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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUDY HAYMAKER, Petitioner/Appellee,

v.

ROBERT L. HAYMAKER, Respondent/Appellant.

No. 1 CA-CV 22-0553 FC

Appeal from the Superior Court in Maricopa County

No. FN2002-092622

The Honorable Keith A. Miller, Judge

VACATED AND REMANDED

COUNSEL

The Hogle Firm PLC, Mesa

By Nathan J. Hogle

Counsel for Petitioner/Appellee

Ellsworth Family Law P.C., Mesa

By Glenn D. Halterman

Counsel for Respondent/Appellant

FILED 6-27-2023
HAYMAKER v. HAYMAKER

Decision of the Court

2

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which 

Presiding Judge Maria Elena Cruz and Judge Daniel J. Kiley joined.

M O R S E, Judge:

¶1 Robert Haymaker ("Husband") appeals from the superior 

court's order denying his petition to enforce the divorce decree against Judy 

Haymaker ("Wife"). For the following reasons, we vacate and remand. 

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties married in 1990. Husband brought two properties 

into the marriage, one in Mesa, Arizona ("Mesa Property"); and one in 

Roosevelt, Arizona ("Roosevelt Property"). Husband maintained the Mesa

Property as his sole and separate property until May 2000, when he 

transferred the property to Wife and himself, as joint tenants with a right of 

survivorship. 

¶3 In October 2002, Wife petitioned for dissolution of marriage. 

Four days after filing the petition, the parties transferred the Mesa Property 

to the newly formed "Haymaker Family Trust," which listed both Husband 

and Wife as trustees. Almost five months later, the parties entered the 

decree of dissolution ("Decree"). Section 6d(A) of the Decree described the 

Roosevelt Property and "Awarded" it to Wife as her "sole and separate 

Property." And Section 6d(B) of the Decree described the Mesa Property 

and "Awarded" it to Husband as his "sole and separate property." The 

superior court approved the Decree.

¶4 For the next 18 years, the parties continued to live together in 

the Mesa Property. During that time, Wife, as trustee of the Haymaker 

Family Trust, transferred 50% ownership of the Mesa Property to her own 

personal trust. Then, in the early days of the COVID-19 pandemic, the 

parties left Mesa to isolate at the Roosevelt Property together. Later,

Husband returned to the Mesa Property. 

¶5 About 16 months later, Husband's attorney sent Wife a letter 

demanding that she sign a quit-claim deed to remove her from the Mesa 

Property. Wife refused, and Husband petitioned to enforce the Decree. 

Wife did not file a response. The superior court set an evidentiary hearing
HAYMAKER v. HAYMAKER

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to decide how the Decree distributed the Mesa Property. The superior court 

held that the "consent decree, on its face, awards the Mesa Property to"

Husband, but that "given the circumstances, the terms of the [Decree] which 

awarded the entirety of the Mesa Property to [Husband] is unenforceable."

¶6 Husband moved to alter or amend the order. The court 

denied the motion, affirming its earlier ruling and concluding Wife's 

"pre-trial statement raised a litany of equitable issues" enabling it to review 

the equities of enforcing the Decree as written. Husband appealed, and we 

have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 We review the superior court's ruling on a post-decree 

petition for an abuse of discretion. In re the Marriage of Priessman, 228 Ariz. 

336, 338, ¶ 7 (App. 2011). "The 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 this 

state." A.R.S. § 25-327(A).

¶8 Husband asserts that the superior court "exceeded its 

authority" in denying his petition to enforce, asserting that "it is unclear 

what statute, appellate opinion, common law principle, or equitable 

doctrine ostensibly empowered the Trial Court to declare the Decree 

unenforceable." In response, Wife argues that "Rule 85 gives the trial court 

authority to refuse to enforce a decree where circumstances have changed."

¶9 Arizona Rule of Family Law Procedure ("Rule") 85(b) contains 

the "conditions justifying the reopening of a judgment." Schmidt v. Schmidt, 

158 Ariz. 496, 498 (App. 1988) (stating Rule 85's predecessor outlines the 

conditions justifying the reopening of a property distribution decree). Rule 

85(b) allows the superior court to exercise its equitable power to reopen a 

decree that is no longer equitable. Edsall v. Superior Court, 143 Ariz. 240, 243 

(1984); Webb v. Erickson, 134 Ariz. 182, 186 (1982) (analyzing the exercise of 

equitable power under Rule 85(b)(6)'s predecessor). 

¶10 Nowhere in either order does the superior court mention Rule 

85(b), but if Rule 85(b) prompted the decision, the superior court erred.

Rule 85(b) authorizes a court to set aside or otherwise grant relief from a 

judgment under appropriate circumstances but does not authorize a court 

to simply refuse to enforce a judgment that has not been set aside. Rule 

85(b) states, "[o]n motion and such terms as are just, the court may relieve a 

party or its legal representatives from a judgment." See Moore v. DaSilva, 1 

CA-CV 22-0557 FC, 2023 WL 3243471, at *2, ¶ 11 (Ariz. App. May 4, 2023) 
HAYMAKER v. HAYMAKER

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(mem. decision) (quoting Rule 85(b)(6)). Wife never moved for relief under 

Rule 85(b), either before, during, or after the evidentiary hearing. While

Wife argued that her "next step" would be to file a "motion for relief from 

judgment," that never occurred. Because Wife did not file a Rule 85 motion,

and the superior court did not set aside or vacate the judgment, the superior 

court erred by denying the petition to enforce the Decree.

