IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of:

SHANEN CASWELL, Petitioner/Appellee,

v.

SHAWN CASWELL, Respondent/Appellant.

No. 1 CA-CV 22-0430 FC

Appeal from the Superior Court in Yavapai County

No. P1300DO201800728

The Honorable Cele Hancock, Judge

VACATED

COUNSEL

Keist, Thurston O’Brien, P.C., Peoria

By Joel N. Thurston

Counsel for Petitioner/Appellee

Popp Law Firm P.L.C., Tempe

By James S. Osborn Popp

Counsel for Respondent/Appellant

FILED 6-20-2023
CASWELL v. CASWELL

Opinion of the Court

2

OPINION

Judge Daniel J. Kiley delivered the opinion of the Court, in which Presiding 

Judge Maria Elena Cruz and Judge James B. Morse Jr. joined. Judge Morse

also delivered a separate special concurrence in which Presiding Judge 

Cruz joined.

K I L E Y, Judge:

¶1 After dissolving the marriage of Shanen Caswell (“Wife”) and 

Shawn Caswell (“Husband”) by consent decree (the “Consent Decree”), the 

superior court entered a stipulated domestic relations order (the 

“Stipulated DRO”) providing for the distribution of the community interest 

in Husband’s pension benefits upon his retirement. More than 18 months 

later, and over Husband’s objection, the court entered an amended 

Domestic Relations Order (the “Amended DRO”) requiring Husband to 

make monthly payments to Wife until he retires pursuant to Koelsch v. 

Koelsch, 148 Ariz. 176 (1986). Husband appeals from the Amended DRO. 

¶2 When it entered the Stipulated DRO, the court expressly 

retained jurisdiction to enforce, but not to modify, its provisions. By 

requiring Husband to make Koelsch payments, however, the Amended 

DRO modified the Stipulated DRO by imposing a new obligation on one of 

the parties. Because Wife neither requested nor established grounds for 

modification under Arizona Rule of Family Law Procedure (“Rule”) 85, the 

court was without jurisdiction to enter the Amended DRO. Accordingly, 

we vacate the Amended DRO. 

FACTS AND PROCEDURAL HISTORY

¶3 Throughout the parties’ 14-year marriage, Husband, a law 

enforcement officer, was a member of the Arizona Public Safety Personnel 

Retirement System (“PSPRS”).

¶4 As relevant here, the Consent Decree awarded each party half 

“of the community interest in [Husband’s] PSPRS defined benefit plan” 

accrued during the marriage through the date the marital community 

terminated in August 2017. The Consent Decree provided that

[Husband’s] PSPRS shall be divided through a Domestic 

Relations Order in accordance with the terms contained 
CASWELL v. CASWELL

Opinion of the Court

3

[herein]. The cost of preparing the Domestic Relations 

Order shall be equally shared by the parties. 

The Consent Decree was entered as a final judgment under Rule 78, and no 

party appealed. 

¶5 Later, the superior court entered the Stipulated DRO, which 

states that Wife “is awarded as her sole and separate property a pro-rata 

share of [Husband’s] pension payable directly by [PSPRS] at the same time 

and in the same manner payments are made to [Husband] pursuant to [PSPRS].” 

(Emphasis added.) Paragraph 3(d) of the Stipulated DRO states that 

“[n]othing in this Order shall be construed to place any limits on [Wife’s] 

legal rights to make a claim for direct payments under [Koelsch].” Paragraph 

11 of the Stipulated DRO provides that 

[t]he Court retains jurisdiction to amend this Order but only

for the purpose of establishing or maintaining its 

acceptance to the relevant System or Plan, and to supervise 

the payment of retirement benefits as provided in the 

Order to [Wife].

(Emphasis added.) No party appealed from the Stipulated DRO, which was 

an appealable order under A.R.S. § 12-2101(A)(2). See Boncoskey v. 

Boncoskey, 216 Ariz. 448, 451, ¶ 12 (App. 2007) (recognizing right to appeal 

from domestic relations order as a special order entered after final 

judgment). 

