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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

In re the Matter of:

SARA FORD
, P etitioner/Appellee
,

v.

SEAN P. ERICKSON
, Respondent/Appellant

.

No. 1 CA

- CV 22

- 0387 FC

Appeal from the Superior Court in Maricopa County

No. FC2019

- 007892 The Honorable Tracey Westerhausen
, Judge

AFFIRMED

COUNSEL

Glickstein Law
, PLLC , Phoenix By Falynn S. Baum Co

- Counsel for P etitioner/Appellee

Hoffman Legal, LLC , Phoenix By Amy Wilkins Hoffman Co

- Counsel for P etitioner/Appellee

Sean P. Erickson
, Phoenix Respondent

/Appellant FILED 4-13-2023FORD v. ERICKSON Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.

B A I L E Y , Judge:

¶1 Sean P. Erickson (“Husband”) appeals the superior court’s order enforcing a post

- nuptial agreement with Sara Ford (“Wife”). He argu es the court abused its discretion by (1) exclud ing his expert witness on California law , and (2) fail ing to make sufficient findings of fact and conclusions of law

. W e disagree and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2001, the parties married in California. A bout one year later, the parties
, each represented by counsel, entered a post

- nuptial agreement

. ¶3 In 2018, t he parties moved to Arizona

. I n September 2019, Wife petition ed for dissolution , alleging the post

- nuptial agreement

“ control s the division of property, debt and spousal maintenance .” Husband acknowledged the agreement, but claimed it was “unconscionable and against public policy.”

¶4 Wife moved for p artial s ummary j udgment declaring the post

- nuptial agreement valid and enforceable

. Husband responded that the agreement was “unconscionable, inequ itable, and unfair.” Both parties relied exclusively on Arizona law for their arguments

. ¶5 T he court first grant ed Wife’s motion for summary judgment as to the validity of the post

- nuptial agreement , but later granted Husband’s pro se mo tion to set aside t hat ruling based on a California choice

- of

- law provision in the agreement. The court directed the parties to file new motion s for summary judgment on or before July 16, 2021. T he
court also denied Husband’s motion to introduce an expert opinion on California law

. ¶6 Husband and Wife cross

- moved for partial summary judgment on July 16, but Husband neglected to file a separate statement of facts until July 19

. Wife argu ed the post

- nuptial agreement was valid andFORD v. ERICKSON Decision of the Court

3 enforceable under California l aw

. Husband disagreed, pointing to an expert opinion on California law

. A few days later, Husband request ed findings of fact and conclusions of law pursuant to Rule 82(a), Ariz. R. Fam. Law P.

¶7 Wife then moved to dismiss Husband ’s motion for partial

summa ry judgment based on his un timely statement of facts and objected
to his expert witness on California law based on the court’s prior order

. ¶8 T he superior court dismiss ed Husband ’s motion for partial summary judgment in October 2021, concluding it was “not a motion for summary judgment at all ,” and H usband ’s untimely statement of facts did
not comply with the court’s previous order

. T he court later s ustained Wife ’s objection to Husband ’s expert witness and denied Wife ’s motion for partial summary judgment, finding genuine issues of material fact preclude d summary judgment.

¶9 The next day , the court ordered the parties to provide joint or separate pretrial statements by December 1, 2021. Wife timely filed a separate pretrial statement and a memorandu m of points and authorities

. Husband file d no pretrial statement

. ¶10 At tri al , t he court heard testimony regarding the agreement’s formation
, t he parties’ negotiations and disclosures
, and Husband ’s contention that the agreement was waived because the parties did not adhere to its terms

. When Husband began to testify about the effect of California law on the agreement, Wife’s counsel objected . T he court sustained the objection based on its prior ruling s.
¶11 After taking the matter under advisement, the court made factual findings and held the post

- nuptial agreement was enforceable under California law

. ¶12 We have jurisdiction over Husband ’s timely appeal

. See Ariz

. Rev

. Stat

. (“A.R.S.”) § 12

- 2 101 (A)(1).

DISCUSSION

I. Exclusion of Expert Witness on California Law

¶13 Husband argues the superior court abused its discretion by excluding his expert on California law.FORD v. ERICKSON Decision of the Court

4 ¶14 We review the de cision whether to admit expert testimony for an abuse of discretion. Gemstar Ltd. v. Ernst & Y oung , 185 Ariz. 493, 505 (1996); John C. Lincoln Hosp. & Health Corp. v. Maricopa Cnty. , 208 Ariz. 532, 543, ¶ 33 (App. 2004). “The test for whether a person is an expert is whether a jury can receive help on a particular subject from the witness.” Webb v. Omni Block, Inc. , 216 Ariz. 349, 352, ¶ 8 (App. 2007) (citation omitted).

