                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                                 In the Matter of:

                           Robert A. Grove, Deceased.


                     KATHY QUAM, Petitioner/Appellant,

                                         v.

                  THERESA J. GROVE, Respondent/Appellee.

                              No. 1 CA-CV 14-0786
                                FILED 10-25-2016


            Appeal from the Superior Court in Maricopa County
                           No. PB2013-000616
               The Honorable Brian S. Rees, Commissioner

                                   AFFIRMED


                                    COUNSEL

Law Office of Fredrick M. Jones, Phoenix
By Fredrick M. Jones
Counsel for Petitioner/Appellant

Mark E. Hall P.C., Scottsdale
By Mark E. Hall, Richard F. Faerber
Counsel for Respondent/Appellee
                             QUAM v. GROVE
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.


J O N E S, Judge:

¶1           Kathy Quam appeals the superior court’s order determining
that Theresa Grove shall remain the beneficiary of Robert Grove’s life
insurance policy and retain a one-half interest in his pension benefits. For
the following reasons, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2            The superior court dissolved Theresa and Robert Grove’s
twenty-one-year marriage by consent decree on September 6, 2013. As
relevant here, the decree provided that both parties waive any interest in
the other’s retirement, deferred compensation, or pension accounts.
However, the parties’ settlement agreement, which the court expressly
incorporated into the decree, stated that Robert and Theresa would evenly
divide Robert’s Arizona State Retirement System pension benefits. The
settlement agreement also awarded the marital residence to Robert and
directed that he refinance the existing mortgage to remove Theresa as a
mortgagee within forty-eight months. Theresa and Robert agreed to keep
each other as beneficiaries of their existing life insurance policies until the
refinance was completed.

¶3            Robert died two weeks after the dissolution. Theresa filed an
application for informal probate of Robert’s will, and the superior court
appointed her personal representative of his estate. Quam, Robert’s sister,
petitioned the court to remove Theresa as personal representative, alleging
her nomination as Robert’s personal representative was revoked under



1      We view the facts in the light most favorable to upholding the
superior court’s decision. See Estate of Blake v. Benza, 120 Ariz. 552, 553 (App.
1978) (citing Lane Title & Tr. Co. v. Brannan, 103 Ariz. 272, 279 (1968), and
Muccilli v. Huff’s Boys’ Store, Inc., 12 Ariz. App. 584, 586 (1970)).




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                            QUAM v. GROVE
                           Decision of the Court

Arizona Revised Statutes (A.R.S.) section 14-2804(A)(1)(c)2 because she and
Robert had divorced. Theresa opposed the removal and argued she was an
appropriate personal representative because she was the primary
beneficiary of Robert’s estate and an obligor on the residence.

¶4            At the evidentiary hearing on the petition, the superior court
also considered Quam’s argument that Arizona law prohibited Theresa
from receiving Robert’s life insurance or pension benefits because Robert
did not re-designate Theresa as a beneficiary of those funds after the
divorce. Theresa responded that she remained the beneficiary of Robert’s
life insurance and pension benefits because a beneficiary designation is not
revoked under Arizona law when a court order, such as the consent decree
here, expressly states otherwise. Theresa also presented evidence to
support her argument that she was entitled to collect additional monies
from the estate because Robert committed fraud when negotiating the
marital settlement agreement by misrepresenting the value of his life
insurance policy.

¶5            After taking the matter under advisement, the superior court
terminated Theresa’s appointment as personal representative and
appointed Quam as the successor personal representative of Robert’s estate.
However, the court determined Theresa remained a beneficiary of the life
insurance and pension benefits because the consent decree, read as a whole,
provided that she would continue as beneficiary after the dissolution.3
Quam timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(9).

                              DISCUSSION

I.    Theresa’s Testimony Regarding Negotiations with Robert

¶6            Quam first contends the superior court erred by admitting
Theresa’s testimony regarding her negotiations with Robert that led to the
marital settlement agreement in violation of A.R.S. § 12-2251. We will not
disturb a ruling on the exclusion or admission of evidence “unless a clear


2     Absent material changes from the relevant date, we cite a statute’s
current version.

3      Quam states in her opening brief that the superior court ordered that
Theresa was entitled to one-half of Robert’s life insurance proceeds. The
order actually stated Theresa was entitled to one-half of Robert’s pension
benefit and the entirety of the life insurance proceeds.


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                            QUAM v. GROVE
                           Decision of the Court

abuse of discretion or legal error appears and prejudice results.” E.g.,
Bogard v. Cannon & Wendt Elec. Co., 221 Ariz. 325, 332, ¶ 20 (App. 2009)
(citing Selby v. Savard, 134 Ariz. 222, 227 (1982), and Brown v. U.S. Fid. &
Guar. Co., 194 Ariz. 85, 88, ¶ 7 (App. 1998)).

