CourtListener opinion 10830111

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

 JERRY WAYNE SCOTT, Petitioner/Appellee,

 v.

 JENNY ELLEN SCOTT, Respondent/Appellant.

 No. 1 CA-CV 24-0698 FC
 FILED 03-25-2025

 Appeal from the Superior Court in Maricopa County
 No. DR1999-009390
 The Honorable Melissa Zabor, Judge

 AFFIRMED

 COUNSEL

Raymond S. Dietrich, PLC, Phoenix
By Raymond S. Dietrich
Counsel for Petitioner/Appellee

Popp Law Firm, PLC, Tempe
By James S. Osborn Popp
Counsel for Respondent/Appellant
 SCOTT v. SCOTT
 Decision of the Court

 MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

P A T O N, Judge:

¶1 Jenny Ellen Scott ("Wife") appeals the superior court's grant
of Jerry Wayne Scott's ("Husband") motion to dismiss her petition for post-
decree relief. For the following reasons, we affirm.

 FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife were married in May 1990. Husband
petitioned for dissolution of marriage in May 1999. The parties reached a
settlement agreement (the "Agreement") which, among other things,
awarded Wife one-half of Husband's public service employment retirement
account "pursuant to a Qualified Domestic Relations Order" to be entered
later. The Agreement stated it was expressly incorporated in the consent
decree, but not merged, and the court incorporated it in its March 2000
consent decree dissolving the marriage.

¶3 In April 2024, Wife filed a petition for post-decree relief
asking the court to enter a domestic relations order ("DRO") enforcing her
one-half interest in Husband's retirement account. Wife noted she first
presented a draft DRO to Husband requesting stipulated entry, but he
failed to respond, which led to her petition. Husband moved to dismiss,
which the court granted, noting it "lacks jurisdiction to take action as
requested by [Wife]" because the DRO was part of the separate settlement
agreement the parties reached, and was therefore not part of the dissolution
decree.

¶4 Wife moved to alter/amend the judgment, which the superior
court denied. Wife timely appealed and we have jurisdiction pursuant to
Arizona Revised Statutes ("A.R.S.") Section 12-2101(A)(2).

 DISCUSSION

¶5 Wife argues the superior court erred by ruling it lacked
jurisdiction over her post-decree enforcement claim. She contends the court
had jurisdiction to enforce her claim under A.R.S. § 25-317(E).

 2
 SCOTT v. SCOTT
 Decision of the Court

¶6 We review the superior court's "ruling on a post-decree
petition to enforce for an abuse of discretion." In re Marriage of Rojas, 255
Ariz. 277, 282, ¶ 10 (App. 2023). We review an order granting a motion to
dismiss de novo. Cox v. Ponce, 251 Ariz. 302, 304, ¶ 7 (2021).

¶7 "To promote amicable settlement of disputes," parties to a
dissolution proceeding "may enter into a written separation agreement
containing provisions for disposition of any property owned by either of
them[.]" A.R.S. § 25-317(A). The superior court may accept that agreement
in one of two ways—either (1) "the separation agreement shall be set forth
or incorporated by reference in the decree of dissolution . . . and the parties
shall be ordered to perform them" or (2) "[i]f the separation agreement
provides that its terms shall not be set forth in the decree, the decree shall
identify the separation agreement as incorporated by reference[.]" A.R.S. §
25-317(D). Under the second scenario, the court does not order the parties
to perform the referenced terms and instead makes a finding that "the terms
as to property disposition and maintenance [are] not unfair." A.R.S. § 25-
317(D); see also Meek v. Meek, 256 Ariz. 405, 410, ¶ 23 (App. 2023).

¶8 Although both alternatives use the phrase "incorporated by
reference," the first way has been referred to as "merger" into the decree.
LaPrade v. LaPrade, 189 Ariz. 243, 247 (1997). And if merged, a separation
agreement 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." Marriage of Rojas, 255 Ariz. at 283, ¶ 14. Section 25-
317(E) refers to an "agreement set forth or incorporated by reference" which
is a merged agreement. A.R.S. § 25-317(E), see LaPrade, 189 Ariz. at 247.
Thus, only a merged separation agreement is "enforceable by all remedies
available for enforcement of a judgment, including contempt." A.R.S. § 25-
317(E).

¶9 If, on the other hand, a separation agreement is incorporated
by reference without the decree setting forth the terms and ordering that
they be enforced, "the agreement retains its independent contractual status
and is subject to the rights and limitations of contract law." Marriage of
Rojas, 255 Ariz. at 283, ¶ 16 (citation omitted). The purpose of incorporation
into the decree is only "to identify the agreement so as to render its validity
res judicata in any subsequent action based upon it." Id. (citation omitted).
Agreements incorporated by reference "are not enforceable as an element
of a judgment or decree as under [Section] 25-317(E), but can only be
enforced by ‘a separate action on the contract, by obtaining a judgment
thereon and then enforcing it as any other civil judgment.'" Id. at ¶ 17
(citation omitted).

 3
 SCOTT v. SCOTT
 Decision of the Court

¶10 Here, both the Agreement and decree contain language
stating that the Agreement was incorporated by reference and not merged
into the decree. The Agreement states: "It is the intention of the parties that
this Agreement shall be submitted to the Court for approval and attached
as an exhibit . . . but shall not be merged into the Decree, and shall retain its
character as a separately enforceable and self-sustaining contract." The
decree likewise states: "The Settlement Agreement . . . is incorporated
herein and approved by this Court, but shall not be merged." Wife does
not dispute that the Agreement is incorporated by reference and not
merged.

¶11 Because the Agreement is incorporated by reference and not
merged, it is "not enforceable as an element of a judgment or decree as
under [Section] 25-317(E), but can only be enforced by ‘a separate action on
the contract, by obtaining a judgment thereon and then enforcing it as any
other civil judgment.'" Marriage of Rojas, 255 Ariz. at 283, ¶ 17 (citation
omitted). Wife's reliance on Eans-Snoderly v. Snoderly, 249 Ariz. 552 (App.
2020) and the court's authority under Section 25-317(E) is misplaced,
because neither the case nor statute apply to agreements incorporated by
reference but not merged into the decree. Here, the superior court could
not enforce a term of the Agreement as if it were an element of the consent
decree and, therefore, properly dismissed Wife's petition.

¶12 Both parties request their attorneys' fees and costs on appeal
under Section 25-324 and Arizona Rule of Civil Appellate Procedure
("ARCAP") 21. In our discretion, we decline to award fees. As the
prevailing party, Husband is entitled to his taxable costs on appeal upon
compliance with ARCAP 21(b).

 CONCLUSION

¶13 We affirm.

 MATTHEW J. MARTIN • Clerk of the Court
 FILED: JR

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