Opinion
No. 2 CA-CV 2018-0098
03-11-2019
IN RE THE MARRIAGE OF JEFF CARROLL, Petitioner/Appellant/Cross-Appellee, and LINDA M. CARROLL, Respondent/Appellee/Cross-Appellant.
COUNSEL Berkshire Law Office PLLC, Tempe By Keith Berkshire and Erica Gadberry Counsel for Petitioner/Appellant/Cross-Appellee Ann Nicholson Haralambie, Attorney P.C., Tucson By Ann M. Haralambie Counsel for Respondent/Appellee/Cross-Appellant
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NOT FOR PUBLICATION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)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. D20162638
The Honorable Paul E. Tang, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED; CROSS-APPEAL DISMISSED
COUNSEL Berkshire Law Office PLLC, Tempe
By Keith Berkshire and Erica Gadberry
Counsel for Petitioner/Appellant/Cross-Appellee Ann Nicholson Haralambie, Attorney P.C., Tucson
By Ann M. Haralambie
Counsel for Respondent/Appellee/Cross-Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 Jeff Carroll appeals from the trial court's decree of dissolution of his marriage to Linda Carroll, arguing the court erred by attributing pre-retirement income to him in determining the amount of spousal maintenance. He also contends the court erred by awarding Linda a portion of his retirement benefits, which included his separate property, and by ordering that they share equally the cost of the retirement plan's survivor benefit option. For the following reasons, we vacate the decree in part and remand for proceedings consistent with this decision but otherwise affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming the decree. In re Marriage of Foster, 240 Ariz. 99, ¶ 2 (App. 2016). Jeff and Linda were married in 1982, and, in August 2016, Jeff filed a petition for dissolution of marriage. Following a settlement conference in June 2017, they agreed on the division of various community property and debts, and Jeff agreed to pay Linda $2,200 per month as temporary spousal maintenance. At the end of December, Jeff, who was sixty-five at the time, retired from his position as a contract administrator at IBM, where his gross monthly income was about $8,000. His resultant income from Social Security and his pension was approximately $3,200.
¶3 During a one-day trial on the remaining issues, including spousal maintenance, Jeff asked the trial court to terminate Linda's spousal maintenance because the award would constitute "a financial hardship for him" based on his post-retirement income. Linda countered that Jeff should be required to continue paying her spousal maintenance because his decision to retire was voluntary and he should not be able to "shirk his responsibilities" to her.
¶4 After taking the matter under advisement, the trial court issued its decree of dissolution the following month. In it, the court analyzed the factors identified in Pullen v. Pullen, 223 Ariz. 293 (App. 2009), to determine whether to attribute Jeff's pre-retirement or actual income to him. After doing so, it awarded Linda $2,900 per month in spousal maintenance until July 2024, when Linda would be eligible for her portion of Jeff's pension as well as Social Security. The maintenance award would then be reduced to $1,900 per month, until finally terminating in July 2044. The decree further allocated the remaining community property and debts. Jeff appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Linda filed a notice of cross-appeal from the trial court's denial of her request for attorney fees. Her notice, however, was untimely as it was filed twenty-two days after Jeff's notice of appeal. See Ariz. R. Civ. App. P. 9(b). We therefore dismiss her cross-appeal. See In re Marriage of Thorn, 235 Ariz. 216, ¶ 5 (App. 2014) (failure to file timely notice of appeal deprives court of jurisdiction except to dismiss attempted appeal).
Spousal Maintenance
¶5 Jeff first argues the trial court erred by attributing his pre-retirement income to him when calculating the spousal maintenance award. Specifically, he contends that, at sixty-five years old, he has reached "full retirement age" and therefore should not be compelled to continue working in order to pay spousal maintenance. "We review whether a court can attribute greater income to a party de novo . . . ." Pullen, 223 Ariz. 293, ¶ 9. However, we review for an abuse of discretion whether the court properly applied certain factors in reaching that decision. See id.
