Opinion
No. 1 CA-CV 13-0690
12-02-2014
In re the Marriage of: KELLY DIANA MAY, Petitioner/Appellant, v. RICHARD RAMON AVILA, Respondent/Appellee.
COUNSEL The Murray Law Offices, P.C., Scottsdale By Stanley David Murray Counsel for Petitioner/Appellant Sacks Tierney P.A., Scottsdale By David L. Rose Counsel for Respondent/Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
Nos. FC2005-009243, FC2005-093797
(Consolidated)
The Honorable Boyd W. Dunn, Judge
AFFIRMED
COUNSEL The Murray Law Offices, P.C., Scottsdale
By Stanley David Murray
Counsel for Petitioner/Appellant
Sacks Tierney P.A., Scottsdale
By David L. Rose
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined. BROWN, Judge:
¶1 Kelly Diana May ("Wife") appeals from the trial court's orders modifying her spousal maintenance award and denying her motion to reopen the decree of dissolution. For the following reasons, we affirm.
BACKGROUND
¶2 Wife and Richard Ramon Avila ("Husband") separated in 2001 and Wife petitioned for dissolution of the marriage in August 2005. As part of the 2006 decree, the trial court found that Wife qualified for spousal maintenance because she had not fully realized her potential in the job market, and for much of the marriage she had not been employed outside the home while raising the couple's four children. The court also found that Wife was earning a reasonable salary but had no promotional opportunities without a college degree, the parties had been married for twenty-five years, and the disparity between the parties' monthly incomes was $6343. Based on these factors, the court ordered Husband to pay spousal maintenance of $2346.91 per month retroactive to September 2005 and continuing until Wife "remarries or is deceased." The court also ordered that Husband was the primary residential parent for the couple's only minor child and that Wife pay Husband $634.44 per month for child support.
¶3 Husband appealed the 2006 dissolution decree, specifically contesting whether Wife was qualified to receive spousal maintenance and the amount and term of the award. We affirmed, holding that the evidence supported a finding that "Wife's income was insufficient to support her marital standard of living" and that she "would not significantly increase her salary at SRP in the near future." Avila v. Avila, 1 CA-CV 06-0663, 2007 WL 5448131, at *4, ¶ 17 (Ariz. App. Nov. 15, 2007) (mem. decision). We also concluded the trial court acted within its discretion in fixing the amount of the award as well as its indefinite duration, recognizing that the parties had a marriage of long duration, and as they agreed, Wife "forewent a career for sixteen years" to care for the needs of the family while Husband earned a substantial income that permitted the couple to live a comfortable lifestyle. Id. at *6, ¶ 21. We also noted that it would "take Wife eight to ten years to acquire a college degree, which she requires to progress at SRP." Id. Finally, we recognized that the "objective of spousal maintenance is a transition toward independence," and that the trial court had explicitly stated the award could be modified. Id. at ¶ 22.
¶4 Husband paid monthly spousal maintenance to Wife in accordance with the decree. In January 2012, Husband lost his job due to a company reorganization, and filed a pro per petition to modify the support order. Shortly thereafter, Husband received a severance payment of $84,520.38, and subsequently found a new job. After obtaining counsel, Husband filed an amended petition, asserting that Wife had a substantial and continuing change in circumstances due, in part, to the fact that she was no longer obligated to pay child support and her monthly income had increased. In her pretrial statement, Wife claimed that a portion of the severance payment was community property and she should be paid her share of that portion.
¶5 Following an evidentiary hearing, the court concluded that Husband met his burden of showing a substantial and ongoing change in financial circumstances and that modification was warranted. The court then considered the factors listed under Arizona Revised Statutes ("A.R.S.") section 25-319(B) in conjunction with its previous findings and determined that, while termination of spousal maintenance was not warranted, the amount and duration of the award should be modified. On March 19, the court ordered that Husband pay Wife $1800 per month for a term of 36 months, beginning in April 2013. Further, the court denied Wife's request for a portion of Husband's severance pay because Wife did not present sufficient evidence to treat the payment as a community asset. However, the court later vacated its order and allowed Wife to submit evidence and present arguments as to her claim. Finally, noting that neither party acted unreasonably, and referencing Husband's severance payment, the court ordered that Husband pay a portion of Wife's reasonable attorneys' fees and costs, pending Wife's submission of a China Doll affidavit.
