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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

           FRANCENE LAVERNE VINCENT, Petitioner/Appellee,

                                         v.

           PATRICK JUDE SHANOVICH, Respondent/Appellant.

                            No. 1 CA-CV 16-0431 FC
                                 FILED 9-25-2018


            Appeal from the Superior Court in Maricopa County
                             DR2000-095278
               The Honorable Stephen M. Hopkins, Judge

                       VACATED AND REMANDED


                                    COUNSEL

The Harrian Law Firm P.L.C., Glendale
By Daniel S. Riley
Counsel for Respondent/Appellant

Popp Law Firm, P.L.C., Tempe
By James S. Osborn Popp
Counsel for Petitioner/Appellee
                         VINCENT v. SHANOVICH
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Kenton D. Jones joined.


B R O W N, Judge:

¶1            Patrick Shanovich appeals the superior court’s order denying
his motion to set aside a Qualified Domestic Relations Order (“QDRO”)
because of an alleged clerical mistake and a judgment awarding attorneys’
fees to his former spouse Francene Vincent. For lack of appellate
jurisdiction, we previously dismissed his appeal of the order denying his
motion to set aside the QDRO and vacated the judgment awarding fees.
Vincent v. Shanovich, 1 CA-CV 16-0431 FC, 2017 WL 1174317, at *1, ¶ 1 (Ariz.
App. Mar. 30, 2017) (mem. decision). The Arizona Supreme Court granted
Shanovich’s petition to review the appellate jurisdiction issue and held that
an order granting or denying a motion to correct clerical mistakes, filed
pursuant to Arizona Rule of Family Law Procedure (“Rule”) 85(A), is
appealable under Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(2). Vincent v. Shanovich, 243 Ariz. 269, 270, ¶ 1 (2017). The
supreme court directed us to consider the merits of the order denying his
motion to set aside the QDRO. Vincent, 243 Ariz. at 270, ¶ 13. For the
following reasons, we vacate that order and remand for entry of an
amended QDRO.

                              BACKGROUND

¶2             Vincent petitioned to dissolve her marriage to Shanovich on
August 25, 2000, effectuating service that same day, and the parties
divorced in 2002. The Decree awarded Vincent “a one-half (1/2) portion of
[Shanovich]’s retirement including employer contribution and accrued
interest as of the date of filing the Petition for Dissolution,” to be reflected
in “a [QDRO] stating such provisions.”

¶3            In March 2004, Vincent moved for the entry of a stipulated
QDRO “Re: Arizona [State] Personnel Retirement System [(“ASRS”)] and
City of Mesa Deferred Compensation Plan.” The motion explained that the
QDRO was intended to divide deferred compensation benefits “due in
accordance with the terms and conditions of the Decree.” The parties do
not dispute that the QDRO entered by the superior court in April 2004 was


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                          VINCENT v. SHANOVICH
                            Decision of the Court

the stipulated QDRO they submitted. The QDRO stated it (1) was
“intended to meet the requirements of an ‘Acceptable Domestic Relations
Order’” relating to ASRS and (2) was “an integral part” of the Decree. The
QDRO provided that Vincent was “awarded 50% of [Shanovich]’s annuity,
payable at the time and in the manner payments are made to the member
pursuant to the retirement benefit elected.” Unlike the Decree, however,
the QDRO did not specify the relevant valuation date for that award.

¶4            Years later, when nearing retirement, Shanovich allegedly
learned that the ASRS pension plan administrator “interpreted the [QDRO]
as awarding [Vincent] one-half of the entire retirement benefit—including
the portion of the benefit [Shanovich] has accrued since the parties’
divorce.” In March 2016, Shanovich filed a motion to set aside the QDRO
under Rule 85, alternatively asserting it contained a clerical mistake under
Rule 85(A) (because it did not include the valuation date specified in the
Decree) and was void. The motion attached a six-page proposed Amended
QDRO, which included the August 25, 2000 valuation date, but also
included several provisions that were not part of the original QDRO.

¶5            In response, Vincent acknowledged that the Decree awarded
her one-half of Shanovich’s retirement assets as of the date of filing the
petition for dissolution. She did not assert she was entitled to any more of
Shanovich’s retirement than the Decree awarded to her, but nonetheless
maintained that the motion failed to establish a clerical mistake. She
explained that several months earlier, she had informed Shanovich that she
opposed modifying the QDRO because she considered it to have been
entered correctly, it was untimely, and “she did not want to forfeit the
survivor and estate-payment provisions in the existing order.”

¶6            The superior court denied Shanovich’s motion to set aside,
reasoning in part that the Decree and the QDRO are unambiguous and were
never appealed. Shanovich timely appealed that order.1 We have appellate

1      Shanovich also appealed the superior court’s judgment awarding
$6,213.75 in attorneys’ fees and costs to Vincent. In our prior memorandum
decision, we vacated the award of attorneys’ fees and that issue was not
addressed by the Arizona Supreme Court. To the extent that ruling on
attorneys’ fees is not the law of this case, see Ezell v. Quon, 224 Ariz. 532, 536,
¶ 14 (App. 2010), we reaffirm it. As to the superior court’s award of costs
in the amount of $3.75, we affirm that award because Shanovich failed to
argue such costs were not appropriately awarded to Vincent as the
successful party under A.R.S. § 12-341. Finally, although the superior court



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                           Decision of the Court

jurisdiction pursuant to A.R.S. § 12-2101(A)(2). See Vincent, 243 Ariz. at 272,
¶ 12.

