Wirtjes v. Wirtjes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JOHN STEVEN WIRTJES, Petitioner/Appellant,
v.
LISA DIANE WIRTJES, Respondent/Appellee.
No. 1 CA-CV 22-0591 FC
FILED 7-27-2023
Appeal from the Superior Court in Maricopa County
No. FN2013-000799
The Honorable Michael Z. Rassas, Judge
AFFIRMED IN PART, VACATED IN PART, REMANDED
COUNSEL
Lorona Mead PLC, Phoenix
By Frank R. Mead
Counsel for Petitioner/Appellant
Scott L. Patterson PLLC, Tempe
By Scott L. Patterson
Counsel for Respondent/Appellee
WIRTJES v. WIRTJES
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Vice
Chief Judge Randall M. Howe and Judge Daniel J. Kiley joined.
P E R K I N S, Judge:
¶1 John Wirtjes appeals the superior court’s order denying his
petition to terminate/modify spousal maintenance and awarding
attorney’s fees to his former wife, Lisa Wirtjes. We affirm as to spousal
maintenance, vacate and remand as to attorney’s fees, and decline to award
either party attorney’s fees or costs on appeal.
FACTS AND PROCEDURAL BACKGROUND
¶2 Because John and Lisa Wirtjes share the same last name, we
will refer to them by their first names for clarity. The parties married in 1986
and divorced in 2014. Their decree of dissolution of marriage (“Decree”)
awarded Lisa spousal maintenance of $1,600 per month for 48 months
starting in February 2014 and then $1,000 per month for an indefinite term.
¶3 The superior court explained the reason for its award of
spousal maintenance:
[T]his Court is unable to find that [Lisa] has or will have the
ability to achieve long term financial independence. She will
be able to do better than she is doing now, but she will still
struggle with financial independence. Therefore, an award
for an indefinite term is appropriate.
The award was modifiable as to the amount and duration and would
terminate upon Lisa’s death or remarriage.
¶4 In July 2021, John petitioned to terminate/modify spousal
maintenance (“Petition”). He alleged that “Lisa has achieved financial
independence with her full-time employment with the Peoria School
District and other work as a nail technician since the entry of the [Decree].”
He also alleged that she “has established a consistent standard of living
similar to what the parties enjoyed during the marriage.” Before trial, he
requested the superior court make separate findings of fact and conclusions
of law under Arizona Rule of Family Law Procedure (“Rule”) 82(a).
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¶5 The superior court held trial in April 2022. After closing
arguments, the court explained to the parties that the Decree awarded Lisa
indefinite spousal maintenance because the court, at that time, believed she
would struggle to be self-sufficient. The court also acknowledged that
although Lisa was now working full time and had two part-time jobs, her
income was still insufficient to support a substantial and continuing change
in circumstances. Despite John’s suggestion that Lisa earned more than she
disclosed, the court observed that Lisa did not live lavishly, had a modest
car and home, and only took a vacation when she received funds from the
settlement of a lawsuit. The court then took the matter under advisement.
¶6 Two months later, the superior court issued its ruling denying
John’s Petition and authorizing Lisa’s counsel to apply for an award of
attorney’s fees and costs. After full briefing on the issue, the court awarded
attorney’s fees in August 2022.
¶7 John timely appealed and we have jurisdiction under
Section 12-2101(A)(1) and (2).
DISCUSSION
I. Sufficiency of the Factual Findings
¶8 We review the sufficiency of findings of fact de novo as a
mixed question of fact and law. Murphy Farrell Dev., LLLP. v. Sourant, 229
Ariz. 124, 128, ¶ 13 (App. 2012) (as amended). Findings of fact are sufficient
when “pertinent to the issues and comprehensive enough to provide a basis
for the decision.” Miller v. Board of Supervisors of Pinal Cty., 175 Ariz. 296,
299 (1993) (citation omitted). But the superior court need not detail every
fact that supports its ruling. Francine C. v. Dep’t of Child Safety, 249 Ariz. 289,
296, ¶ 14 (App. 2020). Instead, it must make findings on the “ultimate facts”
or at least those “essential and determinative facts on which the conclusion
was reached.” Id.¶9 John argues that the superior court had to make findings on
all the “ultimate facts” necessary to resolve the disputed issue because he
invoked Rule 82 in a pretrial statement. See id. John argues this required the
superior court to make findings on Lisa’s credibility about her income,
before it could determine whether there was a substantial and continuing
change in her financial circumstances.
