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In re Marriage of Vincent

Supreme Court of Arizona

December 6, 2017

In re the Marriage of: Francene Laverne Vincent, Petitioner/Appellee,
v.
Patrick Jude Shanovich, Respondent/Appellant.

         Appeal from the Superior Court in Maricopa County The Honorable Stephen M. Hopkins, Judge No. DR2000-095278

         Memorandum Decision of the Court of Appeals, Division One 1 CA-CV 16-0431 FC Filed Mar. 30, 2017

          James S. Osborn Popp (argued), Popp Law Firm, P.L.C., Tempe, Attorney for Francene Laverne Vincent

          Daniel S. Riley (argued), The Harrian Law Firm, Glendale, Attorney for Patrick Jude Shanovich

          JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL, BOLICK, GOULD, and LOPEZ joined.

          TIMMER JUSTICE

         ¶1 Rule 85(A) of the Arizona Rules of Family Law Procedure authorizes the family court to correct a clerical error in a judgment at any time. We hold that an order granting or denying a motion filed pursuant to Rule 85(A) is a "special order made after final judgment" under A.R.S. § 12-2101(A)(2), which confers jurisdiction on the court of appeals to decide whether the ruling was correct.

         BACKGROUND

         ¶2 Francene Laverne Vincent and Patrick Jude Shanovich divorced in 2002. During the marriage, Shanovich worked for the City of Mesa and contributed to the Arizona State Retirement System ("ASRS"). The dissolution decree awarded Vincent "a one-half (1/2) portion of [Shanovich's] retirement including employer contribution and accrued interest as of the date of filing the Petition for Dissolution, " to be reflected in "a Qualified Domestic Relations Order [("QDRO")] stating such provisions."

         ¶3 The parties stipulated to entry of a QDRO in 2004. But the QDRO did not tie the calculation of Vincent's retirement benefits to the petition filing date, August 25, 2000, as required by the decree. Instead, it provided that "[Vincent] is awarded 50% of [Shanovich's] annuity, payable at the time and in the manner payments are made to the member pursuant to the retirement benefit elected." Conversely, the QDRO stated that if Shanovich withdrew from ASRS or died before retirement, Vincent would receive 50% of the account balance or death benefit "as of August 25, 2000" plus interest. Neither party appealed.

         ¶4 Shanovich discovered the discrepancy between the decree and the QDRO as he prepared to retire from the City in 2015. He learned from ASRS that the QDRO entitled Vincent to one-half of his total pension upon retirement rather than one-half of his pension earned as of August 25, 2000, as set forth in the decree.

         ¶5 Pursuant to Rule 85(A), which empowers a family court to correct clerical errors "at any time" after judgment is entered, Shanovich moved to replace the QDRO with one that complies with the decree. The court denied the motion, reasoning that the decree and QDRO were "clear and unambiguous" and because no appeal had been taken, the court could not "consider extrinsic evidence regarding claims of clerical error." Shanovich timely appealed.

         ¶6 The court of appeals dismissed Shanovich's appeal for lack of jurisdiction. Vincent v. Shanovich, 1 CA-CV 16-0431, 2017 WL 1174317, at *1 ¶ 1 (Ariz. App. Mar. 30, 2017) (mem. decision). It reasoned that Shanovich's motion "attacked the merits of the QDRO and thus failed to assert any issues that could not have been raised in a timely appeal" from the QDRO. Id. at *2 ΒΆ 8. We accepted review to clarify the court of appeals' jurisdiction over Rule 85(A) ...


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