Opinion
No. 1 CA-CV 14-0499 FC
07-28-2015
In re the Marriage of: ANNALISA STEELE, Petitioner/Appellee, v. DAVID WAYNE STEELE, Respondent/Appellant.
COUNSEL Owens & Perkins, P.C., Scottsdale By Max Nicholas Hanson Counsel for Petitioner/Appellee Childers & Huey, PLC, Scottsdale By Joseph M. Huey Counsel for Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FN2013-094179
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL Owens & Perkins, P.C., Scottsdale
By Max Nicholas Hanson
Counsel for Petitioner/Appellee
Childers & Huey, PLC, Scottsdale
By Joseph M. Huey
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court in which Judge John C. Gemmill and Judge Randall M. Howe joined. BROWN, Judge:
¶1 David Wayne Steele ("Husband") appeals from the trial court's decree of dissolution. He argues the court abused its discretion in denying his request for spousal maintenance. For the following reasons, we affirm.
BACKGROUND
¶2 Husband and Annalisa Steele ("Wife") married in August 1992. Since 2004, Wife has been employed as a project manager at a software company and Husband has been primarily unemployed. In November 2013, Wife filed a petition for dissolution of the marriage. The parties have no children.
¶3 Husband promptly moved for an interim award of spousal maintenance, along with exclusive use of the parties' marital residence and Wife's continued payment of community obligations, including their mortgage, during the pendency of the dissolution proceedings. Husband also sought $10,000 in interim attorneys' fees pursuant to Arizona Revised Statutes ("A.R.S.") section 25-324. The trial court held an evidentiary hearing on Husband's motion and adopted the parties' agreed-upon terms, ordering: (1) Wife to continue to pay all community bills, including the mortgage, (2) Husband to have exclusive use of the marital residence, and (3) Wife to pay Husband $600 per month as temporary spousal maintenance. The court also denied Husband's fee request, explaining that "neither party can afford to pay additional attorney[s'] fees" because Wife had paid her attorney a $7,500 retainer, Husband had paid his attorney a $9,700 retainer, and Husband had withdrawn an additional $7,000 from the parties' joint checking account. The court also ordered the marital residence to be listed for sale "immediately."
¶4 Prior to trial, Husband and Wife participated in alternative dispute resolution and entered into a settlement agreement pursuant to Arizona Rule of Family Law Practice 69. The agreement divided the parties' personal property, assets, and obligations, and also provided that the marital residence would be sold. In April 2014, Wife lodged notice of an "Order/Judgment on Partial Findings pursuant to Rule 69," which the trial court later adopted.
¶5 Because of their Rule 69 agreement, the primary issue before the court at trial was spousal maintenance. In the joint pretrial statement, Husband alleged he was unemployed and unable to work due to his chronic physical and mental health issues and sought either an indefinite spousal maintenance award of $1,800 per month, or an award of $1,138.50 per month for 6.3 to 10.5 years. Wife took the position that she should not be ordered to pay any spousal maintenance.
¶6 Wife testified, and her affidavit of financial information confirmed, that she earned $6,588 per month gross income working as a project manager at a software company. Wife explained that her monthly income after taxes was approximately $4,490, but the couple's monthly expenses totaled $5,332.44, not including the $600 per month that Wife paid to Husband as interim spousal maintenance. Included in the monthly expenses amount was the couple's monthly mortgage obligation of $1,012, monthly utility costs of $665, and Wife's rent payments of $400 per month, which she had been paying to "rent a room" from a friend after moving out of the marital residence in November 2013. Wife also testified she would be unable to afford to move out of her rented room until the marital residence was sold. Because monthly community expenses exceeded Wife's net income, Wife testified she had been using her half of the couple's savings and various credit cards to continue to pay the couple's bills during the pendency of the dissolution. Wife explained that, upon sale of the marital residence, her monthly obligations would be reduced to about $4,000. On cross-examination, Wife acknowledged that she would save an additional $365 per month when she stopped paying for Husband's health insurance premiums ($185) and for the cost of pool upkeep and pest control ($180). Wife further acknowledged she had erroneously deducted as a "necessary expense" her $155 per month contribution to a retirement savings account. With after-tax income of $4,490 per month, Wife opined that she would not have sufficient funds to pay Husband any spousal maintenance.
