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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL BOYLE, Petitioner/Appellee,

v.

LISA MALTA, Respondent/Appellant.

No. 1 CA-CV 18-0762 FC

Appeal from the Superior Court in Maricopa County

No. FN2017-053297

The Honorable Adam. D. Driggs, Judge

VACATED IN PART; AFFIRMED IN PART; REMANDED FOR 

RECONSIDERATION 

COUNSEL

Phelps & Moore PLLC, Phoenix

By Jon L. Phelps, Robert M. Moore, Jennie I. Tetreault

Counsel for Petitioner/Appellee

Lisa Malta, Phoenix

Respondent/Appellant

FILED 5-14-2020
BOYLE v. MALTA

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in 

which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani

joined.

M c M U R D I E, Judge:

¶1 Lisa Malta (“Wife”) appeals from the superior court’s ruling 

that the parties’ Postnuptial Agreement (the “Agreement”) was 

unenforceable and from other decisions in the decree of dissolution. 

Because the court applied an incorrect legal standard in finding that the 

Agreement was unenforceable, we vacate that ruling and remand for 

reconsideration. We affirm the remaining issues with instructions on 

remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties were married in 2014, and Daniel Boyle 

(“Husband”) filed a petition for dissolution in August 2017. In January 

2016, the parties entered into the Agreement, which provided that Husband 

would pay specific existing obligations and spousal maintenance for one 

year at “a level of support comparable to prior to filing.” The Agreement 

also obligated Husband to pay $880 per month in child support for Wife’s 

child from a prior relationship and pay back a $3500 debt Husband owed 

Wife’s child.

¶3 Husband filed a petition for dissolution in August 2017. After 

Wife filed an emergency motion for temporary spousal maintenance, the 

court initially ordered Husband to pay Wife $750 for October 2017. At a 

November 2017 hearing, the parties attempted to reach an agreement about

spousal maintenance. They did not, so the court ordered Husband to pay 

temporary spousal maintenance of $2000 per month and scheduled an 

evidentiary hearing for December.

¶4 At the December 2017 hearing, Wife’s attorney had 

withdrawn, and Wife represented herself. The superior court affirmed the 

temporary spousal-maintenance order and ordered Wife to sign HIPPA 

releases so Husband could respond to Wife’s claim that she was unable to 

work because of health reasons. The court scheduled the trial for August 2, 
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Decision of the Court

3

2018. The court denied Wife’s subsequent request for a continuance to find 

an attorney. Wife then filed an expedited request for a continuance on July 

27, including a doctor’s note stating she was unable to prepare for trial for 

the next 60 days “due to her medical conditions,” which included insomnia, 

sleep apnea, and fibromyalgia. The court continued the trial to October 31, 

2018.

¶5 Husband submitted his pretrial statement and trial exhibits 

one week before the trial as ordered, disclosing a psychologist as an expert 

witness for the first time. The day before trial, at 4:44 p.m., Wife sought a 

continuance based on her medical issues and Husband’s failure to provide 

bank records. Wife again submitted a note from her doctor, dated October 

1, 2018, which was nearly identical to the previous note. Wife also objected

to Husband’s expert witness on relevance and qualification grounds but 

did not object to the late disclosure. Her motion also included multiple 

exhibits.1 Wife delivered her trial exhibits to the court at 4:44 p.m. the day 

before the trial.

¶6 On the day of the trial, Wife emailed the superior court less 

than an hour before the trial “to advise that she was ‘very, very ill’ and had 

to go urgently to her medical provider” and would be late. Wife arrived 45 

minutes late to the trial. The court found insufficient evidence that Wife was 

unable to proceed and denied a continuance.

¶7 In the decree, the superior court ordered all bank accounts 

and debts divided equally, noting there were no financial records offered 

at the trial. The court found the Agreement was invalid because both parties 

did not sign it. Finding insufficient evidence that Wife could not work in 

her trained field as a social worker, the court awarded Wife spousal 

maintenance of $2000 per month for a year effective October 1, 2017. The 

court noted that because Husband had already paid $20,525 in temporary 

spousal maintenance, he only had a remaining support obligation of $3475 

by the date of the decree. Finally, the court denied Wife’s request for 

attorney’s fees, finding that although Husband had superior financial 

resources, Wife acted unreasonably throughout the litigation.