¶6 When a party reduces their income, the trial court must consider, in addition to any other evidence, the following five factors when "determining whether to use actual income or earning capacity to calculate spousal maintenance":
(1) The reasons asserted by the party whose conduct is at issue; (2) The impact upon the obligee of considering the actual earnings of the obligor; (3) When the obligee's conduct is at issue, the impact upon the obligor of considering the actual earnings of the obligee and thereby reducing the obligor's financial contribution to the support order at issue; (4) Whether the party complaining of a voluntary reduction in income acquiesced in the conduct of the other party; and (5) The timing of
the action in question in relation to the entering of a decree or the execution of a written agreement between the parties.Id. ¶¶ 15, 18. "[T]he ultimate test is to determine whether the decision to leave employment was voluntary and reasonable but it must be commensurate with the party's support obligations so as not to deprive the obligee of the support to which he or she is entitled." Id. ¶ 16. Consequently, this test balances the need to protect the spouse entitled to maintenance with allowing the paying spouse to make decisions about their livelihood. Id. ¶ 17.
¶7 Jeff initially maintains that "Pullen does not apply to retirement." Despite acknowledging that "all retirement is 'voluntary,'" he contends that sixty-five is "the presumptive age of retirement," and, so long as the decision is made in good faith, a retiree "should not be attributed any [additional] income." He argues this case is instead controlled by Chaney v. Chaney, 145 Ariz. 23 (App. 1985), which involved the modification of a spousal maintenance award upon the paying spouse's retirement.
¶8 As a preliminary matter, Jeff did not raise this argument below. During closing arguments he expressly addressed the Pullen factors and argued that, under those factors, the trial court should base the award on his actual income, and not his earning capacity. At no point did he contend that Pullen was inapplicable or that Chaney controlled the court's analysis.
¶9 Moreover, Chaney, as well as the other out-of-state authority on which Jeff relies, is readily distinguishable from the issue here. See, e.g., In re Marriage of Swing, 194 P.3d 498, 499 (Colo. App. 2008) (whether retirement constitutes change in circumstances justifying maintenance modification); In re Marriage of Reynolds, 74 Cal. Rptr. 2d 636, 637-38 (Ct. App. 1998) (same); Bickel v. Bickel, 95 S.W.3d 925, 927-28 (Ky. Ct. App. 2002) (same); Bogan v. Bogan, 60 S.W.3d 721, 724 (Tenn. 2001) (same). The primary question when modifying a spousal maintenance award is whether there has been a substantial and continuing change of circumstances since entry of the decree. See A.R.S. § 25-327(A); see also Marquez v. Marquez, 132 Ariz. 593, 595 (App. 1982).
¶10 Conversely, after determining an award of spousal maintenance is appropriate, see A.R.S. § 25-319(A), the trial court must consider and balance the statutory factors set forth in § 25-319(B) to establish the amount and duration. These factors include "[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," the spouses' "comparative earning abilities," the standard of living during the marriage, and the ability of the spouse seeking maintenance to be self-sufficient. § 25-319(B)(1), (4), (5), (9). Accordingly, whether a party's retirement constitutes a substantial and continuing change of circumstances justifying the modification of a spousal maintenance award does not inform our analysis of whether the court properly considered Jeff's earning ability based on his pre-retirement employment or balanced the factors set forth in § 25-319(B). See Reeves v. Reeves, 146 Ariz. 471, 473 (App. 1985) (court not required to take husband's desire to retire shortly after decree into account in setting spousal maintenance because "voluntary retirement does not affect one's ability to earn in the labor market"); see also Bogan, 60 S.W.3d at 730 ("need of the spouse [receiving maintenance] must necessarily be the most important factor" in initial maintenance award, whereas in modification action "a substantial and material change in circumstances demands respect for other considerations").
¶11 Jeff alternatively argues the trial court erred by concluding his retirement was voluntary. He reasons that because Pullen only applies to voluntary reductions in income, Pullen is inapplicable here because he was forced to retire. Below, however, he never argued his retirement was involuntary, or that Pullen was inapplicable on this basis. Accordingly, he has waived this issue for review. See Orfaly, 209 Ariz. 260, ¶ 15. Even assuming, however, the issue was not waived, sufficient evidence supported the court's conclusion. See Pullen, 223 Ariz. 293, ¶¶ 9, 24.
