Barron v. Barron , 246 Ariz. 580 ( 2018 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
SHELLY RAE BARRON, Petitioner/Appellee,
v.
PAUL ROGER BARRON, Respondent/Appellant.
No. 1 CA-CV 17-0413 FC
FILED 7-31-2018
Appeal from the Superior Court in Yuma County
No. S1400DO201501132
The Honorable Stephen J. Rouff, Judge Pro Tempore
AFFIRMED IN PART; REVERSED AND VACATED
AND REMANDED IN PART
COUNSEL
Mary Katherine Boyte, PC, Yuma
By Mary K. Boyte Henderson
Counsel for Petitioner/Appellee
S. Alan Cook, PC, Phoenix
By S. Alan Cook, Sharon Ottenberg
Counsel for Respondent/Appellant
BARRON v. BARRON
Opinion of the Court
OPINION
Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.
J O H N S E N, Judge:
¶1 Paul Roger Barron appeals from the dissolution decree
ending his marriage to Shelly Rae Barron. We reverse and remand the
decree's parenting-time provisions because they are the product of
impermissible presumptions about equal parenting time and gender. We
also reverse portions of the decree that violate federal law governing
military retirement pay and vacate and remand the attorney's fees award.
In all other respects, we affirm the decree.
FACTS AND PROCEDURAL BACKGROUND
¶2 The parties ("Husband" and "Wife," respectively) were
married in 2004 and have three children, all girls, born in 2006, 2008 and
2010, respectively. The family moved to Arizona in 2013, when Husband,
a helicopter pilot on active duty with the United States Marine Corps, was
transferred to Yuma. Wife filed a petition for dissolution in August 2015,
but the couple remained together in the marital home until shortly after the
superior court issued temporary orders in March 2016.
¶3 Following a three-day trial, the superior court entered a
decree of dissolution in May 2017. Relevant to this appeal, the decree
continued joint legal decision-making but reduced Husband's parenting
time to 130 days a year, plus specified holidays and a summer vacation, and
divided the community's interest in Husband's military retirement. The
court declined both parties' requests for equalization payments and
awarded attorney's fees to Wife.
¶4 We have jurisdiction of Husband's timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018) and -2101(A)(1) (2018).1
1 Absent material change after the relevant date, we cite the current
version of applicable statutes.
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DISCUSSION
A. Parenting Time.
¶5 By agreement, the temporary orders had allowed Husband
more parenting time than Wife because Wife was in training to become a
firefighter/emergency medical technician. The parties shared joint legal
decision-making, but temporary orders granted Husband parenting time
every Thursday through Sunday until Wife finished her training and
"bec[ame] employed." Wife completed her training within a few months
but did not take a full-time job and did not petition the court for weekend
parenting time. The dissolution decree, entered 14 months after issuance of
temporary orders, reduced Husband's parenting time to one overnight a
week plus every other weekend from Friday afternoon through Monday
morning.
¶6 On appeal, Husband argues the superior court abused its
discretion in failing to order equal parenting time. We review a parenting-
time order for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11
(App. 2013). An abuse of discretion occurs when the court commits legal
error, Arpaio v. Figueroa, 229 Ariz. 444, 447, ¶ 7 (App. 2012), or "when the
record, viewed in the light most favorable to upholding the trial court's
decision, is 'devoid of competent evidence to support' the decision," Little v.
Little, 193 Ariz. 518, 520, ¶ 5 (1999) (quoting Fought v. Fought, 94 Ariz. 187,
188 (1963)).
¶7 As relevant here, A.R.S. § 25-403.02(B) (2018) requires the
superior court to adopt a parenting plan that is "[c]onsistent with the child's
best interests in § 25-403" and that "maximizes [each parent's] respective
parenting time." Section 25-403 (A) (2018) requires the court to determine
parenting time "in accordance with the best interests of the child." Further,
§ 25-403(A) states:
The court shall consider all factors that are relevant to the
child's physical and emotional well-being, including:
1. The past, present and potential future relationship between
the parent and the child.
2. The interaction and interrelationship of the child with the
child's parent or parents . . . .
3. The child's adjustment to home, school and community.
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4. If the child is of a suitable age and maturity, the wishes of
the child as to legal decision-making and parenting time.
5. The mental and physical health of all individuals involved.
¶8 In findings and conclusions issued in support of the decree's
parenting-time provisions, the superior court stated:
The primary focus concerning parenting time is the best
interest of the children and not the parents. If the interests of
parents are more important than children, then children, like
timeshares, would always be equally time-shared.
