Gazeley v. Larsen-Gazeley ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
PAUL JOHN GAZELEY, Petitioner/Appellee,
v.
DENA CHRISTINE LARSEN-GAZELEY, Respondent/Appellant.
No. 1 CA-CV 13-0468
FILED 07-29-2014
Appeal from the Superior Court in Maricopa County
No. FC2011-094127
The Honorable Boyd W. Dunn, Judge
AFFIRMED
COUNSEL
Curry, Pearson & Wooten, PLC, Phoenix
By Kelly Mendoza
Counsel for Respondent/Appellant
Paul Gazeley, Gilbert
Petitioner/Appellee
GAZELEY v. LARSEN-GAZELEY
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Andrew W. Gould
joined.
P O R T L E Y, Judge:
¶1 Dena Christine Larsen-Gazeley (“Wife”) appeals the spousal
maintenance provision in the dissolution decree. She argues that the
family court awarded her insufficient spousal maintenance. She also
contends that the court erred by denying her claim for community waste
and her request for attorneys’ fees. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Paul John Gazeley (“Husband”) and Wife were married on
July 31, 1999, and have four minor children, born between 2001 and 2008.
After twelve years of marriage, Husband filed a petition for dissolution.
After a bench trial, the court divorced the parties and signed a divorce
decree that ordered: (1) Husband to pay Wife $3000 per month in spousal
maintenance for fifty-four months; (2) Husband to pay monthly child
support of $1301.63, as well as the medical insurance premiums for the
children and seventy-five percent of the children’s medical and dental
expenses not covered by insurance; and (3) the division of the community
property between the parties.
¶3 Wife filed this appeal. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1). 1
DISCUSSION
I. Spousal Maintenance
¶4 Wife contends that the spousal maintenance award is
insufficient to meet her basic living expenses. She argues that the court
failed to adequately consider and weigh three statutory factors: the
1We cite the current version of all applicable statutes, unless otherwise
noted.
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standard of living during the marriage, Husband’s ability to meet his
needs while meeting her needs, and Wife’s ability to meet her own needs
independently. See A.R.S. § 25-319(B)(1), (4), and (9).
¶5 The purpose of a spousal maintenance award is “to achieve
independence for both parties and to require an effort toward
independence by the party requesting maintenance.” Schroeder v.
Schroeder, 161 Ariz. 316, 321, 778 P.2d 1212, 1217 (1989). In determining
the appropriate amount and duration of spousal maintenance, the family
court must consider all relevant statutory factors in § 25-319(B). We thus
review an award of spousal maintenance for an abuse of discretion.
Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9, 166 P.3d 929, 931 (App. 2007).
We view the evidence in the light most favorable to affirming the court’s
decision and will affirm if any reasonable evidence supports its decision.
Id. We will not substitute our opinion for that of the family court unless
there has been a clear abuse of discretion. Deatherage v. Deatherage, 140
Ariz. 317, 319, 681 P.2d 469, 471 (App. 1984).
A.
¶6 Wife argues that the family court did not adequately
consider the marital standard of living and, as a result, awarded her less
than her living expenses. We disagree.
¶7 In making a spousal maintenance decision, § 25-319(B)(1)
requires the court to consider the standard of living during the marriage.
The standard of living factor, however, is only one of thirteen factors the
court must consider in light of the circumstances presented when
determining the amount and duration of an award of spousal
maintenance. A.R.S. § 25-319(B). The statute does not give priority to this
factor over any other, nor does it guarantee any particular standard of
living to either spouse. To the contrary, and as we have said on another
occasion, “divorce often requires a lesser standard of living for both
parties.” Rainwater v. Rainwater, 177 Ariz. 500, 504, 869 P.2d 176, 180 (App.
1993).
¶8 Wife contends that the court failed to consider that Husband
earned more than $170,000 annually, they enjoyed a comfortable lifestyle,
and they accumulated no debt. The court, however, made specific
findings about the parties’ standard of living, which are consistent with
Wife’s description. As a result, despite her argument that the findings
required the court to award her a higher amount of spousal maintenance,
the family court had to decide how the martial standard of living was to
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be weighed. Kelsey v. Kelsey, 186 Ariz. 49, 53, 918 P.2d 1067, 1071 (App.
