IN RE: the Matter of: PAMELA ROBERTSON (2025)

OPINION

¶1 In this dissolution matter, Pamela Robertson (“Wife”) challenges the superior court's refusal to enforce a separation agreement, its allocation of community-property furniture without an offset, and its order reimbursing Wayne Petz (“Husband”) for post-petition mortgage payments. We partly vacate and remand because the court misapplied the law about the separation agreement and ordered reimbursement payments on an inadequate record. We affirm the remainder of the decree, including the court's furniture division, without an offset because Wife failed to offer valuation evidence for the personal property.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Wife married in late 2016. Wife served a dissolution petition in mid-2022.

¶3 During the marriage, Wife contributed $140,000 of her separate funds toward purchasing a Montana home, covering most of the down payment. She executed a “Gift Letter” stating she was giving the $140,000 to Husband as a gift. Husband then bought the home in his name. He immediately transferred the home to himself and Wife as joint tenants with rights of survivorship. Some months later, the pair transferred the home equally to their respective trusts, subject to all existing conditions and terms.

¶4 On April 16, 2018, before the couple bought the home using the gift letter, Wife emailed Husband an agreement (“Agreement”) that he signed and had notarized. The Agreement stated that Wife gave Husband $235,000 to “cover[ ] all debts owed to [Husband],” including $140,000 for the down payment on the Montana home and $50,000 for improvements to the home. The Agreement explained that Husband and Wife planned “as a married couple to purchase a new home,” but Wife could not “be [a] part of financial loans or paperwork for purchase of this home due to credit issues.” The Agreement recited that Wife “will be gifting [Husband] $140000.00 ․ as a down payment,” but “[t]he gift letter required by [the] mortgage broker that [Wife] signed is null and void and monies would be due to her.” The Agreement specified: “[I]f this marriage dissolves I agree that [Wife] would be owed the 140000$ down payment 25000$ for remodel and half of any equity gains” on the home. The Agreement noted that if Wife died, the same amounts would pass to specified children upon Husband's sale of the home or his death.

¶5 Wife sought to enforce the Agreement in the dissolution proceedings. Husband countered that the Agreement was not an enforceable contract. He testified that he found the Agreement “a little hard to follow.” Still, he believed it meant Wife would be owed $165,000 (the sum of $140,000 and $25,000), “and then that would be the only—the last and final thing of the marriage; that would be the absolute settlement; she would walk away with that; and I would keep what was there”—i.e., Wife would not receive spousal maintenance or share in his retirement benefits. He alternately testified that based on the parties’ discussions, he believed the Agreement would only operate until he added Wife's name to the Montana home's title.

¶6 In the decree, the superior court found the Agreement invalid because “[t]here was no meeting of the minds,” “the entire document is incomprehensible and unenforceable,” the document was “inconsistent and vague,” and it was “important ․ that Wife did not sign the agreement.” Accepting Husband's testimony that he used $127,000 of his separate funds to improve the Montana home and pay off a loan on Wife's vehicle, the court determined that “[i]t would be inequitable under these circumstances not to recognize all of Husband's contributions to the Montana home through the inconsistent and vague e-mail Wife drafted.” The court awarded the Montana home and its contents to Husband and the parties’ Arizona home and its contents to Wife. Although the court found that Husband paid the mortgage on the Montana home after Wife served the dissolution petition, it made no orders for reimbursement.

¶7 Husband moved to amend the decree to include reimbursement for the post-petition mortgage payments. The court granted reimbursement despite Wife's objection. Wife appealed. We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 12–2101(A)(1).

DISCUSSION

A. The Superior Court Erroneously Found the Agreement Invalid and Misconstrued the Law Permitting Non-Enforcement.

¶8 Spouses may contract prospectively to divide their property if a divorce occurs. Sowards v. Sowards, 255 Ariz. 527, 530, ¶ 12 (2023). We review the interpretation of a separation agreement de novo. Id. at ¶ 8. Here, we conclude that the superior court erred in finding the Agreement invalid and misapplied the law permitting non-enforcement.

1. The Agreement Is Valid.

¶9 The superior court erred by invalidating the Agreement as “incomprehensible,” “inconsistent,” and “vague.” Like other contracts, valid agreements between spouses must be “given a reasonable construction so as to accomplish the intention of the parties.” Harris v. Harris, 195 Ariz. 559, 562, ¶ 15 (App. 1999). Such contracts must “be read in light of the parties’ intentions as reflected by their language and in view of all circumstances; if the intention of the parties is clear from such a reading, there is no ambiguity.” Id. The “[p]arties must mutually assent to all material terms, but need not have worked out all the basic terms of the agreement.” Ertl v. Ertl, 252 Ariz. 308, 312, ¶ 12 (App. 2021) (citation omitted).

