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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LELAND SNOOK, Petitioner/Appellee,

v.

MADALENA AGUILAR, Respondent/Appellant.

No. 1 CA-CV 20-0058 FC

Appeal from the Superior Court in Maricopa County

No. FN2016-051451

The Honorable Dawn M. Bergin, Judge

AFFIRMED

COUNSEL

Schmillen Law Firm, PLLC, Scottsdale

By James R. Schmillen

Counsel for Petitioner/Appellee

Strong Law, Scottsdale

By Marc R. Grant, Jr.

Counsel for Respondent/Appellant

FILED 12-15-2020
SNOOK v. AGUILAR

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Acting Presiding Judge David B. Gass and Judge Michael J. Brown joined.

W I N T H R O P, Judge:

¶1 Madalena Aguilar (“Wife”) appeals the family court’s

judgment in favor of Leland Snook (“Husband”). Wife argues the family 

court (1) lacked subject matter jurisdiction to enter the judgment, (2) abused 

its discretion in granting Husband relief from the dissolution decree 

between the parties pursuant to Arizona Rule of Family Law Procedure 

(“Rule” or “ARFLP”) 85(b)(6), and (3) abused its discretion when it used a

November 2016 valuation of the marital residence rather than an April 2017 

valuation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The parties were married in January 1991. On February 8, 

2016, Husband filed a petition for dissolution of the marriage. Shortly 

before filing his petition, Husband moved out of the couple’s home in Mesa 

(“the marital residence”) at Wife’s request.

¶3 Before trial, Husband sought to purchase Wife’s equity in the 

marital residence and refinance it for use as his home. A November 2016 

appraisal valued the marital residence at $900,000.

¶4 At the close of the January 9, 2017 dissolution trial, the family 

court granted Husband’s request to purchase Wife’s equity in the marital 

residence, ordered Wife to vacate the residence by February 27, 2017, and 

ordered Husband to either refinance the residence by a date certain or list 

it for sale. The court’s January 11, 2017 dissolution decree incorporated 

these orders, required Husband to pay the mortgage on the residence 

beginning January 2, 2017, and precluded Wife from removing any fixtures 

from the residence. With regard to unrelated waste claims made by the 

parties, the court also found that “neither party wasted, destroyed, 

concealed, or fraudulently disposed of community assets.” On February 

10, 2017, Wife filed a timely notice of appeal from the decree.

¶5 As ordered in the decree, Wife moved out of the marital 

residence by February 27, 2017. The next day, Husband entered the home 
SNOOK v. AGUILAR

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3

and found it “in a damaged state.” Based on Wife’s alleged violations of 

court orders and the damaged condition of the marital residence, Husband 

filed a motion for contempt and for various orders on March 17, 2017. The 

motion sought court orders that Wife return personal property and execute 

a listing agreement for the couple’s other home, and an offset order to 

account for the damage to the marital residence. Specifically, Husband 

asked the family court to “[o]rder that Husband is able to deduct from 

Wife’s equity payment in the marital residence the cost to repair the items 

in the marital residence damaged by Wife,” as well as a request for 

attorneys’ fees.

¶6 On May 25, 2017, the family court held an evidentiary hearing 

addressing numerous issues, including Husband’s motion. Although the 

court ruled in favor of Husband on most of the issues before the court, and 

ordered that Wife pay a portion of Husband’s attorneys’ fees and costs due 

to the unreasonable positions Wife had taken, the court declined to rule on

Husband’s request for relief related to damages to the marital residence. 

Instead, the court concluded that because a ruling on Husband’s damage 

claim might change the final orders that were on appeal before this court, 

the family court lacked jurisdiction to rule on the issue. The family court 

further concluded that “Husband can either wait for a decision from our 

appellate court if he (Husband) wishes to revisit damage to certain real and 

personal property or Husband could consider a civil lawsuit against Wife.” 

