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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