NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. 

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Marriage of: 

TRACEY STONE, Petitioner/Appellant,

v.

DAVID VAN STONE, JR., Respondent/Appellee.

No. 1 CA-CV 16-0178 FC

Appeal from the Superior Court in Maricopa County

No. FN2015-000278

The Honorable Katherine M. Cooper, Judge

VACATED IN PART AND REMANDED

COUNSEL

Berkshire Law Office, PLLC, Phoenix

By Keith Berkshire, Megan Lankford

Co-Counsel for Petitioner/Appellant

Paula J. Burnstein, PC, Phoenix

By Paula J. Burnstein

Co-Counsel for Petitioner/Appellant

FILED 9-28-2017
STONE v. STONE

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.

B R O W N, Judge:

¶1 Tracey Stone ("Wife") appeals the superior court's decree of 

dissolution ending her marriage to David Van Stone, Jr. ("Husband"). For 

the following reasons, we vacate portions of the decree and remand for the 

court to determine if the parties' settlement agreement was fair and 

equitable and whether either party should be awarded attorney's fees.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties married in 2013, divorced in 2016, and have no 

children together. During the marriage, the parties established a bar and 

grill restaurant ("Bar"). After Wife petitioned for dissolution, the Arizona 

Department of Liquor Licenses and Control cancelled the Bar's liquor

permit, and the Bar closed.1

¶3 Early in the dissolution proceedings, the parties agreed to 

participate in private mediation. At the mediation, the parties signed a 

written agreement ("Agreement") pursuant to Arizona Rule of Family Law 

Procedure ("Rule") 69. The Agreement awarded Wife all the assets and 

liabilities associated with the Bar and directed her to make an equalization 

payment of $85,000 to Husband "in lieu of spousal maintenance."

¶4 Four days after the mediation, Wife moved to challenge the

Agreement, alleging, inter alia, that she signed the Agreement under 

duress.2 Husband filed a counter-motion to adopt the Agreement. The 

superior court scheduled a "status conference," stating it would "hear oral 

argument and take evidence" regarding the parties' motions.

 

1 The Bar was operating under an interim permit pending review of 

its liquor license application.

2 After retaining counsel, Wife moved to amend her motion to 

challenge the Agreement, which the superior court granted.
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¶5 At the status conference, Wife's counsel moved to admit 

documentary evidence but the superior court did not allow it. Instead, the 

court directed counsel to explain the legal basis for setting aside the

Agreement. Husband, however, was permitted to offer unsworn 

"testimony" regarding the Bar and his allegation that Wife had "wasted"

business assets.

¶6 Thereafter, the court denied Wife's motion and granted 

Husband's counter-motion, concluding Wife failed to "present admissible 

evidence that the Agreement 'does not constitute an equitable distribution 

of the community assets.'" Without taking evidence, the court concluded

that (1) the Bar was profitable, (2) Wife sold the liquor license for $75,000, 

(3) Wife "spent $105,000 from the business funds on personal expenses," and 

(4) Wife "appropriated $22,000 from business liquor sales." Finally, the 

court concluded that "[b]ased on counsels' avowals of what the evidence 

would show, the Court finds the Agreement to be fair and equitable under 

the circumstances."

¶7 Thereafter, Wife moved to amend pursuant to Rule 83, which 

the superior court denied. The court then entered a decree of dissolution 

adopting the parties' Agreement, and in a separate judgment awarded 

attorney's fees to Husband in the amount of $2,050. Wife timely appealed.

DISCUSSION

¶8 We review the superior court's distribution of marital 

property for an abuse of discretion. See Sharp v. Sharp, 179 Ariz. 205, 209 

(App. 1994). "An abuse of discretion exists when the trial court commits an 

error of law in the process of exercising its discretion." Fuentes v. Fuentes, 

209 Ariz. 51, 56, ¶ 23 (App. 2004). An abuse of discretion also exists when 

"the record, viewed in the light most favorable to upholding the trial court's 

decision, is devoid of competent evidence" to support the court's decision. 

Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (citation and quotation omitted).

¶9 In a dissolution proceeding, the parties may settle all property 

rights by agreement between themselves and, "in the absence of fraud or 

undue influence, such an agreement is binding upon the parties." Keller v. 

Keller, 137 Ariz. 447, 448 (App. 1983); see also Ariz. R. Fam. Law P. 69(A)

(providing that an agreement between the parties shall be valid and 

binding if it is in writing or if the terms of the agreement are set forth on the 

record before the court). An agreement is binding on the superior court 

unless the court finds it to be "unfair":
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In a proceeding for dissolution of marriage or for legal 

separation, the terms of the separation agreement, except 

those providing for the support, custody and parenting time 

of children, are binding on the court unless it finds, after 

considering the economic circumstances of the parties and 

any other relevant evidence produced by the parties, on their own 

motion or on request of the court, that the separation agreement is 

unfair.

Ariz. Rev. Stat. ("A.R.S.") § 25–317(B) (emphasis added). Under Arizona 

Revised Statutes ("A.R.S.") section 25–317(B), the court has a duty to 

independently determine whether the agreement is fair and equitable 

before incorporating it into the decree and to consider all "relevant evidence 

produced by the parties" in doing so. A.R.S. § 25–317(B); Sharp, 179 Ariz. at 

211.

