Thomas v. Thomas

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EMILY E. THOMAS, Petitioner/Appellee,

v.

CHRISTOPHER M. THOMAS, Respondent/Appellant.

No. 1 CA-CV 25-0495 FC
FILED 03-24-2026

Appeal from the Superior Court in Maricopa County
No. FC2023-004698
The Honorable James N. Drake, Judge

AFFIRMED

COUNSEL

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin, Alicia Derr, Elizabeth Nanez
Counsel for Petitioner/Appellee

Bishop, Del Vecchio & Beeks Law Office, P.C., Phoenix
By Daniel P. Beeks
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Brian Y. Furuya joined.

M O R S E, Judge:

¶1 Christopher Thomas ("Father") appeals the denial of his
Arizona Rule of Family Law Procedure ("Rule") 85 motion for relief from
judgment, his amended Rule 85 motion for relief for judgment, and the
Decree of Dissolution. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Emily Thomas ("Mother") filed a petition to dissolve her
marriage to Father. The parties entered into a series of Rule 69 agreements
addressing various aspects of the dissolution proceedings. In the second
Rule 69 agreement, the parties agreed that Father would receive the parties'
marital residence as his separate property. In relevant part, the agreement
provided the following:

Father shall assume as his sole and separate property the
following:

1. The former family residence is located in Tempe, Arizona
. . . . The parties agree that they shall immediately pay off the
remaining mortgage against the property, the HELOC debt,
and the solar panels debt. Further, Father shall be entitled to
occupy the home effective January 1st, 2025. The home shall
be turned over to him in good condition, reasonable wear and
tear excepted . . . . Finally, Father shall be responsible for any
costs associated with addressing a zoning and/or compliance
issue with respect to the enclosed garage/carport.

The superior court adopted the second Rule 69 agreement on November 12,
2024.

¶3 Sometime after entering into the second Rule 69 agreement,
Father discovered that the residence had zoning issues surrounding a patio
in addition to the garage/carport zoning issues mentioned in the second
Rule 69 agreement. On April 3, 2025, Father filed a motion to continue the

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case on the dismissal calendar, so that he could file a motion to set aside the
second Rule 69 agreement. The superior court granted the motion to
continue.

¶4 Father then filed a Rule 85 motion for relief from judgment,
arguing the superior court should grant relief from judgment based on
newly discovered evidence. Before Mother could respond, the superior
court denied Father's Rule 85 motion in a two-sentence order. The superior
court explained "this seems like a risk Father took on when agreeing to [the
second Rule 69 agreement]."

¶5 Father filed an amended Rule 85 motion rearguing his newly-
discovered-evidence claim and challenging the validity of the second Rule
69 agreement for lack of mutual assent. The superior court issued the
Decree of Dissolution. The superior court then denied Father's amended
Rule 85 motion without further comment in an order containing Rule 78(c)
language. Father timely appeals, and we have jurisdiction under A.R.S. §§
12-2101(A)(1) and -2102(A).

DISCUSSION

¶6 Father asserts the superior court erred in denying his Rule 85
motions. Father argues he is entitled to relief based on a lack of mutual
assent to the second Rule 69 Agreement, see Ariz. R. Fam. L. P. 85(b)(6),
newly discovered evidence, see Ariz. R. Fam. L. P. 85(b)(2), and the superior
court's failure to hold required evidentiary hearings. We review the denial
of a Rule 85 motion for relief from judgment for an abuse of discretion.
Clark v. Kreamer, 243 Ariz. 272, 275, ¶ 10 (App. 2017). We will affirm the
ruling of the superior court "if it is legally correct for any reason." State v.
Leyva, 241 Ariz. 521, 524, ¶ 6 (App. 2017). "[T]rial judges are presumed to
know the law and apply it in making their decisions." Fuentes v. Fuentes, 209 Ariz. 51, 58, ¶ 32 (App. 2004) (cleaned up). We review the validity of a
contract de novo. Armiros v. Rohr, 243 Ariz. 600, 605, ¶ 16 (App. 2018). We
review the denial of an evidentiary hearing for an abuse of discretion.
Gullett ex rel. Est. of Gullett v. Kindred Nursing Centers W., L.L.C., 241 Ariz.
532, 540, ¶ 26 (App. 2017).

I. Lack of Mutual Assent.

¶7 Father argues the second Rule 69 agreement is invalid
because the parties lacked mutual assent. A Rule 69 agreement is a contract
between spouses and is governed by contract principles. Meek v. Meek, 256
Ariz. 405, 410, ¶ 22 (App. 2023). "The essential elements of a valid contract
are an offer, acceptance, consideration, a sufficiently specific statement of

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the parties' obligations, and mutual assent." Muchesko v. Muchesko, 191 Ariz.
265, 268 (App. 1997). A Rule 69 agreement is binding on the court if "it is
submitted to and approved by the court as provided by law." Ariz. R. Fam.
L. P. 69(b). For mutual assent to exist, "the parties must mutually consent
to all material terms. A distinct intent common to both parties must exist
without doubt or difference." Hill-Shafer P'ship v. Chilson Fam. Tr., 165 Ariz.
469, 473 (1990). The parties to a contract are required to mutually assent to
all material provisions in a contract. See id. at 473. "[M]utual assent is based
on objective evidence, not on the hidden intent of the parties." Id. at 474.

