and Wife to split the settlement proceeds
of a pending lawsuit. Husband wrote a note next to that last term reading,
“AFTER 40K,” which, he said, meant he would receive the first $40,000 of
settlement proceeds with the remainder equally divided between him and
Wife. Wife insisted that she never agreed to that handwritten addition.

¶4 Wife soon moved for temporary orders on relocation, legal
decision-making and parenting time. Husband moved to adopt the
Agreement because it resolved many of the issues raised in Wife’s motion
for temporary orders.

¶5 Wife opposed Husband’s motion, but the superior court
granted it. The court adopted the Agreement, except for the provision
about Husband’s child support, which it increased to $1,861 per month
given Husband’s then-current salary of $13,717 per month as an oil rig
manager.

¶6 The superior court held an evidentiary hearing before
entering the final dissolution decree. Husband testified he was “terminated
for cause” during a series of layoffs common in the oil industry. Husband
explained that his termination was not voluntary, stressing he had “the

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highest paying rig manager job in the country,” and “would not want to
lose that for anything.” Husband added he was actively looking for work
in a different field, but had received no offers. He asked the court to order
monthly child support payments based on his unemployed status.

¶7 A month later, the superior court issued a final dissolution
decree, rejecting Husband’s child support request because “[Husband]
voluntarily left his employment due to differences with his boss.” The final
decree incorporated the Agreement’s terms, except for the division of
proceeds from the pending lawsuit, which the superior court found to be
“unfair.” Instead, the court ordered the parties to split the settlement
proceeds equally. Both parties requested attorney fees, which the superior
court denied.

¶8 Husband timely appealed. We have jurisdiction. A.R.S. § 12-
2101(A)(1).

DISCUSSION

¶9 Husband argues the superior court erred by: (1) altering the
Agreement after originally adopting it, (2) rejecting his request to modify
child support and (3) denying his request for attorney fees. We address
each issue in turn.

I. The Agreement.

¶10 We interpret statutes and court rules de novo. Brenda D. v.
Dep’t of Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018). When interpreting a
statute, we aim to “determine the plain meaning of the words the legislature
chose to use, viewed in their broader statutory context.” Columbus Life Ins.
Co. v. Wilmington Tr., N.A., 255 Ariz. 382, 385, ¶ 11 (2023); see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167
(2012) (courts must interpret a statute’s plain language in context because
“[c]ontext is a primary determinant of meaning”).

¶11 Arizona law authorizes the superior court to adopt written
separation agreements “[t]o promote amicable settlement of disputes
between parties to a marriage.” A.R.S. § 25-317(A). The separation
agreement statute, however, requires the superior court to adopt or reject
an agreement in full:

• A.R.S. § 25-317(D) directs that “[i]f the court finds that
the separation agreement is not unfair as to disposition of
property or maintenance and that it is reasonable as to

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support, legal decision-making and parenting time of
children, the separation agreement shall be set forth or
incorporated by reference in the decree of dissolution,
annulment or legal separation and the parties shall be
ordered to perform them.” (emphasis added).

• A.R.S. § 25-317(E) directs that “[t]erms of the agreement
set forth or incorporated by reference in the decree are
enforceable by all remedies available for enforcement
of a judgment.” (emphasis added).

• A.R.S. § 25-317(F) directs that “entry of the decree shall
thereafter preclude the modification of the terms of the
decree and the property settlement agreement, if any, set
forth or incorporated by reference.” (emphasis added).

¶12 Arizona Rule of Family Law Procedure 69(a) confirms the
superior court may not adopt only parts of a separation agreement and
reject others:

• Rule 69(a) directs that “[a]n agreement between the
parties is valid and binding if . . . the agreement is in
writing and signed by the parties.” Ariz. R. Fam. Law
P. 69(a) (emphasis added).

• Rule 69(b) directs that “[a]n agreement under this rule is
not binding on the court until it is submitted to and
approved by the court as provided by law.” Ariz. R.
Fam. Law P. 69(b) (emphasis added).

