                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                       KENNETH S. BOBROW,
                            Petitioner,

                                   v.

               THE HONORABLE MICHAEL HERROD,
    Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA,
        in and for the County of MARICOPA, Respondent Judge,

                        PAM CASE BOBROW,
                         Real Party in Interest.


                         No. 1 CA-SA 15-0280
                          FILED 2-4-2016


 Petition for Special Action from the Superior Court in Maricopa County
                            No. FN2013-004259
                 The Honorable Michael J. Herrod, Judge

            JURISDICTION ACCEPTED; RELIEF DENIED


                               COUNSEL

Fennemore Craig, PC, Phoenix
By Alexander R. Arpad
Counsel for Petitioner

Dickinson Wright, PLLC, Phoenix
By Steven D. Wolfson, Anne L. Tiffen
Counsel for Real Party in Interest
                 BOBROW v. HON. HERROD/BOBROW
                       Opinion of the Court



                                OPINION

Presiding Judge Patricia A. Orozco delivered the opinion of the Court, in
which Judge Maurice Portley and Judge Donn Kessler joined.


O R O Z C O, Judge:

¶1            Kenneth Bobrow (Husband) seeks special action relief from
family court orders requiring that he post a supersedeas bond for $1,303,414
pending his appeal of a decree of dissolution. For the following reasons,
we accept jurisdiction, and deny relief.

                FACTS AND PROCEDURAL HISTORY

¶2             This special action arises from the June 2014 decree of
dissolution (Decree) between Husband and Pam Case Bobrow (Wife). The
Decree awarded Wife $1,174,072.90, plus interest for her marital interest in
a house in Snowmass, Colorado (Snowmass Home), pursuant to the parties’
premarital agreement. The Decree ordered that Husband make a written
election1 to either pay Wife the full amount in a lump sum or follow a ten-
year payment plan. Under the payment plan, Husband would make an
initial cash payment of $370,658.90 and execute a ten-year promissory note
to Wife for the balance of the amount due, plus interest. The Decree also
awarded Wife $129,341.10 as reimbursement for “ordinary and necessary”
living expenses paid by Wife during the parties’ marriage.

¶3             Husband filed an appeal and subsequently a Motion to Set
Amount of Supersedeas Bond. He requested that the bond be set in the
amount to be reimbursed to Wife for living expenses, plus eighteen
monthly payments under the payment plan option, including offsets, for a
total of $541,792.40.

¶4            Wife filed a Cross-Motion for Clarification of the Decree
regarding whether Husband timely elected the ten-year payment plan or
the lump sum option. Unaware that this issue remained pending, the
family court ruled on Husband’s Motion to Set Amount of Supersedeas
Bond, stating:


1     The Decree required Husband to make his written election within
seven days.


                                     2
                 BOBROW v. HON. HERROD/BOBROW
                       Opinion of the Court

      [T]he “total damages” which Rule 7(a),[]Ariz. R. Civ. App.
      Pro. [c]ontemplates for purposes of setting a Supersedeas
      Bond is $1,303,414.00. In calculating this amount, the Court
      uses the total amount Husband would be required to pay
      under [the lump sum option for the Snowmass Home] and
      does not determine whether Husband is entitled to any offsets
      for payments he made which are not addressed in the
      Decree.2

¶5            Subsequently, the family court ruled on the still-pending
Cross-Motion for Clarification of the Decree. The court imposed the ten-
year payment plan and ordered Husband to pay Wife the initial cash
payment of $370,658.90 and to execute a ten-year promissory note for the
balance, including interest. In light of that order, Husband filed a Motion
to Clarify and Correct Supersedeas Bond Amount. He proposed that the
supersedeas bond should be in the amount of $585,125.78.3 The court
denied Husband’s proposal, reaffirming the prior bond amount and
stating:

      [Husband] proposes to bond the $370,658.90 [initial cash
      payment], and commence paying the monthly payments
      under the ten year payment plan.

      Contrary to [Husband’s] argument, the total amount of
      damages awarded is $1,174,072.90. The purpose of the bond
      is to protect [Wife] from a change in financial condition of
      [Husband] pending appeal, and to assure that the total
      amount of damages will be available if [Husband] does not
      prevail on appeal. The execution of a promissory note is not
      the same as providing bond. [Husband’s] promise to pay on
      a monthly basis is not assured by the execution of the note
      and is not the equivalent of a bond.

                                    ...




