                          NOTICE: NOT FOR PUBLICATION.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 Matter of:

                   EUGENE ANAYA, Petitioner/Appellant,

                                        v.

                 SANDRA L. ANAYA, Respondent/Appellee.

                             No. 1 CA-CV 13-0606
                              FILED 06-05-2014


            Appeal from the Superior Court in Apache County
                        No. S0100DO201000157
            The Honorable Kay H. Wilkins, Judge Pro Tempore

                         AFFIRMED AS MODIFIED


                                   COUNSEL

Hamblin Law Office, P.L.C., Eagar
By Bryce M. Hamblin
Counsel for Petitioner/Appellant

R. John Lee, Attorney at Law, St. Johns
By R. John Lee
Counsel for Respondent/Appellee
                          ANAYA v. ANAYA
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.


N O R R I S, Judge:

¶1            Eugene Anaya appeals from the superior court’s order
finding the consent decree that dissolved his marriage to Sandra L. Anaya
ambiguous and ordering him to pay Sandra spousal maintenance of
$1,089.59 per month. For the following reasons, we affirm the order as
modified.

            FACTS AND PROCEDURAL BACKGROUND

¶2           The superior court dissolved Eugene and Sandra’s marriage
by consent decree on March 23, 2011. The consent decree, which is
discussed in more detail below, awarded Eugene the parties’ marital
residence (subject to a mortgage) and awarded Sandra the exclusive use of
the residence until their minor child turned 18. The decree also required
Sandra to maintain the residence.

¶3            Subsequently, Sandra petitioned the court to hold Eugene in
contempt, alleging he had stopped making the mortgage payments on the
residence; and Eugene petitioned the court to order Sandra to vacate the
residence, alleging she had failed to maintain it. After an evidentiary
hearing, the court found Sandra had violated the consent decree by failing
to maintain the residence and ordered her to vacate the residence. The
court also found the decree ambiguous and ruled that the provision of the
decree that allowed Sandra to live in the residence was a spousal
maintenance obligation. Accordingly, the court found Eugene had
violated the consent decree by failing to pay spousal maintenance (in the
form of the mortgage payments on the residence) and ordered him to pay
Sandra spousal maintenance directly in the amount of $1,089.59 -- the
amount of the monthly mortgage payment on the residence -- with the
obligation beginning after she vacated the residence.

                             DISCUSSION

¶4            This appeal requires us to review the superior court’s
interpretation of the decree, and thus, our review is de novo. Cohen v.


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                           Decision of the Court

Frey, 215 Ariz. 62, 66, ¶ 10, 157 P.3d 482, 486 (App. 2007). Eugene first
argues the court should not have ordered him to pay spousal maintenance
because the decree only gave Sandra the right to live in the residence,
rather than the right to any monetary spousal maintenance. Sandra, on
the other hand, argues the decree granted her spousal maintenance --
which essentially took the form of housing -- and thus, Eugene was
required to pay her monetary spousal maintenance when the court
ordered her to vacate the residence.

¶5            A consent decree is “an independent resolution by the court
of the issues before it and rightfully is regarded in that context and not
according to the negotiated intent of the parties.” In re Marriage of Zale,
193 Ariz. 246, 249, ¶ 11, 972 P.2d 230, 233 (1999) (citation omitted). 1 The
general rules of interpretation for a written document apply to the
interpretation of a consent decree, Cohen, 215 Ariz. at 66, ¶ 11, 157 P.3d at
486, but we may not consider parole evidence, Zale, 193 Ariz. at 249-50,
¶¶ 10-15, 972 P.2d at 233-34. The first step in construing a consent decree
is to determine if it is ambiguous, which is a question of law for the court.
Cohen, 215 Ariz. at 66, ¶ 11, 157 P.3d at 486. A decree is ambiguous if it is
subject to more than one reasonable interpretation. Id.

¶6            The parties have each offered a reasonable interpretation of
the decree, and thus, we agree with the superior court that the decree is
ambiguous. Although Eugene argues the decree is not ambiguous and is
subject to one meaning only, he overlooks that the meaning of the decree
is derived from its context and structure. See Cohen, 215 Ariz. at 66, ¶ 12,
157 P.3d at 486. Eugene’s interpretation of the decree cannot be squared
with other provisions of the decree that pertain to spousal maintenance.
Although the provision of the decree that granted Sandra the right to live
in the residence does not mention monetary spousal maintenance, it, as
well as other provisions in the decree, refer to spousal maintenance.

¶7            The consent decree is roughly divided into three sections: an
“Affirmations Section” beginning at page four containing the parties’
factual and legal affirmations; a “Findings Section” beginning at page one
containing the court’s findings; and an “Orders Section” beginning at
page three containing the court’s orders.



             1The  parties have argued it is the intent of the court, and not
the negotiated intent of the parties, that governs the interpretation of the
decree, and thus, we have resolved this appeal under that framework.



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                           ANAYA v. ANAYA
                           Decision of the Court

¶8            In paragraph six of the Affirmations Section labeled
“Maintenance/Support,” the parties agreed “that spousal maintenance
and child support should be as outlined above.” The reference to “as
outlined above” included paragraph ten of the Findings Section, which
read as follows:

             10. Spousal Maintenance/Support

                     a. The parties agree that [Sandra] shall
             live in the aforementioned residence and enjoy
             its exclusive use until the parties’ minor child
             reaches the age of 18 or until [Sandra]
             abandons the premises. [Sandra] is responsible
             for maintenance of the residence.           This
             provision shall terminate if [Sandra] should
             damage the premises or fail to maintain
             beyond normal wear and tear.

                    b. The parties agree that [Eugene] shall
             pay child support to [Sandra] through the
             clearinghouse in the amount of $800.00 per
             month to commence on April 1, 2011.

