Aguilar v. Aguilar ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Matter of:
GLORIA AGUILAR, Petitioner/Appellant,
v.
JUAN AGUILAR, JR., Respondent/Appellee.
No. 1 CA-CV 21-0052 FC
FILED 10-14-2021
Appeal from the Superior Court in Maricopa County
No. FC2019-004813
The Honorable Monica Edelstein, Judge
REVERSED AND REMANDED IN PART; AFFIRMED IN PART
COUNSEL
Alongi Law Firm PLLC, Phoenix
By Thomas P. Alongi
Counsel for Petitioner/Appellant
The Sobampo Law Firm PLLC, Phoenix
By F. Javier Sobampo
Counsel for Respondent/Appellee
AGUILAR v. AGUILAR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
B A I L E Y, Judge:
¶1 Gloria Aguilar (“Wife”) appeals several rulings in the decree
dissolving her marriage to Juan Aguilar, Jr., (“Husband”). For the
following reasons, we reverse the denial of spousal maintenance, the
allocation of Husband’s MBMINC retirement account and the $5,500
student loan debt, and remand for further proceedings. In all other
respects, we affirm the decree.
FACTS AND PROCEDURAL HISTORY
¶2 The parties were married in 2001, and Wife petitioned for
dissolution in 2019. The parties appeared pro per for the one-hour trial. In
the decree, the court found that Wife did not qualify for spousal
maintenance and divided the community property equally, implicitly
rejecting Wife’s claim that Husband’s excessive gambling constituted
waste. The court awarded each party the bank accounts in their name but
awarded Husband 100% of all three retirement accounts. The court ordered
the parties to sell the marital home and divide the proceeds equally. The
court also found that both parties were responsible for the nearly $17,000
student loan debt used for their adult daughter’s college expenses, but the
second $5,500 student loan was Wife’s separate debt.
¶3 Wife moved to amend the judgment under Arizona Rule of
Family Law Procedure (“Rule”) 83. The superior court denied the motion
without comment, and Wife timely appealed. We have jurisdiction under
A.R.S. § 12-2101(A)(1) and (5)(a).
DISCUSSION
I. Spousal Maintenance
¶4 Wife argues the superior court erred by finding that she was
disabled and could not work but did not qualify for spousal maintenance
under A.R.S. § 25-319(A). We review a ruling on spousal maintenance for
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an abuse of discretion and will affirm if reasonable evidence supports it.
Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14 (App. 1998).
¶5 When considering a request for spousal maintenance, the
superior court must first determine whether the spouse is eligible for an
award. See A.R.S. § 25-319(A); see also In re Marriage of Cotter, 245 Ariz. 82,
85, ¶ 7 (App. 2018). In making this threshold eligibility determination, “the
court considers only the circumstances of the requesting spouse.” Cotter,
245 Ariz. at 87, ¶ 7. If the court finds the requesting spouse is eligible for
spousal maintenance, it then determines the amount and duration of any
award. Id.; see also A.R.S. § 25-319(B).
¶6 The superior court considers five factors when determining
whether a spouse is eligible for spousal maintenance. See A.R.S. § 25-
319(A). A spouse is eligible for an award if any one of the five factors is
present. See Gutierrez, 193 Ariz. at 348, ¶ 17; A.R.S. § 25-319(A). Under §
25-319(A)(2), a spouse qualifies for spousal maintenance if they are “unable
to be self-sufficient through appropriate employment . . . or lack[] earning
ability in the labor market adequate to be self-sufficient.” The court found
that Wife was unable to work and was receiving disability benefits.
Although Husband now disputes the extent of Wife’s disability, he did not
raise this argument at trial. Therefore, it is waived. See Noriega v. Town of
Miami, 243 Ariz. 320, 326, ¶ 27 (App. 2017) (generally, arguments not raised
below are considered waived). Husband’s argument also contradicts the
court’s express finding that Wife is unable to work. This finding entitles
Wife to spousal maintenance. See A.R.S. § 25-319(A)(2); Gutierrez, 193 Ariz.
at 348, ¶ 17.
¶7 The superior court’s finding that Wife qualified for “multiple
public assistance programs” does not establish that she is able to be self-
sufficient for purposes of § 25-319(A)(2). The statute directs the court to
consider whether a spouse can be self-sufficient through “appropriate
employment” or “earning ability in the labor market[,]” not public
assistance. A.R.S. § 25-319(A)(2). Although the financial resources
available to Wife, including public assistance, may be considered in
determining the amount of any award, those resources do not necessarily
preclude a finding of eligibility for maintenance. See A.R.S. § 25-319(B)(9)
(court shall consider “[t]he financial resources of the party seeking
maintenance, including marital property apportioned to that spouse, and
that spouse’s ability to meet that spouse’s own needs independently.”).
