Cecily Sierra Scott v. Jeffry Bryan Bronstein

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

CECILY SIERRA SCOTT,
Petitioner,

v.

JEFFRY BRYAN BRONSTEIN,
Respondent.

No. 2 CA-SA 2024-0069
Filed January 15, 2025

Special Action Proceeding
Maricopa County Cause No. FN2022003760
The Honorable Jo Lynn Gentry, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

State 48 Law Firm, Scottsdale
By Robert Hendricks, Stephen Vincent, and Samantha Brown
Counsel for Petitioner

The Cavanagh Law Firm P.A., Phoenix
By Tonya K. MacBeth and Nicholas J. Brown
Counsel for Respondent

OPINION

Presiding Judge Gard authored the decision of the Court, in which Judge
Eckerstrom and Judge Vásquez concurred.
 SCOTT v. BRONSTEIN
Opinion of the Court

G A R D, Presiding Judge:

¶1 Cecily Scott seeks special action review of the trial court’s
order setting her supersedeas bond at $220,000.1 Because the court erred in
setting that bond amount, we accept special action jurisdiction and grant
relief. We vacate the portion of the order setting the bond and direct the
court to order a supersedeas bond, if any, that comports with Rule 7(a)(7),
Ariz. R. Civ. App. P., and this opinion.

Factual and Procedural Background

¶2 The relevant facts are not disputed. Jeffry Bronstein and
Cecily Scott entered into a property settlement agreement in their divorce
proceeding in January 2023. The agreement was incorporated by reference
into a decree of dissolution filed in October 2023. Relevant here, the decree
required Bronstein to pay Scott “$470,000 as an equalization of the marital
community” by paying $250,000 on or before January 31, 2023, and $220,000
“within 24 months of the entry of the Decree.” Scott was ordered to pay
$30,000 to a credit card provider for a community debt. Before the decree
was signed, Scott and Bronstein disputed to which account Scott was
ordered to apply her payment, and Bronstein was awarded attorney fees
based on that litigation.

¶3 In March 2024, Bronstein filed a petition to enforce the decree
and settlement agreement, which he amended in May 2024 to include
Scott’s $30,000 credit card payment. The next month, Scott moved to stay
enforcement proceedings pending appeal and requested that, in lieu of a
supersedeas bond, the trial court order Bronstein to deduct $30,000 from
the remaining $220,000 he owed her. In a September 2024 order, the court
denied Scott’s request for a stay and ordered that “[i]n the event of an
appeal, [Scott] is ordered to post a [supersedeas] bond in the amount of
$220,000.” The order awarded Bronstein $25,000 in attorney fees and costs
for the litigation that occurred between the January 2023 settlement
agreement and the October 2023 entry of the decree. The court further
awarded him an additional $25,000 in attorney fees and costs under A.R.S.
§ 25-415. This petition for special action followed.

1Effective January 1, 2025, our supreme court amended the rules of

procedure for special actions. Ariz. Sup. Ct. Order R-23-0055 (Aug. 22,
2024). Because it would not “be infeasible or work an injustice,” we apply
the new rules here. Id.

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 SCOTT v. BRONSTEIN
Opinion of the Court

Special Action Jurisdiction

¶4 We may exercise special action jurisdiction to review an order
setting a supersedeas bond because “a party who wishes to challenge a trial
court’s order setting a supersedeas bond has ‘no equally plain, speedy and
adequate remedy by appeal.’” See Chula Vista Homeowners Ass’n v. Irwin,
245 Ariz. 249, ¶ 1 (App. 2018) (quoting City Ctr. Exec. Plaza, LLC v. Jantzen, 237 Ariz. 37, ¶ 2 (App. 2015)); see also Ariz. R. P. Spec. Act. 12(a). Moreover,
because Rule 7(a)(7) has not been interpreted since its amendment, this
special action raises a legal issue of first impression, which is of statewide
importance. See State v. Bryson, 256 Ariz. 457, ¶ 8 (App. 2023); see also Ariz.
R. P. Spec. Act. 12(b)(3), (4).

