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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 TABATHA JACKSON, Petitioner/Appellee,

                                        v.

               MARK P. MATTHEWS, Respondent/Appellant.

                           No. 1 CA-CV 15-0096 FC
                               FILED 5-24-2016


           Appeal from the Superior Court in Maricopa County
                           No. FC2003-090156
                The Honorable Timothy J. Ryan, Judge

                                  AFFIRMED


                                   COUNSEL

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

Mark P. Matthews, Parker, CO
Respondent/Appellant
                        JACKSON v. MATTHEWS
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            Mark Matthews appeals from the superior court’s entry of
two qualified domestic relations orders (“QDROs”). For reasons that
follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Matthews and Tabatha Jackson entered into a property
settlement agreement in connection with their divorce. The agreement
provided that QDROs would be issued granting Jackson 50% of Matthews’s
retirement and 401(k) benefits that had accrued during the marriage until
January 14, 2003, when the dissolution petition was served. The agreement
stated that the QDROs would be “prepared by attorney Richard
Underwood with the cost equally divided between the parties,” and that
“[b]oth parties agree to cooperate in the process of securing such benefits.”

¶3           Approximately nine years later, Jackson hired attorney
Underwood to draft the QDROs. Underwood began to do so, but withdrew
a few weeks later after Matthews threatened to file a bar complaint against
him for reasons not detailed in the record. Jackson then hired attorney
Robert Harrian, who drafted the two QDROs that were issued by the court.

¶4            Matthews objected to the QDROs and asked the court to
vacate their entry, arguing that (1) their issuance violated the requirement
in the property settlement agreement specifying that attorney Underwood
prepare them, (2) the court erred by not letting Matthews respond before
issuing the QDROs, and (3) the QDRO for Matthews’s retirement savings
used a cutoff date beyond the term of the marriage.

¶5            After a telephonic conference, in which Matthews and
Harrian participated, the superior court ordered the parties to meet and
confer to attempt to settle their dispute. The parties did not meet, and
instead filed several motions. Matthews asserted that the QDROs were
time barred and that Jackson’s counsel committed procedural violations
that had resulted in a denial of due process. Jackson requested attorney’s


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                        JACKSON v. MATTHEWS
                          Decision of the Court

fees and protective orders, and she sought to have Matthews be designated
a vexatious litigant.

¶6             After considering the pending motions, the court reaffirmed
its ruling on the QDROs, with each party to bear their own fees. Matthews
appealed, and we have jurisdiction under A.R.S. § 12-2101.1

                                 DISCUSSION

¶7            Matthews argues that the court erred by: (1) ignoring an
expired statute of limitations for entering the QDROs, (2) denying him due
process, (3) allowing Jackson’s attorney to prepare the QDROs, and (4)
conveying his separate property.

I.     Statute of Limitations.

¶8            Matthews argues that the issuance of the QDROs after such a
long delay contravened the five-year statute of limitations for the
enforcement of judgments. See A.R.S § 12-1551(B). Whether a statute of
limitations applies, and when the cause of action accrues (where, as here,
the relevant facts are undisputed) are questions of law that we review de
novo. See Cook v. Town of Pinetop-Lakeside, 232 Ariz. 173, 175, ¶ 10 (App.
2013).

¶9             In Johnson v. Johnson, 195 Ariz. 389 (App. 1999), this court
considered the applicability of A.R.S. § 12-1551(B) after an ex-wife waited
more than 15 years to pursue her right to retirement benefits granted in a
property settlement agreement. Under the agreement, the ex-wife was
entitled to monthly installment payments of the ex-husband’s retirement
benefits, but the ex-wife did not sue to collect unpaid benefits until long
after the retirement payments commenced. Id. at 390, ¶¶ 2, 5. Applying
A.R.S. § 12-1551(B), this court held that the statute precluded recovery of
any payments received by the ex-husband more than 5 years before wife
filed her cause of action, but that she was not time barred from pursuing
the more recent payments because the statute of limitations for each




1      Absent material revisions after the relevant date, we cite the current
version of rules and statutes.




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                           Decision of the Court

installment commenced when the installment became due and payable. Id.
at 391–92, ¶ 11.2

¶10           Here, Matthews does not dispute that he had not begun to
draw benefits as of the time Jackson pursued issuance of the QDROs.
Because the benefits were not yet due and payable, under Johnson, the
statute of limitations for pursing those benefits had not commenced and
Jackson’s cause of action was not time barred. See id.; see also Groves v. Sorce,
161 Ariz. 619, 621 (App. 1989) (noting that the statute of limitations for
execution on judgments “does not mean that one must attempt to execute
or sue on the judgment when one does not have a right to do so”).
Accordingly, the QDROs were not barred by the statute of limitations.3

