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In re Quijada

Court of Appeals of Arizona, First Division

February 19, 2019

In re the Matter of JULIE ANNE QUIJADA, Petitioner/Appellant,
v.
MICHAEL GEORGE QUIJADA, Respondent/Appellee.

          Appeal from the Superior Court in Mohave County No. L8015DO20087271 The Honorable Steven C. Moss, Judge

          The Harrian Law Firm, P.L.C., Glendale By Daniel Seth Riley Counsel for Petitioner/Appellant

          Law Offices of Heather C. Wellborn, P.C., Lake Havasu City By Heather C. Wellborn Counsel for Respondent/Appellee

          Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig joined.

          OPINION

          JONES, JUDGE

         ¶1 Julie Quijada (Wife) appeals from the family court's order denying her request for immediate payment of retirement benefits allocated to her in the decree of dissolution of her marriage to Michael Quijada (Husband), relying primarily upon Koelsch v. Koelsch, 148 Ariz. 176 (1986). Although Koelsch provides guidance on how to equitably divide retirement benefits at dissolution, it does not authorize a post-judgment alteration to the spouses' agreed-upon distribution. Additionally, where the non-employee-spouse agrees that the community-property portion of retirement benefits will be paid upon distribution to the employee-spouse in a consent decree and stipulated domestic relations order (DRO), the employee-spouse's decision to work past initial retirement eligibility does not justify relief from the agreement under Arizona Rule of Family Law Procedure 85(b)(6).[1] We therefore affirm the order denying Wife's request.

         ¶2 Husband cross-appeals the order denying his request for an award of attorneys' fees pursuant to Arizona Revised Statutes (A.R.S.) § 25-324(A). Because the court did not abuse its discretion, we affirm the order denying fees.

         FACTS AND PROCEDURAL HISTORY

         ¶3 In September 2009, the parties' eleven-year marriage was dissolved via consent decree.[2] In the decree, the parties agreed to divide the community-property portion of Husband's pension with the Arizona Public Safety Retirement System (APSRS) pursuant to a separate DRO. The DRO, which was signed by both parties and entered the same day as the decree, awarded Wife "as sole and separate property a pro-rata share of [Husband]'s pension [p]ayable directly by the System at the same time and in the same manner payments are made to [Husband]." By its terms, the DRO may be amended "only for the purpose of establishing or maintaining its acceptance to [APSRS] and to supervise the payment of retirement benefits as provided in the Order." Neither party appealed from entry of the decree or DRO.

         ¶4 Although Husband became eligible to retire in late 2014, he continues to work and contribute to APSRS and plans to do so through at least 2024. In October 2016, Wife petitioned to "enforce" the division of retirement benefits, arguing Husband's decision to delay his retirement impermissibly "blocked [her] from accessing her sole and separate property" and that she was entitled to immediate and direct compensation for that deprivation. After a three-day evidentiary hearing, the family court denied Wife's request and ordered the parties to bear their own attorneys' fees and costs. Both parties timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2).

         DISCUSSION

         I. Modification of Decree

         ¶5 The interpretation of an existing decree or court order presents a question of law reviewed de novo. See Cohen v. Frey, 215 Ariz. 62, 66, ¶ 10 (App. 2007) (citing Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13 (App. 2001)). Here, the DRO states that Wife will receive her share of the pension paid "by the System at the same time and in the same manner payments are made to [Husband]." And, the DRO can be modified only to facilitate these terms. Wife nonetheless argues that an employee-spouse who chooses to work past initial retirement eligibility is required, as a matter of equity, to indemnify the non-employee-spouse for the loss of his or her share of otherwise-available retirement benefits. Wife's contention, which essentially calls for a de facto modification of the otherwise unambiguous decree and DRO, is inconsistent with Arizona law.

         ¶6 When the division of assets is based upon an agreement of the parties, "entry of the decree shall thereafter preclude the modification of the terms of the decree and the property settlement agreement, if any, set forth or incorporated by reference." A.R.S. § 25-317(F). Although a spouse may challenge the method and mechanism by which retirement benefits are valued and divided on appeal, see A.R.S. § 25-325(A) ("A decree of dissolution of marriage . . . is final when entered, subject to the right of appeal."), neither party did so here. Accordingly, the terms of the decree and DRO are not subject to post-judgment modification unless the court is satisfied relief is warranted pursuant to Arizona Rule of Family Law Procedure 85(b).[3]See A.R.S. ยง 25-327(A) ("The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the ...


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