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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                STEVEN D. JOHNSON, Petitioner/Appellant,

                                        v.

               MICHELLE JOHNSON, Respondent/Appellee.


                           No. 1 CA-CV 18-0137 FC
                                FILED 10-18-2018


           Appeal from the Superior Court in Maricopa County
                          No. DR1998-017225
              The Honorable Kristin R. Culbertson, Judge

                                  AFFIRMED


                                   COUNSEL

Raymond S. Dietrich PLC, Phoenix
By Raymond S. Dietrich
Counsel for Petitioner/Appellant

The Harrian Law Firm, PLC, Glendale
By Daniel Seth Riley
Counsel for Respondent/Appellee
                         JOHNSON v. JOHNSON
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            Steven Johnson ("Husband") appeals from an order denying
his motion for relief from a 2008 domestic relations order ("DRO") that
allocated a portion of his retirement benefits to Michelle Johnson ("Wife").
The superior court did not abuse its discretion in denying Husband's
motion because it was untimely; therefore, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            During the marriage, Husband worked for the Mesa Police
Department, where he accrued retirement benefits under the Arizona
Public Safety Personnel Retirement System. Participants in this system do
not contribute to the Social Security system. See Kohler v. Kohler, 211 Ariz.
106, 110, ¶ 14 (App. 2005). Pursuant to a 1999 consent decree, the parties
agreed to divide the community interest in Husband's retirement benefits
by way of a DRO. In 2008, the superior court signed the parties' stipulated
DRO, which stated that the community had a 50% interest in Husband's
retirement benefits earned during the marriage.

¶3             In 2017, relying on an Arizona Supreme Court decision
decided in 2000, Husband sought relief from the DRO. In Kelly v. Kelly, 198
Ariz. 307 (2000), one spouse participated in a retirement plan in which a
portion of his retirement contributions were in lieu of Social Security
contributions. Kelly held that to achieve an equitable allocation in such
circumstances, the superior court may treat a portion of that spouse's
retirement benefits as separate property if the other spouse contributed to
Social Security, which, by federal law, remains separate property not
subject to allocation upon divorce. Id. at 309, ¶¶ 9-11.

¶4           Here, Husband argued he was entitled to relief from the 2008
DRO because it failed to apply a Kelly adjustment. Wife responded that
Husband's motion was untimely because it was filed 17 years after the Kelly
decision and nine years after entry of the DRO. Ruling on cross-motions
for summary judgment, the superior court denied Husband's motion for



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                           JOHNSON v. JOHNSON
                             Decision of the Court

relief as untimely, finding he should have sought to apply the Kelly
adjustment no later than 2008, when the parties entered the stipulated DRO.

¶5            Husband filed a timely notice of appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018) and -2101(A)(2)
(2018).1 See Vincent v. Shanovich, 243 Ariz. 269, 270, ¶ 1 (2017).

                                 DISCUSSION

¶6           We review the superior court's ruling as to the timeliness of a
motion for relief for an abuse of discretion. See Martin v. Martin, 182 Ariz.
11, 16 (App. 1994). Pursuant to Arizona Rule of Family Law Procedure
85(C)(2), a motion for relief from judgment must be filed within a
"reasonable time." The record supports the court's conclusion that
Husband's motion was untimely.

¶7             Husband sought relief under Rule 85(C)(1)(f), which allows
the court to relieve a party from a final judgment or order "for any other
reason justifying relief." This rule "ha[s] been used liberally in reopening
otherwise final court orders where there has been a change in the law
affecting the substantial rights of a litigant." Edsall v. Superior Court (Edsall),
143 Ariz. 240, 243 (1984).2 The change in the law Husband relies upon is the
Kelly decision. However, that decision was issued eight years before the
stipulated DRO. Thus, the change in the law predated the DRO from which
Husband seeks relief. Husband failed to include the Kelly adjustment in the
stipulated DRO, which his own lawyer prepared. As the superior court
noted, Husband should have requested the Kelly adjustment when the
parties were litigating the DRO in 2008. Thus, his 2017 request for relief
from the DRO was untimely.

¶8            Husband contends this case is similar to Carranza v. Gonzales,
2016 WL 3101784 (Ariz. App. June 2, 2016) (mem. decision). The decree of
dissolution in that case was entered five years before Kelly and did not
include any method for allocating the community's interest in the pensions,
and this court held the Kelly adjustment could be applied retroactively. Id.
at *3-4, ¶¶ 14-16. The decree in Carranza "anticipated a future order


1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.

2      Edsall addressed Arizona Rule of Civil Procedure 60(C), which is
identical to Arizona Rule of Family Law Procedure 85(C).


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                          JOHNSON v. JOHNSON
                            Decision of the Court

detailing the formula for allocating the pensions." Id. at *3, ¶ 14. Here, by
contrast, the 2008 DRO was the "future order" detailing the formula for
allocating Husband's retirement benefits. Had Husband raised the Kelly
adjustment during the 2008 DRO proceedings, this case would be in the
same posture as Carranza. But Husband failed to address Kelly when the
parties litigated the DRO in 2008; thus, his attempt to raise the issue now is
untimely.

¶9            We also reject Husband's contention that his motion was not
untimely because the amount of the retirement benefit could not be
calculated until he retired in 2017. The decree incorporated a property
settlement agreement that stated the community portion of the retirement
benefits would be "defined pursuant to a Van Loan formula." The 2008
DRO set forth the fractional interest and specified that Wife is entitled to
half that amount.3 The amended DRO Husband proposed in 2017
contained the same formula as in the 2008 DRO, but reduced Wife's share
from 50% to 33.9%, presumably to apply the Kelly adjustment. Contrary to
Husband's argument, the specific benefit amount was not included in the
DRO he proposed in 2017. Therefore, Husband had no need to wait until
he actually retired in 2017 to request application of the Kelly adjustment.

¶10            Wife requests an award of attorney's fees on appeal but does
not cite any statutory authority supporting her request. For that reason, we
deny her request. See Roubos v. Miller, 214 Ariz. 416, 420, ¶ 21 (2007); see also




3     The stipulated DRO describes the numerator/denominator for
determining Wife's fractional interest as follows:

       Months married as Member (through January 1, 1999) / Total
       months as a Member x 1/2 = Alternate Payee's Portion.



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                       JOHNSON v. JOHNSON
                         Decision of the Court

Arizona Rule of Civil Appellate Procedure ("ARCAP") 21(a)(2). As the
successful party, however, Wife is entitled to her costs on appeal upon
compliance with ARCAP 21. See A.R.S. § 12-342 (2018).

                             CONCLUSION

¶11           We affirm the superior court's order denying Husband's
motion for relief from the 2008 DRO.




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




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