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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    TRACEY STONE, Petitioner/Appellant,

                                         v.

               DAVID VAN STONE, JR., Respondent/Appellee.

                            No. 1 CA-CV 16-0178 FC
                                 FILED 9-28-2017


            Appeal from the Superior Court in Maricopa County
                           No. FN2015-000278
               The Honorable Katherine M. Cooper, Judge

                  VACATED IN PART AND REMANDED


                                    COUNSEL

Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire, Megan Lankford
Co-Counsel for Petitioner/Appellant

Paula J. Burnstein, PC, Phoenix
By Paula J. Burnstein
Co-Counsel for Petitioner/Appellant
                            STONE v. STONE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.


B R O W N, Judge:

¶1            Tracey Stone ("Wife") appeals the superior court's decree of
dissolution ending her marriage to David Van Stone, Jr. ("Husband"). For
the following reasons, we vacate portions of the decree and remand for the
court to determine if the parties' settlement agreement was fair and
equitable and whether either party should be awarded attorney's fees.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The parties married in 2013, divorced in 2016, and have no
children together. During the marriage, the parties established a bar and
grill restaurant ("Bar"). After Wife petitioned for dissolution, the Arizona
Department of Liquor Licenses and Control cancelled the Bar's liquor
permit, and the Bar closed.1

¶3              Early in the dissolution proceedings, the parties agreed to
participate in private mediation. At the mediation, the parties signed a
written agreement ("Agreement") pursuant to Arizona Rule of Family Law
Procedure ("Rule") 69. The Agreement awarded Wife all the assets and
liabilities associated with the Bar and directed her to make an equalization
payment of $85,000 to Husband "in lieu of spousal maintenance."

¶4           Four days after the mediation, Wife moved to challenge the
Agreement, alleging, inter alia, that she signed the Agreement under
duress.2 Husband filed a counter-motion to adopt the Agreement. The
superior court scheduled a "status conference," stating it would "hear oral
argument and take evidence" regarding the parties' motions.


1       The Bar was operating under an interim permit pending review of
its liquor license application.

2      After retaining counsel, Wife moved to amend her motion to
challenge the Agreement, which the superior court granted.



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¶5           At the status conference, Wife's counsel moved to admit
documentary evidence but the superior court did not allow it. Instead, the
court directed counsel to explain the legal basis for setting aside the
Agreement.      Husband, however, was permitted to offer unsworn
"testimony" regarding the Bar and his allegation that Wife had "wasted"
business assets.

¶6            Thereafter, the court denied Wife's motion and granted
Husband's counter-motion, concluding Wife failed to "present admissible
evidence that the Agreement 'does not constitute an equitable distribution
of the community assets.'" Without taking evidence, the court concluded
that (1) the Bar was profitable, (2) Wife sold the liquor license for $75,000,
(3) Wife "spent $105,000 from the business funds on personal expenses," and
(4) Wife "appropriated $22,000 from business liquor sales." Finally, the
court concluded that "[b]ased on counsels' avowals of what the evidence
would show, the Court finds the Agreement to be fair and equitable under
the circumstances."

¶7            Thereafter, Wife moved to amend pursuant to Rule 83, which
the superior court denied. The court then entered a decree of dissolution
adopting the parties' Agreement, and in a separate judgment awarded
attorney's fees to Husband in the amount of $2,050. Wife timely appealed.

                                DISCUSSION

¶8                We review the superior court's distribution of marital
property for an abuse of discretion. See Sharp v. Sharp, 179 Ariz. 205, 209
(App. 1994). "An abuse of discretion exists when the trial court commits an
error of law in the process of exercising its discretion." Fuentes v. Fuentes,
209 Ariz. 51, 56, ¶ 23 (App. 2004). An abuse of discretion also exists when
"the record, viewed in the light most favorable to upholding the trial court's
decision, is devoid of competent evidence" to support the court's decision.
Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (citation and quotation omitted).

¶9              In a dissolution proceeding, the parties may settle all property
rights by agreement between themselves and, "in the absence of fraud or
undue influence, such an agreement is binding upon the parties." Keller v.
Keller, 137 Ariz. 447, 448 (App. 1983); see also Ariz. R. Fam. Law P. 69(A)
(providing that an agreement between the parties shall be valid and
binding if it is in writing or if the terms of the agreement are set forth on the
record before the court). An agreement is binding on the superior court
unless the court finds it to be "unfair":




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                            Decision of the Court

       In a proceeding for dissolution of marriage or for legal
       separation, the terms of the separation agreement, except
       those providing for the support, custody and parenting time
       of children, are binding on the court unless it finds, after
       considering the economic circumstances of the parties and
       any other relevant evidence produced by the parties, on their own
       motion or on request of the court, that the separation agreement is
       unfair.

Ariz. Rev. Stat. ("A.R.S.") § 25–317(B) (emphasis added). Under Arizona
Revised Statutes ("A.R.S.") section 25–317(B), the court has a duty to
independently determine whether the agreement is fair and equitable
before incorporating it into the decree and to consider all "relevant evidence
produced by the parties" in doing so. A.R.S. § 25–317(B); Sharp, 179 Ariz. at
211.