¶12 At trial, Jeff testified that IBM's declining performance had caused "layoffs basically [every] quarter" since 2010. One result of those layoffs was that his workload had increased, and, just before retiring, he was working approximately fifty hours per week. Jeff also stated he was "not competitive anymore at IBM" without further education. Following his daughter's death in 2017, Jeff found he "wasn't very good at work anymore, at focus and functioning," which "intensified [his] decision" to retire. Although these facts suggest that his decision to retire was reasonable, they do not demonstrate he was forced to retire.
¶13 Jeff also, however, points to his testimony that IBM's "corporate policy" dictated retirement at sixty-five and that he would "forfeit [his] pension" if he did not retire then. He did not, however, provide any documentation to support these claims. The trial court was thus free to reject Jeff's unsupported self-serving testimony that IBM forced him to retire. See Aranda v. Cardenas, 215 Ariz. 210, ¶ 34 (App. 2007) (self-serving testimony not barred, but rather "matter of credibility for the fact-finder"); see also Graham v. Vegetable Oil Prods. Co., 1 Ariz. App. 237, 241 (1965) ("[T]he trial court is not bound to accept as true the uncontradicted testimony of an interested party.").
¶14 On the other hand, Jeff answered "[y]es" when asked if he "voluntarily retired for personal reasons." He further acknowledged that he had no physical health issues or "mental disorders" preventing him from working. Linda testified that, in discussions she and Jeff had before they separated, Jeff had planned to "work longer than 65." Accordingly, sufficient evidence supports the trial court's conclusion that Jeff's retirement was voluntary. See Pullen, 223 Ariz. 293, ¶ 9; see also In re Marriage of Thorn, 235 Ariz. 216, ¶ 38 (App. 2014) (appellate court will not reweigh evidence or determine witness credibility); Chaney, 145 Ariz. at 27 (retirement involuntary where husband sixty-five and "had numerous health conditions affecting his ability to work").
¶15 Turning to the Pullen factors in this case, Jeff appears to assert the trial court did not properly balance or give proper weight to them. As to the first factor, the court considered Jeff's testimony that he had "both personal and professional reasons" for retiring. Professionally, it noted "his pension was frozen and . . . could no longer realize further growth," IBM's performance was declining in his specific department, and "he could no longer be viewed as competitive without further education." And the court observed that from a personal standpoint, Jeff testified he had suffered from a lack of focus following the death of his and Linda's daughter the previous year. The court noted that Jeff had testified the "business practices at IBM essentially compelled his retirement," but ultimately concluded it was "persuaded . . . [Jeff] chose to depart voluntarily."
¶16 Next, as to the second and third factors, the trial court found that considering Jeff's actual earnings would have a "detrimental impact" on Linda given her inability to be self-sufficient. Both Linda and her doctor testified that she could not work full-time or in a traditional workplace setting due to her health issues. At the time of the decree, Linda was working one day a week in a doctor's office and cared for a toddler up to three days a week, earning about $650 per month. She also received $188 per month from her own pension. She estimated her necessary monthly expenses totaled $4,200.
¶17 Addressing the fourth and fifth factors, the trial court pointed out that Linda did not agree to Jeff's retirement and that he made the decision "with [the] trial on issues like spousal maintenance still pending." Indeed, Jeff had not discussed the decision with Linda and instead "advised her [that he] was retiring." According to Linda, Jeff told her "find a real job because he was not going to pay [her] any spousal maintenance." This is supported by Jeff's testimony that he believed "[s]ubsequent to retiring, [he] wouldn't be required to pay spousal maintenance."
¶18 In sum, we conclude the trial court considered the appropriate factors and other evidence presented when determining whether to impute Jeff's pre-retirement income to him. See Pullen, 223 Ariz. 293, ¶¶ 9, 18. Although other courts may have reached different conclusions when applying those factors, we cannot say the court here abused its discretion in doing so. See id. ¶¶ 9, 20; see also In re Marriage of Inboden, 223 Ariz. 542, ¶ 7 (App. 2010).