¶10 Under Rule 82(b), a party has 25 days after the entry of a
judgment to request additional findings of fact and conclusions of law. In
Tandor v. Fredrickson, our supreme court explained that challenges to the
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sufficiency of factual findings are waived when a party fails to request
factual findings at the superior court. See 179 Ariz. 299, 301 (1994) (“But by
failing to [request factual findings], a litigant is not in the position to
complain about how helpful findings would have been on appeal.”); see also
Elliott v. Elliott, 165 Ariz. 128, 134 (App. 1990) (“A litigant must object to
inadequate findings of fact . . . at the trial court level so that the court will
have an opportunity to correct them.”).
¶11 John argues Elliott and Tandor are distinguishable, citing
Murphy Farrell to argue that no post-trial motion was needed to preserve
this issue for appeal because he requested these findings of fact in his
pretrial statement. But in Murphy Farrell, the plaintiff requested findings of
fact and conclusions of law in a post-trial motion, preserving the issue for
appeal. 229 Ariz. at 129, ¶ 15. Thus, John waived this argument because he
failed to request findings of fact in a post-trial motion.
II. Spousal Maintenance Modification
¶12 The party seeking a modification of spousal maintenance has
the burden of proving changed circumstances by a preponderance of the
evidence. Van Dyke v. Steinle, 183 Ariz. 268, 278 (App. 1995); A.R.S.
§ 25-327(A). The court must first look to the decree to assess the
circumstances at the time of the divorce when the current spousal
maintenance order was established. MacMillan v. Schwartz, 226 Ariz. 584,
588, ¶ 12 (App. 2011). Without any finding of changed circumstances, the
court cannot modify the spousal maintenance award in a dissolution
decree. In re the Marriage of Rowe, 117 Ariz. 474, 475 (1978).
¶13 The superior court has the discretion to determine whether a
substantial and continuing change in circumstances merits a modification
of spousal maintenance. Schroeder v. Schroeder, 161 Ariz. 316, 323 (1989). The
court abuses its discretion when the record fails to substantially support its
decision or when the court commits an error of law in reaching its decision.
In re Marriage of Robinson, 201 Ariz. 328, 331, ¶ 5 (App. 2001).
¶14 John cites Huey v. Huey, 253 Ariz. 560 (App. 2022) to argue
that the superior court abused its discretion by not modifying the spousal
maintenance order to at least a fixed term. In Huey, we considered whether
the court was authorized to award indefinite spousal maintenance when
the receiving spouse could not be self-sufficient due to a temporary
disability. Id. at 564, ¶ 18. At trial, the wife’s expert witness testified that
although the duration of her disability remained unclear, her disability was
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not permanent, and we held that a temporary illness did not support an
indefinite spousal maintenance award. Id. at 563, ¶ 10.
¶15 Rainwater v. Rainwater provides a better analogy. In Rainwater,
we affirmed the superior court’s award of indefinite spousal maintenance
based on the receiving spouse’s earning power in relation to the standard
of living established during the marriage. 177 Ariz. 500, 504 (App. 1993).
We reasoned that wife had contributed financially to the husband’s
education, supported him in his career, and was the primary caretaker for
the parties’ two children. Id. And at the time of divorce the parties had
significantly different incomes—the husband earned more than five times
what the wife was earning. Id. at 502. Under those facts, we affirmed the
indefinite spousal maintenance award for a term sufficient for the wife to
obtain her bachelor’s degree and a reduced award indefinitely. Id. at 504.
