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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

SANDRA R. GAVALDON
, P etitioner /Appell ee ,

v.

JOSE G. GAVALDON, JR.
, Respondent /Appell ant

.
No. 1 CA

- CV 22

- 0302 FC

Appeal from the Superior Court in Maricopa County

No. FC2011

- 090133 The Honorable David E. McDowell
, Judge

AFFIRMED

COUNSEL
Popp Law Firm, P

. L

. C

. , Tempe By James S. Osborn Popp Counsel for P etitioner

/Appell ee
Raymond S. Dietrich, PLC
, Phoenix By Raymond S. Dietrich C ounsel for Respondent

/Appell ant FILED 11-8-2022GAVALDON v. GAVALDON Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in which Judge Angela K. Paton and Judge Peter B. Swann joined.

C R U Z , Judge:

¶1 Jose G. Gavaldon, Jr. (“Husband”) appeals the superior court’s post

- dissolution order in favor of Sandra R. Gavaldon (“Wife”) that Husband’s undisclosed defined contribution savings plan be divided via a qualified domestic relations order (“QDRO”). For the following reasons, we affirm.

FA CTUAL AND PROCEDURAL HISTORY

¶2 Husband and Wife divorced in 2012. In 2020, Wife petitioned for entry of a QDRO against Husband’s Arizona Pipe Trades Pension Trust Fund pension plan. The superior court ruled in favor of Wife and in early 2021 entered a QDRO against the pension plan.

¶3 Later that year, Wife contacted the administrator of the pension plan about the QDRO and discovered that Husband also had an Arizona Pipe Trades Defined Contribution savings plan (“savings plan”) that she had been unaware of

. Wife petition ed for division of the savings plan a s an omitted asset.

¶4 The superior court held an evidentiary hearing

. The court found Husband’s testimony that he had disclosed the savings plan to Wife unpersuasive, found that the savings plan was an omitt ed asset, and awarded Wife one

- half of the community ’s interest in the savings plan. The court ordered the savings plan to be divided by a QDRO

. It awarded Wife attorneys’ fees and costs based on disparity of financial resources and the unreasonableness of Husband’s position in the litigation. See Ariz. Rev. Stat. (“A.R.S.”) section 25

- 324. Husband appealed, and after entry of a final judgment, we have jurisdiction pursuant to A.R.S. § 12

- 2101(A)(2).

DISCUSSION

¶5 Husband argues the savings plan was not an omitted asset under A.R.S. § 25

- 318(D) because the 2012 divorce decree awarded the planGAVALDON v. GAVALDON Decision of the Court

3 to Husband

. Husband argues the savings plan was his sole and separate property because of a catchall clause in the decree , which provide d : Each party shall retain as his or her sole and separate property any disclosed savings, checking or other financial account held in that party’s name.
(Emphasis added

. ) The decree contain ed no express reference to the savings plan. Nor was the savings pl an mentioned in the superior court’s
pre

- decree minute entry ruling, wherein the court ordered Husband’s pension plan to be divided by a QDRO.

¶6 We review the superior court’s interpretation of a dissolution d ecree de novo. Cohen v. Frey , 215 Ariz. 62, 66, ¶ 10 (App. 2007). We review the superior court’s factual findings for clear error. Ahwatukee Custom Est s

. Mgmt. Ass’n v. Turner , 196 Ariz. 631, 634, ¶ 5 (App. 2000). The determination of witness credibility and the resolution of conflicting evidence are functions of the superior court. Lee v. Lee , 133 Ariz. 118, 123 ( App. 1982).

¶7 The superior court may divide an asset omitted from a decree of dissolution under A.R.S. § 25

- 318(D), which provides:
The community, joint tenancy and other property held in

com mon for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common, each possessed of an undivided one

- half interest.

¶8 Here, the superior court found that the savings plan was omitted from the decr ee , and even if it was a “financial account” that could be subject to the catchall provision, that provision did not apply because the savings plan had not been disclosed to Wife. In making its determination, the court accepted Wife’s testimony that Husba nd did not disclose the savings plan and rejected Husband’s testimony that he did so. We will not reweigh the conflicting evidence
, and we defer to the superior court’s credibility determination. See H urd v. Hurd , 223 A r iz. 48, 52, ¶ 16 (App. 2009). We find no error in the superior court’s determination that the savings plan was an omitted asset subject to post

- decree division.

¶9 Husband argues the decree was un modifiable because under A.R.S. § 25

- 327(A), “[t]he provisions as to property disposi tion may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of [Arizona].” Husband suggests that because the superior court did not find “evidence of fraud,GAVALDON v. GAVALDON Decision of the Court

4 misrepresentat ion, or misconduct,” or “mistake or newly discovered evidence,” the decree was unmodifiable. See Arizona Rule of Family Law Procedure (“ ARFLP ”) 85 (b). We disagree. Under ARFLP 85(b)(6), the superior court may grant relief from final judgment for “any ot her reason justifying relief.” And, as noted above, A.R.S. § 25

- 318(D) allows the superior court to divide an asset omitted from a decree of dissolution. We find no error.

¶10 Husband acknowledges that “A.R.S. § 25

- 318(D) does not mandate a standard of proof ,” but nevertheless argues the superior court erred by applying a clear and convincing evidence standard of proof rather than a preponderance of the evidence standard, noting “the superior court required documentary evidence to prove disclosure of the annu ity.” Even if Husband did not waive this argument by failing to raise it in the superior court, the record does not reflect that the superior court applied a higher

s tandard of proof or require d documentary proof of disclosure

. The superior court properl y reviewed the record for evidence of disclosure of the savings plan and noted there was none other than Husband’s testimony, which the court found “unpersuasive.” We find no error.

¶11 Finally, Husband argues Wife’s petition for division of the savings plan is barred by laches. The superior court noted in its order that Husband “cites no

. . . equitable limitations arguments against division of [the savings plan] ,” and “makes no argument that he has been prejudiced by the late division of this omitted asset. ” The record supports this determination

. Accordingly, Husband has waived his laches argument on appeal. See Regal Homes, Inc. v. CNA Ins. , 217 Ariz. 159, 171, ¶ 52 (App. 2007).

¶12 Wife requests attorneys’ fees pursuant to A.R.S. § 25

- 324. We have considered the relative financial resources of the parties and the reasonableness of the positions asserted on appeal. In the exercise of our discretion, we grant Wife reasonable attorneys’ fees in addition to her costs on appeal, upon compliance with ARCAP 21.GAVALDON v. GAVALDON Decision of the Court

5 CONCLUSION

¶13 For the foregoing reasons, we affirm.