¶6 Almost six months after entry of the Stipulated DRO, Wife 

filed a petition seeking to “enforce the prior judgment made in this matter.” 

Asserting that Husband’s “willful[]” decision not to retire was “preventing 

[her] from obtaining her benefits under the pension,” Wife asked the court 

to order Husband to “begin to pay [Wife] her expected benefit, now.”

¶7 At a hearing in July 2021, the superior court rejected 

Husband’s contention that it lacked jurisdiction to order him to make preretirement Koelsch payments to Wife as compensation for the delay in her 

receipt of pension benefits. The court found that Wife did not “waive her

right to a Koelsch claim” in the Consent Decree, and that the Stipulated DRO 

“specifically sets out [Wife’s] rights to make a claim under Koelsch.” After 

further proceedings, and over Husband’s objection, the court entered the 

Amended DRO in May 2022 requiring Husband to pay Wife “a gross 

monthly Koelsch payment of $1,144.22” until she “starts receiving direct 

payments from the PSPRS” upon Husband’s retirement.
CASWELL v. CASWELL

Opinion of the Court

4

¶8 Husband timely appealed. We have jurisdiction pursuant to 

A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2). 

DISCUSSION

¶9 The interpretation of a dissolution decree or court order 

presents a question of law that is reviewed de novo. Chopin v. Chopin, 224 

Ariz. 425, 427, ¶ 6 (App. 2010).

¶10 The Arizona Supreme Court recognized in Koelsch that the 

portion of an employee pension that was earned during the employee’s 

marriage is community property subject to equitable division upon 

dissolution of the employee’s marriage. Koelsch, 148 Ariz. at 181. Noting 

that, after dissolution, the non-employee spouse will not begin to receive 

his or her share of the pension benefits until the employee spouse retires, 

the Koelsch court found that an employee spouse’s decision to delay 

retirement after dissolution “deprives the non-employee spouse of the 

immediate enjoyment” of his or her share of the pension benefits. Id. To 

prevent a pension-eligible employee from “unilaterally depriv[ing] the 

non-employee spouse of his or her property,” the Koelsch court held that the 

superior court has authority, at dissolution, to order a pension-eligible 

employee who delays retirement to pay the non-employee spouse “a 

monthly amount equal to his or her share of the benefit which would be 

received if the employee spouse were to retire.” Id. at 185. 

¶11 In entering the Amended DRO here, the superior court relied 

on Koelsch. Koelsch is inapposite, however, because the claim raised in 

Koelsch was asserted on direct appeal from a dissolution decree entered 

after a contested hearing. Id. at 178-79. As this Court later recognized, 

Koelsch “does not authorize a post-judgment alteration to the spouses’ 

agreed-upon distribution” of retirement benefits at dissolution. Quijada v. 

Quijada, 246 Ariz. 217, 219, ¶ 1 (App. 2019).

¶12 In Quijada, the consent decree dissolving the marriage of 

Michael and Julie Quijada directed that the community’s interest in 

Michael’s PSPRS pension would be divided pursuant to a stipulated DRO. 

Id. at ¶ 3. The DRO, in turn, provided that Julie would receive her share of 

the community’s interest in the pension “payable directly by [PSPRS] at the 

same time and in the same manner payments are made to [Michael].” Id.

(cleaned up). The DRO permitted amendments “only for the purpose of 

establishing or maintaining its acceptance to [PSPRS] and to supervise the 

payment of retirement benefits as provided in the Order.” Id. When Michael 

continued to work past his retirement eligibility date, Julie petitioned the 
CASWELL v. CASWELL

Opinion of the Court

5

superior court to require him to compensate her for the delay in her receipt 

of pension benefits by making direct payments to her pursuant to Koelsch. 

Id. at ¶ 4. The court denied her request. Id. 

¶13 On appeal, we affirmed, holding that a post-dissolution order 

requiring Michael to make Koelsch payments to Julie would effect “a de facto

modification” of a final judgment in violation of Arizona law. Id. at 220, ¶ 5. 

