                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                             In re the Marriage of:

                 ROSALINE A. OLADE, Petitioner/Appellee,

                                        v.

                   MOSES OLADE, Respondent/Appellant.

                             No. 1 CA-CV 13-0296
                              FILED 10-09-2014


           Appeal from the Superior Court in Maricopa County
                          No. DR1996-000441
                 The Honorable David J. Palmer, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                   COUNSEL

Singer Pistiner, P.C., Phoenix
By Robert S. Singer
Counsel for Petitioner/Appellee

Nirenstein Garnice PLLC, Scottsdale
By Victor A. Garnice
Counsel for Respondent/Appellant
                               OLADE v. OLADE
                              Decision of the Court



                         MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding
Judge Andrew W. Gould and Judge Jon W. Thompson joined.


S W A N N, Judge:

¶1           This family court case concerns a postdecree reapportionment of
community property. We discern no error in the reapportionment itself, but
conclude that the qualified domestic relations order (“QDRO”) used to effect the
reapportionment impermissibly reaches property beyond the court’s jurisdiction.
We therefore affirm the reapportionment, but vacate the QDRO and remand for
further proceedings.

                    FACTS AND PROCEDURAL HISTORY

¶2             Husband and Wife married in 1971. In 1996, Wife served Husband
with a petition for dissolution of the marriage. The following year, the court
entered a decree of dissolution. In the decree, Husband and Wife stipulated to
place a community-property rental property in Nigeria (“the Nigeria Property”)
into trust for their children subject to a life estate in Husband’s mother.

¶3             Husband’s mother died in 2004. In 2010, Wife filed a petition for
contempt and modification of the decree, alleging that Husband had blocked
efforts to transfer the Nigeria Property to the parties’ children, and had retained
all rental income from the property since his mother’s death. Wife requested that
the decree be modified to award her a portion of Husband’s Arizona State
Retirement System (“ASRS”) account, previously awarded to Husband as
separate property, to offset his retention of the Nigeria Property.

¶4            After an evidentiary hearing, the superior court entered a judgment
granting most of the relief that Wife requested, including her request to modify
the decree. The court awarded the Nigeria Property to Husband as his separate
property and awarded $66,666 to Wife as one-half of the value of the property.
The court ordered that to the extent this award did not exceed one-half of the
value of the community portion of Husband’s ASRS account, the award was to
be paid from that account via a QDRO, with Wife free to pursue all other actions
necessary for collection.




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                                OLADE v. OLADE
                               Decision of the Court

¶5            The court eventually entered a QDRO that ordered 66 months of
$1,000 payments from Husband’s ASRS account. Husband appeals from the
court’s order denying his motion for relief from the QDRO.

                                 JURISDICTION

¶6              Wife contends that we lack jurisdiction over this appeal because
(1) it raises the same questions as an earlier appeal from the judgment that we
dismissed as premature, and (2) the ruling on the motion from which this appeal
is taken was in fact a ruling on a motion for reconsideration. We conclude that
we have jurisdiction.

¶7            To be sure, this appeal raises some of the same issues that were
previously raised in the appeal from the judgment. And it is generally true that
an appeal from a post-judgment order must raise different issues. In re Marriage
of Dorman, 198 Ariz. 298, 300, ¶ 3, 9 P.3d 329, 331 (App. 2000). But the right to
appeal from an order granting or denying a motion to set aside a judgment
under ARFLP 85(C) is unqualified. See M & M Auto Storage Pool, Inc. v. Chem.
Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App. 1990) (stating
without qualification that an order granting or denying a motion to set aside a
judgment under Ariz. R. Civ. P. 60(c) is appealable as a special order made after
final judgment); Cmt., ARFLP 1 (providing that where the language of the family
rules is substantially the same as the language of other statewide rules, case law
interpreting that language is applicable). Husband’s motion for relief from the
QDRO argued that the judgment was void and should be set aside under ARFLP
85(C)(1)(d). The denial of this motion was appealable. We have jurisdiction
under A.R.S. § 12-2101(A)(2), and we are not precluded from considering issues
previously argued in Husband’s dismissed appeal because we did not decide
that appeal on its merits. See Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223, ¶ 9,
62 P.3d 966, 968 (App. 2003) (holding that collateral estoppel requires, among
other things, a final decision on the merits).

                                  DISCUSSION

¶8            Husband contends that the award in Wife’s favor was a money
judgment and that the QDRO was unlawfully used as a judgment-execution
device to reach exempt property. He further contends that the QDRO
improperly set forth payment terms that bore no relation to the community’s
interest in the retirement account. We hold that the judgment and the use of a
QDRO were proper, but conclude that the QDRO’s payment terms
impermissibly reach property beyond the superior court’s jurisdiction.




