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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEBORAH D. CAMPBELL BUDZISZEWSKI, Petitioner/Appellant,

v.

MITCHELL CLEMENT BUDZISZEWSKI, Respondent/Appellee.

__________________________________

KIRK JAMES CAMPBELL, et al., Joined Parties/Appellants.

No. 1 CA-CV 21-0540 FC

Appeal from the Superior Court in Maricopa County

No. CV2019-013200

 FN2018-070108

The Honorable Lisa Ann VandenBerg, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Law Office of Katherine Kraus PLLC, Peoria

By Katherine Kraus

Counsel for Petitioner/Appellant

Sundberg & Mousel, Phoenix

By Gary Sundberg

Counsel for Respondent/Appellee

FILED 8-25-2022
2

Michael J. Shew LTD., Phoenix

By Michael J. Shew

Counsel for Joined Parties/Appellants

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which 

Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 Deborah D. Campbell Budziszewski (“Wife”) challenges the 

amended decree dissolving her marriage to Mitchell Clement Budziszewski 

(“Husband”). Joined third parties, Kirk James Campbell, Clint James 

Campbell, and Kelynn Campbell (“Joined Parties”), challenge the amended 

decree and the order declining to set aside the order joining them as parties

to the dissolution action. For the reasons stated below, the property 

allocation in the amended decree is affirmed in part and vacated in part.

We reverse the $50,000 judgment and remand for reconsideration. We 

affirm the order joining the third parties but vacate the portion of the 

amended decree affecting the Joined Parties’ property rights and remand 

for further proceedings as to the Joined Parties.

FACTS AND PROCEDURAL HISTORY

¶2 Preliminarily, we note that many of Wife’s factual assertions 

are not properly supported by the record. For example, her explanation for 

failing to appear at the hearing is supported only by an unverified filing. 

On appeal, we consider only those facts properly supported by the record 

on appeal. See ARCAP 11(a).

¶3 Husband and Wife married in 1986 and both had children 

from previous relationships. In August 2018, Husband began living in a 

care home as a result of his memory problems and need for daily assistance.

The next month, Wife petitioned for dissolution and submitted a consent 

decree and accompanying Marital Settlement Agreement (“the 

Agreement”), signed by Husband and Wife. She asserted that both parties 

lived at the marital home on Flower Street (“the Flower Property”). The 

Agreement stated that Wife owned the Flower Property and Husband 

would sign a quit claim deed transferring ownership to Wife. The 
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3

Agreement awarded the Flower Property to Wife and other property in 

Navajo County to Husband. Under the Agreement, each party received 

their personal property as “mutually agreed,” and Wife was awarded three 

Bank of America (“BOA”) accounts and the only vehicle, a 2015 Nissan.

Husband received one BOA account. The parties waived any interest in 

each other’s retirement accounts and agreed Husband would pay Wife 

$1,000 a month to “equitably equalize” the community assets. Per the 

Agreement, Wife was assigned the debt from three credit cards (Citi #2339, 

BOA Visa #7551, Sears #4281), and the parties were both responsible for 

debt from a fourth credit card (Citi Visa debt (#9727)). Wife was responsible 

for the 2018 tax preparation costs, but she would receive 100% of any refund 

or pay 100% of any tax liability. On February 12, 2019, the superior court 

signed the consent decree, which incorporated the Agreement.

¶4 Shortly thereafter, Wife called one of Husband’s adult 

daughters and said the daughter needed to take over his care. Wife did not 

mention the divorce or that Husband had been living in a care home. Once 

Husband’s family took over his care, they learned of the divorce and the 

terms of the Agreement. Husband’s daughter, Michelle Ehrler, acting as his 

guardian and conservator (“the Conservator”), moved to set aside the

Agreement. The Conservator alleged that the Agreement was unfair, 

procured by fraud and misrepresentation, and void because Husband was 

incompetent when he signed it. Wife denied the allegations. At oral 

argument, Wife and the Conservator appeared with counsel, and Wife did 

not object when the Conservator waived Husband’s presence. The superior 

court set aside the Agreement, finding that Wife failed to show how the 

unequal property allocation was fair and equitable.