Husband completed the refinance of the marital residence in May 2017, and 

after accounting for ordered adjustments, Wife received $123,441.23.

¶7 On December 26, 2017, this court issued a memorandum 

decision addressing Wife’s appeal of the decree. See Snook v. Aguilar, 1 CACV 17-0159 FC, 2017 WL 6567945 (Ariz. App. Dec. 26, 2017) (mem. 

decision). Although we largely affirmed the family court, we vacated 

certain orders, resulting in Husband owing Wife an additional sum of 

money. See id. at *4, ¶ 18.

¶8 As relevant here, Husband later filed an amended “CounterMotion for Offset for Damage to Marital Residence and Previous Attorney’s 

Fees Award,” which was effectively a renewal of his previous damage 

claim. Citing Birt v. Birt, 208 Ariz. 546, 552-53, ¶ 26 (App. 2004) (“A trial 

court can modify a division of property in a dissolution decree by utilizing 

Rule 60(c)(6).”1), Husband requested in part that the “Court modify the 

disposition of community property in the Decree to take into account the 

1 Former Arizona Rule of Civil Procedure 60(c) is now Rule 60(b), 

Ariz. R. Civ. P.
SNOOK v. AGUILAR

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4

damage sustained by Husband as a result of Wife’s vindictive and 

dishonest conduct.” Wife objected to the damage claim proceeding, 

arguing the family court lacked jurisdiction to rule because a final decree 

had been entered.

¶9 In a July 17, 2018 minute entry, the family court addressed 

Wife’s jurisdiction argument, concluding the court did not lack subject 

matter or other jurisdiction and Husband could seek to reopen the decree 

under what is now Rule 85(b)(6), ARFLP. The court further concluded

Husband was arguing the decree was “unfair and unjust insofar as it 

essentially gives Wife a greater portion of the community equity by virtue 

of causing Husband to use his own separate property to repair or replace 

property awarded to him in the dissolution action.” The court also noted 

that “Husband seeks modification of the disposition of property to allow 

for a more equitable result. This is what Husband alleged in his initial 

March 17, 2017, filing and again in his May 24, 2018, amended filing.”

¶10 In February 2019, the family court held a trial regarding 

Husband’s amended counter-motion and damage claims. In an April 24, 

2019 minute entry, the family court found (1) Husband was “a much more 

credible witness than Wife,” (2) “Wife deliberately caused damage to the 

marital residence between the time the parties physically separated and 

February 27, 2017, when Husband took possession of the home,” and (3) 

“Wife’s actions were motivated by spite and a desire for retribution related 

to the breakup of the parties’ marriage.” The court also found none of the

grounds set forth in Rule 85(b)(1)-(5) were applicable, and Husband was 

entitled to relief from the finality of the decree under Rule 85(b)(6) for the 

purpose of asserting his damage claim. The court further found Husband 

had proved most of the numerous alleged damages, including damage to 

the built-in refrigerators that would need to be replaced, and ultimately 

awarded Husband damages in the amount of $23,082.33.

¶11 After concluding Wife had acted unreasonably and had the 

financial resources to pay attorneys’ fees, the family court issued a

judgment awarding Husband the aforementioned damages and, as related 

to the damage claims, attorneys’ fees and costs in the amount of $25,473.00, 

plus interest.

¶12 We have jurisdiction over Wife’s timely appeal pursuant to 

Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2). See Brumett v. 

MGA Home Healthcare, L.L.C., 240 Ariz. 420, 428, ¶ 14 (App. 2016).
SNOOK v. AGUILAR

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5

ANALYSIS

I. Subject Matter Jurisdiction and Authority

¶13 Wife argues the family court lacked subject matter 

jurisdiction and statutory authority to consider and enter a judgment on 

Husband’s damage claim. She maintains all the damage occurred after the 

court awarded the marital residence to Husband, when the marital 

residence had by then become Husband’s sole and separate property, and 

the court lacked the authority to enter orders relative to his sole and 

separate property.

