                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 re the Matter of:

                   JUNE M. MCCLURE, Petitioner/Appellee,

                                         v.

                  ROY E. MCCLURE, Respondent/Appellant.

                            No. 1 CA-CV 14-0782 FC
                                FILED 4-21-2016


            Appeal from the Superior Court in Maricopa County
                           No. FN2006-001680
                The Honorable Susan M. Brnovich, Judge

                                   AFFIRMED


                                    COUNSEL

Steven G. Clark PC, Phoenix
By Steven G. Clark
Counsel for Petitioner/Appellee

Law Office of Patricia A. Hubbard, Phoenix
By Patricia A. Hubbard
Co-Counsel for Respondent/Appellant

Michael S. Reeves, Attorney at Law, Phoenix
By Michael S. Reeves
Co-Counsel for Respondent/Appellant
                        MCCLURE v. MCCLURE
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.


T H U M M A, Judge:

¶1            Appellant Roy E. McClure (Husband) appeals the superior
court’s order directing him to pay appellee June M. McClure (Wife)
$158,000 for unpaid rent. Because Husband has shown no error, the order
is affirmed.

                FACTS AND PROCEDURAL HISTORY

¶2            When Husband and Wife divorced in 2009, the court entered
a consent decree awarding Wife commercial property consisting of land
and a building (the Property). At that time, the building was occupied by
the parties’ business, Action Motor Sports (AMS). Wife waived all interest
in AMS, and the decree provided that Husband had a two-year lease for the
Property, paying Wife $7,000 per month the first year and $12,000 per
month the second year.

¶3            In 2014, Wife filed a petition to enforce the decree and hold
Husband in contempt for his failure to make the monthly payments.
Husband argued AMS (not Husband) was obligated to make the payments
and AMS’ bankruptcy filing days after the entry of the decree ended that
obligation. Husband also argued Wife failed to mitigate because she did not
lease the Property to others, and that laches precluded Wife’s claim because
she knew in August 2009 that Husband had stopped paying rent.

¶4           After an evidentiary hearing, the court ruled the decree
obligated Husband to make the payments, meaning AMS’ bankruptcy did
not alter that obligation. Rejecting Husband’s mitigation and laches
arguments, the court then ordered Husband to pay Wife the remaining
unpaid payments totaling $158,000.




                                     2
                         MCCLURE v. MCCLURE
                          Decision of the Court

¶5           From Husband’s timely appeal, this court has jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1) (2016).1

                               DISCUSSION

¶6             Husband argues the superior court erred as a matter of law
by ruling Wife had no duty to mitigate. This court reviews de novo the
interpretation of a decree, applying the general rules of construction for any
written instrument. Cohen v. Frey, 215 Ariz. 62, 66 ¶¶ 10-11 (App. 2007). The
first inquiry is whether the decree is ambiguous when construed according
to the natural and legal import of its language. Id.

¶7            After awarding the Property to Wife, the decree provides:

              Wife waives all interest in the businesses of
              Northern Auto and [AMS]. However, Wife is
              the owner of the [P]roperty that [AMS] sits
              upon. As such, the parties agree that Husband
              shall have a two year lease with Wife as the
              landlord under the following rents:

                     For the first year, Husband shall
                     pay $7,000.00 per month for rent.

                     For year two, Husband shall pay
                     $12,000.00 per month for rent.

                     Wife shall be responsible for the
                     property taxes.

              Furthermore, Husband shall have the first
              option to purchase the [P]roperty. Said
              purchase shall be for the fair market value with
              an appraisal done by an appraiser of Wife’s
              choice.



1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated. The order Husband
appeals from is not one for contempt as Wife asserts, but an appealable
special order after final judgment. See In re Marriage of Dorman, 198 Ariz.
298, 300 ¶ 3 (App. 2000) (noting order relating to enforcement of judgment
may be appealable as special order after judgment).

                                      3
                         MCCLURE v. MCCLURE
                          Decision of the Court

¶8            The decree does not require Wife to mitigate damages caused
by Husband’s failure to make the required monthly payments. It is
therefore not ambiguous and not subject to more than one reasonable
interpretation regarding that topic. In re Marriage of Johnson and Gravino, 231
Ariz. 228, 233 ¶ 16 (App. 2012) (“A decree is ambiguous only when [its
language] can reasonably be construed to have more than one meaning.”)
(citation omitted).

¶9             Husband asserts the decree created a commercial lease
relationship, thereby imposing an implied obligation to use reasonable
efforts to mitigate damages. See Dushoff v. Phoenix Co., 22 Ariz. App. 445,
449 (1974) (“We hold that in a commercial lease transaction, if the tenant
abandons the premises, the landlord is under a duty to make reasonable
efforts to rent it at a fair rental.”). The language of the decree, however, is
not reasonably susceptible to imposing a mitigation requirement or
creating a commercial lease relationship with corresponding obligations as
landlord and tenant. There is, for example, no suggestion that the rights and
duties in the decree could be assigned and delegated, as with a commercial
lease. Moreover, a properly-entered decree is not a contract but, rather, “an
independent resolution by the court of the issues before it and rightfully is
regarded in that context and not according to the negotiated intent of the
parties.” In re Marriage of Zale, 193 Ariz. 246, 249 ¶ 11 (1999). Husband cites
no authority for the proposition that these decree obligations are
accompanied by obligations implied in a commercial lease. In short, as
applicable here, a divorce decree is not the same as a commercial lease for
real estate. Because the decree did not expressly impose a mitigation
obligation and did constitute a commercial lease, and because the parties
never entered into a commercial lease for the Property, the superior court
did not err in rejecting Husband’s mitigation argument.

¶10            The superior court did not specifically address laches, but
necessarily rejected the defense by ruling in Wife’s favor. Husband has not
shown this was an abuse of discretion. See Rash v. Town of Mammoth, 233
Ariz. 577, 583 ¶ 17 (App. 2013). Laches bars an action only when the
plaintiff’s lack of diligence causes prejudice to the defendant. Meyer v.
Warner, 104 Ariz. 44, 47 (1968) (citation omitted). Husband did not assert
any such prejudice, and his failure to provide a transcript of the evidentiary
hearing requires this court to presume the evidence received supports the
superior court’s ruling. Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).




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                       MCCLURE v. MCCLURE
                        Decision of the Court

                           CONCLUSION

¶11            Because Husband has shown no error, the superior court’s
order is affirmed.




                                :ama




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