Fuller v. Fuller ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
STEPHEN R. FULLER, Petitioner/Appellee,
v.
ANGELA D. FULLER, Respondent/Appellant.
No. 1 CA-CV 15-0680 FC
FILED 8-23-2016
Appeal from the Superior Court in Maricopa County
No. FN2015-001100
The Honorable Dewain D. Fox, Judge
AFFIRMED
COUNSEL
Lincoln & Wenk PLLC, Goodyear
By Michael Lincoln, Russell F. Wenk
Counsel for Respondent/Appellant
Stephen R. Fuller, Surprise
Appellee
FULLER v. FULLER
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Kent E. Cattani joined.
P O R T L E Y, Judge:
¶1 Angela D. Fuller (“Wife”) appeals from the decree dissolving
her marriage to Stephen R. Fuller (“Husband”). She challenges the family
court’s denial of her request for spousal maintenance. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Wife and Husband were divorced in 2015 after fifteen years
of marriage. They agreed to a division of personal property, division of
debt, assignment of vehicles, and the sale of the marital home pursuant to
Arizona Rule of Family Law Procedure (“Rule”) 69. They also agreed that
an IRA account established prior to marriage was Wife’s sole and separate
property.
¶3 After an evidentiary hearing, the family court (1) ordered an
equal division of the proceeds from the sale of the home, (2) awarded Wife
two retirement accounts earned during the marriage,1 and (3) awarded
Wife a portion of her attorneys’ fees. The court denied Wife’s request for
spousal maintenance in the amount of $1200 per month for six years.
1 The court awarded Wife both retirement accounts after finding that
Husband had withdrawn significant funds from a community 401(k)
account, using them for non-community purposes.
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FULLER v. FULLER
Decision of the Court
¶4 Wife filed a notice of appeal only challenging the family
court’s spousal maintenance ruling.2 We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).3
DISCUSSION
¶5 We will not disturb a ruling on spousal maintenance absent
an abuse of discretion. See In re Marriage of Berger, 140 Ariz. 156, 167, 680
P.2d 1217, 1228 (App. 1983). We view the evidence in the light most
favorable to sustaining the ruling and will “affirm if there is any reasonable
evidence to support it.” Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9, 166 P.3d
929, 931 (App. 2007).
¶6 Section 25-319 governs an award of spousal maintenance and
provides:
In a proceeding for dissolution of marriage . . . the court may
grant a maintenance order for either spouse for any of the
following reasons if it finds that the spouse seeking
maintenance:
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 . . . .
3. Contributed to the educational opportunities of the other
spouse.
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.
2Husband did not file an answering brief. In the exercise of our discretion,
we decline to treat his failure as a confession of error. See Michaelson v. Garr,
234 Ariz. 542, 544 n.3, ¶ 4, 323 P.3d 1193, 1195 n.3 (App. 2014).
3 We cite the current version of applicable statutes unless otherwise stated.
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FULLER v. FULLER
Decision of the Court
A.R.S. § 25-319(A). An award of spousal maintenance is appropriate if a
spouse meets any of the four grounds enumerated in the statute. See Boyle
v. Boyle, 231 Ariz. 63, 65, ¶ 9, 290 P.3d 456, 458 (App. 2012).
¶7 Wife argues the family court abused its discretion in denying
her request because “the indisputable evidence at trial demonstrated that
she qualified for spousal maintenance as set forth in three (3) of the four (4)
grounds outlined in A.R.S. § 25-319(A).”4
I. Wife’s Property
¶8 Wife argues that she “lacks sufficient property to provide for
her reasonable needs.” See A.R.S. § 25-319(A)(1).
¶9 The decree awarded Wife her sole and separate retirement
account, valued at approximately $159,000. She was also awarded two
retirement accounts, with a combined value between $25,000 and $28,000.
In addition, the record reflects that Wife retained $10,000 to $11,000 of
equity in her vehicle, and will receive $15,000 to $20,000 of equity from the
sale of the marital home. Moreover, and as discussed below, she is
employed and earns a salary of $47,000 per year. As a result, the evidence
supports the ruling because Wife has sufficient property to provide for her
reasonable needs.5
II. Wife’s Employment
¶10 Wife also argues that she “is unable to be self-sufficient
through appropriate employment or lacks earning ability in the labor
market adequate to be self-sufficient.” See A.R.S. § 25-319(A)(2). The
evidence belies the argument.
¶11 Wife worked throughout the marriage. At the time of
dissolution, she was employed as a human resources systems and
employment coordinator by a school district earning $47,000 per year. The
4 Wife does not argue that she “[c]ontributed to the educational
opportunities” of Husband. A.R.S. § 25-319(A)(3).
5 Although the family court did not make separate findings as to each of the
three factors, we infer from the decree “the findings necessary to sustain it
if such additional findings do not conflict with express findings and are
reasonably supported by the evidence.” Thomas v. Thomas, 142 Ariz. 386,
390, 690 P.2d 105, 109 (App. 1984) (citation omitted).
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FULLER v. FULLER
Decision of the Court
evidence thus supports the court’s ruling regarding Wife’s ability to be self-
sufficient.
III. Wife’s Self-Sufficiency
¶12 Finally, Wife argues that “[t]he marriage of the parties was of
long duration and [Wife] is of an age (53) that may preclude the possibility
of gaining employment adequate to be self-sufficient.” See A.R.S. § 25-
319(A)(4).
¶13 The parties were married for fifteen years. She worked
during the marriage, and, as indicated above, held a stable job earning
$47,000 per year. Consequently, the family court did not abuse its
discretion by denying her request for spousal maintenance.
IV. Fees on Appeal
¶14 Finally, Wife requests attorney’s fees on appeal pursuant to
A.R.S. § 25-324, which authorizes a court to award fees and expenses after
considering the financial resources of the parties and the reasonableness of
their positions. In our discretion, we deny her request for attorney’s fees
on appeal, but grant her request for costs on appeal upon compliance with
ARCAP 21.
CONCLUSION
¶15 Based on the foregoing, we affirm the family court’s ruling
denying Wife’s request for spousal maintenance.
Amy M. Wood • Clerk of the court
FILED: AA
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