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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

In re the Matter of:

STEVEN D. JOHNSON
, Petitioner /Appellant
,

v.

MICHELLE JOHNSON
, Respondent /Appellee

.

No. 1 CA

- CV 18

- 0137 FC

Appeal from the Superior Court in Maricopa County

No. DR1998

- 017225 The Honorable Kristin R. Culbertson
, Judge

AFFIRMED

COUNSEL
Raymond S. Dietrich PLC , Phoenix By Raymond S. Dietrich Counsel for Petitioner

/Appellant

The Harrian Law Firm, PLC, Glendale By Daniel Seth Riley C ounsel for Respondent

/Appellee FILED 10-18-2018JOHNSON v. JOHNSON Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Maria Elena Cruz and Judge Randall M. Howe joined.

J O H N S E N , Judge:

¶1 Steven Johnson ( " Husband " ) appeals from an order denying his motion for relief from a 2008 domestic relations order ( " DRO " ) that allocated a portion of his r etirement benefits to Michelle Johnson ( " Wife " ). The superior court did not abuse its discretion in denying Husband ' s motion because it was untimely; therefore, we affirm

.

FACTS AND PROCEDURAL BACKGROUND

¶2 During the marriage, Husband worked for the Mesa Police Department , where he accrued retirement benefits under the Arizona Public Safety Personnel Retirement System

. Participants in this system do not contribute to the Social Security system. See Kohler v. Kohler
, 211 Ariz. 106, 110, ¶ 14 (App. 2005). Pursuant to a 1999 consent decree, the parties agreed to divide the community interest in Husband ' s retirement benefi ts by way of a DRO

. In 2008, the superior court signed the parties' stipulated DRO , which s tated that the community had a 50% interest in Husband ' s retirement benef its earned during the marriage.

¶3 In 2017, r elying on a n Arizona Supreme Court decision decid ed in 2000 , Husband soug ht relief from the DRO. In Kelly v. Kelly, 198 Ariz. 307 (2000)
, one spouse participated in a retirement plan in which a portion of his retirement contributions were in lieu of Social Security contribution s

. Kelly held that to achieve an equitable allocation in such circumstances, the superior court may treat a portion of that spouse ' s retirement benefits as separate property if the other spouse contributed to Social Security
, which, by federal law, remain s separate property not subject to allocation upon divorce. Id. at 309, ¶¶ 9

- 11

. ¶4 Here, Husband argued he was entitled to relief from the 2008 DRO because it failed to apply a Kelly adjustment. Wife responded that Husband ' s motion was untimely because it was filed 17 years after the Kelly decision an d nine years afte r entry of the DRO

. Ruling on cross

- motions for summary judgment , the superior court denied Husband ' s motion forJOHNSON v. JOHNSON Decision of the Court

3 relief as untimely , find ing h e should have sought to apply the Kelly adjustment no later tha n 2008
, when the part ies entered the stipulated DRO.

¶5 Husband filed a timely notice of appeal

. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( " A.R.S. " ) section s 12

- 120.21(A)(1) (2018) and

- 2101(A)(2 ) (201 8 )

. 1 See Vincent v. Shanovich, 243 Ariz. 269 , 270, ¶ 1 (2017)

.
DISCUSSION

¶6 We review the superior court ' s ruling as to the timeliness of a motion for relief for an abuse of discretion. See Ma rtin v. Martin
, 182 Ariz. 11
, 16 (App. 1994 )

. Pursuant to Arizo na Rule of Family Law Procedure 85(C)(2), a motion for relief from judgment must be filed within a

" reasonable time. " The record supports the court ' s conclusion that Husband ' s motion was untimely

. ¶7 Husband sought relief under Rule 85(C)(1) (f), which allows the court to relieve a party from a final judgment or order " for any other reason justifying relief. " This rule " ha [s] been used liberally in reopening otherwise final court orders where there has been a change in the law affecting the substantial rights of a liti gant. " Edsall v. Superior Court (Edsall), 143 Ariz. 240, 243 (1984)

. 2 T he change in the law Husband relies u pon is the Kelly decision

. However, that decision was issued eight years before the stipulated DRO. Th us, the change in the law predate d the DRO from which Husband seeks relief. Husband failed to include the Kelly adjustment in the stipulated DRO, which his own lawyer prepared. As the superior court noted, Husband should have requested the Kelly adjustment when the parties were litigating the DRO in 2008. Thus, his 2017 request for relief from the DRO was untimely.

¶8 Husband contends this case is similar to Carranza v. Gonzales, 2016 WL 3101784 (Ariz. App. June 2, 2016) (mem. decision)

. The decree of dissolution in that case was entered five years before Kelly and did not include any method for allocating the communit y's interest in the pensions, and this court held the Kelly adjustment could be applied retroactively

. Id. at *3

- 4 , ¶ ¶ 14

- 16

. The decree in Carranza " anticipated a future order

1 Absent material revision after the relevant date, we cite the current version of a statute or rule

.

2 Edsall addressed Arizona Rule of Civil Procedure 60(C) , which is identical to Arizona Rule of Family Law Procedure 85(C).JOHNSON v. JOHNSON Decision of the Court

4 detailing the formula for allocating the pensions. " Id. at *3, ¶ 14. Here, by contrast, the 2008 DRO was the " future order " detailing the formula for allocating Husband ' s retirement benefits. Had Husband raised the Kelly adjustment during the 2008 DRO proceedings, this case would be in the same posture as Carranza

. But Husband failed to address Kelly when the parties litigated the DRO in 2008; thus, his attempt to r aise the issue now is untimely.

¶9 We also reject Husband ' s contention that his motion was not untimely because the amount of the retirement benefit could not be calcula ted until he retired in 2017. The decree incorporated a property settlement agreement that stated the community portion of the retirement benefits would be " defined p ursuant to a Van Loan formula. " The 2008 DRO set forth the fractional interest and specified that Wife is entitled to half that amount. 3 The amended DRO Husband proposed in 2017 contained the same formula as in the 2008 DRO , but reduced Wife ' s share from 50% to 33.9%, presumably to apply the Kelly adjustment. Contrary to Husband ' s argu ment, the specific benefit amount was not included in the DR O he proposed in 2017

. Therefore, Husband ha d no need to wait until he actually retired in 2017 to request application of the Kelly adjust ment.

¶10 Wife request s an award of attorney ' s fees on appeal but does not cite any statutory authority supporting her reques t

. For that reason, we deny her request. See Roubos v. Miller, 214 Ariz. 416, 420, ¶ 21 (2007) ; see also

3 The stipulated DRO describes the numerator/denominator for determining Wife ' s fractional interest as follows:

M onths married as M ember (through January 1, 1999) / T otal months as a M ember x 1 /2 = Alternate Payee ' s Portion

.JOHNSON v. JOHNSON Decision of the Court

5 Arizona Rule of Civil Appellate Procedure ( " ARCAP " ) 21(a)(2)

. As the successful party, however, Wife is entitled to her costs on appeal upon compliance with ARCAP 2 1

. See A.R.S. § 12

- 342 (201 8 )

.
CONCLUSION

¶11 We affirm the superior court ' s order denying Husband ' s motion for relief from the 2008 DRO

.