“[A]t the time of dissolution,” we noted, Julie “could have insisted upon a 

different valuation or distribution method,” including “one whereby she 

received a Koelsch-type offset payment in the event [Michael] elected not to 

retire when first eligible.” Id. at 221, ¶ 10. Instead, Julie stipulated to a 

consent decree and a DRO providing that “she would receive her portion 

of the retirement benefits upon their distribution to” Michael. Id. 

Accordingly, we concluded, Julie “waived any argument” that she was 

entitled to later seek Koelsch payments that were not provided for in the 

stipulated decree and DRO. Id.

¶14 As in Quijada, the parties here stipulated to a dissolution 

decree providing that the community’s interest in retirement benefits 

would be distributed pursuant to a DRO. The court subsequently entered 

the Stipulated DRO awarding Wife “a pro-rata share of [Husband’s] 

pension payable directly by [PSPRS] at the same time and in the same 

manner payments are made to [Husband].” When entering the Stipulated 

DRO, the superior court retained jurisdiction “only for the purpose of 

establishing or maintaining [the DRO’s] acceptance to the relevant System 

or Plan, and to supervise the payment of retirement benefits as provided in 

the Order to [Wife].” Accordingly, neither the Consent Decree nor the 

Stipulated DRO was subject to modification absent a showing of 

circumstances justifying relief pursuant to Rule 85. See A.R.S. § 25-327(A)

(“The provisions [of a dissolution decree] as to property disposition may 

not be revoked or modified, unless the court finds the existence of 

conditions that justify the reopening of a judgment under the laws of this 

state.”); Breitbart-Napp v. Napp, 216 Ariz. 74, 80, ¶ 16 (App. 2007) (“The 

reopening of a [dissolution decree] is governed by [predecessor to Rule 

85].”). 

¶15 Rule 85 authorizes relief from a final decree or judgment on 

one of several specified grounds, including “mistake,” “surprise,” or “other 

reason justifying relief.” The moving party bears the burden of establishing 

grounds for relief, see Duckstein v. Wolf, 230 Ariz. 227, 230, ¶ 5 (App. 2012), 

and the superior court has “no authority to grant relief without some 

evidence to support the claim on which the application for relief 

depended,” Breitbart-Napp, 216 Ariz. at 82, ¶ 30 n.5 (citation omitted). 
CASWELL v. CASWELL

Opinion of the Court

6

¶16 Nothing in the record indicates that the superior court found 

grounds for relief under Rule 85. Indeed, the court expressly found that no 

request for Rule 85 relief had been made.1 Because relief under Rule 85 was 

neither sought nor granted, the court lacked authority to modify the parties’ 

stipulated distribution of retirement benefits by entering the Amended 

DRO. 

¶17 In support of her position, Wife relies on DeLintt v. DeLintt, 

248 Ariz. 451 (App. 2020). In DeLintt, we vacated the superior court’s denial 

of the wife’s post-decree request for an order requiring the husband, a 

federal employee covered by a pension plan, to make Koelsch payments to 

her until he retired. Id. at 452-53, ¶ 1. In so holding, we determined, first, 

that the dissolution decree did not foreclose the wife’s Koelsch claim because 

the decree was “silent as to the timing and terms of how [she] was to receive 

her share of [the husband’s] retirement benefits.” Id. at 454, ¶ 9. Further, we 

noted, the decree expressly reserved jurisdiction to resolve “any disputes” 

over the division of the parties’ retirement benefits. Id. at 453-54, ¶¶ 3, 10. 

Under the circumstances, we concluded, the superior court erred in 

concluding that the wife waived her right to seek Koelsch payments after 

entry of the decree. Id. at 454, ¶ 10. 