¶13 And this makes sense given the nature of a separation
agreement, which is designed to resolve litigation. Cf. Goodman v. Newzona
Inv. Co., 101 Ariz. 470, 472 (1966) (“It is not within the province or power of
the court to alter, revise, modify, extend, rewrite or remake an agreement.
Its duty is confined to the construction or interpretation of the one which
the parties have made for themselves.”). The parties to a separation
agreement might not have reached that agreement had they known the
superior court would adopt only some of its terms.

¶14 Turning here. At two points in this dissolution proceeding,
the superior court adopted all but one term in the separation agreement.
The court rejected the child support terms when it first adopted the
Agreement and later rejected the distribution of settlement proceeds in the
final dissolution decree. That was error. We vacate and remand for the

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superior court to either accept the Agreement in its entirety or
independently resolve the merits as if no separation agreement was
reached.1

II. Child Support.

¶15 Husband next argues the superior court miscalculated his
child support payments because he involuntarily lost his job and had not
found a new one.

¶16 We review child support awards for an abuse of discretion.
Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018). We accept the
superior court’s factual findings unless clearly erroneous, but review de
novo its conclusions of law and interpretation of rules and statutes. Nia v.
Nia, 242 Ariz. 419, 422, ¶ 7 (App. 2017). We look to “plain language as the
most reliable indicator of the supreme court’s intent.” Milinovich v. Womack, 236 Ariz. 612, 615, ¶ 10 (App. 2015).

¶17 The superior court has discretion under the Arizona Child
Support Guidelines to attribute income to a spouse who is unemployed or
underemployed depending on assorted factors, including why that spouse
is unemployed:

• If the spouse’s employment status is involuntary,
whether it is reasonable for that parent to find
replacement income above actual earnings;

• If the spouse’s employment status is voluntary with
reasonable cause, whether the parent’s decision and its
benefits outweigh the effect that the reduced income
has on the child’s best interests;

• If the spouse’s employment status is voluntary and
without good cause, whether income attribution is
appropriate; and

• If the parent has the ability to find suitable work in the
marketplace at a greater income based on the parent’s

1 Our resolution of the appeal on these grounds negates Husband’s
argument that the superior court had no authority to revisit its initial
approval of the Agreement in the dissolution decree.

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current educational level, training and experience, and
physical capacity.

See A.R.S. § 25-320 app. § II.A.4.e.

¶18 Husband contends there was no evidence that his
unemployment was voluntary, and the superior court erred by finding he
“voluntarily left his employment due to differences with his boss.” We
agree. The record contains no evidence that Husband left his job
voluntarily. Just the opposite. Husband testified he was let go during
seasonal terminations in the oil rig industry. And so, the superior court
erred by issuing a decision with “clearly erroneous factual underpinnings.”
McComb v. Superior Court, 189 Ariz. 518, 525 (App. 1997). We vacate the
child support award and remand for the court to modify the award
consistent with this opinion.

III. Attorney Fees.

¶19 The superior court denied the parties’ dueling requests for
attorney fees. The court has discretion to grant attorney fees “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings.” A.R.S.
§ 25-324(A). We review the superior court’s decision on whether to award
attorney fees for an abuse of discretion. Myrick v. Maloney, 235 Ariz. 491,
494, ¶ 6 (App. 2014).

¶20 Because we vacate the dissolution decree and order the
superior court to revisit child support and the distribution of community
property, we also vacate the court’s denial of attorney fees. On remand,
after resolving these issues, the superior court may consider any renewed
requests for attorney fees.

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CONCLUSION

¶21 We vacate the dissolution decree and remand for further
proceedings consistent with this opinion. Both parties requested attorney
fees on appeal under A.R.S. § 25-324, which we decline in our discretion.
Husband also requested costs under A.R.S. § 12-342(A). Because Husband
was successful on appeal, we award him his appellate costs upon
compliance with ARCAP 21.

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

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