1996). Accordingly, we do not reweigh the findings and do not find that
the court abused its discretion by not considering the standard of living as
the sole or primary factor in making its spousal maintenance award.
B.
¶9 Wife next contends that the monthly spousal maintenance
award was less than what she claimed as her reasonable living expenses.
Wife claimed living expenses for herself and the children of $5653, but the
court only awarded her spousal maintenance and child support totaling
$4301.63. However, because the goal of spousal support is “to achieve
independence for both parties and to require an effort toward
independence by the party requesting maintenance,” Schroeder, 161 Ariz.
at 321, 778 P.2d at 1217, the family court did not abuse its discretion by
awarding Wife less spousal maintenance than she claimed for living
expenses. The fact that she may have to make an effort towards her
independence is not an abuse of discretion.
C.
¶10 Wife also argues that the court did not properly consider
Husband’s ability to meet his and her financial needs in calculating the
maintenance award. See A.R.S. § 25-319(B)(4). She contends that the court
did not consider the quarterly bonuses Husband regularly earned, which
brought his annual salary to approximately $196,000. The decree,
however, clearly recognized that Husband received bonuses by noting
that Husband earned “$195,108 annually or $16,259 gross income per
month.” Because it is clear that the court considered Husband’s earnings,
including his bonuses, and the “evidence is presumed to have been fully
considered by the court prior to issuing its decision,” Fuentes v. Fuentes,
209 Ariz. 51, 55, ¶ 18, 97 P.3d 876, 880 (App. 2004), we find no error.
D.
¶11 Wife further argues that the court erred in finding that
Husband’s monthly expenses totaled approximately $7000 per month.
Although the source of the $7000 figure is unclear, because “[w]e presume
that evidence in the record supports the court’s decision even if it is not
specifically detailed in the minute entry,” we find no error. See Cullum v.
Cullum, 215 Ariz. 352, 354, ¶ 11, 160 P.3d 231, 233 (App. 2007).
¶12 Here, Husband asserted household and child care expenses
of $8706 per month in his pretrial position statement. In his affidavit of
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financial information, he claimed household costs and expenses related to
the children of $9565 per month. The court found Husband’s expenses to
“total approximately $7,000.00 per month,” a figure less than he claimed.
Wife now objects to Husband’s inclusion of expenses for child care,
expenses paid by Husband’s girlfriend, and the one-time debt owed to
their daughter’s therapist. However, because the family court was in the
best position to weigh the evidence and resolve any conflict between the
evidence, the court did not abuse its discretion by considering all of the
information and then determining an amount for Husband’s living
expenses. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53
P.3d 203, 205 (App. 2002).
¶13 Wife also argues that the $4000 in temporary family support
Husband was ordered to pay pending trial should not have been included
in a calculation of Husband’s monthly expenses for his needs. The
spousal maintenance statute, however, requires the court to consider the
ability of the spouse from whom maintenance is sought to meet his needs
“while meeting those of the spouse seeking maintenance.” A.R.S. §
25-319(B)(4). Under the statute, the amount to be paid to the spouse
seeking maintenance must be accounted for in determining whether the
spouse providing the maintenance can meet his or her own needs. Thus,
the amount Husband paid as support, temporary or after the entry of the
decree, was properly considered by the family court. Accordingly, we
find no error.
E.
¶14 Wife argues that the court failed to consider her ability to
meet her own needs independently. We disagree.
¶15 Wife argues that she is unable to earn an income to
independently support her needs and that if she were to re-enter the
workforce, her child care expenses would outweigh the benefit of any
potential income. Here, the court agreed that Wife could not currently
earn sufficient income to meet her needs and awarded her spousal
maintenance. The court, however, did not find that Wife was not
employable. The record demonstrates that Wife was forty-two years old
at trial, had a college degree, and earned approximately $5500 per month
as a spa director before having children. Although Wife may not be able
to earn her former salary without some additional training, the record
does not support a conclusion that she is incapable of earning any income.