II.    Due Process.

¶11            Matthews contends that he was denied due process because
he was not given adequate notice of the QDROs, that he did not have an
opportunity to respond before the superior court signed the QDROs, and
that the court did not conduct an evidentiary hearing. Due process requires
notice and the right to be heard in a meaningful time and manner. Huck v.
Harambie, 122 Ariz. 63, 65 (1979). The procedures required to ensure due
process are not static, but rather depend on the demands of a particular
situation. See Mathews v. Eldridge, 424 U.S. 319, 334 (1976). We review de
novo a claimed denial of due process, but even assuming a denial of due
process, we will only reverse if the denial has prejudiced a party’s interests.
See Jeff D. v. Dep’t of Child Safety, 2016 WL 1587533, at *2, ¶ 6 (Ariz. App.
Apr. 15, 2016) (as amended); County of La Paz v. Yakima Compost Co., 224
Ariz. 590, 598, ¶ 12 (App. 2010).

¶12         Matthews’s due process claim fails because, before lodging
the QDROs with the court, attorney Harrian contacted him to discuss them
and verify values for the accounts as of the date of the settlement
agreement. Matthews was thus aware that Harrian was drafting the


2      Other jurisdictions have similarly concluded that a cause of action in
this context does not accrue until retirement benefits are due and payable.
See Ryan v. Janovsky, 999 N.E.2d 895, 899–901 (Ind. Ct. App. 2013); Jordan v.
Jordan, 147 S.W.3d 255, 261–62 (Tenn. Ct. App. 2004); Johnson v. Johnson, 330
P.3d 704, 710, ¶ 18 (Utah 2014).

3      Applying the same reasoning, we similarly reject Matthews’s
argument that the six-year statute of limitations for contract claims under
A.R.S. § 12-548 bars the QDROs.


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                        JACKSON v. MATTHEWS
                          Decision of the Court

QDROs, even though he disputed Harrian’s authority to do so. Moreover,
Matthews has not shown prejudice because he chose not to submit his own
proposed QDROs after being given an opportunity to do so. Accordingly,
Matthews had a meaningful opportunity to be heard, and he has failed to
establish prejudice from the issuance of the QDROs.

III.   Drafting Attorney.

¶13         Matthews argues that the property settlement agreement
contemplated that independent counsel (Underwood) would prepare the
QDROs, and that having Jackson’s own counsel prepare the QDROs
improperly modified the agreement.

¶14           When, as here, a settlement agreement does not merge with
the divorce decree, it is an independent contract. MacMillan v. Schwartz, 226
Ariz. 584, 589, ¶ 15 (App. 2011). We review de novo the interpretation of
such a contract. See Jordan v. Burgbacher, 180 Ariz. 221, 225 (App. 1994).

¶15          The settlement agreement provided that “[t]he QDRO shall
be prepared by attorney Richard Underwood with the cost equally divided
between the parties,” and that “[b]oth parties agree to cooperate in the
process of securing such benefits.” The agreement did not specify what
would happen if Underwood was unable to prepare the QDROs, and
although both parties were to share the cost of preparing the QDROs,
nothing suggests that “independent” counsel was required.

¶16           Matthews appears to be asserting that Jackson’s attorney
represented only Jackson’s interests. But QDROs “convey only those rights
to which the parties stipulated as a basis for the judgment” in the property
settlement agreement. See Ross v. Ross, 791 N.Y.S.2d 187, 189 (N.Y. App.
Div. 2005) (citation omitted). Thus, QDROs do not create new rights or
otherwise alter the terms of the underlying agreement. Accordingly, the
question of who should draft a QDRO is not independently relevant, and
the only necessary inquiry is whether the QDRO accurately reflects the
parties’ agreement.

IV.    End Date for Calculation.

¶17           Matthews further argues that the property settlement
agreement apportioned retirement benefits from the beginning of the
marriage until the petition was served on January 14, 2003, but the savings
QDRO improperly used January 1, 2005 as the end date. He contends that
the use of the 2005 date modified the property settlement agreement and
awarded Jackson separate property to which she was not entitled.


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                        JACKSON v. MATTHEWS
                          Decision of the Court

¶18           Jackson does not dispute that the agreement contemplates
using the 2003 value of the account at issue, but she notes that, in preparing
the savings QDRO, attorney Harrian consulted with the plan administrator,
who indicated that values were not available for any time periods prior to
2005, so Harrian used the 2005 value to approximate the 2003 value.
Although an exact value would have been preferable, Matthews had an
opportunity to provide information reflecting additional monies added to
(or subtracted from) the savings account between 2003 and 2005, but did
not do so. Accordingly, the superior court did not err by using the 2005
value as representative of the 2003 value.

¶19           Both parties have requested their fees on appeal. In an
exercise of our discretion, we deny both requests. We grant Jackson’s
request for costs upon compliance with ARCAP 21.

                              CONCLUSION

¶20           For the foregoing reasons, we affirm the superior court’s
decision.




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