¶16 The record here similarly established that Lisa supported
John’s career, was the primary caretaker for the parties’ children, and
would continue to struggle to meet her reasonable needs. Unlike Huey, the
indefinite spousal maintenance award did not result from a temporary
disability but was based on Lisa’s financial circumstances and earning
capacity at the time of the Decree.
¶17 The record supports the superior court’s finding that, at the
time of trial: Lisa’s gross monthly income only increased $200 since the
dissolution; she was living within her means and did not have extravagant
expenses; and without continuing spousal maintenance, Lisa would be
unable to meet her modest monthly expenses. Based on this record, the
court did not abuse its discretion by not modifying spousal maintenance to
a fixed term.
III. Sufficiency of Attorney’s Fees Findings
¶18 John argues the superior court abused its discretion by
awarding Lisa attorney’s fees based on its findings of a financial disparity
between the parties. We review the award of attorney’s fees for an abuse of
discretion. Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2014); Macmillan,
226 Ariz. at 584, ¶ 36. The court must consider the parties’ relative financial
resources and the reasonableness of their positions. A.R.S. § 25-324. To
qualify for an award of attorney’s fees from a financial perspective, an
applicant must establish some level of disparity, not that he or she is poor.
Magee v. Magee, 206 Ariz. 589, 591, ¶ 12 (App. 2004).
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¶19 The record supports the court’s findings that John earned
around $9,000 per month and Lisa earned $2,000 per month. These findings
alone establish a financial disparity between the parties. See id.¶20 John next argues that the superior court abused its discretion
by finding that he had acted unreasonably in the litigation. Noting that the
court faulted him for “fil[ing] this [P]etition without first having a true and
accurate understanding of Wife’s income, expenses and standard of living,”
John argues that the court’s ruling forced him to challenge Lisa’s financial
condition without granting access to her financial records.
¶21 Similarly, in Huey we observed father lacked information to
determine whether he could challenge the basis of the spousal maintenance
award. Huey, 253 Ariz. at 563, ¶ 11. Our reasoning in Huey applies equally
to this case, in which John had only limited access to Lisa’s financial
information. And in this context, John’s decision to challenge the spousal
maintenance award without a full understanding of Lisa’s finances is not in
itself unreasonable.
¶22 John testified that he knew Lisa had a permanent position at
the school, was working as an auctions clerk, had bought a home and a car
after their divorce, had a long-term domestic partner, and had eight years
to find a higher paying job. This record does not support the court’s finding
that he acted unreasonably in seeking to terminate or modify spousal
maintenance.
¶23 A party need not show both a financial disparity and an
unreasonable opponent to qualify for consideration for an award of
attorney’s fees. Magee, 206 Ariz. at 591, ¶ 8 n. 1. But because the superior
court did not apportion its attorney’s fees award between these two
grounds, we cannot determine whether the court would have awarded fees
in the same amount based on the parties’ financial disparity alone. See, e.g.,
id. at 593, ¶¶ 19–22 (upholding an award of attorney’s fees to the party with
fewer financial resources despite the other party having taken reasonable
positions during the litigation); Mangan v. Mangan, 227 Ariz. 346, 352–53,
¶¶ 26–28 (App. 2011) (upholding an award of attorney’s fees to the party
with greater financial resources because the other party took unreasonable
positions during the litigation). Thus, we vacate the award of attorney’s fees
and remand for the court to reconsider Lisa’s request for an award of
attorney’s fees consistent with this decision.
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Decision of the Court
Attorney’s Fees and Costs on Appeal
¶24 Lisa requests her attorney’s fees on appeal under Section
25-324(A), and John requests his attorney fees and costs under ARCAP 21.
After considering their financial resources and the reasonableness of their
positions, we exercise our discretion to decline to award attorney’s fees or
costs on appeal. A.R.S. § 25-324(A); ARCAP 21.
CONCLUSION
¶25 We affirm the superior court’s order on spousal maintenance.
But vacate and remand for the court to determine attorney’s fees consistent
with this decision.
AMY M. WOOD • Clerk of the Court
FILED: JT
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