¶19 Jeff nevertheless argues that he "deserves to retire because of his age," thus making the timing of his retirement coincidental. He contends the trial court "should have honored [his] decision to retire and awarded spousal maintenance, if any, based upon his lower retirement income." We do not dispute that, after a lifetime spent working, it is not unreasonable to retire at sixty-five. See Marriage of Swing, 194 P.3d at 501 (recognizing sixty-five is traditional retirement age). But that decision, even when made in good faith, can be unreasonable when balanced against the other spouse's entitlement to support. See Pullen, 223 Ariz. 293, ¶ 16; cf. Bogan, 60 S.W.3d at 729 ("[W]hile bona fide retirement after a lifetime spent in the labor force is somewhat of an entitlement, an obligor cannot merely utter the word 'retirement' and expect an automatic finding of a substantial and material change in circumstances.").
¶20 Here, Jeff and Linda were married for thirty-five years and, according to the trial court, enjoyed an "upper middle class" lifestyle. The principal objective of spousal maintenance is for each party to achieve independence, but that "goal 'must be balanced with some realistic appraisal of the probabilities that the receiving spouse will in fact subsequently be able to support herself in some reasonable approximation of the standard of living established during the marriage.'" Rainwater v. Rainwater, 177 Ariz. 500, 503 (App. 1993) (quoting Sommerfield v. Sommerfield, 121 Ariz. 575, 578 (1979)). Given Linda's limited earning ability, she "could not foreseeably [be] expect[ed] to maintain her standard of living without ongoing support from [Jeff] at a level reasonably within his ability to provide." Id. at 504. Moreover, although "a divorced spouse cannot expect to receive the same high level of support after the supporting spouse retires," Marriage of Reynolds, 74 Cal. Rptr. 2d at 640, Jeff's failure to consult with Linda before he retired deprived her of any opportunity to anticipate and prepare for such a reduction in income. Under the circumstances, we cannot say the court erred in balancing Jeff's desire to retire with Linda's entitlement to and need for spousal maintenance. See Pullen, 223 Ariz. 293, ¶¶ 9, 16-17.
In his reply, Jeff asserts that the trial court's award is essentially unmodifiable because at the time of the decree he was already retired and thus cannot later show a change in circumstances should he remain retired or unable to find work. See § 25-327(A); see also MacMillan v. Schwartz, 226 Ariz. 584, ¶ 12 (App. 2011) (changed circumstances supporting modification compared to circumstances existing at entry of decree). The court based its spousal maintenance award, however, on its finding that Jeff can "secure gainful employment . . . at a compensation package that will at worst match, if not at best exceed, his financial salary history at IBM." If Jeff is unable to do so, he may return to the court and present evidence that he cannot find a job allowing him to earn a salary comparable to his pre-retirement salary and seek a modification of the maintenance award. Cf. Schroeder v. Schroeder, 161 Ariz. 316, 322 (1989) (spousal maintenance awards represent trial court's prediction as to receiving spouse's ability to be self-sufficient and can be modified if prediction not realized).
¶21 Jeff further argues the trial court erred "by putting [Linda] in a better financial scenario tha[n Jeff]," relying on Leathers v. Leathers, 216 Ariz. 374 (App. 2007). In Leathers, Division One of this court concluded it was permissible for the trial court to award the wife one-half the value of the husband's Social Security benefits "so long as the trial court took into consideration that wife would likewise be drawing Social Security benefits in her own name . . . and how her pension might affect the award of spousal maintenance." Id. ¶ 16. On remand to recalculate the amount of spousal maintenance, the trial court was instructed to also reconsider this issue to ensure the award was equitable. Id.