¶5 In the meantime, the Conservator filed a civil complaint 

against Wife, alleging she violated the Adult Protective Services Act

(“APSA”), by exploiting Husband, who was a vulnerable adult. See Ariz.

Rev. Stat. (“A.R.S.”) §§ 46-455 and -456. Specifically, the Conservator

alleged that Wife caused Husband to disclaim his interest in the Flower 

Property and sign the Agreement, which deprived him of his property 

rights. She also alleged that Wife isolated Husband from family members 

and spent community funds on herself and her own family and not for the 

benefit of the community. The Conservator moved for partial summary 

judgment arguing Wife exploited Husband while he was a vulnerable adult

in violation of A.R.S. § 46-456. The court denied the summary judgment 

motion, finding a number of factual disputes, including whether Husband 

had diminished capacity when he signed the Agreement.
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¶6 Over Wife’s objection, the court granted the Conservator’s 

motion to consolidate the APSA action with the family court proceedings.

After the court set a trial date, it cautioned the parties that failure to appear 

at the trial or submit a joint pretrial statement may result in sanctions under

Arizona Rules of Family Law Procedure (“Rule”) 76.2, which “may include 

the Court proceeding by default based on the evidence presented by the 

appearing party.” Wife’s counsel withdrew a few months later.

¶7 Shortly after Wife’s counsel withdrew, the Conservator 

moved for reconsideration of the summary judgment motion. The 

Conservator argued she did not have to show that Husband lacked 

capacity, as long as he was a vulnerable adult and there was no factual 

dispute as to that issue. Wife did not respond, and the court granted the 

motion. The court found that medical records from August 2017 showed

that Wife and a doctor suspected Husband had dementia and Alzheimer’s.

Therefore, it concluded that there was no dispute Husband was a 

vulnerable adult and Wife “occupied a fiduciary position” to Husband

when he signed the quit claim deed to the Flower Property. The court set 

aside the quit claim deed and found Wife violated her fiduciary duty to 

Husband. The issue of APSA damages was added to the upcoming 

evidentiary hearing in the dissolution.

¶8 The court held another status conference before the hearing, 

where it repeated the consequences for failing to appear or submit a pretrial 

statement. It stated that all exhibits submitted before trial would be 

summarily admitted if there was no specific objection stated in the pretrial 

statement. Wife did not object when the court granted the Conservator’s 

request to waive Husband’s appearance at the upcoming hearing.

¶9 Wife did not appear at the evidentiary hearing on March 16, 

2021. The court found no good cause for Wife’s failure to appear and 

proceeded by “default.” The court reviewed Husband’s amended pretrial 

statement and trial memorandum and admitted all 54 exhibits offered on 

Husband’s behalf and ordered the Conservator to prepare a form of order.

¶10 About two weeks after the hearing, Husband moved to join 

Wife’s adult sons and her granddaughter, alleging that Wife “fraudulently 

transferred community funds” to them in violation of a preliminary 

injunction. Although Husband served the Joined Parties, the court granted 

the motion before they responded, citing only Wife’s failure to respond. The 

Joined Parties subsequently objected.
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¶11 Over objections from Wife and the Joined Parties, the court 

entered the amended decree lodged by Husband. The amended decree 

awarded each party their separate property, and Wife was ordered to 

return a glider swing to Husband as his separate property by September 15, 

2021 or pay $5,000. Wife was assigned the debt owed on three credit cards 

as of October 9, 2018—the community termination date. The court found 

Wife was responsible for any charges on the Citi card (#3632) she opened 

after October 9, 2018. Husband was assigned any tax liability for having a 

Citi Visa (#9727) balance written off.

¶12 For his interest in the community, the court awarded 

Husband a judgment of $112,789.91 and awarded seven specific items of 

community property to Wife. In addition to the judgment representing the 

property allocation, the court further entered a $50,000 judgment against 

Wife “for concealment of community property, for violation of the 

preliminary injunction[,] and for excessive and abnormal expenditures[.]”

The court also ordered that Wife’s interest in the present value of 

Husband’s Tenneco pension ($13,559.14) and her survivor annuity 

($18,650.60) would offset these judgments. The amended decree awarded 

Husband $21,688.78 in attorneys’ fees and costs in addition to $1,350 in 

costs for calculating the present value of the Tenneco pension and annuity.