¶8 Contrary to Husband’s contention, his lack of income and
financial resources have no bearing on whether Wife qualifies for spousal
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maintenance under § 25-319(A). See Cotter, 245 Ariz. at 85, ¶ 7. That
evidence, like public assistance, is relevant when considering the amount
and duration of any award. See A.R.S. § 25-319(B)(4) (“The ability of the
spouse from whom maintenance is sought to meet that spouse’s needs
while meeting those of the spouse seeking maintenance.”), and (5) (“The
comparative financial resources of the spouses, including their comparative
earning abilities in the labor market.”). Because Wife qualified for spousal
maintenance under § 25-319(A)(2), we reverse the denial of spousal
maintenance and remand for the court to determine the amount and
duration of any award.
II. Husband’s Retirement Accounts
¶9 The superior court found that an equal division of community
property was equitable. However, the court awarded Husband 100% of the
three retirement accounts in his name with no offset or equalization
payment to Wife. Wife argues this was error. We review the allocation of
community property for an abuse of discretion, but the classification of
property as separate or community is a question of law we review de novo.
Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523, ¶ 4 (App. 2007).
¶10 It is unclear why the superior court awarded the retirement
accounts to Husband with no offset to Wife. Because neither party
requested findings of fact or conclusions of law under Rule 82, we
“presume that the [superior] court found every fact necessary to support
the judgment.” Berryhill v. Moore, 180 Ariz. 77, 82 (App. 1994). But we only
infer findings of fact and conclusions of law that are reasonably supported
by the evidence and do not conflict with any express findings. Johnson v.
Elson, 192 Ariz. 486, 489, ¶ 11 (App. 1998).
¶11 Husband had an Arizona state employee retirement account
but spent those funds on living expenses while he was unemployed
between September 2019 and December 2020. Husband contributed $1,270
to a retirement account while working at Southwest Key, but he no longer
had access to those funds for reasons that are unclear from the record.
Husband also contributed $1,177 to a third retirement account while
working part-time at MBMINC.
¶12 The parties seem to agree that Husband’s state retirement
account was community property and that he used those funds to pay
living expenses such as the mortgage and homeowner association dues on
the community home. Wife argues that even though Husband used these
community funds for a community purpose, she is entitled to one-half of
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those funds. We disagree. Husband spent these community funds to
preserve a community asset (the home). This is allowed by statute and does
not constitute waste. Compare A.R.S. § 25-315(A)(1)(a) (parties may
continue to use community property to provide for the necessities of life)
with § 25-318(C) (in allocating community property, courts may consider a
spouse’s excessive or abnormal expenditures).
¶13 To the extent that Wife alleges that Husband used those funds
for an improper purpose, she failed to make a prima facie showing that he
wasted the funds in the state retirement account. See Gutierrez, 193 Ariz. at
346, ¶ 7 (“the spouse alleging abnormal or excessive expenditures by the
other spouse has the burden of making a prima facie showing of waste.”).
Thus, Wife was not entitled to an offset for her share of the now nonexistent
state retirement account.
¶14 Husband argues that the Southwest Key retirement account
is his separate property because he started working there in December 2019,
after the petition for dissolution was served. By statute, property acquired
after the date a petition for dissolution is served is the separate property of
the spouse acquiring it. See A.R.S. §§ 25-211(A)(2); 25-213(B). The date of
service is unclear. But Wife concedes that it is appropriate to consider the
community terminated as of the date Husband responded to the petition,
October 31, 2019. Based on Husband’s testimony, he began working at
Southwest Key after the community terminated, so that retirement account
is his separate property. We affirm the ruling awarding Husband 100% of
the Southwest Key retirement account.
¶15 The record, however, does not show when Husband worked
at MBMINC and contributed to that retirement account. If he worked at
MBMINC and contributed to that retirement account during the marriage,
those funds are community property. See Johnson v. Johnson, 131 Ariz. 38,
41 (1981) (retirement benefits acquired during the marriage are community
property subject to equitable division upon dissolution). Because no
evidence supports the finding that this account was Husband’s separate
property, we reverse that ruling and remand for the court to reconsider the
MBMINC retirement account.
III. The Student Loans
¶16 During the marriage, the parties took out two student loans
for their adult daughter’s college expenses. The superior court found that
the $16,958.77 student loan was a community debt and ordered each party
to pay half. In contrast, the court found the $5,500 student loan was Wife’s
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separate debt. Wife argues that both loans were community debts. We
review the allocation of community debts for an abuse of discretion, but the
classification of the debt as separate or community is a question of law we
review de novo. See Bell-Kilbourn, 216 Ariz. at 523, ¶ 4.