¶7            Commonly referred to as Arizona’s “deadman’s statute,”
A.R.S. § 12-2251, provides in relevant part:

      In an action by or against personal representatives . . . in
      which judgment may be given for or against them as such,
      neither party shall be allowed to testify against the other as to
      any transaction with or statement by the testator, intestate or
      ward unless called to testify thereto by the opposite party, or
      required to testify thereto by the court. The provisions of this
      section shall extend to and include all actions by or against
      the heirs, devisees, legatees or legal representatives of a
      decedent arising out of any transaction with the decedent.

Testimony regarding prior transactions with a decedent is admissible “only
in the trial court’s discretion to prevent an injustice or where there is
independent evidence to corroborate the statement or transaction.” Estate
of Calligaro v. Owen, 159 Ariz. 498, 503 (App. 1988) (citing In re Estate of
Mustonen, 130 Ariz. 283, 284 (App. 1981), and Mahan v. First Nat’l Bank of
Ariz., 139 Ariz. 138, 140 (App. 1984)).

¶8             Here, the superior court allowed Theresa to testify that she
had agreed to waive her claim for spousal maintenance so Robert would
have sufficient funds to pay his life insurance premiums, but Robert did not
inform her that one of his two life insurance policies had lapsed due to non-
payment. The certified legal document preparer who drafted the parties’
marital settlement agreement partially corroborated Theresa’s testimony,
and, moreover, the court had discretion to admit this evidence to prevent
injustice occasioned by fraud in the execution of that agreement. See
Calligaro, 159 Ariz. at 503.

¶9            Furthermore, any error in the admission of this evidence
would be harmless because the superior court explained it would not
consider the extrinsic evidence when interpreting the consent decree, see In
re Marriage of Zale, 193 Ariz. 246, 249-50, ¶¶ 10-11, 14 (1999) (stating
a consent decree, as a final judgment, is “an independent resolution by the
court of the issues before it” and applying the parol evidence rule
constitutes an “impermissible collateral attack”), and, ultimately, rejected




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                              QUAM v. GROVE
                             Decision of the Court

Theresa’s claim that Robert committed fraud in the negotiation of the
marital settlement agreement.

¶10          Quam has not demonstrated any abuse of discretion or
prejudice from the admission of Theresa’s testimony regarding her
negotiations with Robert, and we find no error.

II.    Subject Matter Jurisdiction

¶11           Quam also argues the superior court did not have jurisdiction
to adjudicate the parties’ rights to the life insurance proceeds because those
monies were not estate assets.4 See, e.g., Jones v. Sailes (In re Estate of Jones),
10 Ariz. App. 480, 482 (1969) (“Where the estate of the decedent is not the
designated beneficiary the proceeds of a life insurance policy do not become
a part of the estate of the insured and a beneficiary under an insurance
policy takes by virtue of the contract of insurance rather than by the laws of
succession.”) (citations omitted). Subject matter jurisdiction is a question of
law that we review de novo. E.g., In re Marriage of Crawford, 180 Ariz. 324,
326 (App. 1994) (citations omitted).

¶12           The superior court of Arizona is a single unified court of
general jurisdiction. Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 102 (1995).
As our supreme court has noted, though the superior court may designate
a probate department, this is simply an administrative classification that
does not affect the probate court’s status as a court of general jurisdiction
or the superior court’s jurisdiction over probate matters. Id. at 100, 102.
Accordingly, the superior court had jurisdiction to consider all claims
related to the administration of Robert’s estate. Id. at 102 (“[T]here is no
probate court apart from the superior court and no subject matter
jurisdictional bar to the ability of a superior court judge to hear both a
probate matter and a civil action connected with it.”).

                                CONCLUSION

¶13            For the foregoing reasons, we affirm.


4      Quam also challenges the merits of the superior court’s ruling,
arguing that the consent decree did not incorporate the parties’ marital
settlement agreement and therefore did not satisfy the “court order”
requirement of A.R.S. § 14-2804. Although the record reflects otherwise, we
decline to consider this argument because Quam first raised it in her reply
brief. See Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007) (citing
Muchesko v. Muchesko, 191 Ariz. 265, 268 (App. 1997)).


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                             QUAM v. GROVE
                            Decision of the Court

¶14           Theresa requests an award of attorneys’ fees and costs
incurred in the superior court and on appeal pursuant to A.R.S. § 14-3720
(“If any personal representative or person nominated as personal
representative defends or prosecutes any proceeding in good faith, whether
successful or not he is entitled to receive from the estate his necessary
expenses and disbursements including reasonable attorneys’ fees
incurred.”). We find the litigation was initiated against Theresa while
serving as Robert’s personal representative. In this capacity, she was
entitled to defend against Quam’s related claims that she was ineligible to
serve as personal representative or take non-probate assets, both in the
superior court and on appeal. Theresa is thereby awarded her reasonable
attorneys’ fees incurred in the superior court and on appeal. The fees
awarded on appeal are limited to those related to the preparation of her
appellate briefs. Additionally, as the successful party, Theresa is entitled to
costs incurred on appeal upon compliance with ARCAP 21.




                          AMY M. WOOD • Clerk of the Court
                           FILED: AA




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