Opinion
No. 1 CA-CV 12-0409
02-12-2013
In re the Marriage of: CHRISTI ANN FULLER, Petitioner/Appellee, v. MARC D. PULSIFER, Respondent/Appellant.
Steven M. Ellsworth, P.C. By Steven M. Ellsworth And Spencer T. Schiefer Attorneys for Petitioner/Appellee John Bednarz, P.C. By John Bednarz Attorney for Respondent/Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC 2011-091206
The Honorable David B. Gass, Judge
AFFIRMED
Steven M. Ellsworth, P.C.
By Steven M. Ellsworth
And Spencer T. Schiefer
Attorneys for Petitioner/Appellee
Mesa John Bednarz, P.C.
By John Bednarz
Attorney for Respondent/Appellant
Gilbert HALL, Judge ¶1 Marc D. Pulsifer (Father) appeals the family court's decree of dissolution of marriage to Christi Ann Fuller (Mother). Father claims that the family court erred by assigning Father's school loans solely to Father, and awarding Mother $20,000 in attorneys' fees. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In reviewing the trial court's findings in a dissolution action, we view the evidence in the light most favorable to supporting the decision below and the trial judge's findings will be sustained if supported by any reasonable evidence. Johnson v. Johnson, 131 Ariz. 38, 44, 638 P.2d 705, 711 (1981). ¶3 Mother and Father married on July 18, 1992, and have five minor children together. Mother petitioned for dissolution of marriage from Father on February 23, 2011. Father accepted service but did not respond to the petition, and Mother never sought to have a default entered. He, however, began participating during the temporary orders hearing and then throughout the litigation. ¶4 The family court entered a decree of dissolution of marriage in December 2011. The court noted that both parties were working in low paying jobs when Father began attending law school at the outset of their marriage. Mother earned a bachelor degree in social work during the marriage, but never worked as a social worker. After not working outside the house for ten years while raising the children, Mother began working at a school serving lunch several hours a week for $7.50 an hour. The family court noted in its decree that "Mother is limited to low paying jobs, generally minimum wage. Mother has never held a high paying job. Her highest paying job was as a waitress." Mother explained to the court that she needed to obtain a master's degree in social work to better support herself and her children. ¶5 Father is a practicing attorney with an established private practice and earns approximately $217,100 per year, or $18,100 per month. Father argued to the family court that he and Mother should be jointly responsible for the $104,000 in outstanding student loan debt because the money was used, in part, to support the family during the time he attended law school. The court, however, concluded that Father "disregards the fact that if he had not gone to law school, he could have been working and that debt would not exist." The court further found that:
Father completed his law degree during the marriage. To pursue that advanced degree, Father incurred student loans. The loans currently are approximately $104,000. Father is not paying on those loans at this time. Father used those loans to pay for his education and to pay for some of the parties' living expenses while he was in school. Mother and Father both worked during Father's education, but the debt was incurred because Father could not work full[-]time while he was in school. Mother secured an undergraduate degree during the marriage, but she did not secure an advanced degree, which she needs to practice in her chosen field. As a result, Mother will have student loan debts that she will incur after the marriage. In equity, each parent should be responsible for his or her student loan debts for his or her advanced degree. Father will continue to reap the benefit of his degree as he pays off his loans, and the same will be true for Mother.Based on its findings, the court ordered that "Father shall be solely responsible for his remaining student loan debts of approximately $104,000 without further offset or equalization" in order "to create an equitable result." ¶6 The court also found that "Father was not forthcoming with regard to his resources. Notably, Father did not produce [a] financial affidavit in this matter until a week before the trial. Mother, however, did not establish that Father engaged in excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common." ¶7 Both parties requested attorneys' fees pursuant to Arizona Revised Statutes (A.R.S.) section 25-324 (Supp. 2012). The court denied Father's request and granted Mother's request after finding that:
Mother did not act unreasonably in the litigation. Father failed to file a response to the complaint and failed to file an affidavit of financial information until the parties prepared the joint pretrial statement. Father also did not timely update his discovery responses, though Mother did not pursue a motion to compel. In that regard, to the extent Father argues that Mother's positions were unreasonable, she did not have the information she needed to evaluate those positions because of Father's lack of candor. Therefore, to the extent Father says Mother's positions were unreasonable, Father is to blame.¶8 The family court subsequently awarded Mother $20,000 of the $33,222 in attorneys' fees she requested against Father. ¶9 The court also awarded Father and Mother joint custody of the children; and ordered, in part, that: Father pay $1791.57 in monthly child support through December 31, 2011, and $1601 after January 1, 2012, until further order of the court; Father pay an additional $500 per month until past support was paid; and Father pay Mother monthly spousal maintenance in the amount of $5500 for seventy-two months. ¶10 Father timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (Supp. 2012).
Father actually testified at the dissolution hearing that he agreed that he was in a better position than Mother to make the student loan payments because he earned a higher income and he offered to pay them in exchange for an offset against the business value.
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DISCUSSION
¶11 Father argues on appeal that the family court abused its discretion by: (1) assigning Father's school loans solely to Father and (2) awarding Mother $20,000 in attorneys' fees.