¶14 We review de novo questions of law, including whether 

subject matter jurisdiction exists. Weaver v. Weaver, 131 Ariz. 586, 587 (1982) 

(“Title 25 defines the boundaries of a dissolution court’s jurisdiction, and 

the court may not exceed its jurisdiction even when exercising its equitable 

powers.”); State v. Flores, 218 Ariz. 407, 410, ¶ 6 (App. 2008); Thomas v. 

Thomas, 203 Ariz. 34, 35-36, ¶ 7 (App. 2002). A defect in subject matter 

jurisdiction cannot be waived and may be raised at any time, including on 

appeal. State v. Buckley, 153 Ariz. 91, 93 (App. 1987). We also review de novo

the interpretation and application of statutes and procedural rules. See 

Thomas, 203 Ariz. at 36, ¶ 7; Alice M. v. Dep’t of Child Safety, 237 Ariz. 70, 72,

¶ 7 (App. 2015).

¶15 In addressing Wife’s subject matter jurisdiction argument, the 

family court ruled as follows:

“Subject matter jurisdiction is the power to hear and 

determine cases of the general class to which the particular 

proceedings belong.” In re Marriage of Dorman, 198 Ariz. 298, 

301, ¶ 7 (App. 2000) (citation omitted) (internal quotation 

marks omitted). “The test of jurisdiction is whether the 

tribunal has power to enter upon the inquiry . . . .” Greater 

Ariz. Sav. & Loan Ass’n v. Tang, 97 Ariz. 325, 327 (1965). The 

Arizona Constitution and statutes prescribe the superior 

court’s jurisdiction. In re Estate of Hash v. Henderson, 109 Ariz. 

174, 178, modified on other grounds, 109 Ariz. 258 (1973). The 

superior court is a single unified court with original 

jurisdiction over “[c]ases and proceedings in which exclusive 

jurisdiction is not vested by law in another court,” including 

“cases in which the demand or value of property in 

controversy amounts to one thousand dollars or more,” and 

actions for “[d]ivorce and for annulment of marriage.” Ariz. 
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Const. art. VI, §§ 13, 14(1), (3), (9). “The superior court may 

maintain separate departments for different kinds of cases, 

but such administrative organization does not partition the 

court’s general subject matter jurisdiction.” Rinegar v. 

Rinegar, 231 Ariz. 85, 88, ¶ 13 (App. 2012). In other words, a 

party may seek remedy [] either by a separately filed civil 

action or by a motion to reopen the dissolution action and 

seek appropriate relief. Wife has failed to demonstrate the 

existence of any jurisdictional impediment to the Family 

Court rather than the Civil Court considering the parties 

disputed issue.

(Citations to Pacific Reporter omitted.) Although we review the issue de 

novo, we fully agree with this analysis by the family court.

¶16 Citing Weaver and A.R.S. §§ 25-311 and 25-318, Wife further 

argues the family court lacked “jurisdiction” to address Husband’s motion.

¶17 Even assuming arguendo that Wife has not waived at least 

some portion of her argument, the argument, though raised under the 

purview of “jurisdiction,” is essentially that the family court exceeded the 

scope of its authority to act under the marital statutes. See In Re Marriage of 

Thorn, 235 Ariz. 216, 220, ¶¶ 17-18 (App. 2014) (distinguishing Weaver and 

concluding that subject matter jurisdiction is not “coterminous” with the 

family court’s authority to act pursuant to the marital statutes).