¶11 Equitable defenses are available in response to a petition to 

enforce. See Ray v. Mangum, 163 Ariz. 329, 332 (1989) (allowing equitable 

defenses to a petition to collect child support arrearages); Coburn v. Rhodig, 

243 Ariz. 24, 27, ¶ 13 (App. 2017) (allowing equitable defense against a 

petition to enforce spousal maintenance decree). "Every defense to a claim 

for relief in any pleading must be asserted in a responsive pleading if one 

is required." Rule 29(a); Buckholtz v. Buckholtz, 246 Ariz. 126, 133, ¶ 26 (App. 

2019) (quoting Rule 29's predecessor rule).

¶12 Wife argues that she "did not have an obligation to 

affirmatively plead for equitable relief or equitable defenses" under Rule 29. 

Wife correctly notes that she did not have to file a responsive pleading to 

preserve her defenses. See Rule 23(f)(2) (stating a response to a petition to 

enforce is discretionary). "If a pleading sets out a claim for relief that does 

not require a responsive pleading, an opposing party may assert at trial any 

defense to that claim." Rule 29(b). Rule 29 also outlines three ways to 

preserve "a legal defense to a claim." See Rule 29(g) (stating respondents 

may raise defenses "in any pleading allowed or ordered under Rule 23; . . . 

by a motion under this rule; or . . . at trial"). The Rules do not require Wife

to raise her equitable defenses in a responsive pleading, but she must raise 

her equitable defenses at trial, at the latest. See Rule 29(b), (g); Buckholtz, 

246 Ariz. at 133, ¶ 26. 

¶13 Buckholtz informs our resolution of this case. In Buckholtz, the 

parties signed a separation agreement and quit-claim deed to divide their 

property and debts, which stated husband would remain in the marital 

home and wife would retain her retirement account. 246 Ariz. at 128, ¶ 2. 

Husband then refinanced the home and gave half the equity to wife, three 

years later husband petitioned for dissolution of marriage. Id. at ¶¶ 3-6. At 

an evidentiary hearing, husband argued the separation agreement "unfairly 

and inequitably divided" the parties' assets. Id. at ¶ 6. The superior court 

held the equitable defenses of laches, ratification, and detrimental reliance 

rendered the separation agreement enforceable. Id. at 133, ¶ 25. We 

disagreed, reasoning that wife "did not assert or argue equitable defenses 

to [h]usband's claims before the superior court." Id. at ¶ 26. We noted that 
HAYMAKER v. HAYMAKER

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wife's reliance on the parties' agreement was insufficient to assert an 

equitable defense. Id. at ¶ 26 n.6.

¶14 Wife filed a pretrial statement prior to the evidentiary 

hearing, but the pretrial statement does not mention equitable defenses.

Instead, the pretrial statement argues that the Decree awards the Mesa 

Property to both parties and their later actions evidenced this intent. Wife 

continued this theme throughout the evidentiary hearing, arguing the

parties' subsequent conduct showed an intent to share the Mesa Property. 

Wife now argues that she produced evidence "that supported her claim that 

the decree was no longer equitable to enforce," but Wife did not make that 

claim during the evidentiary hearing. Instead, until her response to 

Husband's post-trial motion to amend the ruling, Wife maintained her 

evidence proved that the Decree awarded both parties the Mesa Property. 

¶15 After the superior court noted that, on its face, the Decree 

awarded the Mesa Property to Husband, Wife briefly argued that the 

distribution favored Husband and "doesn't look equitable at all." This 

statement was insufficient to assert an equitable defense. See Buckholtz, 246 

Ariz. at 133, ¶ 26 n.6; Reed v. Hinderland, 135 Ariz. 213, 215 (1983) ("An 

affirmative defense must be both pleaded and proved."). Wife failed to 

argue or prove any equitable defenses either before or during trial, as 

required by Rule 29(b) and (g). Thus, we vacate the portion of the superior 

court's order denying Husband's petition to enforce the Decree and remand 

for the superior court to grant the petition.

1 

¶16 Husband requests attorney fees on appeal. See

A.R.S. § 25-324(A); ARCAP 21. Both parties presented reasonable positions 

and the parties' relative financial resources do not favor the award of 

attorney fees. A.R.S. § 25-324(A); see Magee v. Magee, 206 Ariz. 589, 592, ¶ 17

(App. 2004) (observing that courts should consider "the resource disparity 

between the parties, the ratio of the fees owed to the assets and/or income 

of each party, and other similar matters" in deciding whether to award fees).

In the exercise of our discretion, we decline to award attorney fees. But as 

the prevailing party, we award Husband's costs upon compliance with 

ARCAP 21.

1 We take no position on whether Wife may assert any claims for 

reimbursement or contribution related to post-Decree proceedings.
HAYMAKER v. HAYMAKER

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CONCLUSION

¶17 For the above-stated reasons, we vacate the ruling of the 

superior court declining to enforce the Decree and remand for the superior 

court to grant Husband's petition to enforce the Decree.