Father's Student Loan Debt
¶12 The division of marital property upon dissolution is governed by A.R.S. § 25-318(A) (Supp. 2012), which requires the court to "divide the community, joint tenancy and other property held in common equitably[.]" In its division of property, the court may consider all debts and obligations related to the property. See A.R.S. § 25-318(B); see also Hrudka v. Hrudka, 186 Ariz. 84, 91-92, 919 P.2d 179, 186-87 (App. 1995) (all debt incurred by either spouse during marriage is presumed a community obligation). The family court has broad discretion in equitably dividing community assets and liabilities. See In re Marriage of Flower, 223 Ariz. 531, 535, ¶ 14, 225 P.3d 588, 592 (App. 2010). In considering the equitable division of property, two courts might independently reach different conclusions based on the same circumstances without either one abusing its discretion, and we will not disturb the court's ruling absent a clear abuse of that discretion. In re Marriage of Inboden, 223 Ariz. 542, 544, ¶ 7, 225 P.3d 599, 601 (App. 2010). ¶13 Although an equitable division of community property generally means a substantially equal division, the court may order an unequal division of the property if "sound reason exists." See Toth v. Toth, 190 Ariz. 218, 221, 946 P.2d 900, 903 (1997). "Equitable" is a "concept of fairness dependent upon the facts of particular cases." Flower, 223 Ariz. at 536, ¶ 18, 225 P.3d at 593 (citation omitted). In considering the equities, the family court is not limited to the statutory factors listed in A.R.S. § 25-318(C) ("excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common"); rather, "any other factors that bear on the equities of a case may properly be considered." Inboden, 223 Ariz. at 546, ¶ 14, 225 P.3d at 603 (citing Toth, 190 Ariz. at 221-22, 946 P.2d at 903-04). ¶14 The family court noted in the decree of dissolution of marriage that this case "presents a unique set of facts or circumstances. Therefore an unequal division of community property is appropriate to achieve equity." Although the court found that Father's student loans were a community debt, it allocated that debt solely to Father in order to create an equitable result. The court reasoned that Mother will incur student loan debt after the dissolution of marriage as she pursues an advanced degree in social work. Thus, the court found that each parent should be responsible for his or her own student loans and that "Father will continue to reap the benefit of his degree as he pays off his loans." ¶15 Relying on Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115 (App. 1981), Father argues that the family court abused its discretion in allocating to Father all of the student loan debt incurred by the parties while Father was pursuing his education because Mother had already benefited financially during the marriage from Father's earning capacity as an attorney and benefited further by a substantial award of community property that was accumulated through Father's law practice. We disagree. The issue in Wisner was whether a medical license obtained during coverture was community "property" as defined by A.R.S. § 25-211, the value of which is therefore subject to division in a dissolution proceeding. 129 Ariz. at 339, 631 P.2d at 121. The court held that education is an "intangible property right, the value of which . . . cannot properly be characterized as property subject to division between the spouses." Id. at 340, 631 P.2d at 122. The court then went on to explain that although not property, "education, along with the potential for greater earning capacity which can accompany it, is doubtless a factor to be considered by the trial judge in determining what distribution of property would be 'equitable.'" Id. at 341, 631 P.2d at 123. ¶16 In the passage relied on by Father, the court noted that any injustice that might arise by the value of an education being excluded from the concept of divisible property is obviated when "the non-license or degree holder has already or otherwise benefited financially during coverture from his or her spouse's earning capacity" and that "the acquisition of a considerable estate obviously solves this problem." Id. Because the non-degree holder in Wisner received a substantial award of community assets, the court concluded that the trial court did not abuse its discretion by denying further compensation. Id. Although Wisner would not have precluded the family court from allocating a portion of the parties' school loan debt to Mother, we do not perceive that Wisner compelled the family court to do so. Based on Father's current income and the opportunity for him to continue to benefit financially from his education well into the future, the family court did not abuse its discretion in allocating the debt associated with that future earning capacity to Father.
Attorneys' Fees
¶17 Father argues on appeal that the family court abused its discretion by awarding Mother partial attorneys' fees in the amount of $20,000 under A.R.S. § 25-324(A). Section 25-324(A) allows the family court to order a party to pay the other party's reasonable attorneys' fees after considering "the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." Absent an abuse of discretion, we will not disturb an award of attorneys' fees on appeal pursuant to A.R.S. § 25-324(A). MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36, 250 P.3d 1213, 1221 (App. 2011). ¶18 Father maintains on appeal that because the family court found there was no substantial disparity of financial resources between the parties, an attorneys' fee award of $20,000 to Mother was unreasonable. Although the court did indeed make that finding, it also determined that Father failed to file a response to Mother's petition for dissolution of marriage, failed to timely update his discovery responses, failed to timely file an affidavit of financial information, and displayed a "lack of candor." These findings go to the reasonableness of Father's position taken throughout the proceedings and provide adequate support for the family court's award to Mother. Accordingly, the family court did not err in granting Mother a partial attorneys' fee award.
Attorneys' Fees on Appeal
¶19 Mother requests attorneys' fees on appeal pursuant to A.R.S. § 25-324. In the exercise of our discretion, we award Mother her reasonable attorneys' fees on appeal contingent on her compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶20 For the foregoing reasons, we affirm.
___________
PHILIP HALL, Judge
CONCURRING: ___________
MARGARET H. DOWNIE, Presiding Judge
___________
MAURICE PORTLEY, Judge