¶15 H usband maintains that under Arizona Rule of Evidence 702, the court should have allowed him to present expert testimony interpreting the parties’ post

- nuptial agreement. A witness who is qualified as an expert may testify in the form of an opinion if “the expert’s scientific, technical, or other specialized kno wledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Ariz. R. Evid. 702(a). A n opinion that embraces an ultimate issue is not automatically objectionable. Ariz. R. Evid. 704.

¶16 Even so, opinion testimony need n ot be automatically admitted. Testimony about ultimate issues may be excluded if it t ells the factfinder how to decide the case or i s otherwise unhelpful. Webb , 216 Ariz. at 353, ¶ 14 . M oreover, a superior court judge is already considered an expert on the law. See Ariz. Const. art. 6, § 27 (providing that judges “shall declare the law” to juries); see als o Marx & Co. , Inc. v. Diners’ Club, Inc. , 550 F.2d 505, 510 (2d Cir. 1977) (“The sp ecial legal knowledge of the judge makes the witness’ testimony superfluous.” (citation omitted)) ; Loeb v. Hammond , 407 F.2d 779, 781 (7th Cir. 1969) (“The question of interpretation of the contract is for the jury and the question of legal effect is for t he judge. In neither case do we permit expert testimony.” (citation omitted))

. ¶17 Husband does not explain how the expert’s report would have helped the superior court in understanding the evidence or determining a fact in issue, how California law supports his position that the post

- nuptial agreement was unenforceable, how the court’s ruling misapplied California law, or how, had his expert and the expert’s report been admitted, the result would have been different. On this record, Husband has not shown tha t the superior court’s decision to exclude his legal expert and rely on its own interpretation of the law constituted an abuse of discretion.FORD v. ERICKSON Decision of the Court

5 ¶18 Husband further argues the superior court denied him procedural due process when it excluded his expert on California law. 1 We review de novo an alleged due process violation. Griffin Found. v. Ariz. State Ret. Sys. , 244 Ariz. 508, 517, ¶ 25 (App. 2018).

¶19 “Procedural d ue process means that a party had the opportunity to be heard ‘at a meaningful time and in a meaningful

manner .’ ” Comeau v. Ariz. State Bd. of Dental Exam’rs , 196 Ariz. 102, 106

- 07, ¶ 20 (App. 1999) (quoting Mathews v. Eldridge , 424 U.S. 319, 333 (1976)). “The elements of procedural due process are notice and an opportunity to be heard .” Id. at 107, ¶ 20 (quoting Iphaar v. Indus. Comm’n , 171 Ariz. 423, 426 (App. 1992 )).

¶20 Husband received due process. Even assuming Husband has not waived his argument by f ailing to file a pretrial statement 2 or otherwise raise any due process issue before trial, see Harris v. Cochise Health Sys. , 215 Ariz. 344, 349, ¶ 17 (App. 2007), we find no denial of due process. In the superior court’s ruling granting his motion to set aside
, Husband was placed on notice that although he could retain a California attorney, the court would not admit an expert on California law. Nevertheless, Husband relied on the opinions of a purported California legal expert in his motion for partial summary judgment. When Wife objected, Husband argued that he believed the court’s earlier ruling simply meant his legal expert could still testify as his expert, just not as the court’s expert, and the expert’s report could still be admitted into evidence. Husband had a full opportunity to be heard before the court sustained Wife’s objection. 3

1 In his brief, Husband does not claim he was denied substantive due process. He also has not identified a constitutionally protected liberty or property interest necessary to make a substantive due process claim. Aegis of Ariz., L.L.C. v. Town of Marana , 2 06 Ariz. 557, 568, ¶ 44 (App. 2003); accord Alpha, LLC v. Dartt , 232 Ariz. 303, 308, ¶ 23 (App. 2013).

2 See Ariz. R. Fam. Law P. 76.1 (e)(7) ( requiring pretrial statements to include “detailed and concise statements of contested issues of fact and law”); Leathers v. Leathers , 216 Ariz. 374, 378, ¶ 19 (App. 2007) (“The pretrial statement controls the subsequent course of the litigation.” (citatio n omitted)).

3 While the parties litigated the issue of Husband’s expert, Husband also moved to compel discovery, in which he again discussed his expertFORD v. ERICKSON Decision of the Court

6 ¶21 Additionally, at trial, Husband again tried to get portions of his expert’s report in through his own testimony, but despite his argument, the court denied his attempt to do so. Husband thus had multiple opportunities to urge the court’s acceptance of his expert’s report, and he was not denied procedural due process.