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                               OLADE v. OLADE
                              Decision of the Court

I.    THE COURT PROPERLY AWARDED WIFE ONE-HALF OF THE VALUE
      OF THE NIGERIA PROPERTY.

¶9            The decree of dissolution incorporated the parties’ agreement to
forgo equitable division of the Nigeria Property and instead transfer the property
to their children. After the decree was entered, Husband acted to prevent that
transfer.1 This frustrated the purpose of Wife’s release of her rights to the
property, and disrupted the decree’s equitable division of the parties’
community property. In these circumstances, it was within the court’s discretion
to reopen the decree under ARFLP 85(C)(1)(f). See Birt v. Birt, 208 Ariz. 546, 551-
52, ¶¶ 22-26, 96 P.3d 544, 549-50 (App. 2004) (holding that superior court erred
by refusing to reopen dissolution decree under Ariz. R. Civ. P. 60(c)(6) when
Husband’s postdecree discharge in bankruptcy made decree’s distribution of
community debts inequitable).

¶10           The court had jurisdiction to determine that the Nigeria Property
was community property. Noble v. Noble, 26 Ariz. App. 89, 92, 546 P.2d 358, 361
(1976).    Moreover, the court had broad discretion to reapportion other
community assets to restore an equitable division in view of Husband’s refusal to
relinquish the Nigeria Property. See A.R.S. § 25-318(A), (C); Boncoskey v.
Boncoskey, 216 Ariz. 448, 451, ¶ 13, 167 P.3d 705, 708 (App. 2007). Such a
reapportionment was possible here because even though many years had passed
since the parties’ divorce, an identifiable source of community property
remained in Husband’s ASRS account. Cf. Danielson v. Evans, 201 Ariz. 401, 410,
¶ 32, 36 P.3d 749, 758 (App. 2001) (holding that reallocation in view of husband’s
reduction in retirement benefits, of which wife had been awarded a percentage,
was infeasible because it would be difficult or impossible to identify, trace, and
locate parties’ community property eight years after their divorce). The court
acted within its discretion under A.R.S. § 25-318 to award Wife an equalization
payment from the community interest in the ASRS account, and properly
directed that a QDRO be used to effect the payment, see 29 U.S.C. § 1056(d)(3)(B).
Further, the court had authority to order a money judgment against Husband to
the extent that the reallocated community property from the account did not
restore an equitable division. See Martin v. Martin, 156 Ariz. 452, 458, 752 P.2d
1038, 1044 (1988).




1      We must assume that the record supports the superior court’s findings
because Husband failed to provide us with a transcript of the evidentiary
hearing on Wife’s petition for contempt and modification of the decree. See Baker
v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).



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                                 OLADE v. OLADE
                                Decision of the Court

II.    THE PAYMENT TERMS SET FORTH BY THE QDRO EXCEEDED THE
       COMMUNITY PROPERTY AWARDED TO WIFE.

¶11          Before issuing this decision, we entered an order under ARCAP 9.1
asking the superior court to determine whether the payment terms set forth by
the QDRO could be satisfied by the portion of the ASRS account awarded to
Wife. After considering the parties’ arguments and evidence, the court answered
that question in the negative. The court’s finding is well-supported. The
evidence shows that the marital community contributed to the account for only
about five years, resulting in community contributions far less than the total
payment contemplated by the QDRO.

¶12           The court had authority to order payment from the ASRS account
only to the extent of the community interest in the account -- and the terms of the
judgment further limited the payment to one-half of the community interest. See
A.R.S. § 25-318(A). The court had no authority to order payment from the
separate-property portion of the account, though it did have authority to enter
the judgment. See id.; Profitt v. Profitt, 105 Ariz. 222, 224, 462 P.2d 391, 393 (1969).
Under the QDRO’s payment schedule, one-half of the community interest in the
account was exhausted after the QDRO went into effect. We therefore vacate the
QDRO and remand for further proceedings.

¶13            On remand, the court may determine that reallocation of the entire
community interest in the ASRS account is appropriate, and it may also
reallocate other identifiable community assets to Wife. See A.R.S. § 25-318(A),
(C); Boncoskey, 216 Ariz. at 451, ¶ 13, 167 P.3d at 708. In addition, Wife may
pursue any legally available actions to collect on the portion of the judgment not
satisfied by reallocated community property.

                                   CONCLUSION

¶14           For the reasons set forth above, we affirm the superior court’s
refusal to set aside its judgment, but we vacate the QDRO and remand for
further proceedings consistent with this decision. In exercise of our discretion,
we deny both parties’ requests for attorney’s fees and costs on appeal.




                                       :gsh


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