Cohen v. Cohen ( 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NOTICE: NOT FOR PUBLICATION.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 Matter of:
TRACY L. COHEN, Petitioner/Appellee,
v.
JOSHUA D. COHEN, Respondent/Appellant.
No. 1 CA-CV 13-0297
FILED 07-22-2014
Appeal from the Superior Court in Maricopa County
No. FC2011-004097
The Honorable Pamela S. Gates, Judge
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
COUNSEL
Fromm Smith & Gadow, PC, Phoenix
By Stephen R. Smith and Jennifer G. Gadow
Counsel for Petitioner/Appellee
Burt & Feldman, Scottsdale
By Elizabeth L. Feldman
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Lawrence F. Winthrop joined.
COHEN v. COHEN
Decision of the Court
G E M M I L L, Judge:
¶1 Respondent/Appellant Joshua D. Cohen (Father) appeals
that portion of the family court’s decree of dissolution awarding
Petitioner/Appellee Tracy L. Cohen (Mother) spousal maintenance and
attorneys’ fees. We affirm the family court’s determination that Mother is
entitled to spousal maintenance under Arizona Revised Statutes (A.R.S.)
section 25-319(A), but we remand for a new determination, in accordance
with A.R.S. § 25-319(B), of the amount of spousal maintenance. We also
affirm the family court’s award of attorneys’ fees to Mother.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to upholding
the court’s decree. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d
676, 679 (App. 1998).
¶3 The parties were married in September 1998. During the
first six years of the marriage, Mother worked as an attorney, making
approximately $120,000 per year. After Father completed his medical
training and the parties’ first child was born, Mother ceased employment
outside the home to become a stay-at-home mother.
¶4 In June 2011, Mother petitioned for dissolution. As relevant,
she asked the court to award her $18,000 per month as spousal
maintenance for a period of six years. Father opposed the request,
arguing Mother could be self-sufficient through employment and would
receive sufficient property from the division of the community assets to
provide for her reasonable needs. After conducting an evidentiary
hearing, the court awarded Mother spousal maintenance of $17,000 per
month for a period of four years. The court also ordered Father to pay
$10,000 toward Mother’s attorneys’ fees. The family court denied Father’s
motion for new trial, and he timely appealed.
¶5 We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) &
(5)(a). 1
1 Husband’s notice of appeal only identifies the order denying the motion
for new trial. Mother, however, received adequate notice that Father
intended to appeal both the decree and the order, and she has neither
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Decision of the Court
ANALYSIS
¶6 Father argues the family court erred in determining Mother
is entitled to an award of spousal maintenance and by awarding her
$17,000 per month. He also contends the court erred by ordering him to
pay $10,000 toward Mother’s attorneys’ fees.
I. Spousal Maintenance
¶7 We review the family court’s award of spousal maintenance
for an abuse of discretion and will affirm the judgment if there is
reasonable evidence to support it. Cullum v. Cullum, 215 Ariz. 352, 354, ¶
9, 160 P.3d 231, 233 (App. 2007); Gutierrez, 193 Ariz. at 348, ¶ 14, 972 P.2d
at 681.
A. Entitlement to Spousal Maintenance
¶8 As a threshold matter, A.R.S. § 25-319(A) provides that the
family court may award spousal maintenance if it finds that a spouse:
1. Lacks sufficient property, including property
apportioned to the spouse, to provide for that spouse’s
reasonable needs.
2. Is unable to be self-sufficient through appropriate
employment or is the custodian of a child whose age or
condition is such that the custodian should not be required
to seek employment outside the home or lacks earning
ability in the labor market adequate to be self-sufficient.
3. Contributed to the educational opportunities of the
other spouse.
objected to nor argued she is prejudiced by the notice of appeal. Under
these circumstances, we determine Father substantially complied with
Arizona Rule of Civil Procedure 8(c). See Hill v. City of Phoenix, 193 Ariz.
570, 572-73, ¶ 10, 975 P.2d 700, 702-03 (1999) (holding a defective notice of
appeal should be construed as sufficient so long as the defect has neither
misled nor prejudiced an opposing party); McKillip v. Smitty's Super Valu,
Inc., 190 Ariz. 61, 62, 945 P.2d 372, 373 (App. 1997) (stating court reviews
notices of appeal liberally, disregarding harmless technical errors in favor
of disposition on the merits).
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COHEN v. COHEN
Decision of the Court
4. Had a marriage of long duration and is of an age that
may preclude the possibility of gaining employment
adequate to be self-sufficient.
¶9 The family court found Mother was entitled to an award of
spousal maintenance because she lacks sufficient property to provide for
her reasonable needs. During trial, Mother testified that she worked as an
attorney for the first six years of her marriage while Father pursued
medical school. After the birth of parties’ first daughter, Mother stopped
working outside the home to concentrate on raising their children. The
family court found that, because of this decision, Mother is not currently
in a position to provide for her reasonable needs despite obtaining part-
time employment after dissolution. According to the court, Mother is
capable of re-entering the workforce and gaining experience to
independently meet her reasonable needs, but is not yet in a position to do
so because she lacks an Arizona bar license and the experience necessary
to re-enter the workforce.
¶10 In ruling that Mother was entitled to spousal maintenance,
the family court found that she lacks sufficient property to provide for her
reasonable needs, noting those needs must be “viewed from the vantage
point of the parties’ marriage.” It is also apparent that Mother contributed
to the educational opportunities of Father by providing the primary
financial support for the family while Father finished medical school and
post-graduate training.