¶13 On the APSA claim, the court awarded Husband $134,000 in 

damages, but because a portion of these damages duplicated the property 

allocation, Wife was credited an amount equal to the community property 

judgment ($112,789.91). Wife was additionally assessed $20,000 in statutory 

double damages and $40,000 in punitive damages under A.R.S. §§ 46-

456(B), (F), and -455(H)(4).

¶14 As to the Joined Parties, the court “declared” that any 

community funds transferred to them were “fraudulent conveyances[,]” 

and that Husband could pursue collection from the Joined Parties. But the 

court found the amended decree was only binding on Husband and Wife.

In a separate order, the court concluded that joinder was proper but agreed

that the Joined Parties had not been given sufficient notice or opportunity 

to participate in the proceedings until after the hearing. Nonetheless, the 

court found this did not warrant relief because the Joined Parties would 

have an opportunity to be heard before the court entered orders directly 

affecting them or their property. The court concluded that the amended 

decree involved only Wife and Husband’s marital property, not the Joined 

Parties’ separate property.
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6

¶15 Wife and the Joined Parties timely appealed, and we have 

jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1), (2).

DISCUSSION

I. The Superior Court Did Not Err by Holding the Evidentiary 

Hearing in Wife’s Absence Under the Circumstances Here.

A. The Rules Governing Default Proceedings Do Not Apply.

¶16 Wife argues the superior court erred by holding the 

evidentiary hearing in her absence because it did not follow the proper 

procedure for default proceedings under Rules 44 and 44.2. However, the 

court entered the amended decree under Rule 76.2 as a sanction for Wife’s 

failure to appear without good cause. Imposition of this sanction was 

preceded by multiple pre-hearing orders cautioning that failure to appear 

or file pretrial statements could result in the court proceeding by “default.”

¶17 Properly characterized, the procedure employed by the court 

was not a “default” within the meaning of Rules 44 and 44.2. See Gillette v. 

Lanier, 2 Ariz. App. 66, 68–69 (1965) (citing Coulas v. Smith, 96 Ariz. 325, 328 

(1964)). Rules 44 and 44.2 apply when a party does not respond. By contrast, 

Wife responded and had previously participated in the proceedings, but 

failed to appear at the evidentiary hearing or submit a pretrial statement. 

When a party has responded in the proceedings, the court cannot enter a 

judgment on default. Id. at 69 (citing Coulas, 96 Ariz. at 328). Instead, the 

court may proceed to hear evidence from the party who is present and 

render the appropriate judgment if that party has established its right to the

judgment. Id.

¶18 Here, after repeatedly warning Wife of the consequences of 

failing to appear and comply with disclosure orders, the court did not err 

when it proceeded in Wife’s absence, admitted Husband’s exhibits, and 

entered a judgment on the merits. See Ariz. R. Fam. Law. P. 76.2(b)(6).

¶19 Using parallel reasoning, we further reject Wife’s argument 

that the amended decree violated Rule 44.1(a)(1) because it awarded 

Husband relief that differed from her petition. Rule 44.1 does not apply 

here. Thus, that Rule cannot justify a finding of error as argued.

¶20 Nonetheless, evidence in the record must support the

amended decree. See Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 

344, 350, ¶ 17 (App. 2006) (noting that when no evidence in the record 

supports the superior court’s conclusion, such deficiency constitutes abuse 
BUDZISZEWSKI v. BUDZISZEWSKI/CAMPBELL

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7

of discretion). Wife contends the court could not enter a decree without 

taking testimony. Although no party testified, the court still received over 

50 exhibits with no objection. By failing to appear at the hearing or object to 

the pretrial statement, Wife waived any objections to the exhibits offered at 

the hearing. See State v. Briggs, 112 Ariz. 379, 382 (1975) (“A failure to object 

to incompetent or inadmissible evidence constitutes a waiver to question 

the same matter on appeal.”); Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 

96, 103, ¶ 24 (App. 2007) (holding failure to object to exhibits at trial waives

issue on appeal). Accordingly, we review the record to determine if it 

supports the amended decree.

