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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CRYSTAL HILLMAN, Petitioner/Appellee, 

v.

MICHAEL HILLMAN, Respondent/Appellant. 

No. 1 CA-CV 20-0121 FC 

Appeal from the Superior Court in Maricopa County

No. FC2015-070217 

The Honorable Lisa Ann VandenBerg, Judge

VACATED AND REMANDED FOR RECONSIDERATION

COUNSEL

Curry Pearson & Wooten PLC, Phoenix

By Daniel Seth Riley

Counsel for Petitioner/Appellee

Michael Hillman, Glendale

Respondent/Appellant

FILED 5-4-2021
HILLMAN v. HILLMAN

Decision of the Court

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MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding 

Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

G A S S, Judge:

¶1 Michael Hillman appeals from a superior court order 

reinstating a qualified domestic relations order (QDRO) allocating his 

pension and from the denial of his motion to alter, amend, or vacate that 

order. Because the superior court needed a hearing to determine whether a 

dissolution agreement was merged into the dissolution decree or 

incorporated by reference, we vacate the superior court’s previous orders 

and remand for reconsideration.

FACTUAL AND PROCEDURAL HISTORY

¶2 Before the marriage, husband worked as a police officer, 

participating in the Public Safety Personnel Retirement System (PSPRS) 

pension. See generally A.R.S. §§ 38-841 to -863.01. Husband worked as an 

officer throughout the marriage and continues to do so. After his wife, 

Crystal Hillman, petitioned for dissolution, the parties went to mediation 

and entered a Rule 69 agreement on several issues. Relevant to this appeal, 

the agreement said:

6. Pursuant to A.R.S. [§] 25-319(A), [husband]

agrees to pay Spousal Maintenance to [wife] in the amount of 

$1,600.00 per month beginning the first day of the month after 

the marital residence is refinanced or sold . . . . The Spousal 

Maintenance award will be paid until the date of [husband’s]

retirement from the Phoenix Police Department and upon the 

start of pension payments to [wife] for her community 

interest in the [PSPRS]. This provision is non-modifiable for 

all purposes.

7. The parties agree that the community portion of 

[husband’s PSPRS] plan through the City of Phoenix will be 

divided by QDRO. The parties will equally share the fees for 

the preparation of the QDRO and will rely on their attorneys 

to agree to the selected QDRO attorney. [Wife] agrees that she 
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will not begin to receive her portion of the benefits due her 

from the Pension Plan until [husband’s] actual retirement 

(which could be as soon as immediate or as long as the year 

2032). Once [wife] begins to receive her pension benefit, her

spousal maintenance will terminate.

¶3 In a separate order, the superior court said, “IT IS ORDERED 

adopting and incorporating herein by reference the parties’ Rule 69 

Agreement, which is attached to the parties’ Joint Notice of Partial Settlement 

and Request for Order Approving Rule 69 Agreement, eFiled September 27,

2016.” After a trial on the remaining issues, the superior court entered its 

decree. In addressing the agreement, the decree said:

IT IS ORDERED adopting and incorporating by reference 

herein all other orders not otherwise specifically addressed 

herein, but are set forth in the parties’ Joint Notice of Partial 

Settlement and Request for Order Approving Rule 69 Agreement, 

eFiled September 27, 2016 and adopted as a formal Order of 

the Court pursuant to its minute entry dated October 4, 2016, 

and filed on October 5, 2016.

¶4 The decree makes similar references on several issues, 

including joint legal decision-making, parenting time, child support, tax 

deductions, spousal maintenance, community property, and the marital 

residence. For example, the superior court ordered husband to pay monthly 

spousal maintenance of $1,600, noting “details of same are set forth in the 

parties’ Rule 69 Agreement.”

¶5 Several months after the decree, the parties met with a series 

of QDRO attorneys because disputes arose over spousal maintenance and 

wife’s share of husband’s deferred pension payments under Koelsch v. 

Koelsch, 148 Ariz. 176 (1986). Husband objected to the prepared QDROs, 

arguing they did not reflect the intent of the agreement or decree. The 

superior court did not appoint any QDRO attorney as a special master with 

the authority to take evidence and enter findings, and the superior court 

itself never held a hearing on the disputed issues. Indeed, the last QDRO 

attorney correctly observed he “[had] not been appointed to take evidence 

and try the case, or to enter findings and conclusions.”

¶6 That last attorney, nonetheless, resolved disputed issues and

concluded: (1) the agreement and decree provided for a spousal 

maintenance payment only and did not include a Koelsch payment; (2) the 

second attorney’s QDRO formula was correct; (3) wife was entitled to share 
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in any future Deferred Retirement Option Plan (DROP) benefits; and (4) the 

QDRO should not contain an equitable adjustment for social security 

benefits. The superior court adopted the last QDRO attorney’s

recommendations over husband’s objections and reinstated one of the 

previous QDROs.

¶7 Husband moved to alter, amend, or vacate the superior

court’s ruling reinstating the previous QDRO. In an unsigned order, the 

superior court denied without comment husband’s motion. After husband 

submitted a proposed form of order for the court’s signature, the court 

issued a minute entry nunc pro tunc correcting the unsigned minute entry 

to include required certification language and a signature under Arizona 

Rule of Family Law Procedure 78(c). This appeal followed.

JURISDICTION

¶8 Wife argues this court lacks jurisdiction because husband’s 

notice of appeal was untimely. We disagree.

¶9 The superior court issued an unsigned minute entry on 

December 20, 2019, denying husband’s time-extending motion to alter, 

amend, or vacate. The time to appeal did not start until the superior court 

issued the signed minute entry nunc pro tunc on January 29, 2020, in which 

it ruled on the time-extending motion. See ARCAP 9(e)(1); see also Valley 

Nat’l Bank of Ariz. v. Meneghin, 130 Ariz. 119, 123 (1981) (“[T]he time for 

appeal runs from the entry of the judgment nunc pro tunc . . . .”). Because 

husband filed the notice of appeal within thirty days of the superior court 

filing its signed minute entry, his appeal is timely. See ARCAP 9(a). 