Rather, the record suggests that Wife is capable of working to contribute
to her own maintenance.
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¶16 In addition, the court knew that the youngest child had one
more year of preschool, and then all of the children would be in school.
With all the children in school, Wife would have some flexibility to
balance employment with child care services or other arrangements she
believed necessary. According, we find that the court did not abuse its
discretion in making the spousal maintenance award.
II. Community Waste
¶17 Wife also argues that the court wrongly denied her claim for
community waste. We review the court’s ruling for an abuse of
discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 346-47, ¶¶ 5, 8, 972 P.2d
676, 679-80 (App. 1998). We view the evidence in the light most favorable
to upholding the court’s ruling. Id. at 346, ¶ 5, 972 P.2d at 679. The court
may consider excessive or abnormal expenditures by a spouse when
dividing community property. A.R.S. § 25-318(C). The spouse alleging
abnormal or excessive expenditures by the other spouse has the burden of
making a prima facie showing of waste, after which the spouse accused of
waste must present evidence to rebut the accusation. Gutierrez, 193 Ariz.
at 346-47, ¶ 7, 972 P.2d at 679-80.
¶18 At trial, Wife presented an exhibit consisting of a
compilation of expenditures from a checking account, including ATM
withdrawals, a PayPal account, and several credit cards. The exhibit
showed numerous transactions occurring between June 2010 and March
2012, for a total amount of $92,559.04. Wife testified that she and
Husband had previously put all expenses on credit cards and then paid
those cards off every month. She testified that she would not have
withdrawn funds because she used credit cards and did not keep cash.
She further testified that the charges listed were for places and restaurants
she had never visited and for items she never received. She asserted that,
because Husband was having an affair during the period the charges were
made, the list of expenditures documented the affair.
¶19 Husband denied he committed any waste and testified that
some of the expenditures Wife claimed to be waste were expenses for
taking a client to lunch, Wife’s Lasik surgery, a Christmas present for
Wife, and business travel. Husband asserted that the expenditures were
similar to expenditures in prior years and showed typical spending habits.
Husband also produced evidence that some of the charges Wife claimed
as unexplained waste were business expenses while traveling as reflected
in expense reports. Additionally, he produced evidence that several
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checks listed by Wife were written to and cashed by Wife and another
expenditure was for payment of the property taxes on the marital home.
¶20 Wife claims that this case is similar to that in Gutierrez, 193
Ariz. 343, 972 P.2d 676. There, husband withdrew $62,000 from a
community retirement account, transferred the funds into a separate
account in his own name, and then spent the money. Id. at 346, ¶ 3, 972
P.2d at 679. Husband claimed the withdrawal was with wife’s consent
and that they both spent the funds; wife claimed it was entirely within
husband’s control. Id. The trial court believed wife. Id. at ¶ 4. The
appellate court affirmed that wife had made a prima facie showing of
abnormal or excessive expenditures because husband had withdrawn a
large sum of money from a retirement account without wife’s knowledge
and spent it in a manner unknown to her. Id. at ¶ 6.
¶21 Unlike Gutierrez, Wife does not assert that Husband has
made one large withdrawal from a retirement or other special account,
which could represent an abnormal transaction. Wife instead complains
of numerous transactions using the couple’s checking account and credit
cards. The number of the transactions, however, did not suggest to the
court that the transactions were anything other than normal living
expenditures. Wife's inability to identify the nature of the transactions
does not establish that the transactions constituted waste; her claim, given
the evidence, is speculative. She did not demonstrate that the use of the
credit cards or the checking account was abnormal or excessive. The
court, as a result, did not abuse its discretion in concluding that Wife did
not make a prima facie case for waste.