II. The Record Supports the Community Property Allocation, But Not 

the $50,000 Judgment or the $5,000 Judgment for Husband’s 

Separate Property.

¶21 Wife argues the court did not equitably divide the community 

property and debts and failed to assign each spouse their separate property.

Dissolution proceedings are governed by statute. In re Marriage of Waldren, 

217 Ariz. 173, 175, ¶ 8 (2007). The court is required by A.R.S. § 25-318(A) to 

divide community property equitably and assign each party his or her 

separate property. Wife’s failure to appear and contest the evidence 

presented did not relieve the court of this duty. Accordingly, we review the 

amended decree to determine if it is fair and equitable as required by § 25-

318(A).

¶22 Wife generally argues the property allocation was not fair and 

equitable. She specifically challenges the $5,000 judgment for Husband’s 

swing and the $50,000 punitive judgement. However, assuming Wife’s 

mention of “duplicative awards[,] and damages and amounts which were 

not well-pled” refers to the APSA damages, her assertion lacks any 

supporting argument or citation of authority. Accordingly, we do not 

consider it. Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 93, ¶ 50 (App. 1998)

(citing ARCAP former 13(a)(6), now 13(a)(7)).

¶23 Turning to the property allocation, we review the court’s 

ruling for an abuse of discretion. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 

523, ¶ 4 (App. 2007). We will affirm the court’s ruling if it is supported by 

reasonable evidence and view the evidence in the light most favorable to 

upholding that ruling. See Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 

2015). An abuse of discretion occurs when the record is “‘devoid of 

competent evidence to support the decision[,]’” or when the court commits 

an error of law in the process of reaching a discretionary conclusion. Hurd 

v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App. 2009) (quotation omitted).
BUDZISZEWSKI v. BUDZISZEWSKI/CAMPBELL

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8

¶24 Contrary to Wife’s contention, the court did not rely solely on 

Husband’s pretrial statement and trial memorandum. The court was aware 

of its duty to make an independent determination and findings. And 

according to the court, it did not view the avowals made by the 

Conservator’s attorney as evidence; rather, it considered the exhibits, 

pleadings (which included Wife’s deposition testimony), and Husband’s 

pretrial statement and trial memorandum. Under Rule 76.2(b)(1), (2), and 

(6), the court had the discretion to consider the facts as stated in Husband’s 

pleadings and enter a ruling on the merits in Wife’s absence.

¶25 The original Agreement and Husband’s pretrial statement 

identified several community assets and debts. The amended decree 

equally divided those assets by awarding Wife the community assets in her 

possession and ordering her to pay Husband for his share of those assets.

Specifically, the court determined that Wife owed Husband $112,789.91 for 

his share of (1) the Flower Property; (2) the Nissan; (3) the 2018 tax refunds;

(4) $3,000 representing three payments made to Wife under the Agreement;

(5) the BOA checking account #5570; (6) the BOA money market account

#0057; and (7) Wife’s BOA retirement accounts.

¶26 The admitted exhibits show (1) the proceeds from the Flower 

Property totaled $172,865.10; (2) the parties received about $4,300 in tax 

refunds for 2018; and (3) the combined balances of all three BOA accounts 

(including Wife’s IRA) was about $36,144 on October 9, 2018. The Nissan

was owned outright, and the record shows its value ranged from $7,450 to 

$15,025. Wife admitted at her deposition that she paid herself $2,000 in 

March and April 2019 from Husband’s social security and separate 

property retirement benefits. Thus, the record supports the finding that 

Husband’s share of the community assets is at least $112,789.10. The court 

also equally divided the community’s interest in Husband’s Tenneco 

pension and survivor annuity. It was within the court’s discretion to offset 

Wife’s interest in this asset to satisfy the property allocation judgment.

¶27 The court ordered Wife to pay the debt owed on three credit 

cards as of October 9, 2018. The balance owed on two of the cards was 

approximately $4,324. Although the Sears card had a balance of nearly $200 

in February 2019, the record does not show what the balance was on the 

date the community terminated. The court also found Wife responsible for 

any charges on the Visa credit card she opened after October 9, 2018.

