Wilson v. Wilson ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
PATRICIA ANN WILSON, Petitioner/Appellee,
v.
WESLEY WILSON, Respondent/Appellant.
No. 1 CA-CV 17-0704 FC
FILED 11-29-2018
Appeal from the Superior Court in Maricopa County
No. FN2014-094577
The Honorable Laura M. Reckart, Judge
REMANDED
COUNSEL
RD Smith Law, P.C., Scottsdale
By Roger D. Smith
Counsel for Petitioner/Appellee
Udall Shumway, P.L.C., Mesa
By Steven H. Everts
Counsel for Respondent/Appellant
WILSON v. WILSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig
joined.
J O N E S, Judge:
¶1 Wesley Wilson (Husband) appeals from the family court’s
post-decree order reducing his spousal maintenance obligation to Patricia
Wilson (Wife) by $100 per month. For the following reasons, we remand.
FACTS AND PROCEDURAL HISTORY
¶2 Wife petitioned to dissolve her marriage to Husband in 2014
after thirty years of marriage.1 At the time, both parties worked full-time
with Husband earning $55,000 to $65,000 per year — more than twice as
much as Wife’s $25,000 yearly income. After conducting an evidentiary
hearing and considering the relevant statutory factors, see Ariz. Rev. Stat.
(A.R.S.) § 25-319(B),2 the family court determined Wife lacked sufficient
property, including property apportioned to her in the dissolution, to
provide for her reasonable needs. In the decree, the court ordered Husband
to pay spousal maintenance of $800 per month for seven years, beginning
June 1, 2015. Neither party challenged the decree.
¶3 In September 2015, Husband petitioned to terminate his
spousal maintenance obligation. In his petition, Husband alleged
termination was warranted because he had retired following a recent heart
attack, and Wife would therefore receive approximately $40,000 from his
pension, negating her need for support. In March 2016, the family court
found Husband’s decision to retire was elective and, therefore, he had
failed to prove a substantial and continuing change of circumstances
1 We view the facts in the light most favorable to upholding the
spousal maintenance order. McNeil v. Hoskyns, 236 Ariz. 173, 175, ¶ 2 n.1
(App. 2014) (citing Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012)).
2 Absent material changes from the relevant date, we cite a statute’s
current version.
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Decision of the Court
warranting reduction of his maintenance obligation. See A.R.S. § 25-327(A).
Husband did not challenge the final post-judgment order.
¶4 In July 2016, Husband again petitioned to terminate his
spousal maintenance obligation.3 Husband alleged termination was
warranted because the Social Security Administration had determined he
was “totally disabled” and, because he was unable to work, Wife earned
more income than he did. At the May 2017 evidentiary hearing, Husband
presented evidence indicating he became completely disabled in August
2015. Husband testified he is otherwise unable to work, receives no income
beyond $24,432 in yearly disability benefits, and uses the entirety of his
income to meet his monthly expenses — not counting the previously
ordered maintenance. Wife continued to work several jobs throughout the
year, as she “always had,” earning annual wages of approximately $32,000.4
Neither party requested specific findings of fact and conclusions of law
pursuant to Arizona Rule of Family Law Procedure 82(A).
¶5 After taking the matter under advisement, the family court
found Husband proved a substantial and continuing change of
circumstances because he was no longer working and thus “dependent on
disability and social security.” The court then considered the relevant
A.R.S. § 25-319(B) factors and reduced Husband’s maintenance obligation
by $100 per month for the remainder of the seven-year period. At the same
time, the court ordered Husband to pay $100 per month toward spousal
maintenance arrearages, negating any prospective decrease in his monthly
3 Husband requested termination retroactive to June 1, 2015.
However, he admitted within his petition that he was $4,096 in arrears.
Additionally, the maintenance obligation accruing before his July 2016
petition became vested when due and is not subject to modification. See
A.R.S. § 25-327(A) (“[T]he provisions of any decree respecting maintenance
or support may be modified or terminated only on a showing of changed
circumstances that are substantial and continuing except as to any amount
that may have accrued as an arrearage before the date of notice of the motion . . . to
modify or terminate.”) (emphasis added); In re Marriage of Priessman, 228
Ariz. 336, 340, ¶ 13 (App. 2011).
