Deebes v. Deebes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
ISSA SULIMAN DEEBES, Petitioner/Appellant,

v.

BRENDA JEAN DEEBES, Respondent/Appellee.

No. 1 CA-CV 24-0417 FC
FILED 03-13-2025

Appeal from the Superior Court in Mohave County
No. B8015DO202104245
The Honorable Aaron Michael Demke, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Sternberg & Singer, Ltd., Phoenix
By Melvin Sternberg
Counsel for Petitioner/Appellant

Gallagher & Kennedy, P.A., Phoenix
By Melissa Benson
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Anni Hill Foster and Judge Michael J. Brown joined.

M c M U R D I E, Judge:

¶1 Issa Suliman Deebes (“Husband”) appeals the decree
dissolving his marriage to Brenda Jean Deebes (“Wife”) and the order
denying his post-trial motions. Husband challenges the court’s property
division and attorney’s fees award, claiming the court improperly
considered marital misconduct and statements made during mediation. We
vacate the property division and attorney’s fees award but affirm the
remainder of the dissolution decree.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Wife married in 1979, then divorced and
remarried. In 2021, Husband petitioned to dissolve the marriage. In the
dissolution decree, the court awarded Wife the marital home and
investment properties and gave Husband all the couple’s gold and silver
(excluding Wife’s jewelry). The estimated value of the properties totaled
over $2 million, but at the time of the trial, less than $200,000 worth of gold
and silver was present in the marital home. The court explained this
inequality was necessary because Wife testified that the couple owned $4.5
million in gold and silver, most of which she claimed Husband was hiding.
Because of the difficulty of enforcing a division of hidden property, the
court determined an unequal property division was necessary.

¶3 These rulings followed a three-day hearing during which
Wife repeated statements that Husband had made during a pretrial
mediation. Husband objected, citing confidentiality, but the court allowed
Wife to testify about Husband’s final settlement offer during mediation as
proof that he had acted unreasonably. Wife also testified about several
domestic violence incidents that occurred during the marriage and a
protective order she had against Husband.

¶4 Husband moved to amend the judgment and set a
supersedeas bond. In denying the post-trial motions, the court wrote:

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The Court finds that [Wife] was more credible on many issues
but especially on the amount and value of the gold, jewels,
and money that [Husband] has amassed over the years. The
Court finds that [Husband] has amassed millions of dollars of
gold, jewelry, and precious metals. It is impossible to know
the exact amount of this hoard as [Husband] has made a
concerted effort to hide his treasure. The Court finds that this
behavior was both for tax reasons as well as to hide it from
[Wife]. The Court finds credible the testimony that [Husband]
threatened [Wife] that she would end up with nothing if she
divorced him. This is supported by testimony but also by the
low settlement offer by [Husband].

¶5 Husband appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) § 12-2101(A)(1) and Arizona Rule of Family
Law Procedure (“Rule”) 78(c).

DISCUSSION

¶6 Because the court improperly admitted misconduct evidence
and confidential statements made during the mediation, we vacate the
property division and attorney’s fees award.

A. The Admission of Wife’s Testimony Prejudiced Husband.

¶7 During the trial, Wife testified about several incidents of
domestic violence that occurred during the marriage. She also testified
about a protective order she had against Husband. Husband argues this
testimony violated the statutory mandate that the court divide community
property without considering marital misconduct. See A.R.S. § 25-318(A).

¶8 Generally, all relevant evidence is admissible unless
otherwise prohibited. Ariz. R. Evid. 402. Evidence inadmissible for one
purpose may be admitted for another purpose. See Ariz. R. Evid. 105. But if
the probative value of relevant evidence is substantially outweighed by the
risk of unfair prejudice, the court should exclude it. Ariz. R. Evid. 403. The
evidence of misconduct was inadmissible under A.R.S. § 25-318(A), which
raises whether it was admissible for any other purpose. See Readenour v.
Marion Power Shovel, 149 Ariz. 442, 449 (1986).

¶9 To start, Husband waived his claims related to Wife’s
testimony on incidents of domestic violence because he failed to object at
the trial and, in some cases, even elicited further testimony. See Est. of Reinen
v. N. Ariz. Orthopedics, LTD., 198 Ariz. 283, 286, ¶ 9 (2000). For this reason,

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our review concerns the protective order, to which Husband objected. Wife
argued for its admission not to show marital misconduct but to persuade
the court to divide the community’s assets to minimize contact between the
parties. But Wife’s argument is not persuasive because a court should
always favor splitting property to minimize contact between the parties
after the divorce. See Nesmith v. Nesmith, 112 Ariz. 248, 253 (1975) (Awarding
parties an undivided one-half interest in property can lead to
“mismanagement of the property not to mention the many possibilities for
added friction between two individuals.”); Martin v. Martin, 156 Ariz. 452,
458 (1988) (Even when the court cannot divide property, § 25-318(A)
authorizes the court to award the property to one spouse and award the
other an amount of money representing his or her interest in the property
rather than awarding co-ownership.); A.R.S. § 25-318(A) (“[T]he court shall
also divide the community, joint tenancy and other property held in
common equitably . . . .”) (emphasis added).