¶18 Unlike the decree in DeLintt, which was “silent” on the 

“timing and terms” of the wife’s receipt of her share of pension benefits, the 

Stipulated DRO here expressly awarded Wife “a pro-rata share” of the 

pension “directly” from PSPRS “at the same time and in the same manner 

payments are made to” Husband. Further, while the decree in DeLintt

reserved jurisdiction “to resolve any disputes regarding the division” of the 

parties’ retirement benefits, id. at 453, ¶ 3 (emphasis added), the Stipulated 

DRO here provides that the court retained jurisdiction only for the purpose 

of implementing and enforcing the terms of the Stipulated DRO. Because 

the relevant circumstances presented here are unlike those in DeLintt, that 

case provides no support to Wife’s position. 

¶19 As noted above, Paragraph 3(d) of the Stipulated DRO states 

in part that “[n]othing in this Order shall be construed to place any limits 

on [Wife’s] legal rights to make a [Koelsch] claim.” In rejecting Husband’s 

1 The parties disputed whether, if the court ordered Husband to make 

Koelsch payments, he would be entitled to offset attributed Social Security 

benefits against the amount of those payments. In holding that Husband 

did not preserve his claim for such an offset, the superior court found that 

“[t]he issue of a social security offset was not raised during the dissolution, 

nor was there a Rule 85 motion to alter or amend timely filed in this case.”
CASWELL v. CASWELL

Opinion of the Court

7

challenge to its jurisdiction to modify the Stipulated DRO, the superior 

court implicitly relied on Paragraph 3(d) when it stated that the Stipulated 

DRO “specifically sets out [Wife’s] rights to make a claim under Koelsch.” 

But the Stipulated DRO did not reserve the court’s jurisdiction to modify

the parties’ stipulated allocation of retirement benefits. 

¶20 A court’s reservation of jurisdiction upon entry of a stipulated 

judgment or consent decree must be set forth in clear and unequivocal 

terms. See Major v. Coleman, 251 Ariz. 345, 349, ¶ 15 (App. 2021) 

(“[R]etaining jurisdiction to enforce a settlement agreement upon 

stipulation of the parties can be accomplished through an express provision 

retaining jurisdiction over the settlement agreement[.]”). This is

particularly true in the context of property distributions in dissolution 

decrees in light of the “compelling policy interest favoring the finality of 

property settlements.” Reed v. Reed, 124 Ariz. 384, 385 (App. 1979); see also 

De Gryse v. De Gryse, 135 Ariz. 335, 336, 338 (1983) (affirming denial of 

husband’s request to modify decree that awarded half of his military 

pension to wife and citing “[t]he well-established rule . . . that property 

settlements are not subject to modification”). 

¶21 Paragraph 3(d)’s statement that “[n]othing in this Order shall 

be construed to place any limits on [Wife’s] legal rights to make a [Koelsch] 

claim” does not expressly retain the court’s jurisdiction to modify the 

Stipulated DRO. Instead, Paragraph 3(d) merely provides that, by 

consenting to the Stipulated DRO, Wife would not be deemed to have 

waived her right to later seek modification of the distribution of retirement 

benefits by post-judgment motion. Paragraph 3(d), in other words, operates

to spare Wife the fate of the ex-wife in Quijada, who was held to have 

“waived” her claim for Koelsch payments when she stipulated to a decree 

and DRO that did not provide for them. Quijada, 246 Ariz. at 221, ¶ 10. 

¶22 Paragraph 11, the retention-of-jurisdiction provision of the 

Stipulated DRO, states that “[t]he Court retains jurisdiction to amend this 

Order but only for the purpose of establishing or maintaining its acceptance 

to the relevant System or Plan, and to supervise the payment of retirement 

benefits as provided in the Order to [Wife].” (Emphasis added.) Because 

Paragraph 11, by its terms, reserves jurisdiction only to implement and 

enforce the Stipulated DRO, it does not allow modification of the Stipulated 

DRO.2 See Cohen v. Frey, 215 Ariz. 62, 66, ¶ 11 (App. 2007) (“The meaning of 

2 In Miner v. Miner, No. 1 CA-CV 21-0155 FC, 2021 WL 4901603, at *1, ¶ 1

(Ariz. App. Oct. 21, 2021) (mem. decision), this Court affirmed the superior 
CASWELL v. CASWELL

Opinion of the Court

8

a decree is to be determined from the language used.”) (citation omitted). 