Husband was assigned any tax liability for having a Citi Visa credit card

balance written off. However, there was no evidence showing how much 

the tax liability might be, so this is purely speculative. The court did not
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explain why it was fair and equitable to order Wife to pay an additional 

$4,500 in community debt more than Husband.

¶28 Husband suggests the overall allocation was fair and 

equitable because of Wife’s excessive and abnormal expenditures and her 

violation of the preliminary injunction. Indeed, A.R.S. § 25-318(C) allows 

the court to consider a spouse’s excessive or abnormal expenditures, 

destruction, concealment, or the fraudulent disposition of community 

property. See also Martin v. Martin, 156 Ariz. 452, 455–56 (1988). Wife’s use 

of community credit cards solely for her benefit post-petition is a valid 

reason to allocate the additional debt to Wife, and given the court’s findings 

and the evidence in this record regarding Wife’s conduct as outlined above, 

we affirm the property allocation for this reason. See Johnson v. Elson, 192 

Ariz. 486, 489, ¶ 11 (App. 1998) (explaining an 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).

¶29 However, beyond allocating more community debt to Wife, 

the court also imposed a $50,000 judgment for Wife’s “concealment of 

community property, for violation of the preliminary injunction and for 

excessive and abnormal expenditures.” The court imposed this sanction, in 

part, because Wife gave her adult sons $160,000 from the Flower Property 

sales proceeds and kept the 2018 tax refunds and a portion of Husband’s 

social security and other benefits. But the court already ordered Wife to pay 

Husband for his share of these assets as part of the $112,789.10 judgment. 

See Martin, 156 Ariz. at 456. The court cannot impose a penalty or sanction 

in the form of a separate judgment beyond the property allocation because

“[p]roperty may not be distributed in order to reward one party or punish 

the other.” Hatch v. Hatch, 113 Ariz. 130, 133 (1976).

¶30 Nor does the fact that Wife breached her fiduciary duty to 

Husband, without more, support the $50,000 judgment. The court 

considered this particular conduct in relation to the APSA claim and 

damages award, which Wife has not appealed. But the court may not 

consider marital misconduct except for the reasons stated in A.R.S. § 25-

318(C). Id.

¶31 The court granted Husband the $50,000 judgment because

Wife allowed her adult son to live rent-free in the Flower Property for three 

months. There is no evidence in this record, however, of the Flower 

Property’s fair rental value that supported a $50,000 judgment for waste of 

a community asset.
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¶32 The court further found Wife violated the preliminary 

injunction by spending $9,584.59 for her granddaughter’s college tuition

between August 2018 and February 2019 and by keeping the 2018 tax 

refunds and a portion of Husband’s social security and retirement benefits.

The court has inherent authority and discretion to sanction a party for 

violating a preliminary injunction. See A.R.S. § 25-315(A)(5); Green v. Lisa 

Frank, Inc., 221 Ariz. 138, 149–50, ¶ 29 (App. 2009). But the sanction is 

disproportionate to the violation because Wife must pay Husband his share

of the same tax refunds and social security benefits in the property 

allocation. And to the extent the $50,000 judgment is intended as a sanction 

for violation of the preliminary injunction beyond the relief granted 

elsewhere in the court’s decree—and notwithstanding the great degree of 

discretion afforded the court in imposing that penalty—the basis for 

imposition of such a substantial penalty warrants much clearer findings 

and explanation than what was stated. Thus, we conclude the court’s 

proffered rationale for the $50,000 judgment is inadequate to support that

sanction and otherwise inconsistent with the statutes governing dissolution 

proceedings and unsupported by evidence. See Hatch, 113 Ariz. at 133. 

Accordingly, we vacate the $50,000 judgment ordered in the amended 

decree at ¶ L and remand for reconsideration consistent with this decision.

¶33 Wife also challenges the order that she return Husband’s 

glider swing by a certain date or pay him $5,000. The only evidence relating 

to this item is a photograph of a swing at a residence. At her deposition, 

Wife testified that the swing was Husband’s separate property, but she 

claimed Husband gave it away because it was beyond repair. There was no 

evidence of the swing’s value. In addition, the court had “no jurisdiction to 

grant a money judgment against one spouse for damage to the separate 

property of the other spouse in a dissolution proceeding.” Weaver v. Weaver, 

131 Ariz. 586, 587 (1982). Therefore, we vacate the order that Wife pay 

Husband $5,000 if she fails to return Husband’s swing.

