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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

Counsel for Respondent/Appellee

FILED 10-18-2018
JOHNSON 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 retirement 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 benefits

by way of a DRO. In 2008, the superior court signed the parties' stipulated 

DRO, which stated that the community had a 50% interest in Husband's 

retirement benefits earned during the marriage.

¶3 In 2017, relying on an Arizona Supreme Court decision

decided in 2000, Husband sought 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 

contributions. 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, remains 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 and nine years after entry of the DRO. Ruling on cross-motions 

for summary judgment, the superior court denied Husband's motion for 
JOHNSON v. JOHNSON

Decision of the Court

3

relief as untimely, finding he should have sought to apply the Kelly 

adjustment no later than 2008, when the parties 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.") sections 12-120.21(A)(1) (2018) and -2101(A)(2)

(2018).

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 Martin v. Martin, 182 Ariz. 

11, 16 (App. 1994). Pursuant to Arizona 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 litigant." Edsall v. Superior Court (Edsall),

143 Ariz. 240, 243 (1984).

2 The change in the law Husband relies upon is the 

Kelly decision. However, that decision was issued eight years before the 

stipulated DRO. Thus, the change in the law predated 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 community'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 raise 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 

calculated until he retired in 2017. The decree incorporated a property 

settlement agreement that stated the community portion of the retirement 

benefits would be "defined pursuant 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 argument, the specific benefit amount was not included in the 

DRO he proposed in 2017. Therefore, Husband had no need to wait until 

he actually retired in 2017 to request application of the Kelly adjustment.

¶10 Wife requests an award of attorney's fees on appeal but does 

not cite any statutory authority supporting her request. 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:

Months married as Member (through January 1, 1999) / Total 

months as a Member 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 21. See A.R.S. § 12-342 (2018).

CONCLUSION

¶11 We affirm the superior court's order denying Husband's 

motion for relief from the 2008 DRO.