PSG ENERGY v. BERECKIS

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 PSG ENERGY GROUP LLC, Plaintiff/Appellee, v. JOHN W. BERECKIS, et al., Defendants/Appellants. No. 1 CA-CV 26-0016 FILED 11-10-2026 Appeal from the Superior Court in Maricopa County No. CV2024-011075 The Honorable Gregory Como, Judge AFFIRMED IN PART, MODIFIED IN PART AND REMANDED WITH INSTRUCTIONS COUNSEL Lorber, Greenfield & Olson, LLP, Phoenix By Louis W. Horowitz Counsel for Plaintiff/Appellee Enara Law, PLLC, Scottsdale By Ross P. Meyer Counsel for Defendants/Appellants  PSG ENERGY v. BERECKIS, et al. Decision of the Court MEMORANDUM DECISION Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding Judge Andrew M. Jacobs and Chief Judge Randall M. Howe joined. K I L E Y, Judge: ¶1 Certain business disputes between John Bereckis (“John”) and PSG Energy Group, LLC (“PSG”) went to arbitration.1 PSG won, and the arbitrator awarded it over $200,000 in attorney fees and related expenses. PSG then filed an application in superior court to confirm the arbitration award, obtaining a judgment in its favor. ¶2 When PSG tried to collect on the judgment, John and his wife Jennifer Bereckis (“Jennifer”) asserted, among other things, that PSG was not entitled to execute upon assets of their marital community because Jennifer was not a party to either the arbitration or the subsequent confirmation proceedings. PSG then brought a declaratory judgment action against John and Jennifer to determine the marital community’s liability. The superior court ruled in PSG’s favor. John and Jennifer appeal. We affirm the declaratory judgment as modified. FACTS AND PROCEDURAL HISTORY ¶3 In 2016 and 2017, John and a limited liability company he owned, Universal Solar of America (“Universal”), entered a series of agreements with PSG, including contracts to consult on three solar energy projects. Each of the contracts contained a clause mandating arbitration of any disputes. ¶4 A dispute over payment arose, and John filed a demand for arbitration, asserting breach of contract and other claims. PSG, in turn, asserted counterclaims alleging unjust enrichment and other theories of recovery. ¶5 While the arbitration was underway, the parties stipulated to add Universal as a claimant based on evidence that at least some of the contracts identified Universal as a party. In testimony, however, John 1 To avoid confusion, we respectfully refer to parties who share a last name by their first names. 2  PSG ENERGY v. BERECKIS, et al. Decision of the Court admitted, “I and Universal [sic] are the same—for legal purposes we’re one and the same[.]” ¶6 After the evidentiary hearing, the arbitrator issued a decision finding that neither John and Universal, on one hand, nor PSG, on the other, had established entitlement to the damages they claimed. Determining that PSG was the prevailing party, the arbitrator entered an award (the “Arbitration Award”) denying all damage claims and awarding PSG arbitration expenses, attorney fees and costs totaling $210,556.31, for which John and Universal were jointly and severally liable. ¶7 PSG filed a confirmation action in superior court against John and Universal, seeking confirmation of the Arbitration Award under A.R.S. § 12-3022. See John Bereckis et al. v. PSG Energy Group, LLC, Maricopa County Superior Court Case No. CV2023-000956.2 John and Universal failed to answer or otherwise respond, and the court entered a default judgment (the “Confirmation Judgment”) against them that confirmed the Arbitration Award, including “[t]he award to [PSG] in the amount of $210,556.31 for fees, costs and expenses.” ¶8 After entry of the Confirmation Judgment, John and Universal moved to set it aside, a request that the superior court denied. ¶9 To recover the sums awarded in the Confirmation Judgment, PSG garnished a bank account John and Jennifer owned. They objected, asserting that PSG could not recover from the assets of their marital community because Jennifer was not a party to the arbitration or to the confirmation action. ¶10 PSG then filed a declaratory judgment action against John and Jennifer, seeking a declaration that John’s business dealings with PSG, and his assertion of claims against PSG in arbitration, were undertaken for the benefit of the Bereckis marital community, and therefore that the marital community was liable for the $210,556.31 sum awarded in the Confirmation Judgment. After motion practice and a bench trial, the superior court issued a judgment (the “Declaratory Judgment”) determining that (1) the “business dealings” that John and Universal had with PSG “all inured to the benefit of the [Bereckis] marital community”; (2) “[John’s] initiation of, and participation in, the arbitration proceeding with PSG was done on 2 Although PSG filed the confirmation action, it designated itself the defendant and John and Universal the plaintiffs, evidently because John and Universal were the claimants in the arbitration proceedings. 