A totality of circumstances tip the scales in favor of
designation of [Wife] as primary residential parent.
A. [Wife] has been the primary care provider for the
children prior to this action. The children have historically
spent more time with [Wife] than [Husband] since their birth.
B. The children have not fully adjusted to equal parenting
time during the pendency of the temporary orders. The court
finds the children want and need to spend more time with
[Wife].
C. The military duties of [Husband] often make him
unavailable during his parenting time resulting in the
children spending too much time with the paternal
grandparents relative to time they could be with [Wife].
D. The children are girls who naturally will gravitate
more to [Wife] as they mature.
E. The experience during the temporary orders has been
unreasonable occasionally. . . . The court finds [Husband] has
been comparatively more unreasonable and inflexible than
[Wife] [in agreeing to trade parenting time]. In particular,
[Husband] has placed his interest over the best interest of the
children in not allowing more frequent weekend parenting
time by [Wife] regardless of the strict terms of the stipulated
temporary order.
F. It is unlikely the parties will both reside in Yuma
during the minority of all the children. Significant
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geographical separation of the parties precludes equal
parenting time. Changing equal parenting time now would
be less disruptive than in the future.
G. Children should have a primary home and bedroom
where special items like collections, posters and private
things are maintained as opposed to forcing children to
equally divide their time and things and clothes equally
between two homes.
H. A primary residence promotes stability and continuity
for children.
¶9 With one exception, we agree with Husband that the findings
the court made in determining parenting time are contrary to law and not
supported by the evidence.
¶10 First, the court legally erred by applying a presumption
against equal parenting time. Nearly all of the court's findings disregarded
the statute's starting point, which is that, when consistent with a child's best
interests, each party's parenting time should be maximized. A.R.S. § 25-
403.02(B). Wife offers no legal argument in defense of the court's broad
generalization that "[c]hildren should have a primary home and bedroom
. . . as opposed to forcing children to equally divide their time and things
and clothes equally between two homes." And no evidence in the record
supports application of that principle here. By its nature, dissolution of a
marriage compels children to divide their time between the homes of their
two parents. That being the case, nothing in the law allows a court
considering the best interests of the children to presume that one of those
homes must be the children's "primary" residence.
¶11 At trial, Wife rejected the notion of equal parenting time,
protesting without offering specifics that her "children need more
consistency of staying in one place." But the court's broad finding that "[a]
primary residence promotes stability and continuity for children" is
supported neither by the law nor the evidence in the record. When each
parent can provide a safe, loving and appropriate home for the children,
there is no place in a parenting-time order for a presumption that "stability
and continuity" require the children to spend more time in one home than
the other. Here, Wife offered no evidence that Husband is not a good
parent, nor that his home is inappropriate for the children. To the contrary,
she testified Husband has the girls' best interests at heart, and, when asked
to describe his strengths as a parent, she testified he is "very loving," plays
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with the girls and is good "at discipline." She also testified the girls enjoy
spending time at Husband's home.
¶12 Second, the court erred by basing parenting time on its
finding that the parties' three girls "naturally will gravitate more to [Wife]
as they mature." The implicit premise of this finding is that, as a general
proposition, girls need to spend more time with their mother than their
father. Nothing in the law nor the record supports that proposition.
¶13 Under the Equal Protection Clause of the Fourteenth
Amendment, gender-based presumptions by the government require an
"exceedingly persuasive justification." United States v. Virginia, 518 U.S. 515,
531 (1996). In this inquiry, "overbroad generalizations about the different
talents, capacities, or preferences of males and females" cannot suffice. Id.
at 533. The Arizona legislature has recognized this principle by mandating
that in determining parenting time, a "court shall not prefer a parent's
proposed plan because of the parent's or child's gender." A.R.S. § 25-
403.02(B).2
¶14 Wife argues it was "reasonable for the court to anticipate that
the children's needs for a stable maternal influence would increase rather
than decrease as they entered puberty." She cites no factual or legal
authority, however, for that proposition. Nor does she offer any
explanation for why an equal parenting-time plan would not allow her to
maintain a "stable maternal influence" over her girls. Wife also argues the
finding is supported by § 25-403(A)(2), which directs a court considering
best interests to take into account "[t]he interaction and interrelationship of
the child with the child's parent or parents." But there was no evidence
before the court that Wife's relationship or interaction with the children was
better than Husband's. By Wife's logic, all things being equal, the gender
of the children necessarily would drive parenting time, a governing
2 Arizona law once required a presumption in favor of women with
respect to the custody of young children. See A.R.S. § 14-846(B) (1956)
("[O]ther things being equal, if the child is of tender years, it shall be given
to the mother. If the child is of an age requiring education and preparation
for labor or business, then to the father."). See Dunbar v. Dunbar, 102 Ariz.