¶8 Both parties filed motions challenging the decree. Before the 

superior court could rule, Wife filed a notice of appeal. This court stayed 

1 According to the court clerk, pages 11–131 of this document were 

temporarily misplaced due to a clerical error but were later returned to the

file.
BOYLE v. MALTA

Decision of the Court

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the appeal to allow the superior court to rule on the pending post-decree 

motions. The superior court denied Wife’s motion for reconsideration 

without comment but granted Husband’s motion to correct the amount of 

spousal maintenance paid, awarding him an offset of $2227. We have 

jurisdiction over the appeal under Arizona Revised Statutes (“A.R.S.”) 

section 12-2101(A)(1).

DISCUSSION

A. The Superior Court Erred by Holding the Agreement was Void for

Lack of a Signature.

¶9 Wife contends the Agreement was enforceable and entitled 

her to additional financial support. Husband testified that he signed the 

Agreement under duress and that Wife never signed it. Wife claims she 

signed the Agreement, but a copy was not admitted in evidence at the trial. 

Wife attached a signed copy of the Agreement to her untimely motion for a 

continuance. Unlike the copy attached to Wife’s earlier proposed resolution 

management conference statement, this copy of the Agreement purported 

to show her notarized signature.

¶10 The superior court found the Agreement was invalid because 

Wife did not sign it, expressly relying on A.R.S. § 25-202(A), which states: 

“A premarital agreement must be in writing and signed by both parties.” A 

“premarital agreement,” is defined as an agreement “between prospective 

spouses . . . in contemplation of marriage . . . that [are] effective on marriage.” 

A.R.S. § 25-201(1) (emphasis added). In contrast, “[a] postnuptial 

agreement is defined as ‘[a]n agreement entered into during marriage to 

define each spouse’s property rights in the event of death or divorce.’” 

Austin v. Austin, 237 Ariz. 201, 206–07, ¶ 14 (App. 2015) (second alteration 

in original) (citing Black’s Law Dictionary 1356 (10th ed. 2014)). The 

Arizona Uniform Premarital Agreement Act, A.R.S. §§ 25-201 to –205, does 

not address the enforceability of a postnuptial agreement.

¶11 The parties entered into the Agreement during the marriage;

therefore, it is not governed by A.R.S. § 25-202. Thus, whether both parties 

signed the agreement does not conclusively determine whether the 

Agreement is enforceable.2 Postnuptial agreements are enforceable if they 

2 The dispute over whether Wife altered the third page of the 

Agreement to include her signature is now moot, although it remains 

relevant to Wife’s credibility.
BOYLE v. MALTA

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5

are free from fraud, coercion, undue influence, and not unfair. In re Harber’s 

Estate, 104 Ariz. 79, 87 (1969) (recognizing the validity of a property 

settlement agreement made during the marriage and not in anticipation of 

divorce or separation); Buckholtz v. Buckholtz, 246 Ariz. 126, 131, ¶¶ 17–18 

(App. 2019). When a postnuptial agreement is challenged because of

coercion or undue influence, the party seeking to uphold the agreement 

must prove by clear and convincing evidence that it was not coerced and is 

not unfair. Austin, 237 Ariz. at 206, ¶ 13 (quoting Harber, 104 Ariz. at 88); see 

also A.R.S. § 25-317(B) (the terms of a separation agreement “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 . . . that 

the separation agreement is unfair”); Buckholtz, 246 Ariz. at 131, ¶¶ 17–18; 

but cf. Hutki v. Hutki, 244 Ariz. 39, 43, ¶ 18 (App. 2018) (dicta stating that the 

burden established in Harbor was superseded by Rule 69).

¶12 Because the superior court applied an incorrect legal standard 

in determining whether the Agreement was enforceable, we vacate the 

ruling that the Agreement was not enforceable and remand for 

reconsideration.3 Hammett v. Hammett, 247 Ariz. 556, 559, ¶ 13 (App. 2019)

(“A trial court abuses its discretion when it misapplies the law or predicates 

its decision on incorrect legal principles.”(quoting State v. Jackson, 208 Ariz. 

