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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   DANIELLE SCHOTT, Petitioner/Appellee,

                                         v.

                  RICHARD SCHOTT, Respondent/Appellant.

                            No. 1 CA-CV 14-0685 FC
                                 FILED 3-15-2016


            Appeal from the Superior Court in Maricopa County
                           No. FC2012-051988
                The Honorable Suzanne E. Cohen, Judge

                                   AFFIRMED


                                    COUNSEL

The Harrian Law Firm, PLC, Glendale
By Daniel S. Riley
Counsel for Petitioner/Appellee

Stewart & Lane, PLC, Phoenix
By Dianne N. Sullivan
Counsel for Respondent/Appellant
                          SCHOTT v. SCHOTT
                          Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Michael J. Brown joined.


J O N E S, Judge:

¶1            Richard Schott (Husband) appeals the family court’s order
increasing his spousal maintenance obligation to Danielle Schott (Wife).
For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           Husband and Wife were divorced by consent decree in July
2013. The decree memorialized an agreement reached at a settlement
conference regarding the payment of spousal maintenance as follows:

      Q. Spousal Maintenance: Husband shall pay spousal
      maintenance to Wife in the amount of [sic] equal to $3,000.00
      minus court ordered child support. Based on the child
      support calculation, Husband is to pay Wife $1,100.00 per
      month for child support and $1,900.00 for spousal
      maintenance beginning the first day of the month following
      the close of escrow of the home. Spousal maintenance is non-
      modifiable in duration but modifiable as to amount. Wife
      shall receive $3000/month in support from child support and
      spousal maintenance for six years beginning with the first day
      of the first month after the marital residence is sold.

Thereafter, Husband commenced payments of $3,000 per month.

¶3            In April 2014, Husband filed a petition to decrease his child
support obligation to account for the emancipation of the parties’ oldest
child. In response, Wife agreed child support should be reduced but
counter-petitioned for a corresponding increase in spousal maintenance so
the total monthly support payment remained $3,000 “in accordance with
the terms of the Consent Decree.” Husband objected to the increase in
spousal maintenance, arguing “it was never the intention that upon
emancipation of any child, that [Wife] would continue to receive a total of
$3000 per month until termination of the duration of the obligation.”



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                           Decision of the Court

¶4            An evidentiary hearing was held in August 2014. At that
time, the parties stipulated to the admission of various correspondence
between their attorneys regarding the language of the spousal maintenance
provision included in the decree, as well as the transcript of the settlement
conference. Husband argued the consent decree was ambiguous, but the
extraneous documents illustrated the parties did not agree to a fixed sum
of spousal maintenance for the full six years. The trial court, however,
found the decree unambiguously provided Wife would receive $3,000 per
month in combined support payments and declined to review any parol
evidence in support of Husband’s contention.

¶5            The family court ultimately entered an order decreasing
Husband’s monthly child support obligation to $830, increasing his
monthly spousal maintenance obligation to $2,170, and awarding Wife her
attorneys’ fees. Husband timely appealed. We have jurisdiction pursuant
to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1)1 and
-2101(A)(2). See In re Marriage of Dorman, 198 Ariz. 298, 300, ¶¶ 3-4 (App.
2000) (holding an order modifying custody from that specified in the
dissolution decree is appealable as a special order after a final judgment).

                               DISCUSSION

¶6            Husband argues the trial court erred in refusing to consider
extrinsic evidence of the parties’ intent when it interpreted the spousal
maintenance provision contained within Subparagraph Q of the decree.2
The application of the parol evidence rule is a question of law which we
review de novo. See Terry v. Gaslight Square Assocs., 182 Ariz. 365, 368 (App.
1994).



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

2       Wife urges us to review only for fundamental error, arguing
Husband failed to properly preserve the issue in the trial court. The record
reflects Husband requested the court review extrinsic evidence regarding
the parties’ intent to assist in interpreting the spousal maintenance
provisions of the decree on several occasions, including within his
pleadings and the parties’ pretrial statement. Husband’s position is clearly
articulated within the record, and we conclude this is sufficient to preserve
the issue for appeal.




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                             Decision of the Court

¶7            Parol evidence is generally admissible to determine the intent
of the parties where contract language is “reasonably susceptible” to the
interpretation advanced by the proponent of the evidence. Johnson v.
Earnhardt’s Gilbert Dodge, Inc., 212 Ariz. 381, 384, ¶ 12 (2006) (quoting Taylor
v. State Farm Mut. Auto. Ins., 175 Ariz. 148, 154 (1993)). A divorce decree,
however, is not a contract; it is a judgment. See Ariz. R. Civ. P. 54(a)
(defining “judgment” to include “a decree and an order from which an
appeal lies”); Craig v. Craig, 227 Ariz. 105, 106, ¶ 6 (2011) (noting a
dissolution decree is a final, appealable judgment) (citing A.R.S. § 12-
2101(B)). Even when based upon consent, the prior agreement of the parties
“‘is superseded by the decree, and the obligations imposed are not those
imposed by contract, but are those imposed by [the] decree.’”3 LaPrade v.
LaPrade, 189 Ariz. 243, 247 (1997) (quoting Glassford v. Glassford, 76 Ariz. 220,
226 (1953)).