352, 354 (1967) (applying "tender years" statute as "the declared policy of
this state"). The legislature repealed the statute in 1973. 1973 Ariz. Sess.
Laws, ch. 75, § 3.
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principle flatly inconsistent with principles of gender equality and § 25-
403.02(B).3
¶15 Third, the court erred by favoring parenting time for Wife
over Husband based on the fact that Wife had been the children's primary
caregiver during the marriage. Whether one or the other parent was the
primary caregiver during the marriage used to be one of the factors the
court was required to consider in deciding parenting time. See A.R.S. § 25-
403(A)(7) (2005) ("Whether one parent, both parents or neither parent has
provided primary care of the child."). But the legislature removed that
factor in 2012 when it substantially revised the decision-making and
parenting-time statutes. 2012 Ariz. Sess. Laws, Ch. 309, § 5 (2d Reg. Sess.).4
¶16 Dissolution necessarily will disrupt the family dynamic
whenever one parent has been the primary earner while the other has
stayed home to care for the children. Upon dissolution, the wage earner
usually must find child care and the stay-at-home parent must find work.
To be sure, each parent's relationship with a child before dissolution is one
of the factors a court must consider in determining parenting time. See
A.R.S. § 25-403(A)(1) (court shall consider "past, present and potential
future relationship between the parent and the child"). Absent evidence in
the record that a parent will be unable to properly care for a child, however,
the superior court errs when it presumes – as the court did here – that the
child's best interests necessarily are served by affording more parenting
time to the former stay-at-home parent than to the other.
¶17 Fourth, the court also erred by basing its parenting-time
determination on a finding that, given it was unlikely that Husband and
Wife would remain in Yuma until the children were grown, "[c]hanging
3 When Father moved for reconsideration of the parenting-time order
based in part on this finding, the court denied the motion, stating that "[t]he
gender of the children and the parties was a very minor factor in the totality
of circumstances." On the record presented and given the court's other
erroneous findings, we cannot determine that its parenting-time ruling was
unaffected by its improper gender-based presumption.
4 Cf. Principles of the Law of Family Dissolution § 2.08 (American Law
Institute 2002) (as a general matter, "court should allocate custodial
responsibility so that the proportion of custodial time the child spends with
each parent approximates the proportion of time each parent spent
performing caretaking functions for the child prior to the parents'
separation").
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equal parenting time now would be less disruptive than in the future."
Over their 11-year marriage, Husband's various reassignments as a Marine
required the couple to relocate a half-dozen times. Although the court did
not err by implicitly finding that Husband may be reassigned again, no
evidence in the record supports the pronouncement that it would be less
disruptive to the children to reduce their time with their father now than to
do so later. Indeed, as Husband argues, it belies logic to limit a military
member's parenting time simply because he or she may be deployed in the
future. If and when Husband is reassigned, A.R.S. §§ 25-408 (2018) and -
411 (2018) will govern how parenting time is to be altered under the
circumstances then presented.
¶18 Fifth, the court erred by limiting Husband's parenting time
based on its finding that his military duties "often make him unavailable
during his parenting time resulting in the children spending too much time
with the paternal grandparents." Husband's parents sold their house in
Oregon and moved to Yuma shortly before Wife petitioned for dissolution,
and they now share a home with Husband so that they may care for the
children when he is unable to do so. During the marriage, Husband's job
took him away from home during a pair of seven-month overseas
deployments and on training missions for a few weeks at a time. Husband
testified, however, that since June 2016, his assignment in Yuma had
allowed him to work "[b]anker's hours." At the same time, Wife testified
that her work as a firefighter/emergency medical technician may require
shift work long past regular business hours, including some nights and
weekends. In short, both parents' jobs will require extended periods of
child care, and Husband's parents have agreed to care for the children
whenever either parent is unable to do so. Further, Father's proposed
parenting plan included a "first right of refusal" under which each parent
would offer the other the opportunity to care for the children when the first
parent is unavailable for a period of four hours or longer. Mother,
meanwhile, offered no criticism of the girls' grandparents as care providers,
and in fact testified that she would be fine with them watching the girls
after school in the afternoons if her work did not allow her to do so. Under
these circumstances, the superior court abused its discretion when it found
that Husband's use of his parents for child care weighed against his request
for equal parenting time.
