Opinion
No. 2 CA-CV 2013-0077
01-10-2014
IN RE THE MARRIAGE OF RODNEY DEAN PIEPER, Petitioner/Appellant, AND DEBORAH ELIZABETH PIEPER, Respondent/Appellee.
COUNSEL Law Offices of Joseph Mendoza, P.L.L.C., Sierra Vista By Joseph Mendoza Counsel for Petitioner/Appellant Borowiec & Borowiec, P.C., Sierra Vista By Anne M. Borowiec Counsel for Respondent/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the superior Court in Cochise County
No. DO96000952
The Honorable Wallace R. Hoggatt, Judge
AFFIRMED
COUNSEL
Law Offices of Joseph Mendoza, P.L.L.C., Sierra Vista
By Joseph Mendoza
Counsel for Petitioner/Appellant
Borowiec & Borowiec, P.C., Sierra Vista
By Anne M. Borowiec
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Rodney Pieper appeals from a trial court order modifying his spousal maintenance obligation. He argues the court abused its discretion by failing to make adequate findings on all factors enumerated in the statute pertaining to spousal maintenance awards, applying the wrong standard to his petition for modification, and failing to find good cause for deviating from the statutorily prescribed effective date of modification orders. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. In re Marriage of Downing, 228 Ariz. 298, ¶ 2, 265 P.3d 1097, 1098 (App. 2011). The parties had been married for over ten years when Rodney filed a petition for dissolution in August 1996. They subsequently entered into a decree of legal separation requiring Rodney to pay $750 per month in spousal maintenance for a period of thirty-six months.
¶3 Rodney filed a second petition for dissolution in 2000, but before the bench trial on that petition concluded, the parties stipulated to withdraw the request to convert the legal separation to a dissolution of marriage. The court entered an order accepting the stipulation and awarding Deborah spousal maintenance in the amount of $1,250 per month. It did not state a basis for its determination of spousal maintenance.
¶4 More than a decade later, in October 2012, Rodney filed a petition to terminate spousal maintenance, citing a change in his employment status. He stated he had retired from the military and was "unable to obtain new employment due to the status of his health and age." Rodney filed a timely request for findings of fact and conclusions of law, and at the end of the hearing, the trial court directed the parties to submit proposed findings. Rodney was the only party to do so. The court's order incorporated many of Rodney's proposed findings regarding his condition and capacity for employment but nevertheless directed spousal maintenance to continue at a reduced rate of $1,000 per month, based on its finding that Deborah "continue[d] to be in need of regular, substantial maintenance" and Rodney "has the ability to continue to pay monthly spousal maintenance" at the reduced rate. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).
Deborah states on appeal that her findings of fact were not filed due to a clerical error.
Discussion
Findings of Fact and Conclusions of Law
¶5 Rodney contends the trial court erred by failing to make adequate findings pursuant to A.R.S. § 25-319(B). See Scott v. Scott, 121 Ariz. 492, n.5, 591 P.2d 980, 983 n.5 (1979) ("The factors to be considered in determining whether to modify a[] [spousal maintenance] award are the same as the factors taken into consideration when granting an award for support and maintenance . . . [and] are delineated in A.R.S. [§] 25-319."). We have deemed findings insufficient where the court failed to consider all statutory factors "with respect to which the parties presented evidence." Elliott v. Elliott, 165 Ariz. 128, 132-33, 137, 796 P.2d 930, 934-35, 939 (App. 1990) (remanding child support and spousal maintenance awards for additional findings on certain statutory factors). Rodney urges us to reach a similar conclusion here based on his claim that the court "failed to make any specific findings on six of the thirteen [§ 25-319(B)] factors." Specifically, he claims the court improperly omitted from its decision: the standard of living during the marriage, § 25-319(B)(1); the duration of the marriage, § 25-319(B)(2); the comparative financial resources of the parties, including earning abilities, § 25-319(B)(5); the contribution of the spouse seeking maintenance to the earning ability of the other spouse, § 25-319(B)(6); the extent to which the spouse seeking maintenance has reduced their income or career opportunities for the benefit of the other spouse, § 25-319(B)(7); and the time necessary for the spouse seeking maintenance to acquire sufficient education or training to find appropriate employment, § 25-319(B)(10). He also claims the court's findings on the fourth factor—the ability of the spouse from whom maintenance is sought to meet both spouses' needs—were incomplete. See § 25-319(B)(4).
