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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

       IRENE CARRANZA (FNA GONZALES), Petitioner/Appellant,

                                         v.

              RICHARD M. GONZALES, Respondent/Appellee.

                            No. 1 CA-CV 15-0148 FC
                              FILED 6-2-2016


            Appeal from the Superior Court in Maricopa County
                           No. DR1994-018577
                 The Honorable Michael J. Herrod, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                    COUNSEL

TS Facciola PLLC, Tempe
By Tamra S. Facciola
Counsel for Petitioner/Appellant

Law Office of John E. Herrick, Phoenix
By John E. Herrick
Counsel for Respondent/Appellee
                        CARRANZA v. GONZALES
                          Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Maurice Portley and Judge Patricia K. Norris joined.


T H O M P S O N, Judge:

¶1            Irene Carranza (Wife) appeals from a family court order
allocating the pension she earned as an employee of the United States Postal
Service (USPS). The family court correctly applied Arizona Revised Statue
(A.R.S.) § 25-211 as it existed at the time the parties divorced in 1995.
However, the court erred when it failed to apply Kelly v. Kelly, 198 Ariz. 307,
9 P.3d 1046 (2000), in the 2015 order allocating Wife’s pension. Accordingly,
we affirm the portion of the order allocating the pensions as of the date of
the decree but vacate the formula used and remand for an order consistent
with Kelly.

                              BACKGROUND

¶2             During the marriage, both parties worked for the USPS. The
1995 divorce decree awarded each party one-half of the community interest
in the other’s USPS pension, to be distributed through a separately entered
qualified domestic relations order (QDRO). 1 It was not until 2013, after
both parties had retired, when Richard Gonzales (Husband) requested the
court enter an order awarding him one-half of the community interest in
Wife’s pension.

¶3            Although both parties were employed by the USPS, Wife
participated in the Civil Service Retirement System (CSRS), which does not
include Social Security. See Kelly, 198 Ariz. at 308, ¶ 1, 9 P.3d at 1047 (citing
5 U.S.C. § 8349 (1996)). Husband participated in the Federal Employee
Retirement System (FERS), which meant he was eligible for Social Security
benefits but had a reduced pension. See Kelly, id. Wife argued the family
court should apply the CSRS analysis set forth in Kelly, 198 Ariz. at 309, ¶


1Typically, such orders are QDROs. See 29 U.S.C. § 1056(d)(3)(B)(i) (2014).
However, the pensions at issue here required a specific order which
Husband designated a “Court Order Acceptable for Processing Under the
CSRS.” See generally 5 C.F.R. § 838.302. This decision will refer to this as the
order.


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                        CARRANZA v. GONZALES
                          Decision of the Court

11, 9 P.3d at 1048, to account for the inequity caused by this significant
difference in the parties’ pensions. Without addressing Kelly, the family
court concluded Husband was entitled to an order dividing Wife’s pension
benefits as of the date of the decree. In a motion to clarify, Wife again
argued the order should comply with Kelly. The court denied Wife’s motion
without comment and entered an order awarding Husband one-half of the
community interest in Wife’s CSRS pension. The community interest was
determined by multiplying the monthly benefit by a fraction, the numerator
being the number of months employed during the marriage and the
denominator being the total number of months of employment. According
to the order, the marriage terminated on June 1, 1995, the date of the decree.

¶4            Wife filed a timely notice of appeal from this order. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(2) (Supp. 2015).

                               DISCUSSION

I. Court Properly Used Date of Decree to Divide Pension

¶5             Wife contends the family court erred by ordering that the
community interest in her pension shall be calculated using the date of
decree as the date the community terminated. Wife argues the community
interest in her pension terminated on November 16, 1994, the date of
service, not the later June 1, 1995 date of the decree. Wife relies on A.R.S. §
25-211(A)(2) (Supp. 2015), which provides that property acquired after
service of a petition for dissolution resulting in a decree is not community
property. Therefore, Wife contends, the order improperly awarded
Husband a portion of her pension that was Wife’s separate property.