4 Although the family court found Mother’s income was $26,000 per
year, or $2,167 monthly, this finding is not supported by the record.
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Decision of the Court
payments to Wife.5 Husband made several unsuccessful post-trial motions
and then timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(2), -2101(A)(2), and -2101(A)(5)(a).
DISCUSSION
I. Eligibility for Spousal Maintenance under A.R.S. § 25-319(A)
¶6 Husband argues the family court erred in adjusting the award
of spousal maintenance without first determining whether Wife was
eligible for any award under A.R.S. § 25-319(A). We disagree.
¶7 “Spousal maintenance is not intended to serve ‘as a method
of holding open the courtroom door for possible changes of
circumstances.’” Sherman v. Sherman, 241 Ariz. 110, 115, ¶ 19 (App. 2016)
(quoting Neal v. Neal, 116 Ariz. 590, 592 (1977)). A determination of general
eligibility for maintenance under A.R.S. § 25-319(A) is made in the initial
“proceeding for dissolution of marriage or legal separation, or a proceeding
for maintenance following dissolution of the marriage by a court that lacked
personal jurisdiction over the absent spouse.” A.R.S. § 25-319(A). The
determination becomes final upon entry of the decree, see A.R.S. § 25-
325(A), and may not be revisited at a later date, Sherman, 241 Ariz. at 114-
15, ¶¶ 18-19. Thereafter, collateral estoppel prevents the court from
reconsidering a spouse’s general eligibility for spousal maintenance during
a post-judgment modification proceeding. See Chaney Bldg. Co. v. City of
Tucson, 148 Ariz. 571, 573 (1986) (explaining a party is precluded from
relitigating a fact essential to a prior judgment if the fact “was actually
litigated in a previous suit, a final judgment was entered, and the party . . .
had a full opportunity to litigate the matter and actually did litigate it”)
(citations omitted).
¶8 Because the family court was not required to reconsider
Wife’s eligibility for spousal maintenance under A.R.S. § 25-319(A), it did
not err in declining to do so. But the res judicata effect of the prior
unchallenged finding of eligibility does not, absent an agreement for non-
modifiable maintenance, alter the parties’ right to challenge the amount and
duration of a spousal maintenance award based upon consideration of the
5 Although Husband states this order “may arguably be appropriate
or inappropriate,” he does not specifically object to the arrearage order.
Therefore, any challenge thereto is waived. See Polanco v. Indus. Comm’n,
214 Ariz. 489, 491, ¶ 6 n.2 (App. 2007) (declining to address the merits of
an argument mentioned in passing in the party’s opening brief).
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factors set forth in subsection (B) upon proof of a substantial and continuing
change of circumstances. See A.R.S. § 25-327(A).
II. Amount and Duration of Maintenance under A.R.S. § 25-319(B)
¶9 Husband also challenges the amount and duration of the
modified spousal maintenance award. On review, we consider whether the
family court properly considered the relevant factors contained within
A.R.S. § 25-319(B) and will affirm if the decision is supported by reasonable
evidence. Boyle, 231 Ariz. at 65-66, ¶¶ 8, 13 (citing Gutierrez v. Gutierrez, 193
Ariz. 343, 348, ¶ 15 (App. 1998), and Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19
(App. 2009)).
A. Adoption of Findings
¶10 Husband argues the family court erred as a matter of law
when it adopted findings contained in other court orders by reference.
“[T]he responsibility to make the findings is the court’s alone.” Christopher
K. v. Markaa S., 233 Ariz. 297, 301, ¶ 20 (App. 2013) (citing DePasquale v.
Superior Court, 181 Ariz. 333, 336 (App. 1995)). But the court may adopt the
findings and conclusions of others so long as they are “consistent with the
ones that it reaches independently after properly considering the facts.”
Elliott v. Elliott, 165 Ariz. 128, 134 (App. 1990) (approving the practice of
adopting findings proposed by a party after independent analysis)
(citations omitted); see also Nold v. Nold, 232 Ariz. 270, 273-74, ¶ 14 (App.
2013) (finding error where the family court “delegated its obligation to
independently weigh the evidence” to an expert witness rather than
making independent findings) (citing DePasquale, 181 Ariz. at 336).
