Watson v. Watson ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DON WATSON, Petitioner/Appellant,
v.
MARCIA LYNN WATSON, Respondent/Appellee.
No. 1 CA-CV 21-0373 FC
FILED 3-24-2022
Appeal from the Superior Court in Maricopa County
No. FN2014-090069
The Honorable Adele Ponce, Judge
AFFIRMED
APPEARANCES
Scott L. Patterson, P.L.L.C., Tempe
By Scott L. Patterson
Counsel for Petitioner/Appellant
Marcia Watson, Mesa
Respondent/Appellee
WATSON v. WATSON
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.
W I L L I A M S, Judge:
¶1 Don Watson (“Husband”) appeals the superior court’s order
declining to modify or terminate his spousal maintenance obligation to
Marcia Watson (“Wife”). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In 2014, the parties ended their 38-year marriage by consent
decree. Husband agreed to pay Wife $2,000 per month in spousal
maintenance indefinitely, or “until the remarriage of Wife, the death of
either party, or until modified by agreement or further court order.” The
parties also agreed spousal maintenance “would be modifiable in
accordance with Arizona law” which would include, as relevant here,
modification in the event of “[a] substantial and continuing change in
Husband’s annual earnings,” and/or either party’s “retirement and/or
receipt of social security or other retirement benefits.”
¶3 In late 2015, Husband petitioned to modify his spousal
maintenance obligation, claiming his income had been substantially
reduced. Following an evidentiary hearing, the superior court found
Husband’s income had indeed reduced from $8,000 at the time of the
divorce to “approximately half” of that amount. Accordingly, the court
reduced Husband’s spousal maintenance obligation to $1,000 per month
(the amount he requested).
¶4 In 2020, Husband again petitioned to modify his spousal
maintenance obligation, this time asking the court to terminate the
obligation altogether. As evidence of a substantial and continuing change
of circumstances warranting modification, Husband informed that Wife
was now receiving social security benefits “believed to be in excess of
$1,000.00 per month,” and that he, too, was receiving social security
benefits. Husband also contended his current employment would end in a
few months and that given his age, prior incarceration, and the impact of
COVID-19, he would have difficulty finding work in the future.
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WATSON v. WATSON
Decision of the Court
¶5 After an evidentiary hearing, the superior court denied
Husband’s request, as well as Husband’s subsequent motion to
alter/amend the court’s order. This timely appeal followed. We have
jurisdiction under Article 6, Section 9, of the Arizona Constitution and
A.R.S. § 12-2101(A)(2).
DISCUSSION
¶6 Husband contends the superior court erred by failing to
terminate or modify the spousal maintenance award to Wife. Under A.R.S.
§ 25-327(A), a spousal maintenance award “may be modified or terminated
only on a showing of changed circumstances that are substantial and
continuing.” We review the superior court’s decision regarding the
existence of changed circumstances for an abuse of discretion. Nace v. Nace,
107 Ariz. 411, 413 (1971); Kelsey v. Kelsey, 186 Ariz. 49, 53 (App. 1996). We
will not set aside the superior court’s findings unless they are clearly
erroneous or unsupported by substantial evidence. In re Marriage of Berger,
140 Ariz. 156, 161 (App. 1983); Bobrow v. Bobrow, 241 Ariz. 592, 595-97,
¶¶ 11, 20 (App. 2017). The party seeking modification bears the burden of
proving a change in circumstances. Scott v. Scott, 121 Ariz. 492, 494 (1979).
¶7 In his affidavit of financial information, Husband attested he
is self-employed, earns $5,412 per month, and receives an additional $2,227
in social security benefits per month. At the evidentiary hearing, Husband
testified consistent with his affidavit but added that his monthly
employment income could be reduced to between $2,000 and $3,000 per
month, plus potential commissions.
¶8 In its under advisement ruling, the court found Husband’s
monthly income to be “over $10,000 per month.” In reaching this number,
the court included Husband’s (1) social security benefits, (2) his current
employment income of $5,412 per month, and (3) his estimated reduced
future employment income of $2,000 to $3,000 per month. Husband
unsuccessfully moved the court to reconsider, arguing the court erred in
calculating his income, and that Husband, too, erred in calculating his
self-employment income by providing his gross receipts without
adjustments for ordinary and necessary business expenses.
¶9 We agree with Husband that the court erred in finding
Husband’s income to be over $10,000 per month. Indeed, Husband testified
that were his employment income to be modified, as he anticipated, it
would reduce from $5,412 per month to between $2,000 and $3,000 per
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WATSON v. WATSON
Decision of the Court
month—not be increased by that amount as the superior court found. The
court’s error, however, was harmless.
¶10 When assessing whether a substantial and continuing change
has occurred, the court considers the latest order modifying the spousal
maintenance award. McClendon v. McClendon, 243 Ariz. 399, 401-02, ¶ 10
(App. 2017). In the 2016 order modifying Husband’s spousal maintenance
obligation, the court found Husband’s income to be approximately $4,000
per month. By the time of the evidentiary hearing in 2021, Husband’s
income, including his social security benefits, totaled significantly more
each month than what he was earning in 2016 (approximately $7,600 per
month). And, although Husband argues he misrepresented his income by
failing to account for adjustments to income, he provided the court no
evidence of any adjustments relevant to his current income. Moreover,
Husband’s “estimation of an expected, but as yet unrealized, decrease in
income is speculative evidence at best and is not sufficient to sustain a
finding of substantial changed circumstances.” See Scott, 121 Ariz. at 494.
Without more, Husband has not established a substantial change in his
financial circumstances sufficient to support modification. See A.R.S.
§ 25-327(A); Chaney v. Chaney, 145 Ariz. 23, 25 (App. 1985).
¶11 Husband also contends that Wife’s receipt of social security
benefits constitutes a substantial change in her financial circumstances
sufficient to support modification.
¶12 As noted supra ¶ 2, the parties agreed spousal maintenance
would be “modifiable in accordance with Arizona law” should
contingencies occur, including either party’s receipt of social security
benefits. The court found, despite Wife’s receipt of $1,000 per month in
social security benefits, her total income had not increased sufficiently to
warrant modification. See A.R.S. § 25-327(A). In 2016, the court found Wife
was earning $11.50 per hour. By 2021, Wife was no longer employed at
$11.50 per hour, but instead was “providing tutoring and earning around
$40 per week.” With Wife’s $1,000 per month in social security benefits, the
court determined Wife’s annual income in 2021 was within a few thousand
dollars of her income in 2016. This finding is supported by reasonable
evidence in the record. See Scott, 121 Ariz. at 495-96 (noting that a judgment
will not be disturbed if it is supported by reasonable evidence). Husband
has not shown where the court erred by refusing to modify spousal
maintenance simply because both parties had begun receiving social
security benefits.
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WATSON v. WATSON
Decision of the Court
¶13 Husband is not the prevailing party on appeal. Having
considered the parties’ financial resources and the reasonableness of
positions taken, we deny Husband’s request for attorney’s fees and costs
under A.R.S. § 25-324.
CONCLUSION
¶14 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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