¶10 Mere disagreement about an agreement's meaning does not create ambiguity. In re Estate of Lamparella, 210 Ariz. 246, 250, ¶ 21 (App. 2005). Ambiguity exists only when the contract language is reasonably susceptible to multiple meanings. Id. Agreements must be read as a whole “to bring harmony, if possible, between all parts of the writing,” with specific provisions qualifying the meaning of general ones. ELM Retirement Ctr., LP v. Callaway, 226 Ariz. 287, 291, ¶ 18 (App. 2010) (citation omitted); McCulloch v. Parker, 257 Ariz. 195, 207, ¶ 41 (App. 2024) (In determining the intent of the parties, courts “look to the plain meaning of the words as viewed in the context of the contract as a whole.”).

¶11 First, the superior court erred by relying on Wife's lack of signature to invalidate the Agreement. Under the current version of Arizona Rule of Family Law Procedure (“Rule”) 69, the parties or counsel must sign written separation agreements for property division (either manually or electronically). See A.R.S. §§ 44-7007, 25-317(A). But Rule 69 did not require signatures for a valid contract at the Agreement's creation. See Ariz. R. Fam. L.P. 69 (2018). Although the amended Rule 69 applies to all actions “filed on or after January 1, 2019,” there is an exception “to the extent that the court in an affected action determines that applying the amended rule would be infeasible or work an injustice, in which event the former rule or procedure applies.” Ariz. Sup. Ct. Order R-17-0054. Applying the current Rule 69 signature requirement, which was not a requirement in 2018 when the Agreement was entered, would work an injustice. See Halt v. Gama, 238 Ariz. 352, 356, ¶ 17 (App. 2015). On this record, Wife's failure to sign the Agreement she drafted did not invalidate it under Rule 69.¹

¶12 The Agreement is imperfectly styled. But it is not incomprehensible or internally irreconcilable, and its terms make its intent clear. Husband argues the Agreement solely concerns debt repayment because its initial sentences state that Wife's $235,000 transfer “covers all debts owed to [Husband].” He ignores the Agreement's more specific provisions stating that along with covering the debts, the transfer was part of the parties’ “plans ․ as a married couple to purchase a new home.” The Agreement outlines the plan's parameters, explaining that Wife's “gifting” of $140,000 to Husband via a “gift letter required by [the] mortgage broker” was a mutually agreed-to pretense. The Agreement then concludes with unambiguous directions that upon a divorce, Wife would receive $140,000, half of the $50,000 improvement payment, and half of the home's equity gains.

¶13 Husband testified that although he found the Agreement “a little hard to follow,” he understood the $165,000 repayment term. Although he qualified that he believed the payment would be an “absolute settlement” of any claims to spousal maintenance or his retirement benefits, nothing in the Agreement supports that qualification. Nor does the Agreement support Husband's alternate testimony that the contract was to terminate once he added Wife to the property title (an act also not mentioned by the Agreement but not inherently inconsistent with it).

¶14 Upon de novo review, we determine the Agreement is not invalid for want of a signature under Rule 69 or ambiguity. It is, instead, an enforceable separation agreement.

2. The Court Misconstrued the Law Permitting it to Decline Enforcement.

¶15 A superior court may decline to enforce a separation agreement under A.R.S. § 25-317. Section 25-317(B) provides that a separation agreement about property division is “binding on the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties ․ that the separation agreement is unfair.” If the court finds the agreement unfair, “it may request the parties to submit a revised separation agreement or may make orders for the disposition of property.” A.R.S. § 25-317(C). But without a finding of unfairness by the court, it must enforce the agreement. A.R.S. § 25-317(D).