56, 59, ¶ 12 (App. 2004))). On remand, the superior court may, in its 

discretion and as necessary to reconsider the Agreement, reopen the 

evidence to allow for a complete record regarding the Agreement.

3 We note that the only testimonial evidence at the trial regarding the 

Agreement came from Husband. He testified that he did not consult an 

attorney before signing it and signed only after Wife had alienated him 

from his friends and family, depleted his financial resources, and 

threatened divorce if he did not sign. To constitute duress, an act must be 

wrongful, unlawful, or unconscionable, and preclude the exercise of free 

will and judgment. USLife Title Co. of Ariz. v. Gutkin, 152 Ariz. 349, 356–57 

(App. 1986). Economic necessity does not constitute duress for invalidating 

an agreement unless the conduct that caused the financial distress was 

improper or unfair. Id. (quoting Frank Culver Elec., Inc. v. Jorgenson, 136 Ariz. 

76, 78 (App. 1983)). Threatening divorce is not wrongful. Id. at 357 (“It is 

never duress to assert an intention to resort to the courts for vindication of 

one’s legal rights.”). The superior court rejected Husband’s claim that he 

entered the Agreement under duress.
BOYLE v. MALTA

Decision of the Court

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B. The Superior Court did not Abuse Its Discretion Regarding Other 

Issues Raised by Wife.

¶13 Wife raises several issues regarding the fairness and the way

the trial proceeded. Although we have vacated the ruling regarding the 

Agreement, the reconsideration of that issue does not necessarily impact 

other decisions, so we address them here.

1. There Is No Reversible Error Regarding Husband’s Alleged 

Insufficient and Untimely Disclosures.

¶14 The superior court found there were no financial records in 

evidence at trial.4 Nonetheless, the court equally divided “any community 

bank account balances as of September 1, 2017,” and $47,028 in community 

debt. Wife argues this was erroneous because Husband failed to provide 

financial discovery.

¶15 Wife did not request a trial continuance based on lack of 

disclosure until the day before trial, at 4:44 p.m. Neither Wife nor either of 

her two former attorneys filed a motion to compel additional discovery at 

any point in this litigation, despite Wife’s claim that Husband never 

provided bank statements. See Ariz. R. Fam. L. P. 65.

¶16 At trial, the superior court asked Husband’s attorney about 

Wife’s claim that there were no bank statements. According to Husband’s 

attorney, they complied with all disclosure obligations under Arizona Rule 

of Family Law Procedure 49 and mailed and emailed all discovery 

responses, disclosure statements, and exhibits to Wife.

5 Wife also declined

Husband’s attorney’s offer to let her collect copies of the documents she 

claimed she had not received from his office. Wife denied receiving 

anything except an email one week before trial with her medical records.

Husband’s attorney also argued that Wife did not correctly request bank 

statements, but, in any event, requesting three years of bank statements for 

a three-year marriage was unreasonable.

4 There was evidence relating to Husband’s retirement account in 

evidence, but that evidence is not relevant to the issues raised on appeal.

5 Husband’s appendix included related emails. We do not consider 

these emails as they were not presented at trial. GM Dev. Corp. v. Cmty. Am. 

Mortg. Corp., 165 Ariz. 1, 4 (App. 1990) (appellate review is limited to 

evidence presented at trial).
BOYLE v. MALTA

Decision of the Court

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¶17 We review a superior court’s ruling on discovery and 

disclosure issues for an abuse of discretion. See Soto v. Brinkerhoff, 183 Ariz. 

333, 335 (App. 1995). We consider the evidence in the light most favorable 

to upholding the court’s ruling and affirm the judgment if reasonable 

evidence supports it. In re Marriage of Pownall, 197 Ariz. 577, 583–84, ¶ 31 

(App. 2000). Here, given the absence of a timely request to compel 

discovery, impose sanctions, or continue the trial, the court did not abuse 

its discretion.

