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DiPasquale v. DiPasquale

Court of Appeals of Arizona, First Division

September 7, 2017

JOSEPH ANTHONY DIPASQUALE, Petitioner/Appellee,
v.
HELEN VIRGINIA DIPASQUALE, Respondent/Appellant.

         Appeal from the Superior Court in Maricopa County No. DR2000-012781 The Honorable Katherine M. Cooper, Judge

          Ayers & Brown, P.C., Phoenix By Harvey S. Brown, Joshua M. Conway Counsel for Petitioner/Appellee

          The Cavanagh Law Firm, P.A., Phoenix By Philip C. Gerard, Helen R. Davis, Karen C. Stafford Counsel for Respondent/Appellant

          Judge James P. Beene delivered the opinion of the Court, in which Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop joined.

          OPINION

          BEENE, Judge.

         ¶1 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)[1] 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2 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.[2] Soon after the dissolution, Joseph stopped making spousal maintenance payments. In February 2006, Joseph married Susan.

         ¶3 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.

         ¶4 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.

         ¶5 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).

         DISCUSSION

         ¶6 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).

         ¶7 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 ...


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