¶10 Wife also argues that the protective order was admissible to
prove that Husband acted unreasonably for the purpose of Wife’s request
for attorney’s fees under A.R.S. § 25-324. But while Husband’s conduct may
have required Wife to incur more attorney’s fees in obtaining the protective
order, such conduct is irrelevant to the reasonableness of his legal positions
taken during the dissolution litigation. See A.R.S. § 25-324 (The court may,
“after considering the . . . reasonableness of the positions each party has
taken throughout the [current] proceedings,” order a party to pay the other
party’s costs and expenses.); In re Marriage of Williams, 219 Ariz. 546, 548,
¶ 10 (App. 2008) (The court must evaluate the propriety of a litigant’s legal
position by an objective standard of reasonableness.). Because the
protective order does not relate to the reasonableness of Husband’s legal
positions taken during the dissolution litigation but to his reasonableness
as a person, it was not admissible for that purpose.

¶11 With no valid purpose supporting the protective order’s
relevance to the issues before it, the court erred by its admission. See Ariz.
R. Evid. 402. Even so, any error the superior court makes admitting
evidence is generally not grounds for disturbing a judgment unless it affects
a party’s substantial rights or justice requires otherwise. Ariz. R. Fam. L. P.
86. In a trial without a jury, we will not reverse judgments when findings
are supported by competent evidence. Ollason v. Glasscock, 26 Ariz. 193, 200
(1924); State v. Warren, 124 Ariz. 396, 402 (App. 1979) (When a court allows
inadmissible evidence, we will “assume, unless it affirmatively appears to
the contrary, that the [court] only considered the competent evidence in
arriving at the final judgment.”).

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¶12 Wife testified that the amount of gold and silver the couple
owned was $4.5 million, but less than $200,000 worth of the metal was
present in the marital home at the time of the trial. Wife offered evidence
that the parties paid $462,567 for precious metals valued at $792,982
through their pawn shop. But she did not explain how she arrived at the
$4.5 million value she claimed at the trial. The court used this evidence to
support its ruling about the value of the gold and silver, finding Wife more
credible than Husband. But Husband’s credibility was tainted by the
improperly admitted and highly prejudicial evidence. And the court stated
it relied in part on Husband’s threats to support its conclusions. We cannot
say it was harmless to admit and rely on marital misconduct to arrive at the
property division.

B. The Court Erred by Considering Statements from the Mediation.

¶13 Along with relying on marital misconduct, the court relied on
confidential communications from the mediation to arrive at its property
division and attorney’s fee award. Family Rule 67.3(a) allows parties to
confer with a neutral mediator to resolve disputes. Generally, mediations
are confidential, and communications and materials created for mediation
may not be discovered or admitted into evidence. A.R.S. § 12-2238(B). Rule
67.3 provides that A.R.S. § 12-2238’s confidentiality provisions apply to
family-law mediations. Ariz. R. Fam. L. P. 67.3(b)(1).

¶14 Because of the strong confidentiality protections in the statute
and Rule, disclosure of statements made in mediation is extremely limited.
Under A.R.S. § 12-2238, a statement may be discovered or admitted into
evidence only if it meets the criteria for one of five exceptions: all parties to
the mediation agree to the disclosure, the disclosure relates to a party’s
claim or defense against the mediator or a breach of a legal obligation owed
by the mediator, the disclosure is required by statute, the disclosure is
necessary to enforce an agreement to mediate, or the disclosure is made by
a court-appointed mediator to law enforcement about a reportable offense
for vulnerable populations. A.R.S. § 12-2238(B). The Rule applies the
statute’s protections in the family-law context with other exceptions for the
mediator’s communications with the court. Ariz. R. Fam. L. P. 67.3(b)(2).