¶19 Sixth, the court also erred by denying equal parenting time
based on its findings that the girls "have not fully adjusted to equal
parenting time during the pendency of the temporary orders" and that they
"want and need to spend more time with" Wife. Crafted to accommodate
the demands of Wife's school and training regimes, the stipulated
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temporary orders granted Husband parenting time over what became a
four-day weekend, from noon on Thursday through Sunday evening, week
in, week out. On that schedule, the girls naturally missed being able to
spend weekends with Wife. Although Wife testified the girls said they
wanted to spend weekends with her, she acknowledged that was because
they had been with Husband every weekend under the temporary orders.
¶20 The only other evidence supporting the court's finding that
the children had "not fully adjusted" to equal parenting time during
temporary orders was Wife's testimony in September 2016 that one of the
girls complained of stomach pain and sleeplessness, issues Wife attributed
to the child's unwillingness to leave Wife's home for Husband's. But by the
time trial resumed two months later, Wife testified the girl's problems with
sleeping were "getting better now." Further, both parents testified the girls
were doing well in school.
¶21 On this record – and in the absence of testimony of a therapist,
counselor or other expert – the evidence was entirely insufficient to support
the court's implicit finding that the children would not be able to "adjust"
to an equal parenting time schedule that afforded a fair measure of
weekends to Wife.
¶22 As for the court's lone remaining finding in support of its
parenting-time determination, Husband argues there was no evidence that
he was more unreasonable and inflexible than Wife in negotiating trades of
parenting time before trial. Husband contends he offered Wife additional
parenting time on four occasions during the period of temporary orders
even though Wife had more parenting time overall. He also contends Wife
was more unreasonable regarding a summer vacation dispute and never
responded to the equal parenting plan he offered in settlement. For her
part, Wife testified Husband did not offer additional parenting time, but
only offered weekend parenting time in exchange for an equal amount of her
parenting time. She also recounted several instances in which Husband
refused to allow her to pick up the children from school when he was
working or take them overnight when he traveled. Although Husband was
strictly following the temporary orders in these instances, the court
properly could view his conduct as unreasonably inflexible. See A.R.S. §
25-403(A)(6) ("Which parent is more likely to allow the child frequent,
meaningful and continuing contact with the other parent.").
¶23 We generally defer to the weight the superior court gives to
conflicting testimony. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48, ¶ 13
(App. 1998). Although not every error in a parenting-time decision
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warrants a new hearing, given the several errors noted above, we reverse
the parenting-time order and remand for a new hearing consistent with §
25-403(A). See Little, 193 Ariz. at 520, ¶ 5; Hart v. Hart, 220 Ariz. 183, 188, ¶
19 (App. 2009) (vacating parenting-time determination when court's order
showed it had applied incorrect legal standard).
B. Military Retirement Pay.
¶24 As a Marine, Husband is entitled to receive military
retirement benefits upon completing 20 years of service. See Howell v.
Howell, 137 S. Ct. 1400, 1402-03 (2017). Under federal law, state courts may
treat the portion of a serviceperson's military retirement earned during
marriage as community property, divisible upon divorce. See 10 U.S.C. §
1408(c)(1) (2018); see also Edsall v. Superior Court, 143 Ariz. 240, 241-42 (1984).
Thus, and under Arizona community-property law, Wife is entitled to one-
half of the military retirement benefits Husband earned during the
marriage. Applying that principle, the superior court divided the
community's interest in Husband's military retirement. It also ruled that if
Husband voluntarily continues to serve after he becomes eligible to retire,
he must pay Wife what she would have received from the government if he
had retired. On appeal, Husband argues the court erred by effectively
ordering him to indemnify Wife against a choice he might make to work
more than 20 years. He also argues the court made other errors in
addressing his military retirement.
¶25 The court has broad discretion in apportioning community
property. Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007). We
review the allocation for an abuse of discretion, view the evidence in the
light most favorable to upholding the court's ruling and will affirm the
allocation if reasonable evidence supports it. Id.