                               DISCUSSION

       A.     Clerical Mistake

¶7              Shanovich argues the superior court erred in concluding the
discrepancy between the Decree and the QDRO was not a clerical mistake.
We review a ruling on a motion for clerical mistake under Rule 85 for an
abuse of discretion. See Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012)
(addressing a motion to set aside judgment pursuant to Rule 85(C)); see also
Ariz. R. Fam. L.P. 85(A) (“Clerical mistakes . . . may be corrected by the
court. . . .”). We review de novo the interpretation of a decree. See Cohen v.
Frey, 215 Ariz. 62, 66, ¶ 10 (App. 2007) (citation omitted).

¶8               “Clerical mistakes in judgments, orders, or other parts of the
record and errors therein arising from oversight or omission may be
corrected by the court at any time of its own initiative or on motion of any
party and after such notice, if any, as the court orders.” Ariz. R. Fam. L.P.
85(A). A clerical mistake “occurs when the written judgment fails to
accurately set forth the court’s decision[,]” while “[a] judgmental error
occurs when the court’s decision is accurately set forth but is legally
incorrect.” Vincent, 243 Ariz. at 271, ¶ 8 (citing Ace Auto. Prods., Inc. v. Van
Duyne, 156 Ariz. 140, 142–43 (App. 1987) (addressing Ariz. R. Civ. P. 60(a),
which, at the time, was textually identical to Rule 85(A)). When considering
an alleged clerical mistake, “the family court should examine the record to
determine whether the judgment accurately recorded the court’s intent. If
not, the judgment should be corrected.” Id. (citation omitted). The
judgment at issue “must be construed in light of the situation of the court,
what was before it, and the accompanying circumstances. In cases of
ambiguity or doubt[,] the meaning of the judgment must be determined by
that which preceded it and that which it was intended to execute.” Benson
v. State ex rel. Eyman, 108 Ariz. 513, 515 (1972) (quoting Paxton v. McDonald,
72 Ariz. 378, 382 (1951)).

¶9            The Decree, which directs division of Shanovich’s retirement
“as of the date of filing the Petition for Dissolution” (which also was the
date of service), is in accord with Arizona law that only community
property as of the time of service of a petition for dissolution is subject to


awarded Vincent an additional $510 in attorneys’ fees, that ruling is not
challenged on appeal.


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                           Decision of the Court

distribution in a decree. See A.R.S. §§ 25-211(A)(2), -213(B), -318(A).
Additionally, other portions of the QDRO, including those addressing the
consequences of Shanovich’s withdrawal or death, use August 25, 2000 as
the valuation date, making clear the valuation date is tied to the amount of
Vincent’s benefit as of the petition’s filing date. Moreover, the supreme
court’s instruction on remand was for us to “consider whether the QDRO
accurately reflects the family court’s intent expressed in the [Decree] to
award Vincent a one-half portion of Shanovich’s retirement ‘as of the date
of filing the Petition for Dissolution.’” Vincent, 243 Ariz. at 272, ¶ 13.

¶10             Given this express directive, the unambiguous language of
the Decree, and other provisions in the QDRO, the QDRO is not complete
in that it failed to make clear that Shanovich’s retirement is to be divided as
of the petition’s filing date. Because the QDRO does not accurately reflect
the Decree, the QDRO contains a clerical mistake. See Ariz. R. Fam. L.P.
85(A) (noting clerical mistakes include those “arising from oversight or
omission”); accord Vincent, 243 Ariz. at 271, ¶ 8 (explaining a clerical mistake
“is inadvertent and may be a misstatement or an omission”). It was error
not to correct that clerical mistake. We therefore vacate the order denying
Shanovich’s motion to set aside the QDRO and remand for entry of an
amended QDRO directing the division of Shanovich’s retirement benefits
as of August 25, 2000.

       B.     Attorneys’ Fees On Appeal.

¶11           Both parties request attorneys’ fees incurred on appeal
pursuant to Rule 31, which authorizes the sanctions against an attorney or
party who advances a position that is not well-grounded in fact or made in
good faith. Because neither party has shown that the other asserted such
arguments on appeal, their requests are denied. Vincent also requests an
award of attorneys’ fees on appeal pursuant to A.R.S. § 25-324(A). Given
the lack of evidence regarding the financial positions of the parties, and
because Shanovich has shown that a clerical mistake occurred, we deny
Vincent’s request. As the successful party on appeal, Shanovich is awarded
his costs on appeal, subject to his compliance with Arizona Rule of Civil
Appellate Procedure 21.




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                      VINCENT v. SHANOVICH
                        Decision of the Court

                             CONCLUSION

¶12            The superior court’s order denying Shanovich’s motion to
correct the clerical mistake in the QDRO is vacated. The case is remanded
for entry of an amended QDRO that matches the Decree by directing the
division of Shanovich’s retirement benefits as of August 25, 2000.




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




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