Cohen v. Frey

• Decision Date: 09 May 2007
• Docket Number: No. 2 CA-CV 2006-0155.,2 CA-CV 2006-0155.
• Citation: 157 P.3d 482,215 Ariz. 62
• Parties: Ivan (Budd) COHEN, Petitioner/Appellee/Cross-Appellant, v. Selma Carrillo FREY, fka Selma Cohen, Respondent/Appellant/Cross-Appellee.
• Court: Arizona Court of Appeals

157 P.3d 482

215 Ariz. 62

Ivan (Budd) COHEN, Petitioner/Appellee/Cross-Appellant, v. Selma Carrillo FREY, fka Selma Cohen, Respondent/Appellant/Cross-Appellee.

No. 2 CA-CV 2006-0155.

Court of Appeals of Arizona, Division 2, Department B.

May 9, 2007.

Lawrence E. Condit, P.C., By Lawrence E. Condit, Tucson, Attorney for Petitioner/Appellee/Cross-Appellant.

Gary S. Kneip, Tucson, Attorney for Respondent/Appellant/Cross-Appellee.

OPINION

ESPINOSA, Judge.

¶ 1 Appellant Selma Carrillo Frey appeals from the trial court's order granting summary judgment in favor of her former husband, Ivan Cohen, dismissing her partition action, refusing to allow Frey to conduct discovery, and denying her relief under Rule 60(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, from the terms of her 1983 decree of dissolution.¹ Cohen cross-appeals, claiming the trial court erred in denying his request for attorney fees and by ordering that Cohen could not withdraw from the pending sale of the residence at issue. We affirm the dismissal of Frey's partition action but vacate the grant of summary judgment in favor of Cohen and remand the matter to the trial court. In light of our remand, we do not address Cohen's cross-appeal.

Factual and Procedural Background

¶ 2 Frey and Cohen were divorced in 1983, following a twenty-one year marriage. During the dissolution proceeding, the parties had negotiated a marital settlement agreement, which, after approval by the court, merged into the decree of dissolution.² Paragraph 6 of that agreement read, in pertinent part:

6. Sale of Residence. Husband has the right to continue to live in the residence so long as he pleases, and Wife acknowledges and agrees that Husband has the right to live in the residence for a period of indefinite duration; and

a. Husband has the exclusive right to elect to sell the residence rather than to continue to live therein. If Husband does elect to sell the residence and the residence is then sold all net proceeds of the sale shall be distributed one-half to Husband and one-half to Wife.

b. If at any time a contract for the sale of the residence is entered into by Husband, then Husband shall notify Wife of the sale, provided, however, that consent or approval of Wife in respect of the sale is not required, and Husband shall have the right to sell for whatever price and on whatever terms he desires.

In 2003, Cohen filed a petition for an order to show cause in the dissolution action, seeking a declaration of his rights under the merged provisions of the marital settlement agreement. He then moved for summary judgment pursuant to Rule 56, Ariz. R. Civ. P., 16 A.R.S., Pt. 2, raising two issues of law. The trial court granted Cohen's motion on one of the issues, but found the other did not present an actual dispute and declined to address its merits. On appeal, this court agreed "no actual dispute or controversy" had been presented to the trial court and the denial of summary judgment was proper. In re Cohen and Frey, No. 2 CA-CV 2005-0012, ¶ 8 (memorandum decision filed Nov. 17, 2005).

¶ 3 In January 2006, Cohen arranged a sale of the residence to his sister for $100,000,³ and Frey sought a temporary restraining order to prevent the sale. At the hearing on the request for injunctive relief, Cohen agreed to delay completion of the sale until the court interpreted the language of paragraph 6(b). Frey then sought to depose the prospective buyer, and Cohen moved for a protective order to prevent her deposition. While the motion for protective order was pending, Frey filed a complaint for partition of the property, which was consolidated with the dissolution action.

¶ 4 Cohen again moved for summary judgment, claiming the language of paragraph 6(b) gave him the right to sell the residence "for whatever price and on whatever terms he desires." The trial court, apparently without oral argument, granted Cohen's motion, ruling paragraph 6(b) indeed meant Cohen could sell the residence for any price and on any terms. The court also granted Cohen his other requested relief by "vacat[ing] any order preventing the sale of the Property to his sister." Frey appeals from the grant of summary judgment to Cohen, and Cohen cross-appeals from the court's directive that he complete the previously arranged sale.

Appeal

a. Dismissal of Partition Action

¶ 5 We first address Frey's challenge to the trial court's dismissal of her partition action. We review a trial court's order dismissing a claim for an abuse of discretion, upholding the order "`only if the plaintiff[] would not be entitled to relief under any facts susceptible of proof in the statement of the claim.'" Dressler v. Morrison, 212 Ariz. 279, ¶ 11, 130 P.3d 978, 980 (2006), quoting Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 (1996).