¶6 As an initial matter, we disagree with Rodney's contention that the trial court failed to adequately address the factors set forth in § 25-319(B)(4), (5), and (10). On the contrary, we find the court's findings regarding Rodney's physical condition, employment status, income, and financial resources sufficient to address Rodney's ability to meet his needs while also "meeting those of the spouse seeking maintenance." § 25-319(B)(4). Those findings, along with the court's corollary determinations regarding Deborah's financial status and employment capabilities, also were sufficient to address the parties' comparative financial resources, including earning abilities in the labor market. See § 25-319(B)(5). Further, the tenth factor—the availability and duration of training or education that would allow the spouse seeking maintenance to find employment—was rendered moot by the court's finding that Deborah "is unemployed and unemployable." See § 25-319(B)(10). Having so found, there was no need for the court to make further findings with regard to job training or education opportunities.
While Rodney may dispute this finding, he has waived any argument regarding the sufficiency of the evidence by failing to develop it properly on appeal. See Ariz. R. Civ. App. P. 13(a)(5), (6); MacMillan v. Schwartz, 226 Ariz. 584, ¶ 33, 250 P.3d 1213, 1220 (App. 2011) ("Opening briefs must present significant arguments, supported by authority, setting forth the appellant's position on the issues raised."); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 394 n.2 (App. 2007) (issue waived on appeal where party mentioned it only in passing and cited no relevant legal authority). And, in any event, the trial court did not abuse its discretion by relying on Deborah's testimony regarding her physical limitations. See, e.g., Fletcher v. Fletcher, 137 Ariz. 497, 497, 671 P.2d 938, 938 (App. 1983) (sufficiency of evidence to support spousal maintenance award subject to abuse of discretion standard). The court heard medical evidence regarding Deborah's disability at the hearing on Rodney's second petition for dissolution, and he failed to present any evidence that her condition had improved at the hearing on modification. See Linton v. Linton, 17 Ariz. App. 560, 563, 499 P.2d 174, 177 (App. 1972) (petitioner's burden to prove modification). Deborah's testimony describing her diagnoses and disability status was sufficient to support a finding that she is unemployable.
¶7 As for the remaining factors alleged to have been omitted from the trial court's findings, we agree with Deborah that this argument has been waived. Indeed, we conclude that Rodney twice waived any challenge to the omission of these factors—once when he submitted proposed findings of fact that failed to incorporate them, and again when he failed to object to the findings below. As we noted in Elliot, "[a] litigant must object to inadequate findings of fact and conclusions of law at the trial court level so that the court will have an opportunity to correct them." 165 Ariz. at 134, 796 P.2d at 936. Where the trial court has not been afforded such an opportunity, any challenge to the sufficiency of its findings will be waived on appeal. See MacMillan v. Schwartz, 226 Ariz. 584, ¶ 40, 250 P.3d 1213, 1221 (App. 2011) (challenge to sufficiency of findings under A.R.S. § 25-324 waived); Banales v. Smith, 200 Ariz. 419, ¶ 8, 26 P.3d 1190, 1191 (App. 2001) (argument that court failed to make all statutory child custody findings waived); cf. Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-59 (1994) (argument that court failed to make findings of fact relevant to A.R.S. §§ 12-341.01(C) and 12-349 waived). Although we have also warned against mechanistic applications of this rule, such concerns have been expressed in the context of child custody orders, where express factual findings are not only compelled by statute but also supported by significant policy considerations concerning the "best interests" of the child involved. See Reid v. Reid, 222 Ariz. 204 ¶¶ 18-19, 213 P.3d 353, 358 (App. 2009) ("mechanically applying waiver principles . . . inappropriately deprive[s] the family court and all parties of the baseline information required for future petitions involving a child's or children's best interests"); see also Nold v. Nold, 232 Ariz. 270, ¶ 9, 304 P.3d 1093 (App. 2013) (similar). In the absence of such considerations, and in light of Rodney's omission of the factors set forth in § 25-319(B)(1), (2), (6), and (7), we see no reason to disregard our principles of waiver in these circumstances.
