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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DENISE THOMAS GARLAN, Petitioner/Appellee/Cross-Appellant,

v.

MICHAEL J. GARLAN, Respondent/Appellant/Cross-Appellee.

No. 1 CA-CV 19-0245 FC

Appeal from the Superior Court in Coconino County

No. S0300DO20020510

The Honorable Ted Stuart Reed, Judge

The Honorable Mark R. Moran, Judge (retired)

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Davis Miles McGuire Gardner, PLLC, Tempe

By Douglas C. Gardner

Counsel for Respondent/Appellant/Cross-Appellee

Linda Wallace, PLLC, Sedona

By Linda Wallace

Counsel for Petitioner/Appellee/Cross-Appellant 

FILED 6-18-2020
GARLAN v. GARLAN

Decision of the Court

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MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in 

which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani

joined.

M c M U R D I E, Judge:

¶1 Michael J. Garlan (“Husband”) appeals from the superior 

court’s order dismissing his petition for accounting and contempt, 

declining to modify its order dismissing Denise Garlan’s (“Wife”) petition 

for contempt, and modifying spousal maintenance. Wife cross appeals from 

the court’s order dismissing her petition for contempt for Husband’s failure 

to pay spousal maintenance and denying her claim for attorney’s fees.

¶2 In this decision, we accept special action jurisdiction over the 

dismissal of Husband’s and Wife’s respective petitions for contempt but 

deny relief. We also affirm the court’s order denying Wife’s claim for 

attorney’s fees. We address the order modifying husband’s 

spousal-maintenance obligation in a contemporaneously filed opinion.

FACTS AND PROCEDURAL BACKGROUND

¶3 The parties were married in 1985, and Wife petitioned for the 

dissolution of the marriage in 2002. In 2003, the parties executed a marital 

settlement agreement (“MSA”). As part of spousal maintenance,

1 the MSA 

provided that Husband would keep Wife on her current medical and dental 

insurance coverage for her life to be “paid directly from Husband’s monthly 

income or from his estate in the event of his death.” The MSA also stated 

that all corporate earnings of the parties’ joint corporation that exceeded 

$300,000 may “be utilized to reduce Husband’s obligation for spousal 

support or divided equally with Wife, at his option.” The superior court 

dissolved the marriage and incorporated the terms of the MSA into a

decree.

1 The MSA uses the term spousal “support,” which we refer to as 

“maintenance” throughout this decision to remain consistent with the 

statutory language.
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¶4 By 2006, Husband transferred his interest in the parties’ 

corporation to Wife. The corporation dissolved in August 2008. According 

to Wife, the corporation had a deficiency of $150,000 at the time of its

dissolution.

¶5 In 2009, Husband petitioned for an accounting and contempt

to determine what the corporation earned from sales and if he was due any 

earnings retained by the corporation or an offset on his 

spousal-maintenance obligation under the terms of the MSA. Husband 

alleged that Wife had failed to disclose records that would allow him to 

conduct an accounting and requested that the court issue an order: 

(1) requiring Wife to provide a full accounting of the corporation’s business; 

and (2) order wife to pay him 50 percent of any earnings made by the 

corporation over the $300,000 threshold set by the MSA. Wife 

counter-petitioned for contempt, alleging that Husband had failed to pay 

as required under the MSA for her medical and dental insurance premiums 

after January 24, 2003.

¶6 During discovery on the related claims, Husband sought 

records related to the parties’ corporation from January 1, 2003, to January 

21, 2006. In response, Wife produced tax returns, QuickBooks-records, 

balance sheets, bank registers, and annual reports filed with the Arizona 

Corporation Commission. The superior court ordered Wife to provide 

additional business records requested by Husband.

¶7 At an evidentiary hearing in 2011, Wife admitted she did not

comply with the court’s order as she failed to request the records from 

third-party custodians to produce the bank records, canceled checks, deeds, 

receipts, and closing statements for properties sold by the corporation.

After the 2011 evidentiary hearing, the superior court found that Wife

unreasonably failed to comply with the court-ordered discovery. The court 

also found that the parties intended to provide medical and dental 

insurance to Wife for the rest of her life due to a known pre-existing 

condition and that Husband had a duty to pay for the medical-insurance 

coverage for Wife, even though Husband was legally unable to provide 

medical coverage to Wife through his employer post-decree. The court 

declined to issue a final ruling on either Husband’s or Wife’s petitions until 

Wife provided the requested discovery.

¶8 In 2018, Husband moved to dismiss Wife’s 2009 petition for 

contempt, arguing that she had only partially complied with the superior 

court’s disclosure and discovery order and that he was still unable to 

accurately determine the corporation’s earnings in the absence of a full 
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accounting. After oral argument, the court dismissed Wife’s petition for 

contempt without prejudice as a sanction for Wife’s failure to provide the 

previously ordered documentation.

