Mapes v. Mapes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES F. MAPES, Petitioner/Appellant,

v.

TERRY A. MAPES, Respondent/Appellee.

No. 1 CA-CV 25-0275 FC
FILED 03-03-2026

Appeal from the Superior Court in Navajo County
No. S0900DO202300142
The Honorable Michala M. Ruechel, Judge

VACATED AND REMANDED

COUNSEL

James F. Mapes, Winslow
Petitioner/Appellant

MEMORANDUM DECISION

Judge Andrew J. Becke delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Kent E. Cattani joined.
 MAPES v. MAPES
Decision of the Court

B E C K E, Judge:

¶1 James Mapes (“Husband”) appeals an order dividing his
railroad retirement benefits as community property. For the reasons that
follow, we vacate the order and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Terry Mapes (“Wife”) married in 1998.
Husband worked for BNSF Railway during the marriage. In 2012, the
couple stopped living together. They signed a separation agreement in
2016. Husband filed a petition for legal separation in 2023; Wife did not file
a response. In November 2023, the court entered a default decree of legal
separation, which incorporated the separation agreement.

¶3 The separation agreement states that “[Wife] is eligible for
spousal retirement benefits per Railroad Retirement rules, and is here
instructed of the necessity of attending to those rules, for her future
eligibility and benefits.” It further states that “[t]here is NO remaining
community property or debt for consideration.”

¶4 The separation agreement was incorporated into the decree.
The form decree states “[t]here is no community property,” “[e]ach party
WAIVES AND GIVES UP his or her interest in any retirement benefits,
pension plan, or other deferred compensation of the other party,” and the
decree includes a handwritten provision that “[b]oth parties each qualify
for retirement per [Railroad Retirement] Board rules.”

¶5 A year after entry of the decree, Wife filed a notice of lodging
a proposed order dividing railroad retirement benefits. See Ariz. R. Fam.
Law P. 91(b). The notice claimed the order was intended to enforce the
decree. The notice said that, in the separation agreement, “the parties
agreed that [Wife] would receive her community interest of [Husband’s]
Railroad Retirement.” The proposed order divided Husband’s “Non-Tier I
Benefits under the Railroad Retirement Act as part of a final distribution of
property and pursuant to the parties’ Legal Separation.”1 See 45 U.S.C. §
231m(b)(2). The court signed the order.

1 Under the Railroad Retirement Act of 1974, 45 U.S.C. §§ 231–231(v), there

are Tier I and Tier II annuities. Tier I annuities are similar to a social security
benefit and may not be treated as community property. See 20 C.F.R. §
226.10; see also 45 U.S.C. § 231(m)(b)(2) (describing which annuities may be

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Decision of the Court

¶6 Wife failed to serve Husband with the notice of lodging or
proposed order. Father first learned of the notice and proposed order when
he received a copy of the order signed and entered by the court. Husband
then timely moved for reconsideration, arguing he had not received the
notice or proposed order and that the order did not comply with the decree.

¶7 At oral argument, Wife argued that the separation
agreement’s statement that “[Wife] is eligible for spousal retirement
benefits per Railroad Retirement rules” meant that she was able to take a
part of Husband’s non-Tier I benefits as community property. Husband
responded, emphasizing that the decree stated that there was no
community property and that they have no interest in each other’s
retirement benefits. He thus argued that Wife was only eligible for her own
spousal annuity under the Railroad Retirement Board rules. See 45 U.S.C. §
231a(c)(1) (detailing annuity eligibility requirements for spouses of railroad
employees).

¶8 The court found that the separation agreement was “not
clear” as to which Railroad Retirement Board rules should apply. The court
then stated that it was interpreting “any ambiguity” in the separation
agreement against the drafter, which it added “appears to be” Husband
“because it’s not clear.” See, e.g., Gregory G. McGill, P.C. v. Ball, 254 Ariz. 144,
149, ¶ 16 (App. 2022) (“[W]e construe ambiguous contract provisions
against the drafter.”); see also MacMillian v. Schwartz, 226 Ariz. 584, 589, ¶ 15
(App. 2011) (A property settlement agreement that is incorporated, but not
merged, into a dissolution decree “retains its independent contractual
status and is subject to the rights and limitations of contract law.”). The
court then affirmed the order dividing the Railroad Retirement benefits.

