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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SANDRA R. GAVALDON, Petitioner/Appellee,

v.

JOSE G. GAVALDON, JR., Respondent/Appellant.

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 Petitioner/Appellee

Raymond S. Dietrich, PLC, Phoenix

By Raymond S. Dietrich

Counsel for Respondent/Appellant

FILED 11-8-2022
GAVALDON 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.

FACTUAL 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 petitioned for division of the savings 

plan as 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 omitted 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 plan 
GAVALDON 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 provided:

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 contained no express reference to the 

savings plan. Nor was the savings plan 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 

decree 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 Ests.

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 

common 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 decree, 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 Husband 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 Hurd v. Hurd, 223 Ariz. 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 unmodifiable because under 

A.R.S. § 25-327(A), “[t]he provisions as to property disposition 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

misrepresentation, 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 other 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 annuity.” 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 

standard of proof or required documentary proof of disclosure. The 

superior court properly 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

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CONCLUSION

¶13 For the foregoing reasons, we affirm.