¶11 Here, the family court explicitly adopted some of the findings
from the original decree and a prior minute entry order by reference. The
court also detailed changes and additions to those findings. These
modifications demonstrate that the court did not merely thoughtlessly
recite the prior findings, but rather, exercised its independent judgment
after considering the facts. We find no error in the court’s process.
B. Sufficiency of Findings
¶12 Even absent a timely request for specific findings, the family
court is required to provide sufficient explanation to support its decision.
Hughes v. Hughes, 177 Ariz. 522, 525 (App. 1993). We find the court’s
findings and explanation lacking here.
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Decision of the Court
¶13 The family court found Husband was “dependent on
disability and social security” and now earns less income than Wife. These
explicit findings are facially inconsistent with the court’s minimal
modification of Husband’s monthly spousal maintenance obligation and its
implicit conclusion that Husband was capable of meeting both parties’
reasonable needs.
¶14 Nor do the remaining findings provide any obvious,
reasonable support for the court’s decision to reduce the award of spousal
maintenance by 12.5% when Husband’s income had decreased by more
than half and Wife’s income had increased. [IR 133 at 2-3] Wife concedes
error in the court’s finding that she has endured financial hardship by not
addressing the issue in her answering brief. See Stover v. Kesmar, 84 Ariz.
387, 388 (1958) (finding an unexcused failure to file an answering brief
concedes error on an otherwise debatable issue) (citations omitted). Indeed,
there is no evidence that Wife was borrowing money, seeking more
lucrative work, or withdrawing funds from retirement to meet her
expenses. To the contrary, Wife’s own Affidavit of Financial Information
showed her income, without maintenance, exceeded her expenses by
almost $7,000 per year and indicated a credit card balance of only $40.
¶15 Moreover, although the family court is directed to consider
“[t]he comparative financial resources of the spouses, including their
comparative earning abilities in the labor market,” which encompasses a
spouse’s voluntary reduction in income, A.R.S. § 25-319(B)(4), a spouse has
no obligation to preserve assets awarded as his sole and separate property
in a dissolution proceeding for the benefit of the former spouse, see A.R.S.
§ 25-319(B)(11) (directing the court to consider “[e]xcessive or abnormal
expenditures, destruction, concealment or fraudulent disposition of
community, joint tenancy and other property held in common”) (emphasis
added). Accordingly, the court’s findings suggesting that Wife needs
maintenance to meet her reasonable needs or that Husband managed his
separate property “unwisely” do not support the court’s modified
maintenance award.
¶16 The constellation of factors presented here does not provide
any obvious, reasonable basis for the ongoing award, and we have been
unable to supply the missing explanation through independent review. See
Hughes, 177 Ariz. at 525. In the absence of such an explanation, we cannot
determine whether the family court abused its discretion in modifying the
maintenance award. See id. For this reason, we remand.
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Decision of the Court
III. Mathematical Basis for Award
¶17 Husband argues, for the first time within his reply brief, that
the family court erred by failing to identify a mathematical basis for the
award. “Arguments raised for the first time in a reply brief are deemed
waived.” In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 25 n.5 (App. 2000)
(citing Muchesko v. Muchesko, 191 Ariz. 265, 268 (App. 1997)). Nonetheless,
to avoid any confusion that may arise upon remand, we note a specific
mathematical explanation for a spousal maintenance award is not required
here because no timely request for findings of fact and conclusions of law
was made. See Stein v. Stein, 238 Ariz. 548, 551, ¶¶ 9-12 (App. 2015).
CONCLUSION
¶18 The case is remanded to the family court for further
consideration consistent with this decision. On remand, the court may
choose to reconsider its findings or conclusions, or it may choose to
supplement its order in a manner that would subject it to meaningful
appellate review. We leave to the court’s discretion whether the taking of
additional evidence or further briefing would be necessary or helpful.
¶19 Both parties request an award of attorneys’ fees incurred on
appeal pursuant to A.R.S. § 25-324. In our discretion, we decline both
requests. As the successful party, however, Husband is awarded his costs
incurred on appeal pursuant to A.R.S. § 12-341 upon compliance with
ARCAP 21(b).
AMY M. WOOD • Clerk of the Court
FILED: AA
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