Opinion
No. 1 CA-CV 12-0528
01-28-2014
In re the Marriage of: DONNA JEAN WILLIAMSON, Petitioner/Appellee, v. LAVON EVANS WILLIAMSON, Respondent/Appellant.
Law Office of Kent D. Lee, P.C., Glendale By Kent D. Lee and Marc A. Lessow Counsel for Petitioner/Appellee The Counters Firm, Phoenix By Lisa J. Counters Law Offices of Kevin Koelbel, P.C., Chandler By Kevin Koelbel Co-Counsel for Respondent/Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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
No. FN2009-052504
The Honorable Stephen J. P. Kupiszewski, Judge
AFFIRMED
COUNSEL
Law Office of Kent D. Lee, P.C., Glendale
By Kent D. Lee and Marc A. Lessow
Counsel for Petitioner/Appellee
The Counters Firm, Phoenix
By Lisa J. Counters
Law Offices of Kevin Koelbel, P.C., Chandler
By Kevin Koelbel
Co-Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined. CATTANI, Judge:
¶1 Lavon Evans Williamson ("Husband") appeals from the decree terminating his marriage to Donna Jean Williamson ("Wife"). Husband challenges the family court's division of community property and spousal maintenance award. He also contests the attorney's fees award to Wife. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The parties were married in 1984. Over the course of the marriage, they accumulated substantial assets, including real property in Nevada, Utah, and Arizona. Husband retired from his twenty-six-year military career in February 1999 and began working as a self-employed financial planner. Husband was earning over $250,000 annually when he quit working in February or April 2009 due to health issues.
Husband also owned a home in Georgia as his sole and separate property.
¶3 Wife, who was fifty-four years old at the time of trial, is also retired from the military. During the marriage, Wife cared for Husband's mentally handicapped sister at the parties' home from November 1996 until September 2005. Wife also worked for five years as a supervisor at a pharmacy retail store until February 2000 when she began working part-time for Husband as a client contact specialist. After moving to Las Vegas in 2001, however, Wife's responsibilities with Husband's financial planning business diminished over time.
¶4 The parties moved back to Arizona in late 2008 or early 2009. In September 2009, in response to an internet solicitation, Husband began using community funds on a scam in which he was instructed to pay purported government officials to recover $10.5 million supposedly retained for him by a United States Customs agency ("Nigerian Scam"). Husband had previously spent money gambling, losing several hundred thousand dollars of community property funds.
¶5 Two days after learning of Husband's involvement in the Nigerian Scam, Wife separated from Husband because of his poor financial decisions and his gambling problem. Wife filed a petition for dissolution of marriage on October 7, 2009, and she served Husband nine days later with the petition and an accompanying preliminary injunction prohibiting his improper use of community assets. See Ariz. Rev. Stat. ("A.R.S.") § 25-315(A)(1)(a); Ariz. R. Fam. Law P. ("ARFLP") 27(A). Nevertheless, on October 23 and November 25, 2009, Husband withdrew over $106,000 from a family trust account and from his IRA, and in January 2010, Husband withdrew $134,000 from a community property deferred compensation account. Husband continued to make payments in connection with the Nigerian Scam until December 2009.
Absent material revisions after the relevant date, we cite to the current version of the statute.
¶6 On October 27, 2011, following a one-day trial, the family court issued a decree of dissolution of marriage. Based on its findings that Husband "mismanag[ed] . . . community funds" when he lost "close to one-half million dollars" "in an investment scheme" and that Husband "intentional[ly] and malicious[ly] violat[ed] . . . the temporary injunction [by] liquidating approximately $234,000.00," the court ordered a division of community property that included a judgment against Husband of $117,000. The court also awarded Wife the $105,100.87 balance in a community bank account, one half of which was ordered to offset the $117,000 judgment against Husband. Wife was awarded the parties' home in Arizona, and Husband was awarded their residences in Nevada and Utah. Regarding spousal maintenance, the court awarded Wife $24,000 in arrearages plus $3,000 in indefinite monthly maintenance. Finally, after considering the parties' respective financial resources, the court awarded Wife her attorney's fees under A.R.S. § 25-324, with the amount to be determined after Wife filed a China Doll affidavit.
The court awarded each party three vehicles in addition to other personal property. Husband was further ordered to pay community credit card debt totaling $32,925.06.
Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 673 P.2d 927 (App. 1983).
¶7 Husband filed a notice of appeal before the trial court issued an order awarding a specific attorney's fee amount. This Court dismissed the appeal as premature because of the pending attorney's fee issue. See Ghadimi v. Soraya, 230 Ariz. 621, 622-24, ¶¶ 10, 13, 285 P.3d 969, 970-72 (App. 2012). Subsequently, the family court awarded Wife attorney's fees in the amount of $22,000, thereby resolving all issues and entering judgment. Husband filed a new and timely notice of appeal. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1).
DISCUSSION
I. Distribution of Community Property.
¶8 Husband argues that the family court abused its discretion by inequitably dividing community assets. He contends that the court's orders regarding distribution of community assets and debts improperly resulted in a significantly disproportionate distribution of assets, with Wife allegedly receiving a net amount of over $608,000 more than he did. But his calculations do not include some of the assets awarded to him and do not account for his income from a disability insurance policy that pays him more than $8,000 per month.
¶9 Moreover, the court is not required to make an equal distribution of the community property if it does not appear that the disposition of the community estate is inequitable or unfair. Nesmith v. Nesmith, 112 Ariz. 248, 252, 540 P.2d 1229, 1233 (1975); see also A.R.S. § 25-318(A) (directing equitable division of community property). The court's discretionary power will not be disturbed on appeal absent a clear abuse of discretion. Neely v. Neely, 115 Ariz. 47, 49, 563 P.2d 302, 304 (App. 1977). A court does not abuse its discretion if there is evidence supporting its decision, Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999), and there are no errors of law. Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004). We consider the evidence in the light most favorable to upholding the court's ruling. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d 676, 679 (App. 1998).
¶10 Here, the court's division of community assets was based on its findings that Husband mismanaged community funds and intentionally violated the temporary injunction. See A.R.S. § 25-318(C) (allowing consideration of "excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community . . . property"). The record supports these findings; the trial evidence shows that Husband, over Wife's objections, invested and lost $436,000 in community funds in an internet scheme, and the evidence also establishes that Husband liquidated over $234,000 from community accounts after he was served with the preliminary injunction. Thus, in light of Husband's excessive and abnormal expenditures, we conclude the court did not abuse its discretion by ordering a non-proportional distribution of assets.
Husband also implies the court erred in finding he alone mismanaged the $436,000 in marital assets. Husband argues Wife approved of his "investment" in the Nigerian Scam because she "loaned" him $10,000 to "invest" in the scheme. However, Wife testified that she communicated to Husband her disapproval of his payments to the scheme, and she "loaned" Husband $10,000 "[o]n the condition that he would sign the house over to me."
II. Spousal Maintenance.
¶11 Husband challenges the family court's finding that Wife qualified for spousal maintenance and the amount awarded. We review an award of spousal maintenance for an abuse of discretion, viewing the evidence in the light most favorable to sustaining the award. Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9, 166 P.3d 929, 931 (App. 2007). We will not overturn a court's factual findings unless they are clearly erroneous. Hrudka v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App. 1995).
A. Eligibility.
¶12 Eligibility for spousal maintenance is governed by A.R.S. § 25-319(A). Two of the four independent bases for eligibility are: (1) if the spouse seeking maintenance "lacks earning ability in the labor market adequate to be self-sufficient" or (2) if the marriage was of long duration and the party seeking maintenance "is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient." A.R.S. § 25-319(A)(2), (4).
¶13 "There is no requirement that specific findings be made in the decree with regard to A.R.S. § 25-319." Higgins v. Higgins, 154 Ariz. 87, 88, 740 P.2d 508, 509 (App. 1987). Here, although the court did not make specific findings regarding the statutory bases for its maintenance award, neither party requested findings of fact and conclusions of law. The court expressly stated that it reviewed § 25-319 to determine whether Wife qualified for a spousal maintenance award. Therefore, we 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 any express findings. Elliott v. Elliott, 165 Ariz. 128, 135, 796 P.2d 930, 937 (App. 1990).