¶22 It appears Jeff is arguing that, under Leathers, the trial court was required to conduct "a more in-depth analysis" if Linda were to end up with more financial resources than he did. The court, however, thoroughly addressed both parties' actual incomes and earning abilities, and Linda's financial resources in its decree, as it was required to under § 25-319(B), in addition to the Pullen factors. Moreover, based on Jeff's imputed income, Linda would not have more financial resources than him. Jeff's reliance on Leathers is unavailing.
401(k) Valuation Date
¶23 Jeff argues the trial court erred in setting the valuation date of his pension—a 401(k) plan—about eight months after the divorce petition was served. He contends this awarded Linda a portion of his sole and separate property, which the court lacked jurisdiction to do. "Whether a family court has jurisdiction is a question of law we review de novo." Marriage of Thorn, 235 Ariz. 216, ¶ 16.
¶24 Below, both parties agreed that Jeff's income, and thus contributions to his 401(k), up through September 1, 2016—the date of service of the petition for dissolution—was community property. See A.R.S. § 25-211(A) (all property acquired by spouses during marriage is community property). During Linda's closing arguments, she likewise recognized that Jeff's contributions to his 401(k) after the date of service were his separate property. See A.R.S. § 25-213(B) (property acquired by spouse after petition for dissolution served is separate property of that spouse); see also § 25-211(A)(2); Koelsch v. Koelsch, 148 Ariz. 176, 181 (1986).
¶25 In its decree, the trial court stated that, after taking the matter under advisement, it "conduct[ed] additional research." The court recognized that "only [Jeff's] earnings up to September 1, 2016 are characterized as a community asset," clarifying that Jeff's income from September through December of 2016 was his "sole and separate property." Citing Sample v. Sample, 152 Ariz. 239, 242-43 (App. 1986), however, it concluded that, "[i]n 'fairness,'" the valuation date for purposes of the Qualified Domestic Relations Order would be April 18, 2017, which represented "the date all contributions are due for the tax year-end 2016."
¶26 Jeff argues that "the trial court did not have subject-matter jurisdiction to award [his] sole and separate property to [Linda]." Trial courts in Arizona have subject matter jurisdiction over dissolution proceedings so long as one of the spouses is domiciled in Arizona at the commencement of the action. See A.R.S. § 25-312(1); see also Martin v. Martin, 156 Ariz. 452, 454 n.1 (1988). Once it has subject matter jurisdiction, the court has the authority to assign each spouse their separate property and divide all community assets. See A.R.S. § 25-318(A); see also Auman v. Auman, 134 Ariz. 40, 42 (1982). As both Linda and Jeff were Arizona residents, the court had subject matter jurisdiction to divide and assign the property at issue here.
¶27 We acknowledge that our jurisprudence has often used the term "jurisdiction" imprecisely. See Taliaferro v. Taliaferro, 186 Ariz. 221, 223 (1996). For example, in Weaver v. Weaver, 131 Ariz. 586, 587 (1982), which Jeff cites, our supreme court found the trial court "has no jurisdiction to grant a money judgment against one spouse for damage to the separate property of the other spouse in a dissolution proceeding." Despite the use of the term "jurisdiction," the court in Weaver was actually discussing the trial court's authority under the relevant statutes. Id. We have recognized before that "there have been instances where appellate tribunals have used the word 'jurisdiction' when, in reality, they meant, not the power to perform a certain act, but the performing of it when it was prohibited, a very different thing." Collins v. Superior Court, 48 Ariz. 381, 393 (1936); see also Taliaferro, 186 Ariz. at 223. Accordingly, we consider whether the court had authority to award Linda a portion of Jeff's separate income. See Marriage of Thorn, 235 Ariz. 216, ¶¶ 16-17 (whether court can order one spouse to return other spouse's separate property issue of statutory authority, not jurisdiction).
¶28 A trial court's authority in a dissolution proceeding is dictated by statute. See In re Marriage of Waldren, 217 Ariz. 173, ¶ 8 (2007); see also Weaver, 131 Ariz. at 587. Section 25-318(A) requires the court to "assign each spouse's sole and separate property to such spouse" and to "divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind." The court's authority to divide property is thus limited to "only those community assets and liabilities existing at the time of dissolution." Martin v. Martin, 156 Ariz. 440, 447 (App. 1986); see Koelsch, 148 Ariz. at 181 (spouse has no interest or control in other spouse's separate property). Any property acquired after a petition for dissolution is served is not community property, but the separate property of that spouse. §§ 25-211(A)(2), 25-213(B).