¶18 We conclude the family court had the authority to address 

Husband’s amended counter-motion. Section 25-311(A) grants the family 

court original jurisdiction to hear and decide all matters arising pursuant to 

the dissolution of marriage statutes, including a division of the marital 

community. Under § 25-318(A), the court has the authority to “assign each 

spouse’s sole and separate property to such spouse” and to otherwise 

divide the community and other property equitably. When performing the 

equitable division of property, the family court is specifically authorized to 

consider the “destruction, concealment or fraudulent disposition of 

community . . . property.” A.R.S. § 25-318(C); see also Weaver, 131 Ariz. at 

587 (“Under [A.R.S. § 25-318], a court is not precluded from considering 

destruction of property in dividing the community, joint tenancy or other 

commonly held assets acquired during marriage.”).

¶19 Here, the family court awarded judgment to Husband for 

Wife’s destruction of what had been community property acquired during 

the marriage. Unlike the property at issue in Weaver, the marital residence 
SNOOK v. AGUILAR

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was not Husband’s sole and separate property at the time of filing for 

dissolution or even during the dissolution proceedings. See 131 Ariz. at 586-

87. Instead, the marital residence was acquired by the parties during the 

marriage and was community property to be divided upon dissolution of 

the marriage. Wife’s reliance on Weaver is unavailing and inconsistent with 

the proper application and intent of A.R.S. § 25-318. See Fry v. Garcia, 213 

Ariz. 70, 72-73, ¶ 9 (App. 2006) (“For a statute to divest the superior court 

of jurisdiction, even in the broader sense of authority to act, the legislature 

must declare its intent to create divestiture ‘explicitly and clearly.’” (citation 

omitted)).

¶20 Furthermore, A.R.S. § 25-327(A) allows for the unwinding or 

reconsideration of a decision regarding community property by expressly 

allowing provisions as to property disposition to be revoked or modified

when “the court finds the existence of conditions that justify the reopening 

of a judgment under the laws of this state.” One such legal basis for 

reopening a judgment is ARFLP 85(b), which is analogous to Arizona Rule 

of Civil Procedure 60(b). See Birt, 208 Ariz. at 553, ¶ 26 (recognizing the 

statutory requirement found under A.R.S. § 25-327(A) envisions relief 

under what is now Rule 60(b)).

¶21 Accordingly, we conclude the family court had both subject 

matter jurisdiction and the authority to address Husband’s amended 

counter-motion.

II. The Court’s Decision to Grant Relief Under ARFLP 85(b)(6)

¶22 Wife argues the family court abused its discretion in

reopening the decree pursuant to Rule 85(b)(6), ARFLP, for the purpose of 

allowing Husband to assert his damage claim against Wife. Wife maintains

Husband failed to show extraordinary hardship or injustice and that 

Husband’s damages could not be remedied through other means.

¶23 We review for an abuse of discretion the family court’s 

decision on a Rule 85 motion. Alvarado v Thomson, 240 Ariz. 12, 14, ¶ 11 

(App. 2016). We view the facts in the light most favorable to sustaining the 

family court’s order, while giving due regard to that court’s opportunity to 

judge witnesses’ credibility. Id. at 13, ¶ 1 n.1 (citations omitted). We base 

this deference on the family court’s “‘more immediate grasp’ of the facts 

and superior ability to ‘assess the impact’ of what has occurred.” Birt, 208 

Ariz. at 549, ¶ 9 (citation omitted). “[T]he standards to be applied in a 

dissolution proceeding are those of an equity court.” Weaver, 131 Ariz. at 

587 (citations omitted). Nonetheless, a court may abuse its discretion when 
SNOOK v. AGUILAR

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it incorrectly applies the law. Brown v. Superior Court, 137 Ariz. 327, 332 

(1983).

¶24 As previously noted, once a decree of dissolution is entered, 

the family court cannot reopen a judgment unless that court finds the 

existence of conditions that justify such a reopening. A.R.S. § 25-327(A). 