Discussion

¶5 Because this case involves the interpretation of a rule, our
review is de novo. See Chula Vista Homeowners Ass’n, 245 Ariz. 249, ¶ 9. We
interpret rules “in accordance with the intent of the drafters, and we look
to the plain language . . . as the best indicator of that intent.” Fragoso v. Fell, 210 Ariz. 427, ¶ 7 (App. 2005). If the language of a rule is unambiguous, we
apply it as written. Kellin v. Lynch, 247 Ariz. 393, ¶ 11 (App. 2019).

¶6 “A supersedeas bond is a bond filed in the superior court . . .
which stays enforcement of, or execution on, a judgment so that an appeal
may be pursued.” Ariz. R. Civ. App. P. 7(a)(1)(A). The term “also includes
other types of security as ordered by the superior court in lieu of a
supersedeas bond.” Id. A supersedeas bond “has the effect of maintaining
the status quo until the appellate process is completed.” Porter v. Com.
Standard Ins. Co., 112 Ariz. 491, 493 (1975); see also Ariz. R. Civ. App. P.
7(a)(2) (“The superior court may enter any further order, in lieu of or in
addition to the bond, which may be appropriate to preserve the status quo
or the effectiveness of the judgment.”). The status quo is “the situation that
exists by virtue of the judgment rendered against the appellant.” Wells
Fargo Bank N.A. v. Rogers, 239 Ariz. 106, ¶ 13 (App. 2016).

¶7 In 2019, our supreme court amended Rule 7 to, among other
things, address the “uncertainty” that had arisen in case law “regarding
whether an award of money in a dissolution proceeding is subject to” the
requirements of Rule 7(a)(4). In Bobrow v. Herrod, the husband in a
dissolution proceeding was ordered to pay the wife more than one million
dollars for her marital interest in a home and additional money for
reimbursement of living expenses. 239 Ariz. 180, ¶ 2 (App. 2016). The trial
court applied Rule 7(a)(4) to require the husband to post a supersedeas

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 SCOTT v. BRONSTEIN
Opinion of the Court

bond in the full amount of the monetary award. Id. ¶ 4. On special action
review, the husband argued the amounts awarded to the wife were not
damages and therefore not subject to Rule 7(a)(4). Id. ¶¶ 1, 8, 10. We
rejected his argument, noting that although awards in dissolution
proceedings are not damages, the legislative history and “spirit and
purpose” of Rule 7 supported setting the bond in the full amount of the
award under the decree. Id. ¶¶ 12, 13. According to the rule-change
petitioners, new Rule 7(a)(7) “departs from Bobrow’s strict application” of
7(a)(4)’s bond formula to provide the trial court “with the flexibility to take
into account ‘the judgment as a whole and whether requiring a bond would
impose an undue hardship.’”

¶8 To that end, Rule 7(a)(7) states,

For that portion of any family court judgment
that divides assets or orders the transfer of
property or money under A.R.S. § 25-318, or
that awards costs or expenses under A.R.S. § 25-
324, the superior court must determine the
amount of the bond, if any, that the requesting
party must post, taking into account the
judgment as a whole and whether requiring a
bond would impose an undue hardship.

In contrast, Rule 7(a)(4) provides,

Except for family court judgments governed by
Rule 7(a)(7), and subject to Rule 7(a)(9), if the
judgment includes a monetary award, the
amount of the bond relating to the monetary
award must be the lowest of the following:

(A) the total amount of damages, costs,
attorney’s fees, and prejudgment interest
included in the judgment when entered,
excluding punitive damages;

(B) fifty percent of the net worth of the
party seeking the stay; or

(C) twenty-five million dollars.