¶29 Here, there is no dispute that the funds contributed to the 401(k) through September 1, 2016 were community property and subject to equitable division by the trial court. Jeff's income earned after that date and added to the account, however, was his separate property and thus not subject to division. By setting the valuation date of Jeff's 401(k) approximately eight months after the petition for dissolution was served, the trial court impermissibly awarded Linda a portion of Jeff's separate property. See Boncoskey v. Boncoskey, 216 Ariz. 448, ¶¶ 27-28 (App. 2007) (vacating award to wife of fifty-percent survivor benefit in husband's entire pension that included post-dissolution earnings because it impermissibly awarded wife "more than her share of the community interest in Husband's pension").
Linda contends that Jeff failed to present evidence that his contributions to his 401(k) after the petition was served came from separate funds. Quoting Cooper v. Cooper, 130 Ariz. 257, 259 (1981), she asserts that "where community property and separate property are commingled, 'the entire fund is presumed to be community property unless the separate property can be explicitly traced.'" At no point below, however, was an issue regarding the commingling of funds raised, and, indeed, Linda agreed during her closing arguments that all of Jeff's post-petition contributions, which were deducted directly from his paychecks, constituted separate property. We therefore find this argument to be without merit.
¶30 The trial court, however, relied on Sample to support its conclusion that it could set a valuation date other than September 1, 2016 to achieve "fairness." Sample, 152 Ariz. at 243. In that case, the trial court had found that a set of company stocks was the husband's separate property. Id. at 240. The wife appealed the ruling, and the appellate court concluded the stocks should have been treated as community property and remanded the case. Id. at 240-41. During the appellate proceedings, however, the husband had doubled the shares due to a stock split and then sold most of them. Id. at 240.
¶31 On remand, the trial court awarded the wife a one-half interest in the proceeds from the stock sales, one-half of the dividends received during the appellate proceedings, and one-half the current value of the stocks still held by the husband. Id. at 241. On appeal from that ruling, the husband argued the court was limited to valuing the stocks to the date of the dissolution decree. Id. The appellate court, however, affirmed the court's award, noting that courts have broad discretion to divide community assets in a way that achieves "substantial equality." Id. at 242. Because the stocks were community property, the benefits of which the husband had received due to an erroneous judgment, the court's choice of valuation date simply "returned to the wife 'that which was already hers.'" Id. (quoting Cockrill v. Cockrill, 139 Ariz. 72, 75 (App. 1983)). The appellate court ultimately held "that the selection of a valuation date rests within the wide discretion of the trial court and will be tested on review by the fairness of the result." Id. at 242-43.
¶32 The holding in Sample is not applicable to this case. Here, Jeff's post-petition income was not a community asset subject to equitable division. Rather, it was—as the trial court recognized—his sole and separate property. The court thus lacked the authority to award Linda a portion of that property. See § 25-318(A); see also Proffit v. Proffit, 105 Ariz. 222, 224 (1969) ("[T]he divorce court, in pronouncing a divorce decree, has no authority to compel either party to divest himself or herself of Title to separate property."); Warren v. Warren, 2 Ariz. App. 206, 208-09 (1965) (trial court erred by requiring husband to pay into community retirement plan after dissolution with separate income); Tester v. Tester, 123 Ariz. 41, 44-45 (App. 1979) (error to award wife $5,000 in retirement account when only $2,800 was community contribution). We therefore vacate that portion of the decree and remand with instructions that the community property valuation end date of the 401(k) be set at September 1, 2016. See Weaver, 131 Ariz. at 587-88; see also Warren, 2 Ariz. App. at 209-10.