¶8 Father does not challenge the mutual assent of the parties to
the written provisions of the second Rule 69 agreement. His complaint
appears to be that the parties should have also assented to additional
provisions but did not. But Father's desire that the parties had included
additional terms in their contract will not defeat the agreement the parties
made. Cf. Quijada v. Quijada, 246 Ariz. 217, 221, ¶ 10 (App. 2019) (explaining
the existence of other possible contract terms does not invalidate the parties'
agreement). The second Rule 69 agreement is a valid contract, and Father
is not entitled to relief based on a lack of mutual assent. Cf. Daley v. Earven, 131 Ariz. 182, 185 (App. 1981) (enforcing a contract when "the items
enumerated by appellants as not contained in the document . . . are not
essential or material, or are disposed of by operation of law . . . [and]
appellants do not contend that any of these items were the subject of further
negotiations").

II. Newly Discovered Evidence.

¶9 Nor has Father established that the superior court abused its
discretion by concluding he assumed the risk of additional zoning issues.
To prevail on his newly discovered evidence claim under Rule 85(b)(2),
Father must demonstrate the newly discovered evidence he seeks to present
could not have been discovered with "reasonable diligence." Ariz. R. Fam.
L. P. 85(b)(2); see also Catalina Foothills Ass'n, Inc. v. White, 132 Ariz. 427, 429
(App. 1982) ("Evidence that could have been discovered with reasonable
diligence prior to trial is not entitled to be considered as 'newly
discovered.'" (quoting Ariz. R. Civ. P. 60(c)(2)1)). Father argues that the
patio zoning issue could not have been discovered through reasonable
diligence. But his statements are conclusory. In his motion, Father did not
allege or provide any argument to support his claims or explain why the

1 Arizona Rule of Civil Procedure 60 contains "substantially the same
language" as Rule 85 and so we may look to cases interpreting the civil rule
when interpreting the family law rule. Ariz. R. Fam. L. P. 1(c).

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patio zoning issue could not have been discovered through reasonable
diligence. Nor did he allege or argue that Mother knew of the issue,
concealed it, or was in a better position to discover it. As a result, Father
did not raise any disputed issues of fact requiring an evidentiary hearing.
See Duckstein v. Wolf, 230 Ariz. 227, 235, ¶ 26 (App. 2012) (stating that an
evidentiary hearing is required to resolve "contested issues of material
fact"). Thus, the superior court did not abuse its discretion by concluding
that Father assumed the additional zoning risks when he failed to inspect
the residence prior to entering the second Rule 69 agreement and failed to
warrant against them in the second Rule 69 agreement.

¶10 On appeal, Father argues that he is entitled to relief from
judgment based on mutual mistake. See Ariz. R. Fam. L. P. 85(b)(1). But
Father never argued mutual mistake in superior court. His Rule 85 motions
expressly limited his arguments to Rule 85(b)(2) and Rule 85(b)(6). As a
result, Father has waived any challenge based on mutual mistake. Logan B.
v. Dep't of Child Safety, 244 Ariz. 532, 536, ¶ 9 (App. 2018) ("Generally, failure
to raise an argument in the [superior] court waives the issue on appeal.").

¶11 Citing Dansby v. Buck, Father argues he could not have
assumed the risk of additional zoning issues because they were unknown
when he entered into the second Rule 69 agreement. 92 Ariz. 1, 11 (1962).
But Dansby is distinguishable. Here, unlike in Dansby, Father is seeking
relief from judgment based on newly discovered evidence. Thus, Father
must meet the additional burdens imposed by Rule 85. He must show that
not only were the additional zoning issues unknown to him, but that he
could not have discovered them with "reasonable diligence." See Ariz. R.
Fam. L. P. 85(b)(2). As discussed above, supra ¶ 9, Father has not done so.
The record here is sufficient to support the superior court's conclusion. See
Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007)
(suggesting the superior court does not abuse its discretion when its
decision is based on substantial evidence). Father has failed to show the
superior court abused its discretion by denying his Rule 85 motions.

III. Lack of a Hearing.

¶12 Father also argues the superior court erred by failing to hold
a hearing about whether the second Rule 69 agreement was fair and
equitable. A Rule 69 agreement entered by the parties need only be fair, not
equitable. Meek, 256 Ariz. at 410, ¶ 21. Father agreed that the second Rule
69 agreement was fair when the parties entered the agreement and only
challenged the fairness of the agreement in his Rule 85 motions. Because
Father did not object to the second Rule 69 agreement when the parties

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submitted it to the superior court, Father has waived this argument. Logan
B., 244 Ariz. at 536, ¶ 9. Even if Father did not waive the argument, Father
had not, at that time, raised "plainly disputed facts on the question of the
fairness of the agreement," which would have required a hearing to
address. Sharp v. Sharp, 179 Ariz. 205, 210 (App. 1994). To the extent Father
seeks review of the fairness of the second Rule 69 agreement via his Rule 85
motions, we do not address the issue because fairness, or lack thereof, is not
a ground for relief under Rule 85.

¶13 Both parties have requested attorney fees. In our discretion,
we deny both parties' requests for attorney fees. Mother is entitled to her
costs as the prevailing party upon compliance with ARCAP 21.

CONCLUSION

¶14 We affirm.

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

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