The superior court therefore lacked jurisdiction to modify the Stipulated 

DRO unless one of the parties sought, and established grounds for, relief 

under Rule 85(b). See Solmo v. Friedman, 909 So. 2d 560, 565 (Fla. Dist. Ct. 

App. 2005) (holding that dissolution decree’s provision reserving 

jurisdiction “for the purpose of enforcing” its terms and “entering such 

further orders” as may be “just and proper” was insufficient to reserve 

jurisdiction “to modify property rights after an adjudication of those 

rights”); Schrader v. Schrader, 669 N.E.2d 878, 878-80 (Ohio Ct. App. 1995) 

(holding that DRO’s provision retaining “limited jurisdiction to amend this 

order only . . . to create, conform, and maintain” the DRO “cannot be read 

as an express reservation of jurisdiction to modify the terms of the [DRO]”). 

¶23 Under the guise of a petition to “enforce” the Stipulated DRO, 

Wife obtained a de facto modification of the Stipulated DRO with no 

showing of grounds for such a modification under Rule 85(b). Because, 

when it entered the Stipulated DRO, the superior court retained jurisdiction 

only to enforce it, the court exceeded its jurisdiction when it entered the 

Amended DRO modifying the parties’ agreed-upon distribution of 

retirement benefits. See Danielson v. Evans, 201 Ariz. 401, 412, ¶ 38 (App. 

2001) (“Any action taken by a court which does not have jurisdiction is void 

and a nullity.”) (cleaned up). We therefore vacate the Amended DRO and 

need not address the alternative arguments Husband raises on appeal. 

CONCLUSION

¶24 For the foregoing reasons, we vacate the Amended DRO. 

¶25 Husband requests an award of attorney fees and costs on 

appeal pursuant to A.R.S. § 25-324 and Arizona Rule of Civil Appellate 

Procedure (“ARCAP”) 21. In our discretion, we deny his request for fees. 

However, as the prevailing party, Husband is awarded his costs incurred 

on appeal upon compliance with ARCAP 21(b). 

court’s order modifying a DRO to award Koelsch payments to the former 

wife after the former husband decided to continue working as a police 

officer past his retirement eligibility. In so holding, we noted that the DRO 

expressly “reserved the court’s authority to amend the Order to reflect the 

amount of the Koelsch payment.” Id. at *2, ¶ 11 (cleaned up). Because the 

Stipulated DRO here does not reserve the superior court’s jurisdiction to 

modify its provisions, Miner is inapposite.
CASWELL v. CASWELL

Morse, J. Special Concurrence

9

M O R S E, Judge, joined by Presiding Judge Cruz, specially concurring:

¶26 The majority faithfully applies our existing precedents to the 

facts of this case. We write separately to note our concern with these 

precedents.

¶27 Because "retirement benefits are often one of a community's 

most valuable assets," courts can order payments from an employee spouse 

to compensate a non-employee spouse for delayed payment of community 

retirement benefits. Koelsch, 148 Ariz. at 181. Our supreme court 

recognized at least four options for addressing this situation, including (1) 

an award of other community property "equal to the value of the [nonemployee spouse's] interest in the" retirement benefit; (2) "order that the 

non-employee spouse's interest be paid in full [or installments] at a 

specified time"; (3) monthly-payments for the share of the "monthly pension 

benefit that is precluded by the employee spouse's decision not to retire"; 

and (4) "deferring all or part of the monthly payment" to be repaid with 

interest and "secured by a lien on the employee spouse's separate property" 

or an insurance policy. Id. at 184-85.