¶9 After a two-day evidentiary hearing in November 2018, the 

superior court dismissed Husband’s 2009 petition for contempt, finding it 

had no authority to grant contempt related to a debt owed under a 

separation agreement. The court declined to modify its order dismissing

Wife’s contempt petition to be with prejudice. The court declined to award 

attorney’s fees and costs to either party.

¶10 Both parties appealed. The denial of a petition for contempt is 

not appealable. See Berry v. Superior Court (Martone), 163 Ariz. 507, 508 (App. 

1989). However, in the exercise of our discretion, we treat the parties’

appeals from the dismissal of their respective contempt petitions as 

petitions for special action and accept jurisdiction. Danielson v. Evans, 201 

Ariz. 401, 411, ¶ 35 (App. 2001).

DISCUSSION

A. The Superior Court Did Not Err by Dismissing Husband’s Petition 

for Contempt.

¶11 Husband argues the superior court erred by dismissing his 

petition for contempt because it had jurisdiction to enforce the MSA 

provisions relating to property and had the authority to find Wife in 

contempt for failing to provide an accounting.

¶12 We review an order dismissing a petition for lack of 

jurisdiction de novo. Mitchell v. Gamble, 207 Ariz. 364, 367, ¶ 6 (App. 2004).

Arizona Revised Statutes (“A.R.S.”) section 25-311 vests the superior court 

with jurisdiction to hear and decide all matters under Title 25. Weaver v. 

Weaver, 131 Ariz. 586, 587 (1982). In a marriage-dissolution proceeding

under Title 25, the terms of a separation agreement, except support and 

custody terms, are binding on the court if the court finds the agreement is 

not unfair. A.R.S. § 25-317(B); Buckholtz v. Buckholtz, 246 Ariz. 126, 131, ¶ 18 

(App. 2019). The terms of a written separation agreement, whether merged 

or incorporated into a decree, “are enforceable by all remedies available for 

enforcement of a judgment, including contempt.” A.R.S. § 25-317(E).

¶13 Section 25-317(E), however, only permits enforcement of a 

separation agreement through contempt proceedings “as it has been used 

and interpreted in [Arizona]” before the statute’s enactment. Masta v. Lurie

ex rel Superior Court, 22 Ariz. App. 170, 171 (1974). In Stone v. Stidham, 96 
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Ariz. 235, 239–40 (1964), and Proffit v. Proffit, 105 Ariz. 222, 224 (1969), our 

supreme court held that the Arizona Constitution barred the enforcement 

of property-settlement provisions of divorce decrees and separation 

agreements concerning sums of money by contempt proceedings. See Ariz. 

Const. art. 2, § 18 (“There shall be no imprisonment for debt, except in cases 

of fraud.”). This remains the settled rule in Arizona. Danielson v. Evans, 201 

Ariz. 401, 411–12, ¶¶ 37–38 (App. 2001); 3 Charles Marshall Smith & Irwin 

Cantor, Arizona Practice Series, Marriage Dissolution Practice § 273, Westlaw

(database updated Sept. 2019).

¶14 Here, although Husband’s counsel attempted to characterize 

the 2009 petition for contempt otherwise at the 2018 evidentiary hearing, 

Husband sought to enforce the provision of the MSA entitling him to 50

percent of the corporation’s retained earnings over $300,000 through civil 

contempt. The language of the petition makes clear that the purpose of 

Husband’s request for an accounting, and the petition for contempt as a 

whole, was to hold Wife in contempt for failing to pay a debt he was 

allegedly owed under MSA. The petition specifically requested the court to 

order that: “in the event [Wife] received income from [the corporation] 

during the time period contemplated by the [MSA], which is in excess of 

the $300,000 threshold entitling [Husband] to 50%; that [Wife] be required 

to pay [Husband] 50% of any and all such income.”

¶15 The superior court correctly observed that Husband 

requested it to order Wife to pay the debt allegedly owed under the MSA 

through civil contempt. Thus, the court did not err by concluding it did not 

have the power to resolve Husband’s petition for contempt. Husband 

simply cannot recover a sum of money allegedly owed under the 

property-settlement provisions of the MSA via civil contempt proceedings.

See also, A.R.S. § 12-865(A) (“No proceeding for contempt shall be instituted 

against any person unless begun within one year from the date of the act 

complained of.”)

¶16 Instead, Husband should have filed a breach-of-contract 

action. Because the MSA explicitly stated that it “shall not be set forth or 

merged” with the decree and “shall survive as an independent contract of 

the parties,” it “retain[ed] its independent contractual status and is subject 

to the rights and limitations of contract law.” LaPrade v. LaPrade, 189 Ariz. 

243, 247 (1997); Buckholtz, 246 Ariz. at 129, ¶ 10 (“contract law governs” an 

incorporated property-settlement agreement). As a result, all terms of the 

MSA other than those that concerned spousal maintenance could only be 

enforced by filing a separate contract action. Although we do not opine on 

the merits of such an action, we note that any contract claim is subject to the 
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six-year statute of limitation applicable to contract actions. A.R.S. 