¶11 Therefore, on this record, we find no abuse of discretion in
the trial court’s decision that Mother is entitled to an award of
maintenance.
B. Amount of Spousal Maintenance
¶12 The question of entitlement to spousal maintenance under §
25-319(A) is distinct from the determination of the amount of maintenance
under § 25-319(B). If the family court determines a spouse is entitled to an
award of spousal maintenance, it must then consider the thirteen factors
set forth in § 25-319(B) to determine the amount and duration of the
award. At trial, Mother explained that her monthly needs equaled
$21,956. Father argued that amount was unreasonable, noting that
Mother’s budget allocated $600 per month for her hair care, $1,000 for her
clothing expenses, and $1,000 for gifts. But Mother testified that these
amounts were typical for the family’s lifestyle for the past 7 years and the
family court awarded her $17,000 per month in maintenance.
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COHEN v. COHEN
Decision of the Court
¶13 On appeal, Father contends the family court erred in
awarding Mother $17,000 per month. We agree. In considering the
statutory factors relevant to the amount of spousal maintenance, the court
acknowledged the testimony of Mother’s expert that Mother needs
$21,956 per month but concluded that amount was “excessive.”
Nevertheless, when the court calculated the amount of Mother’s spousal
maintenance, it identified Mother’s needs as $21,956. Given this
seemingly conflicting information, we are uncertain what amount the
family court determined Mother needed for her reasonable monthly
needs. See Elliott v. Elliott, 165 Ariz. 128, 135, 796 P.2d 930, 937 (App.
1990) (appellate court may not infer additional findings necessary to
support the judgment if they are contradicted by the ruling). We agree
with the family court’s “excessive” characterization but conclude that the
court must determine Mother’s reasonable monthly needs and then decide
an appropriate amount of maintenance. And although the prior lifestyle
of the spouses should be taken into consideration, the law does not and
cannot guarantee every spouse the amount of maintenance necessary to
match the standard of living during the marriage. See Rainwater v.
Rainwater, 177 Ariz. 500, 504, 869 P.2d 176, 180 (App. 1993) (holding that
the party of lesser earning capacity will not necessarily receive spousal
support to maintain the standard of living achieved during the marriage).
For these reasons, we vacate the spousal maintenance award of $17,000
and remand for a new determination in accordance with A.R.S. § 25-
319(B).
II. Attorneys’ Fees
¶14 Finally, Father argues the family court erred by ordering him
to pay $10,000 of the attorneys’ fees Mother incurred in the dissolution
proceeding. He contends the court erred because Mother received
significant property in the dissolution and Father already contributed to
Mother’s attorneys’ fees when the parties paid their attorneys’ fees from
community funds. 2
2 Father asserts the court erred by requiring him to pay an “exorbitant
and unreasonable” amount toward Mother’s fees, noting that Mother’s
fees totaled more than twice the amount Father incurred. However,
Father did not present specific objections to the reasonableness of
Mother’s fees in the superior court and we therefore do not address his
argument. See Napier v. Bertram, 191 Ariz. 238, 239, ¶ 6, 954 P.2d 1389,
1390 (1998) (appellate court will not consider new arguments raised for
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¶15 In a dissolution case, the court may award fees “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings.” A.R.S.
§ 25-324(A). The trial court has broad discretion when awarding
attorneys’ fees and we will not disturb its award absent an abuse of
discretion. Gutierrez, 193 Ariz. at 351, ¶ 32, 972 P.2d at 684. The family
court’s decree reflects that it considered the relevant factors and Father
does not challenge its findings that both parties acted unreasonably
during the pendency of the dissolution and Father has superior financial
resources. The court’s observation that Mother was to receive a
“significant amount” of community property is not inconsistent with its
award of $10,000 toward Mother’s attorneys’ fees, her share of which
exceeded $27,000. We find no abuse of discretion. See MacMillan v.
Schwartz, 226 Ariz. 584, 592, ¶ 38, 250 P.3d 1213, 1221 (App. 2011)
(affirming partial award of attorneys’ fees to husband under A.R.S. § 25-
324 and stating trial court was in the best position to observe and assess
the conduct of the parties). Finally, because the family court’s award of
fees was based on the considerations set forth in § 25-324 and not the
outcome of the proceedings, our decision to vacate the spousal
maintenance amount under § 25-319(B) and remand for further
proceedings does not affect the validity of the family court’s award of fees
to Mother.
CONCLUSION
¶16 For the foregoing reasons, we vacate the family court’s
award of spousal maintenance and remand for further proceedings on
that issue consistent with this decision. We affirm the family court’s
award of attorneys’ fees to Mother.
¶17 Both parties request an award of attorneys’ fees on appeal
pursuant to A.R.S. § 25-324. In the exercise of our discretion, we deny
the first time on appeal); cf. Nolan v. Starlight Pines Homeowners Ass'n, 216
Ariz. 482, 491, ¶ 38, 167 P.3d 1277, 1286 (App. 2007) (discussing
discretionary award of fees under A.R.S. § 12-341.01 and stating that the
party opposing the fee award must demonstrate the impropriety or
unreasonableness of the requested fees; “It is not enough ... simply to
state, for example, that the hours claimed are excessive and the rates
submitted too high.”) (citation omitted).
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COHEN v. COHEN
Decision of the Court
both requests. Father is entitled to an award of taxable costs incurred on
appeal upon his compliance with Arizona Rule of Civil Appellate
Procedure 21.
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