1. Mandatory payment to Wife at 20 years.
¶26 In Howell, issued just a week before the decree in this case, the
Supreme Court held that state courts may not employ equitable principles
to reach results that are inconsistent with federal statutes governing
military retirement. 137 S. Ct. at 1405-06. The retired military member in
Howell waived a portion of his retirement pay in exchange for disability
benefits. Id. at 1402. Although the waiver garnered a tax advantage for the
retired military member, it reduced his former spouse's monthly benefit,
which was calculated based on his retirement pay. Id. at 1403-04. The
Arizona Supreme Court upheld a superior court order requiring the
military member to indemnify his former spouse for the consequences of
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his waiver. Id. The United States Supreme Court reversed, holding the
superior court's order was inconsistent with 10 U.S.C. § 1408(c), which
allows division of military retirement pay but not disability benefits.
Howell, 137 S. Ct. at 1403, 1405 (citing Mansell v. Mansell, 490 U.S. 581, 589
(1989)). By its ruling, the Court rejected the state court's exercise of its
equitable powers to grant the former spouse an interest that federal law did
not allow. 137 S. Ct. at 1405-06.
¶27 Here, the same federal statute supports Husband's argument
that, when a military spouse chooses not to retire after 20 years, a state court
may not order him to indemnify his former spouse against the financial
consequences of his decision to postpone retirement. Although § 1408(c)(3)
allows state courts to treat retirement pay as community property in a
dissolution, the statute specifically states that it "does not authorize any
court to order a [military] member to apply for retirement or retire at a
particular time in order to effectuate any payment under this section." Wife
argues the superior court did not compel Husband to retire, but the order
requiring Husband to pay Wife what she would receive from the
government upon Husband's retirement is no different in principle from
the equitable remedy Howell disapproved.
¶28 Wife nevertheless argues the superior court order is proper
under Koelsch v. Koelsch, 148 Ariz. 176 (1986). In that case, the Arizona
Supreme Court addressed the division of a community property interest in
public retirement benefits when the employee is vested but wants to
continue working, thereby delaying the former spouse's receipt of
retirement pay. Id. at 180. The court held that in such a situation, the
superior court may order the employee to indemnify the former spouse for
what the former spouse would have received from the community's share
of the retirement. Id. at 185.
¶29 But Koelsch did not address the division of military retirement
pay, a matter exclusively governed by federal law. Pre-Howell cases were
divided in addressing whether a military spouse who wants to keep
working may be ordered to indemnify the former spouse. Compare In re
Marriage of Castle, 225 Cal. Rptr. 382, 387 (Cal. App. 1986), and Wilder v.
Wilder, 534 P.2d 1355, 1359 (Wash. 1975) (upholding indemnification), with
Alvino v. Alvino, 659 S.W.2d 266, 271-72 (Mo. App. 1983); Longo v. Longo,
663 N.W.2d 604, 609, 610 (Neb. 2003); and Kendrick v. Kendrick, 902 S.W.2d
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918, 929 (Tenn. App. 1994) (military retirement is payable to non-military
spouse only upon the military spouse's retirement).5
¶30 Notwithstanding the prior division of authority, the question
now has been resolved by Howell, which holds that a state court may not do
indirectly what 10 U.S.C. § 1408 directly forbids. The superior court here
had no authority to order Husband to indemnify Wife in the event he does
not decide to retire when eligible at 20 years. Although federal law allows
a state court to award a former spouse a share of a military member's
retirement benefits, it does not allow the court to order the
military member to indemnify his former spouse if he decides to continue
working past the date on which he could retire.6
2. Survivor benefit premium.
¶31 The superior court also erred in ordering that Wife's share of
the community's interest in Husband's military retirement cannot be
reduced by payments he might make to buy a survivor benefit for a future
spouse.
¶32 Pursuant to § 1408, the amount of military retirement pay that
may be divided as community property does not include amounts
"deducted because of an election under chapter 73 of this title to provide an
annuity to a spouse or former spouse to whom payment of a portion of such
member's retired pay is being made pursuant to a court order under this
section." 10 U.S.C. § 1408(a)(4)(A)(iv), (c)(1). The annuity the statute
5 See also Maj. Michael H. Gilbert, A Family Law Practitioner's Road Map
to the Uniformed Services Former Spouses Protection Act, 32 Santa Clara L. Rev.