¶18 Although Husband contends Wife had equal access to any 

joint bank accounts, nothing in the record shows whether the alleged bank 

accounts were joint or individual. However, Wife failed to show prejudice 

because the superior court equally divided any community bank accounts

and debts as required by A.R.S. § 25-318, and there was no allegation that 

Husband had separate accounts in which the community had any interest.

See Ariz. R. Fam. L. P. 86 (harmless error applies); In re Marriage of Molloy, 

181 Ariz. 146, 150 (App. 1994) (reversal is warranted only where prejudice 

affirmatively appears in the record). Although bank statements may have 

provided information relevant in determining spousal maintenance, Wife 

was obligated to follow the appropriate rules for obtaining this information 

if Husband did not comply with his disclosure obligations.

¶19 Wife argues the superior court abused its discretion by 

permitting Husband’s expert to testify at trial because he was not timely 

disclosed, had never met Wife, relied on incomplete medical records, and 

testified telephonically. Although Wife objected on some of these grounds 

at trial, she did not object to the late disclosure. She waived raising the issue 

on appeal by failing to object. See State ex rel. Miller v. Tucson Assocs. Ltd. 

P’ship, 165 Ariz. 519, 520 (App. 1990). The court correctly noted that Wife’s 

other trial objections went to the weight, not the admissibility of the expert’s

testimony.

2. Wife Has Not Proved Reversible Error Regarding Her 

Alleged Medical Condition and Lack of an Attorney.

¶20 Wife contends the superior court abused its discretion by 

proceeding with the trial after she provided a doctor’s note stating she was 

unable to prepare for the trial or attend depositions for 60 days and because 

Wife was “heavily medicated” and did not have an attorney. The court has 

broad discretion in deciding whether to grant a continuance, and we affirm 

its ruling absent an abuse of that discretion. Yates v. Superior Court, 120 Ariz. 

436, 437 (App. 1978).
BOYLE v. MALTA

Decision of the Court

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¶21 The superior court found the second doctor’s note, submitted 

the day before trial, was nearly identical to the first note and provided no 

additional information about why Wife could not proceed. On appeal, Wife 

cites two more letters from her mental-health providers supporting her 

request for a continuance. These letters were included with the untimely 

motion for a continuance and were therefore correctly disregarded.

¶22 Moreover, untimeliness notwithstanding, the letters do not 

compel a different result. The first letter dated August 21, 2018, from Wife’s 

psychotherapist agreed with the first doctor’s note regarding Wife’s 

inability to defend and support her best interests properly. This letter did

not necessarily support Wife’s second request for a continuance in late 

October because it referred to the original doctor’s note from July 2018 and 

did not include updated information about Wife’s health. Wife also cites a 

letter from a different therapist stating that Wife was being treated for “a 

mental health related disability” and unable to work. This letter was written 

a full year before trial; therefore, we presume the court found it had little 

value regarding Wife’s current condition. See Johnson v. Elson, 192 Ariz. 486, 

489, ¶ 11 (App. 1998) (appellate court may infer additional findings of fact 

and conclusions of law necessary to uphold the decree if they are 

reasonably supported by the evidence and do not conflict with express 

findings).

¶23 The superior court interacted with Wife at trial and on 

previous occasions. After observing Wife’s mental state and behavior, the 

court found she appeared competent to proceed. We “give[] great latitude 

to conclusions drawn by judges who observe trial behavior first hand.” 

State v. Hulsey, 243 Ariz. 367, 389, ¶ 95 (2018); see also Smith v. Smith, 117 

Ariz. 249, 253 (App. 1977) (appellate court “observations are limited to the 

transcript and we must therefore be very careful in attempting to second 

guess the front line trial court from our rather limited vantage point”).

Accordingly, we find no abuse of discretion.

¶24 Regarding Wife’s lack of counsel, there is no right to 

appointed counsel in a dissolution proceeding. Encinas v. Mangum, 203 

Ariz. 357, 359, ¶ 10 (App. 2002) (in civil cases, due process is satisfied if a 

litigant can either hire an attorney or represent themselves).

3. Wife’s Participation in the Address Confidentiality 

Program Does Not Create a Different Analysis on Appeal.