¶6 After receiving Wife's affidavit, on May 13 the court awarded Wife $3500 in attorneys' fees and costs, though Wife had requested fees and costs in excess of $17,000. Wife then filed a motion for new trial, challenging the fee award and asserting the court erred in modifying both the amount and term of her spousal maintenance award, alleging the evidence presented failed to show "changed circumstances that are substantial and continuing." Wife also filed a "Motion for Relief and/ or to Re-Open Decree of Dissolution of Marriage" pursuant to Arizona Rule of Family Law Procedure ("Rule") 85(C)(1)(b) arguing she was entitled to a portion of the "community share" of Husband's severance package because the severance pay was based on years in which the couple had been married. Husband filed a motion to dismiss Wife's motion to reopen.
¶7 The court denied Wife's motion for new trial in a signed order filed on September 20, 2013, explaining it had "specifically considered and discussed in detail" the factors of § 25-319(B), and additionally, as a clarification, outlined each of the thirteen factors and described where each had been addressed in the original order, or explained why the factor was inapplicable to the parties' situation. In a separate order filed the same date, the court granted Husband's motion to dismiss Wife's motion to reopen the decree, finding that there had been "no showing . . . that the community has any interest in the severance package outside of the fact that the parties were married during a portion of Husband's prior employment."
¶8 On October 15, 2013, Wife filed her notice of appeal from (1) the March 19 order modifying her spousal maintenance award; (2) the May 13 order awarding her attorneys' fees; and (3) the September 20 orders denying her motion for new trial and dismissing her motion to reopen the dissolution decree.
DISCUSSION
A. Jurisdiction
¶9 Husband previously sought dismissal of a portion of this appeal for lack of jurisdiction. A different panel of this court denied the motion without prejudice, pending reconsideration on the merits of the appeal. Husband re-urged the motion in his answering brief. He argues that we lack jurisdiction over Wife's appeal from the March 19 modification order because it was a final appealable order which rendered Wife's May 28 motion for new trial untimely. See Ariz. R. Fam. L.P. 83(D)(1) ("A motion for new trial shall be filed no later than fifteen days after entry of the judgment.").
¶10 A party seeking to appeal a family court judgment must do so within thirty days after the judgment is signed and filed. ARCAP 9(a); Ariz. R. Fam. L.P. 81(A). If the court determines that there is no just reason for delay, it may direct entry of judgment as to fewer than all of the claims or parties by including in its judgment express language to that effect. See Ariz. R. Fam. L.P. 78(B). A judgment that awards but does not determine the amount of attorneys' fees and does not include Rule 78(B) language is not final for purposes of an appeal. Bollermann v. Nowlis, 234 Ariz. 340, 342, ¶ 9, 322 P.3d 157, 159 (2014); Ghadimi v. Soraya, 230 Ariz. 621, 622, ¶ 10, 285 P.3d 969, 970 (App. 2012).
¶11 The trial court's March 19 order awarded Wife attorneys' fees but did not determine the amount and did not contain Rule 78(b) language of finality. Thus, the March 19 order was not a final appealable order. The May 13 signed order awarding Wife $3500 in attorneys' fees and costs was the final appealable order because it disposed of all claims and parties. See Ghadimi, 230 Ariz. at 622, ¶ 10, 285 P.3d at 970. Wife timely filed her motion for new trial on May 28, fifteen days after entry of the final appealable order. See Ariz. R. Fam. L.P. 83(D)(1). Wife had thirty days from which to appeal the court's denial of her motion for new trial. Because her notice of appeal was filed within thirty days of the denial of that motion, ARCAP 9(b)(1)(D), we have jurisdiction over this entire appeal pursuant to A.R.S. § 12-2101(A)(5).
B. Modification of Spousal Maintenance Award
¶12 A court may terminate or modify an award of spousal maintenance "only upon a showing of changed circumstances which are substantial and continuing." A.R.S. § 25-327(A). The party seeking modification has the burden of proving a substantial and continuing change in circumstances. Scott v. Scott, 121 Ariz. 492, 494, 591 P.2d 980, 982 (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," found in A.R.S. § 25-319(B). Id. at 495 n.5, 591 P.2d at 983 n.5. "[A] substantial change in the financial circumstances of either the husband or wife" may support a modification of a spousal maintenance award. Chaney v. Chaney, 145 Ariz. 23, 25, 699 P.2d 398, 400 (App. 1985). The purpose of spousal maintenance is "to achieve independence for both parties and to require an effort toward independence by the party requesting maintenance." Schroeder v. Schroeder, 161 Ariz. 316, 321, 778 P.2d 1212, 1217 (1989).
