Fuller v. Fuller

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NANCY A. FULLER, Petitioner/Appellee,

v.

STEPHEN L. FULLER, Respondent/Appellant. 1

No. 1 CA-CV 24-0946 FC
FILED 08-27-2026

Appeal from the Superior Court in Coconino County
No. S0300DO202000227
The Honorable Ted. S. Reed, Judge
The Honorable Cathleen Brown Nichols, Judge (Ret.)

VACATED IN PART; REMANDED IN PART

COUNSEL

Walneck Law, Scottsdale
By Edward J. Walneck
Counsel for Respondent/Appellant

Cervone Law, P.C., Phoenix
By Kristina L. Cervone
Counsel for Petitioner/Appellee

1 The caption has been amended as reflected and shall be used on future

documents filed in this appeal.

FULLER v. FULLER
Decision of the Court

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the Court’s decision, in
which Judge Andrew M. Jacobs and Judge Michael S. Catlett joined.

W I L L I A M S, Judge:

¶1 Stephen Fuller (“Father”) appeals the superior court’s denial
of his petition for enforcement of a mediated settlement agreement (“the
Agreement”) between him and his now ex-wife, Nancy Fuller (“Mother”).
Because we cannot discern from the Agreement or the record the court’s
basis for declining to enforce the Agreement, we vacate that portion of the
court’s order and remand on that singular issue.

FACTUAL AND PROCEDURAL HISTORY

¶2 The parties married in 2015. During their marriage, they
jointly operated Fuller Dirt Worx, a construction company.

¶3 Mother petitioned for divorce in 2020. The parties
participated in mediation and reached the Agreement in May 2021. The
Agreement provided, as relevant here, that Father would transfer his entire
interest in Fuller Dirt Worx “free and clear” to Mother, except that Fuller
Dirt Worx would pay Father $1,500 per week for 50 months. The Agreement
also provided that Father would “sign a broadly worded Covenant not to
compete.” The superior court found the Agreement fair and equitable and
adopted it.

¶4 In 2022, the superior court issued a dissolution decree (the
“Decree”). In the Decree, the court divided Fuller Dirt Worx as outlined in
the Agreement, effective the date the Agreement was entered into.

¶5 In October 2023, Mother petitioned to, among other things, 2
enforce the non-compete provision of the Agreement, alleging that Father
“may have created his own excavation company.” She also alleged that

2 Mother’s petition also included a relocation request, which the superior

court granted. Father initially appealed that portion of the order as well, but
Mother and the children have since returned to Arizona. With the
relocation issue moot, the only portion of the superior court’s order
remaining for us to consider is the denial of enforcement of the Agreement.

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FULLER v. FULLER
Decision of the Court

Father “unilaterally took $30,000 out of Fuller Dirt Worx’s operating
account” despite the Agreement transferring his entire interest in the
company to her. Father denied Mother’s allegations and filed his own
petition to enforce the Agreement and for contempt.

¶6 In his petition, Father alleged that Mother made the weekly
$1,500 payments from Fuller Dirt Worx “for several weeks . . . and then
stopped” and that she had not made a payment from the company since
June 2021.

¶7 The superior court held an evidentiary hearing on both
petitions in January 2024. Five months later, the court denied both parties’
petitions, finding that “Mother breached the parties’ mediated agreement
when she stopped paying Father the $1,500.00 per week for 50 months” and
“Father breached the parties’ mediated agreement when, per Mother’s
testimony, he took approximately $30,000.00 out of the business account for
Fuller Dirt Worx, shortly after the business was awarded to Mother.” The court
also found Father breached the Agreement “when he started operating a
business similar to [Fuller Dirt Worx] in violation of the non-compete
clause.” The court declined to enforce the Agreement reasoning that both
parties had breached it.

¶8 Father timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(2).

DISCUSSION

¶9 Father argues the superior court erred by declining to enforce
the terms of the Agreement.

¶10 Father is correct that “a separation agreement about property
division is ‘binding on the court unless it finds, after considering the
economic circumstances of the parties and any other relevant evidence
produced by the parties . . . that the separation agreement is unfair.’”
Robertson v. Petz, 260 Ariz. 327, 333, ¶ 15 (App. 2025) (quoting A.R.S.
§ 25-317(B)). Courts assess the fairness of separation agreements at the time
of their formation, Meek v. Meek, 256 Ariz. 405, 413, ¶ 41 (App. 2023), and
enforce agreements “by all remedies available for enforcement of a
judgment, including contempt.” A.R.S. § 25-317(E).

¶11 Here, the superior court found the Agreement fair at the time
of its formation and never disturbed that finding when it denied both
parties’ petitions to enforce the Agreement. Thus, the Agreement’s fairness
remains undisputed.

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FULLER v. FULLER
Decision of the Court

¶12 But the mode in which a court adopts an agreement, like the
one here, is also important for enforcement purposes. The court may adopt
agreements in one of two ways—by merging it into the decree or by
incorporating the agreement by reference. Meek, 256 Ariz. at 410, ¶ 23.
When the decree incorporates the agreement by reference, which is what
occurred here, “the agreement retains its independent contractual status
and is subject to the rights and limitations of contract law.” In re Marriage of
Rojas, 255 Ariz. 277, 283, ¶ 16 (App. 2023) (citation omitted).

¶13 Record evidence supports the superior court’s finding that
“Mother and Father . . . both breached the parties’ mediated agreement.”
But the court never explained its legal basis for declining to enforce the
Agreement. Without that basis explained, we cannot say whether the court
erred in refusing to enforce it.

¶14 For that reason, we vacate the superior court’s order declining
to enforce the terms of the Agreement and remand for the court to explain
the legal basis for its ruling.

CONCLUSION

¶15 We vacate the portion of the superior court’s order denying
enforcement of the Agreement and remand.

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

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