¶7 The parties stipulated to the admission of Husband's medical records chronicling his treatment during the marriage. Husband suffered a work-related back injury in 1984, but was cleared to return to work in 1990 and stopped receiving disability payments. Husband claims that he still suffers low back pain arising out of that injury, but has not reapplied for disability benefits. In 2000, Husband was treated for allergies, but voluntarily stopped treatment in 2003. From 2003-2005, Husband was treated for depression and prescribed medication by a psychiatrist. His provider terminated his treatment because he missed appointments and failed to follow up with medical recommendations. Husband again sought treatment for food allergies in 2010, but comprehensive testing failed to reveal any apparent allergies. Between 2004 and 2014, Husband also sought treatment for "head and neck pain, facial paresthesias, severe shoulder pain, memory issues, thyroid issues, allergic rhinitis, extreme food intolerance, plant allergies, asthma, and acute sinusitis" from his primary care providers.
¶8 In August 2013, Husband was involuntarily admitted for a ten-day hospitalization because he was experiencing severe depression and expressing suicidal thoughts. Soon after, Husband entered treatment with Partners in Recovery and underwent a psychological evaluation in September 2013. The evaluating physician observed that Husband was not suffering from major depression and noted that, despite Husband's "multiple somatic complaints," Husband has been told that "no medical cause can be found of (sic) his symptoms." Husband underwent a follow-up assessment in October 2013, during which his behavioral health therapists recommended Husband for services from the Arizona Department of Economic Security to help him obtain a vocational license. Husband indicated at trial that he had not yet attempted to participate in the recommended vocational services.
¶9 Husband continued to receive treatment up to the time of trial, although his treating psychiatrist noted in November 2013 that Husband's symptoms seemed to be in remission and Husband was benefiting from his medications. Aside from the August 2013 psychiatrist's report declaring him permanently or acutely disabled for purposes of involuntary psychological treatment, Husband did not present expert testimony or other evidence supporting his assertion that he is unable to work due to his mental health condition. At the time of trial, Husband testified he was taking medications for anxiety and depression, which had been prescribed for him when he was released from the hospital in August 2013.
Husband moved to allow his treating physician from Partners in Recovery, Dr. Safdar Ali, to testify at the dissolution proceeding. According to Husband's attorney, Dr. Ali planned to testify regarding Husband's mental state, but would not be testifying as an expert because he would not be asked to opine as to whether husband is permanently disabled. Wife objected, arguing that Husband had not disclosed Dr. Ali as a witness by the April 8 disclosure deadline. The trial court ruled in Wife's favor and Dr. Ali did not testify. --------
¶10 Regarding Husband's employment history, Wife testified that when the couple first married, Husband was employed in sales at a camping retail store and that Husband is a very skilled, self-taught "mechanic, welder, [and] machinist." According to Wife, Husband had been working intermittently between 2004 and 2014 and Husband's last employment was working at an auto shop several years ago. Wife explained Husband was employed only minimally during the past five years because he was trying to start his own business buying salvage vehicles to repair and sell. During that same ten-year period, Wife testified Husband began seeing multiple doctors for "a variety of complaints," but often failed to continue with treatments prescribed by his physicians. When Wife asked Husband to try to find employment, Husband told her he did not want to work for someone else. Wife also testified that she was not aware that Husband had any medical restrictions on his activity, and that he never declined to go on the couple's camping trips or other recreational activities. On cross-examination Wife admitted that Husband had been hospitalized in August 2013 due to his self-harming behaviors.
¶11 Husband testified, and reported in his affidavit of financial information, that he was last employed as a teacher's aide in 1998. However, Husband also confirmed Wife's testimony that he worked part-time at an auto shop in 2004. According to Husband's psychological assessments conducted in fall 2013, Husband described himself to psychiatrists as a "skilled mechanic and machinist" and an "excellent auto mechanic." Husband also testified he had a high school diploma and attended trade school in 1998 to learn computer-aided engineering, but did not finish the program. When asked about his willingness to participate in vocational training, as suggested by his behavioral health therapist, Husband stated "I do what they tell me to do" and "[w]e are not at that point to say I can't work." Husband denied having gone on any vacations with Wife since 2004, but admitted that he took a trip to Utah and Wyoming in December 2013. Husband also testified that he had not applied for Supplemental Security Income (SSI) or other disability benefits and admitted that he had received an award letter for food stamps, but had not used the aid.
¶12 The trial court made findings of fact regarding each of the A.R.S. § 25-319(A) and (B) factors and ordered that Wife did not owe Husband spousal maintenance. The court further ordered Husband to vacate the marital residence to facilitate its sale and to indemnify wife for certain obligations Husband incurred after service of the petition and arising out of property awarded to Husband. The court declined to award either party an offset for moneys withdrawn by both or to award attorneys' fees, finding that Wife earned more than Husband, but that Husband had "repeatedly taken unreasonable positions throughout [the] litigation" and concluded that it was "appropriate" for each party to bear their own fees and costs. Husband timely appealed.