¶8 Even were we to conclude otherwise, Rodney's argument on this point still would not merit reversal. With regard to § 12-319(B)(6) and (7), neither party introduced evidence relevant to these factors. See Elliot, 165 Ariz. at 132-33, 796 P.2d at 934-35 (court's findings must address factors with respect to which parties presented evidence); see also Hughes v. Hughes, 177 Ariz. 522, 525, 869 P.2d 198, 201 (App. 1993) (trial court is obliged to "specifically address each section 25-319(B) factor that the parties place[] at issue"). As Rodney states in his opening brief, the record "[did] not show any evidence that [Deborah] contributed to [his] earning ability" and likewise "never indicated" that she reduced her career opportunities for his benefit. Nor was there any evidence, however, that such sacrifices were not made. Accordingly, the trial court had no basis for reaching any conclusions on these statutory factors. See Elliot, 165 Ariz. at 132-33, 796 P.2d at 934-35.
¶9 The same is true of § 25-319(B)(1), which addresses the parties' standard of living during the marriage. Indeed, Deborah's testimony that she "never saw any of the money from Germany that [Rodney] made" and that she was "living on just a little bit," represents the sum of the evidence on this point. And because this testimony lacked foundation, it is impossible to ascertain the time period covered by her statements. As a result, this evidence, standing alone, was insufficient to trigger a finding regarding the general standard of living maintained by the parties throughout the marriage. See Elliot, 165 Ariz. at 132-33, 796 P.2d at 934-35.
¶10 Based on the foregoing determinations, it appears the only true omission from the court's order was a finding on the length of the parties' marriage pursuant to § 25-319(B)(2). However, for several reasons we find it unlikely an express finding on this factor would have altered the court's result. First, the challenged order was entered by the same judge who had presided over the case since 1996. Thus, there is little doubt the court was aware of the duration of the parties' union; its failure to cite this factor reflects instead a determination that it was outweighed by others cited as the primary bases for its decision, i.e., the parties' earning abilities, physical conditions, financial needs, and comparative financial resources. See § 25-319(B)(3), (4) and (5); see also Oppenheimer v. Oppenheimer, 22 Ariz. App. 238, 242, 526 P.2d 762, 766 (1974) (duration of marriage factor is significant only because it serves as proxy for contributions of spouse seeking maintenance and protection against marriages motivated by financial interests). Moreover, a finding on the marriage's duration would not have favored Rodney because the parties were married for ten years prior to their legal separation and still have not obtained a divorce. As a result, we conclude the trial court's order satisfied Rodney's request for specific findings of fact and conclusions of law pursuant to § 25-319 and we decline to reverse or remand on this basis.
Although the first petition for dissolution was initially assigned to a different division, it was reassigned to Judge Hoggatt before any hearings took place.
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Changed Circumstances
¶11 Under Arizona law, the provisions of a decree regarding spousal maintenance "may be modified or terminated only on a showing of changed circumstances that are substantial and continuing." A.R.S. § 25-327(A). "The changed circumstances alleged must be proved by a comparison with the circumstances existing at dissolution." Richards v. Richards, 137 Ariz. 225, 226, 669 P.2d 1002, 1003 (App. 1983). Citing this standard, Rodney maintains that once the trial court found his circumstances had substantially changed, it was required to adjust the spousal maintenance award notwithstanding any conclusions it reached about Deborah's continuing need for spousal support. According to him, the court's focus on Deborah's need for support imposed an "additional hurdle" to modification that constituted an abuse of discretion. In a related argument, he maintains the court erroneously concluded that his circumstances "did not affect [Deborah's] need to receive regular spousal maintenance."