III. The Joined Parties Are Aggrieved But Cannot Raise Arguments on 

Behalf of Wife.

¶34 The Conservator argues that the Joined Parties are not 

aggrieved by the amended decree, and therefore lack standing to appeal the 

amended decree. The Conservator moved to dismiss the Joined Parties’ 

appeal on the grounds that they were not aggrieved. Another panel of this 

court denied that motion, concluding that the Joined Parties were aggrieved 

by both the amended decree and the separate order ruling on their 

objection. Thus, we do not revisit that issue here.
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¶35 Although the Joined Parties are aggrieved, they do not have 

standing to raise issues Wife did not raise herself. In re Estate of Friedman, 

217 Ariz. 548, 552, ¶ 11 (App. 2008) (citing Goglia v. Bodnar, 156 Ariz. 12, 18 

(App. 1987)). Thus, we do not consider the Joined Parties’ arguments that 

the court erred by (1) setting aside the Agreement; (2) granting the motion 

to reconsider summary judgment; (3) failing to conduct an evidentiary 

hearing; (4) failing to continue the hearing; and (5) characterizing the 

Flower Property as community property. Like Wife, the Joined Parties 

argue the evidence does not support the amended decree. We have already 

addressed that argument, and the Joined Parties cannot make additional 

arguments that Wife did not raise. Id.

IV. The Joined Parties Were Denied Due Process.

¶36 The Joined Parties argue they were denied due process 

because the court granted Husband’s motion to join them before they had 

an opportunity to respond and because they had no opportunity to 

participate in the evidentiary hearing. We agree.

¶37 Due process issues are legal issues and reviewed de novo.

Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999). Due process requires 

the court “afford the parties ‘an opportunity to be heard at a meaningful 

time and in a meaningful manner.’” Volk v. Brame, 235 Ariz. 462, 468, ¶ 20 

(App. 2014) (quotation omitted).

¶38 The court found the Joined Parties were not provided notice 

or an opportunity to participate in the evidentiary hearing. The court 

acknowledged that the Joined Parties should be given an opportunity to be 

heard before it enters an order directly affecting them or their property. But

the court found no due process violation because the amended decree, 

specifically ¶ U, was only binding on Husband and Wife.

¶39 The court may join parties as necessary for it to exercise its 

authority. A.R.S. § 25-314(D). If a party in a dissolution proceeding transfers 

property to a third party, Rule 37(c) authorizes the court to join the 

transferee. And Arizona Rule of Civil Procedure (“Civil Rule”) 20(a)(2)

permits joinder of a party if any right to relief is asserted against them with 

respect to, or arising out of, the same transaction and there are common 

questions of fact or law. See Rule 33(c) (joinder motions in family court are 

considered under the Civil Rules). Thus, the court’s joinder was not error.

¶40 Although the court properly joined the Joined Parties based 

on Husband’s allegations that Wife transferred community funds to them,

the joinder must still be consistent with due process. The issue here is the 
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Decision of the Court

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timing of the motion and whether it deprived the Joined Parties of due 

process because they were denied an opportunity to appear at the hearing. 

Husband did not move for joinder until after the hearing, but he knew in 

March 2020—one year before the hearing—that Wife transferred funds to 

the Joined Parties. “Elementary principles of due process require that before 

any person may have a valid judgment entered against him, that person 

must have reasonable notice and an opportunity to appear and defend.” 

Garn v. Garn, 155 Ariz. 156, 159 (App. 1987). Having been added after the 

hearing, the Joined Parties were not afforded reasonable notice or 

opportunity to appear and defend.

¶41 Husband contends the Joined Parties were not prejudiced 

because the decree is not binding on them and does not impact their rights 

until the court enters an order affecting them or their property. We disagree. 

The amended decree authorizes Husband to pursue collection from the 

Joined Parties. Nothing in the amended decree prevents Husband from 

immediately attempting to collect from the Joined Parties. It is, therefore, a 

specific order directly affecting the Joined Parties’ property rights. 