Under Rule 85(b),

the court may relieve a party or its legal representative from 

a final judgment, order, or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise, or excusable 

neglect; (2) newly discovered evidence that, with reasonable 

diligence, could not have been discovered in time to file a 

motion under Rule 83(a)(1); (3) fraud (whether previously 

called intrinsic or extrinsic), misrepresentation, or other 

misconduct of an opposing party; (4) the judgment is void; (5) 

the judgment has been satisfied, released, or discharged; it is 

based on an earlier judgment that has been reversed or 

vacated; or applying it prospectively is no longer equitable; or 

(6) any other reason justifying relief.

¶25 The family court reopened the decree under Rule 85(b)(6). 

Rule 85(b)(6), much like Arizona Rule of Civil Procedure 60(b)(6), “may be 

applied when relief is not available under any of the other subsections to 

the rule . . . , and ‘when our systematic commitment to finality of judgments 

is outweighed by extraordinary circumstances of hardship or injustice.’” 

Birt, 208 Ariz. at 551, ¶ 22 (citations omitted); accord Rogone v. Correia, 236 

Ariz. 43, 48, ¶ 12 (App. 2014) (recognizing that, to set aside a judgment for 

any “other reason justifying relief,” the movant must “show extraordinary 

hardship or injustice for a reason other than the five specified in [the Rule’s 

other subsections]”). “When the burden to consider such relief has been 

met, the court should exercise its discretion so as to not deny relief where 

the result is harsh, rather than fair and equitable.” Birt, 208 Ariz. at 551, 

¶ 22 (citation omitted); see also Rogone, 236 Ariz. at 48, ¶ 12 (recognizing the 

court has broad discretion to vacate a judgment under subsection (6) 

“when, after considering the totality of the circumstances and the equities 

involved, the court determines that it is appropriate to accomplish justice” 

(citations omitted)).

¶26 After a contested trial, the family court found “Wife 

deliberately caused damage to the marital residence between the time the 

parties physically separated and February 27, 2017, when Husband took 

possession of the home,” and that “Wife’s actions were motivated by spite 
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and a desire for retribution related to the breakup of the parties’ marriage.” 

Additionally, the court found Husband’s “claims were well documented 

and supported,” and he was more credible than Wife. Substantial evidence 

in the record supports the family court’s findings, and on appeal, Wife does 

not directly dispute these findings, which fully support the family court’s 

decision to exercise its broad discretion under Rule 85(b)(6) and rule that 

Husband was entitled to relief from the decree. See Birt, 208 Ariz. at 552, 

¶ 25.

¶27 Without citing legal support for her argument, Wife argues 

that damage deliberately caused to another’s property must be of a certain 

percentage or amount to be considered an injustice or extraordinary 

hardship. We disagree. The family court’s discretion was not limited by 

such a numerical analysis, and in any event, the amount of the damage here 

was obviously significant.

¶28 Finally, we also find unavailing Wife’s reliance on the 

language of Tippit v. Lahr, 132 Ariz. 406 (App. 1982), for her argument that 

Husband was required to show his damages could not be remedied by 

other means, such as a civil lawsuit. In Tippit, this court stated,

It is well established that Rule 60([b]), [Ariz. R. Civ. P.]

does not provide an alternative to appeal, or to other 

procedures for obtaining review of erroneous legal rulings, 

such as a motion for new trial or amended judgment under 

Rule 59. It is therefore held that a motion under Rule 60([b]) 

is not a device for reviewing or correcting legal errors that do 

not render the judgment void. While the precise scope of Rule 

60([b]) relief defies neat encapsulation, it is clear that the rule, 

except as it applies to void judgments, is primarily intended 

to allow relief from judgments that, although perhaps legally 

faultless, are unjust because of extraordinary circumstances 

that cannot be remedied by legal review.

