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Correcting a Mistake in an Arizona Divorce Decree

Posted on : January 16, 2018, By:  Christopher Hildebrand
Correcting a Mistake in an Arizona Divorce Decree

Correcting a Mistake in an Arizona Divorce Decree

Correcting a Mistake in an Arizona Divorce Decree.

Correcting a Mistake in an Arizona Divorce Decree.

Courts in Arizona often rely on the parties in a divorce, or their lawyers, to present the Court with accurate information in preparing divorce decrees and judgments. But what happens when the information supplied does not align with what the Court has ordered? Is there a way of correcting a mistake in an Arizona divorce decree? In the recent case of Vincent v. Shanovich, the Supreme Court of Arizona considered whether the Court of Appeals had jurisdiction to decide if the Family Court correctly denied Shanovich’s motion to correct a “clerical error” in a Qualified Domestic Relations Order (“QDRO”) with regards to Schanovich’s retirement plan.

A Brief History of the Case: Vincent v. Shanovich

Ms. Vincent and Mr. Shanovich divorced in 2002. During the marriage, Shanovich worked for the City of Mesa and contributed to the Arizona State Retirement System. The divorce decree awarded Vincent “a one-half (½) portion of Shanovich’s retirement. Including employer contribution and accrued interest as of the date of filing the Petition for Dissolution” The date of filing was August 25, 2000. The parties were to prepare a QDRO to reflect this order from the court.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
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20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
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21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
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Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
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I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
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Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

In 2004 the parties stipulated to entry of a QDRO to reflect this order. The QDRO however provided that “Vincent was awarded 50% of Shanovich’s annuity, payable at the time and in the manner, payments are made to the member pursuant to the retirement benefit elected”. It also stated that if Shanovich withdrew from the retirement system or dies, Vincent would receive 50% of the account balance or death benefit as of August 25, 2000. The QDRO was entered and neither Shanovich or Vincent Appealed. Subsequently, in 2015 when Shanovich was getting ready to retire, he learned of the error in the QDRO and filed a motion to correct a clerical error with the family court.

Pursuant to Rule 85(A), Arizona Rules of Family Law Procedure, a family court can correct a clerical error at any time after a judgment is entered.

The Family Court denied Shanovich’s motion reasoning that the terms of the QDRO were clear and unambiguous and that the issue should have been raised on an appeal in 2004 when the QDRO was entered. Shanovich appealed and the Court of appeals dismissed his appeal stating they lacked jurisdiction to hear the case. The court of appeals agreed with the family court that the issue could have been raised on a timely appeal from the entry of the QDRO.

Fixing a Mistake in an Arizona Divorce Decree.

Fixing a Mistake in an Arizona Divorce Decree.

The Supreme Court first distinguished between what is a clerical error, versus what is a judgmental error. A clerical error occurs when a written decree or judgment fails to accurately set forth the court’s decision. The family court can correct a clerical error at any time. A judgmental error, however, must meet certain criteria, including time frames such as those for an appeal. The supreme court found that the court of appeals would have jurisdiction if the motion to correct a clerical error was a “special order made after final judgment”.

The court then analyzed the requirements for a “special order made after judgment”. The court held that in order to qualify as a “special order made after judgment” the appeal needed to meet two requirements. First, the issue raised on appeal from the order must be different from those that could have been raised on appeal from the underlying judgment. In this case, whether the QDRO containing a clerical error warranting correction could have been raised in a timely appeal in 2004. The Second requirement is that order must either affect the judgment or relate to its enforcement. In this case, does the family court’s order affect the QDRO and its enforcement?

The supreme court found that both factors were met in this case. Specifically, that the mistake in the QDRO could not have been raised in a timely appeal from the entry in 2004. Instead, whether the QDRO has a clerical error first had to be raised, which it was for the first time, in Shanovich’s motion to correct a clerical error. The second factor was also met because Absent correction of the QDRO, it will be used to provide Vincent with a share of Shanovich’s pension benefits that apparently conflicts with the family court’s intent as expressed in the dissolution decree.

The Supreme Court Determined the Court of Appeals Did Have Jurisdiction to hear Shanovich’s motion.

Mistake in an Arizona Divorce Decree.

Mistake in an Arizona Divorce Decree.

After reviewing the issues the Supreme Court found that the Court of Appeals did, in fact, have jurisdiction to hear Shanovich’s motion because it was, in fact, a “special order entered after judgment”. The Supreme Court further instructed the Court of Appeals to consider whether the QDRO accurately reflects the family court’s intent expressed in the dissolution decree to award Vincent a one-half portion of Shanovich’s retirement “as of the date of filing the Petition for Dissolution.” The Supreme court held that if the court of appeals concludes that clerical error exists, it should reverse and remand for the family court to correct the error. If it concludes that the error asserted is judgmental, it should affirm the denial of the motion.

Feel free to contact the Phoenix and Scottsdale Arizona divorce and family law attorneys at Hildebrand Law, PC at (480)305-8300 if you have questions about divorce and family law in Arizona.