61, 77-78 (1992) (as a practical matter, such orders force a military spouse to
retire).
6 The ratio by which to derive the community's share of Husband's
military retirement is (1) the number of months Husband and Wife were
married while Husband was in the service divided by (2) the number of
Husband's months in service for retirement purposes, as determined by the
military. The amount of military retirement pay due a serviceperson (i.e.,
the number to which the ratio is applied) is a matter for the military to
determine. Therefore, and because we reverse the superior court's order
that Husband must indemnify Wife if he does not retire after 20 years of
service, we will not address the parties' respective contentions about the
specifics of the amount Wife ultimately may receive as her share of the
community's interest in Husband's retirement.
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references is the Survivor Benefit Plan, which will make monthly payments
to the surviving spouse of a military member to help make up for the loss
of retirement benefits upon the member's death. See 10 U.S.C. §§ 1447, 1448
(2018). When a military member buys the annuity for "a spouse or former
spouse to whom payment of a portion of such member's retired pay is being
made pursuant to a court order," the price of the annuity is deducted from
the amount of his or her retirement pay subject to division as community
property. See 10 U.S.C. § 1408(a)(4)(A)(iv).
¶33 The decree adopts language Wife proposed that is contrary to
the federal statute's treatment of survivor's annuity premiums. The decree
states, "In the event [Husband] elects a . . . survivor annuity in favor of any
other person, such election shall not reduce" Wife's share of Husband's
retirement pay. (Emphasis added.) By mandating that Wife's share of
Husband's retirement pay will not be reduced by the cost of any survivor's
annuity Husband might purchase, the decree disregards the statutory
mandate that retirement pay subject to division as community property
shall be reduced by amounts deducted for an annuity in favor of "a spouse or
former spouse to whom payment of a portion [of military retirement] is
being made pursuant to a court order."
¶34 Wife's defense of the decree's treatment of survivor-annuity
premiums is based on its application to an annuity Husband might
purchase for a new spouse if he remarries. Wife argues the statute
mandates that the cost of an annuity for a current or former spouse shall be
deducted from retirement pay only if the annuity is court-ordered. Thus,
under her interpretation of the statute, if Husband were to remarry and
voluntarily buy an annuity for his new spouse, Wife's interest in his
retirement pay would not be reduced by the cost of that annuity.
¶35 We do not interpret the statute that way. In the normal case,
there is no need for a court order requiring a military member to purchase
an annuity for his or her current spouse – generally speaking, only
payments on behalf of a former spouse require a court order. The text of the
statute is consistent with that principle. The provision at issue applies when
one receives a portion of a military member's retirement pay "pursuant to a
court order under this section." 10 U.S.C. § 1408(a)(4)(A)(iv) (emphasis
added). The "section" to which the text refers, of course, is § 1408 – which
was enacted specifically to grant state courts the power to apply state law
to divide military retirement pay upon dissolution of a military member's
marriage. See 10 U.S.C. § 1408(a)(2) ("'court order' means a final decree of
divorce, dissolution, annulment or legal separation . . ."); Howell, 137 S. Ct.
at 1403 (describing § 1408 as Congress's response to McCarty v. McCarty,
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453 U.S. 210 (1981), which had held that federal law preempted community-
property treatment of military retirement). The statute has nothing to say
about an intact marriage; contrary to Wife's argument, its reference to one
who receives a distribution of retirement pay "pursuant to a court order
under this section" logically cannot refer to a current spouse because "this
section" only applies in proceedings to dissolve or otherwise effectively end
a marriage.7
¶36 Accordingly, under § 1408(a)(4)(A)(iv), military retirement
pay subject to division by a state court as community property is reduced
by amounts a serviceperson pays for an annuity to (1) a spouse or (2) a
former spouse when the payment to the former spouse is mandated by a
court order. The decree here violates that provision by ordering that Wife's
interest in Husband's retirement shall not be reduced by Husband's
purchase of an annuity for "any other person."
3. Cost-of-living increases and REDUX/career status bonus.
¶37 Husband argues the superior court erred by awarding Wife a
proportionate share "of any cost of living or other post-retirement" increase
in his military retirement pay. Husband acknowledges that § 1408(a)(4)(B)
allows division of certain specified cost-of-living increases, but argues the
decree goes beyond the statute in dividing any "other post-retirement"
increases. Husband is correct. Pursuant to § 1408(a)(4)(B), military
retirement pay subject to division as community property includes
expressly defined cost-of-living increases; the statute makes no reference to
any other increases. On remand, the superior court shall remove the
reference to "other post-retirement increases" from the decree.