¶ 6 The right of partition is an incident of common ownership. Occhino v. Occhino, 164 Ariz. 482, 484, 793 P.2d 1149, 1151 (App.1990). But partition is a statutory procedure and, absent an agreement between the parties to voluntarily divide the property, any remedy must comply with the statutory scheme. McCready v. McCready, 168 Ariz. 1, 3, 810 P.2d 624, 626 (App.1991). Arizona's partition statutes, A.R.S. §§ 12-1211 through 12-1225, provide for a judicial division of disputed property between co-owners or, if "fair and equitable division of the property or any part thereof cannot be made," for "sale of the property which is incapable of partition." A.R.S. § 12-1218(A). If the parties agree to voluntary partition, however, they may include whatever terms they desire. McCready, 168 Ariz. at 3, 810 P.2d at 626.

¶ 7 Relying on McCready, Frey contends she is entitled to partition because she and Cohen are tenants in common of the residence.⁴ But McCready is inapposite. The home in that case had been acquired by the parties "as husband and wife" after their decree of dissolution had been entered and, consequently, "[t]he subject property [in that case] was never `marital property' and thus [not] subject to any of the provisions of Title 25." Id. at 2, 4, 810 P.2d at 625, 627. Because the parties in McCready could not agree on how to dispose of the house and it had been acquired after dissolution, the only remedy available was that provided in the partition statutes. Id. at 3, 810 P.2d at 626. Here, Frey and Cohen voluntarily provided in their property settlement agreement for the future disposal of the residence, and Frey may not invoke the partition statutes to negate that agreement.

¶ 8 Furthermore, permitting Frey to compel a sale through a partition action would de facto modify the property settlement provisions of the decree, which is not generally permitted under Arizona law. See LaPrade v. LaPrade, 189 Ariz. 243, 246, 941 P.2d 1268, 1271 (1997); In re Marriage of De Gryse, 135 Ariz. 335, 338, 661 P.2d 185, 188 (1983); In re Marriage of Gaddis, 191 Ariz. 467, 469, 957 P.2d 1010, 1012 (App.1997); Reed v. Reed, 124 Ariz. 384, 385, 604 P.2d 648, 649 (App. 1979). Again, the plain language of the decree states: Cohen "has the right to continue to live in the residence so long as he pleases, and Wife acknowledges and agrees that Husband has the right to live in the residence for a period of indefinite duration" and he "has the exclusive right to elect to sell the residence rather than to continue to live therein." If the residence were sold pursuant to a partition action, these rights would be abrogated, contrary to the settlement agreement, the decree, and Arizona law. See e.g., LaPrade, 189 Ariz. at 246, 941 P.2d at 1271. Therefore, Frey cannot compel partition of the residence and the trial court did not err in dismissing her partition claim. See Dressler, 212 Ariz. 279, ¶ 11, 130 P.3d at 980.

b. Interpretation of Paragraph 6(b)

¶ 9 We next address Frey's contention that the trial court erred by granting Cohen summary judgment based on an incorrect interpretation of paragraph 6(b) of the decree.⁵ We review the trial court's ruling de novo. In re Estate of Lamparella, 210 Ariz. 246, ¶ 18, 109 P.3d 959, 962 (App.2005). Summary judgment is appropriate when, viewing the facts in the light most favorable to the non-moving party, there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Id. ¶ 18, 109 P.3d 959.

¶ 10 Frey argues the trial court erred by interpreting paragraph 6(b) to mean Cohen may sell the residence at any price and on any terms he desires. Cohen responds "the trial court found no doubt or ambiguity in ¶ 6(b)," and thus, the court's interpretation based on the plain language is correct.⁶ We review the trial court's interpretation of an existing decree of dissolution de novo. Danielson v. Evans, 201 Ariz. 401, ¶ 13, 36 P.3d 749, 754 (App.2001). A final judgment or 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, ¶ 11, 972 P.2d 230, 233 (1999).

¶ 11 To interpret the decree, we apply the general rules of construction for any written instrument. Lopez v. Lopez, 125 Ariz. 309, 310, 609 P.2d 579, 580 (App.1980). The first step in construing a decree is to determine if it is ambiguous. Zale, 193 Ariz. 246, ¶ 13, 972 P.2d at 234. "The meaning of a decree is to be determined from the language used." Stine v. Stine, 179 Ariz. 385, 388, 880 P.2d 142, 145 (App.1994). The decree is ambiguous "only when [the language] can reasonably be construed to have more than one meaning." Lamparella, 210 Ariz. 246, ¶ 21, 109 P.3d at 963. "[W]hether ... language is reasonably susceptible to more than one interpretation ... is a question of law for the court." Id. The language in a decree "should be construed according to [its] natural and legal import," Lopez, 125 Ariz. at 310, 609 P.2d at 580, and with reference to related provisions in the decree. Zale, 193 Ariz....