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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHELLE NITSCH, Petitioner/Appellant,

v.

KURT GUSTAVE KLAVUHN, Respondent/Appellee.

No. 1 CA-CV 20-0622 FC

Appeal from the Superior Court in Maricopa County

No. FC2016-006272

The Honorable Kerstin G. LeMaire, Judge

AFFIRMED

COUNSEL

Law Offices of John R. Zarzynski, Phoenix

By Georgia A. Wilder

Counsel for Petitioner/Appellant

Berkshire Law Office, PLLC, Tempe

By Keith Berkshire, Alexandra Sandlin

Counsel for Respondent/Appellee

FILED 7-27-2021
NITSCH v. KLAVUHN

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.

C R U Z, Judge:

¶1 Michelle Nitsch (“Wife”) appeals from the court’s entry of the 

qualified domestic relations order (“QDRO”) awarding Kurt Gustave 

Klavuhn (“Husband”) credit for contributions he made to his retirement 

account after the termination of the marital community, as well as gains 

attributed to those contributions. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Husband and Wife were married for about fifteen years when

Wife filed for legal separation in 2016. The matter was later converted to a 

dissolution action.

¶3 Husband and Wife both had retirement accounts that existed 

before their marriage, and both alleged that they could trace premarital, 

separate property funds in their accounts. During the dissolution 

proceedings, the superior court found that neither party provided sufficient 

evidence that their premarital retirement accounts maintained their 

separate nature. As a result, the court appointed “a special master to divide 

the community portion of [the] parties’ retirement benefits after 

determining which portion of the accounts (if any) is a party’s sole and 

separate property.”

¶4 After the special master conducted a hearing, he found that 

neither party was able to trace their premarital funds and prove they 

maintained their sole and separate character. However, the special master 

noted that Husband had continued to make contributions to one of his 

retirement accounts after termination of the marital community, and he 

should be credited for those contributions:

By stipulation of the parties, Husband was to receive credit 

for his proven contributions from July 1, 2016 [the date after 

Wife petitioned for legal separation], to the date of division. 

No gains or losses will be attributable to those contributions.

Accordingly, the account balance on the date of division of 
NITSCH v. KLAVUHN

Decision of the Court

3

TIAA-Pittsburgh will be reduced by the total amount of 

Husband’s contributions between July 1, 2016, and the date of 

division (and affirmed to Husband as his separate property),

and the balance remaining divided equally.

¶5 Neither party filed an objection to the special master report, 

and the court adopted the same in a minute entry order. Husband 

subsequently lodged a QDRO that allocated the retirement benefits 

between the parties and credited Husband for the contributions he made 

following July 1, 2016, adjusted for gains and losses. Wife objected to the 

QDRO, arguing the special master’s report indicated Husband was not 

entitled to gains or losses on his post-petition contributions. Shortly after, 

the court entered the QDRO, and wife appealed.

¶6 We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

I. Waiver and Jurisdiction

¶7 Wife argues that the court erred in entering the QDRO, 

because it awards Husband investment gains on the contributions he made 

to his retirement account after the termination of the community, but the 

special master’s report expressly stated that Husband would not receive 

credit for these gains.

¶8 Wife contends that Husband waived his claim to investment

gains by failing to timely object to the special master’s report. However,

neither the special master’s report nor the court’s order adopting the special 

master’s report were final orders. Husband was not required to object to 

them to preserve this issue. The parties were on notice that a QDRO would

be issued after the special master rendered his report, and the court

expressly stated it “shall reserve jurisdiction to enter any QDRO(s) or other 

orders relating to the special master’s work.” See Boncoskey v. Boncoskey, 216 

Ariz. 448, 451, ¶ 12 (App. 2007) (finding the court’s order adopting the 

special master’s report was not a final order of the court, because the

superior court “contemplated the later preparation and entry of the 

[QDRO]”); see also Choy Lan Yee v. Yee, 251 Ariz. 71, 76, ¶¶ 13-14 (App. 2021) 

(“Although a special order made after final judgment in family court does 

not require a Rule 78 statement of finality to be appealable, the family court 

must have fully resolved all issues raised in a post-decree motion or petition 

before an appeal can be taken . . . .”).
NITSCH v. KLAVUHN

Decision of the Court

4

¶9 Similarly, contrary to Wife’s argument, the superior court did 

not violate principles of res judicata or collateral estoppel by entering the 

QDRO. Under the doctrine of res judicata, a final judgment on the merits 

bars a second lawsuit involving the same parties based on the same cause 

of action. Norriega v. Machado, 179 Ariz. 348, 351 (App. 1994). Similarly, 

collateral estoppel prevents a party from relitigating an issue or fact, but 

only if a final judgment was entered on that issue or fact. See Chaney Bldg. 

Co. v. City of Tucson, 148 Ariz. 571, 573 (1986). Here, neither theory applies 

because the special master’s report and the court’s order adopting the 

report were not final orders. The QDRO was also not a “collateral attack” 

on the court’s prior order because the minute entry order was not a final 

judgment and the court expressly retained jurisdiction to enter “any 

QDRO(s)” related to the special master’s report. See Cox v. Mackenzie, 70 

Ariz. 308, 312-13 (1950).

¶10 Thus, we find that Husband did not waive his claim to 

investment earnings on his post-dissolution retirement contributions and 

that this issue is properly before this court.

II. Division of Husband’s Retirement Account

¶11 Wife contends the superior court erred in entering the QDRO 

because it awards her share of community earnings on community 

property to Husband. We review the superior court’s division of marital 

property for an abuse of discretion, but we review de novo the 

characterization of property as separate or community. In re Marriage of 

Flower, 223 Ariz. 531, 535, ¶ 14 (App. 2010); Schickner v. Schickner, 237 Ariz. 

194, 199, ¶ 22 (App. 2015).

¶12 “Property that is acquired by a spouse after service of a 

petition for dissolution of marriage, legal separation or annulment is also 

the separate property of that spouse if the petition results in a decree of 

dissolution of marriage, legal separation or annulment.” A.R.S. § 25-213(B).

It is undisputed that Husband made contributions to his retirement account 

after service of Wife’s petition for legal separation in June 2016. These 

contributions are Husband’s separate property. This would include any 

gains on the contributions.

¶13 Wife argues the retirement accounts are “entirely community 

property in nature” and the “increases, rents, and profits from community 

assets are community property.” But the retirement accounts cannot be 

“entirely” community property if they contain Husband’s post-petition 

contributions, which she admits are his separate property. Wife cites no 
NITSCH v. KLAVUHN

Decision of the Court

5

legal authority for the proposition that the increases and profits from 

Husband’s separate property should be categorized as community 

property. See A.R.S. § 25-213(A)-(B). There is nothing in the record to 

indicate—and Wife does not allege—that the increase in value of 

Husband’s separate property was due to the efforts of the community. See 

Cockrill v. Cockrill, 124 Ariz. 50, 53-54 (1979). And in her reply brief, Wife 

concedes that the gains from Husband’s separate property would 

ordinarily also be categorized as his separate property. She instead argues

that Husband agreed to award Wife a portion of this separate property, and 

“[a]bsent Husband’s stipulation, Husband would have necessarily been 

entitled to all contributions made to his retirement account after service of 

the Petition for Dissolution and all investment earnings thereon.”

¶14 However, the record is devoid of evidence of any such 

stipulation between the parties. She claims the special master’s report

alone, which states “[b]y stipulation of the parties,” is sufficient evidence of 

Husband’s agreement. But the party’s decree awards “to each party half of 

the community portion of the retirement plans identified as either a 

community asset or containing assets that belong to the community. The 

community portion is defined as assets acquired from the date of marriage 

until the date of termination of the community.” (Emphasis added.) To the 

extent the special master’s report may conflict with the terms of the QDRO,

it attempts to award Wife more than her half of the community portion of 

the retirement accounts.

¶15 Additionally, the parties’ pretrial statement includes a 

stipulation that “[e]ach party claims that a portion of their respective 

retirement accounts represents his sole and separate premarital assets 

which should be awarded to him or her as sole and separate property.” In 

her proposed resolution statement, Wife stated that “[e]ach party should be 

awarded his or her sole and separate property, including any post-petition 

earnings.” The evidence demonstrates that the parties stipulated that both 

Husband and Wife would be awarded their sole and separate property, not 

that Husband would concede any portion of his separate earnings to Wife.

¶16 The superior court did not err in awarding Husband the gains 

on his post-petition contributions to his retirement account. Although the 

special master found that Husband should not be awarded gains or losses 

on these contributions, given the lack of evidence of any stipulation by the 

parties, it would have been error for the court to incorporate that finding as 

part of its final QDRO, thereby divesting Husband of this separate 

property. Proffit v. Proffit, 105 Ariz. 222, 224 (1969) (“[T]he divorce court, in 

pronouncing a divorce decree, has no authority to compel either party to 
NITSCH v. KLAVUHN

Decision of the Court

6

divest himself or herself of [t]itle to separate property.”); Weaver v. Weaver, 

131 Ariz. 586, 587 (1982) (“[The superior court’s] jurisdiction with respect to 

separate property is limited to assigning to each spouse his or her separate 

property . . . .”). The special master was appointed to determine which 

portion of the retirement accounts was a party’s sole and separate property,

and it exceeded its authority when it attempted to award Wife the separate 

property of Husband, a mistake which was corrected in the superior court’s

final orders. To the extent the superior court considered Wife’s objection to 

Husband’s QDRO, we deem the court’s decision to adopt Husband’s 

version of the QDRO as a factual determination that no stipulation ever 

existed. We will not disturb the court’s factual determinations unless they 

are clearly erroneous. Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13 (App. 

2001). Wife failed to prove the court’s factual finding was clear error.

¶17 The court did not improperly award Wife’s share of 

community earnings to Husband. The investment gains on Husband’s 

contributions are his sole and separate property, not community property, 

and there is no evidence the parties stipulated otherwise. We find no error.

CONCLUSION

¶18 For the foregoing reasons, we affirm. Both parties request an 

award of their attorneys’ fees on appeal. We have considered the relative 

financial resources of the parties and the reasonableness of the positions 

asserted on appeal. A.R.S. § 25-324(A). In the exercise of our discretion, we 

grant Husband his reasonable attorneys’ fees in addition to his costs on 

appeal upon compliance with ARCAP 21.