3  PSG ENERGY v. BERECKIS, et al. Decision of the Court behalf of the [Bereckis] marital community”; and (3) Section 25-215(D) did not require PSG to name Jennifer as a party to the confirmation action. As a result, the court concluded, “any judgment for attorney fees, costs or discovery sanctions in favor of PSG” in the arbitration proceedings or the confirmation action could properly be “collected against the [Bereckis] marital community.” ¶11 John and Jennifer timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21, -1837, and -2101(A)(1). APPLICABLE LEGAL PRINCIPLES ¶12 The Bereckises challenge the Declaratory Judgment, arguing that it is based on errors of both law and fact. ¶13 On appeal from a judgment, we review the superior court’s legal conclusions, including its interpretation of statutory terms, de novo. Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 (2017). We will affirm the superior court’s factual findings after a bench trial unless clearly erroneous, viewing the facts in the light most favorable to sustaining the judgment. Town of Florence v. Florence Copper Inc., 251 Ariz. 464, 468, ¶ 20 (App. 2021). Even if the evidence conflicts, a factual finding is not clearly erroneous if it is supported by evidence sufficient for a reasonable person to reach the same conclusion. See In re Marriage of McCulloch and Parker, 257 Ariz. 195, 199, ¶ 9 (App. 2024) (“A finding of fact is not clearly erroneous if it is supported by substantial evidence—that is, evidence sufficient for a reasonable person to reach the same result.” (citation omitted)); Meno’s Construction, L.L.C. v. Indus. Comm’n of Ariz., 246 Ariz. 521, 524, ¶ 10 (App. 2019) (“A finding of fact is not clearly erroneous if substantial evidence supports it, even if substantial conflicting evidence exists.” (citation omitted)). ¶14 Section 25-215 provides in part that, with limited exceptions inapplicable here, “either spouse may contract debts and otherwise act for the benefit of the community.” A.R.S. § 25-215(D). Additionally, “[i]n an action on such a debt or obligation the spouses shall be sued jointly[.]” Id. Joining spouses in an action on a community debt or obligation protects each spouse’s due process rights by giving each “notice and an opportunity to defend.” Vikse v. Johnson, 137 Ariz. 528, 530 (App. 1983); see also Nat’l Union Fire Ins. Co. v. Greene, 195 Ariz. 105, 110, ¶ 20 (App. 1999) (holding that due process entitled defendant’s non-party spouse to an “opportunity to be heard at a meaningful time and in a meaningful manner before she can be deprived of her interest in the community property.” (citation 4  PSG ENERGY v. BERECKIS, et al. Decision of the Court modified)). A plaintiff’s failure to join a defendant’s spouse in an action on a community debt bars the plaintiff from recovering from the defendant’s marital community. Eng v. Stein, 123 Ariz. 343, 345-46 (1979). ¶15 An arbitration award may not be enforced until it is entered as a judgment under Section 12-1514. Upon timely motion of a party to an arbitration proceeding, the court must vacate an arbitration award if the award was the result of corruption, fraud, partiality or other misconduct by the arbitrator, if the arbitrator exceeded his powers, or if the manner in which the arbitrator conducted the proceedings “prejudiced substantially the rights of a party.” A.R.S. § 12-3023(A). ¶16 Arizona’s Declaratory Judgments Act allows courts to “declare rights, status, and other legal relations” between parties, with “such declarations” having “the force and effect of a final judgment or decree.” A.R.S. § 12-1831. DISCUSSION I. PSG’s failure to join Jennifer as a party to the confirmation action does not bar PSG from reaching assets of the Bereckis marital community to satisfy the Confirmation Judgment. ¶17 The Bereckises argue that the superior court erred in determining that their marital community was liable for the Judgment because “Jennifer was never a party to the proceeding that created the obligation now being enforced against her community.” PSG should have named Jennifer as a party to the confirmation action, they maintain, if PSG intended to hold the Bereckis marital community bound by the resulting judgment. Had Jennifer been named as a party to the confirmation action, they go on, she would have had a “full opportunity to contest” the Arbitration Award before the Confirmation Judgment was entered. By failing to name her as a party to the confirmation action, they contend, PSG “deprived [Jennifer] of the procedural rights she was entitled to [exercise] before her community’s assets were declared bound.” The Declaratory Judgment should be vacated, they argue, and PSG should be required to file a new confirmation action at which Jennifer will have “the right to contest the award’s confirmation” on any statutorily-recognized ground. ¶18 The Bereckises’ argument cannot be reconciled with Lattin v. Shamrock Materials, LLC, 252 Ariz. 352 (2022). In that case, a married woman, Lattin, sued a defendant in a case to which her husband, DeRuiter, was not a party. After the defendant prevailed, the court entered an award of attorney fees in its favor. When the defendant attempted to collect the fee 5  PSG ENERGY v. BERECKIS, et al. Decision of the Court award by garnishing the couple’s joint bank account, the trial court quashed the garnishment, finding that the Lattin/DeRuiter marital community could not be held liable because DeRuiter was not a party to the underlying case. Id. at 353-54, ¶¶ 2-4. On appeal, the Arizona Supreme Court reversed, holding that DeRuiter’s status as a non-party to the underlying case did not bar the defendant from reaching assets of the Lattin/DeRuiter marital community property to collect the fee award entered in its favor. Id. at 356, ¶ 15. ¶19 The Lattin court acknowledged that Section 25-315(D) generally requires the joinder of the marital community when bringing “a cause of action based on a community debt or obligation that can result in a damage award.” Id. at 354, ¶ 10. The court held, however, that “a request for attorney fees and costs after successfully defending a lawsuit is not itself a cause of action,” and a fee award is not a “debt” for purposes of Section 25-315(D). Id. at ¶¶ 11-12. “[U]ntil the trial court enters a judgment for attorney fees and costs for the defendant,” the Lattin court observed, “there is no debt or obligation to sue on.” Id. at ¶ 11. ¶20 Acknowledging that due process entitled DeRuiter to “the opportunity to be heard at a meaningful time and in a meaningful manner” before being “deprive[d] . . . of his interest in” the couple’s joint bank account, the Lattin court held that DeRuiter was afforded that opportunity when the defendant garnished the account. Id. at 355, ¶ 14 (citations omitted). Upon receiving notice of the garnishment, the court held, DeRuiter was able to “intervene in the garnishment proceedings to argue that the debt [was] Lattin’s alone.” Id. The Lattin court concluded that the trial court erred by quashing the garnishment because “neither § 25-215(D) nor due process requires a defendant seeking an award of attorney fees and costs from a married plaintiff to join the plaintiff’s spouse in the lawsuit to entitle it to later execute a judgment against community assets.” Id. at 356, ¶ 15. ¶21 Lattin makes clear that Section 25-315(D) does not bar recovery, from community assets, of a judgment for attorney fees obtained against only one of the spouses. Id. Further, Lattin holds that the non-party’s due process rights are adequately protected as long as that spouse is given an opportunity to defend against subsequent efforts to collect the judgment from community assets. Id. In keeping with Lattin, we reject the Bereckises’ argument that Jennifer’s status as a non-party to the arbitration proceeding and the confirmation action now precludes PSG from seeking to execute on the monetary provisions of the Confirmation Judgment. Instead, Jennifer was afforded the due process to which she was entitled when she was 6  PSG ENERGY v. BERECKIS, et al. Decision of the Court named as a defendant in the declaratory judgment action and given an opportunity to defend her interest in the property from which PSG sought to recover. See id. at 355-56, ¶¶ 13-15. ¶22 In an effort to distinguish Lattin, John and Jennifer point out that the fee award in that case was not entered until the conclusion of the suit that Lattin had filed. Here, by contrast, the Arbitrator’s Award, including its monetary provision, had been issued before PSG filed the confirmation action. According to the Bereckises, the monetary provision of the Arbitration Award constituted a “debt” owed to PSG before it filed the confirmation action, and therefore Section 25-315(D) required PSG to name Jennifer as a party to confirmation action. ¶23 This distinction is not persuasive. PSG was not entitled to collect the $210,556.31 sum awarded by the arbitrator until the Arbitration Award was reduced to judgment in the confirmation action. See A.R.S. § 12- 1514 (providing that an arbitration award may “be enforced as any other judgment or decree,” but only “[u]pon the granting of an order confirming, modifying or correcting [it].”). Because PSG was not