¶8             Furthermore, our supreme court has held “the parol evidence
rule, a rule of substantive contract law, does not apply to a judgment.” In
re Marriage of Zale, 193 Ariz. 246, 250, ¶ 15 (1999); see also Simpson v. Superior
Court, 87 Ariz. 350, 356 (1960) (“[W]here a court has the general power to
modify a decree for alimony or support, the exercise of that power is not
affected by the fact that the decree is based on an agreement entered into
by the parties to the action.”) (internal quotation and citations omitted). The
rule has no application to a decree, which “exists as 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.” Zale,
193 Ariz. at 249, ¶ 11 (citing United States v. 60.22 Acres of Land, 638 F.2d
1176, 1178 (9th Cir. 1980)). Indeed, “[t]o apply the rule to a judgment . . .

3       We note a prior agreement retains its contractual nature if it is
incorporated, rather than merged, into the decree. Chopin v. Chopin, 224
Ariz. 425, 427, ¶ 6 (App. 2010) (“Generally, when a spousal maintenance
agreement is merged into the decree of dissolution, the agreement becomes
part of the decree. . . . However, when a spousal maintenance agreement is
incorporated into the decree . . . the spousal maintenance agreement retains
its independent contractual status and is governed by principles of contract
law.”) (citing LaPrade v. LaPrade, 189 Ariz. 243, 247 (1997)). Neither party
here argues the agreement regarding spousal maintenance was
incorporated, rather than merged, into the decree, and the record does not
suggest this to be the case. The spousal maintenance provision is simply
contained within the body of the decree. In contrast, the parties attached
their parenting plan and expressly “incorporated [it] by reference,” clearly
evidencing their ability to incorporate an agreement had they desired to do
so.

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                            Decision of the Court

would make the court nothing more than another party to a contract, thus
undermining the integrity of the judicial process and the authority of the
court to resolve disputes.” Id. at ¶ 10.

¶9              Although the family court declined to consider extraneous
evidence for the wrong reason — concluding parol evidence was
inadmissible because Subparagraph Q was unambiguous, see United Cal.
Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 268 (1983) (noting “‘no rule
is better settled than that parol evidence is inadmissible to vary or control
the plain and unambiguous terms of a written contract’”) (quoting Indus.
Comm’n v. Ariz. Power Co., 37 Ariz. 425, 436 (1931)) — it nonetheless reached
the correct result, and we find no error, see Parkinson v. Guadalupe Pub. Safety
Ret. Local Bd., 214 Ariz. 274, 277, ¶ 12 (App. 2007) (“We will affirm the
superior court if its ruling was ‘correct for any reason, even if that reason
was not considered’ by the court.”) (quoting Glaze v. Marcus, 151 Ariz. 538,
540 (App. 1986)).

¶10           Husband also argues the trial court abused its discretion in
failing to “interpret the provision in question against the drafter of the
Decree” — whom he asserts to be Wife. See, e.g., Abrams v. Horizon Corp.,
137 Ariz. 73, 79 (1983) (noting the existence of a “preference to construe
ambiguities against the drafter”) (citing Restatement (Second) of Contracts
§ 206, and cmt. a (1979)). However, as noted, the decree of dissolution is
not a contract but a judgment. And, although the trial court accepted the
language proposed by the parties, upon execution, the drafter of the
judgment became the court rather than Wife. Thus, the rule that
ambiguities in contracts be construed against the drafter has no meaningful
application in the context of a divorce decree. Cf. Zale, 193 Ariz. at 249,
¶ 10.

                               CONCLUSION

¶11           Husband does not dispute on appeal that, in the absence of
extrinsic evidence regarding the parties’ intent and the context of the
settlement, the decree unambiguously awards Wife the aggregate sum of
$3,000 per month for child support and spousal maintenance. The trial
court’s orders modifying these amounts are thereby affirmed.




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                           SCHOTT v. SCHOTT
                           Decision of the Court

¶12          Both parties request attorneys’ fees and costs on appeal
pursuant to A.R.S. § 25-324. After considering the parties’ relative financial
resources and the reasonableness of the parties’ positions, see A.R.S. § 25-
324(A), we award Wife her reasonable attorneys’ fees and costs on appeal
upon compliance with ARCAP 21(b).




                                   :ama




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