¶14 Here, the marriage lasted twenty-seven years, and Wife, who was fifty-four years old at the time of trial, had not had full-time employment since February 2000. Wife's attempts to secure employment since filing the petition had been unsuccessful, and her future earning capacity was unknown. The evidence thus reasonably supported implicit findings that Wife either lacks the requisite earning ability or that Wife is now of an age that may preclude adequate employment. See Thomas v. Thomas, 142 Ariz. 386, 391, 690 P.2d 105, 110 (App. 1984); see also Mori v. Mori, 124 Ariz. 193, 196, 603 P.2d 85, 88 (1979).
B. Amount.
¶15 To determine the appropriate amount and duration of spousal maintenance, the family court must consider the applicable factors listed in A.R.S. § 25-319(B). The family court has "substantial discretion to set the amount and duration of spousal maintenance." Rainwater v. Rainwater, 177 Ariz. 500, 502, 869 P.2d 176, 178 (App. 1993).
¶16 Husband argues that, under In re Marriage of Kosko, 125 Ariz. 517, 519, 611 P.2d 104, 106 (App. 1980), his $8,000 disability income is his separate property and should not have been part of the analysis. "It must be remembered, however, that while disability benefits are the property of the disabled spouse, it remains a matter of the discretion of the trial court to award support to the nondisabled spouse if the facts of the case so warrant." Id.
¶17 The family court's award is supported by substantial evidence, including a showing that Husband receives a monthly income of approximately $15,000 from his military retirement, social security and disability payments. The parties achieved a relatively high standard of living during their long marriage, and Wife's only monthly income is $532 in military retirement payments. Accordingly, we conclude that the family court did not abuse its discretion by ordering $3,000 per month as spousal maintenance. See A.R.S. § 25-319(B) (directing court to consider, among other factors: parties' "standard of living established during the marriage"; "duration of the marriage"; age and employment history of spouse seeking maintenance; parties' "comparative financial resources"; and "[e]xcessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community . . . property"); Rainwater, 177 Ariz. at 504-05, 869 P.2d at 180-01 (based on high marital standard of living achieved during twenty-three-year marriage, affirming indefinite spousal maintenance).
Husband's reliance on Mori v. Mori, 124 Ariz. 193, 603 P.2d 85, to suggest that Wife's spousal maintenance should be shorter, is misplaced. Although Mori also involved a marriage of long duration with a wife of approximately the same age, the wife in that case was completing a master's degree, which would afford her the opportunity to gain self-sufficiency through employment. Id. at 195-96, 603 P.2d at 87-88. Here, Wife has not had full-time employment for over a decade, and her attempts to secure employment since filing the petition have proven unsuccessful. Therefore, Wife's potential for self-sufficiency is not the same. See id.
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¶18 Finally, Husband asserts that the court's order awarding spousal maintenance for an "indeterminate period of time" will be particularly unfair when he turns 65 in 2020, at which point the disability payments will cease. But under A.R.S. § 25-327, Husband may be entitled to have the order modified in 2020 (or at any other time) by showing "changed circumstances that are substantial and continuing."
III. Fee Award.
¶19 Husband contends that the court erred by awarding Wife attorney's fees without specifying any unreasonable position advocated by Husband. He also argues the parties' relative post-decree financial positions do not support a fee award to Wife.
¶20 Under A.R.S. § 25-324, courts have discretion to award attorney's fees in a divorce case "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." Consequently, we review the trial court's fee award for an abuse of that discretion. See Gutierrez, 193 Ariz. at 351, ¶ 32, 972 P.2d at 684.
¶21 We note initially that Husband improperly focuses on the parties' post-decree financial positions. See Kelsey v. Kelsey, 186 Ariz. 49, 54, 918 P.2d 1067, 1072 (App. 1996). Based on the financial disparity between the parties before the decree, we conclude the trial court did not abuse its discretion by finding their respective financial resources supported a fee award to Wife. See id.
¶22 Husband also argues that the family court failed to specify an unreasonable position taken by Husband that would justify the fee award. Husband did not, however, request factual findings. Without such a request, a court is not required to make detailed findings, and Husband's failure to object at trial to perceived inadequate findings waives his right to do so on appeal. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 39, 250 P.3d 1213, 1221 (App. 2011).
IV. Attorney's Fees on Appeal.
¶23 Wife requests her attorney's fees on appeal. Having considered the factors set forth in A.R.S. § 25-324, in our discretion, we decline to award Wife attorney's fees.
CONCLUSION
¶24 The family court's decree of dissolution and award of attorney's fees are affirmed.