¶16 Here, when addressing the Agreement's enforceability, the superior court found “[i]t would be inequitable under these circumstances not to recognize all of Husband's [separate-property] contributions to the Montana house.” But under A.R.S. § 25-317(B), the court had to consider not whether the Agreement was inequitable but whether it was unfair. Meek v. Meek, 256 Ariz. 405, 410, ¶ 21 (App. 2023). “While often what is fair will also be equitable, it is plausible that a separation agreement could be inequitable or unequal, but not ‘unfair’ under the specific facts of a case.” Buckholtz v. Buckholtz, 246 Ariz. 126, 131, ¶ 18 (App. 2019). The court had to assess the fairness of the Agreement at the time of its formation. Meek, 256 Ariz. at 413, ¶ 41. The court erred by refusing to enforce the Agreement based on purported inequity created by later events.²

¶17 Because the Agreement was valid and the superior court misconstrued the law permitting it to decline enforcement, we vacate the portion of the decree that disregards the Agreement. We remand for the court to consider whether to enforce the Agreement under the correct standard for A.R.S. § 25-317(B).³

B. The Superior Court Acted Within its Discretion in Allocating the Community Furniture and Furnishings.

¶18 Wife next contends the superior court erred by awarding the Montana and Arizona homes’ community-property furniture and furnishings without valuing those items and determining an appropriate offset. We review a court's valuation of assets for an abuse of discretion, viewing the facts in the light most favorable to upholding the court's decision. Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9 (App. 2012).

¶19 The court found that its award tracked the parties’ pretrial statements. Pretrial statements control the course of the litigation through their “detailed and concise statements of contested issues of fact and law.” Ariz. R. Fam. L.P. 76.1(g); see also Leathers v. Leathers, 216 Ariz. 374, 378, ¶ 19 (App. 2007) (“The pretrial statement controls the subsequent course of the litigation.” (quotation omitted)). Here, both parties agreed in their pretrial statements that Husband would take the furniture and furnishings from their Montana home, and Wife would take the same from their Arizona home. But Wife's pretrial statement also requested an equalization payment because Husband “will be receiving the majority of physical items.” Thus, Wife correctly placed the issue of the furniture's values before the court.

¶20 The court addressed the valuation issue and correctly found that neither party provided sufficient evidence about the specific furnishings of each home and the estimated values. Wife only provided information about the value of items in the homes as a summary list, which the court noted was “more demonstrative than anything else.”⁴ Wife did not testify about or otherwise provide evidence to support her claimed values, either at the trial or in her post-trial memorandum. And although Husband prepared a responsive list, the court did not admit it, and he also provided no independent evidence about the personal property values awarded to each spouse. Wife's list, standing alone, would not permit the court to value the furniture and furnishings. See 29A Am. Jur. 2d Evidence § 933 (“Demonstrative evidence has no probative value in itself” and “must be sufficiently explanatory or illustrative of relevant testimony to be of potential help to the trier of fact.”). And because the list lacked probative value, we reject Wife's attempt to establish waiver based on Husband's alleged failure to counter her values (which we cannot confirm).

¶21 On this record, Wife has not shown that the court abused its discretion by allocating the furniture and furnishings consistent with the parties’ agreement without equalization.

C. The Superior Court Erroneously Ordered Reimbursement on an Inadequate Record.

¶22 Wife contends the superior court erred by granting Husband's motion to amend the decree to credit him for making post-petition mortgage payments on the Montana home. We review rulings on motions to amend for an abuse of discretion but review the characterization of property de novo. Stock v. Stock, 250 Ariz. 352, 354, ¶ 5 (App. 2020).

¶23 Wife first argues that Husband waived his right to reimbursement because he did not request the credit until after the court issued the decree. To be sure, a court can find that an issue raised for the first time in a post-decree petition is waived. Medlin v. Medlin, 194 Ariz. 306, 308, ¶ 6 (App. 1999). But such waiver is a discretionary doctrine, Noriega v. Town of Miami, 243 Ariz. 320, 326, ¶ 27 (App. 2017), which is “jurisprudential, not jurisdictional,” Marianne N. v. Dep't of Child Safety, 243 Ariz. 53, 56, ¶ 13 (2017). Regardless of waiver, a court may accept an invitation to revisit a judgment when justice requires. See King v. Superior Court, 138 Ariz. 147, 151-52 (1983) (A court has broad discretion in considering a motion for a new trial under the civil rules, and “[i]f [the court] realizes that an erroneous ruling has been made, [it] must act to prevent a miscarriage of justice ․ and order a new trial.”(quotation omitted)); Walter v. F.J. Simmons, 169 Ariz. 229, 235-36 (App. 1991) (Although the appellants waived or invited the jury's award of unproved consequential damages, the court acted within its discretion to order remittitur under the civil rules given that the court possibly caused jury confusion by resubmitting verdict forms.); Ariz. R. Fam. L.P. 83 committee comment (2018) (The family-law rule for post-judgment relief is based on the civil rule.).