¶13 Wife first argues that the trial court incorrectly interpreted the law regarding indefinite spousal maintenance awards. She asserts the court indicated that "open-ended" awards should not be granted unless the receiving spouse was experiencing "medical issues," which she argues is a misinterpretation of the law set forth in Rainwater v. Rainwater, 177 Ariz. 500, 503, 869 P.2d 176, 179 (App. 1993). According to Wife, the court in Rainwater rejected the argument that indefinite maintenance can only be awarded when the receiving spouse is unable to be "self-sustaining."
¶14 At the close of proceedings, the trial court asked counsel to explain why the original award was of an indefinite duration. As this court noted on appeal from the original award, the court's justification for awarding indefinite spousal maintenance was unclear from the terms of the decree, which stated only that the maintenance "shall continue until Wife remarries or is deceased." And as the trial court explained to counsel at the modification hearing, when deciding whether modification is warranted it must compare the factors that were applied at the time of the original award to the parties' present circumstances to determine whether there has been a substantial and ongoing change. Thus, the court asked counsel if there were any "issues of health or disability" at the time of the initial decree that would have contributed to the court's decision to award indefinite spousal maintenance. Contrary to Wife's assertion, these comments do not suggest that the court misinterpreted the applicable law.
¶15 Wife also argues the trial court's findings are inadequate or insufficient to support its conclusion that Husband met his burden of showing changed circumstances. In the trial court proceedings, Husband filed a request for findings under Rule 82, which states, "[i]n all family law proceedings tried upon the facts, the court, if requested before trial, shall find the facts specially and state separately its conclusions of law thereon[.]" See Ariz. R. Fam. L.P. 82(A). "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses." Id. The court's findings must set forth the facts necessary to resolve disputed issues to permit us to examine and understand the basis for the court's ruling. See Kelsey v. Kelsey, 186 Ariz. 49, 51, 918 P.2d 1067, 1069 (App. 1996) (citing Elliott v. Elliott, 165 Ariz. 128, 131-32, 796 P.2d 930, 933-34 (App. 1990) (finding insufficient evidence pursuant to Ariz. R. Civ. P. 52(a) for amount of child support and spousal maintenance awards where no mathematical basis was presented)).
¶16 Wife first argues that the court made findings that had "nothing to do with" the § 25-319(B) factors. Section 25-319(B), however, is not an exhaustive list; the statute directs the court to consider "all relevant factors," including (but not limited to) the thirteen factors expressly enumerated. Wife argues further that the court failed to consider (1) Husband's ability to pay spousal maintenance; (2) the parties' comparative earning ability; (3) Wife's contribution to Husband's earning ability; and (4) the time necessary for Wife to acquire sufficient training. Contrary to Wife's contentions, the court did make the required findings. In the original modification order, the court made sixteen factual findings, and then clarified those findings when it issued a minute entry denying Wife's motion for new trial. The most pertinent of those findings are as follows:
The trial court at the time of entering the original Decree in 2006, imputed earnings to Husband of $132,000.00 a year with anticipated bonuses, and Wife with annual income of $55,884.00.
. . . .
Husband, currently age 50, found other employment in March, 2013, with VACO earning $120,000.00 per year, without qualifying for bonuses and paying a higher cost for medical insurance coverage.
Husband received from his previous employer after he was laid-off one-time payments including a pre-tax severance of $84,500.00 and a bonus, unpaid vacation and remaining salary totaling at least $28,362.
Wife, currently age 52, has been employed by Salt River Project since May 2002 and has been an Investment Recovery Specialist for SRP for about the past seven years. Wife's current income is $70,128 and Wife earned a total of $75,128 in 2012 with the receipt of a $5,000 bonus.
SRP provides to Wife health insurance benefits, a 401(k) plan and Wife qualifies for a pension program.