¶28 Koelsch involved a claim raised on direct appeal from a 

dissolution decree. Our recent cases, however, involve post-decree 

litigation from dissolution decrees that are silent about whether to order 

Koelsch payments, the amount of any such payments, and the appropriate 

method for making payments. E.g., DeLintt, 248 Ariz. at 453, ¶ 4; Quijada, 

246 Ariz. at 219, ¶ 4; Miner, 2021 WL 4901603, at *1, ¶ 4. We have tacitly 

endorsed an approach in which the trial court does not address Koelsch in 

the decree except to reserve jurisdiction to address the issue in the 

future. E.g., DeLintt, 248 Ariz. at 454, ¶ 10. Because determining both 

whether and how to order Koelsch payments is part of dividing community 

property, see Koelsch, 148 Ariz. at 181, a decree that only reserves jurisdiction 

to decide the issue later may not be a true final appealable judgment, see

Ariz. R. Fam. Law P. 78(c) (stating that an appealable judgment must 

resolve all claims and issues), nor an all-inclusive decree, see A.R.S. § 25-

312(E).

¶29 "A.R.S. § 25-318 is clear in its mandate that community 

property must be divided on dissolution of the marriage." Dole v. Blair, 248 

Ariz. 629, 633, ¶ 12 (App. 2020). And "A.R.S. § 25-312 clearly mandates that

all issues relative to the marital status and the termination thereof be

resolved prior to entry of a decree of dissolution. Piecemeal litigation is not

to be encouraged; to the contrary, amicable settlement of custody,

maintenance and property disputes between spouses is the desirable
CASWELL v. CASWELL

Morse, J. Special Concurrence

10

goal." Porter v. Estate of Pigg, 175 Ariz. 194, 195-96 (App. 1993) (quoting 

Brighton v. Superior Court, 22 Ariz. App. 291, 292 (1974)), approved by 175 

Ariz. 303, 304 (1993). Thus, the family court errs when it "bifurcat[es] its 

rulings," and dissolves the marriage but retains jurisdiction to enter further 

orders about property. Larchick v. Pollock, 252 Ariz. 364, 367, ¶ 13 (App. 

2021); see A.R.S. § 25-312(E) ("To the extent it has jurisdiction to do so, the 

court shall make provisions for . . . the disposition of property." (emphasis 

added)); A.R.S. § 25-318(A) ("[T]he court shall also divide the community, 

joint tenancy and other property held in common equitably . . . ." (emphasis 

added)).

¶30 Admittedly, our supreme court has approved the 

reserved-jurisdiction approach for immature pension benefits that are 

impossible to calculate and award at the time of divorce. Koelsch, 148 Ariz. 

at 183; Boncoskey, 216 Ariz. at 451-52, ¶ 16. But, when possible, Koelsch 

contemplates addressing the issue while dividing other community 

property in the dissolution. See Koelsch, 148 Ariz. at 184-85 (endorsing use 

of other community property to offset retirement benefits). This is 

especially true when, as in this case, the court's judgment is based on a 

consent decree and stipulated DRO, i.e., a settlement agreement, and a 

subsequent motion to enforce. If a dissolution decree is silent about 

whether Koelsch payments should be awarded, the amounts to be paid, and 

the method for making such payments, it is difficult to discern what 

settlement the court retains jurisdiction to enforce. See Major v. Coleman, 251 

Ariz. 345, 349, ¶ 15 (App. 2021) (noting that retaining jurisdiction over a 

settlement agreement "encourages settlement by providing parties 

certainty about the terms of an agreement and a mechanism to easily 

enforce performance of the agreement").
CASWELL v. CASWELL

Morse, J. Special Concurrence

11

¶31 Instead of leaving such a significant issue unresolved, the 

parties and the family courts should attempt to resolve Koelsch issues in the 

final dissolution judgment. When a lump-sum payment or 

community-property offset is not possible, dissolution decrees should (1) 

specify the date or event (e.g., attaining eligibility for normal or early 

retirement) after which the employee ex-spouse will either retire or begin 

making Koelsch payments, (2) the amounts to be paid (or the manner in 

which the amount will be calculated), and (3) the method (i.e., current or 

deferred) by which the obligation will be satisfied.