¶24 Here, the court acted within its discretion to address the reimbursement question post-judgment. Although Husband did not specifically request reimbursement for the mortgage payments before or during the trial, he made the fact of the payments a part of the trial. He asserted in his pretrial statement that he “solely pays” the mortgage. Then, he testified at trial that Wife has never, and he has always, paid the mortgage on the Montana home. Apparently recognizing the import of that testimony, the court found in its decree that Husband had been paying the mortgage since June 2022, the month after the petition's service. But the court failed to define the legal consequence of the post-petition payments. On this record, the court acted within its discretion to consider the effect of its findings rather than applying a waiver.

¶25 We hold, however, that the court ordered reimbursement on an inadequate record. Because the marital community terminates upon service of a dissolution petition, a spouse's post-petition expenditures to preserve a shared asset are reimbursable, absent clear and convincing evidence that he or she intended to make a gift. See Bobrow v. Bobrow, 241 Ariz. 592, 596-97, ¶¶ 15, 19–20 (App. 2017). But for the Bobrow rule to apply, the spouse seeking reimbursement must show that he or she used separate funds. See id. at ¶¶ 19-20; Ferrill v. Ferrill, 253 Ariz. 393, 397, ¶ 13 (App. 2022). And if the party seeking reimbursement shows the use of separate funds, the other spouse may be entitled to an offset if he or she was ousted from the relevant property. Ferrill, 253 Ariz. at 396, ¶ 11.

¶26 Husband testified that he made post-petition mortgage payments but did not specify whether he used his separate funds. He argues that his use of separate funds was proved by his checking-account records plus his testimony that the parties maintained “separate bank accounts.” The record does not support the court's order.

¶27 Husband showed only one post-petition mortgage payment. Moreover, according to Husband's filings in superior court, the account he used for the mortgage payments was “the same account where [he] deposited his earnings”—including earnings during the marriage. His pre-dissolution earnings were community property. See A.R.S. § 25-211; Kelly v. Kelly, 198 Ariz. 307, 308, ¶ 4 (2000). Thus, although the account he used to pay the mortgage may have been “separate” in terms of title and control, the funds in it may have been partially community property.

¶28 The superior court erred by ordering reimbursement on this record. We vacate that order. We remand for further proceedings to allow the court to make an evidence-based decision about whether Husband used his separate funds to pay the mortgage to Wife's benefit. If Husband makes the showing, the court must also determine whether the evidence supports Wife's argument for an offset based on ouster. Contrary to the court's finding, Wife sufficiently raised ouster in her response to the amendment motion.

CONCLUSION

¶29 We vacate and remand in part for further proceedings consistent with this opinion. We affirm the remainder of the decree. Per our discretion, we deny the parties’ competing requests for attorney's fees and costs on appeal under A.R.S. § 25-324.

FOOTNOTES

1.   The Agreement was also not subject to the statute of frauds, and even if it were, that statute only requires the signature of the party against whom enforcement is sought. See A.R.S. § 44-101; Passey v. Great W. Assocs. II, 174 Ariz. 420, 424-25 (App. 1993). And Husband, the party against whom enforcement is sought, signed the agreement.

2.   We also note the court mischaracterized these later events. The court found Husband used proceeds from the sale of his separate-property Oregon home to purchase the Montana home. This was inconsistent not only with Husband's testimony that he used the sales proceeds to upgrade (not purchase) the Montana home, but also with the transfer records showing the Montana purchase predated the Oregon sale. Whether the use of the Oregon home sale proceeds created an equitable lien on the property may be raised on remand.

3.   Contrary to Wife's argument, Husband did not waive A.R.S. § 25-317(B) by inadequate pleading. Consistent with Rule 24(b)(1)(B), Husband identified “unfairness” as an enforcement defense in response to Wife's general allegation about a “written agreement” for a “loan[ ].” His failure to allege competing facts under Rule 24(b)(2) was not fatal to preserving the defense. See Ariz. R. Fam. L.P. 24(d) (“Pleadings must be construed so as to do substantial justice.”).

4.   Husband objected that the list, admitted as Wife's Exhibit 75, was not disclosed until the day before trial—unquestionably late under Yuma Superior Court Local Rule 6(E). He did not specifically claim late disclosure for the substantially similar list admitted as Wife's Exhibit 6, but stated he had not responded to it because he “didn't see it.”

McMURDIE, Judge: