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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RENEE SUE MYERS, Petitioner/Appellant,

v.

RONALD RAY MYERS, Respondent/Appellee.

No. 1 CA-CV 22-0481 FC

Appeal from the Superior Court in Maricopa County

No. FN2018-051774

The Honorable Robert A. Budoff, Judge (Retired)

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Rader Law Firm, PLLC, Phoenix

By Diana I. Rader

Co-Counsel for Petitioner/Appellant

High Desert Family Law Group, LLP, Phoenix

By Craig Peter Cherney

Co-Counsel for Petitioner/Appellant

Law Offices of John R. Zarzynski, Phoenix

By John R. Zarzynski, Bobbie Lentz

Counsel for Respondent/Appellee

FILED 8-24-2023
MYERS v. MYERS

Decision of the Court

2

MEMORANDUM DECISION

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

which Judge James B. Morse Jr. and Judge Daniel J. Kiley joined.

C R U Z, Judge:

¶1 Renee Sue Myers (“Wife”) appeals several rulings relating to 

the property allocation in the decree dissolving her marriage to Ronald Ray 

Myers (“Husband”). For the reasons stated below, we reverse the offset of 

Husband’s entire Schickner claim against Wife’s equalization payment and 

instruct the court to deduct only Wife’s share of the Schickner payment from 

the equalization on remand. We affirm all other rulings.

FACTUAL AND PROCEDURAL HISTORY

¶2 The parties married in 1989 and own farm property and 

operations in Iowa. Wife lives in Arizona, and Husband lives primarily in 

Iowa.

¶3 Wife petitioned for dissolution in 2018. The parties agreed to 

mediation and arbitration of any issues remaining after mediation. The 

superior court signed a stipulated order appointing a family law master 

(“family law master”) under Arizona Rule of Family Law Procedure 

(“Rule”) 72.

1 The parties reached a Rule 69 agreement on several issues. 

The family law master held a two-day trial to resolve the remaining 

property disputes.

¶4 The initial ruling decided all issues except spousal 

maintenance and attorneys’ fees. Wife moved for reconsideration under 

Rule 35.1; alternatively, she sought clarification under Rule 84 or relief 

under Rule 85. The family law master heard oral argument on Wife’s 

1 The parties and family law master use the terms “arbitrator” and 

“arbitration proceedings.” But the court appointed a family law master 

under Rule 72, as stipulated by the parties. By contrast, arbitration is 

governed by Rule 67.2 and Arizona Revised Statutes (“A.R.S.”) sections 12-

3001 to -3029. Because the court appointed a family law master, we use that 

term.
MYERS v. MYERS

Decision of the Court

3

motion, made some adjustments, and denied the remainder of Wife’s 

arguments. After Wife withdrew her claim for spousal maintenance, the 

family law master entered an order on the attorneys’ fees issue and lodged 

a decree for the court’s signature.

¶5 Before the superior court signed the decree, Wife moved to 

alter or amend the decree under Rule 83. On Husband’s motion and over 

Wife’s objection, the court referred this motion to the family law master, 

who denied the motion except as to one issue not relevant to the appeal. 

The court entered the family law master’s ruling as a final order. Wife filed 

a notice of appeal from the decree and order denying relief under Rule 83.

¶6 Because there was no signed decree from the superior court, 

we stayed Wife’s appeal. After receiving a signed decree from the court, 

we reinstated Wife’s appeal and exercise jurisdiction pursuant to A.R.S.

§ 12-2101(A)(1) and (2).

DISCUSSION

¶7 Wife appeals several rulings allocating community property. 

In determining an equitable division of community property and debts, the 

superior court has broad discretion, and we will not disturb that ruling 

absent an abuse of discretion. In re Marriage of Flower, 223 Ariz. 531, 535, 

¶ 14 (App. 2010).

¶8 The trial was not recorded, so there is no transcript. See 

ARCAP 11(c) (it is appellant’s duty to order transcripts for appeal). When 

transcripts are not included, “we assume the missing portions of the record 

would support the trial court’s findings and conclusions.” State ex rel. Dep’t 

of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16 (App. 2003).

I. Farm Rental Income

¶9 The community owned multiple farm properties in Iowa that 

generated rental income. Throughout the litigation, Husband received 

rental income totaling $421,619.25, and deposited it into a bank account

(#3835) in his name only. He made no withdrawals and did not dispute the 

joint nature of the rental income. The decree did not specifically refer to 

this rental income or bank account, but it awarded Husband all bank 

accounts in his name.

¶10 Wife contends, as she did in her post-decree motions, that the 

family law master erred by failing to allocate these funds. As a result, she 

argues, the parties hold these undivided assets as tenants in common under 
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A.R.S. § 25-318(D). Additionally, Wife claims Husband failed to disclose 

the amount of rental income until one day before trial. The family law

master denied Wife’s post-decree motions on these issues without 

comment.

¶11 Husband counters that the decree awarded the rental income 

to the party receiving the corresponding farm property, as Husband 

proposed. According to Husband, this is fair and equitable because the 

rental income was necessary to offset the expenses of the farm operations

that he had been paying.

¶12 As to the alleged untimely disclosure, at the mediation some 

three months before the trial, Husband disclosed that he had deposited 

$421,000 in rent checks into a separate account in his name. Although he 

apparently did not provide a detailed list of these checks until the eve of 

trial, given the lack of a transcript, we cannot say the family law master

erred in finding Wife was not prejudiced.

¶13 For the first time in her reply brief, Wife argues that Husband 

is judicially estopped from denying her right to half these funds based on a

letter from his attorney that did not dispute the joint nature of the funds. 

Generally, arguments raised for the first time in a reply brief are deemed 

waived. Johnson v. Provoyeur, 245 Ariz. 239, 243, ¶ 13 n.5 (App. 2018).

¶14 Even if the argument is not waived, the letter does not 

warrant reversal. Wife argues judicial estoppel applies, but in essence, her 

claim is that Husband should be bound by his judicial admission. See Black 

v. Perkins, 163 Ariz. 292, 293 (App. 1989). A judicial admission binds a party 

who has stipulated to or plead a certain set of facts. Compare id., with In re 

Marriage of Thorn, 235 Ariz. 216, 222, ¶ 27 (App. 2014) (“Judicial estoppel 

prevents a party who has assumed a particular position in a judicial 

proceeding . . . [from assuming] an inconsistent position in a subsequent 

proceeding involving the same parties and questions.”) (citations and 

internal quotation marks omitted). At trial, Husband proposed that the 

court should award him the joint funds to offset the community farming 

expenses if he is awarded the corresponding community farms and the 

related debts. Thus, his position at trial is not inconsistent with the letter.

¶15 The family law master awarded Husband all farm property 

and all bank accounts in his name. Although it did not expressly list the 

farm rental income in bank account #3835, this award implicitly includes 

those funds. Because we lack a transcript of the trial, we presume the 

evidence would support the allocation of the farm rental income to 
MYERS v. MYERS

Decision of the Court

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Husband to offset the farming expenses Husband incurred in maintaining 

the farms. See Burton, 205 Ariz. at 30, ¶ 16.

II. Ashmatt Farm Grain Sales and Insurance Proceeds

¶16 The parties agreed to award Ashmatt Farm to Husband with 

a value of $750,000 “not including the value of the grain on hand” because 

that amount was disputed. After reaching that agreement but before trial, 

Husband received two payments related to Ashmatt Farm: (1) $176,046.43 

for “Nelson grain” on October 27, 2020, and (2) $124,902 in insurance 

proceeds for crop damage on November 4, 2020. Wife argues the decree 

failed to award her one-half these proceeds.

¶17 The decree found the grain on hand had been “equally 

divided with Wife’s share having been delivered to Nelson for sale or 

holding at her discretion. The [family law master] received no convincing

evidence of other grain holdings that are in need of division.” Wife argues 

the trial testimony does not support this finding and her pretrial statement 

showed that she was entitled to one-half of these proceeds. Wife’s

assertions in her pretrial statement are not conclusive evidence on this 

point. See Bank of Yuma v. Arrow Constr. Co., 106 Ariz. 582, 585 (1971)

(“Allegations in pleadings are not evidence; they are statements of facts

which the pleader must prove unless admitted by the opposing party.”). 

Without a transcript, we presume the evidence at the trial supported the 

family law master’s conclusion. See Burton, 205 Ariz. at 30, ¶ 16.

¶18 As to the insurance proceeds, the decree awarded Wife onehalf of the proceeds once Husband resolved the claim. Based on the record 

on appeal, we cannot determine whether the claim was fully resolved 

before the decree. Nevertheless, Husband does not dispute Wife’s 

entitlement to the insurance proceeds. If he fails to pay, Wife may seek 

enforcement at that time.

III. Valuation of Personal Property and Farm Equipment

¶19 The decree awarded Husband all personal property and farm 

equipment worth $754,000. The family law master explained that this was 

the mid-point of the parties’ appraisals, excluding items in the PK Farm and 

Ashmatt Farm valuations. Wife argues this was a mathematical error 

because the mid-point of the parties’ appraisals is $1,287,867.

¶20 To be sure, Wife’s appraisal value was $1,457,335, and 

Husband’s was $ 1,118,399. The average of those two amounts is $1,287,867. 

However, the decree stated that the $754,000 in personal and farm property 
MYERS v. MYERS

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did not include items in the PK or Ashmatt Farm valuations. Thus, the 

valuation would necessarily be lower than the average of the appraisals 

because it excluded these items. Wife was awarded one-half the value of 

PK and Ashmatt Farms, which, in the absence of a transcript, we presume 

included the value of the personal property and equipment related to those 

farms. We find no abuse of discretion.

IV. Awarding Husband Credit for Future Tax Liabilities

¶21 The family law master determined that $616,500 in taxes were 

due on the farming operations awarded to Husband. The decree ordered 

Husband to pay this debt and reduced Wife’s equalization payment by onehalf this amount ($308,250). Wife argues this is an abuse of discretion 

because the debt was for a future and speculative tax liability, not a result 

of the divorce. See In re Marriage of Goldstein, 120 Ariz. 23, 25 (1978).

¶22 When allocating community property, the court may consider 

“accrued or accruing taxes that would become due on the receipt, sale or 

other disposition of the property.” A.R.S. § 25-318(B). The court may 

reduce the value of an asset by deducting future tax liabilities where the 

“immediate taxable consequences occur[] in connection with the division of 

the property.” Goldstein, 120 Ariz. at 25. However, the court abuses its 

discretion when it considers future expenses that are not a result of the 

division of property in the decree but, instead, “represent[] a future 

contingent cost which will arise from [the spouse’s] post-dissolution use of 

his separate property.” Id.

¶23 The family law master found the $616,500 in taxes due on the 

farming operations based on uncontroverted testimony from Doug Wirth

and Exhibit 34 drafted by the parties’ tax preparer.

¶24 Exhibit 34 estimated a $616,500 tax liability if PK Farm 

corporation “closed at this time.” Husband does not dispute that this letter

showed the tax liability would occur if the PK Farm corporation closed. The 

decree did not state that this was an immediate tax consequence or a tax 

consequence resulting from the property division. Without a transcript, we 

cannot determine if the corporation will close as a result of the dissolution 

or if that is a future, speculative event within Husband’s control. Wife 

argues that it is the latter, but we lack the trial transcript to determine if the 

testimony supports her argument. We must presume Wirth’s testimony 

supports the implicit conclusion that the taxes were due immediately. See 

Burton, 205 Ariz. at 30, ¶ 16. Therefore, the allocation does not violate 

Goldstein.
MYERS v. MYERS

Decision of the Court

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¶25 Wife also contends the family law master erred in relying on 

Wirth as an expert tax witness. On this record, we presume the record 

supports the family law master’s conclusion that the witness was qualified 

and the disclosure was timely. See Burton, 205 Ariz. at 30, ¶ 16.

V. Schickner Award

¶26 At trial, Husband argued that he was not fairly compensated 

for his services to the community businesses after the date the petition for 

dissolution was served. According to Husband, his reasonable 

compensation was around $145,000 per year, but he only drew $15,348. The 

family law master agreed and awarded Husband $324,120 as his additional 

fair compensation from the community businesses post-service. See 

Schickner v. Schickner, 237 Ariz. 194, 200-01, ¶¶ 27-28, 30 (App. 2015).

¶27 Wife does not dispute the finding that Husband was owed 

additional reasonable wages of $324,120. Rather, she contends it was an 

abuse of discretion to order her to pay the entire sum instead of half of the 

additional compensation because the farming businesses were a 

community asset. We review the allocation of property for an abuse of 

discretion. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523, ¶ 4 (App. 2007). 

An abuse of discretion occurs when the court commits an error of law in 

reaching a discretionary conclusion or when the record lacks competent 

evidence to support the decision. Engstom v. McCarthy, 243 Ariz. 469, 471, 

¶ 4 (App. 2018).

¶28 Although the additional compensation is Husband’s separate 

property, see A.R.S. § 25-213(B), see also Schickner, 237 Ariz. at 200, ¶ 27, the 

community businesses owe the additional compensation, not just Wife.

Because the businesses are community assets, Wife should only pay her 

share of the additional compensation. Thus, the superior court erred when 

it deducted the entire amount owed from Wife’s equalization payment. We 

reverse the order deducting all of Husband’s additional compensation from 

Wife’s equalization payment. On remand, the court shall reduce Wife’s 

equalization payment by her share, or one-half of $324,120 ($162,060).

CONCLUSION

¶29 We reverse the ruling on the payment of Husband’s Schickner

claim and remand for a recalculation of the equalization payment consistent 

with this decision. We affirm all other rulings in the decree. Both parties 

requested their attorneys’ fees and costs 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 
MYERS v. MYERS

Decision of the Court

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discretion, we deny both parties their attorneys’ fees on appeal. As the 

prevailing party, Wife is entitled to her costs upon compliance with ARCAP 

21.