II. Sufficiency of the Findings o f Fact and Conclusions of Law

¶22 Husband also argues that the superior court ’s findings of fact and conclusions of law were insufficient

. He contends that when he compares his expert ’s report with the court’s ruling, he finds “noticeable deficiencies” in the ruling, which he does not believe is sufficiently supported by “California case history and statutes.” He does not explain what these alleged deficiencies are, however, or how the result would have been different had the y not occurred.

¶23 We review the supe rior court ’s findings of fact for an abuse of discretion. Great W. Bank v. LJC Dev., LLC , 238 Ariz. 470, 478, ¶ 22 (App. 2015). We do not substitute our judgment for the superior court ’s and will reverse only if its findings are clearly erroneous. Id. T he purpose behind requiring the superior court, upon request, to make findings of fact, is to enable th is court to examine the basis upon which the superior court relied in reaching its judgment

. Ellingson v. Fuller , 20 Ariz. App. 456, 460 (1973)

. Findings of fact satisfy this requirement if they are sufficient to allow an appellate court “to test the validity of the judgmen t.” Gilliland v. Rodriguez
, 77 Ariz. 163, 167 (1954).

¶24 Even assuming Husband has not waived h is argument by failing to reference case law or statutes support ing an argument that the superior court misapplied California law, s ee ARCAP 13(a)(7)(A); Lunney v. State , 244 Ariz. 170, 182, ¶ 45 (App. 2017); Ritchie v. Krasner , 221 Ariz. 288, 305, ¶ 62 (App. 2009) , we find no reversib le error.
¶25 First, a court need not set forth findings or conclusions in ruling on a motion to exclude expert testimony under Rule 82(a)(2)

. ¶26 Second , after the evidentiary hearing, the superior court issued a seven

- page order t horoughly analyzing the evidence supporting Husband ’s claims and interpreting California statutory and case law

. That

and the expert’s need to review documents and possibly provide an amended report. After allowing Husb and this additional opportunity to be heard, and considering Husband’s reply to Wife’s response, the court denied his motion.FORD v. ERICKSON Decision of the Court

7 order was sufficient for this court to evaluate the basis for the court’s ruling. See Ellingson , 20 Ariz. App. at 460. The court addressed Husband ’s arguments that the post

- nuptial agreement provisions regarding spousal maintenance and property were unfair and unconscionable, that he signed the agreement under duress or undue influence, and that the parties never followed the agree ment , resulting in waiver

. ¶27 In its review, the court considered Husband’s arguments in the context of California contract law, the California Family Code, and California case law, including In re Marriage of Pendleton & Fireman , 5 P.3d 839 (Cal. 2000 ), In r e Marriage of Burkle , 4 3 Cal. Rptr. 3d 181 (Cal. Ct. App. 2006), and In re Marriage of Friedman , 122 Cal. Rptr. 2d 412 (Cal. Ct. App. 2002)

. The court found that a spousal support waiver in a marital agreement was not per se unenforceable when executed by intelligent, well

educated persons, each of whom appear ed to be self

- sufficient in property and earning ability and h a d the advice of counsel regarding their rights and obligations as marital partners at the time they execute d the agreement

. T he court also found that negotiations had occurred
, at least some concerns of Husband’s counsel to the proposed agreement had been addressed
, Husband had agreed to waive spousal support, and , under the agreement, Husband could choose to apply his income to his retirement accounts. The court concluded Wife had not gained an unfair advantage and Husband “received exactly what he bargained for.”

¶28 The court further found that any presumption of duress or undue influence “was dispelled by the evidence,” includin g the months

long negotiation
, presence of a notary , and cooling

- off period

. As to Husband ’s argument that he only signed because Wife threatened to annul the marriage if he did not immediately sign, the superior court did “not find Husband credible
, ” noted evidence to the contrary, and found no other evidence to show Wife had made this threat

. And a s for Husband ’s argument that the parties never abided by the agreement, the court found that the agreement had anticipated this circumstance by providing that the waiver of any breach of th e a greement “ shall not ” be considered a waiver of any subsequent breach of any term, covenant
, or condition. Moreover, the court noted that Husband had identified no conduct by Wife that waived the spousal support or pr operty provisions. The court’s findings and legal conclusions are supported by both the record and California law.

¶29 The superior court made sufficient findings of fact and conclusions of law in its analysis of the post

- nuptial agreement under California la w , and we find no abuse of the court’s discretion

.FORD v. ERICKSON Decision of the Court

8 III. Attorneys’ Fees and Costs on Appeal

¶30 Wife requests her attorneys’ fees and costs on appeal under A.R.S. § 25

- 324 , citing “the unreasonableness of Husband’s positions taken in this appeal.” In our discretion, we deny her request for attorneys’ fees but award her taxable costs upon compliance with Rule 21, ARCAP

.
CONCLUSION

¶31 T he superior court’s order is affirmed

.