In re Marriage of Glancy, 110619 AZAPP2, 2 CA-CV 2019-0056-FC

Docket Nº:2 CA-CV 2019-0056-FC
Opinion Judge:VÁSQUE Z, Chief Judge
Party Name:In re the Marriage of Jessica A. Glancy, Petitioner/Appellee, and William J. Glancy III, Respondent/Appellant.
Attorney:Law Offices of Joseph Mendoza, PLLC, Tucson By Joseph Mendoza
Judge Panel:Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
Case Date:November 06, 2019
Court:Court of Appeals of Arizona
 
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In re the Marriage of Jessica A. Glancy, Petitioner/Appellee,

and

William J. Glancy III, Respondent/Appellant.

No. 2 CA-CV 2019-0056-FC

Court of Appeals of Arizona, Second Division

November 6, 2019

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. D20180031 The Honorable Greg Sakall, Judge

Law Offices of Joseph Mendoza, PLLC, Tucson By Joseph Mendoza

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.

MEMORANDUM DECISION

VÁSQUE Z, Chief Judge

¶1 In this marriage dissolution action, William Glancy appeals from the trial court's order granting in part and denying in part Jessica Glancy's motion to set aside the decree filed under Rule 85(b), Ariz. R. Fam. Law P.[1] He contends the court erroneously determined that Jessica had a meritorious and substantial defense to the consent decree. For the following reasons, we vacate the court's order.2

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the trial court's order. See Clark v. Kreamer, 243 Ariz. 272, ¶ 10 (App. 2017). William and Jessica married in January 2006 and have five children together. Beginning in 2008, William worked as an air traffic controller.

¶3 In January 2018, Jessica filed a petition for dissolution of marriage. Later that year, both parties filed their inventories of property and debts, but neither included William's Federal Employees' Retirement System ("FERS") annuity in their filings. William and Jessica then attended a settlement conference and reached a partial agreement, under which Jessica was "awarded her community portion of the retirement in [William's] name."

¶4 In August 2018, the parties signed the settlement agreement, and on August 24 William's counsel drafted the consent decree. The proposed decree stated that "[Jessica] is awarded her community portion of [William's] retirement in his name" without specifying the retirement accounts. The same day, Jessica's counsel contacted Erwin Kratz, who was preparing the Qualified Domestic Retirement Order (QDRO) for the parties. Jessica's counsel provided Kratz language from the proposed decree for the QDRO that would address William's FERS Thrift Savings Plan, but he notified her the language was "[in]sufficient" because it did not address "whether to award survivor benefits to the wife" and did not specify who would pay the costs. Jessica's counsel acknowledged Kratz's FERS concern, and notified William's counsel that Jessica offered to "waive her interest in the FERS plan, including any survivor annuity, in exchange for [William] paying [Kratz's] full fee and a contribution of $2, 000 towards her attorney's fees." William accepted the offer.

¶5 In September 2018, Jessica's counsel lodged a decree of dissolution stating that Jessica "waives any interest in [William]'s FERS retirement." The trial court subsequently signed the decree, concluding it was "fair and reasonable under the circumstances." The parties did not sign the decree. The following month, Jessica filed a motion to set aside the decree pursuant to Rule 85(b), alleging, in part, that "a misunderstanding between counsel resulted in a mistake on the division of [William's] FERS retirement account."

¶6 The trial court held an evidentiary hearing and subsequently issued an under-advisement ruling granting in part the motion to set aside Jessica's waiver of William's FERS annuity in the divorce decree. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).3

Discussion

¶7...

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