Neither Husband nor Wife has a college degree. Testimony was given at the divorce trial that Wife was "capped" at SRP at her earnings level until Wife was able to obtain her bachelor's degree. Wife has continued to receive salary increases.
Wife had earned about 60 college credits at the time of the parties' divorce trial and testified that it would take 8 to 10 years to obtain a bachelor's degree while working full-time. Wife has currently completed 100 college credit hours and is only 24 credit hours away from a degree. Wife last attended
college in 2011, and testifies that obtaining a degree is not a priority and that she is content with her present position.Based on these findings, the court explained that "Husband's ongoing income appears to have decreased and more importantly, Wife's income and financial resources have increased at a greater percentage level along with a corresponding decrease in her living expenses. Wife has increased her assets including her retirement." The court then determined that after considering all the relevant factors, the 2006 spousal maintenance award "should be modified as to the amount and term."
Wife received approximately $30,000.00 in retirement funds from the divorce and has been able to save approximately $76,000.00 since the Decree. Wife has around $107,000.00 in her retirement account and also participates with SRP in a separate defined benefit pension. Wife currently contributes $784.00 per month toward retirement, which is $484.00 more per month than contributed in 2006.
Wife's child support obligation of $634.44 payable to Husband ended in June 2007, when the remaining minor child reached the age of majority.
Both parties are currently cohabitating with a significant other who is contributing financial assistance of at least $350.00 per month to each party. Wife's boyfriend assists Wife in the management of rental property. Wife currently lives in a 3,859 square foot five-bedroom, four-bathroom residence in a gated community with a swimming pool on an 18,475 square foot lot previously owned by her boyfriend.
In addition to the current residence purchased for $315,000.00, Wife has purchased three other rental properties some of which Wife has quitclaimed to her live-in boyfriend which are managed by him. Husband claims that Wife receives rental income in cash that Husband claims to be significant and Wife argues is offset by associated expenses. The parties agree that one property leases for $775.00 per month cash or possible income to Wife of $9,300.00 yearly.
Wife's total living expenses as stated on her Affidavit of Financial Information were $10,895.00 on August 17, 2006, and have decreased to $7,288.00 as listed on Wife's June 29, 2012, Affidavit of Financial Information, or a decrease of $3,607.00. Wife's debt and credit card payments have also declined by $266.00 per month.
¶17 Notwithstanding her assertion that the trial court's findings were inadequate, Wife also argues that many of the court's findings are unsupported by the evidence, including (1) the calculation of Husband's income; (2) the calculation of Wife's income; (3) other changes in Wife's financial circumstances; and (4) Wife's intent to obtain a college degree.
¶18 Wife contends the trial court made an incorrect comparison because her salary increases since the decree was entered have been offset by losses on her investment property (also purchased post-decree) and that Husband had not had a significant decrease in salary, despite losing his job. Based on the evidence at trial, the court found that Husband had been laid-off and was now making less than he had been at the time of divorce, while Wife remained employed and was earning more than she had been. The court also considered Wife's ability to purchase a larger home and contribute to a retirement account, and that she was no longer required to pay child support for their youngest son. In fact, the court found that Wife's stated monthly living expenses had decreased by more than $3500 per month. Finally, the court found that neither party had a college degree, but Wife had earned 40 college credits since the divorce and was approximately 20 credits away from her degree. The court's findings were not clearly erroneous. Because Husband presented evidence sufficient to show a substantial and continuing change in the parties' financial circumstances since the time the dissolution decree was entered, we cannot conclude the court abused its discretion in modifying the spousal maintenance award.
¶19 Wife also challenges the trial court's denial of her motion for new trial. In support of that motion, and on appeal, Wife makes the same arguments as she did in support of her appeal from the modification—that the ruling was legally erroneous, not supported by evidence, and that the court failed to make adequate findings. A grant or denial of a motion for new trial is within the sound discretion of the trial court and will not be upset absent clear abuse of discretion. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10, 222 P.3d 909, 912 (App. 2009). Based on our conclusion that the court did not abuse its discretion by modifying the maintenance award and because wife presents no additional arguments as to why the court's denial was an abuse of discretion, we also affirm the denial of Wife's motion for new trial.