¶6             We review issues of statutory interpretation de novo. Merrill
v. Merrill, 230 Ariz. 369, 372, ¶ 7, 284 P.3d 880, 883 (App. 2012). At the time
the decree was entered, community property was defined as all property
acquired during the marriage. See 1998 Ariz. Sess. Laws, ch. 280, § 3 (2nd
Reg. Sess.) (adding language now found in current version of § 25-211
(A)(2)). The language Wife relies on was not part of § 25-211(A)(2) until
1998, three years after the parties’ decree was entered. The legislature
expressly stated that this change in statutory language applied only to
actions for dissolutions commenced on or after the effective date of the act,
which was December 31, 1998. See 1998 Ariz. Sess. Laws, ch. 280, §§ 27, 28
(2nd Reg. Sess.). The language Wife relies on in § 25-211(A)(2) clearly does
not apply because this dissolution was commenced before this statute
became effective. Id. Accordingly, the court did not err in applying the
statutory language in effect, when the parties’ decree was entered.



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                        CARRANZA v. GONZALES
                          Decision of the Court

II. Court Erred By Failing to Apply the Kelly Formula Retroactively

¶7             Wife also contends the family court should have applied the
analysis in Kelly in allocating Wife’s CSRS pension. Whether the holding in
Kelly applied retroactively is a question of law subject to de novo review.
See Merrill, 230 Ariz. at 372, ¶ 7, 284 P.2d at 883.

¶8             Wife contends that her entire CSRS pension was not divisible
as a community asset because a portion of her pension contributions was in
lieu of a Social Security contribution and that portion is to be treated as her
separate property pursuant to Kelly, 198 Ariz. at 309, ¶ 11, 9 P.3d at 1048.
See also Kohler v. Kohler, 211 Ariz. 106, 109, ¶ 14, 118 P.3d at 624 (applying
Kelly analysis). In Kelly, the husband participated in a CSRS pension and,
therefore, did not contribute to Social Security; the wife had a FERS pension
and did contribute to Social Security. Kelly, 198 Ariz. at 308, ¶ 1, 9 P.3d at
1047. Thus, the parties here are in the same positions as the parties in Kelly.

¶9            Kelly held that because the wife’s FERS contributions to Social
Security were exempt as a matter of law from equitable allocation as a
community asset, principles of equity compelled the court to treat the
husband’s contributions to his CSRS pension in a similar manner. Id. at 309,
¶¶ 9-10, 9 P.3d at 1048. The court reasoned that the spouse with a FERS
pension also contributes community property to Social Security, but under
federal law, the Social Security benefits cannot be allocated upon a
dissolution. Id. at 308, 309, ¶¶ 5, 9, 9 P.3d at 1047, 1048 (citing 47 U.S.C. §
407(a)).   However, the spouse with a CSRS pension also makes
contributions from community wages, but his entire CSRS pension is
entirely divisible upon dissolution. Kelly, id at 309, ¶ 9, 9 P.3d at 1048. To
remedy this inequity, the court concluded

       a present value, measured as of the date of dissolution, should
       be placed on the social security benefits [the CSRS employee-
       spouse] would have received had he participated in that system
       during the marriage. This necessarily will require a
       reconstruction of his wages. The social security calculation
       can then be deducted from the present value of [the] CSRS
       pension on the date of dissolution. The remainder, if any, is
       what may be divided as community property.




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                        CARRANZA v. GONZALES
                          Decision of the Court

Id. at ¶ 11 (emphasis in original).2 See also Kohler, 211 Ariz. at 109, ¶ 12, 118
P.3d at 624.

¶10            The family court implicitly rejected Wife’s request to apply
the Kelly analysis to her CSRS pension. Although the facts of Kelly are
identical to the circumstances presented here, the decision in Kelly was
issued in 2000, five years after the parties divorced. Wife contends Kohler
v. Kohler, 211 Ariz. 106, 118 P.3d 621 (App. 2005), also supports application
of the Kelly analysis in to this case. However, the decree of dissolution in
Kohler was entered well after Kelly was decided; thus, the court did not have
to determine whether to apply Kelly retroactively. Kohler, 211 Ariz. at 106-
07, ¶ 1, 118 P.3d at 622.

¶11          Husband contends application of Kelly would constitute an
improper modification of the parties’ 1995 decree. Wife contends she is
merely asking the court to equitably divide her pension, not modify the
1995 decree.