Additionally, paragraph two of the Orders Section read as follows:
“SPOUSAL MAINTENANCE/SUPPORT: [Eugene] shall pay child
support to [Sandra] through the clearinghouse in the amount of $800.00
per month.” Paragraph two of the Orders Section was labeled like
paragraph ten of the Findings Section but, unlike paragraph ten of the
Findings Section, did not reference Sandra’s right to live in the residence;
instead, it simply addressed child support.

¶9            We examine the provisions of the decree to determine the
court’s intent. See Lopez v. Lopez, 125 Ariz. 309, 310, 609 P.2d 579, 580
(App. 1980) (“The intention of the court must be determined from all parts
of the judgment . . . .” (citations omitted)). To accept Eugene’s argument
would require us to, first, ignore the provisions in the Affirmations
Section where the parties affirmed spousal maintenance and affirmed it
would be “as outlined above.” Second, it would require us to ignore the
references to spousal maintenance contained in the Findings Section and
Orders Section. Third, it would be incompatible with the structure of
paragraph ten of the Findings Section, in which subsection (a) referred to
Sandra’s right to live in the residence and subsection (b) referred to
Eugene’s obligation to pay Sandra child support. The heading of that



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                           ANAYA v. ANAYA
                           Decision of the Court

section signified it pertained to two subjects: spousal maintenance and
child support. And, because subsection (b) dealt specifically with the
subject of child support, the most logical reading is that subsection (a)
dealt with the other subject -- spousal maintenance.

¶10           Moreover, Sandra’s right to live in the residence provided
her with a basic necessity -- housing -- which supports interpreting the
decree as awarding spousal maintenance. We must interpret the decree in
the context of the court’s statutory duty to ensure that the division of
marital property and award of spousal maintenance is fair and equitable.
Ariz. Rev. Stat. (“A.R.S.”) § 25-317(B)-(C) (2007); Cohen, 215 Ariz. at 67,
¶ 14, 157 P.3d at 487. Because we presume the court complied with this
duty, see Cohen, 215 Ariz. at 67, ¶ 14, 157 P.3d at 487, it would make no
sense to interpret the decree as not providing for spousal maintenance
when, at the time the court entered it, the record reflected the parties had
been married more than 23 years; Sandra’s income was only
approximately 15% of Eugene’s income; and she was to become the
“primary physical custodian” of their minor child. 2 See Benson v. State, 108
Ariz. 513, 515, 502 P.2d 1332, 1334 (1972), quoted with approval in Zale, 193
Ariz. at 250-51, ¶ 18, 972 P.2d at 234-35 (“A judgment which is ambiguous
and uncertain may be read in connection with the entire record and
construed accordingly.”).

¶11           In sum, harmonizing all of the provisions in the decree and
assessing its overall structure in light of the court’s statutory duty, we
agree with the superior court that Sandra’s right to live in the residence
was a form of spousal maintenance.

¶12          Eugene next argues that even if Sandra’s right to live in the
residence was a form of spousal maintenance, it terminated when she
failed to maintain the residence. Based on the placement of the
termination provision, see supra ¶ 8, it is unclear whether “this provision”
refers to the entire spousal maintenance provision generally, Sandra’s
exclusive use of the residence, or merely the prior sentence outlining
Sandra’s responsibility to maintain the residence. The termination
provision, then, is also ambiguous because it is subject to more than one
reasonable interpretation. See supra ¶ 5.



             2Theparties’ child support worksheet did not reflect that
Eugene was paying spousal maintenance or that Sandra was receiving
spousal maintenance or the in-kind value of spousal maintenance.



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                            ANAYA v. ANAYA
                            Decision of the Court

¶13           As discussed, Sandra’s right to live in the residence was a
form of spousal maintenance. And, because the consent decree gave
Sandra the right to live in the residence until the parties’ minor child
turned 18, the decree awarded her a finite number of years of spousal
maintenance. If we were to interpret the termination provision as
applying to the entire spousal maintenance provision, such an
interpretation would conflict with Sandra’s entitlement to spousal
maintenance for this finite period. Cf. Cohen, 215 Ariz. at 66, ¶ 12, 157 P.3d
at 486 (appellate court will not “assign meaning to one provision which
would render other provisions meaningless”). Therefore, because the
consent decree entitled Sandra to spousal maintenance, the termination
provision only applied to Sandra’s exclusive use of the residence.
Although she forfeited her right to live in the residence because she failed
to maintain it, she did not forfeit her right to spousal maintenance. Thus,
we agree with the superior court that once Sandra vacated the residence,
she became entitled to spousal maintenance in an amount equal to the
monthly mortgage payments.

¶14          The superior court did not specify a termination date for
spousal maintenance, which, as discussed, is to occur when the parties’
minor child turns 18. Therefore, pursuant to the consent decree and
A.R.S. § 12-2103 (2003), we modify the superior court’s order to specify
Eugene’s obligation to pay Sandra spousal maintenance, to begin after she
vacated the premises, will terminate when the parties’ minor child turns
18.

¶15           Eugene and Sandra have each requested attorneys’ fees on
appeal but neither cited a basis for a fee award. Thus, we deny the fee
requests. See Ariz. R. Civ. App. P. 21; In re Marriage of Kassa, 231 Ariz. 592,
594, ¶ 7, 299 P.3d 1290, 1292 (App. 2013). We award Sandra her taxable
costs on appeal, however, contingent upon her compliance with Arizona
Rule of Civil Appellate Procedure 21.

                              CONCLUSION

¶16          For the foregoing reasons, we affirm the order of the
superior court as modified.




                                     :gsh




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