¶10           In Sharp, the parties signed a settlement agreement providing
for the distribution of community property. See 179 Ariz. at 207. The
husband then filed a motion for summary judgment/motion to enforce,
asking the court to incorporate the agreement into a final order. Id. at 208.
The wife opposed the motion, asserting the agreement "was unfair and the
result of undue influence and overbearing tactics" by the husband. Id. The
superior court granted the husband's motion and entered a decree finding
that the agreement was "not unfair." Id.

¶11          On appeal, this court reversed and remanded for further
proceedings:

       [I]n this case there were plainly disputed facts on the question
       of the fairness of the agreement, and the court was presented
       no evidence as to the extent of the community assets.
       Although the dissolution decree states that the parties'
       agreements are not unfair, neither the decree nor the court's
       minute entry granting summary judgment contains any basis on
       which the court could have made such a determination and, indeed,
       there is no evidence in the record on which such a conclusion could
       be based.

Id. at 210 (emphasis added).

¶12          Here, Wife argues the superior court abused its discretion in
finding the Agreement fair and equitable because the record does not
include any evidence supporting the court’s finding. She also asserts the



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                            Decision of the Court

court "was required to independently determine the fairness of the
Agreement."3

¶13           The Agreement awarded Wife the Bar along with its
associated assets and liabilities. In return, Wife was required to make "an
equalization in the amount of $85,000" to Husband that was purportedly
"in lieu of spousal maintenance." The superior court had an obligation to
independently determine whether these provisions were fair and equitable
before incorporating them into the decree. See Sharp, 179 Ariz. at 210. In
making that determination, the court was required to consider "the
economic circumstances of the parties and any other relevant evidence
produced by the parties" concerning those disputed facts. A.R.S. § 25–
317(B).

¶14           The record here does not include sufficient evidence to
support the superior court's finding that the Agreement was "fair and
equitable." Although the court's ruling relied on certain alleged facts that it
characterized as "undisputed," including that (1) the Bar was profitable, (2)
Wife spent "$105,000 from the business funds on personal expenses," and
(3) Wife "appropriated $22,000 from business liquor sales," Wife alleged
conflicting facts. Therefore, it was incumbent on the court to consider any
relevant evidence produced by the parties.

¶15           As the party challenging the Rule 69 Agreement, Wife bore
the burden of proving a defect in the Agreement. See Ariz. R. Fam. Law P.
69(B). The superior court, however, failed to provide Wife an opportunity
to satisfy her burden. At the status conference, Wife attempted to offer
documentary evidence, but the court refused its admission.4 Moreover,
although the court permitted Husband to offer unsworn testimony, it did
not provide Wife the same opportunity. Rather than allowing the parties
to introduce evidence, the court based its decision on the "avowals made by
counsel." See Volk v. Brame, 235 Ariz. 462, 464, ¶ 1 (App. 2014) ("We hold
that when the resolution of an issue before the court requires an assessment

3      Husband did not file an answering brief, and we could treat his
failure as a confession of reversible error. In the exercise of our discretion,
we elect to decide this case on the merits of the issues Mother has raised on
appeal. See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).

4      Approximately two weeks before the status conference, Wife hand-
delivered ten exhibits to the court, which she intended to introduce at the
status conference.



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                            Decision of the Court

of credibility, the court must afford the parties an opportunity to present
sworn oral testimony, and may not rely solely on avowals of counsel.").

¶16          In sum, the record is devoid of competent evidence to support
the award of the Bar to Wife and the corresponding equalization payment
to Husband. Therefore, the superior court had an insufficient basis on
which to determine that the Agreement was fair and equitable.5

¶17           Wife also requests that we vacate the superior court's attorney
fee's award to Husband and award her attorney's fees on appeal under
A.R.S. § 25–324(A). In ordering Wife to pay Husband the attorney's fees he
incurred in litigating Wife's challenge to the Agreement, the court found
that Wife acted unreasonably by submitting her motions to set aside the
Agreement. Because the court erred in rejecting Wife's challenge without
conducting an evidentiary hearing, we vacate the $2,050 fee award.
Pending the ultimate outcome of these proceedings on remand, the court
shall reconsider whether a fees award to either party is appropriate,
including fees incurred by Wife in successfully pursuing this appeal.




5       We further note that the decree directed Wife to make an
equalization payment to Husband "in lieu of spousal maintenance." In In
re Marriage of Foster, 125 Ariz. 208, 211 (App. 1980), this court held that the
superior court abused its discretion by awarding one spouse a greater share
of the community property in lieu of spousal maintenance.




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                           Decision of the Court

                              CONCLUSION

¶18            For the foregoing reasons, we vacate paragraphs two and
eight of the decree of dissolution, and the attorney's fees award to Husband.
We remand for an evidentiary hearing to allow the court to independently
determine whether the parties' Agreement is fair and equitable.6 As the
prevailing party on appeal, Wife is entitled to an award of costs upon
compliance with Arizona Rule of Civil Appellate Procedure 21.




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




6      We recognize that neither A.R.S. § 25–317(B) nor our holding in Sharp
explicitly require the superior court to hold an evidentiary hearing in all
cases. If the record has sufficient evidence from which the court can
determine whether a settlement agreement is fair and equitable, an
evidentiary hearing may not be necessary. Here, the record reveals no such
evidence.


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