¶42 Separately, although we presume it was not the court’s intent 

to allow such expansive application, the broad language in ¶ U of the 

amended decree is further problematic because it appears to authorize 

Husband to collect community funds transferred to the Joined Parties at 

any time during marriage. The amended decree declares that transfers of 

community property by Wife “before and after February 13, 2019” are 

fraudulent conveyances. As written, this language allows Husband to 

impermissibly collect any community funds that Wife ever gave the Joined 

Parties. And because Husband did not assert a claim under the Uniform 

Fraudulent Transfer Act, see A.R.S. §§ 44-1001 to –1010, we must further 

presume the finding that Wife made fraudulent conveyances was instead 

related to the waste claim under A.R.S. § 25-318(C). Having failed to plead 

a statutory fraudulent transfer claim, Husband cannot assert that claim

against the Joined Parties in this proceeding.

¶43 Joinder may have been appropriate, but the amended decree 

did more than simply allow joinder. It authorized collection proceedings 

for an amount that may exceed the disputed community funds. Because the 

hearing resulted in a decree that affects the Joined Parties’ property rights, 

due process required that they have an opportunity to appear before entry 

of the amended decree. See Heinig v. Hudman, 177 Ariz. 66, 70 (App. 1993)

(holding wife’s due process rights were violated when judgment against 

husband was converted to judgment against both husband and wife 

following proceeding at which wife was not a party). Although the Joined 
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Decision of the Court

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Parties objected before the court entered the amended decree, they were 

deprived of any opportunity to participate in the hearing where evidence 

was presented to support the amended decree, or to contest which 

community property given to them by Wife was fraudulently transferred.

This does not satisfy due process. Accordingly, we vacate ¶ U in the 

amended decree and remand to allow the Joined Parties to appear before 

entry of a judgment that affects their property rights. However, this remand 

is not an opportunity for the Joined Parties to raise any defenses or issues 

that Wife failed to assert in the prior litigation.

V. The Parties Agree the Correct Interest Rate Is 4.25%.

¶44 The parties agree on appeal that the amended decree should 

be corrected to reflect a 4.25% interest rate. See A.R.S. § 44-1201(B) 

(providing that interest on judgment shall be lesser of ten percent or one 

percent plus the prime rate1).

ATTORNEYS’ FEES ON APPEAL

¶45 Wife requests an award of attorneys’ fees and costs on appeal 

under A.R.S. §§ 25-324 and 12-341. Husband requests costs on appeal from 

Wife under § 12-341. After considering the financial resources of the parties 

and the reasonableness of their positions on appeal, in the exercise of our 

discretion, we order Husband and Wife to pay their own attorneys’ fees. 

However, Wife is entitled to her costs on appeal under § 12-342(A).

¶46 The Joined Parties request an award of attorneys’ fees and 

costs under § 25-324. Husband seeks attorneys’ fees and costs on appeal 

from the Joined Parties under § 25-324 and the APSA. Because Husband did 

not assert the APSA claims against the Joined Parties, he is not entitled to 

fees or costs under § 46-455(H)(4). Additionally, we lack the necessary 

financial information to determine if the Joined Parties or Husband are

entitled to fees under § 25-324. Accordingly, each party shall pay their own 

attorneys’ fees. Because we are remanding for reconsideration, we cannot 

yet determine if Husband or the Joined Parties are entitled to costs under § 

12-342(A) and instruct the superior court on remand to award costs on 

appeal consistent with this statute.

CONCLUSION 

¶47 We affirm the allocation of community property and debt in 

the amended decree. We vacate the $50,000 judgment against Wife and 

1 Historical Prime Rate (jpmorganchase.com).
BUDZISZEWSKI v. BUDZISZEWSKI/CAMPBELL

Decision of the Court

14

remand for reconsideration in a manner consistent with this decision. We 

vacate the $5,000 judgment for Husband’s swing. On remand, the superior 

court shall modify the amended decree to reflect the correct statutory 

interest rate. Finally, we vacate ¶ U in the amended decree and remand for 

further proceedings consistent with this decision as to the Joined Parties.