¶17 The superior court found the $5,500 student loan was Wife’s
separate debt because it was in her name alone and Husband was unaware
of it. These facts do not establish that the loan was Wife’s separate debt. A
debt incurred during marriage for the benefit of the community is
presumed to be a community debt. Johnson, 131 Ariz. at 44. Husband had
the burden of overcoming this presumption by clear and convincing
evidence. Lorenz-Auxier Fin. Grp. v. Bidewell, 160 Ariz. 218, 220 (App. 1989).
¶18 Husband did not show how this debt, unlike the larger
student loan, was not a community obligation. Additionally, either spouse
can bind the community except in the case of a guaranty or other exceptions
not applicable here. See A.R.S. §§ 25-214(C); -215(D). Husband did not
show that Wife signed the loan as a guarantor. See A.R.S. § 25-214(C)(2).
Husband also waived his contention that the loan did not benefit the
community by raising it for the first time on appeal. See Noriega, 243 Ariz.
at 326, ¶ 27 (arguments not raised below are generally treated as waived).
Thus, the court erred as a matter of law in characterizing this loan as Wife’s
separate debt. It was a community obligation. Accordingly, we reverse the
ruling that the $5,500 student loan was Wife’s separate debt and remand for
reconsideration.
IV. The Marital Home
¶19 The superior court ordered the parties to sell the marital home
and divide the remaining equity equally. Wife asked to keep the marital
home and pay Husband his share of the equity. The court has broad
discretion in allocating community property, and we will not disturb that
allocation absent an abuse of discretion. Boncoskey v. Boncoskey, 216 Ariz.
448, 451, ¶ 13 (App. 2007). In reviewing the court’s allocation, we view the
evidence in the light most favorable to upholding the decree and will affirm
if reasonable evidence supports it. Id.¶20 Wife argues the superior court abused its discretion by
ordering the sale because she could have qualified for a loan that would
have allowed her to buy out Husband’s interest in the marital home and
Husband did not oppose this. Wife, however, had no significant assets and
her only source of income was $960 a month in disability benefits, which
she conceded would not cover the mortgage and her living expenses. In
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fact, the mortgage and homeowner association dues totaled $718 per
month, and the utilities were over $300 per month. Despite Husband’s
apparent agreement that Wife could buy out his interest in the marital
home, the parties did not reach a binding agreement to that effect under
Rule 69. Regardless, the court need not accept an agreement that it finds
unfair after it considers the economic circumstances of the parties. See
A.R.S. § 25-317(B). The court did not abuse its discretion by ordering the
sale of the marital home given Wife’s limited financial resources. We affirm
the order to sell the marital home and divide the equity equally.
V. Waste of Community Property
¶21 Wife contends the superior court erred by rejecting her
allegation that Husband’s gambling constituted waste of community
property. The court may consider a spouse’s excessive or abnormal
expenditures or destruction of community property when apportioning
community property. See A.R.S. § 25-318(C); Gutierrez, 193 Ariz. at 346, ¶ 6.
Although the decree did not address Wife’s waste allegation specifically, it
implicitly rejected this argument when it found that an equal division of
community property was equitable.
¶22 Because neither party requested findings of fact or
conclusions of law, we presume the court found every fact necessary to
support the decree. Berryhill, 180 Ariz. at 82. The evidence showed that
Husband had a significant gambling habit. Wife also gambled during the
marriage—perhaps less than Husband, but she too gambled regularly. On
appeal, we do not reweigh the evidence and affirm the superior court’s
ruling if substantial evidence supports it. Hurd v. Hurd, 223 Ariz. 48, 52, ¶
16 (App. 2009). Given the evidence that both parties gambled regularly, we
cannot say the court abused its discretion by implicitly rejecting Wife’s
claim for waste.
VI. Attorneys’ Fees and Costs on Appeal
¶23 Both parties request attorneys’ fees and costs on appeal under
A.R.S. § 25-324(A). In the exercise of our discretion, we order each party to
pay their own attorneys’ fees. Neither party is entitled to an award of costs
under A.R.S. § 12-342.
CONCLUSION
¶24 We reverse the rulings in the decree finding that Wife was not
eligible for spousal maintenance, awarding Husband 100% of the MBMINC
retirement account, and finding the $5,500 student loan was Wife’s separate
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debt. We remand for further proceedings on these issues. In all other
respects, we affirm the decree.
AMY M. WOOD • Clerk of the Court
FILED: AA
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