entitled to collect the sum until entry of the Confirmation Judgment, Lattin’s holding—i.e., that a plaintiff against whom attorney fees and costs are assessed owes no “debt” under Section 25-315(D) “until the trial court enters a judgment,” 252 Ariz. at 355, ¶ 11—controls here. ¶24 The Bereckises further argue that PSG admitted that the monetary provisions of the Arbitration Award constituted a “debt,” and therefore that PSG, and the superior court, were bound by that admission. In support of their position, they point out that PSG used the word “debt” in its complaint for declaratory relief—which stated, inter alia, that the Arbitration Award constituted a “debt” that was “incurred on behalf of the marital community”—and that PSG’s counsel used the word again when he argued, at a hearing in the declaratory judgment action, that “the final award is what was issued by the arbitrator. That’s the debt.” According to the Bereckises, PSG’s repeated use of the word “debt” when referring to the monetary provision of the Arbitration Award constitutes a binding judicial admission that the $210,556.31 sum set forth in the Arbitration Award was a “debt” within the meaning of Section 25-315(D). The superior court erred, they conclude, by relying on Lattin “to nullify [PSG’s] admissions.” ¶25 We are not persuaded by the Bereckises’ contention that PSG’s repeated use of the word “debt” determines the application and scope of Section 25-315(D) in this case. Parties may stipulate to facts, but they may not stipulate to the law. State v. Boggs, 103 Ariz. 328, 331 (1968) 7  PSG ENERGY v. BERECKIS, et al. Decision of the Court (“[A]lthough parties . . . may stipulate respecting facts they cannot properly stipulate what the law is that is to govern their case[,] . . . as it is the duty of the court to decide the applicable law.”). A party’s incorrect statement of law thus cannot bind the court. See Stonecreek Bldg. Co. v. Shure, 216 Ariz. 36, 37, ¶ 5 n. 3 (App. 2007) (“This court is not bound by a stipulation of the parties as to the law[.]”). Lattin holds that an award of attorney fees is not a “debt” under Section 25-315(D), at least when the award had not yet been reduced to judgment. 252 Ariz. at 355, ¶ 11. That holding controls here. See Boggs, 103 Ariz. at 331; see also 8100 North Freeway, Ltd. v. City of Houston, 363 S.W.3d 849, 852, 856 (Tex. Ct. App. 2012) (holding, in adult business operator’s challenge to constitutionality of municipal ordinance, that municipality was not bound by its employee’s incorrect testimony about “the reach of the ordinance”; “A court . . . is not bound by a witness’s incorrect statements of the law.”). ¶26 Acknowledging that parties’ admissions cannot bind the court on questions of law, John and Jennifer nonetheless insist that PSG’s use of the word “debt” constitutes an admission of fact, not of law. We disagree. The facts surrounding the award of fees and expenses set forth in the Arbitration Award and confirmed in the Confirmation Judgment—the amount of the award, for example, and the fact that it was assessed against John as well as against Universal—were never in dispute. The only dispute about the award of fees and expenses is whether it constituted a “debt” within the meaning of Section 25-315(D). Resolving that question requires an interpretation of statute and case law, and so is not a question of fact about which parties can make binding admissions. State v. Stone, 151 Ariz. 455, 460 (App. 1986) (“Parties cannot properly bind the court as to the law governing their case or applicable to a given state of facts.”). The superior court properly rejected the Bereckises’ argument that PSG’s imprecise statements during the underlying proceedings required the superior court to interpret “debt” in a manner incompatible with Lattin’s holding. ¶27 In their reply brief, the Bereckises argue that PSG’s failure to name Jennifer as a party to the confirmation action violated her due process rights, and that the violation was not cured when PSG named her as a party to the declaratory judgment action. Had she been named as a party to the confirmation action, they contend, she would have been entitled to challenge the confirmation of the Arbitration Award by raising “any of the grounds enumerated in A.R.S. § 12-3023.” By waiting until after the Confirmation Judgment was entered to file a declaratory judgment action naming Jennifer as a party, the Bereckises argue, PSG limited her to challenging only whether “the arbitration was conducted on behalf of the marital community.” As a result, they maintain, Jennifer had been denied a 8  PSG ENERGY v. BERECKIS, et al. Decision of the Court meaningful opportunity to challenge the arbitrator’s decision. She was not permitted