¶38 The decree also provides that in the event Husband elects to
receive retirement benefits pursuant to the Military Reform Act of 1986
("REDUX benefits") and receives a Career Status Bonus ("CSB"), Wife shall
be entitled to a proportionate share of these benefits. Husband contends
7 Cases interpreting the statute to the contrary do not address the
significance of the provision's use of the phrase "under this section." See
Fricks v. Fricks, 771 So. 2d 790, 793 (La. App. 2000); Neese v. Neese, 669 S.W.
2d 388, 391 (Tex. App. 1984).
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Opinion of the Court
the superior court erred in dividing these benefits because Wife did not
make any claim to them in her pretrial statement or at trial.8
¶39 Wife indeed did not ask the superior court to allocate these
benefits, and the record contains no evidence as to how they are calculated.
Nonetheless, because we are remanding the military retirement provisions
of the decree, and REDUX and CSB may be retirement-type benefits in
which the community is entitled to share, the superior court on remand
shall determine how to allocate these benefits should Husband elect to
receive them.
C. Equalization Payment.
¶40 The superior court denied Husband's request for an
equalization payment based on $36,539 in community expenses (mainly the
mortgage, utilities and groceries) he paid after Wife served the dissolution
petition. Husband paid more than $30,000 of the expenses at issue during
the several months leading up to entry of temporary orders, when he was
working but Wife had no full-time job and was without temporary spousal
maintenance, and when he continued to live with her in the marital home.
The superior court reasoned that, "in fairness," it could not grant Husband's
request for an equalization payment without also retroactively modifying
temporary orders, implying that, under the circumstances, Wife had an
equitable right to financial assistance from Husband during the applicable
period. At the same time, the court also denied Wife's request for an
equalization payment for an additional $20,000 in property and private
retirement savings accounts Husband received under the decree.
¶41 Husband argues the court erred as matter of law, citing
Bobrow v. Bobrow, 241 Ariz. 592, 596, ¶¶ 15, 19 (App. 2017), in which we held
a spouse's post-petition payment of community expenses is not presumed
to be a gift of sole funds to the community. Wife argues Bobrow is
8 These benefits are similar to military retirement benefits that might
be available to Husband after 15 years of service. See 37 U.S.C. § 354 (2018);
Boedeker v. Larson, 605 S.E.2d 764, 771 (Va. App. 2004). After 15 years of
service, servicepersons who entered the military after July 31, 1986 can opt
for the CSB and REDUX retirement plan, under which a member is eligible
to receive a $30,000 bonus upon reaching his or her fifteenth year of active
service. If the member makes that election, however, his or her retirement
is calculated at a reduced rate. See
https://www.dfas.mil/retiredmilitary/plan/estimate/csbredux.html
(last visited June 19, 2018).
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Opinion of the Court
distinguishable, and, in any event, the overall property allocation was
equitable.
¶42 The parties in Bobrow had a premarital agreement that
Husband would not be obligated to pay community expenses after either
party filed a petition for dissolution. 241 Ariz. at 594, 595-96, ¶¶ 5, 14. On
that basis, the superior court found the husband's post-petition payments
were voluntary and presumed to be a gift to the community. Id. at 594, ¶ 5.
On appeal, this court held the presumption that a spouse intends a gift to
the community when he or she uses separate funds to pay community
expenses does not apply to post-petition expenditures. Id. at 596, ¶ 15.
¶43 In eliminating the gift presumption, Bobrow instructed courts
to account for post-petition payments made from separate property in
equitably dividing community property. Id. at 596, ¶ 19. The superior court
here did not apply a gift presumption and otherwise did not abuse its
discretion in denying both parties' requests for equalization payments.
Given the financial disparity between Husband and Wife at the time, the
superior court had discretion to retroactively grant temporary spousal
maintenance. See A.R.S. § 25-318 (2018); Maximov v. Maximov, 220 Ariz. 299,
301, ¶ 7 (App. 2009) (citing Ariz. R. Fam. Law P. 81(A) (authorizing court to
direct entry of judgment nunc pro tunc as justice may require)). The court's
implicit finding that Wife would have been unable to share the expenses at
issue absent spousal maintenance is supported by the record.