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 SCOTT v. BRONSTEIN
Opinion of the Court

¶9 Scott contends that Rule 7(a)(7) does not preclude a trial court
from using Rule 7(a)(4) in family law matters and offers that the two may
be read together to determine the bond amount. She argues the court
should first calculate the bond using the 7(a)(4) formula then, under 7(a)(7),
“choose whether to apply, ignore, or adjust the formula as it applies the
mandatory considerations of undue hardship and the judgment as a
whole.” That argument, however, is not rooted in the rule’s text, which
explicitly reserves the 7(a)(4) formula for judgments not governed by Rule
7(a)(7). Rule 7(a)(7) applies to judgments ordering the transfer of property
or money under § 25-318, which is what the relevant portion of judgment
at issue here does. Thus, Rule 7(a)(4) does not apply.

¶10 Bronstein, however, incorrectly suggests that Rule 7(a)(7)
permits a trial court to order a supersedeas bond in any amount—including
more than what the appellant owes under the judgment. Bronstein is
correct that there is no formula to calculate a supersedeas bond in Rule
7(a)(7). But a trial court must determine the amount of the bond “taking
into account the judgment as a whole and whether requiring a bond would
impose an undue hardship.” Ariz. R. Civ. App. P. 7(a)(7). Moreover, the
amount of the bond must “be appropriate to preserve the status quo or the
effectiveness of the judgment.” Ariz. R. Civ. App. P. 7(a)(2).

¶11 A trial court can make downward deviations from a
judgment’s value in fixing the amount of a supersedeas bond. Rule 7(a)(7)
permits the court not to set “any” supersedeas bond, taking into account
“whether requiring a bond would impose an undue hardship.” Rule
7(a)(9)(B), too, authorizes the court to “lower the bond amount to an
amount that will not cause a requesting party substantial economic harm.”
But Bronstein’s defense of the trial court’s upward deviation from what
7(a)(4) would set as the maximum supersedeas bond is not supported by
any language in Rule 7(a)(7) or elsewhere in the rule. Even Rule 7(a)(9),
mirroring A.R.S. § 12-2108(B) and applying when the requesting party “is
intentionally dissipating assets . . . to avoid payment of a judgment,” only
authorizes a court to set the bond at the amount “up to the full amount of
the judgment.” Here, the full amount of the judgments is $80,000.

¶12 By ordering Scott to post a bond in an amount greater than
what she owes under the judgments, the trial court failed to preserve the
status quo and comport with Rule 7(a)(7)’s requirement that the court take
into account the judgment as a whole. Moreover, the amount risks
infringing on Scott’s due process right to appeal. Cf. Wallace v. Smith, 255
Ariz. 377, ¶ 13 (2023) (in enacting § 12-2108, legislature was concerned

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 SCOTT v. BRONSTEIN
Opinion of the Court

about overly large appeal bonds infringing due process rights of
appellants).2

Attorney Fees

¶13 Both Scott and Bronstein request an award of attorney fees
incurred from this special action. Scott requests fees under § 25-324(A)
based on Bronstein’s unreasonable arguments and his significantly greater
financial resources. Bronstein requests fees under § 25-324, but did not
specify the subsection, though he argues Scott’s arguments are
“unsupported by the law” and her positions “unreasonable.” In our
discretion, we deny both requests.

Disposition

¶14 We vacate the portion of the trial court’s September 2024
order setting Scott’s supersedeas bond at $220,000 and direct the court to
order a supersedeas bond, if any, that comports with Rule 7(a)(7) and this
opinion.

2Scott contends the trial court erred by refusing to order her bond

satisfied by withholding the amounts she owes from what Bronstein owes
her. Although a court is permitted to “enter any further order, in lieu of or
in addition to the bond . . . to preserve the status quo or the effectiveness of
the judgment,” Ariz. R. Civ. App. P. 7(a)(2), it does not have to do so. In
any event, Scott can re-urge her position to the trial court. We decline
Scott’s invitation to “reverse the trial court’s denial of her request for
attorney’s fees regarding the bond issue.” Scott can seek reconsideration
before the trial court or raise the issue on appeal.

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