to “contest . . . the award’s validity,” they assert, but merely “her community’s obligation to satisfy it.” ¶28 The Bereckises’ argument is unavailing. First, they waived it because they didn’t raise it in their opening brief, see Deutsche Bank Nat’l Tr. Co. v. Pheasant Grove LLC, 245 Ariz. 325, 330, ¶ 17 n. 5 (App. 2018), or in the declaratory judgment proceedings in superior court, see State v. LeBrun, 222 Ariz. 183, 186 (App. 2009) (holding that appellant waived due process claim by failing to raise it in trial court). ¶29 Second, Jennifer has never raised any challenge under Section 12-3023 to the validity of the Arbitration Award or the Confirmation Judgment. She has never alleged, for example, that the Arbitration Award was “procured by corruption,” A.R.S. § 12-3023(1), that the arbitrator was biased, A.R.S. § 12-3023(2)(a), or that the arbitrator “refused to consider evidence material to the controversy.” A.R.S. § 12-3023(3).3 Jennifer cannot establish her right to relief on appeal based on the purported denial of an opportunity to raise an argument she never tried to raise in the first place. See Walsh v. Walsh, 230 Ariz. 486, 494, ¶ 24 (App. 2012) (stating that an appellant cannot secure reversal based on showing of error absent prejudice, which “must appear affirmatively from the record.” (citation omitted)). In the absence of any indication that Jennifer ever sought to challenge the Arbitration Award under Section 12-3023, the Bereckises are entitled to no relief on their claim that PSG’s failure to join Jennifer as a party to the confirmation action prejudiced her by denying her the opportunity to raise such a challenge. See id. 3 At oral argument, counsel for the Bereckises asserted that John raised a Section 12-3023 challenge to the Arbitration Award in the confirmation proceedings when he moved (albeit unsuccessfully) to vacate the Confirmation Judgment on the basis that the arbitrator purportedly “exceeded his powers,” A.R.S. § 12-3023(A)(4), by awarding attorney fees to PSG even though PSG did not support its application with billing records or time sheets pursuant to Schweiger v. China Doll Restaurant, 138 Ariz. 183 (1983). John’s motion to vacate the Confirmation Judgment is not in the record before us. In any event, nothing in the record before us suggests that Jennifer has ever raised a Section 12-3023 challenge to the Arbitration Award. 9  PSG ENERGY v. BERECKIS, et al. Decision of the Court II. Record evidence supports the superior court’s finding that the monetary award set forth in the Confirmation Judgment is a debt of the Bereckis marital community. ¶30 The Bereckises argue the superior court erred in finding that John was acting for the benefit of his marital community when he initiated and pursued the arbitration proceedings. According to the Bereckises, the evidence in the record established that John was acting on behalf of Universal when he pursued claims in the arbitration proceedings. The mere fact that John was the sole owner of Universal, they maintain, does not establish that actions John took on behalf of Universal were also undertaken on behalf of his marital community. ¶31 Ample evidence in the record supports the superior court’s determination that John was acting on behalf of the marital community when he arbitrated claims against PSG. It is undisputed that all of the work for which John and Universal contracted with PSG was performed while John and Jennifer were married; indeed, their 30-year marriage predated the PSG contracts by over two decades. John testified that he formed Universal using community property, and that he is its sole owner. Any gains in the value of Universal, therefore, inured to the benefit of the marital community. Stock v. Stock, 250 Ariz. 352, 355, ¶ 11 (App. 2020) (recognizing that “the fruits of labor expended during marriage are community property” (citation omitted)). Moreover, John made numerous statements during his deposition during the arbitration that would support the finding that he and Universal have an alter ego relationship. “John Bereckis and Universal are the same,” he testified, later adding, “I and Universal [sic] are the same—for legal purposes we’re one and the same[.]” Indeed, John didn’t even think it necessary to name Universal as a party when he initiated the arbitration proceedings. He signed the original arbitration demand in his own name, only later adding Universal as a claimant. Because at all relevant times John acted as though he personally contracted with PSG, the superior court cannot be said to have abused its discretion in determining that John’s business dealings with PSG, and his initiation of arbitration proceedings, were undertaken for his own benefit, and thus the benefit of his marital community. See id. III. The Declaratory Judgment is overbroad. ¶32 In the Declaratory Judgment, the court determined that “any judgment for attorney fees, costs or discovery sanctions in favor of PSG” in the arbitration proceedings or the confirmation action could properly be “collected against the [Bereckis] marital community (emphasis added).” 