Wassenaar v. Wassenaar, 1 CA-CV 20-0429-FC

Background

Parties married in 2007; one child (b. 2009). Dissolution Decree (Dec. 2015) awarded Mother the marital home as her sole and separate property but granted Father 30% of the equity "upon the sale of the marital home by Mother, whenever that shall occur." Decree also required Mother to attempt refinancing within one year to remove Father's name from the loan.
Father waived the opportunity for counsel review of the Decree, moved to California for work, and did not appeal the Decree.
Father returned to Arizona in 2019, requested increased parenting time, modification of child support, and asked the court to enforce/modify the Decree to accelerate his equity payout.
June 2020 evidentiary hearing: court found Father’s return a material change, awarded expanded, scheduled parenting time (denying "floating days"), attributed $9,000/month income to Father for child support (he claimed < $3,000), and denied his petition to modify/enforce the Decree as to the equity payout.
The superior court ordered Mother to refinance to remove Father from loan documents and additionally ordered the parties to prepare and execute a new deed placing title solely in Mother’s name; on appeal the court vacated only the deed-execution requirement. The award of attorney fees to Mother below is not reviewable on appeal.

Issues

Issue	Father’s Argument	Mother’s Argument	Held
Whether Father should get "floating days" in addition to every-other-weekend parenting time	Proposed every-other-weekend plus four floating days/month	Floating days create an inconsistent schedule that harms the child	Trial court’s denial of floating days and adoption of a fixed schedule affirmed (no abuse of discretion)
Whether the court erred in attributing $9,000/month to Father for child support	Actual self-employment net income is under $3,000/month; $9,000 is incorrect	Father failed to corroborate low-income claim; court may attribute income based on earning capacity and past earnings	Attribution of $9,000/month affirmed (court found Father capable of earning that amount)
Whether the Decree’s 30%-on-sale provision is modifiable or unenforceable as indefinite/perpetual	Decree unfairly leaves payout indefinite or violates rule against perpetuities; seeks immediate relief	Decree is a valid, unambiguous settlement term; Father waived challenge by not timely appealing	Denial of petition to modify/enforce the Decree affirmed; Decree enforced as written
Whether the court could order the parties to execute a new deed placing title solely in Mother’s name	Court’s deed order effectively extinguished Father’s 30% interest without providing a lien or modifying Decree	Decree required only refinancing to remove Father from loan documents, not a new deed	Order requiring execution of a new deed vacated—Decree did not mandate executing a new deed

Key Cases Cited

In re Marriage of Diezsi, 201 Ariz. 524 (App. 2002) (parenting-time decision reviewed for abuse of discretion)
Nold v. Nold, 232 Ariz. 270 (App. 2013) (trial court’s best-interest analysis under A.R.S. § 25-403 examined under discretion)
Taliaferro v. Taliaferro, 188 Ariz. 333 (App. 1996) (attribution of income based on earning capacity)
Williams v. Williams, 166 Ariz. 260 (App. 1990) (authority for attributing potential earnings when underemployed)
McNutt v. McNutt, 203 Ariz. 28 (App. 2002) (standards of review for child support and Guidelines issues)
Estes Co. v. Aztec Constr., Inc., 139 Ariz. 166 (App. 1983) (clear, unambiguous contract terms must be enforced as written)
De Gryse v. De Gryse, 135 Ariz. 335 (App. 1983) (final property dispositions in a decree are generally not subject to modification)
Porter v. Estate of Pigg, 175 Ariz. 194 (App. 1993) (failure to timely appeal a decree forfeits later challenges)