DISCUSSION
¶13 Husband contends the trial court erred by denying his request for spousal maintenance because reasonable evidence does not support the court's findings of fact. We review the award of spousal maintenance for an abuse of discretion, Cullum v. Cullum, 215 Ariz. 352, 354, ¶ 9 (App. 2007), and, in doing so, view the evidence in the light most favorable to Wife. Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14 (App. 1998). We will affirm the court's rulings if there is any reasonable evidence to support them. Id. We do not reweigh conflicting evidence or redetermine the preponderance of the evidence on appeal. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).
A. Spousal Maintenance
¶14 A trial court may award spousal maintenance if it determines that the spouse seeking maintenance meets any one of the four requirements set forth in A.R.S. § 25-319(A). Gutierrez, 193 Ariz. at 348, ¶ 15. If one or more of those requirements is met, the superior court then must consider the factors set forth in A.R.S. § 25-319(B) in determining the amount of the award. Id.
¶15 The trial court did not expressly find in its dissolution decree that Husband met any of the four spousal maintenance eligibility requirements set forth in § 25-319(A). Wife contends that because the trial court did not explicitly find that Husband was eligible for spousal maintenance pursuant to § 25-319(A), denial of spousal maintenance was appropriate on that basis alone. Husband argues that the trial court's finding—that "neither party has sufficient property to provide for their reasonable needs"—implicitly found that Husband lacked sufficient property to provide for his needs and thus met the requirement for maintenance set forth in A.R.S. § 25-319(A)(1). Husband further argues that the court's findings with regard to A.R.S. § 25-319(B)(3), (4), (5), and (9) were not supported by the evidence at trial and that the court abused its discretion by failing to award Husband spousal maintenance. Because the court went on to make specific findings as to each of the § 25-319(B) factors, we presume the trial court found that Husband was eligible for spousal maintenance pursuant to one of the § 25-319(A) threshold requirements and thus we address Husband's arguments regarding the sufficiency of the evidence supporting the court's findings.
¶16 Husband first argues that the trial court "ignored" evidence of Husband's depression and mental health issues and substituted its medical opinion in place of Husband's physicians' opinions in analyzing § 25-319(B)(3), which requires the court to consider "[t]he age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance." The trial court explained its findings under § 25-319(B)(3) as follows:
Husband is young enough to obtain appropriate employment. Husband has been employed in the past during his periods of purported permanent disability, but only intermittent labor while being paid under the table. Husband can be appropriately employed as a machinist or mechanic. The Court has insufficient evidence that Husband is permanently disabled as alleged, and his lack of employment stems primarily from his refusal to seek and obtain employment. Husband has not applied for Social Security disability benefits. Allergies, depression in midlife over the dissolution of a marriage of a long duration, and aches and pains in the body of a fifty year old man do not constitute permanent disabilities. Lastly, Husband often unilaterally discontinued medical treatment for each of these conditions, and was regularly noncompliant with the prescribed treatments.
¶17 In particular, Husband takes issue with the court's finding that there was insufficient evidence showing he is "permanently disabled as alleged." Without citation to the record, Husband asserts that this finding is "contradicted by the substantial medical records and physician opinions presented at trial" and is not supported by other evidence.
¶18 Wife testified that Husband had the skills to work as a machinist or mechanic and spent time while he was unemployed buying, repairing, and reselling salvaged vehicles. Husband testified that he had not been able to work on cars for "ten years." However, Husband reported to therapists as recently as October 2013 that he is a "skilled mechanic and machinist" and an "excellent auto mechanic."
¶19 Regarding Husband's health, numerous medical records were admitted into evidence. However, the records do not include any determination by Husband's physicians that Husband suffers from a permanent disability or is medically unfit to work. Husband was found to be "persistently or acutely disabled" due to severe depression for purposes of his involuntary hospitalization several months prior to trial, but the evaluating physician did not opine on Husband's fitness to work. After his hospitalization, Husband was prescribed anti-depressants and anti-anxiety medication. His treating physician noted that Husband's symptoms seemed to be in remission and Husband was benefiting from his medications. Husband did not present any expert witness testimony regarding his medical conditions or whether he was medically able to work. Husband also admitted that he had not applied for SSI or other disability benefits, despite offers from his case manager to assist him in that process.
¶20 We presume that a trial judge has considered the evidence presented before making a decision. Fuentes v. Fuentes, 209 Ariz. 51, 55, ¶ 18 (App. 2004). As such, we presume that the trial court considered and weighed the evidence of Husband's depression and other mental health issues prior to its determination that there was insufficient evidence to find that Husband is permanently disabled and unable to work. Based on the testimony of Wife and Husband, and the observations of Husband's treating physicians, we conclude that reasonable evidence supports the court's finding that Husband is able to obtain appropriate employment.