Survivor Benefit
¶33 Jeff lastly argues the trial court erred by ordering that he and Linda "share the cost of the survivor benefit" for his pension. He contends that because it only benefits Linda, the full cost should be borne by her. In other words, he asserts the court, rather than divide the monthly pension amount equally between them, should have adjusted the amounts to compensate Jeff for the survivor benefit deduction. The court "has broad discretion in determining what allocation of property and debt is equitable under the circumstances." Marriage of Inboden, 223 Ariz. 542, ¶ 7. We consider the evidence in the light most favorable to sustaining the court's decision and will uphold the decision if any evidence reasonably supports it. Kohler v. Kohler, 211 Ariz. 106, ¶ 2 (App. 2005).
¶34 Jeff's authority for his argument is Boncoskey, 216 Ariz. 448. In that case, the trial court had required the husband to elect a joint and survivor annuity and to name the wife as the sole beneficiary. Id. ¶ 27. At the time of the dissolution, the husband was forty years old and would not be eligible to retire until he was fifty-four years old. Id. ¶¶ 3, 16. Under his pension's rules, naming his former wife as the sole beneficiary would preclude him from naming a subsequent wife as the beneficiary. Id. ¶ 28. Moreover, if his former wife received that annuity, "she would receive the entire survivor benefit, including portions that had accrued after dissolution." Id. Consequently, the appellate court vacated that order, finding there was "no authority supporting the court's order that Husband must choose a joint and survivor annuity naming Wife." Id.
¶35 Jeff does not explain, and we fail to see, how Boncoskey applies to this situation. In their joint pretrial statement, Jeff agreed that, "[d]ue to the length of the parties' marriage," electing the survivor benefit would be "appropriate." Additionally, Jeff is currently receiving his pension payments, which are community property. Boncoskey is thus not instructive in this case.
¶36 Jeff nevertheless maintains that "[b]ecause there is no case law that requires a spouse to choose a survivor benefit election, when one is chosen, the benefitting spouse should absorb the costs of the election." Although there may be no case law on this specific benefit, the general principles regarding the equitable apportionment of community property apply. The survivor benefit here effectively reduced the total monthly pension payment—a community asset—by approximately $240, thus, in turn, reducing both Jeff's and Linda's share. Rather than instruct that Jeff receive $240 more and Linda receive $240 less to compensate for that benefit, the trial court ordered the pension to be split equally. This resulted in Jeff and Linda effectively sharing the cost of the benefit equally. Given the length of the parties' marriage and the court's findings that Linda contributed substantially to Jeff's career, we cannot say the court abused its broad discretion in so ordering. See Marriage of Inboden, 223 Ariz. 542, ¶ 7; see also In re Marriage of Gibbs, 227 Ariz. 403, ¶ 16 (App. 2011) (we will affirm trial court if ruling correct for any reason); In re Marriage of Flower, 223 Ariz. 531, ¶ 13 (App. 2010) (in dissolution, "general principle is that 'all marital joint property should be divided substantially equally unless sound reason exists to divide the property otherwise'" (quoting Toth v. Toth, 190 Ariz. 218, 221 (1997))).
Attorney Fees and Costs
¶37 Jeff and Linda each request an award of their reasonable attorney fees and costs on appeal pursuant to A.R.S. § 25-324(A). See Ariz. R. Civ. App. P. 21(a). Section 25-324(A) requires us to examine the financial resources and the reasonableness of the positions of each party. See In re Marriage of Pownall, 197 Ariz. 577, ¶ 29 (App. 2000) (disparity in financial resources can support fees award even if other party took reasonable position). After doing so, we decline to grant either request. Additionally, because both parties partially prevailed on appeal, we decline to award costs to either party. See Valento v. Valento, 225 Ariz. 477, ¶ 25 (App. 2010) (declining to award costs where "both parties partially prevailed on appeal").
Disposition
¶38 For the foregoing reasons, we vacate the decree of dissolution in part, remanding for further proceedings consistent with this decision on the issue of the 401(k) valuation date, but otherwise affirm. We also dismiss the cross-appeal for lack of jurisdiction.