¶44 Because the overall property allocation was equitable, we
affirm the court's denial of Husband's request for reimbursement.
D. Attorney's Fees Award.
¶45 In awarding attorney's fees to Wife, the court found neither
party was unreasonable, but because of the disparity in their incomes,
Husband should pay a proportionate share of Wife's fees. See A.R.S. § 25-
324(A) (2018). Based on their comparative earnings, the court found that
Husband should bear 67 percent of the attorney's fees incurred in the case;
Wife, 33 percent. But in applying those ratios to the parties' respective fees,
the court reduced both parties' paralegal rates to $50 an hour (from $150
charged by Wife's lawyer and $175 charged by Husband's lawyer).
¶46 In moving for reconsideration, Husband's counsel, whose
office is in Phoenix, argued that his paralegal had more than 20 years'
experience in family law and avowed that an hourly rate of $175 is
reasonable in most counties in the state. He repeats those arguments on
appeal, and Wife, represented by Yuma counsel, does not argue to the
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Opinion of the Court
contrary. We review an award of attorney's fees for an abuse of discretion.
Magee v. Magee, 206 Ariz. 589, 590, ¶ 6 (App. 2004).
¶47 Neither party objected to the other's paralegal rates nor the
amount of time their respective paralegals incurred. Nevertheless, in
reducing the rates, the superior court stated:
The court finds that $175 and $150 an hour for paralegal time
is unreasonable and without sufficient evidence of local
practice. Such a rate approximates three times the hourly rate
of a judge. . . . Many lawyers do not charge anything for so-
called paralegal time and secretarial time.
¶48 The court abused its discretion by sua sponte reducing the
paralegal charges to $50 an hour. The $150 rate charged by Wife's Yuma
counsel, and her failure to object to Husband's $175 rate, belies the court's
finding that the parties had offered no evidence of rates charged by Yuma
practitioners for work done by paralegals. More broadly, the court's
pronouncement that "[m]any lawyers do not charge anything for so-called
paralegal time" is demonstrably incorrect. To the contrary, trained,
experienced paralegals can be invaluable in providing efficient legal
services to the clients of a law firm. See Ahwatukee Custom Estates Mgmt.
Ass'n v. Bach, 193 Ariz. 401, 403, ¶ 9 (1999) ("[L]egal assistant and law clerk
services may properly be included as elements in attorneys' fees
applications and awards because these individuals typically have acquired
legal training and knowledge sufficient to permit them to contribute
substantively to an attorney's analysis and preparation of a particular legal
matter." (quotation omitted)). And the court's reference to a judge's "hourly
rate" is simply inapplicable. The effective hourly rates of judges – like those
of public defenders, prosecutors and other government lawyers – are not
evidence of a reasonable hourly rate in private practice.
¶49 As he did in the superior court, Husband also argues the court
erred by finding that Wife did not act unreasonably in the litigation. He
contends Wife was unreasonable in failing to make or respond to settlement
offers and by providing untimely discovery responses. Wife, on the other
hand, contends Husband failed to follow through with a settlement
agreement reached early in the litigation and failed to provide requested
discovery. The superior court was in the best position to consider these
competing allegations of unreasonableness. See Gutierrez, 193 Ariz. at 347,
¶ 13. The record supports the court's conclusion that attorney's fees were
not warranted based on unreasonable conduct.
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Opinion of the Court
¶50 Husband does not dispute the superior court's finding that
disparity in the parties' finances warranted an award of fees to Wife. We
affirm that finding, but, for the reasons stated, reverse and remand the
award because the court abused its discretion in reducing the parties'
paralegal rates.
E. Attorney's Fees and Costs on Appeal.
¶51 Wife requests an award of attorney's fees and costs on appeal
pursuant to A.R.S. § 25-324. In the exercise of our discretion, we decline to
award attorney's fees to Wife. Husband did not take unreasonable
positions on appeal and, after the award of spousal maintenance, the
financial disparity between the parties is not great. We award Husband his
costs on appeal pursuant to A.R.S. § 12-342 (2018).
CONCLUSION
¶52 We reverse the parenting-time provisions in the decree and
remand for a new hearing on parenting time. We reverse the decree's
provisions concerning Husband's military retirement and the order
awarding attorney's fees to Wife and remand for further proceedings
consistent with this opinion. In all other respects, we affirm the decree.
AMY M. WOOD • Clerk of the Court
FILED: AA
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