132 Ariz. at 408-09 (citations omitted).

¶29 Read in context, the type of “legal review” to which Tippit

referred was review through means such as an appeal, a motion for new 

trial, or an amended judgment, not a separate lawsuit. A separate lawsuit 

is not “legal review” of the decree, and Tippit did not hold that Rule 60(b) 

relief is unavailable if an innocent spouse has the ability to file a separate 

lawsuit to recover amounts inequitably distributed as a result of the other 

spouse’s deliberate destruction of community property. Moreover, Wife’s 
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interpretation of the language of Tippit would be inconsistent with Birt, 

which supports the conclusion that such relief was appropriate under Rule 

85(b)(6). See generally 208 Ariz. at 551-53, ¶¶ 22-26. Accordingly, the family 

court did not abuse its discretion in reopening the decree pursuant to Rule 

85(b)(6), ARFLP, for the purpose of allowing Husband to assert his damage 

claim against Wife.

III. Valuation of the Marital Residence

¶30 Wife next argues the family court erred when it used the

November 12, 2016 appraised valuation of the marital residence ($900,000) 

rather than an April 13, 2017 valuation ($950,000).

¶31 Absent a clear abuse of discretion, we will not disturb the 

family court’s equitable division of community property. See In re Marriage 

of Flower, 223 Ariz. 531, 535, ¶ 14 (App. 2010). Additionally, the family court 

retains discretion to choose a property’s valuation date, and we review the 

determination of a valuation date for an abuse of that discretion. Sample v. 

Sample, 152 Ariz. 239, 242 (App. 1986). In our review, we view the evidence 

in the light most favorable to sustaining the family court’s ruling, and we 

will affirm if it is reasonably supported by the evidence. Boncoskey v. 

Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007).

¶32 As Husband correctly argues, Wife’s sole use of the April 2017 

appraisal, which she briefly referenced in her pretrial statement, was to 

refute Husband’s allegation that Wife deliberately caused damage to the 

marital residence. The April 2017 appraisal was never offered, much less

admitted, into evidence by either party, and Wife does not cite to it as an 

item in the record on appeal. Moreover, Wife did not request, either at trial 

or at any other time, that the family court reallocate its division of 

community property based on the April 2017 appraisal. In fact, it appears 

Wife raises this issue for the first time in her opening brief. See K.B. v. State 

Farm Fire & Cas. Co., 189 Ariz. 263, 268 (App. 1997) (noting that appellate 

courts generally do not consider arguments raised for the first time on 

appeal).

¶33 Even assuming arguendo that Wife properly made and 

preserved this argument for appeal, however, we conclude the family court 

did not abuse its discretion in relying on the previously relied-upon 

November 2016 valuation when restoring the equitable division of property 

between Husband and Wife. Under A.R.S. § 25-318(A), community 

property is to be divided equitably, though not necessarily exactly evenly, 

see Toth v. Toth, 190 Ariz. 218, 221 (1997), and in equitably dividing 
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community property, the family court is authorized to consider “excessive 

or abnormal expenditures, destruction, concealment or fraudulent 

disposition of community [property],” A.R.S. § 25-318(C). The use of the 

November 2016 valuation date resulted in substantial equality and was 

within the family court’s discretion, and nothing about the court’s reliance 

on the November 2016 appraisal in valuing the marital residence impugns 

the fairness of the result. See Sample, 152 Ariz. at 242.

IV. Costs and Attorneys’ Fees on Appeal

¶34 Both parties request costs and attorneys’ fees on appeal 

pursuant to A.R.S. § 25-324. Section 25-324(A) provides a basis for an award 

of attorneys’ fees on appeal upon consideration of the parties’ financial 

resources and the reasonableness of the positions each party has taken

throughout the proceedings. Although Wife argues her income is 

significantly less than that of Husband, both parties clearly have substantial 

financial resources. Additionally, after consideration of the reasonableness 

of the positions each party has taken, we award attorneys’ fees to Husband, 

in an amount to be determined upon compliance with Arizona Rule of Civil 

Appellate Procedure (“ARCAP”) 21. As the successful party, Husband is 

awarded taxable costs on appeal, also upon compliance with ARCAP 21.

CONCLUSION

¶35 The family court’s judgment is affirmed.