¶9 Husband timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1)–(2).

DISCUSSION

¶10 Husband argues that the order dividing the railroad
retirement benefits is inconsistent with the decree. See A.R.S. §§ 25-
325(B), -317(F) (“[E]ntry 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.”). He contends

divided as community property). Tier II annuities are based on the
employee’s railroad service and may be divided as community property
through court order. See 20 C.F.R. § 226.11; 45 U.S.C. § 231(m)(b)(2).

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Decision of the Court

that, because the decree stated there was no community property and that
both parties waived their interest in the other’s retirement benefits, dividing
Husband’s non-Tier I benefits as community property violated the decree.
We review the superior court’s interpretation of a decree of legal separation
de novo. See Quijada v. Quijada, 246 Ariz. 217, 219, ¶ 5 (App. 2019).

¶11 Wife did not file an answering brief. In cases that the Arizona
Supreme Court decided before this court existed, when no answering brief
was filed, that court developed a general approach that when a debatable
issue is raised on appeal, the court would “assume that the failure to file an
answering brief is a confession of reversible error on the part of the
appellee.” Tiller v. Tiller, 98 Ariz. 156, 157 (1965). As this court has noted
more recently, however, “the confession of error rule is not absolute and
can be waived in the discretion of this court.” Eversten v. Indus. Comm’n, 117
Ariz. 378, 383 (App. 1977).

¶12 We have previously noted that there is “no definitive test to
identify a debatable issue.” Williams v. Ariz. Dep’t of Econ. Sec., 1 CA-UB 23-
0369, 2025 WL 1466188 at *9, ¶ 56 (Ariz. App. May 22, 2025) (mem.
decision). Our supreme court has found a debatable issue where there was
“at least grave doubt” about an order being appealed. Adkins v. Adkins, 39
Ariz. 530, 532 (1932). We have found that an issue was not debatable when
“the answer to the questions is clear,” Honsey v. Honsey, 126 Ariz. 336, 337
(App. 1980), and when the “[t]he record shows so clearly” the answer to the
issue raised, Air East, Inc. v. Wheatley, 14 Ariz. App. 290, 294 (1971).

¶13 On this record, it is not clear whether the order complied with
the decree. See A.R.S. §§ 25-325(B), -317(F). The Railroad Retirement Board
rules referenced in the decree and separation agreement are not clearly
delineated. However, the decree states that “[t]here is no community
property,” and “[e]ach party WAIVES AND GIVES UP his or her interest
in any retirement benefits, pension plan, or other deferred compensation of
the other party.”

¶14 The order dividing railroad retirement benefits cites 45 U.S.C.
§ 231m as authority for categorizing Husband’s non-Tier I annuity as
community property. Under 45 U.S.C. § 231m(b)(2), a railroad employee’s
non-Tier I annuity may be divided as community property “in accordance
with a court decree of . . . legal separation or the terms of any court-
approved property settlement incident to any such court decree.”

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Decision of the Court

¶15 The order appears to be inconsistent with the Railroad
Retirement Act, which provides that spouses of railroad employees are
generally eligible for their own annuities. See 45 U.S.C. § 231c. The Railroad
Retirement Act does not consider a legal separation to be a divorce, and
therefore Wife is presumably eligible for a spousal annuity. 20 C.F.R. §
222.21 (“A legal separation . . . is not considered a final divorce for family
relationship and benefit entitlement purposes.”). A spouse is typically
eligible for an annuity about equal to their social security benefit and an
annuity equal to 45% of the employee’s Tier II benefit. 45 U.S.C. § 231c(a)(1),
(b); 20 C.F.R. §§ 226.30(a), 226.32(a). A court order is not needed to receive
these annuities.

¶16 There is a debatable question whether, under the separation
agreement, Wife is entitled to Husband’s non-Tier I benefits as community
property, or if she is only eligible for her own annuity under the Act. This
is particularly true given the statement in the decree that there is no
community property and the parties waived their interest in retirement
benefits of the other party. Accordingly, we vacate the superior court’s
order.

CONCLUSION

¶17 We vacate the order dividing railroad retirement benefits and
remand for further proceedings consistent with this decision.

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

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