III. Attorneys’ Fees
¶22 Wife also argues that the court erred in denying her request
for attorneys’ fees. The court has discretion to award attorneys’ fees in a
divorce action under A.R.S. § 25-324(A) and we will not disturb the
decision absent an abuse of that discretion. MacMillan v. Schwartz, 226
Ariz. 584, 592, ¶ 36, 250 P.3d 1213, 1221 (App. 2011). In fact, “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings, [the
court] may order a party to pay a reasonable amount” of attorneys’ fees to
the other. A.R.S. § 25-324(A). The objective “is to provide a remedy for
the party least able to pay.” Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521,
524, ¶ 13, 169 P.3d 111, 114 (App. 2007) (quoting In re Marriage of Zale, 193
Ariz. 246, 251, ¶ 20, 972 P.2d 230, 235 (1999)) (internal quotation marks
omitted).
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¶23 Wife argues that the court erred by determining that there
was no substantial disparity in financial resources between the parties. To
be eligible for an award of fees based on financial resources, the party
seeking the award must establish some level of financial disparity, but
need not establish an inability to pay. Magee v. Magee, 206 Ariz. 589, 591,
¶ 12, 81 P.3d 1048, 1050 (App. 2004). Establishing a disparity makes one
eligible for an award, but the court is allowed to exercise its discretion to
determine if an award is appropriate. Id. at 593, ¶ 18, 81 P.3d at 1052.
¶24 Wife requested fees and costs in the amount of $65,232.86.
She argues that a disparity existed in the financial resources of the parties
based on Husband’s income, Wife’s inability to earn an income similar to
her prior earnings, and investments and savings in Husband’s name alone
to which Wife had no access.
¶25 The dissolution decree divided the community investment
and other financial accounts equally, and neither party identifies
significant financial resources available to one party that are not available
to the other. The only disparity is the monthly incomes. Husband earned
$16,259 per month, while Wife received $4301.63 per month from spousal
maintenance and child support.
¶26 Although Wife argues that the court erred by generally
finding that neither party acted more unreasonably than the other during
the course of the litigation, she did not ask the court to make specific
findings about which positions the court found to be unreasonable. See
A.R.S. § 25-324(A). Because neither party requested findings, we assume
that the court found every fact necessary to support its decision and affirm
if any reasonable construction of the evidence justifies the decision. See
Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13, 29 P.3d 870, 873 (App. 2001).
The court is in the best position to observe and assess the conduct of the
parties. MacMillan, 226 Ariz. at 592, ¶ 38, 250 P.3d at 1221.
¶27 Wife argues that Husband acted unreasonably, listing the
following examples: (1) he refused to timely disclose financial
information; (2) he made unfair accusations against Wife directly and
through counsel; (3) he refused to cooperate in the appointment of a
therapeutic interventionist for their daughter; (4) he refused to facilitate
Wife’s ability to negotiate with the lender to secure the marital residence
by providing a power of attorney since the loan was in Husband’s name
alone; (5) he refused to effectively co-parent; and (6) he filed numerous
frivolous motions.
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Decision of the Court
¶28 Although Wife lists the examples, the family court had to
consider the behavior of both parties during the course of the litigation.
Even though neither party asked the court to make findings, the record
supports the court’s determination that Wife also acted unreasonably. For
example, Wife refused to execute a release for her medical records even
though she acknowledged that the information was relevant to parenting
and custody matters. Additionally, she testified that she had no plans to
work outside the home until her youngest child turned twelve years old,
approximately nine years in the future. And, instead of seeking retraining
in her former occupation or a related one, she planned to obtain a master’s
degree and then a doctorate in psychology before returning to the
workforce.
¶29 The record contains evidence to justify the court’s finding
that both parties were unreasonable. Although we have found that the
court erred in finding that there was no disparity of income, such a
disparity does not itself entitle a party to an award of fees, but allows the
court to exercise its discretion. We will not reweigh the family court’s
decision. Accordingly, we find no abuse of discretion in the court’s
denying Wife’s request for attorneys’ fees.
¶30 Wife has requested an award of attorneys’ fees on appeal.
Because she has not prevailed on appeal, and in our discretion, we deny
the request.
CONCLUSION
¶31 The family court’s decision is affirmed.
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