¶15 Husband and Wife participated in mediation before the
dissolution trial. But even though these statements were confidential, Wife
began introducing excerpts in her pretrial statement before the trial. Then,
at the trial, Wife testified about Husband’s final settlement offer during
mediation for $275,000. Wife argued, and the court agreed, that the
statements were admissible under A.R.S. § 25-324 to show that Husband

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acted unreasonably, entitling her to attorney’s fees. Wife did not mention
the offer just once, and the offer was brought up in the opening, closing,
and throughout her testimony. Then, in the dissolution decree, the court
ordered Husband to pay $15,000 in attorney’s fees, finding his ability to pay
was greater and “that [Husband] did not negotiate in good faith when he
made an unreasonable final offer . . . to settle this case . . . [and] that
[Husband] did not fully disclose all of his financial resources in preparation
for this case.”

¶16 If Husband’s offer to settle had been made outside of
mediation, it may have been considered under A.R.S. § 25-324. While
Arizona Rule of Evidence 4081 forbids using a settlement offer to prove the
validity of a disputed claim, it does not prevent the court from considering
it for another purpose, such as unreasonableness. See Ariz. R. Evid. 408(b).
But because Husband’s final offer was made during mediation, it was
entitled to protection under A.R.S. § 12-2238(B). Proving that a party’s final
offer was unreasonable to award attorney’s fees is not an exception under
A.R.S. § 12-2238 or Rule 67.3, nor does A.R.S. § 25-324 provide a mechanism
for overcoming A.R.S. § 12-2238’s confidentiality shield. See A.R.S.
§ 25-324.2 Instead, a party may seek to disclose the other party’s statements
to ask the court to enforce the agreement to mediate under A.R.S.
§ 12-2238(B)(4).

¶17 We are concerned by the court’s choice to admit and rely on
these statements in its findings. The court relied on the settlement offers
when it awarded Wife attorney’s fees and again when it denied Husband’s
post-trial motions. Thus, these statements cast doubt on the award of
attorney’s fees and the entire division of assets. Anderson v. Alabam Freight
Lines, 64 Ariz. 313, 318 (1946) (Reversal is proper where evidence

1 Under Rule 2(b) certain evidentiary rules do not apply in family
proceedings unless officially invoked. In this case, there was no formal
invocation, however, under Rule 2(b), Arizona Rule of Evidence 408 applies
regardless.

2 While A.R.S. § 25-324(B) does allow for an award of attorney’s fees
if a petition was filed for an improper purpose such as to harass the other
party and cause undue delay, Wife makes no such claim here. She instead
based her claim on Husband’s ability to pay and the unreasonableness of
his positions at the trial under subsection (A).

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affirmatively appears in the record that erroneously admitted evidence
affected the court’s judgment.).

¶18 Even more troubling is that Wife did not disclose complete
statements and left out information relevant to evaluating the
reasonableness of Husband’s offer. Husband revealed that his final offer
supplemented Wife’s withdrawal of more than $500,000 from their
accounts. While $275,000 might seem unreasonable given the judgment
rendered, Wife was willing to accept $500,000 in the same mediation,
meaning both parties negotiated using much lower amounts than what was
awarded at the trial.

¶19 The court’s admission of the statements and finding that
Husband was unreasonable contradicts the statute’s confidentiality policy.
See Grubaugh v. Blomo, 238 Ariz. 264, 268, ¶ 14 (App. 2015) (Confidentiality
in mediation encourages candor by alleviating parties’ fears that what they
disclose in mediation may later be used against them.). Thus, the court
abused its discretion by using the mediation statements. See Engstrom v.
McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018) (A court abuses its discretion
when it “commits an error of law in the process of reaching a discretionary
conclusion.”).

ATTORNEY’S FEES AND COSTS ON APPEAL

¶20 Both parties request attorney’s fees and costs on appeal. Wife
requests fees and costs under ARCAP 21 but fails to identify the statute
underlying her request. We may deny Wife’s request on that ground alone.
See ARCAP 21(a)(2). We would also deny it if properly brought under
A.R.S. § 25-324, the statute Husband cites in support of his request. In
assessing entitlement to fees under A.R.S. § 25-324, we consider the
reasonableness of the parties’ positions on appeal and the parties’ financial
positions. See Doherty v. Leon, 249 Ariz. 515, 523, ¶ 24 (App. 2020). In
assessing the statutory requirements, we find that improperly bringing
confidential statements into the record and introducing improper evidence
of marital misconduct is not a reasonable position. As Wife has maintained
this position on appeal, and balanced against the relative financial
resources, per our discretion, we award Husband his reasonable attorney’s
fees and costs upon compliance with ARCAP 21. See A.R.S. § 25-324.

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CONCLUSION

¶21 We vacate the court’s division of property and debts, and its
attorney’s fees award, and remand for further proceedings. The remainder
of the dissolution decree is otherwise affirmed.

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

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