C. Denial of Motion to Reopen the Decree
¶20 Wife argues that the trial court erred in denying her post-trial motion to re-open the decree to allow Wife to make a claim for equitable distribution of Husband's 2012 severance pay. We review an order denying a motion for relief from judgment for abuse of discretion. Tovrea v. Nolan, 178 Ariz. 485, 490-91, 875 P.2d 144, 149-50 (App. 1993).
¶21 Wife's motion originally stated grounds for relief from judgment under Rule 85(C)(1)(b), which allows a party relief from a judgment or decree for "newly discovered evidence." However, in her response to Husband's motion to dismiss her Rule 85(C) motion, Wife conceded that the severance package is not newly discovered evidence, and instead moved to reopen the decree pursuant to the catch-all provision allowing relief for "any other reason justifying relief from the operation of the judgment." See Ariz. R. Fam. L.P. 85(C)(1)(f). Wife argues that it would be "inequitable to allow [Husband] to keep all of the community's interest in [the] severance award" because "it was the community's time and efforts that allowed [Husband] to obtain [it]." She also asserts the court should have set the matter for an evidentiary hearing to determine the merits of her claim.
¶22 Provisions as to property disposition in a dissolution decree "may not be revoked or modified[] unless the court finds the existence of conditions that justify the reopening of a judgment under [Arizona law.]" A.R.S. § 25-327(A). To justify reopening of a judgment under Rule 85(C)(1)(f), there must be "extraordinary circumstances of hardship or injustice." Edsall v. Superior Court, 143 Ariz. 240, 243, 693 P.2d 895, 898 (1984) (applying ARCAP 60(c)(6)). In ruling on Wife's motion, the court found that Wife failed to show that the community has any interest in the severance package, which Husband received six years after the dissolution decree was entered, and that the severance pay was Husband's sole and separate property. Apart from her general allegation that it would be "inequitable" to allow Husband to receive the entire amount of his severance pay, Wife has cited no authority supporting her claim of a community interest in Husband's severance pay. Nor does Wife identify any "extraordinary circumstances of hardship or injustice." The court therefore acted within its discretion in denying Wife's motion to reopen the dissolution decree.
D. Attorneys' Fees
¶23 Pursuant to A.R.S. § 25-324(A), a court may award attorneys' fees and costs in a dissolution proceeding after considering the parties' relative financial resources and the reasonableness of their positions throughout the litigation. We review the trial court's decision to award fees, as well as the amount awarded, for an abuse of discretion. See Cohen v. Frey, 215 Ariz. 62, 68, ¶ 18, 157 P.3d 482, 488 (App. 2007).
¶24 Wife contends the trial court abused its discretion in failing to award Wife "all or most" of the fees requested because Husband had a much greater ability to pay. She argues further that the trial court abused its discretion by failing to make specific findings pursuant to A.R.S. § 25-324(A) and Rule 82 explaining "why that financial disparity prevents a full award of Wife's requested [attorneys'] fees."
¶25 The trial court awarded Wife $3500 of the $17,018.10 she incurred in attorneys' fees and costs. Section 25-324(A) requires the court, upon request of a party, to "make specific findings concerning the portions of any award of fees and expenses that are based on consideration of financial resources and . . . reasonableness of positions." (Emphasis added.) Even assuming that Wife made a timely request for findings under § 25-324(A) by raising the issue for the first time in her motion for new trial, the court expressly found (1) that "neither party acted more unreasonably than the other" and (2) that Husband "has had greater financial resources during this litigation than Wife" because of his severance package. Because the court specifically stated it did not find either party acted unreasonably, then a fair reading of the court's order is that all of the $3500 award was based on the court's consideration of financial resources. Contrary to Wife's position, § 25-324 does not require a court to make specific findings explaining its decision to award a reasonable fee that is less than the full amount requested. Given the trial court's broad discretion under § 25-324, we cannot say the court abused its discretion in directing Husband to pay only a portion of Wife's requested fees.
¶26 Both Husband and Wife request attorneys' fees on appeal pursuant to A.R.S. § 25-324. Neither party has taken an unreasonable position on appeal and we have no current information regarding the parties' financial resources. Accordingly, in the exercise of our discretion, we decline to award attorneys' fees or costs to either party.
CONCLUSION
¶27 For the foregoing reasons, we affirm the trial court's orders.
Schweiger v. China Doll Restaurant, 138 Ariz. 183, 673 P.2d 927 (App. 1983).