¶12 But both assertions overlook the thrust of the court's order, which reduced his monthly spousal maintenance from $1,250 per month to $1,000 per month—a twenty percent reduction. This downward modification clearly establishes that due consideration was given to the "substantial and continuing change of circumstances which affect [Rodney's] ability to pay monthly spousal maintenance," cited in the court's findings. Had the court truly disregarded Rodney's changed circumstances, there would have been no modification to the award.
¶13 Rodney's argument also overlooks an essential principle of the modification procedure that he acknowledged in the context of his first argument. Specifically, in evaluating a petition for modification, a trial court is required to consider the same factors "as the factors taken into consideration when granting an award for support and maintenance." Scott, 121 Ariz. 492, n.5, 591 P.2d at 983 n.5. Among these are several factors involving the financial needs of the spouse seeking maintenance. See § 25-319(B)(3) (earning ability of spouse seeking maintenance), (5) (comparative financial resources of parties), (9) (financial resources of spouse seeking maintenance). Moreover, as discussed earlier, where evidence has been presented, the application of all relevant factors to a spousal maintenance determination is mandatory. See Cullum v. Cullum, 215 Ariz. 352, ¶ 15, 160 P.3d 231, 234 (App. 2007) ("court may abuse its discretion if it fails to apply one of the applicable factors 'with respect to which the parties presented evidence'"), quoting Elliott, 165 Ariz. at 136, 796 P.2d at 938. Thus, the trial court's consideration of Deborah's financial resources was not only permissible, but required. Accordingly, the incorporation of Deborah's "continu[ing] . . . need of regular, substantial maintenance" in the court's decision on spousal maintenance was entirely proper under the law of dissolution. See § 25-319(B)(3), (5), (9); Scott, 121 Ariz. 492, n.5, 591 P.2d at 983 n.5.
Effective Date of Modification
¶14 Rodney lastly challenges the effective date of the court-ordered modification. He contends the trial court erred when it ordered that modification take effect in March 2013 instead of November 2012, the first month after his petition for modification was filed. Deborah points out, however, that § 25-327(A) provides "[m]odifications and terminations are effective on the first day of the month following notice of the petition for modification or termination unless the court, for good cause shown, orders the change to become effective at a different date."
¶15 The record supports the trial court's implied finding of good cause to deviate from the presumptive modification date. Deborah's monthly income, including spousal maintenance at the modified rate of $1,000, amounts to $1,644, and she presented evidence of monthly expenses totaling approximately $1,900. This imbalance, which likely informed the court's conclusion that Deborah "continue[d] to be in need of regular, substantial maintenance," also supports a finding of good cause to avoid a retroactive modification that would require Deborah to refund payments to Rodney. Rodney has failed to overcome the presumption that the court knew and followed the law when it deviated from the statutory effective date for modification, see Maher v. Urman, 211 Ariz. 543, ¶ 13, 124 P.3d 770, 776 (App. 2005), and we find no error in this aspect of the court's decision.
Disposition
¶16 For the foregoing reasons, the trial court's order is affirmed. Deborah seeks recovery of her attorneys' fees and costs on appeal pursuant to Rule 25, Ariz. R. Civ. App. P. However, although we have determined the trial court's order should be upheld, we do not find Rodney's appeal frivolous, nor do we believe it was taken solely for the purpose of delay. See id. Therefore, while Deborah is entitled to costs on appeal upon her compliance with Ariz. R. Civ. App. P. 21, her request for an award of attorneys' fees as a sanction is denied.