¶25 Wife participates in the Address Confidentiality Program 

(“ACP”). See A.R.S. §§ 41-161 to -169. The ACP affords protection for 
BOYLE v. MALTA

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victims of domestic violence by providing participants with a “substitute 

address” that can be used when interacting with governmental entities, and 

for purposes of receiving mail or being served with “any process, notice or 

demand required or permitted by law to be served on the program 

participant.” A.R.S. § 41-162(C). In contrast, Arizona Rule of Family Law 

Procedure 7 provides a protected address for a person whose address is not 

known to the other party and who reasonably believes that physical or 

emotional harm may result if the person’s address is not protected. Wife 

incorrectly told the court she has a “protected address.”

¶26 Wife contends that Husband and the superior court failed to 

abide by the mailing-time provision in the ACP statutes. There are no 

provisions for time extensions included in the ACP statutes. Therefore, we 

find no grounds to reverse the decree based on any delay in Wife’s receiving 

Husband’s trial exhibits or any other documents.

C. The Superior Court Did Not Abuse Its Discretion Regarding the 

Parties’ Tax Returns.

¶27 Wife appears to argue that the court erred by crediting 

Husband and his attorney’s explanation for failing to submit the parties’ 

2016 and 2017 tax returns into evidence. Wife alleges that because Husband 

made misrepresentations on the parties’ 2016 and 2017 tax returns, they

were incorrect. As a result, Wife did not sign the returns and claimed 

Husband erroneously blamed her for not signing the incorrectly completed 

returns. To support these allegations, Wife relies on evidence that was not 

admitted at trial, despite the superior court telling her that she needed to 

admit her exhibits in evidence if she wanted them to be considered. 

Additionally, when the court specifically asked Wife what she would like 

it to do about the tax returns, Wife answered, unresponsively, that Husband 

never paid her for caring for his elderly mother. Thus, we find the court did 

not abuse its discretion in ordering the parties to file separate tax returns.

D. The Superior Court Did Not Err Regarding the Additional 

Arguments Raised on Appeal.

¶28 Throughout Wife’s appellate briefs, she challenges several 

rulings allocating the parties’ debts, personal property, and Husband’s 

income as unfair or not supported by evidence. Wife does not support these 

generalized allegations with citation to legal authority. Arizona Rule of 

Civil Appellate Procedure (“ARCAP”) 13(a)(7) requires an appellant to 

support each contention with citations to legal authorities and appropriate 

references to the record. “Failure to do so can constitute abandonment and 
BOYLE v. MALTA

Decision of the Court

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waiver of that claim.” Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009).

Accordingly, these issues are waived. Id.

¶29 Wife also contends the superior court erred by allowing

attorney Jon Phelps to represent Husband because Phelps’ mother was one 

of Wife’s mental-health-care providers. Other than generally alleging a 

conflict of interest, this argument is not supported by any citation to the 

record or legal authority. Therefore, we deem this issue waived. Ritchie, 221

Ariz. at 305, ¶ 62.

¶30 Finally, Wife contends she was entitled to an award of 

attorney’s fees in the superior court because Husband unreasonably failed 

to provide financial disclosure and was “hiding taxes.” Because this 

allegation is not supported by appropriate citations to the record or legal 

authority, it, too, is waived. Ritchie, 221 Ariz. at 305, ¶ 62.

ATTORNEY’S FEES AND COSTS

¶31 Husband requests an award of attorney’s fees and costs on 

appeal, alleging that Wife’s appeal is frivolous, in bad faith, harassing, and 

violates ARCAP 13(a)(7). Although Wife’s briefs did not comply with the 

rules of procedure, and we are mindful that the litigation, in this case, may 

last longer than the marriage, Wife’s appeal was not entirely frivolous or 

brought for an improper purpose. Accordingly, we decline to award 

Husband attorney’s fees on appeal. We view Wife as the prevailing party 

and award her costs on appeal upon compliance with Arizona Rule of Civil 

Appellate Procedure 21.

CONCLUSION

¶32 We vacate the portion of the decree finding the Agreement

unenforceable and remand for reconsideration based on the correct legal 

standard. We affirm all other rulings in the decree.