Accordingly, this court has jurisdiction under article VI, section 9, of the 

Arizona Constitution, and A.R.S. § 12-2101.A.1.

ANALYSIS

I. The superior court must determine whether the agreement was 

merged into the decree or incorporated by reference before ruling 

on whether a hearing is needed on the underlying disputes.

¶10 Husband asked the superior court to resolve disputed factual 

and legal issues as soon as wife attempted to obtain a QDRO. The superior 

court acknowledged the issues and vacated a prepared QDRO as a result.

The superior court appointed consecutive QDRO attorneys without either 

authorizing them to conduct a hearing or holding a hearing itself. At its 

core, this case is about those underlying disputed issues—the Koelsch
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payments, spousal maintenance, and DROP benefits—in the context of the 

agreement and the decree.

¶11 On this record, we cannot resolve the underlying disputes

husband raises on appeal. We are unable to determine whether the superior 

court intended to have the agreement merge with the decree as an order of 

the court or simply be incorporated by reference because the superior 

court’s decree did not sufficiently track necessary statutory language. See 

A.R.S. § 25-317.D (providing the required findings, criteria, and language

for the superior court to use when stating whether a separation agreement 

is merged into a degree or incorporated by reference); Young v. Burkholder, 

142 Ariz. 415, 420 (App. 1984). We address this issue because its resolution 

on remand is necessary to determine if husband is entitled to the 

evidentiary hearing he requests. See Buckholtz v. Buckholtz, 246 Ariz. 126, 

131, ¶ 17 (App. 2019) (court may address issues likely to arise on remand).

¶12 When an agreement merges into the decree, it “is superseded 

by the decree, and the obligations imposed are not those imposed by 

contract, but are those imposed by decree, and enforceable as such.” 

LaPrade v. LaPrade, 189 Ariz. 243, 247 (1997) (quoting Glassford v. Glassford, 

76 Ariz. 220, 226 (1953)). If the superior court determines the agreement 

merged into the decree, the court shall interpret the orders under the 

appropriate standard for interpreting judgments. See Cohen v. Frey, 215 

Ariz. 62, 66, ¶ 11 (App. 2007). The superior court need not hold an 

evidentiary hearing to interpret its own order. See id.

¶13 But when a decree incorporates the agreement by reference, 

“the agreement retains its independent contractual status and is subject to 

the rights and limitations of contract law.” LaPrade, 189 Ariz. at 247.

Accordingly, if the superior court finds the agreement was merely 

incorporated by reference, the court must apply the standard rules for 

interpreting a contract, which may require an evidentiary hearing. See 

Buckholtz, 246 Ariz. at 129–30, ¶¶ 10–11.

¶14 Wife contends an evidentiary hearing on the underlying 

disputes is unnecessary because husband’s position relies on parol 

evidence. Parol evidence is inadmissible to interpret the agreement 

because, she argues, it merged into the decree. See In re Marriage of Zale, 193 

Ariz. 246, 249, ¶ 11 (1999) (“[A]pplying the parol evidence rule to a 

judgment would create a result contrary to the very rationale for a 

judgment.”). Husband argues the agreement did not merge into the decree. 

Accordingly, the superior court must resolve this issue to determine
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whether it must hold the evidentiary hearing husband requests on the 

underlying disputes.

¶15 Husband argues wife waived this argument by not raising it 

before the superior court. Though wife did not raise the issue before the 

superior court, we express no opinion regarding waiver because we are 

remanding for further proceedings.

¶16 In short, the superior court must resolve whether the 

agreement was merged into the decree or incorporated by reference 

because whether husband is entitled to a hearing on the disputed QDRO 

issues depends on the question’s resolution. See A.R.S. § 25-317.D; Young,

142 Ariz. at 420. Once the superior court resolves the merger-orincorporation issue, the superior court then can address the disputed issues 

as to the meaning of the spousal maintenance provision and the appropriate 

formula for dividing husband’s pension under the relevant contract 

interpretation rules, conducting an evidentiary hearing if needed. This 

determination will define the correct formula for the QDRO. It also will 

resolve whether the spousal maintenance is in fact a Koelsch payment, 

whether wife is entitled to share in any future benefits under the DROP 

program, the extent of her share if any, whether husband is entitled to any 

credit for any prior payments to wife, and the QDRO attorney fees issue.

II. On remand, the superior court must determine whether husband 

waived his argument regarding an equitable adjustment for social 

security benefits.

¶17 Husband argues the QDRO failed to include an equitable 

adjustment in the allocation of his pension benefits to account for wife’s 

non-divisible social security benefits as required by Kelly v. Kelly, 198 Ariz. 

307, 309, ¶¶ 9, 11 (2000). Wife contends husband waived this argument 

because he did not raise it at trial.

¶18 True, husband did not request the equitable social security 

adjustment at trial and first raised this issue when he objected to one of the 

QDROs. Because we remand, we express no opinion regarding waiver.

ATTORNEY FEES ON APPEAL

¶19 Both parties request their attorney fees and costs on appeal.

In our discretion, we decline to award attorney fees but grant husband—as 

the prevailing party—his costs upon compliance with ARCAP 21.
HILLMAN v. HILLMAN

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CONCLUSION

¶20 We vacate the superior court’s prior orders reinstating the 

QDRO and denying husband’s motion to amend, alter, or vacate. We 

remand the case for reconsideration and a proper adversarial hearing to 

resolve disputed issues if appropriate.