¶21 Husband next contends that in considering "[t]he ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance" pursuant to A.R.S. § 25-319(B)(4), the trial court erroneously found that Wife would not be able to meet her own needs while paying spousal maintenance because the evidence presented at trial showed that Wife would have over $3,400 in monthly income net of expenses once the marital residence was sold.
¶22 In fact, Wife testified that her monthly expenses would decrease from $5,332.44 to approximately $4,000 upon sale of the couple's marital residence, assuming that she continued to rent at $400 per month. Adjusting for Wife's subsequent admission that she would save an additional $365 and that she had erroneously included a $155 per month retirement contribution as an expense, Wife's anticipated monthly expenses after dissolution were $3,480. Wife also presented evidence that, while her gross monthly wages were $6,588, her after-tax income was $4,490 per month. Thus, the uncontroverted evidence at trial indicates that Wife would have approximately $1,010 in monthly income net of expenses, not $3,400 as Husband alleges. Husband sought a spousal maintenance award of, at minimum, $1,138.50 per month, or, at maximum, $1,800 per month at the outset of the dissolution proceedings, which Wife opined she would not be able to pay while still meeting her own needs. The court's finding that "Wife will not be able to meet her own needs if ordered to pay the amount of spousal maintenance requested by Husband" is supported by the record.
¶23 Husband further argues that the trial court failed to properly compare the financial resources and earning abilities of each party, as required by § 25-319(B)(5). Similarly, Husband contends that the court erred in analyzing Husband's ability to meet his own needs independently pursuant to § 25-319(B)(9) because the evidence presented "overwhelmingly established" that Husband was unable to meet his financial needs independently due to his mental health issues. Like § 25-319(B)(5), (B)(9) requires the trial court to consider "the financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse's ability to meet that spouse's own needs independently." A.R.S. § 25-319(B)(9) (emphasis added). Again Husband provides no citation to the record to support his claims regarding evidence of his inability to obtain employment.
¶24 With regard to § 25-319(B)(5), the trial court found that "[b]oth parties will be using the equity in the marital residence to reduce their debt, and will share the remaining proceeds equally." Despite Husband's assertions that the court failed to make any determination of Husband's earning ability, the court found, in the context of § 25-319(B)(9), that "Husband will be using the equity in the marital residence to reduce his debt, and will be receiving half of Wife's retirement assets." The court also found, in relation to factor (B)(3), that Husband "is young enough to obtain appropriate employment," "has been employed . . . during his periods of purported permanent disability," and "can be appropriately employed as a machinist or mechanic."
¶25 Pursuant to the parties' Rule 69 agreement, Husband is entitled to receive one-half of Wife's retirement account and one-half of the equity in their marital residence once sold, which the trial court recognized when it implicitly determined that Husband would have some financial resources upon dissolution of the marriage. Evidence presented at trial also indicated that Husband had received some training in computer-assisted engineering, worked previously at a mechanic's shop, and engaged in repairing and reselling vehicles during his period of unemployment. Thus, the evidence supports the court's findings that Husband will obtain some financial resources upon dissolution and has the ability to meet his own needs independently in the future.
¶26 In sum, the record indicates that the trial court properly considered each of the A.R.S. § 25-319(B) factors and the evidence presented supports each of the court's findings. See Hurd, 223 Ariz. at 52, ¶ 16 (appellate court does not reweigh the evidence on appeal). To the extent Husband argues the trial court erred in awarding zero spousal maintenance, we presume the court considered a lesser award and determined that such an award was not justified based on the evidence presented. See Elliott v. Elliott, 165 Ariz. 128, 135 (App. 1990) (holding appellate court may "infer that the trial court has made the additional findings necessary to sustain its judgment" if such findings are reasonably supported by the evidence and do not conflict with the express findings). Given the substantial discretion allocated to the trial court in setting both the amount and duration of spousal maintenance, on this record, we cannot say that the trial court erred in determining that Husband was not entitled to an award of spousal maintenance. See A.R.S. § 25-319(B) (stating that trial court may award spousal maintenance "in an amount and for a period of time as the court deems just"); Rainwater v. Rainwater, 177 Ariz. 500, 502 (App. 1993) (recognizing that trial court has substantial discretion to set the amount and duration of spousal maintenance).
B. Attorneys' Fees
¶27 Both Husband and Wife request awards of attorneys' fees on appeal pursuant to A.R.S. § 25-324, which authorizes such an award after consideration of the financial resources of the parties and the reasonableness of their positions. In the exercise of our discretion, we deny both requests. As the prevailing party on appeal, however, Wife is entitled to an award of statutory, taxable costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶28 For the foregoing reasons, we affirm the trial court's decree of dissolution.