2      The $1,303,414 supersedeas bond is the total value of the Snowmass
Home ($1,174,072.90) plus the living expenses awarded to Wife
($129,341.10).
3    This figure was the initial cash payment of $370,658.90, plus interest,
and Wife’s $129,341.10 reimbursement for living expenses, plus interest.


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                  BOBROW v. HON. HERROD/BOBROW
                        Opinion of the Court

       IT IS ORDERED affirming the Court’s prior order setting the
       bond amount.

This special action followed.

                    SPECIAL ACTION JURISDICTION

¶6              Special action jurisdiction is appropriate because this is an
issue of first impression, Husband does not have an equally plain, speedy,
and adequate remedy by appeal and the issue is a challenge to a
supersedeas bond. See Ariz. R.P. Spec. Act. 1(a); City Ctr. Exec. Plaza, LLC
v. Jantzen, 237 Ariz. 37, 39, ¶ 2 (App. 2015). Therefore, we accept
jurisdiction.

                                DISCUSSION

¶7             “We review the interpretation of statutes and court rules de
novo.” Cranmer v. State, 204 Ariz. 299, 301, ¶ 8 (App. 2003). We analyze
procedural rules using principles of statutory construction, id., and read
those rules in conjunction with related statutes and harmonize them
whenever possible. Thielking v. Kirschner, 176 Ariz. 154, 159 (App. 1993).
“[W]e look to the plain language of the statute or rule as the best indicator
of [the drafters’] intent. . . . If the language is clear and unambiguous, we
give effect to that language and do not employ other methods of statutory
construction.” Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7 (App. 2005).

¶8            Husband agrees that Arizona Revised Statutes (A.R.S.)
section 12-2108.A.1 (West 2015)4 applies and that the statute requires a bond
based on “the total amount of damages awarded.” However, Husband
argues that the family court does not have jurisdiction to adjudicate
damages in a dissolution decree; thus, amounts awarded under the Decree
do not constitute damages and the statute does not set the amount of the
supersedeas bond to be posted in an appeal of a dissolution decree. Instead,
Husband contends that the statute only requires a bond for the amounts he
currently owes under the Decree.

¶9              Under A.R.S. § 12-2108.A.1, “[i]f a plaintiff in any civil action
obtains a judgment under any legal theory, the amount of the bond that is
necessary to stay execution during the course of all appeals . . . shall be set
as . . . [t]he total amount of damages awarded.” The legislative history
explains that for purposes of A.R.S. § 12-2108, “[c]ivil cases can involve . . .

4     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                  BOBROW v. HON. HERROD/BOBROW
                        Opinion of the Court

family law issues, such as divorce.” S.B. 1212 Fact Sheet, Ariz. 50th Leg.,
1st Reg. Sess., at 1 (2011). Therefore, the statute applies in dissolution cases.

¶10            Both A.R.S. § 12-2108.A.1 and Arizona Rule of Civil Appellate
Procedure 7(a)(4)(A) state that the bond must be the “total amount of
damages awarded.” See A.R.S. § 12-2108.A.1 (the bond “shall be set as . . .
[t]he total amount of damages awarded”); ARCAP 7(a)(4)(A) (the bond
“must be . . . [t]he total amount of damages awarded”).5 Because the
legislature used the word “damages,” we “construe that word according to
its ‘peculiar and appropriate meaning in the law.’” City Ctr., 237 Ariz. at
41, ¶ 13.

¶11           Damages are defined as compensation for actual injury. Id. at
42, ¶14. “[A]ctual damages are such compensation for the injury as would
follow from the nature and character of the act and which return the injured
party to pre-injury position.” Havasu Heights Ranch and Dev. Corp. v. Desert
Valley Wood Prods., Inc., 179 Ariz. 456, 459 (1994) (citing United States Fid. &
Guar. Co. v. Davis, 3 Ariz.App. 259, 263 (App. 1966)).

¶12           Even though awards in divorce proceedings are not typically
referred to as “damages,” setting the bond in the amount of the full award
under the Decree is appropriate for multiple reasons. First, the legislature
clearly intended for A.R.S § 12-2108.A.1 to apply to divorce cases, and we
“give effect to the legislature’s intent.” See In re Marriage of Williams, 219
Ariz. 546, 548, ¶ 10 (App. 2008).