¶10 In Sharp, the parties signed a settlement agreement providing 

for the distribution of community property. See 179 Ariz. at 207. The

husband then filed a motion for summary judgment/motion to enforce, 

asking the court to incorporate the agreement into a final order. Id. at 208.

The wife opposed the motion, asserting the agreement "was unfair and the 

result of undue influence and overbearing tactics" by the husband. Id. The 

superior court granted the husband's motion and entered a decree finding 

that the agreement was "not unfair." Id.

¶11 On appeal, this court reversed and remanded for further 

proceedings:

[I]n this case there were plainly disputed facts on the question 

of the fairness of the agreement, and the court was presented 

no evidence as to the extent of the community assets. 

Although the dissolution decree states that the parties'

agreements are not unfair, neither the decree nor the court's 

minute entry granting summary judgment contains any basis on 

which the court could have made such a determination and, indeed, 

there is no evidence in the record on which such a conclusion could 

be based.

Id. at 210 (emphasis added).

¶12 Here, Wife argues the superior court abused its discretion in 

finding the Agreement fair and equitable because the record does not 

include any evidence supporting the court’s finding. She also asserts the 
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court "was required to independently determine the fairness of the 

Agreement."

3

¶13 The Agreement awarded Wife the Bar along with its 

associated assets and liabilities. In return, Wife was required to make "an 

equalization in the amount of $85,000" to Husband that was purportedly 

"in lieu of spousal maintenance." The superior court had an obligation to 

independently determine whether these provisions were fair and equitable 

before incorporating them into the decree. See Sharp, 179 Ariz. at 210. In 

making that determination, the court was required to consider "the 

economic circumstances of the parties and any other relevant evidence 

produced by the parties" concerning those disputed facts. A.R.S. § 25–

317(B).

¶14 The record here does not include sufficient evidence to 

support the superior court's finding that the Agreement was "fair and 

equitable." Although the court's ruling relied on certain alleged facts that it 

characterized as "undisputed," including that (1) the Bar was profitable, (2) 

Wife spent "$105,000 from the business funds on personal expenses," and 

(3) Wife "appropriated $22,000 from business liquor sales," Wife alleged 

conflicting facts. Therefore, it was incumbent on the court to consider any 

relevant evidence produced by the parties.

¶15 As the party challenging the Rule 69 Agreement, Wife bore

the burden of proving a defect in the Agreement. See Ariz. R. Fam. Law P. 

69(B). The superior court, however, failed to provide Wife an opportunity 

to satisfy her burden. At the status conference, Wife attempted to offer 

documentary evidence, but the court refused its admission.

4 Moreover, 

although the court permitted Husband to offer unsworn testimony, it did 

not provide Wife the same opportunity. Rather than allowing the parties 

to introduce evidence, the court based its decision on the "avowals made by 

counsel." See Volk v. Brame, 235 Ariz. 462, 464, ¶ 1 (App. 2014) ("We hold 

that when the resolution of an issue before the court requires an assessment 

 

3 Husband did not file an answering brief, and we could treat his 

failure as a confession of reversible error. In the exercise of our discretion, 

we elect to decide this case on the merits of the issues Mother has raised on 

appeal. See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).

4 Approximately two weeks before the status conference, Wife handdelivered ten exhibits to the court, which she intended to introduce at the 

status conference.
STONE v. STONE

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of credibility, the court must afford the parties an opportunity to present 

sworn oral testimony, and may not rely solely on avowals of counsel.").

¶16 In sum, the record is devoid of competent evidence to support 

the award of the Bar to Wife and the corresponding equalization payment 

to Husband. Therefore, the superior court had an insufficient basis on 

which to determine that the Agreement was fair and equitable.

5

¶17 Wife also requests that we vacate the superior court's attorney 

fee's award to Husband and award her attorney's fees on appeal under 

A.R.S. § 25–324(A). In ordering Wife to pay Husband the attorney's fees he 

incurred in litigating Wife's challenge to the Agreement, the court found 

that Wife acted unreasonably by submitting her motions to set aside the 

Agreement. Because the court erred in rejecting Wife's challenge without 

conducting an evidentiary hearing, we vacate the $2,050 fee award. 

Pending the ultimate outcome of these proceedings on remand, the court 

shall reconsider whether a fees award to either party is appropriate, 

including fees incurred by Wife in successfully pursuing this appeal.

 

5 We further note that the decree directed Wife to make an 

equalization payment to Husband "in lieu of spousal maintenance." In In 

re Marriage of Foster, 125 Ariz. 208, 211 (App. 1980), this court held that the 

superior court abused its discretion by awarding one spouse a greater share 

of the community property in lieu of spousal maintenance.
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Decision of the Court

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CONCLUSION

¶18 For the foregoing reasons, we vacate paragraphs two and 

eight of the decree of dissolution, and the attorney's fees award to Husband. 

We remand for an evidentiary hearing to allow the court to independently 

determine whether the parties' Agreement is fair and equitable.

6 As the 

prevailing party on appeal, Wife is entitled to an award of costs upon 

compliance with Arizona Rule of Civil Appellate Procedure 21.

 

6 We recognize that neither A.R.S. § 25–317(B) nor our holding in Sharp 

explicitly require the superior court to hold an evidentiary hearing in all 

cases. If the record has sufficient evidence from which the court can 

determine whether a settlement agreement is fair and equitable, an 

evidentiary hearing may not be necessary. Here, the record reveals no such 

evidence.