from the Superior Court in Maricopa County No. DR2000-012781
The Honorable Katherine M. Cooper, Judge
& Brown, P.C., Phoenix By Harvey S. Brown, Joshua M.
Conway Counsel for Petitioner/Appellee
Cavanagh Law Firm, P.A., Phoenix By Philip C. Gerard, Helen
R. Davis, Karen C. Stafford Counsel for Respondent/Appellant
James P. Beene delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F.
Helen DiPasquale ("Helen") appeals the superior
court's denial of her motion for leave to join Susan
Levendowski ("Susan") as a party in Helen's
motion to enforce a judgment against her former husband,
Joseph DiPasquale ("Joseph"). Helen contends the
superior court erred by failing to properly consider Arizona
Revised Statutes ("A.R.S.") section 25-215
(2017) and this court's holding in
Flexmaster Aluminum Awning Co. Inc. v. Hirschberg,
173 Ariz. 83 (App. 1992). For the following reasons,
we vacate and remand.
AND PROCEDURAL HISTORY
Helen and Joseph were married for 38 years before they
obtained a decree dissolving their marriage in 2001.
Contemporaneous with their consent decree, the parties
entered into a property settlement agreement whereby Joseph
agreed to pay Helen $2, 600 per month in spousal maintenance
until her death or remarriage. Soon after the dissolution,
Joseph stopped making spousal maintenance payments. In
February 2006, Joseph married Susan.
In September 2006, Helen petitioned to enforce spousal
maintenance and arrearages. In March 2007, the parties agreed
to another property settlement agreement that resulted in a
judgment in favor of Helen and against Joseph for $122, 200
plus interest at 10% per year, and the cessation of ongoing
spousal maintenance payments. Additionally, Joseph agreed to
pay Helen $200 per month against the spousal maintenance
arrearage, provide her with copies of his annual tax returns,
and maintain a life insurance policy with a face value of
$250, 000 for Helen's irrevocable benefit.
Although Joseph largely made the arrearage payments, he
allowed the life insurance policy to lapse and failed to
provide Helen his annual tax returns. In October 2015, Helen
filed a petition to enforce all previous property settlement
agreements and sought entry of judgment, equitable relief,
and an award of attorneys' fees. See Ariz. R.
Fam. Law P. ("Rule") 91. Helen also moved for leave
to file a third-party petition pursuant to Rule 33 and A.R.S.
§ 25-215(B), asking that Susan be joined in order for
the superior court to make a finding determining Joseph's
contribution to the community property.
Following a hearing, the superior court granted Helen much of
her requested relief, but denied her motion to file a
third-party petition to join Susan as a party. The court
found that determining Joseph's contribution to the
community was not an issue for the family court, and that it
was premature to join Susan until Helen sought to actually
collect against Joseph and Susan's community property.
Helen timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(2).
Helen argues the superior court erred in concluding it could
not join Susan pursuant to Rule 33 in order to establish
Joseph's contribution to the community property and
liability of the community under A.R.S. § 25-215(B). We
review questions involving the application and interpretation
of court rules de novo. Duckstein v. Wolf, 230 Ariz.
227, 231, ¶ 8 (App. 2012).
Rule 33(A) states "[a] party to a family law case may
file a statutory claim . . . against a third party arising
out of or related to the subject matter of the action by the
filing of . . . [a] third party petition[.]" Rule 33(C)
states that "the court may join additional
parties necessary for the exercise of its authority."
(Emphasis added.) Read together, these rules grant the
superior court discretion to permit joinder of third parties
by third party petition. See Crum v. Maricopa Cnty.,190 Ariz. 512, 515 (App. 1997) (noting "may" is
permissive, not mandatory); se ...