¶12            The decree does not set forth the manner in which the
pensions will be divided, other than to state that each spouse is entitled to
one-half of the “community’s interest” in the other’s pension. The order
dividing the pension was to be filed separately. That order was not filed
until 2015; it was first submitted in 2013. The decree did not determine the
“community interest,” therefore, application of Kelly does not constitute a
modification of the decree.

¶13            Husband argues this case is analogous to DeGryse v. DeGryse,
135 Ariz. 335, 337, 661 P.2d 185, 187 (1983) (citing Rodriguez v. Rodriguez, 133
Ariz. 88, 649 P.2d 291, approved, 133 Ariz. 87, 649 P.2d 290 (1982)), which
declined to apply a new United States Supreme Court case retroactively. In
DeGryse and Rodriguez, the decrees treated military retirement pay as a
community asset to be equitably divided and awarded the non-military
spouse a specific amount of the retirement pay. DeGryse, 135 Ariz. at 336,
661 P.2d at 186; Rodriguez, 133 Ariz. at 88, 649 P.2d at 291. The United States
Supreme Court then decided McCarty v. McCarty, 453 U.S. 210 (1981), which


2Wife asks this court to clarify that the “date of dissolution” language used
in Kelly quoted above, is intended to reflect the definition of community
property found in A.R.S. § 25-211(A)(2). However, the decree in Kelly was
entered in 1997, which is before the language now found in § 25-211(A)(2)
became effective. Kelly, 198 Ariz. at 301, ¶ 1, 9 P.3d at 1047. Therefore, the
statutory language in § 25-211(A)(2) did not apply in Kelly, nor does it apply
here. See infra ¶ 6.


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                        CARRANZA v. GONZALES
                          Decision of the Court

held military retirement pay was not divisible. DeGryse and Rodriguez held
that “McCarty did not alter the res judicata consequences of a divorce decree
which was final before McCarty.” 135 Ariz. at 337, 661 P.2d at 187 (citing
Rodriguez, 133 Ariz. 87, 649 P.2d 290).

¶14            Here the decree was final, but it was silent as to the method
for allocating the pensions and the amount to which the community was
entitled. The decree anticipated a future order detailing the formula for
allocating of the pensions. Thus, there is no formula in the decree that is
res judicata.

¶15           Arizona appellate opinions are presumed to apply both
prospectively and retroactively unless otherwise specified. See Law v.
Superior Court (Harder), 157 Ariz. 147, 160, 755 P.2d 1135, 1148 (1988). The
opinion in Kelly does not state that it only applies prospectively; thus, Kelly
is presumed to apply retroactively. See Zavala v. Ariz. State Personnel Bd.,
159 Ariz. 256, 264-65, 766 P.2d 608, 616-17 (App. 1987) (applying supreme
court decision retroactively where that decision did not otherwise specify
that it would only apply prospectively). This court cannot decide to make
Kelly prospective only; such an action was reserved for the supreme court.
See Law, 157 Ariz. at 160, 755 P.2d at 1148; Fain Land & Cattle Co, v. Hassell,
163 Ariz. 587, 596, 790 P.2d 242, 251 (1990); Taylor v. Travelers Indem. Co., 198
Ariz. 310, 321, par. 30, 9 P.3d 1049, 1060 (2000). As the supreme court in
Kelly did not determine that the decision should apply prospectively only,
we apply the general rule.

¶16             The 1995 decree did not specify a formula for determining the
community interest in the pensions. Thus, application of Kelly does not
alter or effect the terms of the decree and is not a modification. We conclude
the family court erred when it entered an order that did not determine the
community’s interest in Wife’s CSRS pension pursuant to the analysis in
Kelly. Accordingly, we vacate that portion of the order and remand for
application of Kelly.3

                               CONCLUSION

¶17           We affirm the order to the extent it allocated the pensions as
of the date of the decree. However, the order is vacated and remanded to



3Because this case involved questions of law, there was no need to consider
Wife’s failure to provide a transcript of the November 26, 2014 hearing.



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                     CARRANZA v. GONZALES
                       Decision of the Court

determine the portion of Wife’s CSRS pension that is community property
and that which is her separate property consistent with Kelly.




                                 :AA




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