§ 12-548(A)(1); see also Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of 

Am., 182 Ariz. 586, 591 (1995) (under A.R.S. § 12-548, the statute of 

limitations commences when a party knows or in the exercise of reasonable 

diligence should know that he or she has been injured).

B. The Superior Court’s Order Dismissing Wife’s Petition for

Contempt Without Prejudice Was at Most Harmless Error.

¶17 Wife argues that the superior court abused its discretion when 

it dismissed her petition for contempt as a sanction for her failure to comply 

with the discovery orders. We review the dismissal of a petition for 

discovery violations for an abuse of discretion. Rivers v. Solley, 217 Ariz. 528, 

530, ¶ 11 (App. 2008). However, “[t]he trial court’s discretion in dismissing 

a case for discovery violations ‘is more limited than when it employs lesser 

sanctions.’” Id. (quoting Lenze v. Snythes, Ltd., 160 Ariz. 302, 305 (App. 

1989)). “The extreme sanction of dismissal requires an evidentiary hearing 

and ‘is warranted only when the court makes an express finding that a 

party, as opposed to his counsel, has obstructed discovery, . . . and that the 

court has considered and rejected lesser sanctions as a penalty.’” Id. at 531, 

¶ 13 (omission in original) (quoting Wayne Cook Enters., Inc. v. Fain Props.

Ltd. P’Ship, 196 Ariz. 146, 149, ¶ 12 (App. 1999)).

¶18 Here, after an evidentiary hearing, the superior court 

sanctioned Wife for failing to comply with the discovery orders by 

dismissing her petition for contempt but made no findings concerning 

Wife’s culpability or the availability of lesser sanctions. Had the court 

ordered Wife’s petition dismissed with prejudice, it is possible that the 

court’s failure to make such express findings would require a remand for it 

to make the requisite findings. But because wife is free to refile her claim,

and has not shown how the dismissal of her petition prejudiced her, we 

conclude that any error concerning the sanction imposed by the court was 

harmless. See Ariz. R. Fam. Law P. 86 (harmless error). Moreover, the 

evidence presented to the court, including an expert report concluding that 

insufficient documentation was provided to accurately calculate the 

corporation’s earnings and Wife’s admission in a deposition that her former 

accountants might still have records related to the corporation, provided 

reasonable support for the court’s finding that Wife was not fully 

complying with discovery orders.

¶19 Wife asserts that because the superior court lacked “subject 

matter jurisdiction” over Husband’s contempt petition, any order 

stemming from those proceedings is void. But this argument relies on prior 
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caselaw in which the term “jurisdiction” is unartfully used in describing

the scope of the superior court’s authority, rather than in its proper context 

as the “statutory or constitutional power to hear and determine a particular 

type of case.” State v. Maldonado, 223 Ariz. 309, 311-13, ¶¶ 14, 15–21 (2010); 

State v. Espinoza, 229 Ariz. 421, 426, ¶ 21 (discussing the difference between 

subject-matter jurisdiction and the court acting beyond statutory authority). 

The superior court undoubtedly has subject-matter jurisdiction to hear an 

action for civil contempt. See A.R.S. §§ 12-861 to -865. Article 2, Section 18, 

of the Arizona Constitution does not deprive the superior court of the 

power to hear and determine civil contempt actions; it merely prohibits the 

use of that authority to hold a party in civil contempt for failing to pay a 

sum of money owed under a separation agreement or divorce decree.

¶20 We note that Wife’s petition for contempt addressed allegedly 

contemptuous conduct dating back to more than one year before the 

petition for contempt was filed. Such claims may be barred under the 

applicable statute of limitations should she choose to refile her original 

petition for contempt. A.R.S. § 12-865(A) (“No proceeding for contempt 

shall be instituted against any person unless begun within one year from 

the date of the act complained of.”). We also note that although Wife is 

entitled to file an action seeking a judgment of arrearages on the 

health-insurance coverage Husband allegedly failed to supply, Husband is 

entitled to defend against that action by seeking an offset of any arrearages

under the terms of the MSA.

C. The Court Did Not Abuse Its Discretion by Denying Husband and 

Wife Attorney’s Fees and Costs.

¶21 Wife challenges the superior court’s denial of attorney’s fees.

We review the denial of attorney’s fees for an abuse of discretion. Democratic 

Party of Pima County. v. Ford, 228 Ariz. 545, 547, ¶ 6 (App. 2012). The

superior court found that both sides unreasonably delayed litigating two 

petitions for contempt and one petition for spousal-maintenance

modification for nine years and declined to award attorney’s fees to either 

party. Finding no abuse of discretion, we affirm.

ATTORNEY’S FEES AND COSTS

¶22 Both parties request attorney’s fees and costs on appeal under 

A.R.S. § 25-324. Given the disparity of financial resources between the

parties, we award Wife her attorney’s fees and costs, subject to her 

compliance with Arizona Rule of Civil Appellate Procedure 21.
GARLAN v. GARLAN

Decision of the Court

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CONCLUSION

¶23 We affirm the orders of the superior court.