Slawson v. Slawson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MATTHEW P. SLAWSON, Petitioner/Appellant,

v.

CATHERINE SLAWSON, Respondent/Appellee.

No. 1 CA-CV 24-0628 FC
FILED 07-29-2025

Appeal from the Superior Court in Maricopa County
No. FC2007-008337
The Honorable Steven McCarthy, Judge

VACATED

COUNSEL

Reardon House Colton, PLC, Scottsdale
By Taylor S. House
Counsel for Petitioner/Appellant

Law Offices of Jodie D. Cuccurullo, Phoenix
By Jodie Cuccurullo
Co-Counsel for Respondent/Appellee

Al Arpad, Esq., Phoenix
By Alexander R. Arpad
Co-Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

P A T O N, Judge:

¶1 Matthew P. Slawson (“Husband”) seeks to appeal from a 2024
minute entry extending the time, first imposed in a 2009 agreement and
purportedly extended in a 2018 minute entry, for Catherine Slawson
(“Wife”) to refinance or sell the marital home. Because the superior court
lacked authority to enter the 2018 and 2024 minute entries, we lack
authority to consider the merits of Husband’s appeal. Accordingly, we
vacate the superior court’s 2018 and 2024 minute entries.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife married in 1998. Husband petitioned for
dissolution of marriage in October 2007. In January 2009, the parties
entered into a Marital Settlement Agreement (“Agreement”), which
awarded Wife the home as her “sole and separate property.” The
Agreement stated that Wife:

[S]hall remain in the marital home for up to two (2) years from
September 8, 2008 . . . [Wife] is responsible for all mortgage(s),
insurance, taxes and general repair to the property . . . Within
the next two (2) years the parties are free to agree to other
terms regarding the home refinancing or sale. However, if no
agreement has been reached, the property shall be placed for
sale by September 8, 2010. Each party shall receive one half of
the net proceeds.

The Agreement also specified that it “shall be incorporated, but not set forth
or merged into any decree entered by said Court in said action and shall
survive as an independent contract of the parties and its validity shall have
res judicata effect.” The superior court then approved the Agreement and
entered the decree of dissolution in January 2009, incorporating by
reference (but not merging) the Agreement into the decree.

¶3 Wife did not refinance or sell the home by the required
September 2010 deadline. About eight years later, in July 2018, Husband

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filed a “petition to enforce court order about division of property,”
demanding that Wife sell the home or let him take possession of it.
Husband filed that petition under Arizona Revised Statutes (“A.R.S.”)
Section 25-318, which governs divisions of property in marriage dissolution
proceedings. The petition stated that Husband “let [Wife] stay in the
[home] for an additional 8 years past when the court ordered the sale of the
house[.]”

¶4 The court’s November 2018 unsigned minute entry directed
Wife to either refinance the mortgage in her name alone by July 2019, or sell
the home and split the proceeds with Husband.

¶5 More than four years after that July 2019 deadline, in October
2023, Husband filed a “Motion to Compel and Motion to enforce [Wife] to
comply [with] court order [issued] on 11-08-2018.” Husband argued in the
motion that Wife “[intentionally] and [deliberately] failed to comply with
the court order . . . which requires [Wife] to sell the marital residence and
divide the proceeds equally between the parties[.]”

¶6 In May 2024, the superior court held an evidentiary hearing
on the motion where Husband and Wife testified. Citing extenuating
circumstances, the court issued a minute entry purporting to extend
Mother’s refinancing deadline to November 2024 or sell the home if she
failed to refinance by that date, also affirming that the Agreement awarded
the home to Wife as her sole and separate property.

¶7 Husband filed a timely notice of appeal from the May 2024
minute entry.

DISCUSSION

¶8 If a separation agreement in a family court matter specifies
that it is incorporated by reference and not merged into the dissolution
decree, the agreement “is subject to the rights and limitations of contract
law.” In re Marriage of Rojas, 255 Ariz. 277, 283, ¶ 16 (App. 2023) (citation
omitted); see also In re Matter of Scott v. Scott, 1 CA-CV 24-0698 FC, 2025 WL
905112, at *2, ¶ 9 (Ariz. App. Mar. 25, 2025) (mem. decision). Agreements
incorporated by reference “can only be enforced by ‘a separate action on
the contract, by obtaining a judgment thereon and then enforcing it as any
other civil judgment.’” Marriage of Rojas, 255 Ariz. at 283, ¶ 17 (citation
omitted).

¶9 Here, the parties’ Agreement specified that it was
“incorporated, but not set forth or merged into any decree entered by said

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Court in said action and shall survive as an independent contract of the
parties.” Because the Agreement was incorporated but not merged into the
decree, it remained an independent contract and must be enforced as an
action on the contract.1 Meek v. Meek, 256 Ariz. 405, 410-11, ¶ 24 (App. 2023)
(“Because the decree explicitly incorporated the parties’ agreement,
contract law governs its terms.”); see Matter of Scott, 1 CA-CV 24-0698 FC, at
*2, ¶ 11.

¶10 Husband filed his 2018 petition in this family court action to
enforce under the post-decree enforcement provisions of Section 25-318,
rather than pursuing a contractual remedy. The form Husband completed
included the following language: “Information about Divorce or Legal
Separation Decree that I Want to Enforce.” His October 2023 motion was
also filed in this family court matter and sought similar relief.

¶11 But because Husband’s arguments are governed by contract
law, not family law, his only available remedy to enforce the terms of the
Agreement was through a contract action, not a post-decree enforcement
action. After Husband filed his 2018 petition to enforce, he could have
amended his pleading, or filed a new pleading, to assert a contract claim
regarding the home. But he did not do so, and the court did not have
authority to modify the contract between them by unilaterally extending a
deadline for Wife to refinance or sell the home in this family court action.

¶12 Accordingly, the court lacked authority to issue its 2018
minute entry requiring Wife to sell or refinance the home by a date certain.
See Marriage of Rojas, 255 Ariz. at 287, ¶ 36. Because the family court lacked
authority to issue its 2018 minute entry, it also lacked authority to consider
and rule on Husband’s October 2023 motion to enforce compliance with the
2018 minute entry, which resulted in the 2024 minute entry from which
Husband now seeks to appeal. See Shinn v. Ariz. Bd. of Exec. Clemency, 254
Ariz. 255, 264, ¶¶ 34-35 (2022) (holding that an order may be void if a court
lacks authority to issue it). We have an independent duty to examine
whether we have the authority to consider an appeal. See Yee v. Yee, 251
Ariz. 71, 77, ¶ 19 (App. 2021); Cf. McHazlett v. Otis Engineering Corp., 133
Ariz. 530 (1982). Although neither party raised the issue in their briefs, we

1 Husband argued for the first time at oral argument that the Agreement

was not valid because it was not signed by both parties when the court
entered the decree in 2009. By waiting until then to first make that
argument, Husband has waived any such claim. See Sobol v. Marsh, 212
Ariz. 301, 303, ¶ 7 (App. 2006).

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asked them to address it at oral argument, which they did. We conclude
that because the superior court lacked the authority to unilaterally modify
the parties’ contract in this family court action, we lack authority to consider
the merits of Husband’s appeal. We thus vacate the superior court’s 2018
and 2024 minute entries without addressing the merits of Husband’s
claims.

CONCLUSION

¶13 We vacate the superior court’s 2018 and 2024 minute entries
purporting to modify the parties’ contract.

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

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