¶13            Second, the spirit and purpose of A.R.S. § 12-2108.A.1 and
ARCAP 7(a)(4)(A) are served by setting the amount of the bond in the full
amount of the award under the Decree. The purpose of a supersedeas bond
is to preserve the status quo pending appeal. Porter v. Commercial Standard
Ins. Co., 112 Ariz. 491, 493 (1975). Setting the bond for the full amount of
the award under the Decree protects Wife from “the risk that . . . the funds
will have been dissipated” during pendency of the appeal. See Freeman v.
Wintroath Pumps-Div. of Worthington Corp., 13 Ariz.App. 182, 183 (App.
1970). In addition, the bond “restrain[s] [Wife] and the [trial] court from
taking affirmative action to enforce the judgment or decree.” Anderson v.
Pickrell, 115 Ariz. 589, 590 (1977). Therefore, a bond in the full amount of



5      Husband does not invoke the alternative bond amounts found at
ARCAP 7(a)(4)(B) or (C), the exceptions found at ARCAP 7(a)(5) or the
alternative amounts in A.R.S. § 12-2108.A.2 or 3.



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                  BOBROW v. HON. HERROD/BOBROW
                        Opinion of the Court

the award under the Decree protects the interests of both parties during the
appeal.

¶14            Under A.R.S. § 12-2108.A.1, the trial court shall set the bond
as the total amount of damages awarded, excluding punitive damages.6
Husband contends that if the term “damages” is strictly interpreted, then
the bond amount would be zero. Citing Everson v. Everson, 24 Ariz.App.
239, 245 (App. 1975), Husband argues “[Wife] should be entitled to a bond
for payments she is actually not receiving as a result of the stay during the
appeal” or stated differently, Wife is only entitled to the sums due during
the pendency of the appeal. We disagree and hold that the appropriate
bond amount is not so limited. The full amount of damages awarded to
Wife in this case is the total amount of living expenses plus the total amount
due to her for the Snowmass Property.

¶15            If Husband’s argument were correct and damages were never
awarded in divorce proceedings, supersedeas bond amounts in family
court proceedings would always be zero. Husband does not request that
result here, and such a result would not comport with Arizona case law.
See e.g., Anderson, 115 Ariz. at 590 (wife in divorce proceeding required to
post supersedeas bond to stay judgment execution pending appeal);
Everson, 24 Ariz.App. at 245 (supersedeas bond posted in divorce
proceedings not disturbed on appeal).

¶16            Husband also argues that, because the Decree requires that he
make payments under a promissory note over ten years, the full amount of
the award under the Decree is not immediately due and he should therefore
only have to pay a bond for the “amounts actually due.” We disagree
because the statute and rule are clear that the bond must be set as “[t]he total
amount of damages awarded.” A.R.S. § 12-2108.A.1 (emphasis added);
ARCAP 7(a)(4)(A) (emphasis added); see also Fragoso, 210 Ariz. at 430, ¶ 7
(“If the [statutory] language is clear and unambiguous, we give effect to
that language and do not employ other methods of statutory
construction.”).




6      Pursuant to A.R.S. § 12-2108.A, the amount of the bond “shall be set
as the lesser of . . . [t]he total amount of damages awarded excluding
punitive damages[,] . . . [f]ifty per cent of the appellant’s net worth [or]
[t]wenty-five million dollars.” In addition, A.R.S. § 12-2108.B and C grant
the trial court discretion to increase or decrease the amount of the bond
upon a showing of clear and convincing evidence.


                                       6
                 BOBROW v. HON. HERROD/BOBROW
                       Opinion of the Court

¶17           Finally, Husband argues that the supersedeas bond reverses
the Decree, apparently reasoning that posting a supersedeas bond in the
full amount of the award is akin to imposing a lump sum judgment rather
than the ten-year payment plan under the Decree. As explained above, the
purpose and effect of the supersedeas bond is to maintain the status quo for
both parties pending appeal, and therefore the bond does not
“substantively accelerate the entire [award].” Furthermore, if Husband is
successful on appeal, the bond is returned, leaving him in the same position
he was in when the appeal began.

¶18           Wife requests we award her attorney fees, but does not cite a
rule or statute as a basis for the award. Therefore, we deny the request.
Bank One, Arizona, N.A. v. Beauvais, 188 Ariz. 245, 251 (App. 1997).
However, Wife is entitled to her costs, upon compliance with ARCAP 21.

                             CONCLUSION

¶19          For the foregoing reasons, we accept jurisdiction but deny
relief.




                                 :ama




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