10  PSG ENERGY v. BERECKIS, et al. Decision of the Court The Bereckises take issue with the Declaratory Judgment’s reference to “discovery sanctions,” asserting that PSG never sought, and therefore the court could not properly issue, a declaration of the marital community’s liability for discovery sanctions. ¶33 The Declaratory Judgment does not define the term “discovery sanctions,” and the record does not make clear what it refers to. PSG asserts that the term includes multiple sanctions and cost awards issued over the course of various proceedings. According to PSG, the term includes the sum of $9,072 that the arbitrator ordered John to pay as a sanction for his failure, and that of his attorney, to comply with certain disclosure deadlines.4 (The arbitrator did not include this $9,072 sum in the $210,556.31 award for fees and expenses set forth in the Arbitration Award.) Similarly, PSG asserts that the term “discovery sanctions” was intended to include fees and costs of $4,428.40 that the court in the confirmation action awarded to PSG in connection with John’s unsuccessful motion to vacate the Confirmation Judgment. ¶34 We need not determine the intended meaning of the term “discovery sanctions” as used in the Declaratory Judgment, however, because the record shows that no such sanctions were within the scope of the declaratory judgment action. ¶35 In the complaint in the declaratory judgment action, PSG asked the court to determine that John’s “acts and omissions, including initiating arbitration against PSG[,] was done . . . on behalf of the marital community,” and so the marital community was liable for the $210,556.31 award of fees and expenses. PSG’s complaint said nothing about the marital community’s liability for any discovery sanctions. Likewise, PSG made no reference to discovery sanctions in the joint pretrial statement that the parties filed before trial in the declaratory judgment action. And at trial, PSG told the court, “We’re only asking for the relief that’s set forth in the complaint, which is essentially a finding that the arbitration was on behalf of the marital community.” Because PSG sought only a determination that the Bereckis marital community was liable for the $210,556.31 sum awarded by the arbitrator and confirmed in the Confirmation Judgment, the Declaratory Judgment could not properly determine the marital community’s liability for any additional sums. See Andrews v. Andrews, 126 Ariz. 55, 58 (App. 1980) (“The power of a court to render a valid judgment is limited by the nature of the suit, and the issues raised by the pleadings. 4 The attorney who represented John at the arbitration is not the same attorney who represented John and Jennifer in the subsequent proceedings. 11  PSG ENERGY v. BERECKIS, et al. Decision of the Court If the court's judgment exceeds those limits it is void.”); see also Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 41 (1st Cir. 2006) (citing “the usual rule” that “the scope of declaratory relief cannot exceed the issues raised by the pleadings and supported by the evidence.” (citation omitted)). ¶36 Because the declaration of the Bereckis marital community’s liability for “discovery sanctions” exceeded the relief PSG requested, we will remand with directions to the superior court to modify the Declaratory Judgment to delete this sentence: Pursuant to A.R.S. § 12-1831, declaring that Jennifer Bereckis does [sic] not need to be named in the arbitration proceeding, or in CV2023-000956, for any judgment of attorney fees, costs or discovery sanctions in favor of PSG in those proceedings to be collected against the marital community. and to replace it with this sentence: Pursuant to A.R.S. § 12-1831, declaring that Jennifer Bereckis did not need to be named in the arbitration proceeding, or in CV2023-000956, for the judgment of arbitration expenses, attorney fees, and costs of $210,556.31 in favor of PSG in those proceedings to be collected against the marital community. CONCLUSION ¶37 We remand to the superior court to modify the Declaratory Judgment as directed in Paragraph 36, and otherwise affirm the Declaratory Judgment. ¶38 Both parties request an award of fees and costs on appeal. In the exercise of our discretion, we decline to award fees. PSG may recover costs upon compliance with ARCAP 21. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 12